JUDGMENT
J.S. Khehar, J.
1. The petitioner Lorna wife of Alison Leen filed a petition under Section 10 of the Indian Divorce Act, 1869 (hereinafter referred to as the Act) for the dissolution of her marriage with Alison Leen. There is no dispute that the petitioner Lorna as well as her husband Alison Leen are Christians and as such their marriage could only be dissolved under the provisions of the Act. In order to substantiate her claim for dissolution of marriage, Lorna accused her husband of being guilty of adultery coupled with cruelty as well as for having committed sodomy with her. It is obvious from a perusal of the Section 10 of the Act that the petitioner had based her claim for dissolution of marriage on two separate and distinct pleas available to her under Section 10 of the Act.
2. In the petition filed by Lorna, she asserted that she married Alison Leen (respondent No. 1) in a Church at Ambala Cantt. on 5.1.1994. After her marriage she commenced to reside with respondent No. 1 at Delhi in a joint family. The said joint family comprised of, the family of A. Leen (father of Alison Leen respondent No. 1), the family of Alison Leen (respondent No. 1) and the family of Michael Leen (brother of respondent No. 1). In the petition for dissolution of marriage, Lorna impleaded Meryelen Leen (wife of the younger brother of Alison Leen i.e. wife of Micheal Leen as respondent No. 2). The case set up by the petitioner is that her husband Alison Leen had developed an illicit relationship with the wife of his younger brother i.e. with Meryelen Leen. It is claimed that even the father of Alison Leen confirmed to the petitioner that the younger son of Micheal Leen born to Meryelen Leen was from the loins of respondent No. 1. It is alleged that on account of protestations, made by the petitioner, on account of the adulterous relationship between Alison Leen and Meryelen Leen, she was beaten up several times in the months of March and April, 1994. It is also alleged that after the aforesaid adultery came to light, Alison Leen stopped having sexual intercourse with the petitioner. In fact the accusation is that Alison Leen did not wish the petitioner to conceive as he was desirous to adopting the younger son of his brother Micheal Leen.
3. In the pleadings, it was also alleged that the petitioner’s husband Alison Leen tried to commit sodomy on the petitioner on several occasions in March and April, 1994 i.e. while the petitioner was residing with him at New Delhi. It was alleged that he succeeded to commit sodomy on her only once at Delhi, whereupon, on the day following the date when sodomy was committed, the petitioner left her matrimonial home and came to live with her parents at Ambala Cantt. Consequent upon reconciliation proceedings between the parties held at Ambala Cantt, Alison Leen agreed to live with the petitioner at Ambala Cantt and actually joined her there in September, 1994. Even at Ambala Cantt, it is alleged that Alison Leen committed sodomy with the petitioner on 10.9.1994. On 11.9.1994, it was alleged that Alison Leen was caught by the petitioner while committing adultery once again with Meryelen Leen (respondent No. 2). The petitioner thereupon took a final decision to dissolve her marriage with Alison Leen. A petition for divorce under the Act was, therefore, filed by the petitioner in August, 1995 at Ambala.
4. The allegations of adultery coupled with beating (on the basis of which the petitioner alleged cruelty) constitute a ground for dissolution of marriage (available to a Christian wife under Section 10 of the Act). It would be pertinent to mention that sodomy by itself constitutes an independent ground for dissolution of marriage (available to a Christian wife) under Section 10 of the Act.
5. The Distt. Judge, Ambala issued notices of the petition to the respondents Alison Leen and Meryelen Leen for 2.11.1995. Despite the fact that the respondents were duly served by registered post, they chose not to respond to the summons. The Distt. Judge, Ambala by an order dated 2.11.1995 proceeded against the respondents ex-parte. Ex-parte evidence came to be recorded on 1.12.1995 when the statement of the petitioner Lorna was recorded as PW-1, wherein she affirmed the factual position noticed in the pleadings. The statement of Mrs. D.C.Collins (mother of the petitioner) was recorded as PW-2 on the same date. In her statement, Mrs. D.C. Collins deposed in respect of the complainants made by Lorna to her on account of the illicit relationship between Alison Leen and Meryelen Leen. She also stated that her daughter Lorna had told her that the father and mother of Alison Leen had confirmed to Lorna that the younger son born to respondent No. 2 was indeed the son of the husband of her daughter i.e. the son of Alison Leen. She also deposed in respect of the facts which occurred at Ambala Cantt in September, 1994 detailed in the pleadings noticed above.
6. In view of the fact that the aforesaid statements which remained unrebutted,on account of the exparte proceedings conducted against the respondents, the District Judge. Ambala on the basis of the statements made by Lorna as PW-1 and Mrs. D.C.Collins as PW-2, confirmed the allegations contained in the pleadings. The District Judge allowed the petition filed by Lorna on 5.2.1996 by issuing a decree dissolving the marriage between Lorna and Alison Leen subject to confirmation by this Court.
