Pasumpon Gandhi vs Shirely Gandhi on 28 November, 2002

    IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 28/11/2002

Coram

The Hon'ble Mr. Justice P. SATHASIVAM

and

The Hon'ble Mr. Justice K. GNANAPRAKASAM

Civil Miscellaneous Appeal No. 946 of 1993

Pasumpon Gandhi. .. Appellant/Petitioner.

-Vs-

1. Shirely Gandhi,

   E/o. Pasumpon Gandhi,

   Working at A.F.Ferguson and Company

   Geena Building Annexe,

   304/305, Anna Salai, Madras-600 002.

2. Rahamadullah @ Basha Bai,

   Partner, Aaysons Apparels,

   312, Ist Floor, Thambu Chetty Street,

   Madras-1. .. Respondents/Respondents.

Appeal filed under Section 19 of the Family Courts Act against the order and
decretal order passed in F.C.O.P.No. 856/92 dated 8-3-93 on the file of the
Additional Family Court at Madras.

!For Appellant :Mrs. Radhika for Mr. M.S. Krishnan

^No appearance: For respondents.

:JUDGMENT

(Judgment of the Court was made by P. Sathasivam, J.)

Petitioner in F.C.O.P.No. 856 of 92 on the file of the Additional Principal
Judge (Additional Family Court), Madras, dismissing his petition filed under
Section 10 of the Indian Divorce Act, 1869 to dissolve the marriage performed
between him and the first respondent herein, has filed the above appeal. He
filed the said petition before the Family Court under Section 10 of the Indian
Divorce Act to dissolve the marriage on the ground of adultery coupled with
cruelty and desertion. It is contended before the Family Court that the marriage
between him and the first respondent was solemnized on 25-01-1978 according to
Christian rites. Thereafter they lived together till April, 1992. Alleging that
the first respondent had committed adultery with the second respondent, he
prayed for divorce. Before the Family Court, the petitioner-husband was examined
as P.W.1 and marked documents Exs. A-1 to A-5. In spite of the fact that the
first respondent herein, wife did not file counter statement and let in evidence
disputing the claim of the husband, by the impugned order dated 8-3-199 3, the
Additional Family Court dismissed the petition of the husband; hence the present
appeal. Even in this appeal, in spite of service of notice immediately after the
admission of the appeal in 1993 and also second notice at the time of final
hearing, the respondents, particularly the contesting first respondent-wife has
not chosen to contest the appeal by engaging a counsel. In such a circumstance,
we heard the argument of the learned counsel for the appellant.

2. After taking us through the various averments made in the petition filed
before the Family Court, and the evidence both oral and documentary, let in by
the appellant/husband, and by pointing out the fact that the first respondent-
wife neither sent reply to the notice, nor filed counter statement before the
Family Court and also not participated in the proceedings before the Family
Court as well as before this Court, Mrs. Radhika, learned counsel for the
appellant, would contend that inasmuch as the appellant has made out a case for
divorce under Section 10 of the Indian Divorce Act on the ground of adultery,
the Family Court ought to have dissolved the marriage and allowed the
appellant's petition. She also contended that the Family Court failed to
appreciate that there are sufficient oral and documentary evidence to prove the
charges of adultery and the dismissal of his petition for want of sufficient
evidence is erroneous and liable to be set aside.

3. We have already referred to the specific case of the appellant that the
marriage between the appellant and the first respondent was solemnized on
25-01-1978 according to Christian rites. It is also his case that thereafter
they lived together till April, 199 2, and 3 children were born to them. In the
petition it is specifically stated that he was employed in Air Force and posted
at Chandigarh at the relevant time. The first respondent was residing at Madras
and working in a construction concern. She refused to heed his advice to come
and join him at Chandigarh by resigning her job. The appellant obtained
voluntary retirement and returned back to Madras. He got an employment at
Central Bank of India, Pondicherry and because of the attitude of the wife and
to take care of children, he returned to Madras and settled down. During this
time, he noticed her arrival at 10'O clock at night though her working hours
closed at 5 P.M. On noticing her suspicious activities, he engaged Globe
Detective Agency (P) Limited, and through their surveillance report it was found
out that she was having illicit intimacy with one Rahamadullah @ Bashabai,
second respondent herein, who is having his office at first floor, No.312,
Thambu Chetty Street, Madras-1 as partner of Aaysons Apparels. When he lodged a
police complaint on 22-1-92, she admitted that she is living in adultery and she
wanted a Divorce. After some time she removed all the articles and left his
company and living in adultery forgetting her husband and children. It is
relevant to note that before filing the said petition for Divorce on the ground
of adultery, he sent a legal notice dated 7-7-92 to the first respondent herein.
She did not send any reply. Even before the Family Court, she did not file a
counter statement and contest the Divorce petition. In his evidence as P.W.1,
the appellant /petitioner has stated about his marriage with the first
respondent on 25-1-1978, birth of 3 children, his visit to his native place, the
subsequent information that the first respondent had left their house at
Chennai, and her intimacy with the second respondent. He also specifically
stated that since the first respondent herein is having relationship with the
second respondent, she failed to live with him, and she used to return home late
during night and made a police complaint also. Apart from the specific assertion
regarding her illegal relationship with the second respondent and his statement
as P.W.1, the appellant has also produced Xerox copy of the marriage
certificate, legal notice, acknowledgement, complaint to the police as well as
the copy of the report of the Detective Agency as documents. It is true that the
report of the detective agency had not been marked through the author of the
same. The Family Court is right in not giving importance to Ex. A-1 report given
by the private detective agency. However, we have to find out whether the
appellant-husband has made out a case for Divorce on the ground of adultery in
terms of Section 10 of the Indian Divorce Act, 1869.

