(After stating facts and dealing with points not material to this report his Lordship proceeds.)
(1) A very interesting point has been argued before us as to the date which this decree which we have passed in appeal shall bear. Both the Advocate General and Mr. Laud request us to ante-date the decree and to direct that this decree shall bear the same date as the decree passed by the trial Court. What is urged is that under O. 41, R. 33, of the Code, the powers of the appellate Court are very wide and the appellate Court has the power to pass any decree and make any order which ought to have been passed or made, and It is pointed out that what we are doing by this appeal is to decide for judicial separation in favour of the wife. If that is our view, there is no reason why we should not date the decree as the decree originally passed by the City Civil Court.
(2) First turning to the question of the power of the High Court to ante-date the decree, the first provision which might be looked at is O. 20, R. 7. That rule deals with judgment in the trial Court and the provision is that the decree shall bear the date the day on which the judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. Now, this rule does not apply to High Courts in the exercise of their ordinary or extra-ordinary civil jurisdiction, and as a matter of fact we on the Original Side have framed a rule, rule 287, which provides that by special leave of the Judge a decree may be ante-dated or post-dated. Therefore, the Judges on the Original Side undoubtedly possess the power and the jurisdiction to ante-date or post-date a decree. Turning to the provision of decrees is appeal, the relevant provision in the Code is O. 41. R. 35. Sub-rule (1) of that rule provides:
'The decree of the Appellate Court shall bear date the day on which the judgment was pronounced.'
This rule does not apply to the High Court on its appellate jurisdiction. That is clear from the provisions of O. 49, R. 3, which exempts this rule from application to the High Court in the exercise of its appellate jurisdiction. Therefore, as the Code stands, it seems to be clear that the High Court exercising its appellate jurisdiction is not bound by the mandatory provision of O. 41, R. 35. Although the High Court has framed a rule on the Original Side to which refernce has just been made there is no such rule framed on the Appellate side. But in the absence of any such rule, it seems that the power of the High Court in its appellate jurisdiction is not fettered by the mandatory provisions of O. 41, R 35. The Advocate General drew our attention to a rule which we have framed on the Appellate Side which has some bearing on the question, and that is rule 161 and that rule provides that the decree shall bear the date on which the judgment of the High Court was pronounced. This rule is in a Chapter which bears the heading 'Rules for the guidance of the Registrar's office', and it seems that inasmuch as these are not rules framed by the High Court under any of the provisions of the Civil Procedure Code, it would be open to the Judges sitting on the Appellate Side to direct in a particular case that the direction given to the Registrar under rule 161 should not be carried out. In other words, the Appellate Side Judges here could direct the Registrar to draw up the decree and either antedate it or post-date it.
(3) In this connection, it will be perhaps interesting and also instructive to look at what the position in England is O. 41, R. 3 deals with entry of judgment and that rule provides:
'Where any judgment is pronounced by the Court or a Judge in Court, the entry of the judgment shall be dated as of the day onwhich such judgment is pronounced, unless the Court or Judge shall otherwise order, and the judgment shall take effect from that date: provided that by special leave of the Court or a Judge a judgment may be ante-dated or post-dated.'
Therefore, the Rules of the Supreme Court expressly confer upon the Judge the power to ante-date or post-date the judgment, and that power we have taken to ourselves on the Original Side by rule 287. Then we come to the powers of the appellate Court in England. There is no express provision with regard to the power of the appellate Court, but there is high authority for the proposition that the appellate Court has also the power to ante-date and presumably post-date its judgment. The Annual Practice 1957, at page 1263 cites the judgment of Lord Justice Romer in Borthwick v. Elderslie Steamship Co. (No. 2) (1905) 2 KB 516 which states:
'The judgment of the Court of appeal must be treated as of the date on which it was given in the Court of appeal, subject to the right of that Court to ante-date its judgment. That right should be exercises with caution.'
(4) Now, it is a matter for consideration whether we should not have a rule on the Appellate Side similar to rule 287 on the Original Side. It is perfectly true that such a power should be exercised sparingly and with caution, but there is no reason why, if a Judge on the Original Side is armed with that power, the Judges sitting in appeal in the High Court should not have similar power. But assuming we have the power, the question is whether that power can be exercised in this particular case, and for that purpose we must first turn to the Act which we rae interpreting and administering and that is the Hindu Marriage Act, 1955. Section 13 deals with the grounds of divorce and two material provisions may be looked at One is clause (vii) and the other is clause (ix). Clause (vii) says:
'the other party has not resumed cohabilation for a space for two years or upwards, after the passing of a decree for judicial separation against that party;' and clause (ix) says: 'has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree'.
Therefore, before the right can accure to a party seeking divorce in these two cases, there must be in one case a failure to resume cohabitation for a space of two years after the passing of the decree for judicial separation, and in the second case there must be a failure to comply with the decree for restitution of conjugal rights for a similar period. Now, can it possibly be said, if we ante-date the decree to the date the City Civil Court passed its decree, that there was a failure on the part of one or the other party to resume cohabitation after the passing of the decree and equally so in the case of a decree for restitution of conjugal rights that there was a failure to comply with that decree for a period of two years after it was passed? The Legislaturewas anxious that marriages should not be easily or lightly dissolved and that even after decrees for restitutin of conjugal rights and judicial separation were passed locus paenitentiae should be given to the married couple to try and come to a settlement. If that was the policy underlying the two clauses it is clear that the specific period of two years laid down by the Legislature is the period commencing after a decree is passed by a competent Court. It cannot possibly be said that any decree for judicial separation was passed by the City Civil Court which would start the period laid down by the Legislature. That period in this case under section 13(1)(viii) can only commence after the decree has been pronounced by this Court. Under the circumstances, assuming we have the power, we do not think this is a case where we should exercise it or even we could exercise it in view of the law.
(5) The result therefore is that the decree which we have passed yesterday will bear yesterday's date as provided by rule 161 of the Appellate Side Rules.
(6) Order accordingly.