Ramish Francis Toppo vs Violet Francis Toppo on 22 August, 1988

    Ramish Francis Toppo vs Violet Francis Toppo on 22/8/1988

JUDGMENT

   A.M. Bhattacharjee, J.

   1. I have no doubt that we cannot but decline to confirm this decree nisi for
dissolution of marriage passed by the learned District Judge in the Divorce Suit
under Section 10 of the Divorce Act, 1869, which has come up before us for
confirmation under Section 17 of the Act. I am, however, of opinion that, for
the reasons stated hereinafter, a decree for divorce a mensa et thoro. i.e., a
decree of judicial separation should instead be passed in favour of the
petitioner-husband against the wife-respondent under Section 22 of the Divorce
Act.

   2. In Swapna Ghosh v. Sadananda Ghosh (SB) disposed of by this Bench, I have
confessed my inability to appreciate the utility of retaining any longer the
provisions of Section 17 of the Divorce Act of 1869, which compulsorily requires
confirmation by this Court of the decree for dissolution of marriage passed by
the District Court and that too, by a Bench of not less than three Judges. It
may be that the concerned Legislature in that mid-nineteenth century intended
the continuance of the marriage to be the rule and dissolution thereof to be the
exception and attached so great importance to the continuance of marriage that
it thought that a marriage could be allowed to be dissolved only after a
District Judge had decreed the same and a three-Judge Bench of the High Court
was also satisfied that it could not but be so decreed. Inspiration might have
been derived from the law relating to Criminal Procedure whereunder a death-
sentence could not, and even now cannot, be executed unless confirmed by the
High Court and since the decree for divorce results in death of the marriage,
the relevant law intended to express its very grave concern in respect of such a
decree, as it did and still does in respect of a sentence of death. But as I
have pointed out in some details in Swapna Ghosh (supra), under the Special
Marriage Act of 1954 providing the general matrimonial law of the land and the
various special matrimonial laws governing all the communities in India except
the Christians like the Hindu Marriage Act of 1955, the Parsi Marriage and
Divorce Act of 1936, the Dissolution of Muslim Marriages Act of 1939 etc., a
decree of dissolution by a District Court, and in some cases, even by Courts
subordinate thereto, is final conclusive and binding, unless the party aggrieved
chooses to prefer appeal, while, because of Section 17 of the Divorce Act, 1869,
a similar decree between the Christian spouses would not acquire legal efficacy
unless the proceedings are dragged to the High Court before a three-Judge Bench
and confirmed by it. I have pointed out that these provisions under Section 17
have been very rightly done away with by an Amendment Act by the Uttar Pradesh
State Legislature, being Uttar Pradesh Act No. 30 of 1957 and that, as has also
been observed by a Special Bench of the Madhya Pradesh High Court in Neena v.
John Parmer , it is high time that similar amendment is introduced in the
Divorce Act by Parliament on all-India basis or at least by our State
Legislature without waiting any further for that august body to move in its due
course. I have also said that these provisions may also appear to have
discriminated the Christians on the basis of religion alone thus transgressing
Article 15 of the Constitution and also to be violative of procedural due
process for denying procedural reasonableness to the Christians, in the context
of the other matrimonial laws operating in the country. Both my Lords
Mookherjee, J. and Nayak, J., have been pleased to concur with me in holding
that the question of introducing some such amendment deserves very serious
consideration. But while his Lordship Mookherjee J., has, in his separate
judgment (supra, at pp. 163-164 of (1988) 2 Cal LJ): (at pp. 5-6 of AIR)),
expressly reserved his views on the constitutional questions raised by me, his
Lordship Nayak, J., if I have read his separate judgment correctly, has held
(supra) at p. 164 (of Cal LJ) : (at p. 6 of AIR) those questions also to warrant
serious and in depth consideration. I have also, in Swapna Ghosh (supra), raised
several other questions relating to

   the constitutional vires of some of the relevant provisions of the Divorce
Act though I have not finally decided those questions in that case as
determination of those questions were not indispensibly necessary for the
disposal thereof. I could riot then lay hand on a decision of Alagiriswami, J.,
then of the Madras High Court (subsequently elevated to the Supreme Court) in
Solomon Devasahayam Selvaraj v. Chandirah Mary (1968) 1 Mad LJ 289 and I am now
glad to find that the learned Judge also thought it fit to advert to some of
those questions and expressed himself (at p. 294) as hereunder: --

