Agnes Sumathi Ammal vs D. Paul on 11 October, 1935

    Agnes Sumathi Ammal vs D. Paul on 11/10/1935

JUDGMENT

   Stone, J.

   1. The question that has been referred is whether a decree passed by the
Court sitting for the disposal of matrimonial work of this High "Court in a
petition for nullity of marriage should be a decree nisi, or a decree absolute.
It has been the practice in this High Court hitherto to make the decree in the
first place a decree nisi. It would appear that the practice in the other High
Courts and In particular Bombay has been different, those High Courts having in
nullity suits made the decree absolute in the first place.

   2. Section 16 of the Indian Divorce Act provides that a decree for a
dissolution of marriage made by a High Court inter alia shall in the first
instance, be a decree nisi and shall not 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.
Provision is made for the intervention originally of any person, now, since the
passing of Section 17-A, an officer exercising power similar to those of the
King's Proctor. On the other hand, Section 18 enables a husband or wife to
present a petition praying that the marriage might be declared null and void.
Section 19 states the grounds upon which a decree of nullity may be granted and
Section 20 makes it necessary in the case where a decree is passed by a District
Judge for it to be subject to confirmation by the High Court and applies the
provisions of Section 17 Clauses 1, 2, 3 and 4, to such decrees. Section 17,
Clauses 1, 2, 3 or 4 are concerned with the confirmation of a decree for
dissolution of marriage by a District Judge, and it has been a matter of debate
in other High Courts as to what Clauses 1, 2, o and 4 include. The clauses are
not numbered and there-are in the section six paragraphs. The doubt has been as
to paragraphs 4 and 5, whether those are two clauses or one clause plus a
proviso. A v. B (1898) I.L.R. 23 Bom. 460 decides that the proviso is attached
to the fourth clause and consequently the fourth clause includes the fourth
paragraph and the fifth paragraph. Caston v. Caston (1900) I.L.R. 22 All. 270
(F.B.) and Samuel v. Samuel (1934) I.L.R. 15 Lah. 846 (F.B.) decide that the
fourth paragraph is one clause and the fifth paragraph, that is, the proviso is
another clause. In my opinion, as a matter of construction it is not possible to
regard a proviso as a clause, and I prefer to follow A v. B. (1898) I.L.R. 23
Bom. 460 If that be so, then in the case of decrees for nullity of marriage as
in the case of decrees for dissolution of marriage, where those decrees are
passed by a District Judge, six months must elapse between the passing of the
decree and confirmation. On the other hand, if in the case of a petition for
nullity, the proper decree to pass is an absolute decree in the first instance,
then there is a difference where the suits are brought in this High Court,
between the case where the suit is for dissolution of marriage and the case
where the suit is for a declaration that the marriage is null and void. In the
first case, there is the decree nisi in the first instance; in the other case
the decree must be absolute in the first instance.

   3. At the time the Indian Divorce Act was passed the state of the law in
England was as follows: In the case of dissolution, by the Act of 1860, Section
7, the decree was nisi and the period that had to elapse before it could be made
absolute was three months. That period, by Section 3 of the Act of 1866, was
extended to six months. But this gap between the passing of,( the decree and the
making absolute of the decree did not exist in the case of a nullity suit; that
is to say, where the petition was for a declaration that the marriage was null
and void, a simple decree making that declaration was passed and a decree nisi
was not required. By the Act of 1873, for the first time, Section 7 of the Act
of 1860 and Section 3 of the Act of 1866 were extended to decrees in suits for
nullity of marriage, in like manner as they applied in suits for divorce. It
will thus be seen that the Indian Divorce Act was passed at a time when the
practice in England was to pass a decree nisi in the case of a suit for
dissolution of marriage and a plain decree in the case of a suit for nullity of
marriage. It will also be seen that after the passing of the Indian Divorce Act,
by Statute in England that position was altered so as to put the two classes of
cases, as regards this point, on a parity.

