Monika Sanctis Vs. Henry Joseph and anr. - Court Judgment

Excerpt:
(a) indian divorce act, 1869 (as amended by act 51 of 2001) - sections 16 & 17 - indian divorce (amendment act), 2001 - act 51 of 2001 - object of - held - the whole object of the act is that the parties may get relief quickly and easily and to relieve them of the procedural hurdles which had been found in the principal act with its colonial background.; (b) indian divorce (amendment act), 2001 -section 16 - applicability of - held - that a decree for dissolution of a marriage passed under the indian divorce act after the amendment act becomes effective on its own and does not require any further confirmation - the requirement of 6 month waiting period is not a requirement under the statute and a decree can be made absolute without any such requirement.; (c) indian divorce act, 1869.....1. this is an appeal by the wife under section 55 of the indian divorce act read with section 19 of the family court act directed against the order dated 8-3-1999 passed by the ii additional principal judge, family court, at bangalore in m.c. no. 117 of 1998 allowing the petition of the wife under sections 10 and 11 of the divorce act partially and granting a decree for judicial separation.2. the wife being aggrieved by the order of the trial court, refusing her the full relief of dissolution of marriage and denying her a decree of divorce has come up in appeal.3. the first respondent-husband remained absent before the court below and was set ex parte. the second respondent with whom it was alleged that the first respondent-husband was having an adulterous relationship had also been.....

Judgment:

1. This is an appeal by the wife under Section 55 of the Indian Divorce Act read with Section 19 of the Family Court Act directed against the order dated 8-3-1999 passed by the II Additional Principal Judge, Family Court, at Bangalore in M.C. No. 117 of 1998 allowing the petition of the wife under Sections 10 and 11 of the Divorce Act partially and granting a decree for judicial separation.

2. The wife being aggrieved by the order of the Trial Court, refusing her the full relief of dissolution of marriage and denying her a decree of divorce has come up in appeal.

3. The first respondent-husband remained absent before the Court below and was set ex parte. The second respondent with whom it was alleged that the first respondent-husband was having an adulterous relationship had also been served but remained absent and has been set ex parte by the Court below.

4. The position is the same in this appeal and the respondents have not contested the proceedings though served.

5. The petition pleadings are that the appellant-wife and first respondent-husband married at Bangalore as per the customary rites of Christian community as on 3-7-1997, that the marriage was an arranged marriage through a friend, one Fr.A. Ignatius of Holy Ghost Church. The first respondent-husband was working at Dubai in an organisation known as Transmed Overseas Inc. Sa., Dubai, U.A.E. He had come to India and responded to an advertisement placed by the appellant inviting suitable alliance and that is how the marriage had come to be arranged. After the marriage at the church was performed the reception at Windsor Manor Hotel. Thereafter, the appellant visited the house of the first respondent-husband where his parents lived in Frazer Town, Bangalore. It is also pleaded that the behaviour of the husband even on the very first night after the reception was very unusual, that he did not treat the appellant-wife with any love or affection but in fact ill-treated her, that he went on a drinking spree with his friends in their hotel room till late hours, till when he entertained his friends, with drinks and was otherwise busy talking with his other girl friends till 3.30 a.m. in the morning and not responded to the appellant. Even at the house of the husband's parents at Frazer Town, she was not treated properly nor was introduced to his parents in a proper manner. It is also further pleaded that they had their honeymoon at Hotel Guest Line at Attibele and her experience was harrowing, that she was ill-treated by the first respondent-husband, that she was compelled to have unnatural sex with him with all perversity and she was physically tortured and abused. She suffered both mentally and physically but tolerated with the hope that her husband may improve in the days to come.

6. It is pleaded that the husband left for Dubai in a great hurry without even arranging for her joining him at Dubai. On one occasion when she had telephoned to his residence at Dubai, some other female answered the telephone call and when she enquired as to who the lady was, she was scolded by saying that it is none of her concern. The petitioner pleaded that the husband never showed any normal behaviour leave alone love and affection towards her, that he always indulged in abusing her, insulted her in the presence of others even when he was at Bangalore for a short duration and never showed any interest ingetting her to Dubai. While the matter stood thus, she had received a letter on 15-1-1998 from one Vincent Nazarat (marked as Ex. P. 6) and she was informed that her husband was living in adultery with the said Nazarat's wife and that they were living together and were having illicit relationship. She had also received photographs of her husband and the wife of said Nazarat being together along with the letter.