4. The family Court, after holding that in the absence of clinching material to
indicate and prove beyond doubt the illicit intimacy between the first
respondent and the second respondent, the charge of adultery, put-forward by the
petitioner (appellant), cannot be upheld and dismissed the said petition.
Learned counsel appearing for the appellant has very much relied on a decision
of the Supreme Court in Dr. N.G. DASTANE v. Mrs. S. DASTANE (AIR 1975 Supreme
Court 1534) and contended that in a matter like this, particularly seeking
divorce on the ground of adultery, the Court can act on preponderance of
probabilities and arrived at a conclusion and need not expect that all the
conditions prescribed are to be satisfied beyond a reasonable doubt. There is no
dispute that Section 10 of the Act enables the husband to seek for divorce on
the ground that since the solemnization of the marriage, the wife has committed
adultery. In the petition, the husband had alleged the conduct of the first
respondent in not taking care of him, his 3 children and her close intimacy with
second respondent, as adulterer. The appellant has also alleged the fact that
because of her illegal association with the second respondent, she used to
return home late night. He also referred to the complaint given to the police
and their advice to approach to appropriate court for necessary relief. Even
prior to the filing of the said petition, the appellant has referred to all the
factual details in the notice sent to the first respondent. It has been marked
as Ex. A-3 and the acknowledgement card as Ex. A-4. Same averments have been
reiterated by the appellant in his evidence as P.W.1 before the Family Court. As
stated earlier, the first respondent wife did not send any reply for Ex. A-3,
file counter statement for the divorce petition and failed to appear before the
Family Court to put-forth her case. As stated earlier, even before this Court,
in spite of service of notice on two occasions, she did not care to contest the
case by engaging a counsel. With reference to the conclusion of the Family Court
that the husband failed to substantiate the materials, it is relevant to refer
to the conclusion of Their Lordships in the said decision, namely, AIR 1975 S.C.
1534 (cited supra). The following conclusion is relevant: (para 26)

"26. Neither Section 10 of the Act which enumerates the grounds on which a
petition for judicial separation may be presented nor Section 23 which governs
the jurisdiction of the court to pass a decree in any proceeding under the Act
requires that the petitioner must prove his case beyond a reasonable doubt.
Section 23 confers on the court the power to pass a decree if it is "satisfied"
on matters mentioned in Cls. (a) to (e) of the section. Considering that
proceedings under the Act are essentially of a civil nature, the word "
satisfied" must mean "satisfied on a preponderance of probabilities" and not
"satisfied beyond a reasonable doubt." Section 23 does not alter the standard of
proof in civil cases."

The case before the Supreme Court arose from Hindu Marriage Act and they
referred to Section 23 of the Hindu marriage Act which governs the jurisdiction
of the court to pass the decree in any proceeding under the Act. It does not
require that the petitioner must prove his case beyond a reasonable doubt. After
referring to the language used therein, particularly "if it is satisfied", the
Supreme Court has held that the word "satisfied" must mean "satisfied on a
preponderance of probabilities and not "satisfied beyond a reasonable doubt". In
our case, similar provision is there in Section 12 of the Indian Divorce Act,
1869. Here again, on a petition being filed under Section 10 of the Act, the
Court has to satisfy itself all aspects including absence of collusion, form of
marriage, the adultery, condonation etc., and if the petitioner's case has not
been proved, or is not satisfied that the alleged adultery has been committed,
the Court has to dismiss the said petition under Section 13. In the light of the
conclusion of the Supreme Court in the decision referred to above, we are of the
view that the interpretation relating to Section 23 of the Hindu Marriage Act is
applicable to Sections 12 and 13 of the Indian Divorce Act; accordingly we hold
that the word "satisfied" referred in Sections 12 and 13 of the Indian Divorce
Act must mean "satisfied on a preponderance of probabilities" and not beyond a
reasonable doubt, as observed by the Court below.