     "The Indian Divorce Act, 1869 is wholly out of date. Its provisions were
exact copies of the English Matrimonial Causes Act of 1857. Under that Act, it
was enough if the husband proved adultery in order to enable him to get a
divorce from his wife. On the other hand that was not enough for a wife to get a
divorce against her husband. Something more must be proved. The law had been
amended in England as early as 1923 by the Matrimonial Causes Act, 1923, putting
the husband and the wife on equal footing. The Matrimonial Causes Act of 1937
added some more grounds for divorce. The law in India under the Hindu Marriage
Act is practically the same as in England at present. The Parsi Marriage Act was
amended in 1936 to put it more or less on the same basis as the English Law of
1937. Only the Divorce Act, which applies to Christians, is at least 50 years
behind the times. No one will consider that the Christians are a backward
community compared to the other communities in the country. It is high time that
the Indian Divorce Act is brought in line with the Hindu Marriage Act, the Parsi
Marriage Act and the Special Marriage Act, 1954. Indeed, the Special Marriage
Act even provides for divorce by consent of parties."

     "Another important matter is that under the Indian Divorce Act for cases
arising inside the city of Madras, the High Court is the Court competent to try
such cases whereas in the case of other communities the City Civil Court,
Madras, can deal with the cases. What is more, a decree for dissolution of
marriage, of nullity of marriage passed by a District Judge has to be confirmed
by a Bench of three Judges of the High Court In the case of the other
communities the Subordinate Courts are competent to deal with these matters and
the ordinary provisions of appeal in civil cases apply. It is unfiecessary and
wholly incongruous that the causes under the Indian Divorce Act, should be heard
by a High Court Judge, in the city and decrees passed by District Judges should
be confirmed by a Bench of three Judges of the High Court. It is necessary and
it would be advisable, to bring the provisions of the Indian Divorce Act, in
regard to divorce and judicial separation, in line with the provisions of the
other three Acts already mentioned".

   3. Now to the merits the decree obtained by the petitioner-husband is an ex
parte one as the wife-respondent did not turn up to contest the petition even
though she filed her Written Statement. It needs hardly to be stated that a
judicial proceeding, even if not defended or contested, can never be a matter of
easy insouciance but must be heard and determined with all due care and
attention. But since the whole of our civilized society germinates around the
institution of marriage which concerns not merely the spouses and the children
but also the society at large and since the society itself is vitally interested
in the maintenance of marriage and also its dissolution, wherever necessary,
trial of matrimonial causes must, as a rule, be a matter of most anxious
advertence. But even then, though the petitioner-husband in this case has only
examined himself and there is no witness to corroborate him, I am nevertheless
inclined to hold that the finding of the trial Judge that the wife-respondent
has deserted the petitioner for more than two years without reasonable excuse is
justified and should be affirmed. Not only we have the categorical and obviously
unchallenged, assertion of the petitioner in his deposition that she "left the
matrimonial home on 1st January, 1981" when she was pregnant, "gave birth to a
female child who died after one day's of birth", "did not give any information
about (its) birth, death and cremation", "is not willing to come back" and that
the petitioner "tried to get her back but to no effect", we have also the wife's
own admission in her written Statement about such leaving the matrimonial home
and of not coming back thereto, as alleged It is true that, as has again been
recently pointed out by a Division Bench of this Court in Kamal v. Kalyani , the
mere fact of one spouse leaving the

   matrimonial home does not necessarily make him or her the deserter, unless it
is shown to have been done with the requisite animus deserendi, i.e., the
intention to desert and the animus non-revertendi, i.e., the intention not to
return. But the wife-respondent in para 11 of her Written Statement has clearly
asserted "that the conduct of the petitioner is so abhorrent and heinous that no
lady could keep any communion with him". We are inclined to think that reading
such assertion in the respondent's own Written Statement along with the case
made out by the petitioner in his deposition, we can not but accept the case of
the petitioner that the wife-respondent has deserted him having left the
matrimonial home with the requisite animus deserendi and animus non-revertendi.

