Benzmin vs Rundbhai on 7 December, 1987

    Benzmin vs Rundbhai on 7/12/1987

JUDGMENT

   Faizan Uddin, J.

   1. This is a reference made by the learned District Judge, Hoshangabad for
confirmation of decree of judicial separation under Section 17 of the Indian
Divorce Act, 1869 (hereinafter referred to as 'the Act') passed in Matrimonial
Civil Suit No. 38-A of 1986.

   2. The petitioner and respondent were married according to the Christian
religion in the Methodist Church of Igatpuri on 15-5-1963. Both lived together
happily as husband and wife till May, 1964 at Harda. Since the respondent wife
was in the family way and the petitioner was transferred from Harda to Itarsi,
the respondent went to her parents at Igatpuri and stayed with them. The
respondent gave birth to a female child named Margret. According to the
petitioner husband, he made concerted efforts to bring back his respondent wife
and his daughter Margret to his place but she did not turn up as she had taken
up a job as Assistant Teacher in Marathi Girls School, Igatpuri. His daughter
Margret committed suicide in March, 1985 and thereafter the petitioner initiated
proceedings for judicial separation against his wife respondent under Sections
22/23 of the Act on the ground of desertion without any reasonable cause for
about 20 years. Despite the service of notice the respondent preferred to remain
absent in the trial Court and the learned District Judge passed an ex parte
decree for judicial separation in favour of the husband-petitioner and against
the wife-respondent on 13th January, 1987. The District Judge, while passing the
aforesaid decree made a direction that the decree shall be subject to all the
provisions and limitations contained in Sections 16 and 17 of the Act and in
pursuance to that direction made this reference before this Court for
confirmation of the decree for judicial separation. This is how the matter has
been placed before us.

   3. The respondent-wife has filed her reply to the reference made to this
Court by the learned District Judge for confirmation of decree for judicial
separation. In the reply it has been denied that she deserted the petitioner and
asserted that she stayed back with her parents as the petitioner was a drunkard,
subjected her to physical violence and did not provide meats to her and
therefore, she had to join service at Igatpuri. It has also been alleged that in
1973, the petitioner had performed second marriage with one Smt. Sushila Bai who
died in 1975 and thereafter the petitioner again started living with the
respondent at Igatpuri. It has, therefore, been stated by the respondent that
since the parties last lived together within the local limits of District Court,
Igatpuri, the District Court Hoshangabad has no jurisdiction.

   4. The reference made by the learned District Judge appears to be wholly
misconceived and, therefore, without going into the merits of the case, we shall
first examine whether the law requires a decree for judicial separation to be
confirmed by the High Court.

   5. Chapter III of the Divorce Act contains Sections 10 to 17 which deal with
dissolution of marriage. Section 10 confers a right upon the husband and wife to
present a petition to the District Court or the High Court for dissolution of
their marriage on the grounds mentioned therein. Section 11 speaks about making
the alleged adulterer a co-respondent in the event of a petition by husband on
the ground of adultery. Section 12 deals with the satisfaction of the Court that
the petitioner has not been an accessory to or conniving for the alleged
adultery etc. Section 13 deals with the dismissal of the petition by Court for
various reasons mentioned therein. Section 14 confers power upon the Court to
pronounce a decree declaring the marriage to be dissolved in the manner and
subject to all the provisions and limitations in Sections 16 and 17 of the Act.
Section 15 relates to the relief to be given to the respondent, in case of
opposition of the relief sought by the petitioner, on certain grounds. These
sections are followed by Sections 16 and 17 which are relevant for purposes of
this case. Section 16 provides that every decree for dissolution of marriage,
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 direct.
Then comes Section 17 which provides that every decree for a dissolution of
marriage made by a District Judge shall be subject to confirmation by the High
Court. Thus on perusal of the aforesaid provisions contained in Sections 10 to
17 above it is abundantly clear that a decree for dissolution of marriage passed
under Section 16 is only a decree nisi which is conditional subject to
confirmation by the High Court as required by Section 17. Unless it is so
confirmed the pronouncement of a decree nisi does not change the status of the
parties and the parties continue to be husband and wife till it is confirmed and
made absolute by the High Court.