   4. It is necessary now to refer to another section, and a very important one,
of the Indian Divorce Act. Section 7 provides as follows:

     Subject to the provisions contained in this Act the High Courts... shall,
in all suits and proceedings hereunder, act and give relief on principles and
rules which, in the opinion of the said courts, are as nearly as may be
conformable to the principles and rules on which the court for Divorce and
Matrimonial Causes in England for the time being acts and gives relief.

   5. Then follows a proviso. In Iswarayya v. Swarnam Iswarayya (1929) 58 M.L.J.
29 Reilly, J. made some remarks upon the meaning of the words 'principles and
rules' in this section. His observations are at page

   31. I would observe that these observations are obiter. He says:

     The words 'principles and rules' in Section 7 of the Indian Divorce Act
mean principles and rules of law, of evidence, of interpretation, of practice,
and of procedure but not statutory provisions nor statutory rules.

   6. That case went to the Privy Council and I shall return to it later when
considering what the Privy Council has had to say on this. At the moment I
content myself with observing that those words 'principles and rules' are to be
found in the English Divorce Act of 1857, Section 22, which provides as follows:

     In all suits and proceedings, other than proceedings to dissolve any
marriage, the said court shall proceed and act and give relief on principles and
rules which, in the opinion of the said court, shall be as nearly as may be
conformable to the principles and rules on which the eccleciastical courts have
heretofore acted and given relief, but subject to the provisions herein
contained, and to the rules and orders under this Act.

   7. I think it is a little unfortunate that a term which is apposite when
dealing with the principles and rules applied by the eccleciastical courts has
been imported into a section which directs this High Court to act on principles
and rules on which the court for Divorce and Matrimonial Causes in England for
the time being acts and gives relief. But I am satisfied that the court for
Divorce and Matrimonial Causes in England acts upon principles and rules which
include statutory provisions. I myself find it difficult to see why a
distinction should be drawn between those 'principles and rules' (which
presumably mean principles and rules of law) which are derived from Statute and
those which are derived from any other source. Such source clearly cannot be
principles and rules applied by the old eccleciastical courts, because such
principles and rules would have become a closed body of principles and rules at
the time when the old eccleciastical Courts were replaced by the Court for
Divorce and Matrimonial Causes and could not thereafter as principles and rules
of the eccleciastical Courts be extended, and, with respect, I find myself
unable to agree with the last seven words of the citation above made from
Reilly, J's. judgment in Iswarayya v. Swarnam Iswarayya (1929) 58 M.L.J. 29. But
subject to the deletion of the last seven words I respectfully agree with the
observations in that case. When the case came before the Privy Council reported
as Iswarayya v. Swarnam Iswarayya (1931) L.R. 58 I.A. 350 : I.L.R. 54 Mad. 774 :
61 M.L.J. 367 (P.C.) the Judicial Committee at page 375 made the following
observations:

     Their Lordships fully realise that an Indian Act does not fall to be
construed in the light of statues enacted by another Legislature. But this is a
case in which the Indian Act makes express reference to the Court in England to
which the relevant jurisdiction of the Eccleciastical Courts was transferred,
and to the principles and rules on which that Court acts and gives relief. If it
had been intended that the Courts in India, acting under this Act, should not
have, in relation to a wife who had obtained a decree for judicial separation,
the power which the Court in England enjoyed, of increasing the amount of her
permanent alimony as and when the circumstances justified an increase, but that
they should be restricted to the making of one order only for permanent alimony,
their Lordships feel that this intention would have been declared in express and
unequivocal terms.

   8. In that case the question was whether in the case of a decree for judicial
separation the Courts in India had the power to increase permanent alimony or
whether once the order directing permanent alimony had been passed that
exhausted the power of the Court. In other words whether the expression 'an
order' excluded the idea of a series of orders. In the present case the question
is whether the words 'a decree' excludes the possibility of a decree reached in
two stages or including two stages one a decree nisi the other a decree
absolute. Lord Russell who delivered the judgment of the Board follows out the
history of the law in England; but he only refers to this history after he has
considered as a matter of construction the relevant section in the Indian
Divorce Act; that is to say, their Lordships first of all consider as a matter
of construction what the true meaning of the relevant section of the Act is and
then they consider the history of the matter as it was in England in order to
see whether that in any way throws doubt on the correctness of the reading that
they have given to the relevant section. They do this because they observe at
page 372 that:

     Section 7 of the Act makes it abundantly clear that the legislative
authority in enacting the Indian Divorce Act had in view the principles and
rules upon which the Courts in England acted and gave relief.

