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George Swamidoss Joseph Vs. Miss Harriett Sundari Edward - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberOriginal Matrimonial Suit No. 15 of 1953
Judge
Reported inAIR1955Mad341
ActsDivorce Act, 1869 - Sections 7, 16 and 19; Code of Civil Procedure (CPC)
AppellantGeorge Swamidoss Joseph
RespondentMiss Harriett Sundari Edward
Appellant AdvocateAlwares, Adv. for ;Pais, Adv. and ;Lobo and Alwares
Respondent AdvocateV. Thyagarajan, Adv. and ;N.T. Raghunathan, Amicus Curiae
Cases ReferredB. Iswarayya v. Swarnam Iswarayya
Excerpt:
.....act and code of civil procedure, 1908 - decree for nullity in 'nisi' form - section 7 requires high courts and district courts in india subject to provisions of divorce act to act and give relief on principles and rules followed by courts in england provided it is not in contravention with indian laws - no specific prohibition in divorce act against decree for nullity in 'nisi' - held, decree for nullity made absolute. - - we would like, however, to say as briefly as possible why we are in complete agreement with the view they have taken. quite apart from the requirements of strict legal construction, it may be noted that the reason of expediency, which suggest that such confirmation should not be made in the case of' decrees for the dissolution of marriages till after six..........is subject to a limitation. it lays down'subject to the provisions contained in the act, the high courts 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 court for divorce and matrimonial causes in england for the time being acts and gives relief.'3. the result is that if the act is silent on a particular topic or subject then the courts in india even now shall give relief on principles and rules prevalent in england 'for the time being. it is urged before us that the indian courts will have to follow, in the absence of specific prohibition to the contrary, the various alterations and changes that might be.....
Judgment:

Govinda Menon, J.

1. I have had the advantage of reading the judgment which my learned brother Mack J. is about to deliver and since it has my entire concurrence, I do not propose to discuss matters dealt with by him in detail. My learned brother has dealt with a topic which occurred to us during the course of the arguments before us as not having been the subject of consideration in any of the previous decisions, namely, the practical difficulty that might arise, in a case a decree absolute is passed in the first instance, in a suit for nullity of marriage and one of the parties immediately contracts a second marriage' which might become illegal if the decree absolute is set aside in appeal.

2. I am in entire agreement with the view expressed by my learned brother; it has to be considered whether Section 7, Indian Divorce Act, having been preserved by the Adaptation of Laws Order, 1950, it cannot be followed by the Indian Courts after the declaration of the country as a Republic, for the reason that it is not proper for a free country in its administration of justice to have a statute laying down that the laws and regulations of another country should be followed in toto. The section is subject to a limitation. It lays down

'Subject to the provisions contained in the Act, the High Courts 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 Court for Divorce and Matrimonial causes in England for the time being acts and gives relief.'

3. The result is that if the Act is silent on a particular topic or subject then the Courts in India even now shall give relief on principles and rules prevalent in England 'for the time being. It is urged before us that the Indian Courts will have to follow, in the absence of specific prohibition to the contrary, the various alterations and changes that might be introduced in the divorce laws of England from time to time and that such a state of things' would not be in consonance with the prestige and dignity of a free country. The point of view can be answered with reference to the Constitution itself; for Sub-clause (3) of Art. 105 lays down that except in certain respects

the powers, privileges and immunities of each houes of .Parliament and of the members and the committee of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution.'

From this it is clear that even as regards parliamentary procedure and, powers and privileges of the House of Parliament and of the members and the committees of each House, we have adopted what was 'obtaining in the House of Commons of the United Kingdom at the time of the commencement of the Constitution. There is, no doubt, a difference so far as Section 7, Indian Divorce Act, is concerned in that the words 'for the time being' occurs- in that section. Stone and Mockett JJ. in -- 'Summathi Amrnal v. D. Paul : AIR1936Mad324 have interpreted these words as referring to the changes that may be made in the principles and laws governing divorces and matrimonial practices in' England from time to time and that the Indian Courts should follow such changes. There ' is no doubt an anomaly in that the Indian Courts have to keep pace with the practice in England and to uote changes that are made in the principles and rules of the English divorce laws from time to time. But after all the Indian Divorce Act is founded mainly, if not solely, upon the English 'Act and one does not feel that it is incongruous to keep pace with the' changes that are made from time to time in the parent law.

