Maria Sera Pinto vs Milton Dias on 25 August, 2000

    Maria Sera Pinto vs Milton Dias on 25/8/2000

JUDGMENT

   1. These petitions have been placed before us at the direction of the Hon'ble
Chief Justice for a decision as to whether the procedure contemplated under
Section 16 of the Indian Divorce Act, 1869 of confirmation of a decree nisi made
by the High Court on its original side is still required in view of the coming
into force of the Family Courts Act, 1984. The present petitions are all
petitions filed under section 10 of the Indian Divorce Act, 1869 for dissolution
of the marriage on different grounds. In each of these petitions a decree nisi
has been made by a learned Single Judge of this Court in exercise of the
matrimonial Jurisdiction of this Court. These decree nisi are required to be
confirmed by virtue of provisions in section 16 of the Indian Divorce Act. We
are informed that there are about 200 other similar matters where decree nisi
has already been made by a learned Single Judge of this Court in exercise of
powers under section 16 of the Indian Divorce Act, 1869. It is not necessary to
discuss the facts giving rise to these petitions to decide the question referred
to us. We shall refer to the facts of M. J. Petition No. 4543 of 1999 as a
typical case.

   2. In M. J. Petition No. 4543 of 1999 the parties are both Christians who
were married in accordance with Christian rites at the St. Anthony's Church.
Vakola, Mumbai on 29th October, 1983. After marriage, the parties resided at
Dahisar. There is one female issue out of the marriage. The petition was
presented on 31st July, 1999 invoking section 10 of the Indian Divorce Act
alleging adultery on the part of the respondent-husband. This petition was tried
and a decree nisi was made on 10th March, 2000. This decree nisi is required to
be confirmed under section 16 of the Indian Divorce Act within a period of six
months therefrom.

   3. The Indian Divorce Act, 1869 is applicable where both parties are
Christians. Section 10 enables either party to present a petition for
dissolution of the marriage on the grounds mentioned therein. Though, as
originally enacted, the grounds available to the wife for dissolution were
somewhat cumbersome and onerous, as a result of the Judgment of this Court in
Pragati Varghese & Ors. v. Cyril George Varghese & Ors., it has been held that
the provision of Section 10, in so far as they impose a restrictive condition on
the wife requiring her to plead and prove an additional ground of adultery, is
unconstitutional and ultra vires Articles 14, 15 and 21 of the Constitution of
India and these restrictive conditions were struck down. Thus, after the
judgment in Pragati Varghese & Ors. (supra) it became permissible for the wife
to petition the Court for dissolution of the marriage on the ground of bigamy,
adultery, cruelty or desertion.

   4. Sections 16 and 17 of the Indian Divorce Act, 1869 are relevant for our
purpose and they read as under :

   "16. Decrees for dissolution to be nisi. - Every decree for dissolution of
marriage made by a High Court not being a confirmation of a decree of a District
Court, shall, in the first instance, be a decree nisi, not to 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.

   Collusion. - During that period any person shall be at liberty, in such
manner as the High Court by general or special order from time to time directs,
to show cause why the said decree should not be made absolute by reason of the
same having been obtained by collusion or by reason of material facts not being
brought before the Court.

   On cause being so shown, the Court shall deal with the case by making the
decree absolute, or by reversing the decree nisi, or by requiring further
inquiry, or otherwise as justice may demand.

   The High Court may order the costs of Counsel and witnesses and otherwise
arising from such cause being shown, to be paid by the parties or such one or
more of them as it thinks fit, including a wife if she have separate property.

   Whenever a decree nisi has been made, and the petitioner fails, within a
reasonable time, to move to have such decree made absolute, the High Court may
dismiss the suit."

   17. Confirmation of decree for dissolution by District Judge .- Every decree
for a dissolution of marriage made by a District Judge shall be subject to
confirmation by the High Court.

   Cases for confirmation of a decree for dissolution of marriage shall be heard
(where the number of the Judges of the High Court is three or upwards) by a
Court composed of three such Judges, and in case of difference the opinion of
the majority shall prevail, or (where the number of the Judges of the High Court
is two) by a Court composed of such two Judges, and in case of difference the
opinion of the Senior Judge shall prevail.

   The High Court, if it thinks further enquiry or additional evidence to be
necessary, may direct such enquiry to be made, or such evidence to be taken.

   The result of such enquiry and the additional evidence shall be certified to
the High Court by the District Judge, and the High Court shall thereupon, make
an order confirming decree for dissolution of marriage, or such other order as
to the Court seems fit :

   Provided that no decree shall be confirmed under this section 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.

