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A.F.H. Pushong Vs. Mrs. E.O. Pushong - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All624; 150Ind.Cas.543
AppellantA.F.H. Pushong
RespondentMrs. E.O. Pushong
Excerpt:
- - we may refer here to the well known case of qusey v......clear. it has for long been held in england that only the innocent party can move the court for a decree absolute. the court will not listen to the guilty party. we may refer here to the well known case of qusey v. qusey (1876) 1 p.c. 56.3. the learned judge ordinary in that case said as follows:the principle that the powers of the court are to be exorcised only on behalf of the innocent, is illustrated by the case of hulse v. hulse (1872) 2 p. 357, where the court refused to make a decree absolute on the ground that the petitioner had been guilty of adultery after the decree nisi. if, then i were to make the decree absolute at the instance of the respondent, i shall be in effect giving relief not to the innocent but to the guilty, and upon the ground of her own guilt.4. that case has.....
Judgment:

1. This is an application by a guilty respondent to a divorce petition foe confirmation of the decree of the learned District Judge. The only point for our decision is whether such an application lies. Section 17, Divorce Act, under which this application is made, enacts as follows:

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

2. There is nothing in the wording of the section itself which gives any guidance as to which of the parties to a divorce petition may move the Court. We have therefore to look to the practice as it exists in England for guidance in this matter. The practice in England is clear. It has for long been held in England that only the innocent party can move the Court for a decree absolute. The Court will not listen to the guilty party. We may refer here to the well known case of Qusey v. Qusey (1876) 1 P.C. 56.

3. The learned Judge ordinary in that case said as follows:

The principle that the powers of the Court are to be exorcised only on behalf of the innocent, is illustrated by the case of Hulse v. Hulse (1872) 2 P. 357, where the Court refused to make a decree absolute on the ground that the petitioner had been guilty of adultery after the decree nisi. If, then I were to make the decree absolute at the instance of the respondent, I shall be in effect giving relief not to the innocent but to the guilty, and upon the ground of her own guilt.

4. That case has been followed in numerous other cases, notably in Lewis v. Lewis (1892) P.D. 212 and Rutter v. Rutter (1921) P.D. 421. It appears to us that this principle should be-followed in India on an application to eon-firm a decree by a lower Court under Section 17. Until confirmation of decree, the proceedings are not finished, the marriage is not dissolved and it appears to us to be contrary to principle that a marriage should be dissolved on the motion of the guilty party. On this ground, therefore we hold that this application does not lie, and we dismiss it accordingly.


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