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.