Alika Khosia vs Thomas Mathew on 1 May, 1996

    Alika Khosia vs Thomas Mathew on 1/5/1996

JUDGMENT

   Manmohan Sarin, J.

   (1) The petitioner's wife has filed the present Matrimonial petition for
dissolution of the marriage with respondent No. I on ground of cruelty and
adultery under Section 10 of the Indian Divorce Act.

   (2) The petitioner, who was a hindu by birth got converted into Christianity
prior to marriage to the respondent No. 1 on 29-12-1985 through a Church
ceremony. There are two children a daughter aged 8 years named Divya and a son
named George aged 6 years born of the marriage. The allegation in the petition
is that the petitioner was forced to leave matrimonial home in Cochin, due to
cruel and inhuman behavior of the respondent No.1 husband, who was at that time
posted as Collector in Cochin. The respondent No. 1 is an officer belonging to
the Indian Administrative Service and is presently posted as Private Secretary
to the Cabinet Minister for Industries Mr. K. Karunakaran. The allegation in the
petition is that respondent No.1 was having and still continues to have an
adulterous relationship with respondent No.2, Mrs. Padamja Venugopal, who is
daughter of Mr. K. Karunakaran.

   (3) The respondent No. 1 has filed his detailed reply to the petition ;for
dissolution of marriage denying the allegations, accusing the petitioner of
immoral behavior and adulte

   (4) One of the preliminary submissions made by the respondent is that the
petitioner is herself guilty .of adultery and cruelty. Matrimonial disco was
caused by her adulterous affair and neglect of the children. It is alleged that
the present petition has been filed on totally false and concocted allegations
against respondent No. 1, with a view to harass and pressurize the respondent
No. 1 to give up the custody of the children to her.

   (5) Mr. P.N. Lekhi, Senior Advocate, has drawn my attention to portions of
the transcript of the tape recorded conversations as filed: His argument is that
the tape recorded conversations between the petitioner and her mother as well as
those of Mr. Jose Thomas with petitioner, clearly show that the petitioner was
lietselfliavaigan adulterous relationship. Not only that, she Was privy to
disruption of the fairi fly life by encouraging there respondent's sister-in-law
in the latter's alleged affair.

   (6) Learned counsel relying on Section 14 of the Indian Divorce Act submits
that the petition is not maintainable and is liable to be dismissed. Section 14
of the Indian Divorce Act may be usefully reproduced:-

     "POWER to Court to pronounce decree for dissolving marriage. - In case the
Court is satisfied on the evidence that the case of the petitioner has been
proved,

     AND does not find that the petitioner has been in any manner access or to,
or conniving at, the going through of the said form of marriage, or the adultery
of the other party to the marriage, or has condoned the adultery complained or
that the petition is presented or prosecuted in collusion with either of the
respondents, -

     THE Court shall pronounce a decree declaring such marriage to be dissolved
in the manner and subject to all the provisions and limitations in the sections
sixteen and seventeen made and declared:

     PROVIDED that the Court shall riot be bound to pronounce such decree if it
finds that the petitioner has, during the marriage, been guilty of adultery,

     OR if the petitioner has, in the' opinion of .the Court, been guilty of
unreasonable delay in presenting or prosecuting such petition,

     OR of cruelty towards the other party to the marriage, or of having
deserted or wilfully separated. himself or herself from the other party before
the adultery complained of, arid without reasonable excuse,

     ORof such wilfully neglect or misconduct of or towards the other party as
has conduced to the adultery."

   (6) MR.LEKHI submits that the proviso to the said section carved out an
exception and the Court was not bound to pass a decree even if the petitioner
has proved her case, if it found that the petitioner during the marriage had
been guilty of adultery or of cruelty towards the other party to the marriage or
of such willful neglect or misconduct towards the other party as has conduce of
to the adultery.

   (7) The second limb of Mr. Lekhi's argument is that the petitioner had filed
a false and a frivolous litigation which deserved to be nipped in the bud. He
relied on T. Arvindandam Vs. TV. Satyapal and Another reported at and Bhagwati
Prasad Dixit Ghorewala Vs. Rajeev Gandhi reported at , Further in support of his
contention that the allegations, were frivolous and vexatious and the only order
that should be passed is to dismiss it as not disclosing a cause of action.

