DEEPIKA ALIZABETH COUTO Vs. GABRIEL ANTHONY COUTO

JUDGEMENT

(1.) M. N. Shukla, J. This reference purporting to be one under S. 17 of the Indian Divorce Act. 1869 (hereinafter referred to as the Act) reveals a curious state of affairs. A petition was made under S. 10 of the Act by the petitioner Smt. Deepika Alizabeth Couto in the court of the District Judge, Gorakhpur. The allegations in the petition were that she and her husband were married in the year 1965 according to the Christian rituals; that the respondent was a habitual drunkard who constantly beat the petitioner using filthy abuses and treated her with cruelty whenever she went to live with him at Jamshedpur. On account of this cruel treatment her physical and mental health was completely impaired and it was no longer safe for her to live with him. It appears that the respondent did not contest the petition in the court below. In support of these allegations, the petitioner examined herself. The learned District Judge passed an ex parte order dated Dec. 18, 1976 whereby he allowed the petition and a decree nisi was passed. Thereafter, the petitioner made the present application in this Court under S. 17 of the Act, praying that the decree nisi dated Dec. 18, 1976, passed by the District Judge, Gorakhpur, be confirmed.

(2.) WE have heard the learned counsel for the parties. It is apparent from the perusal of S. 17 of the Indian Divorce Act, 1869 as amended by the Indian Divorce (U. P. Amendment) Act XXX of 1957 that a decree passed under S. 10 of the Act, as in the instant case, does not require any confirmation by the High Court. Section 17 of the Indian Divorce Act, prior to the U. P. Amendment Act, stood as follows :- " 17. Confirmation of decree for dissolution by District Judge.- Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court. 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, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges; and in case of difference, the opinion of the senior Judge shall prevail. The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken. The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit; Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs. During the progress of the suit in the Court of the District Judge, any person, suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under S. 8, and the High Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in S. 16 shall apply to every suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case. "

(3.) LEARNED counsel for the parties submitted that now at this stage and in view of some understanding reached between the parties, it would not be expedient to interfere with the order of the District Judge and so he did not press the reference made to this Court under S. 17 of the Act and prayed that the same be dismissed. Ordinarily we would have stayed our hands after this statement by the counsel for the petitioner that he did not wish to press the petition made by way of reference to this Court, but the facts in the instant case are somewhat extraordinary. This Court cannot shut its eyes to the fact that the proceedings culminating in the ex parte decree of divorce passed under S. 10 of the Act were not only illegal but were entirely without jurisdiction. The decree is a nullity and, therefore, cannot be allowed to stand. We are satisfied that this is a fit case in which this Court should exercise its jurisdiction under Art. 227 of the Constitution for passing suitable orders. Article 227 of the Constitution as amended by the Constitution (Forty-Second Amendment) Act, 1976, so far as is material for the purpose of this case, reads as under :- " 227. (1) Every High Court shall have superintendence over all courts subject to its appellate jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. "