   9. Their Lordships add:

     It is therefore not irrelevant to enquire how matters stood and stand in
England in relation to this question.

   10. Under the Act of 1857 provision was made for the maintenance of the wife
after the dissolution of the marriage. That was a new provision. It gave the
Court power to order the husband to secure by deed a gross sum to the wife and
to suspend pronouncing of its decree until the deed had been executed. That
provision is permanent maintenance. Under that section no power was conferred on
the Court to make a subsequent order. It was only effective against the husband
who had property to secure. To remedy that defect the Act of 1866 was passed,
which empowered the Court to make an order directing the husband to pay
periodically a sum to the wife for maintenance and support. Thus at the time of
the passing of the Indian Divorce Act, in the case of a decree for dissolution
of marriage the Court had power to direct the securing of a gross sum or an
annual sum and had a further power to order periodical payments and to modify in
favour of the husband such order for periodical payments, but no power enabling
the wife to apply to have the periodical payments increased.

   11. The wife had not that power to apply for an increase until, 1907, so far
as regards maintenance in the case of dissolution, now as regards permanent
alimony. In the case of maintenance the old eccleciastical Courts had no power
to grant it at all. In the case of permanent alimony the eccleciastical Courts
had the power and could order variations from time to time for increasing or
reducing. The Act of 1857 dealing with restitution of conjugal rights or
judicial separation provided that the Court might make ' any order ' for alimony
which shall be deemed just. It did not provide for ' orders' but ' any order '.
Notwithstanding that on the face of it it looked as though only one order could
be made, the power of the Court to make orders from time to time varying the
alimony was not doubted and was the practice of the Courts. This was not in
virtue of Section 22 which applied the principles and rules of the
Eccleciastical Courts because if on a true construction of Section 17 ' any
order' had meant one order and one only, then the Eccleciastical Courts' powers
of making orders from time to time could not have been imported without going
contrary to the express provisions of the Act of 1857. When the Indian Divorce
Act was passed this question of maintenance and alimony were put together in one
section and that section - Section 37, provides as follows:

     The High Court may, if it thinks fit, on any decree absolute declaring a
marriage to be dissolved, or any decree of judicial separation obtained by the
wife...order that the husband shall, to the satisfaction of the Court, secure to
the wife, such gross sum of money, or such annual sum of money for any term not
exceeding her own life, as having regard to her fortune (if any), to the ability
of the husband, and to the conduct of the parties, it thinks reasonable, and for
that purpose may cause a proper instrument to be executed by all necessary
parties. In every such case the Court may make an order on the husband for
payment to the wife of such monthly or weekly sums for her maintenance and
support as the Court may think reasonable; provided that if the husband
afterwards from any cause becomes unable to make such payments, it shall be
lawful for the Court to discharge or modify the order, or temporarily to suspend
the same as to the whole or any part of the money so ordered to be paid, and
again to revive the same order wholly or in part, as to the Court seems fit.

   12. That is to say, the section is dealing both with decrees for dissolution,
where permanent maintenance is normal order, and with decrees for judicial
separation, where permanent alimony is granted, under the same section. And it
enables the Court (1) to make an order on the husband to secure and (2) to make
an order on the husband to pay. Now if there is power in the Court to increase a
permanent alimony, it would appear at any rate to be arguable that there is a
power to increase the amount of permanent maintenance.

