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THE DIVORCE ACT, 1869
Section 16 in THE DIVORCE ACT, 1869
Section 6 in THE DIVORCE ACT, 1869
The General Clauses Act, 1897
Section 17 in THE DIVORCE ACT, 1869

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Kerala High Court
Sebastian Champappilly vs Registrar, High Court Of Kerala on 8 April, 2002
Author: B Srikrishna
Bench: B Srikrishna, G Sivarajan



ORDER
 

 B.N. Srikrishna, C.J.

1. Dr. Sebastian Champappilly, representing some of the parties, has drawn our attention to some inadvertent errors which have crept into our judgment dated 1st April, 2002 and requested that we should review the judgment and correct the errors, as otherwise, it would cause serious prejudice and inconvenience to the litigants.

2. We have perused the judgment dated 1st April, 2002 in the light of the submission made by the learned counsel.

3. The first submission is that the original jurisdiction of the High Court under the Divorce Act, 2001 stems from Ss. 4 and 8, read with Section 17 of the Act, subject to the limitations contained therein. This submission deserves acceptance.

4. The next submission is that we have held that Act No. 51 of 2001 came into force from 3.10.2001 and did not have any retrospective effect. Learned counsel points out that while answering point No; 7, we have held as under:

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."

It is urged by the learned counsel that this portion of the judgment needs to be reviewed for two reasons. First, it is pointed out that, by reason of Section 6 of the General Clauses Act, 1897, if an Act is having prospective operation only, then the proceedings initiated under the unamended Act should be dealt with and disposed of in accordance with the provisions of the unamended Act and hence, it is urged that the same principle should be applied here. Secondly, it is contended by Dr. Sebastian Champappilly that, as a matter of practical convenience, it would be more convenient to the litigants to have the matters already pending in the High Court be disposed of in accordance with the provisions of the unamended Act, instead of driving them to District/Family Courts to pursue their remedies there. Upon careful consideration of the submissions, we are inclined to accept the two submissions of the learned counsel. He has also drawn our attention to some inadvertant errors which we shall rectify.

5. In the result, we review the judgment dated 1st April, 2002 in S.M.R. No. 1 of 2002 and direct as under:

(i)     In para. 4, in the last sentence, the number of the Section should be read as "20" instead of "16".
 

(ii)    In para 5, line No. 8 from the bottom of page 8, numbers "4,8" be added between the words "Section" and figure"16". Again in line No. 5 from the bottom of page 8, "Section 16" be replaced by "Sections 8, 16 and 17".
 

(iii)   In para 6 of the judgment, in line No. 2 from the bottom of page 10, "8 and" be added between the words "Section" and figure "17".
 

  (iv)  In the last but one sentence of the judgment, at line No. 2 of page 20, instead of the words "Section 16", it should be read as "Section 20". 
 

We answer Points 4 and 7 as under : 
   

  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 IndianDivorce Act pending in the High Court on 3.10.2001 shall continue to be heard and disposed of in accordance with the unamended Indian Divorce Act, 1869, for that would be consistent with the provisions of Section 6 of the General Clauses Act as must be more practically convenient from the point of the view of the litigants".

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 3rd October, 2001, and in our view has no retrospective effect, all petitions filed thereafter in the High Court must necessarily .be transferred to the District Court/Family Court, whatever be the stage. As far as cases pending in the High Court, which were instituted prior to 3.10.2001 are concerned, they need to be disposed of in accordance with the provisions of the unamended Indian Divorce Act, 1869, for that would be consistent with the provisions of Section 6 of the General Clauses Act, and more practically convenient from the point of view of the litigants".

The Review Petition is accordingly disposed of. The Registry shall ensure that the judgment stands rectified as directed hereinabove.