Arun Kumar Sinha vs Sm. Manjula Sinha on 3 June, 1981

    Arun Kumar Sinha vs Sm. Manjula Sinha on 3/6/1981

JUDGMENT

   Anil K. Sen, J.

   1. This is a reference made by the learned Addl. District Judge, 14th Court,
Alipore, under Section 17 of the Indian Divorce Act, 1869 (hereinafter referred
to as the said Act) in Matrimonial Suit No. 12 of 1971, The reference appears to
us to be rather misconceived.

   2. The parties were married according to Christian rites on April 22, 1964,
and a daughter was born to them. On April 17, 1970, the petitioner-husband
initiated a proceeding under Section 22 of the said Act which was registered as
Matrimonial Suit No. 144 of 1970 (later renumbered as Matrimonial Suit No.
12/71) on transfer against the wife-respondent for a decree for judicial
separation on the ground of desertion without any reasonable cause for more than
2 years and cruelty. That suit was decreed ex parte on March 5, 1971, when then
learned Additional District Judge passed a decree for judicial separation
against the wife under Section 22 of the said Act. Rightly no reference under
Section 17 was then made as no reference is called for in case of a decree in
terms of Section 22 of the Act.

   3. On April 23, 1974, the petitioner-husband filed an application in the
aforesaid suit purported to be one under Section 17 of the said Act. In this
application after pleading the facts leading to the aforesaid ex parte decree
for judicial separation, he claimed that since there has been no reconciliation
OB restoration of the conjugal life between the parties since the said decree,
he is entitled to "get a decree for dissolution of marriage against the
respondent as per provisions contained in the Indian Divorce Act" and further
that the aforesaid decree be given the full force of a decree of divorce which
is to be confirmed by the High Court in terms of Section 17. The relevant prayer
in the application was as follows:--

     "Your petitioner therefore prays (a) for confirmation of the decree for
dissolution of marriage passed by the learned 14th Additional District Judge,
Alipore, in Matrimonial Suit No. 12 of 1971 giving the same the full force of a
decree of divorce on the grounds as stated as per provisions under Section 17 of
the Indian Divorce Act of 1869."

   4. It appears to us that this prayer was wholly misconceived. Unlike Section
13(1)(viii) of the Hindu Marriage Act, the Indian Divorce Act makes no provision
for a decree for dissolution on the ground that the parties to a decree for
judicial separation have not resumed cohabitation for a prescribed period of
time since after passing of such a decree. Therefore, the claim of the
petitioner for a decree for dissolution following the decree for judicial
separation as per the provisions contained in the Indian Divorce Act was wholly
misconceived. Similar is the position with the other claim, namely, confirming
the original decree for judicial separation and thereby give it the force of a
decree of dissolution. The provisions of the said Act neither provide for any
such confirmation nor for elevating a decree of judicial separation to the
position of dissolution of marriage. In disposing of this application the
learned Addl. District Judge has by his order dated May 30, 1975, made the above
reference with an observation "In my judgment no further decree need be passed
in terms of Section 22 of the Indian Divorce Act. Such decree shall have the
effect of a divorce for all subject to confirmation by the High Court.
Accordingly, the order passed by my predecessor in office under Section 22 of
the Indian Divorce Act may be referred to the Hon'ble High Court for
confirmation."

   5. In our considered opinion, though the learned Judge was right in his
conclusion that there is no scope for passing any fresh decree in terms of
Section 22, yet the reference as made by him is not competent in law because
Section 17 does not contemplate confirmation of a decree for judicial separation
passed in terms of Section 22. Section 17 read with Section 20 contemplates
confirmation of a decree dissolving marriage under Chapter III or a decree
declaring the marriage to be null and void under Chapter IV. Section 22 is in
Chapter V and it provides for neither dissolution nor declaration of the
marriage to be null and void. It merely effects judicial separation between, the
parties to the marriage with such consequences as arc provided by the provision
itself. Though that provision itself provides that such a de-crce shall have the
effect of divorce a mensa et thoro, that only means from bed and board in
contrast to a decree of divorce a vinculo matrimonii which means a decree of
nullity. Since a decree under Section 22 does not constitute a decree dissolving
the marriage the learned Judge was wrong in thinking that such a decree shall
have the effect of a divorce of all purposes, and in making the reference for
confirmation of such a decree. In our view, his predecessor in office, who had
passed the decree had taken the correct view, namely, that the decree as passed
by him was by itself an effective decree which required no confirmation by the
High Court.

   6. In this view, the reference as made cannot be accepted and as such, is
rejected.

   7. Preparation of a, formal decree is dispensed, with.

   B.V. Maitra, J.

   8. I agree.

   B.C. Chakrabarti, J.

   9. I agree.