1. This is a reference under Section 17 of the Indian Divorce Act (hereinafter called 'the Act') for confirmation of a decree nisi for dissolution of the marriage of the petitioner Fazal Masih and his wife Smt. Patience.
2. The petitioner and the respondent were married on December 4, 1959, under the Indian Christian Marriage Act The respondent gave birth to two male children. Domestic bickerings appear to have been a part of their married life. Certain proceedings had taken place between the husband and the wife with regard to the maintenance of the latter. However on August 9, 1966 the petitioner presented a petition in the Court of the District Judge, Udaipur, under Section 32 of the Act for restitution of coniuaal rights. Issues were framed in the case and the trial proceeded. In the course of the proceedings, on December 14, 1968 the husband and the wife filed a joint petition saying that their relations had deteriorated to such an extent that it was impossible for them to live as husband and wife and the Court may be pleased to pass a decree for divorce in terms of a compromise reached between them. The Court accorded its approval to the compromise and a decree for divorce was passed on that very day, that is, 14-12-1968. It was on April 27, 1972 that the learned District Judge transmitted the record to this Court for confirmation of the decree.
3. It appears to us that the learned District Judge who passed the consent decree for divorce under the Act had not taken the trouble of studying the relevant provisions of law. In view of the provisions of the Act a divorce on consent is not permissible and it is only possible if the misconduct as envisaged under Section 10 of the Act is established by either spouse. Section 12 of the Act requires that the Court shall satisfy it-sell so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at the adultery, or has condoned the same and shall also enquire into any counter charge which mav be made against the petitioner. Section 13 lays down that if the Court finds that the petitioner has, during the marriage, been accessory to or connived in the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, the Court shall dismiss the petition. It is only if the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to, or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of or that the petition is presented or prosecuted in collusion with either of the respondents, the Court shall pronounce a decree declaring such marriage to be dissolved under Section 14 of the Act. Section 47 of the Act requires that every petition under the Act for a decree of dissolution of marriage or of nullity of marriage or of judicial separation shall state that there is not any collusion or connivance between the petitioner and [the other party to the marriage. These provisions, in, our opinion, clearly forbid a decree for divorce on consent of the parties. It is only on the proof of misconduct as envisaged by Section 10 of the Act that a decree for divorce is permissible subiect to the restrictions contained in Sections 16 and 17 of the Act. Those systems of jurisprudence which emphasise that the matrimonial relations should not be on fragile foundations insist that one spouse must prove the misconduct of the other spouse if divorce is claimed and the reason is that the mere disagreement and the consequent separation may as well be prevented by some care and self-sacrifice if the spouses think that there is no other choice in the matter. Another reason is that if divorce on mutual consent was permitted then marriages would be thoughtlessly contracted. It is only when the conduct of either of the parties has been such that it would be cruel to the other to allow the matrimonial relations to subsist between them that divorce is the only remedy for the wrong. Then under Section 10 of the Act on a petition by the wronged party a divorce should be granted if the Court finds that the alleged misconduct is proved and there is no impediment to its grant. Divorce by consent is not obtainable under the Indian Divorce Act, 1869. Much less a petition for restitution of conjugal rights under Section 32 of the Act filed by the husband could be converted into one for divorce and then the decree for divorce granted on consent.
4. In these circumstances, we regret, we cannot confirm the decree and set aside the decree for divorce passed by the learned District Judge in utter ignorance of the law on the subject. We direct the learned District Judge, Udaipur to proceed with the petition for restitution of conjugal rights in accordance with law.