   13. If this were so, then the section gives the Courts in India in 1869 a
power which the Court in England only obtained in 1907. That question was left
expressly open by the Judicial Committee who decided that upon the true
construction of Section 37 a Court which has made an order on a husband for
payment to his wife of monthly or weekly sums for maintenance and support has
power to make subsequent orders on the husband for payment of increased amounts.
The importance of that case from the present point of view is in my opinion as
follows: Since in 1869 the Courts in England had power to vary orders for
permanent alimony, and as Section 7 in their Lordships' opinion makes it
apparent that the Indian Legislature desired matrimonial causes in this country
to follow the English practice so far as that practice did not conflict with the
provisions of the Act, had the legislature had it in mind to stop Indian Courts
following this particular kind of English practice then existing in 1869, they
would have put words in Section 37 which would have made it impossible without
violating the provisions of the Indian Divorce Act to follow the English
practice on this point. In the present case at the time of the passing of the
Indian Divorce Act there was no practice or procedure in England in the case of
nullity suits where a decree nisi was first pronounced and then a decree
absolute and the Indian Divorce Act is entirely silent on the point, It does not
provide that the decree that shall be passed in a nullity suit shall be a decree
absolute. Indeed in my opinion the term 'decree absolute' has only a relative
meaning. It is a term that is used in contradistinction to decree nisi. Ordinary
decrees passed by Courts which are called decrees simpliciter are decrees
absolute. But there is no need to use the word 'absolute' unless you are
distinguishing that decree from another kind of decree. One has the same sort of
decrees in this Court in the case of mortgage suits where one has a preliminary
decree and a final decree. But in such suits I do not think there can be any
doubt that the final decree is the decree. When therefore the Indian Divorce Act
in Section 19 speaks of 'such decree', it is not defining the nature of the
decree, it is not stating in what form the decree shall first of all be drafted,
it is empowering the Court to pass a decree. If the decree in question must be
in all cases an unconditional, absolute, decree, then it would be proper to
construe Section 19 somewhat as follows:

     Such decree which shall be a decree absolute in all cases may be made on
any of the following grounds .

   14. But in fact the section leaves out the words 'which shall be a decree
absolute in all cases'. It doubtless leaves out those words because it is
following the English practice which as regards nullity suits makes no
distinction between decrees nisi and absolute. But in England thereafter owing
to statutory changes this distinction between decrees nisi and absolute is made.
In my opinion that statutory change imports a new principle or rule which the
Matrimonial Courts in England must follow and owing to Section 7 as a
consequence the Matrimonial Courts in this country must follow the change also
unless there is a provision in the Indian Divorce Act to the ' contrary. In my
opinion, there is no provision to the contrary; there is no provision on the
point at all. All that is said is that such decree may be made, leaving it at
large as to the nature of the decree. That in my opinion is not a provision
which forbids the Court to make a decree conditional if it thinks fit. It is a
direction directing the Court to pass the proper kind of decree. The Court is
further directed by Section 7 in considering what is the proper kind of decree
to look at the kinds of decrees that are passed in Courts in England according
to the principles and rules which they from time to time apply. If the Court
looked at the decree that the Courts in England were passing in nullity suits in
1867, they would have seen a decree that was not a decree nisi. If they had
looked at the kinds of decrees that the English Courts were passing in 1874,
they would have seen that the decree was a decree nisi. Immediately they see the
change, in my opinion owing to the section and owing to the fact that there is
no provision to the contrary, they must follow the change.

   15. Quite different considerations apply of course where there is a provision
to the contrary. For instance, in England the law and the practice of the
Courts, as a consequence of the change in the law, has been changed as regards
the question of cruelty. We in India cannot follow that change because there is
an ex" press provision in the Indian Divorce Act requiring as one of the grounds
on which a dissolution of marriage may be decreed the need to prove cruelty. We
therefore cannot follow the English change because there is a provision to the
contrary. Had there not been a provision to the contrary, we would have followed
even that important change. In my opinion therefore the decree that should be
passed in nullity as well as in divorce cases should be in the first place a
decree nisi. I have arrived at this conclusion without in the least considering
the question of what is desirable from the point of view of the parties and the
children to those or of later marriages. But I do on that point very strongly
stress the observations of Ranade, J., in A v. B (1898) I.L.R. 23 Bom. 460
starting from the words:

     Quite apart from the requirements of strict legal construction .

