Edward Caston vs L.H. Caston And W.T. Cogdell on 27 March, 1899

    Edward Caston vs L.H. Caston And W.T. Cogdell on 27/3/1899

JUDGMENT

   Arthur Strachey, C.J.

   1. This is a, reference to the Court under Section 9 of the Indian Divorce
Act (IV of 1869), by the District Judge of Agra, of a question arising in a suit
for dissolution of marriage pending in this Court. The suit was brought by the
husband as petitioner against his wife, the respondent, and against a co-
respondent. In the course of the hearing, counsel for the co-respondent
contended that the petition must be dismissed on the ground that the respondent
had never been lawfully married to the petitioner. It appears that the
respondent had formerly gone through a ceremony of marriage with one Elloy. On
the 18th July 1888, she obtained a decree declaring that marriage null and void
in the Court of the Judicial Commissioner of Oudh, who, until the passing of
Section 42 of Act XX of 1890, was "a District Judge," within the meaning of
Section 3, Clause 2 of the Indian Divorce Act, for Oudh. On the 7th December
1888, the decree of nullity was confirmed by this Court, which had jurisdiction
over Oudh under Section 3, Clause 1 of the Act. On the 21st December 1888, the
respondent was married to the present petitioner. The contention now raised by
the counsel for the corespondent is that under Section 20, read with the proviso
in Section 17, the High Court was not competent to confirm the Judicial
Commissioner's decree of nullity until after six months from the pronouncing
thereof; that the order of confirmation, having been made less than six months
from the date of the decree, must be held to be illegal and void; that,
therefore, the decree must be treated as not having been validly confirmed; and
that, consequently, the subsequent marriage of the respondent with the
petitioner was also illegal, and cannot be made the subject of a decree for
dissolution of marriage. The District Judge has accordingly stayed the
proceedings pending a reference under Section 9 of the question whether, having
regard to the facts just stated, the marriage sought to be dissolved was a valid
marriage.

   2. There are two questions to be considered. The first is, whether the High
Court's decree of the 7th December 1888, was in contravention of Section 20,
read with Section 17 of the Act. The second is whether, if so, it follows that
that decree was void and inoperative as a confirmation of the Judicial
Commissioner's decree of the 28th July 1888. In regard to the first point,
reliance is placed on the decision of the High Court of Bombay in A v. B (1898)
I.L.R. 23 Bom. 460. In that case no question arose as to the effect of a
confirmation made by the High Court before the time, if any, prescribed by the
Divorce Act. It was a submission by a District Judge of a decree for nullity for
confirmation under Section 20, upon which the petitioner applied to the High
Court for immediate confirmation. The Court held that it could not confirm the
decree before the expiration of six months from the pronouncing thereof, and so
rejected the application with leave to renew it when the six months' period had
expired. We have first to consider whether we agree with the construction placed
by the Bombay High Court upon Sections 17 and 20 of the Act. After the fullest
consideration I am unable to agree with it. Section 20 provides 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 decrees." Section 17 provides for
the confirmation by the High Court of decrees for dissolution of marriage made
by a District Judge. It consists of six paragraphs. The fifth paragraph is as
follows: "Provided that no decree shall be confirmed under this suction 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." If this fifth: paragraph is the fifth "Clause" of Section 17 within
the meaning of Section 20, then Section 20 does not make it applicable to
decrees of nullity of marriage made by a District Judge, and such decrees,
therefore, need not wait for six months, but may be confirmed at once. If,
though the fifth paragraph, it is to be regarded as the fourth "Clause" of
Section 17 within the meaning of Section 20, then Section 20 makes it applicable
to decrees of nullity of marriage, and such decrees, like decrees for
dissolution of marriage, cannot be confirmed till after the expiration of six
months from the pronouncing thereof.

