CMA/946/1993 of PASUMPON GANDHI Vs SHIRELY GANDHI on 28 November 2002

: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 PrincipalJudge (Additional Family Court), Madras, dismissing his petition filed underSection 10 of the Indian Divorce Act, 1869 to dissolve the marriage performedbetween him and the first respondent herein, has filed the above appeal. Hefiled the said petition before the Family Court under Section 10 of the IndianDivorce Act to dissolve the marriage on the ground of adultery coupled withcruelty and desertion. It is contended before the Family Court that themarriage between him and the first respondent was solemnized on 25-01-1978according to Christian rites. Thereafter they lived together till April,

1992. Alleging that the first respondent had committed adultery with thesecond respondent, he prayed for divorce. Before the Family Court, thepetitioner-husband was examined as P.W.1 and marked documents Exs. A-1 toA-5. In spite of the fact that the first respondent herein, wife did not filecounter statement and let in evidence disputing the claim of the husband, bythe impugned order dated 8-3-199 3, the Additional Family Court dismissed thepetition of the husband; hence the present appeal. Even in this appeal, inspite of service of notice immediately after the admission of the appeal in1993 and also second notice at the time of final hearing, the respondents,particularly the contesting first respondent-wife has not chosen to contestthe appeal by engaging a counsel. In such a circumstance, we heard theargument of the learned counsel for the appellant.

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

3. We have already referred to the specific case of the appellant that themarriage between the appellant and the first respondent was solemnized on25-01-1978 according to Christian rites. It is also his case that thereafterthey lived together till April, 199 2, and 3 children were born to them. Inthe petition it is specifically stated that he was employed in Air Force andposted at Chandigarh at the relevant time. The first respondent was residingat Madras and working in a construction concern. She refused to heed hisadvice to come and join him at Chandigarh by resigning her job. The appellantobtained voluntary retirement and returned back to Madras. He got anemployment at Central Bank of India, Pondicherry and because of the attitudeof the wife and to take care of children, he returned to Madras and settleddown. During this time, he noticed her arrival at 10'O clock at night thoughher working hours closed at 5 P.M. On noticing her suspicious activities, heengaged Globe Detective Agency (P) Limited, and through their surveillancereport it was found out that she was having illicit intimacy with oneRahamadullah @ Bashabai, second respondent herein, who is having his office atfirst floor, No.312, Thambu Chetty Street, Madras-1 as partner of AaysonsApparels. When he lodged a police complaint on 22-1-92, she admitted that sheis living in adultery and she wanted a Divorce. After some time she removedall the articles and left his company and living in adultery forgetting herhusband and children. It is relevant to note that before filing the saidpetition for Divorce on the ground of adultery, he sent a legal notice dated7-7-92 to the first respondent herein. She did not send any reply. Evenbefore 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 hasstated about his marriage with the first respondent on 25-1-1978, birth of 3children, his visit to his native place, the subsequent information that thefirst respondent had left their house at Chennai, and her intimacy with thesecond respondent. He also specifically stated that since the firstrespondent herein is having relationship with the second respondent, shefailed to live with him, and she used to return home late during night andmade a police complaint also. Apart from the specific assertion regarding herillegal relationship with the second respondent and his statement as P.W.1,the appellant has also produced Xerox copy of the marriage certificate, legalnotice, acknowledgement, complaint to the police as well as the copy of thereport of the Detective Agency as documents. It is true that the report ofthe detective agency had not been marked through the author of the same. TheFamily Court is right in not giving importance to Ex. A-1 report given by theprivate detective agency. However, we have to find out whether theappellant-husband has made out a case for Divorce on the ground of adultery interms of Section 10 of the Indian Divorce Act, 1869.

4. The family Court, after holding that in the absence of clinching materialto indicate and prove beyond doubt the illicit intimacy between the firstrespondent and the second respondent, the charge of adultery, put-forward bythe petitioner (appellant), cannot be upheld and dismissed the said petition.Learned counsel appearing for the appellant has very much relied on a decisionof the Supreme Court in Dr. N.G. DASTANE v. Mrs. S. DASTANE (AIR 1975Supreme Court 1534) and contended that in a matter like this, particularlyseeking divorce on the ground of adultery, the Court can act on preponderanceof probabilities and arrived at a conclusion and need not expect that all theconditions prescribed are to be satisfied beyond a reasonable doubt. There isno dispute that Section 10 of the Act enables the husband to seek for divorceon the ground that since the solemnization of the marriage, the wife hascommitted adultery. In the petition, the husband had alleged the conduct ofthe first respondent in not taking care of him, his 3 children and her closeintimacy with second respondent, as adulterer. The appellant has also allegedthe fact that because of her illegal association with the second respondent,she used to return home late night. He also referred to the complaint givento the police and their advice to approach to appropriate court for necessaryrelief. Even prior to the filing of the said petition, the appellant hasreferred to all the factual details in the notice sent to the firstrespondent. It has been marked as Ex. A-3 and the acknowledgement card asEx. A-4. Same averments have been reiterated by the appellant in hisevidence as P.W.1 before the Family Court. As stated earlier, the firstrespondent wife did not send any reply for Ex. A-3, file counter statementfor the divorce petition and failed to appear before the Family Court toput-forth her case. As stated earlier, even before this Court, in spite ofservice of notice on two occasions, she did not care to contest the case byengaging a counsel. With reference to the conclusion of the Family Court thatthe husband failed to substantiate the materials, it is relevant to refer tothe 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 governsthe jurisdiction of the court to pass a decree in any proceeding under the Actrequires 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 ofprobabilities" and not "satisfied beyond a reasonable doubt." Section 23 doesnot alter the standard of proof in civil cases."