7. The appellant sought for dissolution of the marriage and for a decree of divorce on the grounds as pleaded claiming that the husband had treated her with cruelty, he had deserted her, that he had indulged in obnoxious acts with her and also was living in adultery with the second respondent.

8. The respondents having remained absent and set ex parte, the Trial Court was only required to look into the petition averments and framed question as to whether the petitioner is entitled for a decree of divorce.

9. The petitioner examined herself and deposed that she has been treated with such cruelty and that the first respondent was living in adultery and also that the first respondent has committed acts of sodomy and perverse sex.

10. The learned Trial Judge though recorded a finding of cruelty as against the husband accepting the pleadings supported by the evidence, nevertheless thought that act of adultery on the part of the first respondent having not been, proved inasmuch as the petitioner had not deposed that she had seen the first and second respondents living in adultery, that a decree of divorce cannot be granted and only granted the relief of judicial separation.

11. It is against this order that the wife has come in appeal to this Court.

12. We have heard Sri Rajanna, learned Counsel appearing for the appellant. Learned Counsel submits that the respondents having remained absent and set ex parte, the entire petition pleadings which are supported by the evidence, of the appellant herself should have been accepted by the Court below arid as the wife has made out a case for grant of a decree of divorce on more than one ground under Section 10 of the Act, the Trial Court ought to have decreed the petition as prayed for by the wife. Learned Counsel submits that the Trial Court should have accepted the version of the wife that the first respondent was living in adultery with the second respondent on the material placed before the Court in the form of letter of said Nazarat and supported by the photographs. It is submitted that in a matter of this nature, no direct evidence is possible and the circumstances that the first respondent was living with the second respondent in the same place and that he had not cared to take his wife to Dubai and the version of the said Nazarat through his letter who was none other than the husband of the second respondent clearly prove the acts of adultery on the part of her husband.

13. On the available material on record, we find that the petitioner-wife was entitled for the relief of dissolution of marriage and a decree ofdivorce on more than one ground. In fact under Section 10 of the Divorce Act, acts of rape, sodomy or bestiality constitute distinct and independent grounds for seeking the relief of dissolution of the marriage. Apart from other grounds urged in the present case, the wife had specifically pleaded the ground of sodomy as against her husband and had deposed about the same and confirmed the same in her evidence also. We are of the view that the petitioner-wife who is in appeal is clearly entitled to the relief on this ground itself independent of relief being granted on any other ground. The allegation of sodomy levelled in the petition is neither controverted nor repelled as the first respondent-husband remained absent.

14. In the circumstances, we allow this appeal and modify the order passed by the Court below and dissolve the marriage between the appellant-wife and the first respondent which had taken place on 3-7-1997. However, in terms of Section 16 of the Act we pass a decree nisi as of now which can enable the appellant to seek a decree of divorce absolute, after the expiry of minimum period required to be allowed under Section 16 of the Act. We reserve liberty to the appellant to move this Court after the expiry of the minimum period required under Section 10 of the Act.

A.M. Farooq and D.V. Shylendra Kumar, JJ.

6th January, 2003

ORDERS ON 'FOR BEING SPOKEN TO'

1. We had allowed the above appeal as per order dictated on 17th December, 2002. The marriage between the parties had been dissolved. However, we had referred to the provisions of Section 16 of the Divorce Act, 1869 in the last para of the judgment and had indicated that the decree of nisi for divorce can be made absolute on the appellant moving the Court after the expiry of the minimum period required to be allowed between the time of passing of decree nisi and making it absolute.

2. On the very same day Sri N. Rajanna, learned Counsel who had argued the case for the appellant moved the Court and submitted that the provisions of Section 16 are not applicable in a situation where the High Court allows the appeal and grants a decree of divorce by dissolving the marriage and that the period of 6 months may not be necessary to be allowed to elapse before the decree is made absolute. It is for this reason we directed that the matter may be listed for further hearing as 'for being spoken to'.