   During the progress of the suit in the Court of the District Judge, any
person suspecting that any parties 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 time to time directs,
to apply to the High Court to remove the suit under Section 8, and the High
Court shall thereupon, if it thinks 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."

   Thus, in the case of an order of dissolution of the marriage made under
section 10, the Court (whether it is a District Court or the High Court) has to
make a decree nisi in the first instance, which is required to be confirmed
within the period prescribed under Section 17, if it is a decree nisi made by
the District Judge, it is subject to confirmation by the High Court under
Section 17 by a Special Bench of three Judges of this Court. If the decree nisi
is made by the High Court under Section 16, it is required to be made absolute
after the expiration of at least six months from the pronouncement thereof by a
Single Judge of this Court on the original side. This was the procedure
applicable and consistently followed under the Indian Divorce Act for
dissolution of Christian marriages until a sea change was made in the law by the
coming into force of the Family Courts Act, 1984.

   5. The Family Courts Act, 1984 was enacted to provide for the establishment
of Family Courts "with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family affairs and for matters
connected therewith." as indicated in the preamble of the Act. A separate forum
known as Family Court, with facilities for expert advice on matrimonial matters
from marriage counsellors, and with emphasis on the conciliatory process more
than adjudicatory process, was set up under this Act. Simultaneously with the
setting up of the Family Courts, Parliament thought that the jurisdiction of the
Civil Courts in matters which would legitimately fall within the province of the
Family Court, needed to be curtailed. Consequently, Section 8 of the Family
Courts Act provides that where a Family Court has been established for any area,
no District Court or subordinate Civil Court referred to in section 7(1) shall
exercise jurisdiction in respect of any suit or proceedings of the nature
referred to in the explanation of that sub-section. Further, clause (c) of
section 8 provides that all such suits which were pending before the District
Court or Civil Court immediately before the establishment of such Family Courts,
and which are required to be initiated in the Family Court upon the Family
Courts being established, shall stand transferred to the Family Court on the
date on which such Family Court is established. Consequent upon the Family Court
Act coming into force, all matrimonial matters which were dealt with by the City
Civil Court in the City of Bombay were automatically transferred to the Family
Court and the Family Court has been dealing with such matters.

   6. There was however some doubt entertained as to whether the Family Court
Act made an inroad into the original jurisdiction of this Court Lo entertain
matrimonial cases. Different Single Judges had taken conflicting views. The
matter came up before a Division Bench of this Court in Kanak Vinod Mehta v.
Vinod Dulerai Mehta,. The Division Bench to which one of us (Srikrishna, J.) was
a party, took the view that though the area within which the High Court
exercises original jurisdiction is a District Court, a High Court is not a
District Court for it also exercises jurisdiction on its appellate side, not
only over that district but over the entire State. The Division Bench of this
Court in Kanak Mehta's case followed the view of the Full Bench of the Madras
High Court in Mary Thomas v. K. E. Thomas, on the principle that the Family
Courts Act being a Central Act, if one High Court had taken a particular view,
other High Courts should normally follow the same view. Consequently, the
Division Bench of this Court in Kanak Mehta's case held that, notwithstanding
the coming into force of the Family Courts Act and the establishment of the
Family Courts, the High Court on its original side would not cease to have
jurisdiction in regard to the categories of suits and proceedings mentioned in
the Explanation to sub-section (1) of section. This law was being followed on
the original side of this Court until the view of the Division Bench itself came
to be called into question before a Full Bench of this Court.

   7. In Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, a Full Bench of this
Court (to which one of us, Smt. Ranjana Desai, J. was a party) in its judgment
in Notice of Motion No. 3254 of 1999 in Suit No. 5885 of 1999 decided on 5th May
, 2000 (Per N. J. Pandya, Smt. Ranjana Desai and V. C. Daga, JJ.) disagreed with
the view of the Division Bench in Kanak Mehta's case and categorically laid down
that when the High Court exercises its powers on the original side, the High
Court really acts "as a District Court" within the meaning of the Civil
Procedure Code as also within the meaning of the term as used in the Family
Court Act, 1984. The Full Bench of our High Court in Romila Jaidev Shroff's case
disagreed with the view expressed by the Full Bench of the Madras High Court in
Mary Thomas's case (supra) by relying on the view expressed by the Supreme Court
in Raja Soap Factory and Ors. v. S. P. Shantharaj and Ors., The Full Bench also
emphasised that Section 20 of the Family Courts Act has an overriding effect and
overrides 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. The Full Bench pointed out that a High Court exercises
original jurisdiction in matrimonial cases on the original side only by virtue
of the Letters Patent and in the view of the Full Bench, Letters Patent was an
instrument included in expression "any law for the time being in force" or "an
instrument having effect by virtue of law" which was overridden by section 20.
Thus, the Full Bench concluded :

   "..... in our opinion, the conclusion would be inescapable that when the High
Court exercises its Ordinary Original Civil Jurisdiction in relation to the
matters under the Family Courts Act. It would be a District Court as understood
therein. It would, therefore, lose its jurisdiction."

