Full Judgment
R. Rajendra Babu, J.
1. The important question for consideration is whether a joint petition under Section 10Aof the Divorce Act can be entertained before the High Court in a pending case filedby one of the spouses for dissolution of their marriage.
2. The wife filed O.P. 21040/98 for dissolution of the marriage between thepetitioner and the 1st respondent alleging the grounds of cruelty, desertion and adultery.It was alleged that the marriage between the petitioner and the 1st respondent wassoleminzed on 21.4.1988 at St. George Forane Church, Kaipuzha, Kottayam, as perthe religious rites among Christian community and thereafter they lived in the house ofthe 1st respondent. A child was born on 7.9.91 out of the above wedlock, and the 1strespondent was always cruel towards the petitioner and she was subjected to physicalas well as mental cruelty. Thereafter he deserted the petitioner and the child fromJanuary, 1998 onwards, and the 1st respondent was leading was leading an adulterous life withrespondents 2 and 3 and hence the petitioner sought for a decree for dissolution of themarriage.
3. The 1st respondent filed an objection denying all the allegations raised againsthim, and contended that he was not leading an adulterous life as alleged, but thepetitioner was leading an adulterous life. On the basis of the contentions put forwardby the parties, elaborate evidence had been let in by both sides. On the side thepetitioner PWs. 1 to 4 were examined whereas R.Ws. 1 to 12 were examined on theside of the respondents. Documents were also produced and got marked on bothsides. After the amendment to the Indian Divorce Act which had come into effectw.e.f. 3.10.2001, the petitioner and the 1st respondent filed C.M.P. 53500/2001, a jointpetition under Section 10-A of the Divorce Act for dissolution of the marriage by mutualconsent. Thereafter the petitioner and the 1st respondent were examined and both ofthem had given evidence that they have voluntarily agreed for a dissolution of themarriage as it has become impossible for them to lead a matrimonial life together.
4. Heard the learned counsel for the petitioner and the 1st respondent.
5. The question for consideration is whether this Court (High Court) can pass anorder dissolving the marriage between the petitioner and the 1st respondent on theirmutual consent under Section 10-A of the Divorce act when the statute says that thepetition has to be filed before the District Court. CMP 53500/2001 was filed under Section 10Aof the Divorce Act by mutual consent of both the husband and the wife for dissolutionof the marriage. As per Section 10-A of the Divorce Act, a joint petition by the husbandand the wife for dissolution of the marriage has to be filed before the District Court.Section 10-A does not authorise the filing of a joint petition before the High Court. Thelearned counsel for both sides submitted that such a petition can be filed before theHigh Court, as a matter for dissolution of the marriage was already pending beforethis Court and hence there is no statutory bar for entertaining such a petition. In thiscontext it would be relevant to consider the amendments effected to the Indian DivorceAct. As per Section 10 of the Indian Divorce Act (prior to the amendment), a petition fordissolution of marriage could be filed either before the District Court or before theHigh Court whereas after the amendment to Section 10, a petition for dissolution of marriagecould be filed only before the District Court. The provision for filing a petition beforethe High Court under Section 10 of the Indian Divorce Act had been deleted by theamendment. As per Section 18 of the Indian Divorce Act (prior to the amendment), ahusband or wife was entitled to present a petition before the District Court or beforethe High Court praying for a declaration of the marriage as null and void. But, by theamendment, the jurisdiction of the High Court for entertaining a petition for declaringthe marriage null and void had been taken away and the jurisdiction was limited only tothe District Court. Further, the powers conferred under Section 19 for the High Court topass a decree of nullity of marriage on the ground that the consent of either party wasobtained by force or fraud also has been taken away and the jurisdiction was given tothe District Court. Thus a consideration of the above provisions would make it clearthat the jurisdiction for filing a petition under Section 10 or 18 of the Act before the HighCourt had been taken away and such petitions are to be filed only before the DistrictCourt. Thus, after the present amendment, the High Court is lacking jurisdiction forentertaining petitions under Section 10 as well as 18 of the Divorce Act. It is in this contextwe have to consider the petition under Section 10-A by which the parties were entitled tofile a joint petition for dissolution of the marriage by mutual consent. Thus the statutehad conferred jurisdiction to the District Court for entertaining a joint petitionunder Section 10-A of the Divorce Act for dissolution of marriage on mutual consent.