4. I agree with my learned brother, Mack J. in his conclusions. MACK J.:

5. The- following questions have' been referred to us for determination on a reference made by one of us, Ramaswami J. sitting -on the original side:

1. Whether the - decision' of the Full Bench in : AIR1936Mad324 laying down that the proper form of a decree to be passed in the first instance in a suit for a declaration of nullity of marriage is that of a decree 'nisi' and not a decree absolute requires reconsideration in the light of changed circumstances; and

2. Whether the, general order made in England, namely, Matrimonial Causes (Decree Absolute) Order, 1946, reducing the period of delay from six months to six weeks applies to decrees passed in the case of declaration for nullity of marriages by the High Court on the original side under the provisions of Section 7, Indian Divorce Act?

6. In : AIR1936Mad324 , Stone and Mocltett JJ. held, Wadsworth J. dissenting, that the decree that should be passed by the High Court in its Original Matrimonial jurisdiction in a petition for nullity of marriage should in the first instance be a decree 'nisi' and not a decree absolute. That was the practice on the original side of our High Court until Panchapakesa Aiyar J. deviated from it last year in -- 'Coral Indira Gonsalves v. Joseph P. Iswariah', : AIR1953Mad858 (B) and following a Calcutta decision placed before him, -- 'Grace Isabel Stuedman v. A. E. B. de Courey Wheeler : AIR1945Cal75 , passed straightway an absolute decree for nullity. The Full Benchin : AIR1936Mad324 which till thengoverned the practice, on the original side of thisCourt, does' riot appear to have been placed beforethe learned Judge, as it should have been by thelearned advocates, on the original side who appearedin that case.

7. There has been much difference of opinion on this matter, It would appear that the High. Courts of Calcutta, Bombay, Allahabad, and Lahore have, as the position stands today, taken the view that a decree for nullity need not be in decree 'nisi' form and in fact that an absolute decree should be granted straightway.- We do not propose to go too elaborately into the conflicting case law and the various view points expressed, as we find ourselves in agreement on this point with the view expressed by Stone and Mockett JJ. in : AIR1936Mad324 , which decided the question referred to them in view of a divergent practice in this matter of other High Courts. We. do not therefore propose to repeat here the reasoning given . by the learned Judges of the Bench, with whom we find ourselves in agreement. We would like, however, to say as briefly as possible why we are in complete agreement with the view they have taken.

8. Since that decision in 1935, the Calcutta High Court, it would appear, took the same view as : AIR1936Mad324 in -- Taylor v. Wenkcnbach', ILR 19374 Cal 417 (D), a decision by Costello J. Das J. as he then was, however in : AIR1945Cal75 , the decision on which Panchapakesa Aiyar J. relied, in, if we may say with great respect, a very comprehensive judgment, took the view taken by Wadsworth J. 'and held that a decree in a case of nullity should be in absolute form. Das J. observing that he would be slow to upset a practice which had prevailed in the Calcutta High Court for a number of years . unless he was compelled to do so, on a very careful consideration of the relevant ' provisions of the statute applicable to the case and judicial decisions thereon, came to this conclusion. We have been taken through his judgment, but with respect are unable to agree with his dissent from the view of Stone and Mockett JJ. in : AIR1936Mad324 .

9. In Bombay an absolute decree for nullity passed straightway by the High Court appears to have been the practice of that Court at any rate, since 1898, judged from the Full Bench decision in -- 'A v. B', 23 Bom 460 (E), which took the view that a decree for nullity of the marriage made by a District Court cannot be confirmed by the High Court before the expiration of six months from the pronouncing thereof. That decision differentiated on grounds, which with respect are not apparent to us, between decrees for nullity passed by a High Court and those passed by a District Court the former being made absolute at once but the latter having to be confirmed by the High Court after a lapse of six months. There are, however, pertinent observations by Ranade J. in his .separate judgment, which appears to us to support the same kind of decree in both cases of dissolution and nullity, when at p. 463 he said this:

'Quite apart from the requirements of strict legal construction, it may be noted that the reason of expediency, which suggest that such confirmation should not be made in the case of' decrees for the dissolution of marriages till after six months have expired, hold equally good in the case of nullity decrees.........There is equal room for collusion in both cases. The same safeguards are, therefore needed in the one case as in the other.'

