BINCY MATHEW Vs. SABU ABRAHAM

JUDGEMENT

(1.) This reference arises under S.17 of the Indian Divorce Act, 1869. Wife was the petitioner before the District Court, Kottayam in O.P. (Div) No. 229/96. She claimed divorce under S.10 of the Act on the ground of cruelty. It was contended by her that she was being physically assaulted by her husband / respondent and she was not even given proper food or clothing, even though notice was received by the respondent, he remained ex parte.

(2.) The petitioner was examined as PW 1 and she spoke in terms of the petition. PW 2, her paternal uncle deposed as to how on one occasion when he visited her house, he found marks of assaults on her body and he took her to Ayurvedic doctor. The doctor was examined as PW. 3 and he proved Ext. A2 certificate. He has given evidence that he found edema on the shoulder and cheek of the petitioner. The reason given by the petitioner was assault by her husband. PWs 4 and 5 are neighbours who also supported that the petitioner was given treatment for injuries sustained. The witnesses of the petitioner were not cross examined and the respondent did not adduce any evidence. In the light of the decision of this Court in Mary Sonia Zacharia v. Union of India ( 1995 (1) KLT 644 (FB)), a Christian wife is entitled to get divorce on the ground of cruelty alone. The Trial Court accepted the evidence adduced by the petitioner and granted a decree for divorce.

(3.) Before this Court eventhough notice is served on the respondent, he is neither present nor represented by counsel. We feel that it is high time that the provision regarding confirmation under S.17 and 20 of the Indian Divorce Act, 1869 are deleted from the statute. S.17 provides that every decree for dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court. It is further provided that cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such judges, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges. S.20 provides that every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court. That too by a Bench of three Judges in Courts where the number of Judges is three or upwards and where the number of Judges of the High Court is two, by a Bench composed of two Judges. A petition under S.10 for grant of divorce and S.18 for declaring the marriage null and void can be filed both before the District Court as well as the High Court. When such petitions are filed in the High Court, it is being heard by a single Judge and appeal therefrom by a Bench constituting two Judges. Above being the provision, we are of the view that confirmation of a judgment of the District Court by a Bench of three Judges is absolutely unwarranted. We are also of the view that the provision for confirmation can be deleted and in its place a provision could be made for filing an appeal before the High Court by whichever party aggrieved by the order passed either under S.10 or under S.18. Such an appeal can be heard by a Bench consisting of two Judges as in the case of all other matrimonial appeals.