6. The learned counsel for both the parties submitted that the provision fordissolution of the marriage by mutual consent under Section 10A of the Divorce Act isexactly similar to Section 13B of the Hindu Marriage Act except regarding the period ofliving separately and as such the principle laid down in those cases under Section 13B of theHindu Marriage Act can be safely adopted. Reliance was placed on the decision of aDivision Bench of this Court in Janardhanan v. Syamala Kumari (1990 (1) KLJ 231).That was a case where a joint petition was filed by the parties (spouses) while apetition under Section 13 of the Hindu Marriage Act for dissolution of the marriage waspending before Court. There this Court held:
'Nowhere has it been stated in the Act that a petition filed under Section 13B cannot be presentedin a proceeding initiated under Section 13 of the Act. Nor is it necessary to present the same as anOriginal Petition unconnected with the pending proceedings - what is not provided in law neednot be read into it for the purpose of deciding whether an action is maintainable in law. Noendeavour should be spared to save an action from the attack of maintainability if it is legallypossible. Hence we hold that the joint petition cannot be thrown over board merely because thesame was not filed as an Original Petition, or because it was filed in the same proceedings in whicha decree for divorce is sought for on another ground.'
7. Learned counsel for both sides submitted that O.P. 21040/98 was filed asearly as on 29.10.98 and they were living separate for more than two years andcontesting the petition for divorce for more than two years and there was absolutelyno chance for rapprochement between the parties. As both the spouses were livingseparate for more than two years, the joint petition by the spouses under Section 10-A is incompliance of the statutory requirement. It was further submitted that as there wasno chance of any reunion of the spouses, the court can pass an order dissolving themarriage between the parties without waiting for the statutory period of six months asprovided under Section 10-A. The above provision in Section 10A of the Divorce Act is exactlyidentical with the provision in Section 13-B of the Hindu Marriage Act. This court hasconsistently held that in appropriate cases the parties need not be directed to wait forthe statutory period of six months and without the same a decree can be granteddissolving the marriage on mutual consent. Reliance was placed on the decision ofthis Court in Visalakshi v. Shivaraman Nair (1991 (1) KLT 910). There a DivisionBench of this Court had the occasion to consider whether the parties should be directedto wait for the period of six months as provided under Section 13-B. There it was held:
'The provision has been enacted to water down the rigour of the requirements of theprovisions of the Hindu Marriage Act and to enable spouses to part amicably where the marriagehas broken down and the spouse cannot be reconciled. Break-down of marriage has not beenaccepted as a ground sufficient to pass a decree for divorce before the incorporation of Section 13B.The purpose of the provision is obviously to save the spouses from the ruinous consequencesof marriage which have broken down and cannot be saved. The legislative policy disclosedin the requirement that the court should wait for six months is to give an opportunity to the partiesto see if the marriage can be saved. That is why the legislature prescribed postponement of thepassing of the order on the petition filed under Section 13B of the Act. In case like the present onewhere the parties are before the appellate court after having fought a battle in the trial court andwhere the court is satisfied that the parties had sufficient time to think over their own future andhave come to a definite conclusion that the marital relationship has to be terminated, the courtshould take a liberal view of the procedure requirement and refrain from insisting on the waitingperiod of six months.'
A similar approach was taken by this Court in Manojkumari v. Bhasi (1998 (2)KLT 858) wherein it was held:
'On reading the petition and on hearing the counsel on both sides, we are satisfied thatthe marriage between the parties has irretrievably broken and it is practically and emotionallydead. In such circumstances the life of the spouses shall not be allowed to put in perpetual agonyand despair. When such circumstance is brought to the notice of this Court, it is for it to findout a final solution on principles of justice and equity. Now, the parties are before us after aprolonged litigation mutually agreeing not to live in unison but to separate themselvespermanently. If that be the welfare of the parties, this Court need not stand against it. Theprocedural requirement can be waived in view of the mutual consent recorded in writing. In viewof the observation in Visalakshi's case, supra, we are not insisting for the procedural requirementsin this case. We therefore propose to decide this petition seeking a decree for divorce on mutualconsent by ourselves and not by remitting it to the trial court. We also dispense with the waitingperiod of six months as required for the culmination of the divorce process'.
