GEORGE SWAMIDOSS JOSEPH Vs. HARRIETT SUNDARI EDWARD

JUDGEMENT

(1.) I have had the advantage of reading the judgment which my learned brother Mack J. is about to deliver and since it has my entire concurrence, I do not propose to discuss matters dealt with by him in detail. My learned brother has dealt with a topic which occurred to us during the course of the arguments before us as not having been the subject of consideration in any of the previous decisions, namely, the practical difficulty that might arise, in a case a decree absolute is passed in the first instance, in a suit for nullity of marriage and one of the parties immediately contracts a second marriage" which might become illegal if the decree absolute is set aside in appeal.

(2.) I am in entire agreement with the view expressed by my learned brother; it has to be considered whether Section 7, Indian Divorce Act, having been preserved by the Adaptation of Laws Order, 1950, it cannot be followed by the Indian Courts after the declaration of the country as a Republic, for the reason that it is not proper for a free country in its administration of justice to have a statute laying down that the laws and regulations of another country should be followed in toto. The section is subject to a limitation. It lays down

(3.) The result is that if the Act is silent on a particular topic or subject then the Courts in India even now shall give relief on principles and rules prevalent in England 'for the time being. It is urged before us that the Indian Courts will have to follow, in the absence of specific prohibition to the contrary, the various alterations and changes that might be introduced in the divorce laws of England from time to time and that such a state of things' would not be in consonance with the prestige and dignity of a free country. The point of view can be answered with reference to the Constitution itself; for Sub-clause (3) of Art. 105 lays down that except in certain respects the powers, privileges and immunities of each houes of .Parliament and of the members and the committee of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution. From this it is clear that even as regards parliamentary procedure and, powers and privileges of the House of Parliament and of the members and the committees of each House, we have adopted what was 'obtaining in the House of Commons of the United Kingdom at the time of the commencement of the Constitution. There is, no doubt, a difference so far as Section 7, Indian Divorce Act, is concerned in that the words "for the time being" occurs-in that section. Stone and Mockett JJ. in -- 'Summathi Amrnal v. D. Paul', AIR 1936 Mad 324 (FB) (A) have interpreted these words as referring to the changes that may be made in the principles and laws governing divorces and matrimonial practices in' England from time to time and that the Indian Courts should follow such changes. There is no doubt an anomaly in that the Indian Courts have to keep pace with the practice in England and to uote changes that are made in the principles and rules of the English divorce laws from time to time. But after all the Indian Divorce Act is founded mainly, if not solely, upon the English 'Act and one does not feel that it is incongruous to keep pace with the' changes that are made from time to time in the parent law.