T.m. Bashiam v. M. Victor

M. Anantanarayanan, CJ.

1. This is a reference by the learned District Judge of South Arcot at Cuddalore, under Sections 10 and 17 of the Indian Divorce Act (4 of 1869), for making absolute the decree nisi granted by him dissolving the marriage between the petitioner and the respondent. As the entire reference involves an issue of law with regard to jurisdiction, and, further, an issue concerning which we are unable to see any room for doubt or difficulty, it is not necessary to canvass the merits, except to the strict extent required for the disposal of this reference.

2. It is admitted that in certain earlier proceedings between the parties, which are among the typed papers as O. P. No. 240 of 1962, a decree was granted in favour of the petitioner (the wife) for judicial separation from the respondent (the husband) under Section 22 of the Indian Divorce Act. The petitioner alleges that though four years have passed since that decree, there has been no resumption of matrimonial living between the parties. In brief she now desires that she should be granted a decree nisi for dissolution of the marriage, merely because of the lapse of an interval of four years after the decree for judicial separation under Section 22.

3. It is sufficient to point out that this is plainly opposed to the scheme and the provisions of the Indian Divorce Act (4 of 1869 ). Though one may doubt the wisdom of the legislative provisions of this Act, in the light of more progressive marriage laws that have since been enacted with regard to other communities, as far as the parties governed by this Act are concerned, the decree for judicial separation does not ripen into a decree for dissolution of the marriage, because of the lapse of any interval of time. On the contrary, a wife under this Act, can obtain a decree for dissolution of the marriage under Section 10 only on the grounds exhibited under that section. If she alleges adultery against the husband, it will either have to be adultery coupled with cruelty as defined in the relevant clause, or adultery coupled with desertion for two years or upwards.

4. The learned Judge (District Judge) was perfectly aware of the limited nature of the reliefs that could be granted, under the provisions of the Indian Divorce Act. But it appeared to him that, under Section 7 of that Act, it would be competent for him to invoke the clauses of Section 7 (1) to (3) of the Matrimonial Causes Act, 1950, of the United Kingdom. Under those provisions, a party may be entitled to the relief of divorce, if, for three years after the decree for judicial separation, there had been no resumption of cohabitation between the wife and the husband. The learned Judge invoked those provisions, and granted a decree nisi, subject to our confirmation.

5. It is sufficient to be very brief, to demonstrate that the learned Judge has fallen into a palpable error, in the course that he pursued Section 7 of the Act 4 of 1869 makes it clear beyond doubt (1) that the section itself is subject to the provisions contained in this Act; and (2) that what the section enjoins is that the High Courts and District Courts should 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. Apart from every other difficulty, there is the insuperable difficulty, that, under the provisions of the Act (4 of 1869), a decree for judicial separation cannot ripen into a decree for divorce, by mere lapse of time. That is opposed to the scheme and the provisions of the Act. For reasons best known to the Legislature, and into which we need not proceed here, the legislature has limited the remedy of the wife to obtain divorce, to the situation and the causes set forth in the latter part of Section 10 of the Act. The fact that there was an earlier decree for judicial separation, and that the parties did not resume cohabitation of matrimonial living, is not a ground which this Act recognizes as one entitling the wife to divorce. Upon the wording of the first contingent clause of Section 7 itself, that the principles of the section must be applied only subject to the provisions of the Act, the course adopted by the learned District Judge cannot be supported and must be set aside. Even apart from this, when the Legislature enacted that relief has to be given on principles and rules, as nearly as may be conformable to those on which English Courts give that relief in such cases, it is clear enough that this does not imply that a statutory remedy per se, unknown to this Act, can be thereby introduced into the Act, as a new right or obligation between the spouses. For instance, we have recently had occasion to scrutinize the English decisions upon several aspects of the law arising from the Indian Divorce Act, such as what kind of evidence would be reasonable proof of the act of adultery, what might reasonably amount to cruelty as defined under the law, and, under Section 14. what kind of conduct on the part of the husband, might amount to condonation of the offence of adultery by the wife. In all such matters, and in matters of the processual application of the provisions, certainly, cases in the English divorce courts can be referred to and applied under Section 7. It is noteworthy that, in G. S. Joseph V. Miss H. S. Edward, (FB)the one relevant decision on this aspect cited by learned counsel for the petitioner what was held was that Section 7 of the Indian Divorce Act had been preserved by the Adaptation of Laws Order of 1950, and hence that the English law and practice could be applied, and should be applied in regard to decrees for nullity. The matter related to the period that should ensue between the decree nisi and the decree absolute, and it was held that the English practice could be validly adopted in this respect. The decision is no authority for the view that some statutory right, unknown to the personal law of the parties as embodied in this Act, could be introduced by virtue of Section 7; to do so would be contravening the provisions of act 4 of 1869, and that would be opposed to Section 7 itself.

