Swapna Ghosh vs Sadananda Ghosh and Another

A.M. Bhattacharjee, J.—This decree for dissolution of marriage made by the Additional District Judge in a Divorce Suit under the Indian

Divorce Act, 1869, has come, as it must, before us for confirmation u/s 17 of the Act and we confirm the same as we are satisfied that the

materials on record would warrant such confirmation. But the manner in which the trial Judge has decided the issues involved has not earned our

satisfaction and we would accordingly like to draw the attention of the learned Judge to the fact that trial of matrimonial causes, even if undefended

as the present one, is a matter, not of easy insouciance, but of most anxious advertence.

I have, however, my own doubts as to whether the provisions of Section 17 of the Indian Divorce Act requiring confirmation of the decree of

the trial court by the High Court should any longer be retained. A decree for dissolution of marriage among the Hind us, Buddhists, Sikhs and Jains

under the Hindu Marriage Act, 1955, among the Parsis under the Parsi Marriage and Divorce Act, 1936, among the Muslims under the

Dissolution of Muslim Marriages Act, 1939 are made by the District Courts and under the last mentioned Act, even by courts of lower rank and all

such decrees operate with the fullest efficacy without any confirmation from the High Court. It is, therefore, difficult to appreciate the retention of

the provisions of Section 17 of the Divorce Act providing that the Christian couples, even after obtaining a decree for dissolution from the District

Court, may be after a long-drawn and strenuous litigation, must still wait for confirmation thereof from the High Court before those decrees can be

complete and binding. These provisions of Section 17, even assuming that they had their days when enacted in the mid-nineteenth Century, have

probably outlived their purposes, particularly in the context of the later enactments relating to matrimonial laws governing the other communities

and referred to hereinabove and only result in protracting and prolonging the litigation, even where none of the parties is in a mood to have a further

review or reconsideration of their case by any higher Court. All these considerations led the Legislature of the State of Uttar Pradesh to do away

with these provisions in Section 17 of the Divorce Act by a State Amendment Act being Act No. 30 of 1957. We are inclined to think that our

Parliament, or the State Legislatures (Marriage and Divorce being matters in the Concurrent List) should very seriously consider the question of

introducing similar amendments in the Divorce Act of 1869 to bring it in harmonious conformity with other analogous enactments on the subject

governing the other communities in India and we are glad to note that a Special Bench of the Madhya Pradesh High Court. while disposing of a

confirmation proceeding u/s 17 of the Act in Mrs. Neena Vs. John Pormer, has also made recommendation to that effect in emphatic terms.

Whatever doubts there may still be about substantive due process, procedural due process or procedural reasonableness has doubtlessly been

made a part of our Constitutional Law by our apex Court since the decision in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and

reference may also be made to the later decisions in Bachan Singh and Others Vs. State of Punjab and Others, and in Mithu Vs. State of Punjab,

and to other post-Maneka decisions for the re-affirmation of this position. Have not the Christian spouses been denied procedural reasonableness

and due process by these provisions of Section 17 providing for compulsory confirmation hearing, in the context of the spouses belonging to other

communities whose matrimonial proceedings are not subjected to any such further hearing?

Before I proceed further to consider as to whether the grounds alleged by the wife for the dissolution of the marriage have been proved and the

decree for dissolution passed by the trial court should be confirmed. I would like to note that. Section 17 apart, there are several other provisions

in this Century-old Divorce Act of 1869 which are not only manifestly anachronistic, but have rendered themselves patently open to Constitutional

challenge. To start with, u/s 10 of the Act, while the husband is entitled to a dissolution on the ground of the wife's adultery, the wife is not so

entitled unless she proves that the husband's adultery is incestuous or is coupled with cruelty or bigamy or desertion. If the husband is entitled to

dissolution on the ground of adultery simpliciter on the part of the wife, but the wife is not so entitled unless some other matrimonial fault is also

found to be super-added, then it is difficult to understand as to why this provision shall not be held to be discriminatory on the ground of sex alone

and thus to be ultra vires Article 15 of the Constitution countermanding any discrimination on such ground. The only reported decision that comes

to my mind in defence for this provision is the one of Panchapakesa Ayyar, J., of the Madras High Court, sitting singly, in Pethayya Pillai Vs.

