P L D 1976 Karachi 565 (PLP)

ZAFFAR HUSSAIN MIRZA, J.-This is an appeal under section 55 of the Divorce Act, 1869 (hereinafter referred to as the Act) challenging the order passed by the learned District Judge. Karachi, dismissing the petition filed by the appellant under section 22 of the Act for a judicial separation.

2. The facts forming the background of this appeal are that the parties. to this appeal are Christians and were married on 8-9-1969 according to. Christian rites, the marriage having been solemnized at Karachi.. On 31-7-1974, the appellant herein moved a petition under section 23 of the Act seeking a judicial separation from the respondent on allegations contained therein. The case disclosed by the appellant in her petition was that after. their marriage the appellant and respondent started living in the house of' the respondent's flat at Randil Road, Karachi. She further alleged that from the very beginning, the respondent's mother manifested what the appellant described a very possessive attitude in regard to the respondent and indulged in rude, abusive, and humiliating treatment to the appellant. Then appellant further alleged cruelty of conduct against the respondent's mother, the details whereof are not necessary to mention here but in substance the case of the appellant was that the unabated and continuous harsh treatment meted out to her made her life impossible with the respondent. Accordingly, on 15-10-1969, the appellant purchased a fiat in Hyderi Chambers of Victoria Road, Karachi, for her and respondent in an attempt to salvage the marriage from complete ruination. But, the case of the appellant was that the respondent himself showed complete indifference towards the, appellant. Finally, it was alleged that the respondent left the appellant at her parents' home on 7-11-1969 and eventually abandoned her forcing her to live in her parents' home without even making provision for her maintenance. It was also stated by the appellant that efforts for reconciliation by the Christian community also failed to bring any result ands thus the appellant sought the intervention of the Court for a decree for judicial separation. The respondent apparently contested the proceedings by filing a written statement on 11-11-1974 wherein he denied the allegations made by the appellant in her petition, and made counter-allegations against the appellant and her relations. He also alleged that the appellant was stubborn and aggressive which resulted in shattering the peace of the home and interfered with the smooth working by him at his office. He also alleged that the appellant herself left the respondent's house to go and stay with her family. The respondent also claimed having put in efforts for reconciliation which according to him failed. Learned District Judge framed the issues on the pleadings of the parties on 28-11-1974.

3. Before any evidence could be recorded in the case, however, an application for compromise dated 3-1-1975 duly signed by the parties and their Advocates was submitted in Court whereby it was agreed between the parties, inter alia, that 'in the interest of justice and public policy and to prevent further bitterness and anguish, the parties have considered the issue and the defendant (respondent) has accepted that the judicial separation be granted to the petitioner as prayed for in her petition under sections 22 and 23 of the Divorce Act. The learned District Judge, however, did not record the compromise or pass a decree in terms thereof, but heard the parties' Advocates and by his impugned order dismissed the application for compromise and also the main petition for judicial separation on the view that it was clear that the same had been made due to collusion between the parties. Aggrieved by the impugned order, the appellant has filed the present appeal.

4. Mr. Rustom Virjee, learned counsel appearing for the appellant has contended that the learned District Judge was not justified in dismissing the petition of the appellant en the sole ground that the compromise application was submitted by the parties. He questioned the correctness of the inference drawn by the learned Judge, of collusion between the parties on the sole ground of a compromise application having been submitted by the parties. It was his contention that the learned District Judge misconstrued the intents and purposes of the application which according to him was untainted with collusion but was presented with frankness and sincerity, in view of the circumstances of the case, particularly the fact that the spouses have been living a life of separation for the last five years. Mr. Virjee next contended that the learned Judge has misconstrued the law in importing consideration of collusion in this case which was a case of judicial separation and not divorce. According to the learned counsel absence of collusion is a pre-requisite for granting a decree for divorce and not in a case for judicial separation under section 22 of the Act.

5. Mr. Clement John, learned counsel for the respondent did not contest the submissions of Mr. Virjee. On the contrary, he contended that the learned District Judge was not justified in dismissing the main petition on a finding of collusion without there being any evidence recorded in the case in support of such a finding.