The case before the Supreme Court arose from Hindu Marriage Act and theyreferred to Section 23 of the Hindu marriage Act which governs thejurisdiction 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 areasonable 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 "satisfiedbeyond a reasonable doubt". In our case, similar provision is there inSection 12 of the Indian Divorce Act, 1869. Here again, on a petition beingfiled under Section 10 of the Act, the Court has to satisfy itself all aspectsincluding absence of collusion, form of marriage, the adultery, condonationetc., and if the petitioner's case has not been proved, or is not satisfiedthat the alleged adultery has been committed, the Court has to dismiss thesaid petition under Section 13. In the light of the conclusion of the SupremeCourt in the decision referred to above, we are of the view that theinterpretation relating to Section 23 of the Hindu Marriage Act is applicableto Sections 12 and 13 of the Indian Divorce Act; accordingly we hold that theword "satisfied" referred in Sections 12 and 13 of the Indian Divorce Act mustmean "satisfied on a preponderance of probabilities" and not beyond areasonable doubt, as observed by the Court below.

5. It is also relevant to note a Full Bench decision of the High Court ofMadhya Pradesh in LALIT v. LAVINA (FB), reported in AIR 1979 Madhya Pradesh70. While considering Section 10 of the Indian Divorce Act, which we are alsoconcerned in the present appeal, the Full Bench has observed thus: (para 6and 7)

"6. The next question to be considered is whether the petitioner has provedthat the respondent No.1 is guilty of adultery. Previously the view was thatthe matrimonial offences have to be proved by petitioner beyond reasonabledoubt but recently the view has been modified and it has been held thatpetitioner is only required to prove his case by preponderance ofprobabilities and the degree of probability depends on the gravity of theoffence. Rayden on Divorce in Vol.I at page 193 has observed "But a suit fordivorce is a civil and not a criminal proceeding and the analogies andprecedents of criminal law have no authority in the courts administeringdivorces; they are civil tribunals. It is wrong, therefore, to apply ananalogy of criminal law and to say that adultery must be proved with the samestrictness as is required in a criminal case. As far as the standard of proofis concerned, adultery, like any other fact on which irretrievable breakdownof 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 oughtthe proof to be clear, and that even in these days there is a stigma inadultery, nevertheless views on adultery have changed and it no longergenerally entails the serious social consequences that in some former timesresulted from its discovery." Halsbury in para 562 has further observed thatadultery must be proved to the satisfaction of the court, that is on apreponderance of probability; but the degree of probability depends on thesubject matter, and, in proportion as the offence is grave, so ought the proofto be clear. Divorce is a civil proceeding and the analogies of criminal laware not apt. It seems that the Supreme Court has also veered round to thisview in the recent case of Dastane N.G. v. S. Dastane, AIR 1975 SC 1534 andit has been held, while considering a case under Hindu Marriage Act, that theproceeding under the Act being essentially of a civil nature, the word'satisfied' means satisfied on preponderance of probability and not satisfiedbeyond reasonable doubt.

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

We are in respectful agreement with the above view and hold that thepetitioner who approached the Court for divorce on the ground of adultery isonly required to prove his case by preponderance of probabilities and need notsatisfy beyond reasonable doubt. To make it clear that circumstantialevidence can also be considered and take a note of. Previously the view wasthat the matrimonial offences have to be proved by the petitioner beyond areasonable doubt, but recently the view has been changed and it has been heldthat the petitioner is only required to prove his case by preponderance ofprobabilities and the degree of probability depending upon the gravity of theoffences. The accepted rule, therefore, is that circumstantial evidence isall that can normally be expected in proof of the charge. The circumstancesmust be such as lead to it by fair inference, as a necessary conclusion, andunless this were so, no protection whatever could be given to marital rights.In the instant case, as observed earlier, before filing a petition for divorceunder Section 10 of the Act, the appellant/husband sent a registered noticealleging 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. Similaraverments had been made in the petition before the Family Court and the samewas substantiated by his evidence as P.W.1. Even if we eschew the report ofthe private detective agency-Ex.A-1, in the absence of contest by the firstrespondent either before the Family Court or before this Court, and in view ofthe present view, namely, that the petitioner is only required to prove hiscase by preponderance of probabilities, we satisfy and hold that theappellant-husband proved his case for a decree for divorce on the ground ofadultery. 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 adecree for divorce to the appellant under Section 10 of the Indian DivorceAct, 1869. The Civil Miscellaneous Appeal is allowed and in the circumstancesof the case, there shall be no order as to costs.(P.S.J.,) (K.G.P.J.,)28-11-2002R.B.Index:- Yes Internet: Yes.To:1) The Additional Family Court, Madras (with records).

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