6. Apart from this, we may also point out that, as held by their Lordships in Shamarao v. Union Territory of Pondicherry, after the constitution came into force, the legislature cannot abdicate its functions by passing any Act to the effect that the future amendments to a foreign Act would continue to apply to the territory of that legislature. The matter related to the pondicherry General Sales Tax Act (10 of 1965), which extended the Madras general Sales Tax Act (1 of 1959) not only as it stood on the date of enactment of the former measure, but inclusive of the subsequent modifications and amendments as well. Since, admittedly, the Matrimonial Causes Act has been subsequently amended, in several respects, it cannot be contended that those future amendments must also be accepted as applicable to India by virtue of section 7. In our view, Section 7 does not incorporate the statutes, of some other country as part of the law of this land; it merely makes a provision for conforming to the practice and principles of the matrimonial Courts in England in the matter of divorce or Dissolution of marriage subject to the provisions and the scheme of the Indian Divorce Act. The decree nisi granted by the learned District Judge is, therefore, lacking in jurisdiction and will necessarily have to be set aside.

7. In this context, learned counsel for the petitioner (the wife) has raised an argument that Section 17 itself may be taken as violating Article 14 of the constitution, because it provides for the reference to this Court to be heard by a bench of three Judges of this Court, for confirmation of a decree nisi for dissolution of marriage granted by any District Court whereas, with regard to such cases arising under the original civil jurisdiction of this Court, this Court itself exercises that jurisdiction as the High Court, and the proceeding is a petition before a learned Single Judge of this Court on the Original Side. The argument appears to be wholly lacking invalidity. Firstly, it is not an unreasonable differentiation; nor one unrelated to a very clear principle of distinction, that the jurisdiction of a superior tribunal attracts cases arising within its territory, while inferior tribunals have to deal with cases in their similar jurisdictions. If such a principle or scheme were to be held as offending Article 14, the entire hierarchy of Courts, and the different provisions for the institution and disposal of civil matters in these Courts will have to be abolished. Further, we may point out that under Section 8 of the same Act, the High Court has the power to remove any cause from the Court of any District Judge, to itself. If a particular petitioner requires a trial on the original side of this Court, that petitioner has a mode of approach to this Court for redress by invoking this provision, of course, in a suitable case. Again, even a decree for dissolution granted by a learned single Judge of this Court is admittedly a decree nisi, and may be sub-icct to a Letters Patent Appeal under Sec-ion 15 of the Letters Patent. We are unable to see any principle of discrimination whatever in Section 17 of the act, and we may finally observe that, even if such an argument has to be accepted for the sake of hypothesis, it would still involve an adverse result to the petitioner, because the reference itself will have to be quashed, as well as the decree nisi of the learned District Judge.

8. Before parting with the case, we may observe that the provisions of Act 4 of 1869 appear to be highly antiquated, and that they have not kept pace with the provisions of similar enactments relating to marriage in other communities, which are of a far more progressive character. This anomaly was noted by Alagiriswami j. in S. D. Selvaraj v. Mary, 1968-1 Mad LJ 289 at p. 294 and he contrasted this act with the English Matrimonial Causes Act which amended the earlier laws in england, and "put the husband and wife on equal footing". The learned Judge also pointed out that the law under the Hindu Marriage Act is more progressive, as well as the Parsi Marriage Act, and that this enactment alone, applying, as it does to the Indian Christians, remains at the same primitive stage. In scrutinizing the provisions of the English Matrimonial Causes Act, 1950, we find under Section 1 (1) (b), if one of the spouses has deserted the other without cause for a period of at least three years immediately preceding the presentation of the petition, that itself is a ground recognized by the law for divorce. As Alagiriswami, J. points out, the Hindu Marriage Act has been equally progressive, and the Parsi Marriage Act was amended in 1936, to bring it in conformity with these progressive enactments. It is only under this Act (4 of 1869) that the law remains where it was, when this enactment was born, so that parties governed by this law are under the grave disadvantage that, even if a husband deserts his wife for a considerable period, that will be no ground for divorce; in our view, it is a genuine hardship, and there is urgent need for re-examination of the provisions of Act 4 of 1869, as the Act governs a large body of persons in this country to see that its provisions are rendered humane and up-to-date. Hence, with respect, we entirely concur in the observations of Alagiriswami, J. , in the decision referred to. But the Courts have to administer the law as it stands, and as the law is today, there can be no decree nisi in this case in favour of the wife.

9. The decree is accordingly set aside. There will be no order as to costs.