SUO MOTU Vs. STATE

JUDGEMENT

(1.) This reference has been made for judicial determination of the following questions which vitally concern the jurisdiction of this Court in matrimonial matters where the parties are Christians. The questions which arise for consideration and determination of this Court are as under:

(2.) The Indian Divorce Act, 1869 was enacted to amend the law relating to persons professing the Christian religion and confer upon certain courts the jurisdiction on matrimonial matters. Even prior to the enactment of the Indian Divorce Act, 1869, the High Courts in India exercised jurisdiction in matrimonial matters under the enabling provisions of the High Courts Act and the provisions of the Letters Patent establishing the High Court. Under the Act, jurisdiction was concurrently conferred on the High Court as well as the District Court in matrimonial matters. The Act also contained certain provisions which restricted the grounds on which a Christian woman could seek dissolution of marriage. Some of the High Courts struck down these restrictive provisions as discriminative and hit by Art.14 of the Constitution of India. The Law Commission of India in its 164th Report inter alia recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects applicable to Christians in India. The Commission also highlighted the difficulties faced and inadequacies in the Indian Divorce Act as brought to light by several judgments of the High Courts. Since there was no consensus amongst the members of the Christian community on the proposal for unified law on marriage and divorce, Parliament thought it fit to make certain amendments in the Indian Divorce Act to remove the glaring features of discrimination brought to light. The Indian Divorce (Amendment) Act, 2001, (Act No. 51 of 2001) was enacted by Parliament for this purpose and brought into force from 3rd October, 2001.

(3.) The amending Act of 2001 has changed the title of the Act from Indian Divorce Act to Divorce Act. Prior to the coming into force of this amending Act, the High Court and the District Court had concurrent jurisdiction to entertain petitions for dissolution of marriage under S.10 on the grounds specified therein, for pronouncing a decree of nullity under S.18 on the grounds specified in S.19, for making a decree for judicial separation under S.23, for ordering permanent alimony after making the decree absolute declaring a marriage to be dissolved under S.37, to enquire into ante nuptial and post nuptial settlement under S.40, to make orders to the custody of children after a decree for dissolution or nullity under S.43, to make orders with regard to the custody, maintainance and education of minor children under S.44 after a decree of dissolution or nullity of marriage has been passed. S.4 of the amended Act declares that the jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro and in all other causes, suits and matrimonial matters can be exercised by such Courts and by the District Courts subject to the provisions of the Act. S.6 of the Act provides that all suits and proceedings in cases and matters matrimonial when the Act came into operation would have to be dealt with and decided by the High Court, so far as may be, as if they had been originally instituted under this Act. S.8 gave the High Court extra ordinary jurisdiction in appropriate cases to remove and try and determine originally any suit or proceeding instituted under the Act in the District Court within the limits of the jurisdiction of the High Court. It also had the power to transfer such suits or proceedings from one District Court to another. S.9 empowers the High Court upon a reference to decide a question of law.