7. On receipt of the record of the case from the District Judge, Ambala, notices were issued to the petitioner as well as to the respondents. Both, the petitioner as well as the respondents remained unserved till 10.9.1999. On 10.9.1999, Sh. S.M. Sharma. Advocate entered appearance on behalf of the petitioner. The respondents, however, remained unreserved. By an order dated 12.4.2002, this Court issued fresh notices to effect service on the respondents. A perusal of the office report reveals that summons issued to respondent No. 1 (pursuant to the order passed by this Court on 2.8.2002) were served upon him, however, he refused to receive the summons. In the aforesaid view of the matter he was taken as duly served. Respondent No. 2, has remained unserved; the office reports reveal that she does not reside at the address indicated in the summons issued to her. On account of the fact that respondent No. 1 i.e. Alison Leen the contesting respondent, had been duly served, it was decided by us to adjudicate upon the matter ex-parte without wasting any further time to ensure service of summons on respondent No. 2, who in any case, is not a contesting party.
8. We have perused the unrefuted pleadings of Lorna depicted in petition for dissolution of marriage under Section 10 of the Act. We have also noticed the fact that proceedings of the case were conducted exparte against the respondents by the Distt. Judge, Ambala as the respondents failed to appear before the Distt. Judge, despite the service. We have also perused the unrebutted statement of the petitioner Lorna recorded as PW-1 as well as the statement of her mother Mrs. D.C. Collins recorded as PW-2. The allegations levelled by the petitioner in her petition for dissolution of marriage stand fully substantiated. In view of the fact that no evidence was produced at the hands of the respondents controverting the assertions made by the petitioner, we are fully satisfied that the Distt. Judge, Ambala was justified in concluding that the respondent Alison Leen was guilty of having committed adultery with Meryelen Leen i.e. the wife of the younger brother of respondent No. 1, as well as, having been cruel to her on account of having beaten her up when she had raised the issue of adultery with him as also on account of having denied to the petitioner sexual intercourse after his adulterous relationship with Meryelen Leen. The aforesaid factual conclusions constitute a complete ground for dissolution of marriage available to a Christian wife under Section 10 of the Act. We are also satisfied that the Distt. Judge, Ambala was also justified in concluding that Alison Leen committed sodomy with the petitioner Loma, at New Delhi in April, 1994 and again at Ambala Cantt on 10.9.1994. These acts of sodomy committed by Alison Leen with Loma constitute a complete ground for dissolution of marriage available to a Christian wife under Section 10 of the Act. We, therefore, affirm factual conclusion drawn by the Distt. Judge, Ambala and therefore, confirm the decree of dissolution of marriage passed by him.
9. Having dealt with a number of matrimonial references filed in this Court under Section 17 of the Act, we find ourselves compelled to record our views in respect of the procedure for confirmation of a decree for dissolution of marriage prescribed under Section 17 of the Act by a bench of the High Court (comprising of three or more judges). The narration of facts reproduced above reveal that Loma had filed a petition for dissolution of marriage in August, 1995. Evidence in the matter was completed on 1.12.1995. The Distt. Judge, Ambala allowed the petition and issued a decree dissolving the marriage between the petitioner and respondent No. 1 (subject to confirmation by this Court under Section 17 of the Act) on 5.2.1996. The respondents were proceeded against exparte before the Distt. Judge, Ambala. Numerous efforts were made by this Court to effect service on the respondents eventually only respondent No. 1 came to be served for 20.9.2002 The issue of confirmation was taken up exparte on account of the fact that the sole contesting respondent did not enter appearance before this court.
10. The point which we wish to make is in respect of the propriety of the procedure prescribed in Section 17 of the Act requiring the confirmation of a decree of divorce passed by a Distt. Judge, by a bench of the High Court comprising of at least three judges. Had it not been for the requirement of confirmation envisaged under Section 17
of the Act, the instant petition for dissolution of marriage filed by Lorna would have at
tained finality as far back as on 5.2.1996 when the Distt. Judge, Ambala accepted the
petition filed by Lorna. The requirement of confirmation of the decree under Section 17
of the Act delayed the culmination of the adjudication of the matter for about seven
years. It needs to be noticed that a Dist. Judge is competent to pass a decree of dissolution of marriage under the Hindu Marriage Act, 1955, which does not require confirmation by the High Court. In fact, the Distt. Judge while exercising criminal jurisdiction as
a Sessions Judge can pass orders of conviction under various penal statutes so as to inflict a punishment of imprisonment for life. It seems to us that Section 17 of the Act
which postulates confirmation of a decree of dissolution of marriage passed by a Distt.
Judge (by a bench of three or more judges of the High Court), needs re-consideration by
the legislature. Our aforesaid view is also based on the fact that High Courts are hard
pressed on account of mounting number of cases as well as arrears. In the instant case
itself, it has taken seven long years to confirm the decree of dissolution of marriage
passed by the Distt. Judge, Ambala. The aforesaid factual position, is all the more significant in the instant case, because Lorna’s petition has remained unopposed through
out. In view of the above we consider it just and appropriate to direct the Registry of
this Court to forward a copy of the instant judgment to the Union Ministry of Law and
Justice, in order to invite the attention of the law framing authorities to examine whether
the procedure envisaged under Section 17 of the Act (postulating confirmation of a decree of divorce passed by a Distt. Judge by a bench of three or more judges of the High
Court), is necessary.
Sd/- N.K. Sodhi, J.
Sd/- Jasbir Singh, J.