   In the view of the Full Bench, after coming into force of the Family Courts
Act, 1984 and establishment of the Family Court for Mumbai Area, a High Court
would completely lose its jurisdiction by virtue of the provisions of Sections 7
and 8 read with Section 20 of the Family Courts Act, 1984 and that, by virtue of
clause (c) of sub-section (1) of Section 8, all the matrimonial matters pending
before the High Court on the Original Side shall stand transferred to the Family
Court for hearing and disposal in accordance with the provisions of the said
Act.

   8. The peculiar problem that has arisen today before us was not apparently
presented to the Full Bench as otherwise the Full Bench might have resolved that
issue also. The problem arises only in the case of matrimonial jurisdiction
exercised by this Court under the provisions of the Indian Divorce Act, 1869. As
we have already pointed out, dissolution of a marriage under the Indian Divorce
Act is a two step procedure - first, there is a decree nisi and, second, a
decree nisi is either made absolute by the High Court, itself or confirmed by
the High Court depending whether the decree nisi was passed by a Single Judge of
this Court or by a District Court. For a period of about nine years (from
27.2.1991 on which date Kanak Mehta's was decided till 5.5.2000 when Romila's
case was decided) this Court continued to exercise jurisdiction in matrimonial
cases arising under the Indian Divorce Act, 1869. A number of petitions were
tried and decrees nisi for dissolution were made. While these were pending
confirmation by the High Court, the judgment of the Full Bench in Romila's case
came in and the situation under taw was drastically changed. For about nine
years, the litigants, lawyers (and Judges too) considered themselves bound by
the law laid down by the Division Bench of this Court in Kanak Mehta's case.
Consequently, the view taken was that the jurisdiction under the Indian Divorce
Act, 1869 was exercisable by the High Court on the original side. It is only as
a result of the judgment in Romila's case, from 5th May, 2000, that the law has
been given a different meaning.

   9. The question that confronts us is : whether, in a situation like this, we
must hold that the Full Bench has merely interpreted the provisions of the
Family Courts Act, 1984 and that view taken by the Full Bench would be the law
with effect from 1984 when the said Act came into force? Though our first
instinct was to say so, on deeper reflection we are satisfied that taking such a
view would cause great prejudice, inconvenience and injustice to the parties in
the 200 petitions, which are almost over, by sending them to the Family Court
for further trial and disposal in accordance with the Family Courts Act. Three
considerations prompt us to take the view that the law laid down by the Full
Bench in Romila's case must be deemed to have been brought into prospectively.
First, whether the view taken by the Full Bench amounted to prospective
overruling or had to be applied retrospectively was neither canvassed before the
Full Bench nor adverted to and decided. The life of law is not logic, but
convenience, as Holmes pointed out. We must, therefore, interpret the law in
such a manner that it causes least inconvenience to innocent parties. Second, in
any event, during the period between 1991 to 2000 the judgment which held the
field was Kanak Mehta's case and that was the law which was being followed by
the litigants, Advocates and Judges. We see no reason or compulsion to totally
upset that view at this distant point of time and cause inconvenience to
innocent parties. Third, the number of cases to be dealt with is limited, being
about 200, once they have been disposed of, there is no question of further
cases arising now in view of the clear pronouncement of law by the Full Bench in
Romila's case.

   10. Keeping in mind all these three considerations, we are of the view that
during the period when Kanak Mehta's case held the field, the jurisdiction was
rightly exercised by this Court on the original side and proceedings taken
thereunder and decrees nisi made would have to be held valid and binding on
parties. Once we accept this position, then it is clear that the decrees of
dissolution already made prior to the Judgment in Romila's case would have to be
made absolute in accordance with the provisions of Section 16 of the Indian
Divorce Act. 1869. If the proceedings were pending at a stage prior to the
making the decree nisi, then there is no difficulty in holding that those
proceedings shall stand transferred to the Family Court and be disposed of in
accordance with the said Act.