   4. In her Written Statement, the wife-respondent has no doubt put forward a
case of reasonable excuse for her withdrawing from the matrimonial home and has
asserted that the conduct of the petitioner compelled her to do so. It is true,
as pointed again in Kamal v. Kalyani (supra), in a matrimonial case on the
ground of desertion, very often the question arises as to who has deserted and
who is deserted, because the physical act of withdrawal or departure by one
spouse does not necessarily make that spouse the deserting party. For, if a
husband has behaved in such a way as to make it impossible for the wife to live
in the matrimonial home and the wife in consequence leaves the home, may be with
animus deserendi and animus non-revertendi, then, even if the wife has herself
made the physical departure, she would not be guilty of desertion as the husband
has given the wife reasonable cause to form such animus and to make the
departure. But not only the wife has not turned up to prove such a case, there
is also nothing on record to show that the conduct of the husband was such as to
justify the wife to withdraw and depart. It is the wife's own case in the
Written Statement that there has been a "break up of the matrimonial home" and
that her life in that home became "quite unbearable and this is the resultant
act of coming away from the petitioner's dominion". The deposition of the
petitioner read in the light of these statements of the wife would give rise to
the inference that the marriage between the parties has broken down
irretrievably. As I have had occasion to point out with the concurrence of
Nayak, J. in Apurba v. Manashi (F.A. 345 of 1986, disposed of on 10-6-88) : ()
and

   also with the concurrence of Baboolal Jain, J., in Harendra v. Suprava (F. A.
79 of 1984, decided on 11-7-88) : () ''irretrievable break down of marriage", by
itself, has not yet been made a ground of divorce under the Special Marriage Act
or the Hindu Marriage Act and so far the Divorce Act of 1869 is concerned, which
governs the case at hand, the decision of the Supreme Court in Reynold Rajamani
is a clear authority for

   the view that we cannot make out and add any new ground to those expressly
specified as grounds for matrimonial reliefs under the Act, however desirable
the ground may otherwise be. But all that I intend to drive at is that if the
evidence and also the pleadings of the parties show the marriage to have been
wrecked beyond repair and to have broken down irretrievably, it would make the
allegation that a spouse of such a marriage has deserted the other to be more
readily acceptable.

   5. But accepting, as we do, that the wife-respondent has deserted the
petitioner-husband, desertion of one spouse by the other, is not, by itself, a
ground for dissolution of marriage under Section 10 of the Divorce Act, but is
only a ground of a divorce a mensa et thoro, i.e.. judicial separation under
Section 22. In fact, the Divorce Act in Section 10 provides for divorce on one
ground only, the ground of adultery, which again, in the case of a wife seeking
divorce, must be adultery coupled with some other lapses on the part of the
husband Desertion, cruelty and the like are grounds for divorce, and not merely
judicial separation under all the matrimonial laws operating in this country and
in Swapna Ghosh (SB) (supra), I have

   raised the question as to whether providing so many grounds of divorce to all
the other communities while restricting a Christian divorce only to the ground
of adultery amounts to discriminating the Christian spouses on the ground of
religion alone and I indicated an affirmative answer. As already noted, while
Mookherjee, J. has reserved comment on the question, Nayak, J. has held the
question to warrant serious consideration.

   6. Be that as it may the petitioner-husband in this case has also alleged
adultery on the part of the wife and the decree of dissolution before us has
been passed in favour of the petitioner-respondent on the ground of such
adultery also. But I am afraid that, for the reasons stated hereinbelow I cannot
confirm that decree.

   7. Under Section 11 of the Divorce Act, "upon a petition (for dissolution of
marriage) presented by a husband'' on the ground of the adultery of the wife,
''the petitioner shall make the alleged adulterer co-respondent to the said
petition unless he is excused from so doing on one of the grounds, to be allowed
by the court" and the three grounds on which the Court can allow him to be so
excused are : (1) that the respondent is leading a life of prostitute and that
the petitioner knows of no person with whom the adultery has been committed; (2)
that the name of the alleged adulterer is not known to the petitioner, although
he has made due efforts to discover it; and(3) that the alleged adulterer is
dead''.