5. It is also relevant to note a Full Bench decision of the High Court of Madhya
Pradesh in LALIT v. LAVINA (FB), reported in AIR 1979 Madhya Pradesh

70. While considering Section 10 of the Indian Divorce Act, which we are also
concerned in the present appeal, the Full Bench has observed thus: (para 6 and
7)

"6. The next question to be considered is whether the petitioner has proved that
the respondent No.1 is guilty of adultery. Previously the view was that the
matrimonial offences have to be proved by petitioner beyond reasonable doubt but
recently the view has been modified and it has been held that petitioner is only
required to prove his case by preponderance of probabilities and the degree of
probability depends on the gravity of the offence. Rayden on Divorce in Vol.I at
page 193 has observed "But a suit for divorce is a civil and not a criminal
proceeding and the analogies and precedents of criminal law have no authority in
the courts administering divorces; they are civil tribunals. It is wrong,
therefore, to apply an analogy of criminal law and to say that adultery must be
proved with the same strictness as is required in a criminal case. As far as the
standard of proof is concerned, adultery, like any other fact on which
irretrievable breakdown of marriage is concerned, may be proved by a
preponderance of probability, and although it has been said that in proportion
as the offence is grave, so ought the proof to be clear, and that even in these
days there is a stigma in adultery, nevertheless views on adultery have changed
and it no longer generally entails the serious social consequences that in some
former times resulted from its discovery." Halsbury in para 562 has further
observed that adultery must be proved to the satisfaction of the court, that is
on a preponderance of probability; but the degree of probability depends on the
subject matter, and, in proportion as the offence is grave, so ought the proof
to be clear. Divorce is a civil proceeding and the analogies of criminal law are
not apt. It seems that the Supreme Court has also veered round to this view in
the recent case of Dastane N.G. v. S. Dastane, AIR 1975 SC 1534 and it has been
held, while considering a case under Hindu Marriage Act, that the proceeding
under the Act being essentially of a civil nature, the word 'satisfied' means
satisfied on preponderance of probability and not satisfied beyond reasonable
doubt.

7. Direct proof of adultery can rarely be given. Even if given, it is suspect
and is apt to be disbelieved. The accepted rule, therefore, is that
circumstantial evidence is all that can normally be expected in proof of the
charge. The circumstances must be such as lead to it by fair inference, as a
necessary conclusion; and unless this were so, no protection whatever could be
given to marital rights?."

We are in respectful agreement with the above view and hold that the petitioner
who approached the Court for divorce on the ground of adultery is only required
to prove his case by preponderance of probabilities and need not satisfy beyond
reasonable doubt. To make it clear that circumstantial evidence can also be
considered and take a note of. Previously the view was that the matrimonial
offences have to be proved by the petitioner beyond a reasonable doubt, but
recently the view has been changed and it has been held that the petitioner is
only required to prove his case by preponderance of probabilities and the degree
of probability depending upon the gravity of the offences. The accepted rule,
therefore, is that circumstantial evidence is all that can normally be expected
in proof of the charge. The circumstances must be such as lead to it by fair
inference, as a necessary conclusion, and unless this were so, no protection
whatever could be given to marital rights. In the instant case, as observed
earlier, before filing a petition for divorce under Section 10 of the Act, the
appellant/husband sent a registered notice alleging that first respondent having
intimacy with the second respondent, failed to take any interest either on his
welfare or on their children. Though she acknowledged the notice, she has not
sent any reply. Similar averments had been made in the petition before the
Family Court and the same was substantiated by his evidence as P.W.1. Even if we
eschew the report of the private detective agency-Ex.A-1, in the absence of
contest by the first respondent either before the Family Court or before this
Court, and in view of the present view, namely, that the petitioner is only
required to prove his case by preponderance of probabilities, we satisfy and
hold that the appellant-husband proved his case for a decree for divorce on the
ground of adultery. The Court below has committed an error in dismissing his
petition.

6. In the result, the order of the Family Court dated 8 -3-1993 made in
F.C.O.P.No. 856/92, dismissing the said petition is set aside and we grant a
decree for divorce to the appellant under Section 10 of the Indian Divorce Act,
1869. The Civil Miscellaneous Appeal is allowed and in the circumstances of the
case, there shall be no order as to costs.

(P.S.J.,) (K.G.P.J.,)

28-11-2002

R.B.

Index:- Yes

Internet: Yes.

To:

1) The Additional Family Court, Madras (with records).

2) The Section Officer, V.R Section, High Court, Madras