3. We have heard the learned Counsel on this aspect of the matter and also Mr. Sebastian, learned Counsel who appears in another similar appeal where the legal position that arises for consideration is more or less similar.

4. Learned Counsels have taken us through the provisions of the Divorce Act, 1869 as it stood earlier and have compared the relevant provisions of the Act with the corresponding provisions of the Indian Divorce Act as amended by Act 51 of 2001 which has come into force with effect from the 3rd day of October, 2001.

5. Several changes have been brought about by the Divorce (Amendment) Act, 2001. The statement of objects and reasons appended to the Bill through which the Amending Act, 2001 was introduced in the Parliament reads as under.-

'The Law Commission of India in its 164th Report on 'The Divorce Act (IV of 1869)' presented to the Government in November 1998 has, inter alia, recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects of the Christians in India. The Commission, relying on the judgments and observations of certain High Courts, has also urged the Central Government to take immediate measures-

(i) to amend Section 10 of the Divorce Act, 1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated vis-a-vis male spouses on obtaining a decree of dissolution of marriage;

(ii) to amend suitably Sections 17 and 20 of the Act to do away with the procedural requirement of obtaining confirmation from the High Court in respect of a decree of dissolution of marriage or decree of nullity of marriage as such a procedure is long drawn and strenuous.

2. With a view to ascertaining the views of the Christian community on proposal for a unified law on marriage and divorce, the Central Government convened a meeting of leaders of prominent Churches in India and the Members of Parliament belonging to the Christian community on the 28th April, 2000 but there was no consensus for bringing in a comprehensive legislation on Christian marriages and matrimonial causes. However, there is no opposition from any one to amend Sections 10, 17 and 20 of the Divorce Act, 1869 suitably to remove the gender inequality as contained in Section 10 and to do away with the procedural delays in obtaining divorce due to the provisions contained in Sections 17 and 20 of the Act. The Government, therefore, proposes to make suitable changes in the Divorce Act, 1869 for removing hardship to all concerned.

3. The Commission on review of administrative laws which was set up by the Central Government on the 8th May, 1998 has, inter alia, recommended repeal of various enactments including three British Statutes relating to Christian Personal Law still in force. It is proposed to repeal these enactments also as they have become obsolete.

4. This Bill seeks to achieve the above objects.

Notes on clauses

Clause 1.--This clause provides for short title and commencement of the Bill.

Clause 2.--This clause seeks to amend the short title of the Indian Divorce Act, 1869 (hereafter referred to as 'the Act') so as to omit the word 'Indian' occurring therein. This is in tune with the recent legislative practice of not using the word 'Indian' in the short titles of Parliamentary legislation.

Clause 3.--It is proposed to remove gender inequality in the matter of grounds of divorce as available to husband and wife under Section 10 of the Act by substituting that section vide Clause 4 of the Bill. As the expressions 'incestuous adultery' and 'bigamy with adultery' as occurring in Section 10 of the Act will no longer be in the said section, these expressions have become redundant. This clause, therefore, seeks to omit the definition of those expressions.

Clause 4.--This clause seeks to provide the grounds of dissolution of marriage. Existing provisions of Section 10 of the Act make a distinction between the husband and the wife in the matter of grounds on which they could obtain dissolution of marriage. While adultery, without any other ground, is a ground for seeking dissolution of marriage by the husband, in the case of the petition by the wife, there is in addition another requirement that it should be incestuous adultery or bigamy with adultery or adultery coupled with cruelty or desertion for two years. Certain High Courts including the High Court of Kerala have struck down the words 'incestuous' and 'adultery' coupled with in Section 10 on the ground of gender inequality. This clause seeks to substitute the said Section 10 with a new section providing same grounds for husband and wife for seeking dissolution of marriage. However, a wife may also get divorce on the ground that the husband has since the solemnization of marriage been guilty of rape, sodomy or bestiality.

At present a petition for dissolution of marriage could be presented either to the District Court or to the High Court. It is proposed that the petition may henceforth be presented to the District Court only.

