ORDER
A.M. Bhattacharjee, J.
1. The decree for divorce passed by the learned Additional District Judge in favour of the Petitioner-husband has, as it must, come up before us under Section 17 of the Divorce Act, 1869, for confirmation or such other order as the matter would warrant.
2. The matter was heard ex parte in the trial Court and it has not been urged before us by or on behalf of the respondent that such ex parte hearing was in any way illegal, irregular or improper. This aspect therefore need not detain us.
3. Not that a suit heard ex parte must be decreed; it may, even if uncontested, still be dismissed if there is any legal bar thereto or such infirmity in the evidence which cannot sustain a decree. No such infirmity, either in law or on facts, shows its head.
4. The unchallenged evidence of the petitioner-husband and of P.W. 2, a “close friend” of the parties, read with the statements made in the petitioner, which also, under the provisions of Section 47 of the Divorce Act, 1869, “may at the hearing be referred to as evidence”, can, as they did, reasonably satisfy the Court that the alleged adultery, on which the petition is grounded, has been proved. We, therefore, find no reason not to confirm the decree passed by the trial Judge for dissolution of marriage between the petitioner-husband and the wife-respondent and we hereby do so.
5. We, on our own, raised certain questions as to the vires of Section 10, Section 17 and some other provisions of the Divorce Act, 1869, which were adverted to, though not finally decided, by two Special Benches of this
Court in Swapna Ghosh v. Sadananada Ghosh, and in Ramish Francis Toppo v. Violet Fancis Toppo, . Mr. Chatterjee and Mrs. Mitra the learned counsel for the petitioner, Mr. Wilson De Rose, the learned counsel for the opposite party and Mr. Kundu, the learned counsel for the Union of India, have advanced interesting argument on those questions at our request, but have nevertheless advised us not to go into those questions as those were not urged or pressed for decision by or on behalf of any of the parties. We have finally decided to accept the advice as we have thought that debatable questions as to the constitutionality of statutory , provisions should not ordinarily be raked up unless there is any clear and specific challenge to that effect, and unless and until there is such a challenge, the ordinary presumption as to the constitutionality should be allowed to operate.
6. The decree for dissolution of marriage between the parties stands confirmed. The records, with a copy of our judgment, to go down at once.
7.Order accordingly.
