J.N. Bhatt, J.
1. A short, but interesting question which has been put in focus, for our consideration and adjudication in this reference, under Section 17 of the Divorce Act, 1869 (the Act) by the District Court, Ahmedabad Rural at Mirzapur Court, arising out of Civil Suit No. 3 of 1997 instituted for dissolution of marriage under Section 10, on the ground of respondent-wife being guilty of adultery and passing of decree for dissolution of marriage is whether the factual profile and the evidence on record constitutes a legal launching pad for passing of decree for dissolution or not?
2. In order to examine and satisfy our conscience, we have thought it expedient to have a close scrutiny of relevant and material factual matrix, giving rise to the reference under Section 17 of the Act, as it stood then before amendment. Short conspectus of facts, therefore, may be highlighted at this juncture.
3. In this reference for confirmation of the decree for dissolution of marriage, arising out of a Civil Suit No. 3 of 1997 for decree under Section 10 by the original petitioner-plaintiff husband, on the ground of respondent-original defendant-wife, allegedly being guilty of adultery, the following aspects have emerged from the record incontrovertible.
(1) The spouses are professing Christian religion.
(2) The wedlock between them came to be solemnized as per the rites and as per the legal procedure under the personal law of the parties.
(3) The original-plaintiff married the original defendant No. 1 at Ahmedabad on 17-5-1987 in a Church at Ahmedabad, according to the Christian rites and Custom, and thereafter, they started residing in one house under common roof, in Ahmedabad within the territorial jurisdiction of the District Court of Ahmedabad Rural.
(4) As usual, the married couple started enjoying the marital bliss in the beginning and it also culminated into birth of a daughter on 7-8-1988, whose name is baby Divya.
(5) The husband is under-graduate, whereas the wife is graduate and it is the allegation of the husband in the petition for dissolution of marriage on the ground of adultery that on account of the disparity in the level of educational qualifications between them, the wife started becoming victim of superiority complex.
(6) It is also the case of the husband that after the birth of daughter, which took place almost after one year, three months and 10 days, the wife started quarreling with the husband, without any reasonable or just ground and that too on petty aspects.
(7) The version of the husband has been that despite the increasing degree of misconduct, misdemeanours, quarrels and hot temperament of the wife for long, he tolerated and did not think it appropriate for initiation of legal battle then.
4. The relationship between spouses thereafter started becoming more and more strenuous and far from cordiality and intimacy. It has been the plea of the husband that the wife, in his absence from the house, on 2-8-1995 deserted him and his house along with minor daughter aged about 7 years then, and went in the company of alleged adulterer, original-defendant No. 2 (respondent No. 2) and started living life as husband and wife. After about four days leaving of wife with daughter, the husband was left with no alternative but to initiate and lodge the complaint and report the fact of missing of his wife, and accordingly he made a report and lodged a complaint before Police at Ghatlodia Police Station, Ahmedabad. Thereafter, the police in course of inquiry questioned minor baby Divya and found some truth and substance in the allegation of the husband against the wife.
5. The husband, two years after his wife deserted and fled away with original respondent No. 2, Satyam, sent a registered notice which remained unresponded. Even at the time when the suit came to be filed for dissolution of marriage, the respondent No. 1 and the respondent No, 2 were staying, at Jalandhar, in Punjab State, as husband and wife, which necessitated the filing of suit invoking provision of Section 10 of the Act, as it then stood, by filing the Civil Suit No. 3 of 1997 for decree of dissolution of marriage on the ground of adultery of wife in the District Court, at Ahmedabad (Rural) at Mirzapur.
6. The respondent No. 1-wife did not think it appropriate to file written statement or written objection against the pleas and the reliefs sought in the plaint. In fact, ex pane order, below Exh. 1, Plaint came to be passed by the trial Court, on 15-2-1998, in the course of the suit pursuant to the second proviso of Section 11 of the Act, the respondent No. 2-alleged adulterer came to be impleaded despite his strong opposition. He has also thereafter filed his written statement, at Exh. 16 controverting the allegations levelled in the plaint by the husband. The learned trial Court Judge raised the issues, at Exh. 8, and recorded the evidence, which is consisted of the evidence of original plaintiff-husband at Exh. 17, who also placed reliance on the evidence of his minor daughter, Divya at Exh. 20, in order to fortify his pleas. He also led the evidence of one Police Constable at Exh. 22, who had recorded the complaint being Entry No. 11 of 1995 on 6-8-1995, four days after the wife eloped with respondent No. 2, adulterer along with minor daughter Divya, during the absence of the husband in the house while being on job.
7. As against that neither the respondent No. 1-respondent wife nor respondent No. 2-adulterer Satyam has been examined. Obviously, no further evidence on behalf of the respondent-party came to be adduced. Upon examination, evaluation and assessment of the evidence, the trial Court granted decree for dissolution of marriage under unamended Section 10 of the Act, by passing a judgment and order, on 7-1-2000, on the ground of adultery of wife holding that there was no collusion between the parties either for filing the suit or for obtaining the decree for dissolution of marriage. Therefore, the trial Court, invoking unamended provisions of Section 17 of the Act made a reference for confirmation of the decree, passed for dissolution of marriage accepting the case propounded by the husband. That is how the matter for confirmation upon a reference has come up before three of us, as constituted by the Hon'ble Chief Justice of this Court, under Section 17.