Clause 5.--This clause seeks to substitute existing Section 11 with the addition of the words 'or adulteress' to cover cases where the wife sues the husband for divorce on the ground of adultery. The amendment is consequential to the amendments made in the grounds of divorce under Section 10.

Clause 6.--This clause seeks to amend Section 13 of the Act so as to do away with the enabling provision for presenting a petition for dissolution of marriage to the High Court after such a petition has been dismissed by the District Court.

Clause 7.--This clause seeks to amend Section 14 of the principal Act. The amendment is consequential to the amendments made in Sections 16 and 17 of the Act.

Clause 8.--This clause seeks to amend Section 15 of the Act. The amendments are consequential to the changes made in the grounds of divorce under Section 10.

Clause 9.--This clause seeks to amend Section 16 of the Act. The amendment is consequential to the amendments made in Section 17 of the Act to do away with the requirement of confirmation of decree of District Court by the High Court.

Clause 10.--This clause seeks to substitute Section 17 relating to confirmation of decree for dissolution of marriages made by a District Judge by the High Court. At present every decree for a dissolution of marriage made by a District Judge is subject to confirmation by the High Court. In order to obviate the procedural delay and consequential hardship to the estranged couples, this clause seeks to do away with the requirement of confirmation by the High Court of such decrees. The amendment is on the lines suggested by the Law Commission of India in its 164th Report.

Clause 11.--This clause seeks to omit Section 17-A of the Act relating to appointment of officers to exercise duties of King's Proctor as it has become obsolete.

Clause 12.--This clause seeks to amend Section 18 of the Act relating to petition for decree of nullity. The omission of the words 'or to the High Court' as proposed in this clause is consequential to the amendment proposed in Section 10.

Clause 13.--This clause seeks to amend Section 19 of the Act as consequential to the amendment made in Section 10 as regards the Court in which petition may be presented.

Clause 14.--This clause seeks to omit Section 20 of the Act relating to confirmation of decree of nullity of marriage by a District Judge. At present, every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court. In order to simplify the procedure and obviate delay and consequential hardship to estranged couples, it is proposed to do away with the requirement of confirmation.

Clause 15.--This clause seeks to amend Section 22 of the Act. The amendment is consequential to the changes made in Section 10.

Clause 16.--This clause seeks to omit the words 'or the High Court' occurring in Sections 23, 27 and 32 of the Act as consequential to changes made in Section 10 relating to the Court in which petitions could be made.

Clause 17.--This clause provides for damages from adulterer or adulteress. While following the existing provisions of Section 34 of the Act, it is proposed to allow the wife also to claim damages from the adulteress. This is consequential to the changes 'made in Section 10 of the Act.

Clause 18.--This clause seeks to substitute Section 35 of the Act so as to make provision for the adulterer as well as the adulteressto pay costs. The changes are consequential to the changes made in Section 10.

Clauses 19 to 23.--The amendments suggested in these clauses are consequential to the changes made in Sections 10 and 17 of the Act.

Clause 24.--This clause seeks to amend Section 45 of the Act relating to application of the Code of Civil Procedure by specifying the particulars of the present Code.

Clause 25.--This clause seeks to amend Section 52 of the Act as consequential to the changes made in Section 10.

Clause 26.--This clause seeks to amend Section 55 of the Act so as to allow an appeal from a decree of a District Judge for dissolution of marriage or nullity of marriage.

Clause 27.--This clause seeks to substitute Section 57 of the Act specifying the circumstances under which the parties to a marriage which has been dissolved could marry again.

Clause 28.--The amendment proposed in this clause is similar to the one proposed in Clause 24.

Clause 29.--This clause seeks to repeal certain British statutes which have become obsolete and recommended to be repealed by the Commission on Review of Administrative Laws'.

Some of the salient changes brought about by the amending Act is that the jurisdiction to entertain the petition under the Act which was vested with the District Court and High Court earlier under Section 10 of the earlier Act is now confined to the District Court only by Section 5 of the Amendment Act.