   3. Now the word "Clause" used in Section 20 is nowhere defined in the Act.
The paragraphs into which Section 17 is divided are not numbered, and so far as
the form of the Section is concerned there is nothing to suggest that one
paragraph is more or less a "clause" than another, or that the fifth paragraph
is not a clause. It is rather difficult to gather from the judgments in the
Bombay case what the learned Judges considered to be the exact relation between
the proviso and the other paragraphs of Section 17. Mr. Justice Parsons says:
"The fifth paragraph is not, in my opinion, a Clause of the section. It is a
proviso to the Clause which precedes it, joined to it as printed in the
Government of India (Legislative Department) edition 1887 of the Acts, by a
colon, and must be considered to be a part and parcel of the foregoing clauses,
governing and controlling them, and not forming itself a separate clause." Mr.
Justice Ranade says: "The proviso appears as a separate paragraph, but it is
clear from its context that it cannot be read as a separate Clause from
paragraph 4, which it qualifies. It does not, as the preceding four paragraphs,
or the succeeding sixth paragraph, relate to distinct subject-matters." Mr.
Justice Fulton holds that "the proviso governs and forms part, of the fourth
clause." Now if it is correct to say that the fifth paragraph is "a proviso to
the Clause which precedes it" and "forms part of" that Clause and cannot be read
as separate from that clause, it seems contradictory to say, as Mr. Justice
Parsons goes on to say, that it "must be considered to be a part and parcel of
the foregoing Clauses governing and controlling them." Apart from this, it
appears to me quite impossible to hold that the proviso merely forms part of the
Clause immediately preceding it. That Clause relates only to oases in which the
District Judge has, upon the direction of the High Court, made further inquiry
or taken additional evidence. That is clearly shown by the word "thereupon." If
the proviso merely formed part of that clause, it would follow that it did not
apply to the far more numerous cases in which no further inquiry or additional
evidence is required, and the result would be that, contrary to the obvious
intention of Section 17, the vast majority of decrees for dissolution of
marriage might be confirmed at once. As then the proviso clearly applies to
case3 not falling within the preceding clause, it cannot merely form part of
that clause; and if it does not merely form part of any one of the previous
clauses, but governs and controls each, there can be no reason for not regarding
it as itself a clause. Upon similar reasoning to that of the Bombay High Court,
it would be logical to hold that paragraph 4 also was not a separate clause, as,
notwithstanding the observation of Mr. Justice Ranade to the contrary, it also
does not "relate to distinct subject-matters:" it is merely consequential to
Clause 3; and there is, in my opinion, more reason to hold that paragraph 4
forms part of Clause 3, and is therefore not a separate clause, than to hold
that the proviso forms part of Clause 4. In regard to Mr. Justice Parsons'
argument based on the colon at the end of paragraph 4, the Privy Council in The
Maharani of Burdwan v. Krishna Kamini Dasi (1886) I.L.R. 14 Cal. 365, at page
372 of the report say (in accordance with many English authorities) that "it is
an error to rely on punctuation in construing Acts of the Legislature." The
soundness of this principle is well illustrated in the present instance by the
fact that in the original edition of the Indian Divorce Act (see that Gazette of
India, March 6th, 1869, p. 375), there is not a colon at the end of the fourth
paragraph of Section 17, but a full stop. Mr. Justice PARSONS proceeds to give
illustrations from the Code of Criminal Procedure in support of the proposition
that if in Section 17 of the Indian Divorce Act the Clauses had been numbered,
the proviso would not have been numbered as a clause. When the Sections of the
Code to which he refers--Sections 33, 35, 48, 57 and 123--are looked at, I think
it clearly appears that they establish no such proposition. In every one of
those Sections it is obvious from the context that the proviso was intended to
apply to, and govern the immediately preceding proposition only, and that to
mark this the proviso was not separately numbered. But, for the reasons which I
have just given, it is impossible to hold that the proviso in Section 17 was
intended to apply to and govern the fourth paragraph only. I agree with Mr.
Justice Ranade, that from the point of view of considerations of expediency or
public policy, such as the interests of children, the prevention of collusion,
and so forth, decrees for dissolution and decrees of nullity should stand on the
same footing. But the question is whether that was the view of the Legislature
in 1869 when the Indian Divorce Act was passed. So far as collusion is
concerned, it certainly was not. It is obvious from Section 20 that the
Legislature deliberately excluded from the case of decrees of nullity the last
paragraph of Section 17, authorizing intervention on the ground of collusion
during the progress of a suit for divorce in the District Court. Further, in
regard to suits tried by the High Court in its original jurisdiction, whereas
under Section 16 a decree for dissolution must, in the first instance, be a
decree nisi, not to be made absolute for at least six months, during which
period any person may show cause why the decree should not be made absolute by
reason of collusion, or concealment of material facts; on the other hand, a
decree for nullity under Section 18 is made absolute at once, and there is no
provision for intervention. Again, in England in 1869 the same distinction
obtained, and it was not until the passing of the Matrimonial Causes Act, 1873,
that decrees for dissolution and decrees of nullity were assimilated in respect
of confirmation and intervention. It cannot therefore be argued that there was
in 1869 any a priori probability or presumption that because a decree for
dissolution made by a District Judge had to wait for confirmation for six
months, therefore the Legislature considered a similar delay as appropriate for
the confirmation of decrees of nullity. Mr. Justice RANADE in connection with
the Matrimonial Causes Act, 1873, relies on Section 7 of the Indian Divorce Act,
which provides that "subject to the provisions contained in this Act, the High
Courts and District 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." In the first place, that Section is "subject to the
provisions contained in this Act." This shows, I think, that the principles
mentioned in the Section are only applicable in the absence of express
provisions in the Act: they cannot be applied to construe the provisions
contained in the Act, such as Sections 17 and 20, or to extend or restrict the
operations of those provisions. In Abbott v. Abbott (1869) 1 B.L.R. 51, Mr.
Justice Macpherson held that "Section 7 of the Divorce Act applies not to points
of procedure, but to the general principles and rules on which the Court is to
act and give relief." Sections 17 and 20 relate to "points of procedure" only.
In A. v. B. (1898) I.L.R. 22 Bom. 612, it was held by Sir Charles Farran C.J.,
and Mr. Justice Tyabji, that the principles and rules referred to in Section 7
were not mere rules of procedure, such as the rules which regulate appeals: and
I think that the same may be said in reference to the rules which regulate
confirmation, especially when it is remembered that in England there is nothing
which precisely corresponds to the matrimonial jurisdiction of a District Court
in India, or the confirmation of the decrees of those Courts by the High Court.
I understand the practice of this Court to have been in accordance with the view
that Section 20 of the Divorce Act does not make the proviso in Section 17
applicable to the confirmation of decrees of nullity made by a District Judge. I
see no reason to think that this practice is wrong, and I am therefore of
opinion that this Court had power, on the 7th December 1888, to confirm the
Judicial Commissioner's decree of nullity of the 28th July 1888.