   16. I also think that it is desirable to lean if at all in such matters on
the side of caution. It would be lamentable if the High Court by passing decrees
absolute should be the cause, the very indirect cause, of parties getting
married before they were lawfully entitled to and in my humble opinion it is
desirable that the legislature should place beyond conjecture what the position
on this point is by either making provision that will exclude English practice
or by making provision that shall adopt the English practice on the question of
granting decrees nisi in suits for nullity of marriage. It may be that large
numbers of people are not involved. It may be that the actual litigants are not
worthy of much consideration. But in these matrimonial cases it is the children
of the disrupted or of future marriages whose interests should be very
carefully-guarded and it is in my opinion undesirable that there should be any
doubt about the kind of decree that should be passed or the period that should
expire before the parties are free to contract a lawful marriage.

   Mockett, J.

   17. I have had the advantgage of reading the judgment of my learned brother
Stone, J., and I am in agreement with him as to the answer we should give to
this reference. I also agree with the reasons which are contained in his
judgment and I would be content to express my concurrence if it were not for the
fact that my learned brother Wadsworth, J., takes a different view.

   18. It seems to me clear that the intention of Section 7 of the Indian
Divorce Act was to prevent the principles and rules on which the Indian Courts
were to give relief from being rigidly fixed and that, as has been stated by my
learned brother Stone, J., the 'principles and rules' must include principles of
law. The decision of the Privy Council in Iswarayya v. Swarnam Iswurayya (1931)
L.R. 58 I.A. 350 : I.L.R. 54 Mad. 774 : 61 M.L.J. 367 (P.C.) supports this view.
I observe that in the case of Wilkinson v. Wilkinson (1923) 47 Bom. 843 this is
the view of Martin, J. Section 7 is an unusual provision in a statute and
requires careful examination. It is to be operated 'subject to the provisions
contained in the Act' and the meaning of those words has often been discussed.
One meaning must be beyond doubt, and that is that the Court cannot give any
relief which is contrary to provisions in the Act. As an example, this Court
cannot follow the English Courts in giving the very much more extended relief
which they have within the last ten years been enabled to give by statute. I
refer especially to the powers of the English Courts to grant dissolution of
marriage to a wife on proof of, adultery alone. It would be impossible by any
process of reasoning to hold that an Indian Court could give such relief,
because Section 10 specifically states the grounds on which a wife can present a
petition for dissolution and it is therein stated that adultery must be coupled
with cruelty or with desertion. Mr. Coelho's argument really amounts to very
much the same thing with regard to the powers of this Court to grant a decree
nisi in the case of a decree for nullity. But Section 16 states that a decree
for a dissolution of marriage made by a High Court shall, in the first instance,
be a decree nisi. It is silent with regard to decrees for nullity. I think that
the effect of Section 17 is as held in A v. B. (1898) 23 Bom. 460 namely, that a
decree of nullity passed by a District Judge cannot be confirmed before the
expiration of six months from the pronouncing thereof. I share Stone, J's
preference for this decision to that of the High Court of Allahabad reported in
Caston v. Caston (1900) I.L.R. 22 All. 270 and of Lahore in Samuel v. Samuel
(1934) I.L.R. 15 Lah. 846 (S.B.). We therefore have the position that a decree
for nullity is in a sense 'nisi' if passed by a District Judge that is, it must
be confirmed but absolute if passed by the High Court, that is to say, if Mr.
Coelho's argument is correct. I will not reiterate the history of legislation in
this matter: it is sufficient only to say that in 1869, when the Indian Divorce
Act was passed, decrees for nullity in England were decrees absolute. The
Matrimonial Causes Act of 1873 enacted that decrees for nullity should be nisi
as before had been decrees for dissolution. Section 7 obviously contemplates
that the principles and rules of the Indian Divorce Act should be subject to
change and development because the words 'principles and rules on which the
Court... acts' are qualified by the words 'for the time being'. This must surely
contemplate statutory rules. It seems to me that the whole object of Section 7
is to keep the practice of the Indian Divorce Court as nearly as possible in
line with that of the English Court: otherwise, this exceptional, but most
useful, provision loses much of its force. I personally would give the widest
possible interpretation to it but always having in mind that it must be subject
to the provisions of the Act. There is no provision in the Act that a decree for
nullity should be nisi or absolute : the Act is silent. It does not seem to me
that the suspension of a decree for a period of months by the Court passing it
is in conflict with the Act. There is nothing repugnant to me about this notion
as there would be, for instance, if an Indian Court granted a decree for
dissolution of marriage to a wife on proof of adultery alone which would be in
direct conflict with the Act. That there are two sorts of decrees in matrimonial
suits - decrees nisi and decrees absolute - is almost but not wholly peculiar to
the matrimonial practice. Stone, J., has referred to decrees in mortgage suits.
My view is that the express object of Section 7 was to enable this Court to keep
pace with the practice in England. That it is desirable I have not the least
doubt, and I too respectfully agree with the views of Ranade, J., reported in A.
v. B. (1898) I.L.R. 23 Bom. 460 at p. 463 I would add that we have not elaborate
machinery here for the provision of medical boards and I think the possibility
of collusion in nullity cases must be kept in mind.

