1. The material facts giving rise to this appeal are as follows: The appellant Smt. Kirakali was the wife of respondent Dr. Ram Asray Avasthi, a Professor in the Christ Church College, Kanpur. The marriage took place in the year 1950 and thereafter the parties lived together as husband and wife and a daughter named Saroj Devi was born to them. Subsequently, the parties fell out and the respondent filed a petition under Section 13 of the Hindu Marriage Act in the court of the Civil Judge. Fatehpur for the dissolution of his marriage with the appellant. The petition was registered as suit No. 9 of 1964 in the court of the Civil Judge. In that suit a compromise was arrived at between the parties to the effect that there will he a decree for judicial separation instead of a decree for divorce. A decree in terms of the compromise was passed by the court on 20-3-1965.
2. More than two years after the date of the consent decree in the above suit the respondent filed a petition in the Civil Court stating that there had been no cohabitation between him and his wife after the decree for judicial separation had been passed. The respondent, therefore, asked for a decree for dissolution of the marriage under Section 13(1-A)(i) of the Act.
3. The appellant resisted thedecree for divorce asked for by the respondent. Her contention was that she was persuaded to give her consent to the judicial separation by fraud, misrepresentation practised by the respondent. She stated that she entered into the compromise on the express understanding that the respondent would maintain her as his wife even if he contracted another marriage. According to her, the respondent after having induced her to enterinto the compromise and obtained the decree dated 20-3-1965, went back upon his undertaking and wanted to divorce the appellant, as she was uneducated and is a rustic woman.
4. The learned District Judge found, as a fact that, in this case the appellant did not resume cohabitation with the respondent for a space of two years or upwards after the passing of the decree for judicial separation. He therefore, granted a decree for divorce in favour of the respondent under Section 13 of the Hindu Marriage Act. Hence, this appeal.
5. Section 10 of the Hindu Marriage Act, 1955, hereinafter referred to as the Act enumerates the grounds on which one of the parties to the marriage can pray for a decree for judicial separation. These are:
'10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-
(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or
(c) has for a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy; or
(d) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or
(e) has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition; or
(f) has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.' The rest of the section is not material for this case.
6. As already stated, the respondent had filed the petition before the District Judge, which was registered as suit No. 9 of 1964, under Section 13 of the Act. It is necessary to reproduce the relevant portions of Section 13:
'13(1) Any marriage solemnised, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the other party-
(i) is living in adultery; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
(v) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of it had that party been alive.
(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
The rest of the section is not necessary for the purpose of this case.
7. From what has been stated above, it would appear that initially, a petition for dissolution of the marriage was filed by the appellant under Section 13 of the Act in the court of the Civil Judge, Fatehpur in the year 1964 asking for a decree for dissolution of the marriage by divorce. As already stated, that suit was ultimately compromised between the parties and in terms of the compromise the Civil Judge passed a consent decree for judicial separation. Under the Act the Civil Judge could either allow the petition under Section 13 or reject it. He could not, in a suit for dissolution of marriage under Section 13, pass a decree for judicial separation under Section 10, by consent. The Act does not authorise the court to do so.
8. Having regard to the specific terms of Section 10 and Section 13 of the Act, it is manifest that a decree for judicial separation or a decree for dissolution of marriage by divorce can be asked for only upon one or more of the grounds specified in the respective sections. Section 23 of the Act prescribes the powers and the duties of a court in the matter of granting any of the reliefsrecognised under the Act. The whole of the section is reproduced below:
'23(1) In any proceeding under this Act whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance in every case where it is possible so to do, consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.'