These observations, as it appears to us, give strongsupport to the Full Bench decision in AIR 1936Mad 324. (A).

10. In -- 'Edward Caston v. L. H. Caston', 22 All 270 (F), a Full Bench of the Allahabad High Court held that a decree 'for nullity made by a District Judge may be confirmed before the expiration of six months from the pronouncing thereof and dissented from the Bombay decision 23 Bom 460 (E) on this point. In -- 'Snow v. Snow', ILR (1949) All 1 (G) Mootham J. merely cited some decisions of the .Allahabad High Court to support an absolute decree straightway in a case of nullity.

11. In the' old Lahore High Court, Bhide and Tapp JJ. in -- J. G. Wilson v. Wilson', AIR 1931 Lah 245 (H), a case of nullity, granted an absolute decree straightway on an appeal from a District Judge.

12. We have indicated a sufficient amount of case law showing a divergence of opinion from the view taken in : AIR1936Mad324 and the established practice here until it was deviated from in : AIR1953Mad858 (B), with judicial, opinion .veering in favour of a decree for nullity being passed straightway. At the time the Indian Divorce Act was enacted in 1869, it followed the lines of the existing English Divorce Act. In fact it would appear that in England decrees for nullity were passed in absolute form straightway until the Matrimonial Causes Acb of 1873, obviously intended to rectify a defect on some abuse coming to notice, required a decree of nullity in England also to be in decree 'nisi' form, on the same footing as a decree 'nisi' for dissolution..

There has been no corresponding statutory amendment to the Indian Divorce Act, which, however, under Section 7, requires High Courts and District Courts, subject to the provisions of the Indian Divorce Act, to act and give relief on principles and rules which in their opinion are as nearly as may be conformable to the principles and rules on which the Courts for Divorce and Matrimonial Causes in England for the time being act and give relief. Stone and Mockett JJ. in : AIR1936Mad324 , took the view that the courts in India were under Section 7 bound to follow any change in principle or rules on which the Court for Divorce and Matrimonial Causes in England' for the time being acted and gave relief, provided that it involved ho contravention of any specific provision of the Indian Divorce Act. There is no specific prohibition against a decree for nullity being in 'nisi' form.

It does not appear to us to make any difference whether the modification in rules and principles contemplated in Section 7 of the Indian Divorce Act is effected in England either by judicial decision or by statute or by the evolution of administrative practice and procedure or by rules or orders made such as those referred to, for instance, in Section 16, Indian Divorce Act. As it appears to us, the only --criterion is whether such a change in rule or principle contravenes 'specifically a provision of the Indian Divorce Act or any provision of the Code of Civil Procedure made applicable under Section 45 subject to the provisions of the Act. If it does, the Courts of India cannot apply it. If it does not, as we understand Section 7, which was a legislative provision to make the practice on the matrimonial side obtaining, in India, so far as possible, in con-temp oraneo us accord with that prevailing in England, the change in rule or principle has to be applied by the Indian Courts.

Section 7 of the Act has been preserved by the. Adaptation of Laws Order of 1950 and is still valid law. There is no suggestion that it is in any way 'ultra vires' of the Constitution. Although Section 7 requires in the domain of divorce changing English rules and principles within the scope of the Indian Divorce Act to be adopted by the Indian Courts, we can see nothing in the altered position of India after the attainment of Independence which renders that mandatory obligation imposed on Courts inoperative, although they do of course require satisfactory evidence placed before them of altered rules and principles which govern the practice of a Court of matrimonial Causes in England.

13. There is much to be said for the view taken by Wads worth J. which was followed by Das J. if the Act is approached from the standpoint of strict legal construction without the liberal construction which we think should he given to Section 7 of the Act. Otherwise the whole intention underlying that section would be .frustrated and Indian Divorce Law would be confined rigidly to the statutory position Said down by the Act in 1869, which the legislature specifically intended should not be the case. It may be that because of the existence of Section 7 and the power given to Indian Courts to apply changing principles and rules on which the Court for Divorce and Matrimonial Causes acts in England and gives relief, no statutory amendments to the Indian Divorce Act of 1869 were considered necessary to incorporate one of the changes in the Matrimonial Causes Act of 1873 that a decree nullity should in the first instance be' in decree 'nisi' form.

