Malza D. Shira vs Archana Marak And Anr. on 27 March, 2003

    Malza D. Shira vs Archana Marak And Anr. on 27/3/2003

JUDGMENT

   P.P. Naolekar, CJ.

   1. None appears for the respondents.

   2. The petitioner-husband Shri Malza D. Shira has filed a suit for divorce
under Section 10 of the Indian Divorce Act, 1869 (for short "the Act"). It is
alleged that Smti Archana Marak, the wife of the petitioner and Simon Sangma,
had adulterous relations. His wife has deserted him without any justifiable
cause. The respondent No. 1, the wife has entered appearance and filed her
written statement denying the allegations of adultery and desertion. On the
contrary, she has alleged adultery, cruelty and desertion on the part of the
husband. She further prayed for return of all the matrimonial properties and
maintenance of Rs. 2,000 per month for herself and minor children. The Court
below after recording evidence of the parties have reached to the conclusion
that both the parties have failed to prove the adultery alleged by them against
each other. However, the wife has successfully proved the cruelty and desertion
against the petitioner-husband and consequent thereof, the decree of divorce was
passed. The Court further directed custody of the minor children with the mother
Smti Archana Marak. While passing the decree of divorce, the Court gave further
direction regarding the property shown in Annexure-I of the written statement of
the Respondent No. 1 holding it to be property of the wife being matrimonial
property. The Court has directed that on any matrimonial property, the husband
has no right, title and interest as per the customary law applicable to the
Garos. Therefore, the property shown in Annexure-I is to be returned back by the
petitioner-husband to the wife, i.e., the Respondent No. 1 within a period of
one month.

   3. When the matter came up for confirmation of decree of divorce as required
under Section 17 of the Act, Miss A. Paul, the counsel for the petitioner-
husband submitted that the decree for divorce by the Court on the basis of the
allegations made in the written statement could not have been granted. Besides
this, the Court has no jurisdiction or authority to adjudicate upon the title to
the property or give directions of return of that property to the wife holding
it that the wife has right, title and interest over the property as per
customary law applicable to the Garos while granting the decree for divorce
under the Act 1869.

   4. It is true that Court below has refused decree of divorce on the
allegations made by the petitioner-husband as he has failed to substantiate
those allegations, but has granted decree of divorce on the basis of grounds
alleged by the wife in her written statement having found them proved by the
respondent wife. Miss A. Paul urged that the husband-petitioner having failed to
prove the allegations, the Court could have at best dismissed the petition for
divorce and has no jurisdiction to pass decree on the basis of allegations made
in the written statement. Answer to the question of the counsel lies in Section
15 of the Divorce Act, which reads :

     "Section 15 : Relief in case of opposition, of certain grounds. - In any
suit instituted for dissolution of marriage, it is respondent opposes the relief
sought on the ground, in case of such a suit instituted by a husband, of his
adultery, cruelty, or desertion without reasonable excuse, or in case of such a
suit instituted by a wife, on the ground of her adultery and cruelty, the Court
may in such suit give to the respondent, on his or her application, the same
relief to which he or she would have been entitled in case he or she had
presented a petition seeking such relief, and the respondent shall be competent
to give evidence of or relating to such cruelty or desertion."

   Section 15 authorise the Court to give decree on the basis of allegation made
by the respondent/defendant in written statement and proved by him or her. This
Section lays that when a suit is instituted for dissolution of marriage, the
respondent can oppose the relief on the ground of petitioner's adultery, cruelty
or desertion, and on such grounds or ground being raised, the court should
permit the respondent to prove those grounds by leading an evidence and if the
court reaches to the conclusion that grounds/ground is proved, then to grant
decree for divorce. Section 15 permits respondent defendant to be petitioner/
plaintiff while defending the suit for divorce. The decree of divorce passed by
the learned Judge of the trial Court is in accordance with law being permissible
by virtue of Section 15 of the Act.

   5. Coming to the second submission of Miss Paul regarding directions for
return of Annexure-I property to the respondent wife, we find that under Section
39 of the Act (later on omitted by Act 51 of 2001) (as it stand at relevant
time), the Court has jurisdiction and authority to pass an order while passing a
decree of divorce, as it thinks reasonable, to be in regard to the property of
the wife. The question really is, whether the Court in the facts of the present
case could have exercised such power. For better appreciation of the submission
made by the counsel for the petitioner-husband, it would be appropriate to
reproduce Section 39 of the Act.

     "39. Power to order settlement of wife's property for benefit of husband
and children. - Whenever the Court pronounces a decree of dissolution of
marriage or judicial separation for adultery of the wife, if it is made to
appear to the Court that the wife is entitled to any property, the Court may, if
it thinks fit, order such settlement as it thinks reasonable to be made of such
property or any part thereof, for the benefit of the husband, or of the children
of the marriage, or both.

     Any instrument executed pursuant to any order of the Court at the time of
or after the pronouncing of a decree of dissolution of marriage or judicial
separation, shall be deemed valid notwithstanding the existence of the
disability of coverture at the time of execution thereof.

     Settlement of damages. - The Court may direct that the whole or any part of
the damages recovered under Section 34, shall be settled for the benefit of the
children of the marriage, or as a provision for the maintenance of the wife."

   6. It is apparent from the section that whenever the Court pronounces a
decree of dissolution of marriage or judicial separation for adultery of the
wife, and it is made apparent to the Court that the wife is entitled to any
property, the Court may, if it thinks fit, order such settlement as it thinks
reasonable to be made of such property or any part thereof for the benefit of
the husband or the children of marriage or of both. The primary requirement for
application of this Section is that, the Court is pronouncing a decree of
dissolution of marriage or judicial separation for adultery of the wife. Thus,
the decree should be for dissolution of marriage or judicial separation for the
adulterous conduct found by the Court against the wife and not against the
husband. Secondly, the settlement which is permissible under Section 39 of the
property, is in favour of or in benefit of the husband or of the children of
marriage or of both. Thus, when the Court passes a decree of divorce on the
ground of adultery of the wife, the Court gets jurisdiction to pass a direction
for settlement of property in favour of the husband or the children of marriage
or both. The settlement of the property contemplated under Section 39 is in
favour of the husband or the children of the marriage or both. It does not
contemplate settlement of the property in favour of the wife when the Court
passes a decree on the ground of adultery found to have been committed by the
husband. Apart from this, it is essential that the decree should be on the
ground of adultery, if the decree is not on the ground of adultery but on any
other grounds then the Court does not get jurisdiction to pass an order under
Section 39 of the Act.

   7. In the present case, the Court has specifically recorded the finding that
the Court does not find the ground of adultery alleged by the petitioner-husband
or by the respondent wife is proved. The decree granted by the Court is on the
ground of cruelty and desertion found against the petitioner-husband. Therefore,
there is no decree on the ground of adultery. That apart, the Court does not get
jurisdiction to settle the property in the benefit of the wife under Section 39.
Section 39 only authorises settlement of property in favour of the husband and
children of the marriage. On the facts found, the Court could not have exercised
jurisdiction to pass decree for delivery of the property to wife and, therefore,
although confirming the decree of divorce we set aside the decree of the Court
directing return of the property mentioned in Annexure-I to the written
statement. As the result, decree for divorce is confirmed and the decree for
return of Annexure-I to the written statement property is set aside. We,
however, make it clear that it shall be open for the parties to approach the
appropriate court for settlement of dispute, if any, regarding Annexure-I
property.

   8. The decree is partly modified as indicated above.