LARLEY Vs. JOHN ALIAS JONY C A

JUDGEMENT

(1.) This is a reference under Section 20 read with Section 17 of the Indian Divorce Act, 1869, ('the Act' for short). Section 20 as it stood prior to the Indian Divorce (Amendment) Act, 2001 (Act 50 of 2001) provided that every decree of nullity of marriage made by District Judge shall be subject to confirmation by the High Court, and the provisions of Section 17, Clauses (1), (2), (3) and (4), shall mutatis mutandis apply to such decrees. I shall refer to Section 17 of the Act a little later in this judgment. The petitioner instituted suit being Matrimonial Case No. 38 of 1996 in the Court of District Judge, Bhagalpur for decree of nullity of marriage with respondent on the ground that the respondent was an idiot at the time of marriage. The Second Additional District Judge, Bhagalpur to whom the case was transferred, accepting the petitioner's case granted her decree of nullity of marriage subject to confirmation by the High Court under Section 20 of the Act. That is how the matter has come to this Court.

(2.) Notice of the reference was issued to the parties pursuant to which the petitioner entered appearance. The respondent however, chose not to appear as in the Court below. The case was accordingly listed for ex parte hearing. In the meantime the petitioner had filed an application (I.A. No. 1070/2003) stating that during the pendency of the reference, Section 20 of the Act was omitted by the Indian Divorce (Amendment) Act, referred to above, and therefore, there is no requirement of confirmation of the decree passed by the Court below, and in the circumstances, the reference has become redundant and infructuous. The matter was heard on 14.7.2003.

(3.) I shall first consider the question as to whether by reason of the amendment omitting Section 20 from the Act, the reference has become infructuous. In other words, whether the decree passed by the Court below has attained finality without requiring confirmation by this Court. The question as to the effect of the Amendment deleting Section 20 of the Act involves the question as to whether the amendment is prospective or retrospective. It is to be mentioned here that deletion of Section 20 is without any saving clause.