8. We have dispassionately examined and considered the factual profile, and the evidence emerging from the record of the present case. Since, parties have not thought it expedient to remain present, we have extensively considered the provisions of the Act in general and the provisions of Sections 10 and 17 as then stood in particular, together with the provisions of said relevant Rules Nos. 13 and 16 of the Divorce (District Court) Rules, 1929 and also Rule 197 incorporated in Chapter 18 of the Gujarat High Court Rules, 1993 relating to the procedure for confirmation of a decree under the Act and after enjoying the benefit of the views and the submissions made by the learned Advocate General, who at our request, assisted us and enlightened us.
9. Before we advert to the factual aspect for appreciation and evaluation of the evidence for the purpose of consideration of the reference on hand, it may be mentioned that the unamended provisions of Section 10 under which the trial Court has granted decree of dissolution will be relevant, as they provide grounds for dissolution of marriage. Section 10 prescribes that when husband can petition for dissolution of the marriage. The relevant part of Section 10 which reads as under :-
Section 10 : When husband may petition for dissolution :- Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.'
It may be very well visualized from the legislative scheme of the unamended provisions of Section 10, highlighted hereinabove, that the husband is entitled to file a petition for dissolution of marriage on the ground of the wife being guilty of adultery. The power of Court to pronounce decree for dissolution of marriage is statutorily prescribed under Section 14 of the Act. Section 17 provides for confirmation of decree for dissolution passed by the District Judge which reads as under :-
Section 17 : Confirmation of decree for dissolution by District Judge :-Every decree for a dissolution of marriage made by a District Judge shall be subject to the confirmation by the High Court.
Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in the case of difference the opinion of the majority shall prevail of (where the number of the Judge of the High Court is two) by a Court composed of such two Judges, and in case of difference the opinion of the senior Judge shall prevail.
The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage or such other order as the Court seems fit.
Provided that no decree shall be confirmed under this Section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person, suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under Section 8, and the High Court shall thereupon, if it think fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in Section 16 shall apply to every suit so removed, or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make decree in accordance with the justice of the case.'
10. In order to earn a decree for dissolution of marriage, the statutory parameters are prescribed and this Court when considering upon reference, confirmation of the said decree for dissolution of marriage is obliged to consider and incumbent' to address the following aspects :
(1) Whether the plea and relevant claim for dissolution of marriage by the husband suffers from the vice of collusion or not?
(2) Whether parties are professing or belonged to Christian religion or not?
(3) Whether the valid factum of marriage, including the rites and custom with which the marriage between the spouses has been solemnized as per the personal law of Christianity or not?
(4) Whether there is sufficient proof of alleged adultery is established as alleged or as per law or not?
It may be noted at this stage before we consider the viva-voce evidence on record, coupled with documentary-testimonial collection, that the marriages are made in heaven, they are enjoyed on the earth and they are dissolved in the Court. It has been noticed that the marital bliss with which initially spouses enjoyed started becoming vulnerable, gradually, on passing of more and more time of matrimony and more so after the birth of female baby [daughter] and it reached to the climax when the husband started feeling that wife is guilty of adultery.
If the adultery is established which can be also proved even by strong circumstantial evidence in most of the cases, obviously would affect the very fibre and foundation of relationship of husband and wife. It is also said that the husband ordinarily, keeps his eyes open before the marriage, and half shut after the marriage. Notwithstanding, there is always a degree of patience, extent of tolerance and if the husband finds that the wife has become guilty of commission of matrimonial offence and that too adultery, it would itself not only shake the entire matrimony and cordiality between the spouses but also give rise to the emergence of taking recourse to legal remedy, which husband can pursue and on successfully proving before the trial Court, can earn the decree of dissolution of marriage. Here, the husband has obtained decree in the case on hand before us is for the purpose of confirmation under Section 17 of the Act.
11. Upon true analysis and correct appraisal of the factual emergence of evidence on record, we find that the view taken by the District Judge in passing the decree of dissolution of marriage is justified and requires no interference but only confirmation.
12. The testimony of the husband, unambiguously, and categorically manifests the existence of the requisite parameters for earning the decree for dissolution of marriage as provided in Section 14 of the Act. The evidence of the husband in relation to the allegation of the adultery of respondent No, 1-wife with respondent No. 2-adulterer has been successfully established, despite cross-examination, nothing has been brought out which would affect his reliability, dependability and credibility.
