On any Petition presented by a wife, praying that her marriage may be dissolved by reason of her husband having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.
Simplified Explanation
Section 52 – Competence of Husband and Wife to Give Evidence as to Cruelty or Desertion (Indian Divorce Act, 1869)
Key Points of Section 52
- Competence to Give Evidence:
- In a case where the wife petitions for divorce on the grounds of the husband’s adultery coupled with cruelty or adultery coupled with desertion without reasonable excuse, both the husband and wife are competent and compellable to give evidence relating to the cruelty or desertion.
- Husband and Wife as Witnesses:
- This provision removes the usual legal bar against spouses being forced to testify against each other in certain circumstances. In divorce proceedings, spouses are typically not compellable to testify against each other, but in the specific case of a wife seeking divorce for the reasons mentioned (adultery, coupled with cruelty or desertion), the husband and wife may be required to give evidence.
- Application to Adultery with Cruelty or Desertion:
- The provision applies when the wife’s petition is based on adultery coupled with cruelty or adultery coupled with desertion by the husband.
- The focus of this provision is on the fact that, in such cases, both parties may be called upon to give evidence about the behavior in question, such as incidents of cruelty or desertion.
Implications of Section 52
- Compellability of Evidence:
- Normally, spouses cannot be compelled to testify against each other in legal proceedings. However, this section allows for the compellability of both the husband and the wife as witnesses when the petition involves adultery combined with either cruelty or desertion. This ensures that all relevant facts about the cruelty or desertion are presented before the court, even if it requires one spouse to testify against the other.
- Marriage Breakdown Cases:
- In divorce cases based on allegations of adultery and the resultant cruelty or desertion, the wife will likely need to establish the husband’s misconduct through evidence. Allowing the husband to be compellable ensures that the case for divorce is presented fairly, with both sides of the issue being heard.
- Evidentiary Requirements:
- Since both spouses can be compelled to give evidence, the court is able to hear firsthand from both parties about the alleged misconduct, increasing the likelihood that the court can make an informed decision based on full and direct evidence.
- Judicial Fairness:
- The provision aims to ensure judicial fairness and clarity in cases where serious allegations like cruelty and desertion are involved. By allowing both spouses to testify on these matters, the court can weigh the evidence more accurately, ensuring the petitioner’s claim is fully tested.
Example of Application
- Wife’s Petition: If a wife files a petition for divorce stating that her husband committed adultery and, as a result, subjected her to cruelty or desertion, Section 52 allows the court to compel the husband to testify about his actions. Similarly, the wife may also be compelled to give evidence about the cruelty or desertion.
- Court Procedure: During the trial, the wife might testify about how her husband’s actions (adultery and cruelty or desertion) caused her emotional distress. The husband could be required to testify about his behavior, and the court could compel him to answer questions about the alleged cruelty or desertion, even if the testimony is damaging to his case.
Conclusion
Section 52 of the Indian Divorce Act, 1869 allows for the compellability of both the husband and wife to give evidence in divorce cases where the wife petitions based on adultery coupled with cruelty or desertion. This provision ensures that the court can hear from both parties on critical issues, providing a more complete and balanced record of evidence to support or challenge the divorce petition.
