KISHORE SAHU Vs. SNEHPRABHA SAHU (NEE SNEHPRABHA PRADHAN) W/O. KISHORE SAHU

JUDGEMENT

(1.) POLLOCK , Vivian Bose and Digby, JJ. (dated 15th July 1942)-This is a proceeding under Section 20, Divorce Act, for confirmation of a decree of nullity of marriage made by the District Judge of Nagpur. The case is a very unusual one. The parties were married at Bombay under the Special Marriage Act (Act 3 of 1872) on 18th September 1940. Exhibit P-1 is the certificate of marriage. Section 17 of the Act applies the Divorce Act to all such marriages and states that a decree of nullity can be given for the causes mentioned in the Divorce Act. The cause set forth here is impotence (Section 19) and a decree is sought under Section 18. The case is unusual in that the husband seeks the decree and that each spouse accuses the other of impotence vis-a-vis himself and herself. Neither admits general impotence. The husband says that the wife is so hysterical that any sexual approach induces a fit of hysteria in her and renders consummation impossible. He places the whole blame on her. He is silent about her accusation of post-marital impotency in himself vis-a-vis her.

(2.) THE wife says that in the beginning the husband was "so profuse in his marital effusion as to be almost cruel" to her. This developed such a horror of coitus in her that any sexual approach by the husband at once induced "coldness," "frigidity" and "hysteria." She adds that her frigidity has now communicated itself to the husband and has made him impotent vis-a-vis her. The husband is silent about his present state. We are told by counsel that it is the case of both parties that the marriage has never been consummated, but that is not as clear as it might and ought to have been in the statement and affidavit of the petitioner. The wife's affidavit states that there has been no consummation, though exactly what she means by her reference to the cruelty and effusion of her husband's initial marital approach she does not explain. All this is unusual enough but the learned District Judge has made the case even more unusual by dispensing with evidence on oath from the witness box even though both parties were present in Court and could without difficulty have entered the box and given evidence, and proceeding instead on two affidavits one by the husband and the other by the wife. These affidavits have quite evidently been drafted by counsel and are for the most part, with slight variations, a verbatim repetition of the petition and the written statement. The learned Judge has not explained why he contented himself with affidavit evidence, especially when both sides were present in Court, but we infer from certain passages in the judgment that his reasons were (1) "that there can be no other evidence than that of the parties," (2) that "it is improbable that persons comparatively recently married would come before the Court with such assertions unless there was truth in them," and (3) that the story can be accepted because "the statements in the petition are admitted by the respondent."

(3.) WE gather that what weighed with the learned Judge is the fact that the petition is not opposed and that the facts are admitted, but it is in just such cases that the danger of collusion is greatest. It has always to be remembered that divorce proceedings and proceedings for nullity are not like ordinary civil suits in which the parties are litigating their own rights and seeking decrees to which they are indisputably entitled if the facts they allege are proved. There is no right pf divorce. No one is indisputably entitled to a decree of nullity. The Courts have a discretion in every case even when all the necessary facts are clearly proved. The slightest bad faith, any suspicion of collusion, the least want of candour, entitles the Court to stay its hand. The State is vitally concerned in the institution of marriage and insists on strict proof and a close investigation before it will permit the tie to be dissolved. Provision is made for a loosening, up of the normal procedure to prevent injustice in extreme cases but such cases must be extreme and should be very rare, and always, adequate reasons for any departure from the normal should be given by the Court. The mere fact that the other side admits the facts, or does not contest, is not in itself enough, though that may be taken into consideration along with other matters. Admissions in these cases are not unlike admissions by a defendant or a respondent on a question of court-fees. The State is the party primarily interested, and though it may not be formally represented either on the record or in Court, an admission by one or both of the contestants is not strictly evidence against it.