   8. In his deposition, the petitioner has stated that the respondent "is
leading an immoral life and many people are visiting her" and that "I do not
know the details of those persons", but has not said that "he has made due
efforts to discover" the name or other details of any of them, either in his
deposition or in the original petition filed on 6-2-85, though in his
application for amendment of the petition filed on 20-8-86 and allowed on
29-8-86, he has stated that "even after his best endeavour, he could not collect
the names of persons with whom the opposite party is leading an adulterous
life". Even assuming, though not accepting that the petitioner made "due
efforts" or "best endeavour", we have a clear authority of a three Judge Bench
of this Court, speaking through P. B. Mukharji, J. in Susanta Kumar v. Himangshu
Prova (SB) "that not only the Statute makes it clear that the only exceptions
when the adulterer need not be made a party are those three and none others" but
that "even these exceptions can only be made by the permission of the Court and
if allowed by the court". This Special Bench decision of this Court has been
followed by a Special Bench of the Kerala High Court in Idicula Jacob v.
Mariyamma and has been treated as an authority for the view

   that a petition by a husband for dissolution of marriage on the ground of
adultery of the wife would not be maintainable unless Section 11 is duly
complied with. I have examined the records of this case at hand and I do not
find that the petitioner had at any stage made any application for permission of
the Court nor do I find from the records that the Court had at any stage allowed
the petitioner not to make the adulterer co-respondent to the petition on any of
the grounds recognized by Section 11, or, for the matter of that, on any ground
at all. Such non-joinder without obtaining the permission of the Court was one
of the grounds on which the Special Bench of this Court in Susanta Kumar (supra)
refused confirmation of the decree for dissolution obtained by the petitioner-
husband.

   9. I, for my part, would not, however, like to decline confirmation on this
ground alone. The object of the Section in providing that the alleged adulterer
shall be made a party is obviously to prevent any form of collusive divorce and
in effect enshrines the principle analogous to audi alteram partem, as it would
not be fair to declare a person to have adulterous relation with the wife-
respondent without affording that person an opportunity of being heard in the
matter. That is why, even though the Special Marriage Act of 1954 does not
contain any such provision, the rules made thereunder by some of the High Courts
provide for joinder of the alleged adulterer. But the fact remains that neither
the Special Marriage Act, nor the Hindu Marriage Act nor any other matrimonial
laws of our country, except the Parsi Marriage and Divorce Act, 1936, provides
for such joinder and, therefore, all but the Christians and the Zoroastrians can
get a decree for divorce even on the ground of adultery of the respondent
without joining the alleged adulterer as a co-respondent. I am afraid that this
might give rise to the contention that the Christians and the Parsis have been
discriminated against with the imposition of additional procedural burden and
have thus been denied procedural due process or procedural reasonableness. Then
again, while Section 33 of the Parsi Marriage and Divorce Act makes the joinder
of adulterer compulsory, whosoever may be the petitioner, whether the husband or
the wife, Section 11 of the Divorce Act imposes such an obligation on the
husband-petitioner only, but allows the wife-petitioner to sue the husband for
dissolution even without the alleged adulterer joined as a co-respondent. It may
be that this favourable position in favour of the softer sex, even though
apparently discriminatory, may be saved by Article 15(3) of the Constitution
giving the State an absolutely free hand in "making special provision for
women". But burdening the Christian husband with the obligation to join an
adulterer while freeing all other husbands and wives (except the Parsis) from
such obligation may be violative of the Equality Clause of the Constitution,
which, as is now well-settled since Royappa and

   Maneka , comprehends "reasonableness" as an

   all-pervading and brooding omnipresence, and may also be violative of
procedural due process.