6. I shall take up first the contention of Mr. Virjee, that the question of collusion was not relevant in this ease. There is no doubt that there is no specific section in the Act in part (V) which relates to judicial separation and comprises sections 22 to 26, containing a mandate that in case a petition for judicial separation is presented or prosecuted in collusion with the respondent, the same shall be dismissed. In the case of a petition for dissolution of marriage on any of the grounds specified in the Act, section 13 provides as under : -- "In case the Court, on the evidence in relation to any such petition, is satisfied that the petitioner's case has not been proved or is not satisfied that the alleged adultery has been committed, or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the petition. When a petition is dismissed by a District Court under the section, the petitioner may, nevertheless, present a similar petition to the High Court." It will thus be seen that there can be no doubt that in case of a petition for dissolution of marriage, presence of collusion is totally fatal to the petition. However, section 47 of the Act provides that every petition under the Act for a decree of dissolution of marriage or of nullity of marriage or o judicial separation shall state that there was not any collusion or connivance between the petitioner and the other party to the marriage. The section also requires such statement to be verified in the manner required in case of plaint and can be referred to as evidence at the hearing. Since, obviously, the provision of section 47 requires even in a case of judicial separation to state that there was no collusion or connivance between the parties it cannot be held that the consideration would be irrelevant even though the law does not specifically require the compulsory dismissal of petition on such ground. No fact, which is by law required to be stated in the pleading of the parties, can be conceived to be immaterial or irrelevant to the cause and the only relevance of such a statement is that it must be regarded as a consideration for the Court in deciding the case. The contention therefore has no merit and is accordingly rejected.