If the Indian Divorce Act is critically scrutinised, it does reveal differential treatment to be accorded to decrees of dissolution of marriage and decrees for nullity, which arc provided for in two separate parts. In the Indian Divorce (Amendment) Act, 15 of 1927, by which Section 17-A of the Divorce Act was enacted, statutory provision was made for a High Court established by letters Patent to appoint an officer to perform the functions exercisable by the King's Proctor, with power to- show cause why a decree for dissolution of marriage should not be made absolute.

It is extremely difficult to say why decrees for nullity were left out of Section 17-A, as collusion or connivance between parties under Section 47 of the Act is made equally applicable to petitions for a decree of dissolution of marriage or of nullity of marriage or judicial separation, which shall each state that there is no collusion or connivance. Furthermore, the remarriage Section 57 of the Act only provides for remarriage in the event of a decree for dissolution of marriage and not specifically for a decree for nullity. The section requires a period of six months after the date of the High Court confirming a decree for dissolution of marriage made, by a District Court or after the date of any decree of a High Court dissolving a marriage and no appeal has been filed.

14. None of the decisions which have laid down that a decree for nullity passed by a High Court should be straightway passed in absolute form has, with respect, considered the question from the standpoint of remarriage. There is nothing in the Indian Divorce Act to prevent a party remarrying on an absolute decree for nullity of the marriage being passed. English law and practice today allows either party to the marriage to remarry after a decree absolute either of nullity or of divorce (See Philip's Divorce Practice, 4th Edn., at page 204). The right of remarriage after decree absolute of dissolution of marriage was conferred by Section 13 of the Matrimonial Causes Act, 1950. A more serious practical objection to an absolute decree for nullity being passed straightway, particularly in a contested suit with the possibility of an appeal, is that the party succeeding in getting such a decree may proceed to marry straightway, a course which it would appear is legally open to him, unless the other side immediately restrains him by an injunction from the appellate Court, a step which might be too late.

In : AIR1945Cal75 , the opinion was expressed that a plain, simple absolute decree for nullity should be passed under the Indian Divorce Act as in a suit for declaration of nullity of marriage between non-Christian persons under Section 42, Specific Belief Act. That position has, with respect, now been altered in this stage by the passing of the Madras Hindu Bigamy Prevention and Divorce Act of 1949, Section 5 of which places both categories of cases, whether of dissolution or nullity on grounds of impotence under the Indian Divorce Act, .on precisely the same footing and requires a final decree to be passed with, however, a remarriage provision forbidding' in both these categories of cases either party to marry till after the expiry of six months, and the time fixed for an appeal or the determination of the appeal. A decree for nullity by a single Judge of the High Court is able to appeal within, twenty days. Without any specific prohibition in the Indian Divorce Act on a party to a nullity decree remarrying, we think that an overwhelming case is made out on grounds of expediency and public morality for a decree for nullity also being passed first in decree 'nisi' form.

15. The view taken by Stone and Mockett JJ. in : AIR1936Mad324 derives considerable support from the Privy Council decision in -- 'B. Iswarayya v. Swarnam Iswarayya . In that case a District Judge acting under Section 7, Indian Divorce Act, increased alimony to the wife after a decree for judicial separation was passed, taking the principles and rules of the English Courts as a guide. The Madras High Court (Phillips and Reilly JJ.) held that on a true construction of Section 37, Indian Divorce Act, the Indian Courts had power to do this within the ambit of the section. The Privy Council upheld the view taken by the High Court; but they also considered Section 7 of the Act and we cannot do better than endorse the interpretation of Section 7 read with Section 45, Indian Divorce1 Act given by Manchanda in bis Law and Practice of Divorce at page 39 in the light of and : AIR1936Mad324 , that where there are specific provisions in the Act or in the Civil Procedure Code, the Courts have no authority to enlarge or to cut down their scope by application of the rules and principles of the English Divorce Courts. The Courts can neither cut down the provisions of the Act nor can they supply any form of relief not provided by the Act. Subject to this, the Courts may act and grant relief on principles and rules prevailing in the Divorce Courts in England.

