AGNES SUMATHI AMMAL Vs. DPAUL

JUDGEMENT

(1.) The question that has been referred is whether a decree passed by the Court sitting for the disposal of matrimonial work of this High "Court in a petition for nullity of marriage should be a decree nisi, or a decree absolute. It has been the practice in this High Court hitherto to make the decree in the first place a decree nisi. It would appear that the practice in the other High Courts and In particular Bombay has been different, those High Courts having in nullity suits made the decree absolute in the first place.

(2.) Section 16 of the Indian Divorce Act provides that a decree for a dissolution of marriage made by a High Court inter alia shall in the first instance, be a decree nisi and shall not be made absolute 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. Provision is made for the intervention originally of any person, now, since the passing of Section 17-A, an officer exercising power similar to those of the King's Proctor. On the other hand, Section 18 enables a husband or wife to present a petition praying that the marriage might be declared null and void. Section 19 states the grounds upon which a decree of nullity may be granted and Section 20 makes it necessary in the case where a decree is passed by a District Judge for it to be subject to confirmation by the High Court and applies the provisions of Section 17 Clauses 1, 2, 3 and 4, to such decrees. Section 17, Clauses 1, 2, 3 or 4 are concerned with the confirmation of a decree for dissolution of marriage by a District Judge, and it has been a matter of debate in other High Courts as to what Clauses 1, 2, o and 4 include. The clauses are not numbered and there-are in the section six paragraphs. The doubt has been as to paragraphs 4 and 5, whether those are two clauses or one clause plus a proviso. A V/s. B (1898) I.L.R. 23 Bom. 460 decides that the proviso is attached to the fourth clause and consequently the fourth clause includes the fourth paragraph and the fifth paragraph. Caston V/s. Caston (1900) I.L.R. 22 All. 270 (F.B.) and Samuel V/s. Samuel (1934) I.L.R. 15 Lah. 846 (F.B.) decide that the fourth paragraph is one clause and the fifth paragraph, that is, the proviso is another clause. In my opinion, as a matter of construction it is not possible to regard a proviso as a clause, and I prefer to follow A V/s. B. (1898) I.L.R. 23 Bom. 460 If that be so, then in the case of decrees for nullity of marriage as in the case of decrees for dissolution of marriage, where those decrees are passed by a District Judge, six months must elapse between the passing of the decree and confirmation. On the other hand, if in the case of a petition for nullity, the proper decree to pass is an absolute decree in the first instance, then there is a difference where the suits are brought in this High Court, between the case where the suit is for dissolution of marriage and the case where the suit is for a declaration that the marriage is null and void. In the first case, there is the decree nisi in the first instance; in the other case the decree must be absolute in the first instance.

(3.) At the time the Indian Divorce Act was passed the state of the law in England was as follows: In the case of dissolution, by the Act of 1860, Section 7, the decree was nisi and the period that had to elapse before it could be made absolute was three months. That period, by Section 3 of the Act of 1866, was extended to six months. But this gap between the passing of,( the decree and the making absolute of the decree did not exist in the case of a nullity suit; that is to say, where the petition was for a declaration that the marriage was null and void, a simple decree making that declaration was passed and a decree nisi was not required. By the Act of 1873, for the first time, Section 7 of the Act of 1860 and Section 3 of the Act of 1866 were extended to decrees in suits for nullity of marriage, in like manner as they applied in suits for divorce. It will thus be seen that the Indian Divorce Act was passed at a time when the practice in England was to pass a decree nisi in the case of a suit for dissolution of marriage and a plain decree in the case of a suit for nullity of marriage. It will also be seen that after the passing of the Indian Divorce Act, by Statute in England that position was altered so as to put the two classes of cases, as regards this point, on a parity.