P. Chennakesav Reddy, Actg. C.J.
1. In this case which comes up before us on a reference by the District Judge under S. 17 of the Indian Divorce Act, 1869 (Act IV of 1869), hereinafter referred to as 'the Act', a question of considerable importance and frequent occurrence arises. The question is whether fresh notice of hearing should be effected on the party to be affected before a decree for dissolution of marriage under S. 17 of the Act by the High Court.
2. For the full and proper appreciation of the problem posing for resolution, the facts may be made plain at the outset. The wife, Meesarapu Mary Ratnam presented a petition before the District Judge, West Godavari at Elura, for dissolution of the marriage with her husband Meesarapu Baburao under S. 10 of the Act on grounds of adultery coupled with cruelty and desertion. The respondent husband on service of notice of the petition appeared by an advocate and filed a counter admitting the marriage and denying the allegation of adultery coupled with cruelty and desertion. But subsequently there was in representation on behalf of the respondent in the case. Therefore, he was set ex parte. After examining the petitioner and her witnesses, the learned District Judge granted a decree for dissolution of the marriage subject to confirmation by the High Court under S. 17 of the Act and made a reference to the High Court for confirmation. Notice was sent to the respondent by the High Court, but it was returned unserved with the endorsement of the postman that no such person was present at the address given in the notice. The petitioner was not able to furnish the correct address of the respondent when she was directed to do so.
3. Therefore, the question that arises for consideration is whether fresh service of notice of the proceedings under S. 17 of the Act should be affected party who had remained ex parte in the original proceedings before the District Judge under S. 10 of the Act Before The High Court confirms the decree for divorce.
4. Having regard to the importance of the question we appointed Sri J. V. Suryanarayana Rao, Advocate as amicus curiae. He presented the entire case before us with ability and clarity.
5. To answer the question, a survey or scrutiny of the relevant provisions of the Act would be useful. The Act is one of the oldest Acts which provides inter alia for dissolution of a marriage when one of the parties to the marriage is a Christian (Section 2 of the Act). Section 7 of the Act provides that the Court shall act and give relief on principles laid down by the English divorce courts. This was so stated obviously because divorce was not known to the general Hindu Law at that time, the reason being that a marriage from the Hindu point of view was considered to be indissoluble. Neither party who is a Hindu could divorce the other unless divorce was allowed by custom till the Hindu Marriage Act was enacted in 1955 amending and codifying the law relating to marriage amongst Hindus and providing for dissolution of a Hindu marriage.
6. Section 10 of the Act contains the grounds on which a petition for a dissolution of a marriage could be presented. By Section 14 the Court is empowered to pronounce a decree for dissolving a marriage. S. 17 provides that every decree for dissolution of a marriage made by a District Judge shall be subject to confirmation by the High Court. The next relevant section is section 50 which provides that every petition under the Act shall be served on the party to be affected thereby, either within or without India, in such manner as the High Court by general or special order from time to time directs, provided that the court may dispense with such service altogether in case it seems necessary or expedient so to do. It is significant to note that the Court is empowered to dispense with the service of notice of any petition under the Act if the Court considers it necessary or expedient so to do. Section 55 provides that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage, nor from the order of the High Court confirming or refusing to confirm such decree.
7. The aforesaid scrutiny of the relevant provisions of the Act at once makes it plain that the proceedings under S. 17 of the Act for confirmation of a decree for dissolution of marriage granted by the District Judge are not fresh proceedings but continuation of the proceedings instituted under S. 10 of the Act. The correctness of this conclusion is further assured by the proviso to S. 55 of the Act which provides that there shall be no appeal from the decree of the District Judge for dissolution of marriage or nullity of marriage. Therefore, no fresh notice of the reference under S. 17 of the Act is necessary to the affected party since the party had already notice of the same by the decree pronounced by the District Judge. In any case, under S. 50 of the Act, the Court is empowered to dispense with the service of notice where it considers it necessary or expedient so to do. In this case although notice was went to the respondent by the High Court, it could not be served. He had remained ex parte before the District Judge. Therefore, we consider it necessary and expedient to dispense with the service of notice in this case.