   6. Chapter IV of the Act contains provisions for declaring the marriage to be
null and void (Sections 18 to 21). In the case of a decree for nullity of
marriage Section 20 also provides a similar condition as contained in Section 17
with the exception of application of the proviso to Section 17. It contemplates
that every decree of nullity of marriage made by a District Judge shall be
subject to confirmation by the High Court and, the provisions of Section 17
Clauses (1), (2), (3) and (4) shall mutatis mutandis apply to such decree. Thus,
Section 17 of the Act requires confirmation by the High Court of a decree
dissolving marriage made under Chapter III and Section 20 requires confirmation
of a decree declaring the marriage to be null and void under Chapter IV.
Sections 22 and 23 fall under Chapter V of the Act concerning judicial
separation which may also be termed as partial suspension, by law, of the
matrimonial relation. A perusal of the entire Chapter V consisting of Sections
22 to 26 would reveal that there is no provision requiring that a decree for
judicial separation passed by any District Judge shall be subject to
confirmation by the High Court in a similar manner as in the case of a decree
for dissolution of marriage and a decree declaring the marriage null and void.

   7. Section 22 of the Act which is most relevant for the purposes of the case
before us reads as under : --

     "22. Bar to decree for divorce a mensa et thoro :-- but judicial separation
obtainable by husband or wife

     No decree shall hereafter be made for a divorce a mensa et thoro, but the
husband or wife may obtain a decree of judicial separation on the ground of
adultery, or cruelty, or desertion without reasonable excuse for two years or
upwards, and such decree shall have the effect of a divorce a mensa et thoro,
under the existing law, and such other legal effect as hereinafter mentioned."

   A plain reading of Section 22 above goes to show that neither it provides for
any decree for dissolution of marriage nor a decree for declaration of the
marriage as null and void. What it precisely provides is a decree for judicial
separation on the ground of adultery, or cruelty or desertion. It contemplates
that such decree for judicial separation 'shall have the effect of a divorce a
mesna et thoro, under the existing law' which means nothing but a divorce from
bed and board just in contradiction to a decree for dissolution of marriage and
a decree declaring the marriage a nullity. In other words it is a decree for
judicial separation which does not dissolve the marriage but results in
suspension of marriage relation and there is a separation of the couple in bed
and board. It, therefore, necessarily follows that a decree for judicial
separation passed under Sections 22/23 of the Act by a District Judge needs no
confirmation by the High Court; but it comes into effect from the date on which
it is passed. In this view of the matter, we are supported by two Full Bench
decisions of Andhra Pradesh High Court and Calcutta High Court vide G. Pravimala
Sundari v. Premaratnam, AIR 1981 Andh Pra 87 and Arun Kumar v. Manjula, AIR 1981
Cal 252.

   8. The aforesaid conclusion further finds support from the subsequent
sections that is Sections 24 and 25 of the Act. It may be pointed that
expression "such decree shall have the effect of a divorce a mensa et thoro,
under the existing law, and such other legal effect as hereinafter mentioned",
appearing at the end of Section 22. of the Act, are very significant and
meaningful (Emphasis provided). The provision for legal effect of a decree for
judicial separation is made in Sections 24 and 25 of the Act. Section 24
provides that in every case of a judicial separation under the Act, the wife
shall from the date of sentence (Judicial Separation is treated as sentence) and
whilst the separation continues, be considered as unmarried with respect to
property of every description which she may acquire, or which may come to or
devolve upon her. Again Section 25 provides that in every case of Judicial
separation the wife shall be considered as an unmarried woman for the purposes
of contract and wrongs and injuries and suing and being sued in any civil
proceeding; and her husband shall not be liable in respect thereof. The second
proviso to Section 25 further provides that nothing shall prevent the wife from
joining, at any time during such separation, in exercise of any joint power
given to herself and her husband. It therefore, follows that these are the legal
effects of a decree for judicial separation and it comes into force immediately
on the date it is passed and the law does not require such a decree to be
confirmed by the High Court. Consequently the decree for judicial separation
passed by the learned District Judge under Sections 22 and 23 of the Act came
into operation on the date it was passed and the reference made for its
confirmation is wholly incompetent and misconceived.

   9. In view of the aforesaid decision taken by us, it is now not necessary for
us to go into the questions raised by the learned counsel for the respondent and
we decline to express any opinion about the same.

   10. For the reasons stated above, the reference made by the learned District
Judge, Hoshangabad, deserves to be rejected and hence it is hereby rejected. We
make no order as to costs. The preparation of a formal decree is also dispensed
with.