16. The present English law and practice of Divorce is summed up in Fhillip's Divorce Practice, 4th Edn. at p. 202 as follows:

'By Section 12(1), Matrimonial Causes Act, 1950, every decree of divorce or of nullity of marriage must in the first instance be a decree 'nisi', which cannot be made absolute until after the expiration of six months from the pronouncement thereof unless the Court, by general or special order, from time .to time fixes a shorter time. By the Matrimonial Causes (Decree Absolute) General Order, 1946, the period between decree 'nisi' and decree absolute was reduced from six months to six weeks. There is however, no limit to the extent to which the Court may abridge the-period and, in a proper case, application may be made to reduce the period of six weeks. It is possible for a Judge at the trial or hearing of a petition for dissolution or nullity of marriage to order that the period between decree 'nisi' and decree absolute be shortened. Such orders are rarely made and should be asked for only in exceptional circumstances.'

The extent, therefore, to which' the law and practice of divorce- under the Indian Divorce Act can be brought into harmony with English Divorce law and practice is what we have to decide. There is no prohibition in the Divorce Act or in the Civil Procedure Code against a decree for nullity being passed in 'nisi' form. Nor is there any section in the statute which requires an absolute nullity decree being passed straightway. The statute being silent on this point, we have neither hesitation nor difficulty in holding that the English law and practice can and must be applied under Section 7 of the Act. On the first point referred to us, we hold, therefore, that the Full Bench decision in AIR 1936 Mad 324 (A) requires no reconsideration in the light of any changed circumstances, that it lays down good law which must be followed by the Original Side of this Court.

17. The second point' referred to us for determination viz., whether if the decree were to be in 'nisi' form, the period should be reduced from six months to six weeks in conformity with present English practice,, is a matter not entirely free from difficulty. My learned brother, Ramaswami J. in his reference has mentioned a decision of mine in O. M. Section No. 19 of 1949 (Mad) (J), an unreported decision, in which after granting a decree 'nisi' tot nullity on 13-2-1951, I made it absolute on 24-4-1951 - after a period of rather more than two months. I may say that I there acted under Section 7 of the Act on the legal basis which has now the full concurrence of my learned brothers, and which after reviewing all the authorities placed before us, I am also now quite satisfied is correct. In the case of decrees for dissolution of marriage under Section 16 of the Act, as differentiated in the Act from decrees fqr nullity, the decree in the first instance shall be a decree 'nisi'

'not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time directs'.

This is a statutory enactment containing a mandatory provision that the interval between the decree 'nisi' and the absolute decree in a case of dissolution of marriage shall not be less than six months. Section 12(1), Matrimonial Causes Act, 1950, which empowers a Court by general or special order to fix a shorter time clearly appears to contravene specifically Section 16, Indian Divorce Act, and so does the Matrimonial Causes (Decree Absolute) General Order, 1946, reducing the period from six months to six weeks. These impediments which come in the way of adopting English present law and practice to dissolutions of marriages which come within the scope of Part III of the Indian Divorce Act do riot exist so far as decrees for nullity are concerned, which are governed by Part IV of the Act.

We would answer the question referred to us by saying that so far as decrees for nullity are concerned, the Indian Courts must follow the law and practice in England as regards nullity decrees, which should be in. decree 'nisi' form, but the period for making the decree absolute should be six months. We think that Section 12(1), Matrimonial Causes Act and the Matrimonial Causes (Decree Absolute) General Order, 1946, which reduces the period both in cases of dissolution and nullity from six months to six weeks is in contravention of Section 16, Indian Divorce Act. This however constitutes no obstacle to the Indian Courts making a decree 'nisi' for nullity absolute within that period in exceptional cases, or even to their indicating at the time the decree 'nisi' is passed, if the Court is satisfied that there is no possibility of appeal and exceptional reasons exist, within what period the decree 'nisi; shall be made absolute. These answers will bring the law and practice under the Indian Act in the domain of decrees for nullity, without contravening specifically a single one of its provisions, in accordance with the principles and rules on which the Court for Divorce and Matrimonial Causes in England now acts and gives relief.

18. We would like to express in conclusion our great appreciation of the valuable assistance Sri V. Thiagarajan has given as 'amicus curiae' in this matter and the authorities and arguments he has placed before us in so lucid and concise a manner with his usual ability. We also appreciate the assistance rendered by Sri N. T. Raghunathan, who appeared as Mr. Thiagarajan's junior.

19. In the exceptional circumstances set out inthe application for divorce, the period is reducedto the period of six weeks which has already expired. The decree nullity is made absolute.


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