   10. I would rather decline confirmation on merits as I am satisfied that even
accepting the deposition of the petitioner, the sole witness in this case, the
allegation of adultery cannot be said to have been reasonably proved. The law
laid down by the Supreme Court as to the standard of proof of the grounds of
dissolution of marriage may not appear to be quite uniform. In Dastane v.
Dastane , a three-Judge Bench of the Supreme Court, while refering to the
provisions of Section 23 of the Hindu Marriage Act which empowers the Court to
pass a decree "if the court is satisfied" as to the existence of any ground for
granting relief, has ruled that the "word 'satisfied' must mean 'satisfied on a
preponderance of probabilities' and not 'satisfied beyond reasonable doubt"' and
that the Civil and not the Criminal standard of proof applies to matrimonial
causes. But even though Section 14 of the Divorce Act of 1869, uses the similar
expression, namely, "in case the court is satisfied", an earlier three-Judge
Bench decision of the Supreme Court in White v. White has held that "Section 14
makes it plain that when

   the court is to be satisfied on the evidence in respect of matrimonial
offences, the guilt must be proved beyond reasonable doubt". In Dastane v.
Dastane (supra), the three-Judge Bench has not

   even noticed this earlier decision in White v. White (supra), emanating from
a Bench of co-ordinate jurisdiction nor another yet earlier decision of another
coequal Bench in Bipinchandra v. Prabhavati where also a three-Judge Bench has
ruled that "it is also well-settled in proceedings for divorce that the
plaintiff must prove the offence of desertion, like any other matrimonial
offences, beyond all reasonable doubt".

   11. As has been pointed out in a recent Special Bench decision of this Court
in Bholanath Karmakar , while confronted with

   two conflicting decisions of the Supreme Court rendered by Benches of equal
strength, the High Court would have to prefer one to the other and is not
necessarily obliged as a matter of course to follow either the former or the
latter in point of time, but must follow the one which, according to it, is
better in point of law. Needless to say that it would be quite embarrassing for
the High Court to declare one out of two decisions of the Supreme Court to be
more reasonable or better in point of law implying thereby that the other is
less reasonable. But if such a task falls upon the High Court because of
irreconcilable contrary decisions of the Supreme Court emanating from Benches of
co-ordinate jurisdiction, the task, however unpleasant and uncomfortable, has to
be performed. In the case at hand, however, we are relieved of such an exercise
for more reasons than one. For we may hold that since White v. White (supra) is
a decision directly under the Divorce Act, which has been also followed by a
Special Bench of this Court in Agnes Cecilla v. Lancelot in a case under Divorce
Act, which is also the

   statute governing us in this case, we should follow the same in preference to
Dastane v. Dastane , which is a decision under a different statute, namely, the
Hindu Marriage Act. But, even otherwise, I am satisfied that even if we go by
the Dastane standard and hold that the allegation of adultery need not be proved
beyond reasonable doubt, it would be trite to say that the allegation must
nevertheless be reasonably proved, for proof, in a Court of law, cannot but mean
reasonable proof, or to borrow from Section 3 of the Evidence Act, such proof
which a prudent man ought to accept. No citation should be necessary for such
obvious a proposition, but yet reference, if need be, may be made to the Special
Bench decision of this Court in Susanta Kumar (supra) at 34, where P.B.
Mukharji, J. speaking for the Bench has observed that "adultery must at least be
averred and alleged in the petition under Section 10 of the Indian Divorce Act
and reasonably proved'.

   12. Now all that the petitioner has stated in his deposition about the
adultery is that the wife-respondent "is leading an immoral life and many people
are visiting her". This is, if weareto, as we should govern ourselves by the
Special Bench decision in Susanta Kumar (supra), not even allegation of
adultery, far less

   any proof thereof. In Susanta Kumar (supra, at 34, para 3), the evidence of
the petitioner-husband was that "my wife used to bring young men into the house
and spend nights with them" and the evidence of the petitioners mother was that
the wife-respondent was "living a vicious life". But the Special Bench clearly
ruled that no adultery could be said to have been proved thereby and that "a
life of vice is not necessarily one of adultery", for "living a vicious life may
or may not be adultery and that evidence is not enough". I would also like to
hold accordingly that "leading an immoral life", as alleged by the petitioner-
husband in the case at hand, is not necessarily living an adulterous life and a
woman does not necessarily commit adultery simply because "many people are
visiting her". I would, therefore, hold that even accepting the deposition of
the petitioner as it is, the allegation of adultery against the wife-respondent
cannot be said to have been reasonably proved.