7. The next question to consider, however, is whether there was evidence of collusion on the record to justify the inference that the petition was collusive. Mr. Virjee, in this connection referred us to the case of Soott v. Scott (1913 P D1952). This was a case of a divorce petition by the wife on the grounds of desertion and adultery. Prior to the petition the desertion had been proved and decree of judicial separation had been pronounced. In the course of petitioner's evidence, it came to light that the petitioner and the respondent had entered into a settlement, whereby, the alimony granted under decree was agreed to be increased and substituted as permanent maintenance by the respondent, if the petitioner moved a proceeding for divorce on being supplied with the information as to respondent's adultery. This settlement was arrived at reluctantly by the petitioner after having taken the advice of her lawyer. Upon receiving information through the brother of the respondent of his having committed adultery, she filed the petition and received 'the promised amount of money. The question before the Court was whether the facts disclosed constituted collusion; and Buckinil, J., observed 'collusion may be defined as an improper act done or an improper refraining from doing an act for a dishonest purpose. By the light of this definition I find that there has been nothing which amount to collusion in this case.' The learned Judge found no misconduct on part of the petitioner on a finding that having taken advice and not being moved by an improper motive, she cannot be said to have colluded with the respondent. In the case of Noble v. Noble & Ellis ((1964) 2 W L R 349) Scarman, J., examined the question of collusion in greater detail, reviewing the previous case-law on the subject including the above cited case and on page 353 made the following observation :- "Although such machinery exists, the problem remains how to distinguish between the collusive and the non-collusive bargain. The cases where guidance is given as to the distinguishing feature of the collusive bargain emphasise the significance, in my opinion, of a corrupt intention. In Scott v. Scott Bucknill, J., speaking of the facts in a particular case before him, emphasised the importance of the parties' motive, saying : "Collusion may be defined as an improper act done, or an improper refraining from doing an act for a dishonest purpose." In Lowndes v. Lowndes Willmer, J., recognised also that there must tie present some element tending to pervert the course of justice. Denning, J., made, I think the same point in Emanul v. Emanul, where, after remarking that it is not lawful to buy or sell divorce, he said: " . . . the Court requires that all agreements for permanent maintenance, custody of the children, damages or costs shall be disclosed to it . . . . . no such agreements being valid without the sanction of the Court, except those made after decree absolute." The Court of Appeal took the same view in Teale v. Burt (or Sc. Teale) and Burt. A striking illustration of the significance in this context of the dishonest purpose or corrupt intention in Harris v. Harris and Lambert in which the Judge Ordinary, Sir Cresswell Cresswell, held that an agreement whereby the respondent's wife received a small sum for providing her photograph and attending Court was not collusive but merely facilitated proof. In my opinion the answer to the problem of distinguishing between a collusive and a non-collusive bargain in any given case depends upon a careful and accurate analysis of the bargain made. There must, of course, be a bargain. It must be construed like any other contract, that is to say, full weight must be given to its implied as well as to its express terms. But terms are not to be implied unless necessary to give "business efficacy" to the bargain. The only special feature which arises because it is a Divorce Court considering the bargain is that, if at the end the Court is not satisfied that the bargain is not collusive, it must dismiss the petition. When all the facts are before the Court, as in the present case, and as in the case where a pre-trial agreement as to maintenance, costs or custody is fully disclosed to the Court upon summons or at the hearing, the question becomes one of the intention of the parties to be gathered from the terms, express and implied, of their bargain. If they intended by their agreement to procure the initiation or to provide for the conduct of the suit, their bargain is collusive; otherwise in my opinion, it is not. An agreement which makes express provision for either of these matters speaks for itself. An agreement which make no express provision must be regarded in all its circumstances. In the latter case, if the Court is clearly of the opinion that it would be wrong to imply into an agreement any such provision, it is not collusive; but, if the Court is uncertain, it must dismiss the petition. If I am so far correct, it follows that the nature of the bargain is all. A collusive is one with a corrupt intention. It is an agreement under which a party to the suit for valuable consideration has agreed either to institute it or to conduct it in a certain way; for example, the reluctant petitioner induced by the offer of some benefit to take proceedings against an eager respondent, or closer to this case ..a co-respondent induced by a promise of some benefit not to defend a charge of adultery, or stronger still, to provide evidence or to bear witness at the trial against the respondent. If, upon a fair considera tion of the circumstances, the parties intend by their agreement institution of suit or any aspects of its conduct with the provision of some benefit to the party instituting or in that aspect conducting the suit, here is, in my opinion, collusion. Unless there is this matching of forensic proceeding against valuable consideration, there is no collusion. The "dishonest purpose" of which Bucknill, J. spoke in Scott v. Scott ; the "element tending to pervert the course of justice," which Willmer, J. recognised as necessary in Lowndes v. Lowndes ; each is to be found in the parties' intention that for valuable consideration one of them will either take or refrain from taking a forensic step otherwise open to him in the suit. That is the corrupt intention, that the element in the bargain tending to pervert the course of justice. I would add that to refrain from raising a defence or to drop a charge while continuing with others, though negative acts, are of course as much part of a suit as positive steps taken to institute or prosecute it, and if done or agreed to be done for valuable consideration would be collusive. Before I leave the law as I under stand it, there is one final comment. At first sight agreement on costs or quantum of damages would seem necessarily to be collusive upon the view of the law that I have outlined. There is, however, no element tending to pervert the course of justice in an honest negotiation directed to a reasonable figure, and it is this, I think, that Denning. J. had in mind in Emanuel v. Emanuel and in Teale v. Burt. If, however, there be some ulterior purpose connected with the suit which has to be served by agreement, there would be collusion. Clearly, however, any agreement as to costs or damages must invariably be disclosed to the Court and, if possible, the Court's approval obtained by summons before trial." The gist of the test, in my view, deducible from the above observation is that the Court must find from the agreement whether there was corrupt intention and whether it had the effect of perverting the course of justice. Applying the test laid down in the cited case and having given my anxious considera tion to the terms of the compromise application I am firmly of the view that there was no dishonest intention nor the object was to pervert the course of justice in this case. While dealing with the question the learned District Judge made the following revealing observation :- "In the instant case, there is no secrecy or finessee adopted by the parties and in the so-called compromise it is clearly bargaining that the petitioner (plaintiff) shall not claim alimony or cost of the suit on that open ground the respondent (defendant) would appear to have accepted the position that judicial separation may be decreed." 'This circumstance, as has been laid down in the above cited case, militates against the finding of collusion rather than lending support to it. in order to clearly lay bare all the attending circumstances in which the .compromise was entered into, the parties disclosed the fact that the alimony ,was being given up. Consequently, this was a sure indication that there C was no dishonest intention as has been rightly argued, the arrangement was only bring to an end the agony of an undetermined factual separation and give it a legal sanctity in the circumstance which extends for such a situation. In a case of divorce accepting a money remuneration for consenting to a decree, may pursuade a Court to infer collusion between the parties as in that case the parties achieve freedom from the time of marriage. However, in tie case of judicial separation, the marriage tie remains intact ..and as such the giving up of alimony, in the present circumstances, alone was not sufficient to lead to an inference that the intention was necessarily ,dishonest. This conclusion is further fortified by the fact that the parties did, in fact, live in separation for five long years. The learned counsel appearing for the parties have assured us that the initiative for entering into a compromise was taken by them rather than by the parties and we have no reason to disbelieve this statement. Therefore, if the parties listened to honest legal advice to bring to an end a litigation which would have meant the agony of leading evidence involving family members of both the sides, I find nothing in it which could be said to be an attempt to pervert ,the course of justice. At any rate, the statement made in the compromise application did not constitute tangible evidence of collusion so as to base ,-the decision of the whole matter thereon and if the compromise application is taken out of consideration the finding of the learned District Judge is not sustainable on any other material on the record.

8. In the view that I have taken, I am of the opinion that the learned District Judge ought to have accepted the compromise application and passed the decree in terms thereof: For the reasons given above I would set aside the order of the learned District Judge and accept the compromise and decree the petition of the appellant for judicial separation in terms of the compromise. In view of the circumstances of this case there will be no order as to costs. We had pronounced this decision on 27-11-1975 and these are the reasons for the same. ABDUL HAYEE KURESHI, J.-I agree. S. Q. Appeal accepted.