Charles Arnold White, Kt., C.J.
1. In this case the petitioner (the husband) obtained in the District Court a decree against the respondent for dissolution of marriage under Section 14 of the Indian Divorce Act and for damages and costs against the co-respondent. On the decree coining before this Court for confirmation under Section 17 of the Act he asked that the petition might be withdrawn and the decree of the District Court rescinded. Affidavits were put in by the petitioner and the respondent in which they stated that since the decree they had become reconciled and were living together as husband and wife. The question is can we do anything more than refuse to confirm the decree or ca n we rescind it?
2. The question now raised before us came before the Allahabad High Court in Culley v. Culley I. L. R. (1888) All. 559. In that case, on the decree coming before the High Court for confirmation, the petitioner and the respondent put in a petition expressing their intention of living together as man and wife and asked that the decree should not be confirmed. (In the case before us the parties say they have actually resumed conjugal relations). The question whether the court would have jurisdiction to dismiss the petition or to rescind the decree does not seem to have been considered by the learned Chief Justice and the order made was that the court did not make absolute the decree of the District Judge. This was in accordance with the decision in Lewis v. Lewis (1860) 30 L.J.P.& M. 199 where the judge ordinarily doubted whether he had power to dismiss a petition for dissolution after a decree nisi except at the instance of the Queen's Proctor or a third person.
3. As regards the status of the parties, an order like the order in Culley v. Culley I. L. R. (1888) All. 559 would have the same effect as an order dismissing the petition or rescinding the decree since they would remain husband and wife. But an order which leaves a decree for dissolution outstanding in the case of parties who do not desire that the marriage should be dissolved, does not seem a convenient or desirable way of disposing of the case if we have jurisdiction to make an order which would get rid of the decree.
4. In Troward v. Troward (1883) 32 W.R. 864 Butt J., on the application by the petitioner, rescinded a decree nisi for dissolution when the parties had come together again. On the same facts, a similar order was made by Sir Francis Jeune in Flower v. Flower (1893) P. 290.
5. In accordance with the more recent English practice, I think it is clear that when the decree nisi is made by the High Court under Section 16, this Court would have power to rescind the decree on the ground that the petitioner and the respondent had come together since the making of the decree nisi. The question is, is there similar power when the decree is under Section 17?
6. It is, no doubt, not strictly accurate to speak of a decree under Section 17 as a decree nisi. Section 16 provides that the decree of the High Court 'shall in the first instance be a decree nisi.' Section 18 speaks of a decree for dissolution of marriage. Under Section 16, the decree is made absolute by the same tribunal which pronounced the decree nisi. Under Section 17, the decree is confirmed by the tribunal which is the appellate tribunal for the purposes of the Divorce Act, though by Section 55 there is no appeal from a decree of a District Judge for dissolution of marriage. Section 16 empowers the High Court, on the application of any person, to reverse a decree nisi on the ground hat it has been obtained by collusion or that material facts have not been brought before the court.
7. There is no express power given to the High Court by Section 17 to reverse or rescind a decree. The power of removal given to the High Court is a power to remove before the decree has been pronounced. Under Section 16 the right to intervene is during the progress of the suit in the court of the District Judge. The reason for this distinction is not clear. Under Section 16, if the parties fail within a reasonable time to move to have the decree nisi made absolute the High Court may dismiss the suit. There is no similar provision in Section 17 and the practice of this Court is to deal with cases for confirmation under Section 17 without an application by the petitioner.
8. But I do not find anything in the Divorce Act which requires us to draw a distinction between the two sections with reference to the power of the court to rescind the decree made in the first instance when the parties have resumed the relations of husband and wife since the decree was passed and before it has been confirmed or made absolute.
9. It is difficult on principle to see why the wide discretion o make 'such other order as to the court seems fit,' given to the High Court when the court has directed further enquiry to be made or additional evidence to be taken under Section 17, should not be exercisable in cases where the court did not consider further enquiry or additional evidence necessary.
10. As regards Section 45 of the Divorce Act, I should be inclined to hold that that section only applied to matters of procedure, and the question before us being one of jurisdiction, that section cannot be relied on for the purpose of praying in aid the provisions of the Civil Procedure Code of 1908.
11. In the present case, I think we have power to make an order dismissing the petition and setting aside the decree, and I think that is the order we ought to make.
Krishnaswami Aiyar, J.
12. I concur with the learned Chief Justice in the conclusion arrived at by him. The District Court has pronounced a decree dissolving the marriage under Section 14 of the Divorce Act. The case has come up before us under Section 17 of the Act. The husband who was the petitioner has got reconciled to the wife and taken her back. He does not want to proceed with the petition for divorce. Notwithstanding the doubt expressed in Lewis v. Lewis (1860) 30 L.J.P. & M. 199, it would now be perfectly competent to withdraw the petition under English Law, See Troward v. Troward (1883) 32 W.R. 864; Flower v. Flower (1893) P. 290 Ousey v. Osey (1875) I.P.D. 56. On such withdrawal the court would set aside the decree nisi. I take it to be clear that if the proceedings had been instituted on the Original Side of the High Court, the court under the like circumstances would make the same order. Section 7 of the Act which requires High Courts and District Courts to act and give relief on principles as nearly as may be conformable to the principles and rules of the Divorce Act in England would enable a withdrawal after a decree nisi of the High Court and the setting aside of such decree.
13. The only question is, whether it makes any difference that the decree in this case has been passed by the District Court and the case has come to the High Court for confirmation. I think it does not. Section 45 of the Act says that subject to the provisions therein contained all proceedings tinder the Act shall be regulated by the Code of Civil Procedure. The competency of a plaintiff to withdraw his suit at any stage is affirmed by Order XXIII, Rule I, of the Code of Civil Procedure. It would seem to follow that the pendency of the matter in the High Court for confirmation is no ground for refusing to permit the withdrawal. When the withdrawal of a suit or petition is allowed by the appellate court, the court has power to set aside the original decree an 1 is indeed bound to do so. Section 17 of the Act empowers the High Court to confirm the decree for dissolution of marriage or to make such order as to the court seems fit after such further enquiry as it may have chosen to direct. I do not think that the power to make such other order as the court thinks fit is limited to cases where further enquiry has been ordered, notwithstanding the use of the word 'thereupon' after 'the enquiry in case au enquiry has been ordered.' The court having the power to make such other order as it thinks tit and being bound to act as nearly as may be in conformity with the rules and principles of the Divorce Court, the proper order that we should make is to set aside the decree of the District Court and permit the withdrawal of the petition for divorce.
14. I concur in the order proposed by the learned Chief Justice.