The concluding words of Sub-section (1) of Section 23, namely, 'in such a case but not otherwise' mean that the provisions of the sub-section are mandatory and the court will be incompetent to grant a decree if the conditions in' Sub-clauses (a), (b), (c), (d) and (e) mentioned in the sub-section, which are cumulative, are not fulfilled. The initial words of the section namely. 'if the court is satisfied' indicate that decrees for judicial separation or dissolution of marriage are passed only upon strict proof of the said conditions, it makes no difference whether the proceeding is defended or undefended. The word 'satisfied' used in similar context, in English Matrimonial Causes Act of 1550 came in for consideration before the House of Lords in Preston Jones v. Preston Jones, 1951 AC 391 and it was held that the word 'satisfied' means 'satisfied beyond reasonable doubt'. The following observation of Lord Macdermott may be reproduced here:
'The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bondshall not be set aside lightly or without strict inquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be satisfied, in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.'
9. The provisions of Sub-section (1) of Section 23 are mandatory and non-compliance therewith deprives the court of its jurisdiction to grant a decree for judicial separation or dissolution of the marriage. Consent of the parties to judicial separation or dissolution of the marriage does not confer jurisdiction on the court to pass a decree under Section 23 of the Act. In fact, consent in such cases would indirectly amount to collusion, in law and, therefore, Sub-clause (c) of Section 23(1) would be an absolute bar to a decree passed on such consent. It is evident that the Legislature considered it to be of paramount importance that matrimonial relations between legally wedded persons should be maintained and disruption thereof should be prevented as far as possible, even though the parties to the marriage themselves might be willing to snap the matrimonial tie. This is why the Legislature has provided against collusion between the parties with a view to obtain a decree. As already stated consent is an indirect form of collusion. The law in England is also the same. The following passage in Halsbury's Laws of England at page 292, paragraph 576 of Vol. 12 (13th Edition) may be reproduced here:
'A decree must be refused even ifthe suit is not defended where there is no jurisdiction to make it, or where the allegations put forward are not proved; for judgment by default: or by consent, or by admission, is unknown in matrimonial cases.''
In the present case, as already stated, none of the grounds, on the basis of which a decree for judicial separation might be asked for, were proved before the Court and, therefore, the decree passed by the Civil Judge, even though with the consent of the parties, was without jurisdiction.
10. Learned counsel for the respondent contended that the status of the parties namely, the fact that they were husband and wife conferred jurisdiction on the Civil Judge and he was competent to entertain the suit for divorce under Section 13 of the Act. It was, however, argued that, at the worst, the decree passed by the Civil Judge in violation of the terms of Section 23 would amount to an act done by him in excessof the jurisdiction or in erroneous exercise of jurisdiction; nevertheless, the decree would be binding on the appellant as there was no appeal by her against it and it was allowed to be final. It was also contended that even if a decree was passed by a court with the consent of parties in contravention of the provisions of a statute, it would still be binding on them and it could not be challenged as a nullity in a subsequent collateral proceeding between the same parties. A plethora of decisions were cited by the learned counsel for the respondent to support these well-established principles of law. It is true that there is a distinction between a decree passed by a court without jurisdiction and a decree passed by a court in the wrong exercise of its jurisdiction, that is, in disregard of the law. In the former case, the whole proceeding is void, while in the latter case the proceeding cannot be impugned in a collateral action, even if it be erroneous upon its face. These principles do not, however, apply to decrees in matrimonial causes passed in contravention of the mandatory provisions of law. Different principles apply to decrees in matrimonial actions. Such decrees operate as judgments in rem as distinguished from decrees in other civil causes which operate as judgments in personam. A decree in a matrimonial cause not passed in strict conformity with the provisions of Section 23 would not be a decree in rem. Section 13(1-A), under which the present case was filed by the respondent before the District Judge, refers to 'a decree for judicial separation' which means a decree passed in accordance with the terms of Section 23. A decree which has been passed in violation of the mandatory provisions of Section 23(1), cannot be regarded as 'a decree for judicial separation' within the meaning of Section 13(1-A).
11. In my opinion, therefore, the decree for dissolution of marriage granted by the District Judge in favour of the respondent and against the appellant must be set aside.
12. The appeal is allowed. The decree for dissolution of marriage granted by the District Judge is set aside and the petition is dismissed. The appellant is entitled to her costs in this Court as well as in the lower court.
R.S. Pathak, J.
13. I agree.