6. A new section has been introduced which provides for dissolution of marriage by mutual consent which was not there in the parent Act. In Section 16 of the principal Act the words 'not being a confirmation of a decree of a District Court', has been omitted by Section 11. One important change is doing away with the confirmation of a decree for dissolution passed by the District Court by a Bench of the High Court comprising 3 Judges. Earlier not only the decree of dissolution of marriage granted by the District Court required to be confirmed by the Bench of three Judges of the High Court but no such confirmation could have been made within the period of 6 months from the date of passing of the decree by the District Court. Section 20 of the principal Act which mandate this requirement of confirmation has now been omitted by Section 16 of the Amendment Act.

7. Section 56 of the principal Act which is the provision for an appeal to the Supreme Court has been retained as such, while changes have been effected in Section 57 of the principal Act which was a provision which placed restrictions on the separating spouses for remarriage subsequent to the passing of decree of dissolution of marriage. Whereas, earlier in respect of a decree passed by the District Court, parties could not marry again before confirmation by the High Court and in respect ofa decree passed by the High Court dissolving the marriage, remarriage can take place only after expiry of 6 months from the date of any decree passed by the High Court if no appeal had been preferred or if an appeal had been preferred until such appeal has been disposed of. In effect the period of 6 months was required to elapse before the separating spouses can remarry irrespective of whether the High Court was confirming a decree passed by the District Judge or a decree for dissolution was passed by the High Court itself. After the amendment the only restrictions on the separating spouses is that either party may marry after the expiry of the period of limitation for filing an appeal and if no appeal is filed within the time or if the appeal has been filed within that time till the disposal of the appeal.

8. Mr. Rajanna, learned Counsel for the appellant has submitted that the prominent object of the amending Act was to cut short the delay in parties getting the relief under the Divorce Act. The delay was sought to be done away by the amending Act as stated in the statement of objects and reasons and as the amending Act has not only done away with the requirement of a decree passed by the District Judge being confirmed by a Bench of three Judges of the High Court, but also the waiting in period of 6 months, before which a decree for dissolution of a marriage becomes effective but the only restriction being that the period of limitation provided for filing an appeal should expire before the parties can remarry. It is a fortiori so in the case of a decree of divorce passed by the High Court that the decree becomes operative immediately thereafter and apply the same to the extent they are applicable to the facts of the present case also and should grant relief to the parties. In substance the submission is that as of now there is no requirement of waiting in period of 6 months before the parties could marry again. The earlier waiting in period of 6 months from the date of such decree of the District Court and the other requirements of a decree for dissolution passed by the High Court in the first instance being confirmed only after expiry of 6 months as contemplated under Section 16 of the Act have been now omitted. Learned Counsel submits that in the present case when the High Court is exercising the appellate jurisdiction under Section 55 of the Act read with Section 19 of the Family Courts Act, the provisions of Section 16 are not applicable to a decree of divorce for dissolving the marriage on the ground of cruelty passed by the High Court in the exercise of its appellate jurisdiction. Learned Counsel submits that the provision of Section 16 as it stands now can be made applicable only in respect of cases where the High Court entertains the petition in its original jurisdiction particularly having regards to the provisions of Section 8 of the Act unless the High Court desires to withdraw any suit or proceedings instituted and pending before the District Court and to try and dispose of the same by itself. Learned Counsel submits that if the High Court withdraws any petition pending before the District Court under this provision and dispose of the same by itself it will be an exercise of its original jurisdiction and only in such situation the provisions of Section 16 applies and not when the High Court exercises its appellate jurisdiction. In this regard learned Counsel has brought to our notice a decisionof a Single Bench of the Kerala High Court in Sherly Thomas v Johny and Ors., AIR 2002 Ker. 280. That was a case where an original petition had been preferred to the High Court under the Act for dissolution of the marriage at the instance of the wife on the allegation of cruelty against the husband and during the pendency of the said proceedings and after the Amending Act 51 of 2001 had been given effect to. A joint petition under Section 10-A of the Act was made to the High Court. Section 10-A which was inserted by the Amending Act 51 of 2001 provides for dissolution of a marriage by mutual consent and the petition to be presented to the District Court. The High Court accepted the submission of the Counsel for the petitioner that as the High Court has the power to remove or withdraw any suit or proceeding instituted under the Act and pending before any District Judge by exercising jurisdiction under Section 8 of the Act, though a petition under Section 10-A is specifically to be filed before the District Judge, the High Court can, in the exercise of such power, dispose of the matter. However, the Kerala High Court was of the view that the waiting in period of six months does not apply only in a case where the High Court is exercising the appellate power and when the High Court is exercising original jurisdiction, it can only pass a decree nisi which was required to be confirmed after the lapse of six months. Sri Rajanna, learned Counsel for the appellant placing reliance on this decision submits that as in the present case, this Court is exercising its appellate powers and the decree of divorce for dissolution of the marriage is being granted on merits and in the exercise of the appellate power, the waiting in period of six months contemplated under Section 16 of the Act is not applicable and prays for making the decree absolute forthwith however subject to the period of limitation which is required to elapse in preferring an appeal to the Supreme Court. The learned Counsel submits that in the instant case also, based on the reasoning expressed in the Single Bench decision of the Kerala High Court, we can make the decree absolute and to this extent our earlier order dated 17th December, 2002 requires to be modified.

