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R.S. Manual Raju Vs. Mary Sara - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberCivil Referred Case No. 10 of 1981
Judge
Reported inAIR1982Kant235; ILR1982KAR491; 1982(1)KarLJ344
ActsDivorce Act, 1869 - Sections 22, 17 and 20
AppellantR.S. Manual Raju
RespondentMary Sara
Excerpt:
.....state government to confiscate only 1/4th of the market value of the seized vehicle does not arise. impugned order was quashed. - he should go through the provisions of law before making a reference, so that the precious time of this court may be utilised for better purposes.g.n. sabhahit, j.1. this is a reference made by the principal civil judge, shimoga, for confirming the order for judicial separation passed by him on 13-3-1981 in matrimonial case no. 33 of 1980, on his file.2. the husband, who was the petitioner before the learned civil judge made an application under section 22 of the divorce act, 1869 (to be referred to as 'the act') praying for judicial separation from his wife, the respondent in the petition. the learned civil judge has allowed the petition. he has, however, in the course of his final order, stated:'the application is allowed. the case be sent to the high court of karnataka as provided under the divorce act for confirmation.'3. it is obvious that the learned civil judge has not cared to look into the provisions of the act. there are.....
Judgment:

G.N. Sabhahit, J.

1. This is a reference made by the Principal Civil Judge, Shimoga, for confirming the order for judicial separation passed by him on 13-3-1981 in Matrimonial Case No. 33 of 1980, on his file.

2. The husband, who was the petitioner before the learned Civil Judge made an application under Section 22 of the Divorce Act, 1869 (to be referred to as 'the Act') praying for judicial separation from his wife, the respondent in the petition. The learned Civil Judge has allowed the petition. He has, however, in the course of his final order, stated:

'The application is allowed. The case be sent to the High Court of Karnataka as provided under the Divorce Act for confirmation.'

3. It is obvious that the learned Civil Judge has not cared to look into the provisions of the Act. There are only two sections in the Act which provide for confirmation of the order passed by the Civil Judge or the District Judge, as the case may be, and they are Sections 17 and 20.

4. Section 17 of the Act reads:

'Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.'

Section 20 of the Act speaks of confirmation of the decree of nullity of marriage made by the District Judge, by the High Court; and the provisions of Section 17, Clauses 1, 2, 3 and 4, are made applicable mutatis mutandis to such a decree.

Section 10 of the Act speaks of dissolution of marriage and Section 18 contemplates a petition for decree of nullity.

5. The petition before the learned Civil Judge was not under Section 10 of the Act; nor was it a petition for declaring that the marriage was a nullity under Section 18 of the Act. It was, in fact, as noted by the learned Civil Judge, under Section 22 of the Act, which speaks of judicial separation and there is no provision whatsoever in the Act for getting an order passed for judicial separation conferred by this Court. It is thus obvious that Shri A. C. Patil, Principal Civil Judge, Shimoga, has committed an error of law in directing a reference to this Court for confirmation of the order. The order passed by him 'is itself operative, without more.

6. Section 22 of the Act, no doubt, states that a decree passed under the Section for judicial separation shall have the effect of a divorce 'a mensa et thoro'. 7hat does not mean that it will have the effect of a decree for divorce. 'A mensa et thoro' means literally 'from table and bed' (from board and bed'). It is a term used to describe a partial divorce in a case in which the marriage was just and lawful; but, for some supervening cause, such as the commission of adultery or cruelty by the husband or wife, it becomes improper or impossible for them to live together. The partial divorce laws earlier effected by the Ecclesiastical '[Court. It only caused the separation of 'husband and wife; but did not dissolve the marriage so that neither of them could marry during the life of the other. That is now substituted by Section 22 of the Act.

7. Thus, a divorce 'a mensa et thoro' has to be distinguished from a regular divorce and also from a decree for a divorce 'a Vinculum matrimonii', which means a decree for nullity. Shri A. C. Patil, the Civil Judge, perhaps could not comprehend the distinct concepts, in making the misconceived reference.

8. In the result, therefore, the reference itself is found incompetent. Accordingly, the reference is rejected. it is hoped that Shri A. C. Patil, the Civil Judge, would be more careful in future in passing such orders. He should go through the provisions of law before making a reference, so that the precious time of this Court may be utilised for better purposes.

9. Reference rejected.


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