13. Not only that the evidence of the husband has not been countered or controverted by the evidence of either respondent No. 1-wife or respondent No. 2, the adulterer, but none of them have Stepped into the witness box. It is true non-opposition or no-contest syndrome in such a process of law, ordinarily would not absolve the propounder of the plea of adultery from showing evidence to the satisfaction of the Court, so as to earn the decree of dissolution of marriage. In this connection, we are tempted to refer the evidence of minor daughter Divya, who stepped into witness-box. She is examined before the trial Judge, at Exh. 20, and after having considered dispassionately the entire deposition of the minor daughter, who was also subjected to unbearable cruelty, not only by the respondent No. 2, the adulterer but even by the respondent No. 1, the mother, when she was taken from place to place and finally settled in the house of the relatives of the uncle, at Jalandhar, who again was deserted, in Ahmedabad, at a relative's place, by the mother and who has no reason to depose falsely against the natural mother.
14. When we read the evidence of minor Divya, who passed very important formative tender years of childhood in a very tormented, terrified, terrorized household events, and circumstances, not only at the hands of the respondent No. 2-Satyam but also by her own mother, it is very difficult to believe but it is a hard and real fact proved beyond any doubt. Thus, the evidence of the husband, has the support of the evidence of daughter insofar as the plea of guilt of adultery on the part of the wife is concerned. It is, also, admitted by a police entry recorded by one police constable witness, No. 2-B. S. Gadhvi, at Exh. 22, being Entry No. 11 of 1995, four days after the wife deserted the house along with respondent No. 2, deserting the house of the husband and taking the minor girl of 7 years for such undesirable and unbelievable venture. The police officer who was also examined, has proved the complaint lodged by the husband, at Ghatlodia Police Station at the relevant time.
15. We have successfully found from the record and we are satisfied that the legal parameters requiring to ascertain whether there is any collusion between the parties, we have to state that not only there is absence of collision between the parties, but we are tempted to add that there is a collusion between the relationship of the spouses which culminated into devastating episode which occurred on 2-8-1995, and thereafter both the respondents-wife and the adulterer, have been staying together and living as husband and wife. Therefore, apart from the rigours of the provisions of Section 17 of the Divorce Act for proving adultery, adverse inference against the respondents can safely be drawn for non-examination.
16. We are of the clear opinion that there is coherent, consistent and credible evidence on record to show that the respondent No. 1 wife is guilty of adultery. Obviously, the factum of adultery and proof thereof by direct evidence is hardly obtainable. It is, therefore, a settled proposition of law that there are certain such commissions and omissions leading to misconduct, misdemeanour or unethical and the standard of proof though may be high but it could be established by circumstantial evidence. The chain of circumstances, which we have hereinabove evidently and vividly highlighted, remember, since almost 5 years prior to filing of the suit for dissolution of marriage both respondent No. 1-wife, and the respondent No. 2-a Jawan, working in the Defence Force have been staying, leaving even the minor daughter Divya, mercilessly, at the place of relative, and thereafter, also not taking care either for the husband or for the minor daughter, and such conduct would lead us to only and only one inference of adultery.
17. Therefore, we have no hesitation in finding that the respondent No. 1-wife is guilty of adultery . We are also satisfied from the scrutiny and scanning of documentary and testimonial collection on record that there is no agreement or collusion between the parties seeking the decree for dissolution of marriage. The parties are Christians and they entered into wedlock as per the rites and custom of Christian religion within the territorial jurisdiction of the trial Court and celebrated parameters entitling the decree for dissolution of marriage have been even succinctly established to the best satisfaction of all of us. We therefore, find that there is no option for us but to accord, confirm and approve the decree of dissolution of marriage under Section 10 of the Act, successfully, earned by the original petitioner-husband and we hereby therefore, declare by this pronouncement that the marriage between the original plaintiff and defendant No. 1-husband and wife shall stand dissolved.
18. Before parting, we may note that the dissolution of marriage between the spouses in view of the amendments incorporated in Divorce Act, 1869 by virtue of the Divorce (Amendment) Act, 2001 (LI of 2001) and the Marriage Laws (Amendment) Act, 2001 (XLIX of 2001) whereby the rigours to an extent is diluted by the amendment of Section 17 which came into force with effect from October 3, 2001. This amendment is made pursuant to the recommendations and suggestions made by the Law Commission of India in its 164th Report. Since the cause of action for the passing of decree for dissolution of marriage by the Competent District Judge, in Civil Suit No. 3 of 1997, has arisen prior to the date of introduction of the amended provisions, we have in course of our discussions considered the provisions of relevant Sections of the unamended act, and we may also, while parting, place it on record that out of the variety of various theories and philosophies of divorce, offence or guilt theory, is established without any shadow of doubt to our best satisfaction. There is also no remote allegation of respondents, which would even negative the temptation of recrimination, since the fact wanted the faultbase decree. On the evaluation of serious misconduct, in the light of the aforesaid evidence, we have considered the decree for dissolution of marriage between the parties namely the original plaintiff and defendant No. 1. Accordingly, this reference is answered and shall stand disposed of in favour of the original plaintiff. We must also highlight and place on record our grateful thanks and encomium to the learned Advocate General, who has enlightened us in reaching and recording the conclusion hereinabove.