Alika Khosla vs Thomas Mathew And Anr. [2002 (62) DRJ 851]

Facts in Brief:

The current petitioner is filed by a woman for the dissolution of marriage on the ground of cruelty and adultery under Section 10 of the Indian Divorce act.

The complainant, who was born a Hindu, converted to Christianity before marrying the respondent on December 29, 1985, in a Church ceremony. The couple has two daughters, an eight-year-old daughter named Divya and a six-year-old son named George. The accusation in the petition is that, because of the cruel and inhuman actions of the respondent-husband, who’d been at that time posted as Collector in Cochin, the petitioner was compelled to leave the marital home in Cochin. Respondent had and still has an illicit affair with respondent No. 2, Mrs. Padamja Venugopal, who is the daughter of Mr. K. Karunakaran who is the Cabinet Minister for Industries, according to the petition.

The respondent lodged a comprehensive response to the petition for termination of marriage, rejecting the charges and accusing the petitioner of immoral behavior, adultery, child abuse, and cruelty to the respondent. Along with the reply, the respondent filed extensive transcripts of tape-recorded communications claimed to be between the petitioner and her mother, as well as between the respondent and Mr. Jose Thomas, who is alleged to be in a love affair with the petitioners. The preliminary submissions made by the respondent was that the adultery and abuse have been committed by the wife. Her adulterous affair and abandonment of the children led to marital strife and thus the petition is based on untruths and falsities to harass the respondent.

Issues Raised

Whether the Court is compelled to dismiss a petition under section 14 of the Indian Divorce act, 1869 if it finds that the petitioner had been guilty of adultery?

Rule of Law

The relevant section applied in this case are:

1. Section 10 of The Divorce Act, 1869 which lays down the various grounds for dissolution of marriage.
2. Section 14 of the Divorce Act, 1869 which gives power to the court to pronounce a decree for dissolving marriage. The proviso of Section 14 states:
   • “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 wilful neglect or misconduct of or towards the other party as has conduced to the adultery.”

Judgment Analysis

Mr. P.N Lekhi who was the advocate of the respondent first provided a transcript of a tape-recorded conversation contending that there was an affair going on between the petitioner and one Mr. Jose Thomas and was guilty of adultery. Secondly, the Advocate relied on the proviso of Section 14 of the Divorce Act stating that the petition was liable to be dismissed as it wasn’t maintainable as the petitioner herself was guilty of adultery. Mr. Lekhi argued that under the proviso of Section 14 is that the court is not bound to deliver a decree even when it is convinced of the petitioner’s case if it is found that the petitioner is guilty of adultery during the marriage.

The last part of the Advocate’s argument was that the suit was frivolous and false in nature and for this, he relied upon two judgments T. Arvindandam v. T.V. Satyapal[1] and Anr., and Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi[2], contending that suits of such nature shall only be dismissed.

Ms. Indira Jai Singh who was the Advocate of the Petitioner argued contrary to the interpretation given by Mr. Lekhi that there was no absolute bar to a decree being given under Section 14 of the Indian Divorce Act. All that it offered was that, if it found that the petitioner was guilty of adultery or other actions as stated above, the Court was not obliged to pronounce such a decree. It was a matter of the Court’s discretion. Furthermore, only after the documentation of proof and trial will the stage for applying the proviso under the section arise. The Court had to be satisfied after proof that her case had been proven by the petition. At that point, the Court will determine whether or not to use its discretion in light of the petitioner’s alleged conduct. Thus, the stage of exercising the discretion vested in the court by section will only come after the petitioner has proved her case and not before.

The Advocate relied on the judgment of Smt. Nalini vs C.H. Issac[3] in which the Madhya Pradesh High Court made observations regarding the scope of Section 14;

“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 favor of the petitioner, who is also guilty of adultery, but provides that the Court shall not be bound to grant such a decree in favor of the petitions, who is also found to be guilty of adultery.”

It is thus clear that the simple fact that Bigamy was perpetrated by the partner seeking the exercise of discretion by itself does not constitute an obstacle to that exercise, but that the default on the side of the claimant must be considered solely in the balance of other issues as the Court considers the issue of the exercise of its discretion. It is important to critically take into account the circumstances under which the plaintiff committed the default. Throughout the current case, it was the respondent who, by establishing illegitimate intimacy with Chandrakanta and abandoning the petitioner, created the condition that resulted in the dissolution of the marriage and created certain circumstances that compelled the petitioner to do so.

Secondly, the advocate also cited the case of Fattu v. Mt. Allah Rakhi and Anr[4] in which observation was made regarding section 14 of the Divorce Act. The court in that case held:

“One of these principles is that a decree for dissolution of marriage cannot be made merely on admission and without recording evidence…. 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 the evidence that the case of the petitioner has been proved.”

Even if the Court is satisfied that the petitioner has made his case by means of zero proof, it is important for the court to go further and decide if conspiracy has occurred; and whether the petitioner has been, or has condoned, in some way an accessory to or conniving of adultery. Whether the Court considers the petitioner guilty of adultery, or of having wilfully alienated himself from the other person until the adultery accused, the Court is not compelled to impose a decree.

The court agreeing with the petitioner agreed that there was no absolute bar under Section 14 of the Divorce Act on the maintainability of the suit. And that what the section provides is the discretion to refuse to issue a judgment or decree if the plaintiff is found to be guilty of adultery or the actions and conducts specified in the section, despite having proven her case on the courts. The court agreeing with the contentions of the petitioner which the court noticed was supported by the view of Madhya Pradesh High Court in the case of Smt. Nalini vs C.H. Issac declined to dismiss the petition as not maintainable under section 14 of the Divorce Act.

Conclusion

The court in this case moved from a traditional view towards a more liberal interpretation of the law. The court itself agreed that had this case would have been considered in earlier times it would have been dismissed if the petitioner would have found to be guilty of adultery, the court stated, “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 favor 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.” Thus, the court wasn’t blinded by the traditional notion of the sanctity of marriage and gave it less importance, recognizing that to insist on the maintenance of a marriage that has utterly broken down would not serve the ends of justice

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References:

[1] [1978] 1 SCR 742

[2] [1986] 2 SCR 823 

[3] AIR 1977 MP 266

[4] AIR 1931 Lahore 2