   13. The learned counsel for the petitioner-husband has, however, urged that
there are categorical statements in the petition, as amended, about the
commission of adultery by the wife and since under Section 47 of the Divorce
Act, "statements contained in every petition under this Act.... may at the
hearing be referred to as evidence", the allegation of adultery against the wife
should be taken to have been proved on the basis of such statements in the
petition. I shall discuss hereinafter as to what evidentiary value can in law be
attached to such statements in the petition, which under Section 47 "may be
referred to as evidence" and I would like to hold that no dissolution of
marriage on the ground of adultery can be decreed solely on the basis of the
statements in the petition, notwithstanding the provisions of Section

   47. But even that apart, I have my doubts whether any case of adultery
warranting a dissolution of marriage has at all been made out by the statements
in the petition.

   14. In para 4 of the petition, it has no doubt been stated that the opposite
party "is leading the adulterous life". But as would appear from paras 5. 6 and
7, this statement relates to the state of affairs prior to the earlier
matrimonial suit No. 45 of 1978 between the parties which ended in compromise
followed by resumption of conjugal cohabitation and is, therefore, entirely
irrelevant for the purpose of the present suit of 1985. As to the adultery
alleged to have given cause of action for this suit, the statements in para 10
are that "the opposite party is moving freely and is having intimate connection
with different people and is returning to her father's house very late at night
and at times she does not return even during night while she stays in her
father's place". For the reasons stated hereinbefore, land following the process
of reasoning adopted in the Special Bench decision in Susanta Kumar (supra), I
should have no doubt that to allege that a woman "moves freely" and has
"intimate connection with different people" is not to allege that the woman is
committing adultery for the purpose of matrimonial laws providing for
dissolution of marriage on the ground of adultery; "free movement" is not
necessarily adulterous course of conduct nor "intimate connection" is
necessarily adulterous connection. Para 11 of the petition contains only a bald
assertion that "the petitioner has every reason to believe that the opposite
party is leading an adulterous life" and it is obvious that such a statement,
however assertive, cannot amount to any evidence of adultery.

   15. In para 10(a), inserted in the original petition by way of amendment, it
is stated that the fact of the opposite party leading "undue/unwarranted
adulterous life" and of her being found "in a very affectionate/close manner in
a Cinema hall" was reported to the petitioner by one Sarat Kumar Ghosal. This
statement is rank hearsay and cannot obviously be referred to as evidence even
with the aid of Section 47, for even under that Section, only such statements
may be referred to as evidence which in law can otherwise go in as evidence. The
other portion of the statement again refers to "free mixing" and "bringing
people" and staying with them and, as already discussed hereinabove following
the process of reasoning adopted by the Special Bench in Susanta Kumar (supra),
these do not amount to allegation or evidence of adultery. The case of the
petitioner about the alleged adultery by the wife-respondent would, therefore,
fail even with the statements in the petition referred to as evidence with the
aid of Section 47.

   16. Under the ordinary law of Evidence and Civil Procedure, statements in the
plaint or the pleadings are not, by themselves, ''evidence" in the cause, unless
any relevant statutory provisions make them so. Under Section 193 of the Penal
code, a "verified plaint" may be equated with "evidence", but only for the
purpose of that Section. But a clear statutory exception is no doubt to be found
in Section 47 of the Divorce Act and this has been reproduced verbatim in
Section 32(2) of the Special Marriage Act of 1954 and Section 20(2) of the Hindu
Marriage Act, 1955. though in the Parsi Marriage and Divorce Act of 1936, there
is no such corresponding provision whereunder statements in the petition
initiating a matrimonial lis "may at the hearing, be referred to as evidence".
In the Special Bench decision of this Court in J. B. Ross v. C. R. Scriven AIR
1917 Cal 269 (2), which arose out of a suit for unliquidated damages for breach
of contract. Sir Ashutosh referred (at 276) to Section 47 of the Divorce Act and
pointed out that because, and only because, of such a clear statutory provision,
the statements in a verified petition under the Divorce Act could be referred to
as "evidence". But notwithstanding Section 47 of the Divorce Act, Costello, J.,
in this Court had no hesitation in declaring in Stones v. Stones (1935) ILR 62
Cal 541 at 545 that it was not only "desirable" but was "necessary" to have oral
evidence in matrimonial suits and it was declared "most emphatically" that it
was "altogether undesirable and indeed contrary to established practice to
accept evidence on affidavit, specially evidence of the petitioner".

