Dennis Lall vs Smt. Amita Lall on 3 March, 1997

    Dennis Lall vs Smt. Amita Lall on 3/3/1997

JUDGMENT

   G.P. Mathur, J.

   1. The two appeals have been placed before this Special Bench, on a reference
made by Judge, Family Court, Jhansi. The appeals are being disposed of by a
common order as the controversy raised is identical.

   2. Dennis Lal filed a petition under Section 22 of Divorce Act, 1869
(hereinafter referred to as the Act) against his wife Smt. Amita Lall, which was
registered as suit No. 270 of 1994, praying that a decree of judicial separation
be passed on the ground of adultery and cruelty. The Judge, Family Court, Jhansi
passed a decree for judicial separation on 21-5-96 but directed that the same
shall be effective after confirmation by the High Court and accordingly made a
reference to this Court which has been registered as First Appeal No. 432 of
1996.

   3. Smt. Anita Rohini Shirin Newton filed a petition under Section 10 of the
Act against her husband Ivan Alphonsus Michael Lewis, which was registered as
Suit No. 321 of 1993, praying that her marriage with her husband be dissolved by
a decree of divorce. The Judge, Family Court, passed a decree for divorce on
29-8-95 but directed that the same shall be effective after confirmation by the
High Court in accordance with Section 17 of the Act and accordingly made a
reference to this Court which has been registered as First Appeal No. 433 of
1996.

   4. Chapter III (Section 10 to Section 17A) of the Indian Divorce Act deals
with dissolution of marriage and Chapter V (Section 22 to Section 26) deals with
judicial separation. Section 10 of the Act enumerates the grounds on which a
husband or a wife may file a petition for dissolution of marriage. Section 17
lays down that every decree for dissolution of marriage made by a District
Judge, shall be subject to confirmation by the High Court. Section 22 enumerates
the grounds on which a husband or a wife may obtain a decree of judicial
separation. The Act does not lay down that a decree for judicial separation
passed by a District Judge shall be subject to confirmation by the High Court.
There are only two sections in the Act which lay down that a decree passed by a
District Judge shall be subject to confirmation by the High Court. One is a
decree for dissolution of marriage which requires confirmation under Section 17
and the other is a decree of nullity of marriage which requires confirmation
under Section 20. It is, therefore, clear that a decree for judicial separation
passed by a District Judge under Section 22 of the Act does not require
confirmation by the High Court and is effective by itself. The same view has
been taken by Special Benches of three different High Courts in R.S. Mannual v.
Mary Sura, AIR 1982 Kant 235, Arun Kumar Sinha v. Manjula Sinha, AIR 1981 Cal
252 and Sahaya Barathy v. A.S. Rajiputhiran, AIR 1981 Mad 78. Therefore the
reference made by the Judge, Family Court, Jhansi in suit No. 270 of 1994 for
confirmation of the decree for judicial separation passed by him on 21-5-96 is
incompetent.

   5. Section 17 of the Principal Act which provides that every decree for
dissolution of marriage made by a District Judge shall be subject to
confirmation by the High Court has been amended by the (Indian) Divorce (U.P.
Amendment) Act, 1957 (U. P. Act No. XXX of 1957) which came into force on
October 21, 1957. The Amending Act received assent of the President of India and
therefore in view of Article 254 of the Constitution it shall prevail over the
Central Act. The Central Act has been drastically amended by the U. P. Act and
Section 17 has been amended in the following manner:

     "1. Paragraph one to five shall be omitted.

     2. In paragraph six words "or special" occurring between the words
"general" and "or" shall be omitted."

   6. In view of the U. P. Amendment, a decree for dissolution of marriage made
by a District Judge does not require confirmation by the High Court and is
effective by itself. Therefore the reference made by the Judge, Family Court for
confirmation of decree for dissolution of marriage passed by him in suit No. 321
of 1993 is incompetent.

   7. For the reasons mentioned above, both the references are rejected. The
Judge, Family Court, Jhansi, is directed to pass final orders in accordance with
law in both the suits.