M. Esthar Rani Vs. M. Devadanam - Court Judgment

Excerpt:
family - lack of evidence - sections 10 and 17 of divorce act, 1869 - reference under section 17 of act for confirmation of decree of dissolution of marriage - decree for dissolution of marriage was passed by district judge without adverting to pleadings, appreciating evidence or stating grounds - district judge while deciding application for dissolution of marriage are called upon to exercise due diligence and apply mind properly with seriousness attached to solemn function entrusted to them - there was no specific allegation in pleadings much less proof that respondent was guilty of adultery - judge has not recorded any positive finding that respondent was either guilty of adultery coupled with cruelty or adultery coupled with desertion coupled with desertion for more than two years - high court declined to confirm decree for dissolution of marriage - matter remanded to court below so that parties may amend pleadings and adduce further evidence to substantiate their respective contentions. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - i am satisfied from the, evidence of p. hence this petition is allowed, but in the circumstances without costs, subject to confirmation by the high court'.2. dissolution of marriage is a matter of considerable importance which would have its repercussion on the future life and well being not only of the parties to the proceedings but also of their children. we, however, feel that justice should not be the casualty on account of failure on the part of the parties to raise the necessary pleadings or adduce sufficient evidence or failure on the part of the district judge to properly apply his mind to all relevant and essential aspects of the matter.k. bhaskaran, c.j.1. an application under s. 10, divorce act, (,the act) for a decree dissolving the marriage between the petitioner and the respondent has been disposed of by the learned district judge without adverting to the, pleadings, appreciating the evidence or stating the ground on which the decree for dissolution of marriage had been granted. for the sake of precision, we would quote the whole of the order:'p. w. 1 examined, petitioner's advocate represents. petitioner's side evidence is closed. i am satisfied from the, evidence of p. w. 1 which remained unchallenged and as there is no evidence to the contra that the divorce prayed for should be granted. hence this petition is allowed, but in the circumstances without costs, subject to confirmation by the high court'.2. dissolution of marriage is a matter of considerable importance which would have its repercussion on the future life and well being not only of the parties to the proceedings but also of their children. it is significant to note that the jurisdiction to entertain and dispose of the application for dissolution of marriage or for declaration that the marriage between the parties is null and void is conferred on no court inferior to the district court; that a decree for the dissolution of marriage or declaring that the marriage is null and void is subject to confirmation by a full bench of the high court under ss. 17 and 20 of the act. we are siding these salient features in order to impress upon the district judges who are called upon to decide applications for dissolution of marriage and for declaration of marriages to be null and void, to exercise due diligence, and to apply their minds properly with the seriousness attached to the solemn function entrusted to them. 3. the first and foremost duty of a district judge dealing with an application for dissolution of marriage is to address himself to the grounds on which the relief could be granted under s. 10 of the act. secondly, he should find out whether the necessary averments are made in the application, and, if. so, whether they are supported by acceptable and credible evidence. thirdly, it is also his duty to see whether the proceedings (are?) vitiated by collusion between the parties, fourthly, it is his further duty to see whether the alleged adulterer is made co- respondent where the petitioner is the husband, in compliance with the provisions of s. 11 of the act. 4. it is noted that very often some of the district judges adopt shortcuts without taking pains to ascertain at least whether the ground, if any, alleged is one on which a decree for dissolution of marriage could be granted. after all, the number of grounds are not many; and they are all very specific also. in the instant case, there is only the vague statement in the petition that the respondent was leading a life of debauchery; her interested and uncorroborated evidence also does not go beyond that. there is no specific allegation much less proof that the respondent was guilty of adultery. it is not, difficult to make out from the petitioner's evidence that what prompted her to file the application for dissolution of marriage was the fact that her husband was suffering from leprosy, that she was told that it was a contagious disease and that she was not wanting to stay with him. these are in fact, irrelevant considerations in deciding the question as to whether ground has been made out for the grant of a decree for dissolution of marriage. the learned judge has not recorded any positive finding that the respondent was either guilty of adultery coupled with cruelty, or adultery coupled with desertion for more than two years without sufficient cause, so as to base his decision on it for the grant of a decree for dissolution of marriage in terms of s. 10 of the act. 5. the position being as stated above, we decline to confirm the decree for dissolution of marriage between the petitioner and the respondent granted by the court below. we, however, feel that justice should not be the casualty on account of failure on the part of the parties to raise the necessary pleadings or adduce sufficient evidence or failure on the part of the district judge to properly apply his mind to all relevant and essential aspects of the matter. in that view, we would remand the matter to the court below so that the parties may amend the pleadings, if so advised, and adduce further evidence, if any to substantiate their respective contentions. if an application for this purpose is made the learned judge would look into the matter and pass appropriate orders. if the pleadings are amended and further evidence if any, is adduced, the learned judge would address himself to the grounds available in s.10 of the act and dispose of the matter in accordance with law after properly considering the pleadings and evidence on record.6. the reference under s.17 of the act is answered in the above terms.7. order accordingly.