   17. It appears that even though under Section 47 of the Divorce Act, the
statements in the petition "may, at the hearing be referred to as evidence", the
settled rule of practice has all along been not to decree dissolution on such
statements without oral evidence in support thereof. As already noted, in the
Special Bench decision of this Court in Susanta Kumar , (supra) the Special
Bench has ruled that "adultery must- at least be averred and alleged in the
petition under Section 10 of the Indian Divorce Act, and reasonably proved".
With Section 47 staring at the face and making all statements in the petition
referable as evidence, if the Special Bench still holds that allegations in the
petition must be reasonably proved, the Special Bench must be taken to have
contemplated proof of the allegation in the petition dehors the petition. In the
Special Bench decision of the Bombay High Court in Premchand v. Bai Galal. AIR
1927 Bom 594 at 599, a synthesis was sought to be made and it was held that
while "technically" the court "was entitled to refer to the allegations in the
petition as evidence", yet "the ordinary practice ....,that the parties give
viva voce evidence should invariably be followed in every case unless there are
some good reasons to the contrary". If I may put it in other words, while rule
of law may permit reference to such statements in the petition as evidence, rule
of prudence, which has sanctified itself into a settled practice, would require
substantive evidence at the trial to warrant a decree.

   18. On an examination of the relevant provisions of the Divorce Act, namely
Sections 45. 47, 51 and Section 14. I am inclined to think that the Act
contemplates a decree thereunder only on evidence adduced at the trial and not
solely on the statements in the petition which have been made referable as
evidence under Section 47. Section 45 has provided that all proceedings under
the Act shall be regulated by the Civil P.C. "subject to the provisions" of the
Act. Section 51 provides that "the witnesses in all proceedings before the
Court, shall be examined orally" ''provided that the parties shall be at liberty
to verify their respective cases in whole or in part by affidavit" but shall "be
subject to be cross-examined" on the application by the opposite party or by the
direction of the court. If the statements in the petitions were, under Section
47, to be treated as substantive evidence for all purposes, there should not
have been any occasion for the party to verify them further by affidavit, only
to subject him or her thereby to cross-examination. These provisions of Sections
47 and 51 of the Divorce Act were considered by the Pollock. Vivian Bose and
Digby. J.J., in the Special Bench case of the Nagpur High Court in Kishore v.
Snehaprabha, AIR 1943 Nag 185 and it was pointed out (at 187) that the Civil
P.C. also enables (Order 19) facts to be proved by affidavit, but in spite of
that affidavit evidence is rarely accepted in courts on matters which require
proof, except in interlocutory matters or on subsidiary questions and even then
it is usual to require regular proof when there is contest. These observations
in the Nagpur Special Bench have been quoted with approval by the majority in
the Special Bench decision of the Kerala High Court in Arnone v. Arnone .

   19. Section 14 of the Divorce Act also, in my view, goes a long way to
indicate that court cannot, and at any rate, should not decree dissolution
solely on the statements made in the petition, event though Section 47 makes
them referable as evidence. Section 14 provides that a Court in order to decree
dissolution must not only be "satisfied on the evidence that the case of the
petitioner has been proved", but must also be satisfied that the petition is not
presented or prosecuted in collusion with the respondent and that the petitioner
has not in any manner been accessory to or conniving at or condoned the adultery
complained of. I have no doubt that no court can reasonably come to these
findings merely on the statements in the petition without examining the
petitioner, more particularly in an undefended case and I would like to refer to
the single Judge decision of the Allahabad High Court in Anjula v. Milan , where
the learned Judge

   has taken similar view while considering Section 20(2) and Section 23 of the
Hindu Marriage Act, analogous to Section 47 and Section 14, respectively, of the
Divorce Act I am, therefore, of the view that I cannot, and, at any rate, could
not confirm the decree on the basis of the statements made in the petition, even
assuming that these statements, if believed, would have reasonably proved the
alleged adultery. I must, however, note that my Lord Mookherjee, J., has
indicated during our discussion that the view that no decree can ever be founded
on the statements in the petition may be too broad a proposition and that there
may be appropriate cases where such statement may form part of the basis for a
decree.

