Suo Motu Reference In The Matter Of ... vs Unknown on 1 April, 2002

    Suo Motu Reference In The Matter Of Divorce Act vs on 1/4/2002

JUDGMENT

   B.N. Srikrishna, C.J.

   1. This reference has been made for judicial determination of the following
questions which vitally concern the jurisdiction of this Court in matrimonial
matters where the parties are Christians. The questions which arise for
consideration and determination of this Court are as under:

     "1. Whether there is exclusion of the original jurisdiction of the High
Court in matrimonial matters under the Divorce Act by virtue of the provisions
of Sections 7, 8 and 20 of the Family Courts Act?

     2. ' How far the amendments effected to the erstwhile Indian Divorce Act
have interfered with or curtailed the original jurisdiction of the High Court in
matrimonial matters under the Divorce Act?

     3. If there is exclusion, how the petitions under the Indian Divorce Act in
which decree nisis have been passed by the High Court should be dealt with?

     4. Whether the Original Petitions under the Divorce Act, pending in the
High Court, which are at the stage of prior to decree, should be transferred to
the concerned Family Courts/District Courts for being dealt with in accordance
with law?

     5. In places where there is no Family Court, whether the District Court
exercising the powers of the Family Court, can deal with the petitions so
transferred?

     6. Whether the original jurisdiction of the High Court in matrimonial
matters under the Divorce Act is still preserved by virtue of Ss. 4 and 6 of the
said Act?

     7. Considering the wider powers now given to the District Court to pass a
decree absolute at the first instance itself while the High Court can only
pronounce a decree nisi at the first instance under Section 16 of the Divorce
Act, which has to be made absolute after the expiry of six months from the date
of decree, will it be appropriate to relegate the parties to the concerned
Family Court/District Court by ordering return of the petitions filed after
3.10.2001?

     8. In view of the deletion of Ss. 17 and 20 requiring confirmation by the
High Court of decrees passed by the District Court/Family Court, what further
step is to betaken with regard to the matters pending for confirmation by the
High Court in which decrees were passed prior to 3.10.2001 ?"

   2. The Indian Divorce Act, 1869 was enacted to amend the law relating to
persons professing the Christian religion and confer upon certain courts the
jurisdiction on matrimonial matters. Even prior to the enactment of the Indian
Divorce Act, 1869, the High Courts in India exercised jurisdiction in
matrimonial matters under the enabling provisions of the High Courts Act and the
provisions of the Letters Patent establishing the High Court. Under the Act,
jurisdiction was concurrently conferred on the High Court as well as the
District Court in matrimonial matters. The Act also contained certain provisions
which restricted the grounds on which a Christian woman could seek dissolution
of marriage. Some of the High Courts struck down these restrictive provisions as
discriminative and hit by Article 14 of the Constitution of India. The Law
Commission of India in its 164th Report inter alia recommended that Parliament
may enact a comprehensive law governing marriage and divorce and other allied
aspects applicable to Christians in India. The Commission also highlighted the
difficulties faced and inadequacies in the Indian Divorce Act as brought to
light by several judgments of the High Courts. Since there was no consensus
amongst the members of the Christian community on the proposal for unified law
on marriage and divorce, Parliament thought it fit to make certain amendments is
the Indian Divorce Act to remove the glaring features of discrimination brought
to light. The Indian Divorce (Amendment) Act, 2001, (Act No. 51 of 2001) was
enacted by Parliament for this purpose and brought into force from 3rd October,
2001.

   3. The amending Act of 2001 has changed the title of the Act from 'Indian
Divorce Act' to 'Divorce Act'. Prior to the coming into force of this amending
Act, the High Court and the District Court had concurrent jurisdiction to
entertain petitions for dissolution of marriage under Section 10 on the grounds
specified therein, for pronouncing a decree of nullity under Section 18 on the
grounds specified in Section 19, for making a decree for judicial separation
under Section 23, for ordering permanent alimony after making the decree
absolute declaring a marriage to be dissolved under Section 37, to enquire into
antenuptial and post-nuptial settlement under Section 40, to make orders to the
custody of children after a decree for dissolution or nullity under Section 43,
to make orders with regard to the custody, maintenance and education of minor
children under Section 44 after a decree of dissolution or nullity of marriage
has been passed. Section 4 of the amended Act declares that the jurisdiction now
exercised by the High Courts in respect of divorce a mensa et toro and in all
other causes, suits and matrimonial matters can be exercised by such Courts and
by the District Courts subject to the provisions of the Act. Section6 of the Act
provides that all suits and proceedings in cases and matters matrimonial when
the Act came into operation would have to be dealt with and decided by the High
Court, so far as may be, as if they had been originally instituted under this
Act. Section 8 gave the High Court extra ordinary jurisdiction in appropriate
cases to remove and try and determine originally any suit or proceeding
instituted under the Act in the District Court within the limits of the
jurisdiction of the High Court. It also had the power to transfer such suits or
proceedings from one District Court to another. Section 9 empowers the High
Court upon a reference to decide a question of law.