9. Mr. Sebastian, learned Counsel appearing for a similar case also made submissions supporting the arguments of Sri Rajanna and has also urged that in cases where the High Court has exercised its appellate jurisdiction the question of passing a decree nisi in the first instance and making it absolute only after a lapse of 6 months does not arise, particularly as under the provisions of the amended Act a decree dissolving the marriage passed by the District Judge becomes effective immediately after that and the only restriction being that the parties can remarry as indicated under Section 57 only after the expiry of the period of limitation prescribed for filing an appeal as against that decree. In this regard Mr. Sebastian submits that the appeal proceedings being a continuation of the original proceedings the power of the Appellate Court is co-extensive with the power of the original Court and if the District Court itself can pass a decree for dissolution of the marriage and the decree becomes effective immediately after it is passed, it is a forti-ori so in the case of a decree passed by the High Court exercising its appellate jurisdiction notwithstanding the fact that the High Court may be reversing the decree passed by the District Court and may be granting the relief of dissolution of marriage for the first time. Learned Counsel also submits that the expression 'in the first instance' used in Section 16 of the Act is applicable only in a situation where the High Court entertains a petition in the exercise of its original jurisdiction and not while exercising its appellate jurisdiction.

10. We have given our thoughtful consideration to the submissions made. We have also considered the object and effect of the amendments brought about by the Amending Act 51 of 2001. Parliament had brought about these changes in the Divorce Act being conscious of the deficiencies in the Act. There were certain anomalies in the principal Act particularly in the matter of granting relief to the dissatisfied couple and such anomalies being quite clear in comparison to similar provisions governing persons belonging to the other communities. The whole object of the Act is that the parties may get relief quickly and easily and to relieve them of the procedural hurdles which had been found in the principal Act with its colonial background.

11. One very salient change brought about is doing away with the requirement of confirmation of a decree for dissolution of marriage passed by the District Court by a Bench of 3 Judges of the High Court. This indicates that a decree for dissolution of a marriage passed under the Divorce Act after the amending Act, becomes effective on its own and does not require any further confirmation. If that is the situation we do not see any reason to impose the restriction of waiting in period of 6 months before a decree for dissolution of the marriage can be made absolute, when the High Court is passing such a decree. In fact on a proper understanding of the provisions of the Act, the provisions of Section 16 are applicable only in a situation where the petition for divorce is examined by the High Court in the exercise of its original jurisdiction. We commend that this is a proper understanding of the provisions of Section 16 of the Act. Accordingly, we hold that the provisions of Section 16 does not apply in a situation where the High Court while exercising its appellate jurisdiction passes an order of dissolution of marriage on any of the stipulated grounds. The amended provisions of Section 17 also lend support to this view as when once a decree is passed for dissolution of marriage the parties are at liberty to marry again immediately after the period of limitation for filing an appeal expires.

12. In this view of the matter we hold that the requirement of Section 16 is not applicable to the decree passed in favour of the appellant dissolving the marriage between the appellant and the 1st respondent.

13. We accordingly hold that the requirement of 6 months waiting in period which we had indicated in our order dated 17-12-2002 is not a requirement under the statute and the decree is made absolute without any such requirement. To this extent our earlier order/judgment dated 17-12-2002 stands modified.