Mrs. Beatrice Honor Agatha Goodal vs Mr. Harrylock Charles David ... on 15 December, 1932

    Mrs. Beatrice Honor Agatha Goodal vs Mr. Harrylock Charles David Goodal on
15/12/1932

ORDER

   Young, J.

   1. This is the petition of Mrs. Beatrice Goodal against her husband, Harry
Charles David Goodal, for dissolution of her marriage to him on the ground of
adultery, desertion and cruelty. No written statement has been filed. Counsel
for the respondent says he is not in a position to put his client in the box.
The petition is undefended. The parties are Anglo-Indians domiciled in India,
and last resided together at Cawnpore. This Court therefore has jurisdiction to
hear and decide this petition. The marriage took place at All Saints Cathedral,
Allahabad, on 2nd October 1926. The petitioner was born on 27th August 1913.
When this fact was brought to my attention on examining the pleadings I added an
issue: "Was there a valid marriage; was the petitioner able to consent to the
said marriage." At the time of the marriage the petitioner was just 13 years
old. The petitioner was married at this early age because the respondent seduced
her under promise of marriage. The mother thought that it would be better under
the circumstances to have the marriage celebrated. She gave the petitioner's age
as sixteen. There appears to be nothing either in the Divorce Act or in the
Christian Marriage Act as regards the age of consent. Under Section 7, Divorce
Act, the High Courts have to act, subject to the provisions contained in that
Act, according to the principles and rules on which the Court for divorce and
matrimonial causes in England for the time being acts and gives relief. It
appears to me therefore that for a Christian marriage in India the age of
consent at the date of this marriage would be 12 in the case of a girl, that
being the then state of the law in England at the date of this marriage. The
answer to this issue is therefore that this marriage was a valid marriage and
the petitioner consented to it.

   2. With regard to the other issues of adultery, desertion and cruelty, the
petitioner has given evidence herself on the issues of desertion and cruelty.
The marriage, as was not unnatural under the circumstances, was unhappy from the
very beginning. The girl was very young, and the husband does not appear to have
been tactful or kind. There is evidence that he beat his wife when she not
unnaturally resisted his advances. Eventually, after living together for only 15
days, the husband turned the petitioner out of the house; and the same day she
and her mother lodged a report at the thana giving these facts. From that day
the petitioner and the respondent have not lived together. One Mr. Arratoon, a
private detective from Calcutta, has given evidence that the respondent is now
living at Ondal with another woman who passed as Mrs. Goodal. He has satisfied
me that the respondent and this other woman are now living together as husband
and wife. The detective's evidence has been corroberated by the evidence of Mr.
Moss, who states that whilst stationed at Ondal he knew the respondent and that
he was then living with a woman who passed as his wife, that woman not being the
petitioner. On these facts there can be no question as to the proof of adultery
and desertion; cruelty too has been proved. The wife is therefore entitled to a
decree nisi. Mr. Haripal Varshni, who appears here on behalf of the husband, has
drawn our attention to Section 49, Divorce Act, which enacts that

     where the petitioner is a minor he or she shall sue by his or her next
friend to be approved by the Court, and no petition presented by a minor under
this Act shall be filed, until the next friend has undertaken in writing to be
answerable for costs.

   3. He contends that the petitioner being under 21 years of age is a minor
within the meaning of this section, and that therefore the petition is bad as
the petitioner is not suing through her next friend. Although no defence has
been entered in this case and Mr. Haripal Varshni has really no locus standi in
the Court, I have allowed him as amicus curiae to draw my attention to this. In
my opinion there is nothing in the point. Under Section 3(5) minor children
other than those of "native" parents are defined as unmarried children who have
not completed the age of 18 years. Although this does not apply strictly to the
petitioner who is married it is a guide. In any event the Civil Procedure Code
by Section 45, Divorce Act, applies to petitions under the Divorce Act; under
that Code a next friend is not required over the age of 18. The petitioner is
over 19 and therefore she is not a minor within the meaning of Section 49. There
will he a decree nisi in favour of the petitioner. The petitioner will get her
costs of the suit from the respondent. With regard to alimony pendente lite I
have evidence which satisfies me that the respondent is drawing pay to the
extent of Rs. 300 a month. He has a 10 P.C. cut and other deductions, land I
think the amount the respondent should pay to the petitioner is Rupees 50 per
month, which sum he will pay on the 9th day of each month.