   (8) MS.INDIRAJAI Singh, Sr. Advocate appearing on behalf of the petitioner
urged that petitioner had not taken any specific objection in this regard in the
written statement. Para D of the preliminary objection only questioned the
territorial jurisdiction of the High Court to try and entertain the petition.
Learned counsel further argued that there was no absolute bar under Section 14
of the Indian Divorce Act to a decree being passed. All that it provided was
that the Court was not bound to pronounce such a decree, if it finds that the
petitioner had been guilty of adultery or the other acts as noted above. It was
a matter of discretion of the Court. Further that the stage for the application
of the proviso under the Section would arise only after recording of evidence
and trial. The Court had to be satisfied after evidence that the petition had
proved her case. It is at that stage that the Court would consider whether or
not to exercise the discretion on account of the alleged acts on behalf of the
petitioner. The stage of exercise of the discretion has not yet come. Learned
counsel for the petitioner also relied on Full Bench decision of the Madhya
Pradesh High Court Nalini W/O.C.H. Issac Vs. C.H.Issac reported at 1977 Hlr 669,
wherein the High Court at the stage of confirming a decree passed by the Lower
Court observed with regardtothescopeofSectioril4asiinder:-

     "THE only point which needs consideration before confirming the decree
passed by the lower Court is whether the petition, who is also guilty of
adultery, is entitled to the relief claimed. The proviso to Section 14 of the
Indian Divorce Act, though does not create a bar to the grant of a decree for
dissolution of the marriage in favour of the petitioner, who is also guilty of
adultery, but provides that the Court shall not be bound to grant such a decree
in favour of the petition, who is also found to be guilty of adultery. Thus it
is clear that the mere fact of bigamy having been committed by the spouse, who
is asking for the exercise of discretion, does not in itself operate as a bar to
such exercise but the default on the part of the petitioner has to be primarily
weighed in the balance with other matters when the Court is considering the
question of the exercise of its discretion. The circumstances in which the
petitioner committed the default must be carefully taken into consideration. In
the present case, it was the respondent who created the situation resulting in
the break down of the marriage by developing illicit intimacy with Chandrakanta
and by deserting the petitioner, he created such circumstances which compelled
the petitioner to do so.

     IT is true that the binding sanctity of marriage is to be given due
importance and has to be maintained at all costs by ignoring the other social
considerations. Thus, in our opinion, a true balance has to be maintained in
between respect for the binding sanctity of the marriage and the social
considerations which make it contrary to public policy to insist on the
maintenance of a union which has utterly broken down. It is noteworthy that
according to the present trend of decisions, the social considerations have
operated to induce the Courts, both in England and India, to exercise discretion
even in favour of the spouse guilty of adultery in the fact and circumstances of
a particular case, wherein, in earlier time a decree would certainly have been
refused.

     LEARNED counsel also relied on the observations made in Fattu Vs Mt. Allah
Rakhi and Another - Air 1931 Lahore 2, which are as under:-

     ONE of these principles is that a decree for dissolution of marriage cannot
be made merely on admission and without recording evidence: see Bai Kanku Vs.
Shiva Toya (1). This principle has in fact been incorporated in the opening
words of Sectioned 14 of the Indian Divorce Act, which require the Court to be
satisfied on evidence that the case of the petitioner has been proved.

     EVEN if the Court is satisfied that the petitioner has established his case
by evidence, it is necessary for it to go further and Find whether there has
been collusion; and whether the petitioner has been in any manner accessory to
or conniving at the adultery or has condoned the same. Having found on these
questions, in favour of the petitioner, the Court is not bound to give a decree
if it finds that the petitioner has been guilty of adultery or has been guilty
of unreasonable delay in presenting the petitioner or of having wilfully
separated himself from the other party before the adultery complained of, etc.,
etc.,

   (9) Learned counsel for the petitioner has in the reply/counter affidavit
denied the tape recorded conversations as correct and questioned their
admissibility and authenticity. The petitioner further denies having assisted in
the affair of the respondent No.1's sister-in-law.

   (10) Apart from the fact that the petitioner denies the authenticity and
correctness and admissibility of the tape recorded conversations and denies
having any adulterous relationship, there is no absolute bar under Section 14 of
the Indian Divorce Act on the maintainability of the petition. Section 14 of the
Indian Divorce Act provides that the Court has the discretion to decline to
pronounce a judgment or decree if the petitioner though having proved her case,
is found to beguilty of adultery or the acts and conducts set out in the
Section.

   (11) I am of the view that such a discretion would be exercised by the Court
after the evidence has been led and the factual position is clearly established.
There is considerable merit in the submission of the petitioner, which finds
support in the Full Bench decision of the Madhya Pradesh High Court referred to
earlier. Besides, having regard to the totality of facts and circumstances of
the case, it cannot be said at this stage that the petitioner's suit belongs to
that class of wholly false,vexatious and frivolous litigation which deserves to
be nipped in the bud or the petition does not disclose any cause of action. In
these circumstances, I decline the prayer for dismissal of the petition as not
maintainable under Section 14 of the Indian Divorce Act at this stage.