Karuppiah Nadar and Others, , where the learned Judge thought that since the husband even by committing adultery ""does not bear a child as a

result of such adultery and make it child of his wife to be maintained by the wife"", the wife by committing adultery ""may bear a child as a result of

such adultery and the husband will have to treat it as his legitimate child and will be liable to maintain that child u/s 488, Criminal Procedure Code

read with Section 112 of the Indian Evidence Act"", and that ""this very difference in the result of the adultery may form some ground"" of justification

for this differentiation. I have, thought that at least since the eleven-Judge Bench decision in the Rustom Cavasjee Cooper Vs. Union of India

(UOI), , the effect whereof has been further explained in Bennett Coleman and Co. and Others Vs. Union of India (UOI) and Others, the law must

be taken to be well-settled that however laudable or otherwise justifiable the object or purpose for the differentiation may be, it is not the object or

the purpose or the form, but it is the effect, the impact, the result of the law that would determine the question of infringement of fundamental right. I

would like to think that even assuming that the liability to conceive as a result of adulterous inter-course may otherwise be a reasonable ground for

classification between a husband and a wife permissible under Article 14, since a wife conceives and the husband does not only because of the

peculiarities of their respective sex, any discrimination on such ground would be a discrimination on the ground of sex alone against the mandatory

prohibition of Article 15.1 am afraid that any discrimination on the ground of any liability, inability, disability or incapacity of women resulting from

the peculiarities of their sex would amount to discrimination on the ground of sex atone. In C. B, Muthamma v. Union of India AIR 1979 SC 1868

the validity of the relevant provisions of the Indian Foreign Service (Conduct & Discipline) Rules, 1961, providing that ""no married woman shall be

entitled to as of right to be appointed to the service"" and that ""any time after the marriage, a woman member may be required to resign from

service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of

her duties"", came up for consideration. And it was urged in support of those provisions that marriage with its usual domestic responsibilities and

consequential motherhood affects women, at least physically and physiologically, much more than men and, therefore, married women were

discriminated against, not on the ground of sex only, but on the ground of consequential impairment of their usual capacity as a result of marital life.

But even then the two-Judge Bench, speaking through Krishna Iyer, J., had no hesitation in holding the impugned provisions to be violative of the

equality clause of the Constitution.

Then again, under the Divorce Act, Christian spouses are not entitled to dissolution of marriage on the ground of cruelty or desertion, but are only

entitled to judicial separation u/s 22 which shall have the effect of a divorce a mensa et thoro, that is separation only from ""bed and board"",

whereunder matrimonial bond remains undissolved. But spouses married under the Special Marriage Act, Hindu, Buddhist, Sikh and Jain spouses

governed by the Hindu Marriage Act, 1955, Zoroastrian spouses governed by the Parsi Marriage and Divorce Act. 1936. Muslim wives under the

Dissolution of Muslim Marriages Act, 1939 are entitled to dissolution of marriage, and not merely judicial separation, on those grounds. Are we

then discriminating against Christian spouses and that too, on the ground of their being Christian by Religion and thus violating the mandate of

Article 15 interdicting-discrimination on the ground of Religion only?

I do not propose to decide these questions, which are otherwise of very great importance, as this case can be disposed of even without

determining those questions and one of our well-settled self-imposed restraint is not to decide any Constitutional question unless we cannot but.

My only endeavour is to draw the attention of our concerned Legislature to this anachronistic incongruities and the provisions of Article 15 of the

Constitution forbidding all discrimination on the ground of Religion or Sex and also to Article 44 staring at our face four decades with its solemn

directive to frame a Uniform Civil Code.

Coming to the case at hand, the petitioner-wife has petitioned for dissolution of the marriage on the ground that the husband-respondent is guilty

of adultery, cruelty, desertion and bigamy. On a consideration of the evidence of the wife, PW-1, and her witness Rajeswari Mondal, PW-2, we

find no reason to differ with the trial Judge that the respondent is guilty of committing adultery with one Sujata. It is the wife's categorical evidence

that she has found her husband and Sujata to be lying in the same bed at night and the evidence of PW-2, who is a neighbour, is equally categorical

that the respondent lives together with Sujata in the same house as husband and wife. As already noted at the outset, the respondent-husband has

not contested the suit and, therefore, there is no cross-examination which might have elicited anything to discredit this statement. While it is true that

the statements of a plaintiff and his witnesses do not necessarily prove their truth simply because the defendant is ex parte and has not contested

the case, but their statements are not to be discarded either unless there are good reasons to do so and reading their statements as a whole in the

light of the petition and other surrounding circumstances, we find no reasons to disbelieve them.

That being so, we would have also no good reason to reject the testimony of the wife to the effect that she used to be ""tortured"", ""used to be

assaulted with fist and blows"" and that she and her daughter were not provided with food. This is cruelty sufficient enough to warrant a decree of

divorce a mensa et thoro and u/s 10, if a husband is found to be guilty of ""adultery coupled with such cruelty as without adultery would have

entitled to her to a divorce a mensa et thoro the wife would be entitled to a decree of dissolution of the marriage i.e., a vinculo matrimonii and not

merely a judicial separation, i.e., a divorce a mensa et thoro.

It is also the categorical evidence of the wife-petitioner that she was unable to bear the cruel treatment of the husband and as he did not look

after the child and provide her and the child with food and maintenance, she had to leave the matrimonial home and go to her father's place in

1980. It is now settled law that if one spouse, by his or her acts, deeds and conduct makes it impossible for the other spouse to live in the

matrimonial home and m consequence that other spouse eventually goes away from the matrimonial home, it is the former who is the deserting

spouse and the latter is the deserted one, even though that latter has done the physical act of leaving the home. This position in law has again been

pointed out by a Division Bench of this Court in Kamal Kumar Basu Vs. Kalyani Basu, , where Rayden on Divorce was referred to and relied on.