8. The preponderance of judicial opinion in the country is in favour of the view above expressed by us. A Special Bench of the Punjab High Court in Mrs. Phyllis Diana Hearne v. Denzil Donald Patrich Hearne, AIR 1951 Punj 429, observed that.
'The object to serve a notice is to tell a person what is going on against him. The District Judge informed the respondent of the proceedings. A natural consequence of the District Judge's proceedings is the confirmation of the proceedings which are sent by him to this Court. The respondent in due course should be aware that the proceedings for the confirmation were to take place and in the circumstances of this case and in view of the fact that he acknowledged the notice of the District Judge, I think it would not be necessary to send any further notice to him. In these circumstances I would grant the oral application of the petitioner's counsel to dispense with the service of the notice.'
9. To the same effect is the decision of the Lahore High Court in Harris v. Harris, AIR 1921 Lah 310.
10. The Calcutta High Court also expressed the same opinion in Amita Biswas v. Alwin Atindra Biswas, ILR (1968) 1 Cal 390 and observed that:
'Confirmation of the decree is a mere continuation of the proceeding commenced before the District Court and not notice for confirmation of the proceedings is contemplated by the State'.
In K.J. v. Smt. K., AIR 1952 Nag 395 (FB) the Nagpur High Court observed that:
'The proceeding for the confirmation of decree are nothing more than mere continuation of the original suit which had been filed in the Court below and it was not necessary to serve notice on him again.'
11. The Patna High Court in Gallimore v. Gallimore, AIR 1936 Pat 15 (FB) observed that:
'The jurisdiction of the High Court to confirm the decree in a divorce suit arises immediately upon a reference by the District Court, and to compete the jurisdiction it is not necessary that there should be any personal appearance of the petitioner before the High Court.'
12. The above earlier view of the Patna High Court was affirmed by the Patna High Court in Stiphan Surin v. Piary Marki, AIR 1955 Pat 519.
13. The Madras High Court in Guda William v. Dudu Karunamma, AIR 1916 Mad 296 (FB) held that:
'The jurisdiction of the High Court to confirm the decree in a divorce case arises immediately upon a reference by the District Court, and to complete the jurisdiction it is not necessary that there should be any personal appearance of the petitioner before the High Court.'
14. However, the Allahabad High Court relying on its earlier decisions in Culley v. Culley, (1888) ILR 10 All 559 and Pushong v. Mrs,. Pushong, AIR 1934 All 624(1) in Roberts v. Roberts, AIR 1948 All 161 held that:
'It is essential in the interests of justice that notice of every application for confirmation of the decree of a District Judge should in the ordinary course be issued to the respondent and co-respondent, even though the respondent and the co-respondent were duly served with notice of the petition in the Court of the District Judge but did not choose to appear.'
15. With utmost respect to the learned judges of the Allahabad High Court, we are unable to agree with the view expressed therein for the reasons already recorded by us above.
16. It may be quite apposite to point out that Section 7 of the Act provides that the High Courts and District Courts shall act and give relief in all proceedings under the Act on the principles and rules on which the Court of Divorce and Matrimonial Causes in England for the time being acts and gives relief.
17. In Paolantonio v. Paolantonio, (1950) 2 All ELR 404. The Court of Appeal held that in the original petition by the wife for divorce on the ground that the husband had deserted her and the whereabouts of the husband were not known, the Court had discretion to dispense with service of the petition.
18. Under similar circumstances, the Court of Appeal in Weighman v. Weighman, (1947) 2 All ELR 852 held that service of the petition for divorce on the ground of husband's desertion could be dispensed with.
19. Now turning to the facts of this case, both the parties to the petition are Christians by religion. The husband was set ex parte. The learned District Judge on a consideration of the evidence adduced in the case by the wife held that the respondent-husband was guilty of adultery coupled with cruelty and desertion and granted a decree for dissolution of the marriage. Indeed it is clear from the order of the District Judge that the husband himself has admitted before PWs. 1 and 2 that he was guilty of adultery. In the circumstances, we have no hesitation to confirm the decree granted by the District Judge.
The reference is ordered accordingly. No costs.
20. Reference answered accordingly.