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A. George Cornelius Vs. Elizabeth Dopti Samadanam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberO.M.S. No. 6 of 1968
Judge
Reported inAIR1970Mad240
ActsIndian Divorce Act, 1869 - Sections 7 and 10
AppellantA. George Cornelius
RespondentElizabeth Dopti Samadanam
Advocates:J.S. Athanesius, Adv.
Cases ReferredIn Wilkinson v. Willdnson
Excerpt:
- - by the matrimonial causes act, 1937, and the matrimonial causes act, 1950 several new grounds for divorce were added so as to enable the husband as well as the wife to sue for divorce......the english 'matrimonial causes act, 1950, which provides for the dissolution of marriage, if the husband or wife can be presumed to be dead on the ground of not being heard of for more than seven years, this court can grant decree for divorce. section 7 of the act reads thus:'subject to the provisions contained in this act, the high court and district courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said courts; are as nearly as may be conformable to the principles and rules on which the court for divorce and matrimonial causes in england for the time being acts and gives relief: provided that nothing in this section shall deprive the said courts of jurisdiction in a case where the parties to a marriage.....
Judgment:

Palaniswamy, J.

1. This suit filed by the husband under Section 10 of the Indian Divorce Act, 1869 (Act IV of 1869) hereinafter referred to as the Act raises an Important question about the scope of Section 7 of the Act. The petitioner married the respondent on 16th September 1935. He has alleged that after the marriage they lived together for some time when the respondent gave birth to three children, that all the three children are married, that in or about May 1952 when the couple were living at Bhuvanagiri the respondent deserted the petitioner against his will and without reasonable cause and went away, that the enquiries made by the petitioner about the respondent proved futile and that Inasmuch as the respondent's whereabouts are not known from 1952, it should be presumed that she is dead. The petitioner prays that a decree for dissolution of the marriage may, therefore be granted. The respondent could not be served in person and service was effected by substituted service.

2. The question for consideration is whether upon the presumption which the petitioner wants to draw as regards the death of the respondent, dissolution of the marriage can be decreed under Section 10 of the Act. Section 10, which provides for dissolution of marriage, consists of two parts. The first part deals with a case where a husband can present a petition for dissolution while the second part deals with the case where a wife can present a petition for dissolution. So far as this case is concerned, it is necessary to note only the first part which runs thus:--

'Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been, guilty of adultery,'

According to the above provision, the husband is entitled to present a petition for dissolution of the marriage only on one ground, namely, that the wife has, since the solemnization of the marriage, been guilty of adultery. Mr. Athanasius, appearing for the petitioner, contended that by virtue of Section 7 of the Act this Court is to act on principles of English Divorce Court, that under Section 16(1) of the English 'Matrimonial Causes Act, 1950, which provides for the dissolution of marriage, if the husband or wife can be presumed to be dead on the ground of not being heard of for more than seven years, this Court can grant decree for divorce. Section 7 of the Act reads thus:

'Subject to the provisions contained in this Act, the High Court and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts; are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief:

Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the tune of the occurrence of the facts on which the claim to relief is founded,' Though this Act was passed in the year 1869 and has been amended several times, no additional ground for dissolution of marriage was provided in Section 10 in any of those amendments. Contrast with this position, some enactments made by the Indian Legislature for dissolution of marriage may be adverted to. Section 27(h) of the Special Marriage Act, 1954, provides for a decree for dissolution on the ground that the respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive. To the same effect is Section 33(1)(vii) of the Hindu Marriage Act, 1955, providing for a decree for dissolution if the husband or the wife is not heard of for a decree for dissolution if the husband or the wife is not heard of for the above said period.

3. The question, under these circumstances, is whether In enacting Section 7 of the Act, the Indian Legislature intended that, though no express provision on the ground that the husband or wife can be presumed to be dead, on the ground that he or she is not heard of for seven years and more, the principles of the English Matrimonial Causes Act, under which there is no doubt a provision for dissolution on the above ground, can be imported into Section 7 and a decree can be granted accordingly. Mr. Athanasius, appearing for the petitioner, conceded that he was unable to find any decided case in support of the position which he contends for. Section 7, as its wording Indicates, is merely a residuary section, intended to provide for any matter which, by inadvertence or otherwise, is not expressly provided in the Act. But in Interpreting the section, the opening words 'Subject to the provisions contained in this Act' should not be ignored. Where there is express provision for any particular matter, the Courts must strictly comply with and give effect to each provision. Section 7 cannot cut down or supply any form of relief not provided by the Act. In Iswarrayya v. Iswarrayya, AIR 1930 Mad 154 it was held that Courts In India cannot grant a decree for jactitation of marriage.

In Wilkinson v. Willdnson, ILR 47 Bom 843 : : AIR1923Bom321 a note of warning is given against the danger of reading Into Section 7 an intention on the part of the Legislature to adopt whatever tests the Court of Divorce in England might from time to tune lay down. If such an Intention were to be adopted, then it would be necessary to omit the words 'subject to the provisions of the Act.' If It had been the intention, it was not difficult for the Legislature to say In express words that the provisions of the Act must be read subject to the rules and principles applied from time to tune by the Matrimonial Courts in England. In AIR 1930 Mad 154, already referred to, the expression 'principles and rules' occurring in Section 7 was construed and it was laid down that the principles and rules to be applied must be subject to the provisions of the Act and must not be allowed to run counter to the Act. It is pointed out that those words mean principles and rules.

(i) of evidence;

(ii) of law;

(iii) of interpretation of practice; and (iv) of procedure.

4. Up to January 1, 1938, the ground for judicial dissolution of marriage in England were adultery or certain unnatural practices. By the Matrimonial Causes Act, 1937, and the Matrimonial Causes Act, 1950 several new grounds for divorce were added so as to enable the husband as well as the wife to sue for divorce. But the Indian Legislature, though it has amended the Act in question several times, has not thought it necessary to make suitable amendments in the Act to give effect to the modification made in English Law. In these circumstances, I am of the view that the words 'subject to the provisions contained in this Act' occurring in Section 7 cannot be ignored and we cannot adopt all the provisions that have been made in English Matrimonial Causes Act, from time to time, while applying the provisions of the Act, thereby enabling the husband or wife to ask for divorce on a ground not provided for in Section 10. For the foregoing reasons, I am of the opinion that this petition for divorce on the ground that the respondent is not heard of for more than seven years and should be presumed to be dead, is not maintainable.

5. The position is no doubt anomalous. Whereas persons seeking relief under the Special Marriage Act, 1954 or the Hindu Marriage Act, 1955, have among other grounds the right to ask for divorce on the ground that the other party to the marriage is not heard of for seven years or more, and should be presumed to be dead, persons seeking divorce under the Act in question are not entitled to urge that ground for no obvious reason. It is for the Legislature to consider whether the Act should not be suitably amended so that the law may be uniform.

6. The petitioner is given leave to amend the petition suitably for such relief as he may be advised to ask.


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