Alika Khosla vs Thomas Mathew And Anr. on 1 May, 1996

    Alika Khosla vs Thomas Mathew And Anr. 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. 1 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 behaviour 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 behaviour and adultery, neglect of children and cruelty to respondent
No. 1. The respondent No. 1 alongwith the reply has filed detailed transcripts
of tape- recorded conversations alleged to be between the petitioner and her
mother as well as between the respondent No. 1 and one Mr. Jose Thomas, who is
alleged to be the paramour of the petitioner.

   4. One of the preliminary submissions made by the respondent is that the
petitioner is herself guilty of adultery and cruelty. Matrimonial discord 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 pressurise 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
herself having an adulterous relationship. Not only that, she was privy to
disruption of the family life by encouraging the 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 of, 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 not 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, and without
reasonable excuse, or of 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 wilful 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 v. T.V. Satyapal and Anr., reported at and Bhagwati
Prasad Dixit Ghorewala v. 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. Indira jai 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 wlo C.H. Issac v. 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 regard to the scope of Section 14 as under :

     "The only point which needs consideration before confirming the decree
passed by the lower Court is whether the petitions, 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 petitions, 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 lies 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 v. Mt. Allah
Rakhi and Anr., 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 v.
Shiva Toya (1). This principle has in fact been incorporated in the opening
words of Section 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 o 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. l'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 be guilty 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.