MARIA SERA PINTO Vs. MILTON DIAS

JUDGEMENT

(1.) THESE petitions have been placed before us at the direction of the Honble Chief Justice for a decision as to whether the procedure contemplated under section 16 of the Indian Divorce Act, 1869 of confirmation of a decree nisi made by the High Court on its Original Side is still required in view of the coming into force of the Family Courts Act, 1984. The present petitions are all petitions filed under section 10 of the Indian Divorce Act, 1869 for dissolution of the marriage on different grounds. In each of these petitions a decree nisi has been made by a learned Single Judge of this Court in exercise of the matrimonial jurisdiction of this Court. These decree nisis are required to be confirmed by virtue of provisions in section 16 of the Indian Divorce Act. We are informed that there are about 200 other similar matters where decree nisi has already been made by a learned Single Judge of this Court in exercise of powers under section 16 of the Indian Divorce Act, 1869. It is not necessary to discuss the facts giving rise to these petitions to decide the question referred to us. We shall refer to the facts of M. J. Petition No. 4543 of 1999 as a typical case.

(2.) IN M. J. Petition No. 4543 of 1999 the parties are both Christians who were married in accordance with Christian rites at the St. Anthonys Church, Vakola, Mumbai on 29th October 1983. After marriage, the parties resided at Dahisar. There is one female issue out of the marriage. The petition was presented on 31st July 1999 invoking section 10 of the Indian Divorce Act alleging adultery on the part of the respondent-husband. This petition was tried and a decree nisi was made on 10th March 2000. This decree nisi is required to be confirmed under section 16 of the Indian Divorce Act within a period of six months therefrom.

(3.) THE Indian Divorce Act, 1869 is applicable where both parties are Christians. Section 10 enables either party to present a petition for dissolution of the marriage on the grounds mentioned therein. Though, as originally enacted, the grounds available to the wife for dissolution were somewhat cumbersome and onerous, as a result of the judgment of this Court in (Pragati Varghese and others v. Cyril George Varghese and others), 1997 (4) Bom. C. R. 551 : 1997 Bom. C. R. (Cri) 918 : 1997 (II) D. M. C. 407 (Full Bench), it has been held that the provision of section 10, in so far as they impose a restrictive condition on the wife requiring her to plead and prove an additional ground of adultery, is unconstitutional and ultra vires Articles 14, 15 and 21 of the Constitution of India and these restrictive conditions were struck down. Thus, after the judgment in Pragati Varghese and others (supra) it became permissible for the wife to petition the Court for dissolution of the marriage on the ground of bigamy, adultery, cruelty or desertion.