   4. As a result of the Amending Act of 2001, with effect from 3.10.2001,
sweeping changes have been made in the Indian Divorce Act, 1869. In Sections 10,
18, 22 27, 32, 37, 40, 44 and 55 of the Act, the words "High Court" have been
deleted and the sections as amended indicated that Original Petitions for
matrimonial reliefs under the Act are to be filed in the District Court. Under
the unamended Act, there was a two step procedure for dissolution of a marriage.
If the decree for dissolution of marriage was made by the High Court, then, it
was to be at the first instance a decree nisi, to be made absolute after a
period of not less than six months. After six months, the decree nisi had to be
considered and made into a decree absolute or reversed. If, however, the decree
for dissolution of marriage had been made by a District Court, it had to come up
for confirmation under the unamended Section 16 before the High Court, which
would, after further hearing, confirm the decree for dissolution of marriage or
pass such other appropriate order as it deemed fit.

   5. Act No. 51 of 2001 has left untouched Sections 4 and 6 of the Indian
Divorce Act, 1869. Thus, even after its amendment by the Act 51 of 2001, Ss. 4
and 6 read as under:

     "4. Matrimonial jurisdiction of High Courts to be exercised subject to Act,
Exception.- The jurisdiction now exercised by the High Courts in respect of
divorce a mensa et toro, and in all other causes, suits and matters matrimonial,
shall be exercisedby such Courts, and by the District Courts subject to the
provisions in this Act contained, and not otherwise: except so far as relates to
the granting of marriage licenses, which may be granted as if this Act had not
been passed".

     "6. Pending Suits.- All suits and proceedings in cases and matters
matrimonial which when this Act comes into operation are pending in any High
Court, shall be dealt with and decided by such Court, so far as may be, as if
they had been originally instituted therein under this Act".

   Thus, it may appear that the jurisdiction of the High Court in matrimonial
matters has been left in tact. The question, however, arises as to what is this
original jurisdiction? As we have already pointed out, Sections 10, 18, 23, 27,
32, 37, 40, 44 and 45, which deal with the procedure for filing of Original
Petitions for relief, have specifically excluded the words "High Court". The
result is that such petitions would now have to be presented only before the
District Court. Section 16 of the Act which deals with confirmation of a decree
nisi, still remains. However, Section 17 of the Act has been amended and to read
as under:

     "17. Power of High Court to remove certain suits.- During the progress of
the suit in the Court of the District Judge, any person suspecting that any
party 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 lime to time directs, to apply to the High Court
to remove the suit under Section 8, and the Court shall thereupon, if it think
fit, remove such suit and try and determine the same as a Court of original
jurisdiction, and the provisions contained in Section 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".

   The combined effect of reading Ss. 16 and 17 as amended would suggest that
the High Court has the power to remove suits from the Courts of District Judge
on grounds specified in Section 16 to try them, as if it was a court of original
jurisdiction. When that happens, the provisions of Section 16 with regard to
making of a decree nisi and confirmation thereof after a period of not less than
six months would be applicable. Barring this limited jurisdiction, there does
not appear to be any other scope for exercise of Original Jurisdiction by the
High Court in matrimonial causes under the Act.