   19. With regard to the decision of the Judicial Committee in Jswarayya v.
Swarnam Iswarayya (1931) L.R. 58 I.A. 350 : I.L.R. 54 Mad. 774 : 61 M.L.J. 367
(P.C.), I would add this. It would appear that, although Section 37 of the
Indian Divorce Act is silent with regard to the power of the Court to vary
alimony, nevertheless their Lordships held that, because in England Courts had
power to do so, so also had the Indian Courts. It is in connection with this
decision that I stress the words 'for the time being' in Section 7 which as I
have already indicated seem to contemplate that the Indian Courts should as far
as possible follow the English Courts.

   20. For the above reason I would answer the reference by raying that a decree
for nullity passed by this High Court should in the first instance be a decree
nisi.

   Wadsworth, J.

   21. The question referred to this Bench is whether the proper form of a
decree in a suit for a declaration of nullity of marriage, filed on the original
side of the the High Court, should be that of a decree nisi or a decree
absolute. We are informed that the practice of this Court in the past has been
to treat a decree under Section 19 of the Indian Divorce Act as a decree nisi.
But naturally the number of cases would be very small, and actual cases of this
Court have not been cited before us. The present English rule is that a decree
in a nullity suit should be a decree nisi, just like the decree in a divorce
suit. But this has not always been the case. Until 1873, the English law
provided for a decree absolute in nullity cases. It is suggested that the
practical arguments in favour of making the decree in divorce cases a decree
nisi, apply with equal force to decrees in nullity cases. But I am not quite
sure that this is correct. It must be remembered that the petitioner's own
misconduct would not be a ground for recusing or rescinding a decree for nullity
in a proper case for instance, a case in which the respondent was already
married at the time of his marriage to the petitioner, so that in such cases
questions of collusion are much less likely to arise, and it does seem that in
the vast majority of cases, the grounds on which a nullity decree is granted are
not such as are likely to be affected by facts coming to light after the decree.
I am therefore inclined to thmk that there is no very strong case based on
practical considerations for introducing the decree nisi into the nullity
procedure.

   22. It seems to me clear that the Indian Divorce Act as drafted contemplated
that the decree for nullity should be a decree absolute. A decree absolute is
the ordinary form of a decree in civil proceedings unless the law for some
special reason prescribes a preliminary decree or a decree nisi. The Indian
Divorce Act was modelled upon the existing English Law and practice, and it is
significant that in 1869 when the Indian Act came into force, the English law
prescribed an absolute decree in nullity cases and a decree nisi in divorce
cases. This fact strengthens the inference which would naturally be drawn from
the terms of Section 19 that the Legislature intended a similar procedure to be
followed in India. Chapter III of the Indian Divorce Act which deals with
decrees for dissolutioh of marriage makes express provision that the decree in
such cases shall be a decree nisi which is ordinarily not to be confirmed until
six months after its pronouncement. The absence of a similar provision from
Chapter IV relating to nullity decrees is to my mind a clear indication that in
the latter class of cases the ordinary form of decree, that is to say, a decree
absolute, was contemplated.

