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John Roberts Vs. Joyee Roberts and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1948All161
AppellantJohn Roberts
RespondentJoyee Roberts and anr.
Excerpt:
- .....of a decree of a district judge, is so radical that the fact that it is unnecessary to issue notice in the former case is no guide as to what the rule should be in the latter.3. an appeal lies from a decree nisi; and the making of the decree absolute can be opposed only by the king's proctor. on the other hand no appeal lies from a decree of a district judge for dissolution or nullity of marriage; the remedy of the party who is aggrieved by such a decree is to oppose its confirmation. it has been held by this court in culley v. culley ('88) 10 all. 559 that the court should not confirm a decree without an application being made to it for this purpose, and in pushong v. mrs. pushong : air1934all624 that an application for confirmation of the lower court's decree can be made.....
Judgment:

Mootham, J.

1. An application has been made to this Court under Section 17, Divorce Act, for confirmation of a decree of the District Judge of Gorakhpur, dated 4th November 1946, dissolving the marriage of the petitioner and respondent on the ground of the latter's adultery with the co-respondent; and the only question which we are now asked to decide is whether notice of this application must be served on the respondent and co-respondent. The respondent and co-respondent were duly served with notice of the petition in the trial Court; they chose not to appear, and it has been argued before us that on the authority of the decision of the Lahore High Court in Harris v. Harris ('21) 8 A.I.R. 1921 Lah. 310 notice of the present application need not issue to them.

2. With the greatest respect I find myself unable to agree with the decision in Harris v. Harris ('21) 8 A.I.R. 1921 Lah. 310. In that case the Court based its decision on the earlier case of the Calcutta High Court in Hicks v. Hicks ('82) 8 Cal. 756, but Hicks v. Hicks ('82) 8 Cal. 756 was one in which the petitioner had obtained a decree nisi in the High Court, and the question was whether it was necessary for notice to issue to the respondent before the Court could make absolute the decree nisi. In my opinion, the difference between the rights of the parties in the two cases, namely on the making absolute of a decree nisi and on the confirmation of a decree of a District Judge, is so radical that the fact that it is unnecessary to issue notice in the former case is no guide as to what the rule should be in the latter.

3. An appeal lies from a decree nisi; and the making of the decree absolute can be opposed only by the King's Proctor. On the other hand no appeal lies from a decree of a District Judge for dissolution or nullity of marriage; the remedy of the party who is aggrieved by such a decree is to oppose its confirmation. It has been held by this Court in Culley v. Culley ('88) 10 All. 559 that the Court should not confirm a decree without an application being made to it for this purpose, and in Pushong v. Mrs. Pushong : AIR1934All624 that an application for confirmation of the lower Court's decree can be made only by the petitioner. A respondent, therefore, who has contested the petition is in consequence debarred from taking any steps in the matter until the petitioner chooses to apply for confirmation of the decree.

4. In the circumstances, therefore, it is in my opinion 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. Notices should, therefore, issue in the present case.

Harish Chandra, J.

5. I agree.

Akbar Husain, J.

6. I agree.


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