   6. As a result of the coming into force of the Family Courts Act, 1984, the
jurisdiction of the District Court to entertain the matrimonial causes has been
taken away. Section 20 of the Family Court Act, 1984 provides that the
provisions of the said Act would have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force or
in any instrument having effect by virtue of any law other than the said Act.
Section 7 of the Family Courts Act vests exclusive jurisdiction in the Family
Court, wherever it has been established, and declares it to be a District Court
for the purpose of exercising matrimonial jurisdiction. The jurisdiction of the
Family Court is delineated in Section 7 of the Family Court Act, 1984 in respect
of suits and proceedings of the type specified in Clauses (a) to (g) of the
Explanation to Section 7(1). It also has been vested with the jurisdiction of a
Magistrate of First Class under Chapter IX of the Code of Criminal Procedure,
1973, and such other jurisdiction as may be conferred on it by any other
enactment. Section 8 of the Family Courts Act, 1984 provides that where a Family
Court has been established in any area, no District Court or any subordinate
civil court in relation to such area shall have or exercise any jurisdiction in
respect of any suit or proceeding of the nature referred to in the Explanation
to Section 7(1). Sub-section (c) of Section 8 provides that every suit or
proceeding of the nature referred to in the Explanation to Section 7(1), which
is pending before the District Court or Courts subordinate thereto, shall stand
transferred to the Family Court on the day on which it is established. The
combined effect of the Act No. 51 of 2001 read with the provisions of Ss. 20, 7
and 8 of the Family Courts Act, 1984, is that, in the areas in which Family
Courts have been established, the original jurisdiction in matters arising under
the Divorce Act, 2001, would vest exclusively with the Family Courts. In areas
where no Family Courts have been established, such jurisdiction would lie with
the District Court. The jurisdiction of the High Court is a special
jurisdiction, which it may exercise if the circumstances contemplated in Section
17 arise; in such cases, the procedure for making a decree nisi in the first
instance and making it absolute after the specified period as in Section 16
would continue to apply. Where a decree is made by the District Court or the
Family Court, the cumbersome procedure of having such decrees confirmed by the
High Court has been done away with. Such decrees would be subject to appeal
under Section 19 of the Family Court, 1984; or if the decree has been made by
the District Court, by reason of Section 45 of the Divorce Act, 2001 read with
Section 55 thereof, it shall be subject to an appeal as provided under the Code
of Civil Procedure, 1908, subject to a further appeal to the Supreme Court under
Section 56, where a decree (other than a decree nisi) has been made by the High
Court.

   7. We have had the benefit of hearing the submission of Dr. Sebastian
Champappilly, Mr. George Cherian (Thiruvalla), Mr. Tony George Kannanthanam and
Smt. Molly Jacob. The counsel have urged different points of view and their
learned submissions helped in throwing light on the legal position resulting
from the amending Act. We are not inclined to accept the view that the original
jurisdiction of the High Court in matrimonial matters has fully remained in
tact, and not taken away even after the coming into force of Act 51 of 2001. In
our view, the original jurisdiction has been very much curtailed and now is
exercisable only under Section 17 of the Act.

   8. The next question for consideration is whether Act 51 of 2001 has
retrospective effect. There appears to be serious disagreement amongst counsel
on this issue. While some of the counsel have urged that the Act should not be
made applicable to the proceedings which were pending in the High Court prior to
3rd October, 2001, some urge that there is no reason why it should not be made
applicable retrospectively. Mr. Tony George Kannanthanam strongly contended that
the procedure with regard to confirmation of decrees, where a decree was passed
by a District Court or the procedure of confirmation by a special ,Bench where
the decree nisi was passed by the High Court contemplated under Ss. 16, 17 and
20, are discriminatory as against Christians and result in imposition of
cumbersome procedure, which achieve no useful purpose. He contended that, it is
precisely the reason why the amendment was brought into effect. He strongly
urged that this Court should hold that the procedure for confirmation of decrees
prescribed in Ss. 16, 17 and 20 of the unamended Act should be declared as
violative of Article 14 and ultra vires of the Constitution, That is not an
issue which we propose to consider in the present reference. In the present
reference, we have confined our attention only to the position of law emerging
as a result of the coming into force of the Act51 of 2001.

   9. It is a basic canon of construction of statutes that no statute shall be
construed to have retrospective operation unless such a construction appears
very clearly in the term of the Act, or arises by necessary and distinct
implication. It is also an accepted principle that presumption against
retrospectively does not apply in the case of a statute affecting the procedure
in courts.

   10. Act51 of 2001 contains no express provision suggesting that it was
intended to operate retrospectively, nor do we see any other compelling reason
to take the view that it was intended to operate retrospectively. In our view,
the provisions of Act 51 of 2001 operate prospectively, from the date when the
Act was brought into force, ie., from 3.10.2001. The immediate question that
arises is how are the proceedings, which were pending at different stages, be
disposed of. The proceedings might have been pending before the District Court
or High Court at various stages. We can envisage the following contingencies:-

     (a) Proceedings pending before the District Court, which had not culminated
in a decree;

     (b) Proceedings which had culminated in a decree of the District Court and
are pending confirmation before a High Court;

     (c) Proceedings which are pending before the High Court in which a decree
nisi has not been made;

     (d) Proceedings in the High Court in which decree nisi has been made and
are pending confirmation.

   11. The most practical and pragmatic view which would save considerable
inconvenience, expenditure and hardship to the litigants is to hold that all
proceedings, whether pending in the District Court or the High Court, initiated
under the provisions of the unamerided Act, which had not resulted into a decree
shall be governed and disposed of in accordance with the amendments made by the
Act No. 51 of 2001. If such proceedings were pending before the District Court
in areas where a Family Court has been established, they shall forthwith be
transferred to the Family Court for hearing and disposal by the Family Court.
The decrees made by the District Court or Family Court in such cases shall be
subject to right of appeal as indicated, without the requirement of any
confirmation as provided in the unamended Act. Where decrees had been made by
the District Court or decrees nisi had been made by the High Court, which were
pending confirmation before the High Court, practical considerations of
convenience and avoidance of hardship to the litigants dictate that such
proceedings be disposed by following the procedure of confirmation as before.
This is particularly so, because taking a contrary view would preclude the
procedure of confirmation and also deny the right of appeal in such cases.