   23. An argument in favour of the decree nisi procedure might be based on
Section 20 of the Act which provides that a decree for nullity passed by the
District Judge shall be subject to confirmation by the High Court, and that the
provisions of Section 17, Clauses 1 to 3 and 4 shall, mutatis mutandis, apply to
such decrees. There is a difference of judicial opinion on the question whether
this section makes the proviso to Section 17 prescribing a six months' period
for confirmation of decrees of District Judges for nullity applicable. Even
assuming that it does, I do not think that the mere fact that the legislature
prescribes confirmation after, a period of six months for a District Judge's
decree for nullity is sufficient. reason for holding that a similar rule should
be applied to decrees passed on the original side of the High Court with
reference to which no such provision has been enacted. I am therefore definitely
of opinion that Chapter IV of of the Indian Divorce Act does not provide for nor
contemplate a decree nisi in a nullity suit.

   24. It remains to be considered whether by virtue of Section 7 of the Indian
Divorce Act, the English procedure for a decree nisi in nullity suits can be
made applicable in India. Section 7 says that subject to the provisions
contained in this Act the Courts shall give relief on principles and rules which
are as nearly as may be conformable to the principles and rules observed in
England. In the case of Iswarayya v. Swarnam Iswarayya (1910) 58 M.L.J. 29 it
was held that the term 'principles and rules' in Section 7 does not refer to or
include statutory provisions or statutory rules. And a similar view was taken in
the case of Isharani Nirupoma Devi v. Nitendra Narain (1925) L.R. 58 I.A. 350 :
I.L.R. 54 Mad. 774 : 61 M.L.J. 367 (P.C.). The authority of the dictum in the
former case may be taken to have been somewhat shaken by the observations of the
Privy Council in the appeal from that decision reported in Iswarayya v. Swarnam
Iswarayya (1931) L.R. 58 I.A. 350 : I.L.R. 54 Mad. 774 : 61 M.L.J. 367 (P.C.).
The passage at 375 containing Lord Russel's observations on this subject is
quoted in my learned brother Stone J's judgment and I will not repeat it. But I
do not think that these observations can be taken as a warrant for the view that
the English law as laid down by statute can, by virtue of Section 7, be imported
into India so as to confer powers or impose restrictions on the Court, which
powers or restrictions would, if the legislature had intended them to be in
force, necessarily have been embodied in the Indian Statute. It is to be
remarked that Section 7 is always ' subject to the provisions contained in this
Act' and if it was the intention of the legislature, as according to my reading
of the Act, it must have been, to prescribe in this Act one form of procedure
for decrees for dissolution of marriage, and another form for decrees for
nullity, it is in my opinion and with all respect to my learned brothers who
have taken a different view, an error to use Section 7 as authority for doing
away with this distinction which is embodied in the Indian Statute, in order to
make the Indian procedure conform to that laid down by Statute in England. I may
point out that both the Allahabad and the Bombay High Courts have held that
decrees of the High Court for nullity under Section 19 of the Indian Divorce Act
are decrees absolute. Vide Caston v. Caston (1900) I.L.R. 22 All. 270 at p. 278
(F.B.) andd A. v. B. (1898) I.L.R. 23 Bom. 460. I would therefore decide this
reference by holding that the terms of the Indian Divorce Act contemplate a
decree absolute in cases of nullity and that to introduce the practice
prescribed by the English Law whereby a decree nisi is pronounced in such cases
would be to introduce a provision which is contrary to the provisions of the
Indian Act and therefore not admissible with reference to the terms of Section
7.

   25. After the above expression of opinion by the Full Bench the suit came on
for final hearing, before Mockett, J., who made the following

   ORDER

   26. In accordance with the Full Bench judgment ' that has been delivered in
this matter, the decree of nullity in this case will be nisi.