That being so, we would have to conclude that the respondent-husband is also guilty of desertion and such desertion in the case at hand having

been found to be coupled with adultery, the petitioner-wife is entitled to a decree for dissolution.

The trial Judge has also found the husband to be guilty of bigamy for marrying Sujata during the subsistence of his marriage with the petitioner.

But I am afraid that all that can be said to have been proved is his adultery with Sujata and not marriage or bigamy with her. To prove a marriage,

even though a bigamous one, there must be some evidence on record to show that some sort of recognised formalities or ceremonies requisite for

a valid marriage were performed, even though the marriage so performed would otherwise be illegal or invalid for being bigamous, notwithstanding

such forms or ceremonies. This has now been settled by the Supreme Court in a series of decisions, namely, in Bhaurao Shankar Lokhande and

Another Vs. State of Maharashtra and Another, , in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., , in Priya Bala, AIR 1971 SC

1153, in Gopal Lal Vs. State of Rajasthan, and in Lingari Obulamma Vs. L. Venkata Reddy and Others, As pointed out in Halsbury (3rd Edition,

Vol. 10, page 664), ""a person already married who, having the intention of appearing to contract a second marriage, goes through a form known

to and recognised by law as capable of producing a valid marriage, is guilty of bigamy although the second marriage..... would be otherwise

invalid"" in law. A second marriage valid at least in form is necessary to sustain a charge of bigamy, though it would be invalid in law for being

bigamous. In the absence of clearer evidence that some marriage at least valid in form was performed, we should not be justified in holding that the

husband-respondent was also guilty of bigamy or marrying another woman, even though he has been proved to have lived an adulterous life with

the woman concerned.

I would accordingly confirm the decree for dissolution of marriage passed by the trial Judge in favour of the petitioner wife, not on the ground

that the husband respondent is guilty of bigamy with adultery or of marriage with another woman with adultery, but on the ground that the husband

respondent is guilty of adultery coupled with such cruelty as without adultery would have justified a decree of judicial separation and also of

adultery coupled with desertion without reasonable excuse for two years and more.

Samir Kumar Mookherjee, J.

I had the advantage of reading the Judgment of my Lord A. M. Bhattacharjee, J. I would like to add few words of my own. Regarding the

manner in which the trial Court has dealt with the proceeding, I share equally the unhappiness of my Lord and hold the same view that the required

care and attention which the matter deserved had not been given by the trial Court. In view of the reasonings given by my Lord, which I fully

endorse, I concur with His Lordship's conclusions on merits of the case and consequential confirmation of the decree. I have no hesitation also in

expressing that I equally feel the need for an in depth consideration by the Parliament or appropriate State Legislature of the procedural provisions

of the Indian Divorce Act for introduction of amending provisions, .Regarding the other question raised, however' by His Lordship in the judgment,

I do not feel inclined to express any view.

Ajit Kumar Nayak, J.

While I concur with the finding in the judgment of my Lord A.M. Bhattacharjee, J., I would like to point to some important aspects of this case

and the broader issues that have been raised incidentally in deciding the case in question. It is needless to emphasise that the extraordinary

provision of every decree for a dissolution of marriage made by a District Judge, as required u/s 17 of the Indian Divorce Act, 1869, to be

confirmed by the High Court, appears to be a mid Victorian vintage and still valid in India. The wind for change to remove this apparent procedural

unreasonableness to bring it in conformity with the letter and spirit of subsequent enactments in the 20th Century, if not of the incoming 21st

Century, has already been highlighted by the State Amendment of such provision by Uttar Pradesh Legislative and the recommendation of Madhya

Pradesh High Court in the case reported in Mrs. Neena Vs. John Pormer, has also come for a reappraisal and reconsideration of the other

anachronistic incongruities fundamental and discriminatory in nature manifest not only in procedure but in substantial core provisions of such Act.

The fact whether wife should be discriminated against in the matter of getting relief, only on the ground of sex, has been seriously called into

question not only in the arena of family laws but in other spheres as well concerning avocation of life. The highest Court of the land has already

raised and considered such questions in the backdrop of protection of the rights enshrined in the Constitution. It is undoubtedly interesting and

imperative, therefore, to reconsider whether some of the salient features of the Indian Divorce Act, 1869 are violative of the equality clause

prohibiting such discrimination on the ground of sex as in Article 15 of our Constitution.

Apparently, some such questions, as it may, appear to be unrelated to the material issues involved in this case, but I think time has come to

have an indepth consideration of such associated questions by our legislatures to bring appropriate changes in the old and existing laws keeping

pace with the changing needs of our society.