The same approach was made by this Court in Sreelatha v. Deepthy Kumar (1998 (1)KLT 195). So far as the present case is concerned, the spouses were contesting thematter raising allegations of adultery against each other and trying to establish byexamining several witnesses. The circumstances would establish that the marriagebetween the parties had irretrievably broken and it was practically and emotionallydead. They filed the petition stating that they are not able to live together any moreand were living separate for more than three years. They have further averred in thepetition that all the financial claims had been settled and the custody of the child shallbe with the mother and the father shall have the right of visitation for the time being.It was further prayed in the petition that the statutory period of waiting for six monthsmay be waived. In such circumstances I do not think that any purpose shall beachieved by directing the parties to wait for a period of six months after filing thepetition under Section 10A, and the procedural requirement of waiting for six months can bewaived in the present case.
8. Section 13B of the Hindu Marriage Act stipulate that the joint petition under Section 13Bhas to be filed before the District Court. In the decisions cited supra ie., 1991 (1) KLT910, 1998 (1) KLT 195 and 1998 (2) KLT 858, petitions under Section 13B was filed beforethe High Court wherein the matter was pending in appeal. In all the above cases thepetition under Section 13B was accepted and divorce granted waiving the statutory periodof waiting for six months. Hence I think it proper and just to adopt the same procedureand to accept the joint petition under Section 10-A.
9. The learned counsel for the petitioner submitted that in view of the extraordinaryjurisdiction conferred on the High Court under Section 8 of the Divorce Act, this Court isfully competent to entertain the petition under Section 10-A of the Act as it can be deemedto be a petition filed before the District Court and withdrawn to this Court foradjudication under Section 8 of the Act. Section 8 of the Act says that the High Court may,whenever it thinks fit, remove and try and determine as a court of original jurisdiction,any suit or proceeding instituted under this Act in the court of any District Judgewithin the limits of its jurisdiction under this Act. In view of the above provision theHigh Court can withdraw any petition pending before the District Court and try it anddispose of it exercising its original jurisdiction. As a petition for dissolution of marriagehas been pending before this court and it is filed in the pending case, it can be disposedor exercising the extraordinary jurisdiction conferred under Section 8 of the Act.
10. By the amendment of the Indian Divorce Act, Sections 17 and 20 of the Act havebeen deleted. As per the old Act, the orders passed by the District Court under Sections 10and 18 were liable for confirmation by this Court. By deleting Sections 17 and 20 of theAct, the orders passed by the District Court need not be confirmed and those orderswere final. But so far as an order passed by the High Court is concerned, by Section 16 ofthe Act it was treated as a decree nisi and confirmation by the same court wasnecessary. A waiting period of six months also had been stipulated by which aconfirmation order could be passed only after six months from the date of the decreenisi. The above provision in the statute still remains and every order passed by theHigh Court is liable to confirmation and as such an order has to be treated as a decreenisi. When no specific provisions is made to treat an order passed under Section 10A onmutual consent by the parties as absolute in view of Section 16 of the Act, every orderpassed by the High Court, not being an order on appeal from an order passed by theDistrict Court, is liable for confirmation. Hence an order passed by this Court underSection 10-A also is liable for confirmation and has to be treated only as a decree nisi. Ona consideration of the entire circumstances I do not think that the joint application filedby the parties is collusive, and it can be accepted and acted upon and hence I think itjust and proper to grant just and appropriate relief to the parties by accepting the CMPfiled by the parties for dissolution of the marriage on mutual consent.
11. In the result C.M.P. 53500/2001 is allowed and the marriage between the petitionerand the 1st respondent is dissolved by a decree nisi.