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Smt. Deepika Alizabeth Couto Vs. Gabriel Anthony Couto - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberMatrimonial Reference No. 1 of 1977
Judge
Reported inAIR1978All27
ActsDivorce Act, 1869 - Sections 10 and 17; Uttar Pradesh Divorce Act, 1957; Constitution of India - Article 227; Constitution of India (42nd Amendment) Act, 1976
AppellantSmt. Deepika Alizabeth Couto
RespondentGabriel Anthony Couto
Appellant AdvocateShamsuddin Ahmad and ;G.C. Ghildayal, Advs.
Respondent AdvocateJanardan Sahai, Adv.
Excerpt:
.....are satisfied that this is a fit case in which this court should exercise its jurisdiction under article 227 of the constitution for passing suitable orders. before parting with the case we would, however, like to observe that the learned district judge passed a manifestly erroneous decree without applying his mind even to the preliminary question as to whether his jurisdiction was invoked on any of the grounds relevant to section 10of the act......below. in support of these allegations, the petitioner examined herself. the learned district judge passed an ex parte order dated dec. 18, 1976 whereby he allowed the petition and a decree nisi was passed. thereafter, the petitioner made the present application in this court under section 17 of the act, praying that the decree nisi dated dec. 18, 1976, passed by the district judge, gorakhpur, be confirmed.2. we have heard the learned counsel for the parties. it is apparent from the perusal of section 17 of the indian divorce act, 1869 as amended by the indian divorce (u. p. amendment) act xxx of 1957 that a decree passed under section 10 of the act, as in the instant case, does not require any confirmation by the high court. section 17 of the indian divorce act, prior to the u. p......
Judgment:

M.N. Shukla, J.

1. This reference purporting to be one under Section 17 of the Indian Divorce Act. 1869 (hereinafter referred to as the Act) reveals a curious state of affairs. A petition was made under Section 10 of the Act by the petitioner Smt. Deepika Alizabeth Couto in the court of the District Judge, Gorakhpur. The allegations in the petition were that she .and her husband were married in the year 1965 according to the Christian rituals; that the respondent was a habitual drunkard who constantly beat the petitioner using filthy abuses and treated her with cruelty whenever she went to live with him at Jamshedpur. On account of this cruel treatment her physical and mental health was completely impaired and it was no longer safe for her to live with him. It appears that the respondent did not contest the petitionin the court below. In support of these allegations, the petitioner examined herself. The learned District Judge passed an ex parte order dated Dec. 18, 1976 whereby he allowed the petition and a decree nisi was passed. Thereafter, the petitioner made the present application in this Court under Section 17 of the Act, praying that the decree nisi dated Dec. 18, 1976, passed by the District Judge, Gorakhpur, be confirmed.

2. We have heard the learned counsel for the parties. It is apparent from the perusal of Section 17 of the Indian Divorce Act, 1869 as amended by the Indian Divorce (U. P. Amendment) Act XXX of 1957 that a decree passed under Section 10 of the Act, as in the instant case, does not require any confirmation by the High Court. Section 17 of the Indian Divorce Act, prior to the U. P. Amendment Act, stood as follows :--

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

Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges; and in case of difference, the opinion of the senior Judge shall prevail.

The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken.

The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit;

Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.

During the progress of the suit in the Court of the District Judge, any person, suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shallbe at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under Section 8, and the High Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and. the provisions contained in Section 16 shall apply to every suit so removed; or it may direct the District Judge to - take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case.'

3. Section 4 of the U. P. Amendment Act of 1957 effects an amendment in Section 17 of the Indian Divorce Act and provides that paras. 1 to 5 of Section 17 shall be deleted. It will be noticed that para. 1 of Section 17 required confirmation by the High Court of a decree for dissolution of marriage passed by the District Judge under Section 10 of the Act. In view of the amendment it is apparent that no such confirmation is now required. In the circumstances the petition filed in this Court under Section 17 of the Act was clearly incompetent. Learned counsel for the petitioner was not able to refer to any provision of law under which such petition would lie. It is accordingly liable to be dismissed. It is surprising that the learned counsel for the petitioner filed this petition without ascertaining even the basic fact whether such petition lay in this Court.

