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Madhusmita Nayak vs Simadri Nayak And Anr. on 5 March, 1997

Orissa High Court
Madhusmita Nayak vs Simadri Nayak And Anr. on 5 March, 1997
Equivalent citations: AIR 1997 Ori 162
Author: S Phukan
Bench: S Phukan, A Pasayat, A Deb


JUDGMENT

S.N. Phukan, C.J.

1. Decree for dissolution of Marriage passed by Iearned Judge. Family Court, Cuttuck in Misc. Cane No. S9 of 1993 arising out of Civil Proceeding No. 83 of 1993 his come up before this Bench for Confirmation as required under Section 17 of the Indian Divorce Act. 1869 (in short, the ‘Act’).

2. Admittedly, parties are Christians and decree for dissolution of marriage can he passed if conditions mentioned in Section 10 of the Act are fulfilled, apart from compliance of Section 11. The provisions run as follows :

“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 solemaization thereof been guilty of adultery.

When wife may petition for dissolution.

Any wife may present a petition to the District Court or to the High Court, praying that her

marriage may be dissolved on the ground that since the solemaization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

or has guilty of incostuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery.

or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa of toro.

or of adultery coupled with desertion, without reasonable excuse for two years of upwards.

11. Adulterer to be co-respondent.- Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a corespondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court :-

(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been Committed;

(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover tt:

(3) that the alleged adulterer is dead.”

3. on perusal of judgment of learned Judge. Family Court, Cuttack we find that learned Judge. Family Court did not at all apply his mind to the provisions contained in Section 10 of the Act. He did not consider the case of the parties in the background of Section 10A Christian marriage can be dissolved only under the provisions of a statute of general application to such marriages. Grounds for dissolution of marriage enumerated in Section 10 cannot be extended. In view of the provisions of Sections 12, 13, 14 and 47 of the Act a decree for divorce on consent of the parties is not permissible. It is only on the proof of misconduct as envisaged by Section 10 of the Act that a decree for divorce is permissible subject to the restrictions contained in Sections 16 and 17 of the Act. Further, object of Section 11 being the prevention of any form of collusive divorce, it is not a mere formality to dispense with the presence

of the co-respondent. In the case at hand, alleged adulterer has not been impended as a correspondent. Until leave to dispense with the presence of the co-respondent, the suit cannot proceed. In absence of an application under Section 11 for excusing the petitioner-husband from not making the adulterer a co-respondent in the petition, the Court has no jurisdiction to entertain the petition.

4. Therefore, the matter is remitted back to learned Judge. Family Court to re-hear the ease and dispose it of in accordance with law within three months from the date of appearance of parties.

5. The parties shall appear before the learned Judge. Family Court on 9th April. 1997 without further notice. Money kept in fixed deposit shall not he released and no maintenance allowance shall he paid till the matter is disposed of finally by learned Judge. Family Court. Cullack.

6. The appeal is disposed of accordingly.

A. Pasayat, J.

7. I agree.

A. Deb, J.

8. I agree.

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