   11. Our attention is drawn by Ms. Agnes to the judgment of Karnataka High
Court in Joseph Varghese Cheeran v. Smt. Rosy Kurian Kannaikai,. The Division
Bench of the Karnataka High Court was concerned there with a similar dilemma
pursuant to the coming into force of the Family Court Act. A decree for
dissolution of the marriage was rendered by the Family Court in exercise of its
power under the Family Court Act. An appeal was carried there against under
section 19 to the High Court of Karnataka. Simultaneously, the Family Court also
made a reference for confirmation of the decrees granted under section 17 of the
Indian Divorce Act. Considering the situation in its entirely, the Karnataka
High Court was of a view that once the decree of dissolution of the marriage was
made under the Family Court Act, it could only be further processed in
accordance with the procedure prescribed under the said Act and not in
accordance with the procedure under the Indian Divorce Act. 1869- Consequently,
the High Court look the view that there was no necessity for a confirmation
under section 17 of the Indian Divorce Act, 1869. Further, it was held that the
appeal was perfectly maintainable under section 19 of the Family Court Act,
1984. As far as we are concerned, the situation is the converse. It is also not
so simple for historical reasons which we have already indicated. None of the
proceedings under the Indian Divorce Act, 1869 which were pending before this
Court was legally held transferable to the Family Court for a period of nine
years from 1991 (Kanak Mehta) to 2000 (Romila). Thus, though we respectfully
concur with the view expressed by the Division Bench of the Karnataka High Court
that once the proceedings are transferred to the Family Court, it alone shall
have jurisdiction to deal with and all further proceedings shall be governed by
the provisions of the Family Courts Act alone, this view by itself does not help
us in resolution of the problem before us.

   12. In arriving at our conclusion, we are also not unmindful of the criticism
made by the Division Bench of this Court in Pragati Varghese's case about the
cumbersome procedure under sections 16. 17 and 20 of the Indian Divorce Act and
the recommendation made to the Legislature to do away with the cumbersome
procedure by bringing a suitable amendment. We are also fortified in our view by
the judgment of the Special Bench of the Calcutta High Court in Swapna Ghosh v.
Sadananda Ghosh and Anr., The Calcutta High Court also criticised the
incongruity of requirement of the confirmation of the decree and pointed out
that this was cumbersome and it was high time that the Legislature stepped in to
do away with the cumbersome procedure under the Indian Divorce Act. For one
reason or the other, nothing has happened on the Legislative front. In our
judgment, the view we propose to take, coupled with the fortuitous development
in the Family Court Act, 1984 and its interpretation by the Full Bench in
Pragati Varghese's case renders it unnecessary for the Legislature to act now.
We are of the view that as from the date of the Romila's case all pending
matters where a decree nisi has not been made by this Court are required to be
transferred to the Family Court which alone shall exercise jurisdiction in those
cases in accordance with the provisions of the Family Courts Act, 1984. Once
this occurs, it is clear that there is no further question of confirmation of
the decree by the Family Court. The anathema of sections 16, 17 and 20 of the
Indian Divorce Act is automatically removed.

   13. Our attention was also drawn by Ms. Agnes to Rules 818. 819 and 820 of
the Rules and Forms of the High Court of Judicature at Bombay (O.S.) Rules. We
are of the view that, except only in cases where the decrees nisi would have to
be made absolute in accordance with the O.S. Rules 818, 819 and 820, there would
be no further occasion for play of these Rules. Once the existing decrees nisi,
which were already granted prior to the Judgment in Romila's case are dealt with
and made absolute, rules 818. 819 and 820 would became dead letters to be
excised on a future occasion by the High Court in exercise of its amendatory
powers.

   14. In conclusion, we hold as under :-

   (a) All petitions under the Indian Divorce Act in which a decree nisi has
already been made prior to the date of the Judgment of the Full Bench in Romila
Jaidev Shroff (i.e. 5.5.2000), shall continue to be dealt with and disposed of
in accordance with the provisions of Section 16 of the Indian Divorce Act by
being placed before a learned Single Judge for being made absolute.

   (b) All other petitions and proceedings which were at a stage prior to decree
nisi, as on 5.5.2000, shall stand transferred automatically to the Family Court.
The Family Court shall deal with such proceedings in accordance with the
provisions of the Family Courts Act, 1984.

   (c) In respect of matters which had arisen under the Indian Divorce Act, 1869
and stand transferred to the Family Court with effect from 5.5.2000, there shall
be no need for the decree of the Family Court to be confirmed as contemplated
under sections 17 and 20 of the Indian Divorce Act. The provisions of Section 19
of the Family Courts Act dealing with appeals shall be applicable to them also.

   15. We accordingly, answer the Reference made to us as above. We direct that
all petitions under the Indian Divorce Act pending before the Original Side of
this Court be disposed of in accordance with the directions given above.

   16. Parties to act on an ordinary copy of the judgment duly authenticated by
the Court Associate.

   17. Certified copy expedited.