   12. We now proceed to answer the questions referred to us as under:

     Points 1, 2 and 6:

     "1. Whether there is exclusion of the original jurisdiction of the High
Court in matrimonial matters under the Divorce Act by virtue of the provisions
of Ss. 7, 8, and 20 of the Family Courts Act?

     2. How far the amendments effected to the erstwhile Indian Divorce Act have
interfered with or curtailed the original jurisdiction of the High Court in
matrimonial matters under the Divorce Act?

     6. Whether the original jurisdiction of the High Court in matrimonial
matters under the Divorce Act is still preserved by virtue of Ss. 4 and 6 of the
said Act?"

   As a result of the amendments carried out by Act No. 51 of 2001, the original
jurisdiction of High Court in matrimonial matters under the Divorce Act is taken
away except to the limited extent retained under Section 17. The original
jurisdiction is now confined to the special power of the High Court under
Section 17 to be exercised in the circumstances indicated therein. We approve of
the view taken by the learned Single Judge of this Court in Sherly Thomas v.
Johny, 2002 (1) KLT 467, wherein it has been held that, after the amendment of
Ss. 10 and 18 of the Indian Divorce Act, the High Court lacks jurisdiction to
entertain petitions under Sections 10 and 18 of the Divorce Act. Apart from the
limited area under Section 17, the original jurisdiction in matrimonial matters
under the Divorce Act now rests exclusively with the Family Courts, in areas
where they are in existence, and in other areas with the District Courts.

     Point No. 3:

     "If there is exclusion, how the petitions under the Indian Divorce Act in
which decree nisis have been passed by the High Court should be dealt with"?

   In matters where decrees nisi have been passed by the High Court, the decrees
nisi would have to be confirmed by the High Court by following the procedure
prescribed under Section 16 of the Divorce Act.

     Point No. 4:

     "Whether the Original Petitions under the Divorce Act, pending in the High
Court, which are at the stage of prior to decree, should be transferred to the
concerned Family Courts/District Courts for being dealt with in accordance with
law?"

   All Original Petitions under the Indian Divorce Act pending in the High Court
on 3.10.2001, at stages prior to decree nisi should forthwith be transferred to
the appropriate Family Court/District Court for being dealt with in accordance
with law. The decrees made in such transferred cases shall be subject to the
provisions of the Family Court's Act/CPC for the purpose of the appeal and shall
not be required to be confirmed as under the unamended Act.

     Point No. 5:

     "In places where there is no Family Court, whether the District Court
exercising the powers of the Family Court, can deal with the petitions so
transferred?"

   Where there is no Family Court, such pending proceedings shall stand
transferred to the District Court to be dealt with in accordance with law,
subject to the right of appeal conferred under Ss. 45 read with 55 of the
Divorce Act.

     Point No. 7:

     "Considering the wider powers now given to the District Court to pass a
decree absolute at the first instance itself while the High Court can only
pronounce a decree nisi at the first instance under Section 16 of the Divorce
Act, which has to be made absolute after the expiry of six months from the date
of decree, will it be appropriate to relegate the parties to the concerned
Family Court/District Court By ordering return of the petitions filed after
3.10.2001 ?"

   Since the Amending Act has come into force from 3.10.2001, all petitions
filed in the . High Court must necessarily be transferred to the Family Court/
District Court if they are at the stage prior to the making of a decree nisi.
This will entail them the advantage of avoiding the two step procedure of a
decree nisi followed by confirmation and enable the petitioners to get a decree
absolute at the first instance from the Family Court/District Court, subject to
appeal as indicated. In any event, the High Court ceases to have original
jurisdiction on and after 3rd October, 2001.

     Point No. 8:

     "In view of the deletion of Ss. 17 and 20 requiring confirmation by the
High Court of de9rees passed by the District Court/Family Court, what further
step is to be taken with regard to the matters pending for confirmation by the
High Court in which decrees were passed prior to 3.10.2001?"

   In cases where decrees were already passed prior to 3.10.2001, which are
pending for confirmation before the High Court, considerations of practical
convenience and avoidance of hardship to the litigants dictate that the High
Court should immediately take up such matters and dispose them of in accordance
with the procedure in Section 16. Any other view, would mean depriving the
litigant of the benefit of confirmation of the decree as also the right of
appeal which would not be available in their cases.