4. Normally we would have stopped short at this point but in view of the compelling circumstances of this case we ere constrained to go a step farther. We cannot escape noticing the fact that the decree passed by the District Judge is itself without jurisdiction and so cannot be sustained. The reason is that a perusal of the terms of Section 10 of the Act makes it clear that cruelty per se is not a ground for granting a decree for dissolution. The section very clearly provides that one of the grounds, on which the petition for the dissolution of marriage would lie, can be 'adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro'. In other words, the cruelty of a special kind, coupled with adultery would furnish a ground for a petition of dissolution under Section 10. The construction that we are placing on this section finds support from two Full Bench decisions of the Madras High Court in Siluvaimani Ammal v.Thangiah Nadar (AIR 1956 Mad 421) and Ambujam G Ammal v. M. R. Arumu-gham (AIR i966 Mad 153). The ratio of these authorities is that cruelty by itself is not an adequate ground for divorce. If the wife is to succeed in a decree for divorce against the husband, she must show not merely cruelty of the special kind referred to above, but adultery coupled with such cruelty. In these circumstances it is clear that not only a reference to this Court under Section 17 of the Act was not competent but the petition initially presented in the court below under Section 10 of the Indian Divorce Act was also not maintainable and the entire proceedings were without jurisdiction.

5. Learned counsel for the parties submitted that now at this stage and in view of some understanding reached between the parties, it would not be expedient to interfere with the order of the District Judge and so he did not press the reference made to this Court under Section 17 of the Act and prayed that the same be dismissed. Ordinarily we would have stayed our hands after this statement by the counsel for the petitioner that he did not wish to press the petition made by way of reference to this Court, but the facts in the instant case are somewhat extraordinary. This Court cannot shut its eyes to the fact that the proceedings culminating in the ex parte decree of divorce passed under Section 10 of the Act were not only illegal but were entirely without jurisdiction. The decree is a nullity and, therefore, cannot be allowed to stand. We are satisfied that this is a fit case in which this Court should exercise its jurisdiction under Article 227 of the Constitution for passing suitable orders. Article 227 of the Constitution as amended by the Constitution (Forty-Second Amendment) Act, 1976, so far as is material for the purpose of this case, reads as under :--

'227. (1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction.

(2) Without prejudice to the generality of tbe foregoing provision, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.'

6. An appeal under Section 55 of the Indian Divorce Act, as amended by U. P Amendment of 1957, deleting the first proviso to the section, lies to this Court and consequently the court of the District Judge which passed the decree in the present case is under the supervisory jurisdiction of this Court. Clause (1) of Article 227 of the Constitution provides thata High Court shall have superintendence over all courts subject to its appellate jurisdiction. The primary object of this supervisory jurisdiction of the High Court, according to the consensus of authorities, is that the courts over which the High Court has such superintendence must be kept within the bounds of law. Whenever such bounds are exceeded the High Court is competent in the exercise of its powers under Article 227 of the Constitution to pass an appropriate order. It is also settled by the authorities that the jurisdiction of the High Court under Article 227 of the Constitution is wider than under Article 226. As observed by the Supreme Court in Hari Vishnu Kamath v Ahmad Ishaque (AIR 1955 SC 233) while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. In other words, in exercise of powers under Article 227 of the Constitu-jtion, the High Court cannot only quash 'an order, as in the present case, as being without jurisdiction, but can also issue further appropriate directions such as for the remand of the case and its decision in accordance with law. We cannot jallow an incompetent order or decree, which has been brought to the notice of this Court, to stand on the ground that it now suits the parties not to prolong the litigation between them but to ring down the curtain.

6-A. Before parting with the case we would, however, like to observe that the learned District Judge passed a manifestly erroneous decree without applying his mind even to the preliminary question as to whether his jurisdiction was invoked on any of the grounds relevant to Section 10of the Act.

7. For these reasons we dismiss the application for reference as incompetent and also quash the ex parte decree dated 18th Dec., 1976 for divorce passed by the District Judge, Gorakhpur. We direct him to decide the application in accordance with law and the observations made by us. It would, however, be open to the petitioner to seek such amendmentas she may be advised when the matter goes back and it will be for the court below to deal with such request in accordance with law.

8. In the circumstances of the case we make no order as to costs.


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