   20. I am not inclined to refer to the statements in the petition for yet
another reason. Section 47 of the Divorce Act, corresponding to Section 20 of
the Hindu Marriage Act and Section 32 of the Special Marriage Act, only makes
"the statements contained in every petition" referable as "evidence", but
neither that section nor any other section in the Act makes similar provisions
for the statements contained in the Written Statements of the respondent. I am
yet to understand the rationale behind this discrimination between the pleading
of the petitioner and the pleading of the respondent. The law under Article 14
of the Constitution as to the reasonable classification permissible thereunder
has now become almost platitudinous because of the avalanche of case-laws on the
point and whether one refers to the earlier seven-Judge Bench decision of the
Supreme Court in Budhan Chowdhury, or the much later seven Judge Bench judgment
in

   Special Courts Bill Reference the settled law would appear to be that (a) the
classification must be based on a reasonable differentia and (b) the differentia
must have a rational relation to the object sought to be achieved. I have asked
and asked in vain as to what could or can be the reasonable or rational
differentia between a verified pleading of the petitioner and the verified
pleading of the respondent, so that the statement in the former only, and not
the latter, can be equated with evidence at the hearing. I am afraid that if the
provisions contained in Section 47 of the Divorce Act or Section 20(2) of the
Hindu Marriage Act or Section 32(2) of the Special Marriage Act are given effect
to and the statements contained in the petition of the petitioner only are
referred to as an evidence, and not the statements contained in the pleading of
the respondent, then the respondent would be unreasonably discriminated and
denied equality before and the equal protection of law under Article 14. The law
also would appear to be to lack "reasonableness" to pass the crutiny of Article
14 which, as is now well settled since Royappa (supra) and Maneka (supra), is an

   embodiment of the principle of "reasonableness". I would, however, not like
the finally decide this question as I have already held that no decree can be
made on such statements alone and that, at any rate, the statements contained in
the petition in this case at hand do not clearly make out any case of adultery.
I would, therefore, decline to confirm the decree for dissolution of marriage
for the various other reasons as stated hereinbefore.

   21. But as I have already held, the petitioner-husband has been able to prove
that the wife-respondent has deserted him for more than two years without
reasonable excuse and that would entitle the petitioner to a decree for judicial
separation. As pointed out by this Court in the Special Bench decision in Amita
v. Alwin (ILR 1968-1 Cal 390) and also in the Nagpur Special Bench decision in
KJ v. KJ, AIR 1952 Nag 395 at 397, a proceeding for confirmation under Section
17 of the Divorce Act is virtually a continuation of the original lis and,
therefore, this Court can, even when declining confirmation, grant any relief to
which the petitioner may be found to be entitled. It is true that the Divorce
Act does not contain any express provision, corresponding to Section 27A of the
Special Marriage Act or Section 13A of the Hindu Marriage Act, providing that in
a proceeding for dissolution of marriage, the Court may, if it thinks fit,
nevertheless decree judicial separation only. But under Section 45 of the Act,
the proceedings thereunder are regulated by the Civil P.C., whereunder the Court
is always entitled to grant a lesser or other relief if the materials on record
justify such grant. I find nothing in the Divorce Act which would debar a Court
seized with a proceeding for dissolution under Section 10 to grant judicial
separation under Section 22 and in fact we find the Special Bench decisions of
the Madras High Court in Siluvaimani v. Thangiah, AIR 1956 Mad 421 and in Doris
Padmavathy v. Cristodas, to be clear authorities for the view that the Court

   can always do so. I would, accordingly decline to confirm the decree for
dissolution of marriage and would grant a decree for judicial separation under
Section 22 of the Divorce Act. In the circumstances of the case, however, I
would make no order as to costs.

   S.K. Mookherjee, J.

   22. I agree.

   Ajit Kumar Nayak, J.

   23. I agree.