   4. The next question is, assuming that by reason of the proviso in Section 17
the High Court ought not to have confirmed the Judicial Commissioner's decree
until after the expiration of six months from the pronouncing thereof, does it
follow that the confirmation was null and void, and the subsequent marriage of
the respondent with the petitioner invalid? The District Judge in his reference
assumes that the answer to this question must be in the affirmative; but he
gives no reasons, and I cannot agree with him. The decree of the High Court of
the 7th December 1888, was a decree of the kind specified in Section 41 of the
Indian Evidence Act, 1872. It was a final decree made in the exercise of
matrimonial jurisdiction, declaring the present respondent not to be the wife of
the then respondent. If it was the decree of "a competent Court," then, however
erroneous or irregular it may have been, it is under the Section conclusive
proof that the respondent's previous marriage was a nullity. The effect of such
conclusive proof can only be avoided by showing that the High Court was not "a
competent Court" within the meaning of Section 41, or was "a Court not competent
to deliver" the decree within the meaning of Section 44. Unless that can be
shown, the decree is conclusive, as no fraud or collusion is suggested. The
question then is, was the High Court's decree of the 7th December 1888,
"delivered by a Court not competent to deliver it? It appears to me that this
question must be answered in the negative. The High Court had undoubted
jurisdiction in the suit for nullity of marriage. As regards place, it possessed
the local jurisdiction defined by the Act. It possessed personal jurisdiction
over the parties to that suit who were persons governed by the Divorce Act; and
it had jurisdiction over the subject-matter, or the class of suit as disclosed
in the petition for declaration of nullity. It was properly seised of the case,
which was duly transmitted to it by the Court of the Judicial Commissioner, and
notice of the date fixed for confirmation was duly served upon the parties, of
whom the petitioner was represented at the hearing by a pleader. There was no
appeal to Her Majesty in Council from the decree of confirmation, as there might
have been under Section

   58. Since the High Court had jurisdiction in the suit, it follows that it had
jurisdiction to consider and determine every question of law or fact arising in
the suit. This would of course include any question of procedure, such as a
question of the construction of Sections 17 and 20 of the Indian Divorce Act. To
illustrate this, let us suppose that at the hearing either the petitioner or the
respondent had formally taken the objection that an adjournment was necessary,
as under the proviso in Section 17 the decree could not be confirmed until the
six months' period had expired. Suppose further that, after full argument on the
point, the High Court had taken a view of Section 17 different from that
expressed in the Bombay case, and had confirmed the decree of the Judicial
Commissioner accordingly. In such a case surely the Court would not only be
competent but bound to decide the question thus raised and argued. If competent
to consider and decide the question, it cannot be supposed that the Court was
"competent" to decide it in one particular way only. This shows that even if the
decision was erroneous or irregular, the Court was nevertheless "competent to
deliver" it. If not, what is the alternative? Could any Court, however
subordinate, in any subsequent suit, at any distance of time, treat the High
Court's decree as a nullity and the parties still husband and wife? For
instance, could a creditor successfully sue the former husband in a Small Cause
Court for the price of necessaries supplied to the wife after the decree, on the
ground that the decree was void, as the High Court had taken an erroneous view
of the proviso in Section 17? Again, after the High Court's decree, could either
of the parties re-marrying be prosecuted for bigamy and the children of the
subsequent marriage be held illegitimate? If these conclusions would be absurd
where the High Court decided the question of the construction of Section 17
after argument, they must equally be so in a case like the present. The
competency or jurisdiction of the Court cannot possibly depend on whether a
point which it decides has been raised or argued by a party or counsel. An
express decision upon the construction of Sections 17 and 20 and an implied
decision must stand on the same footing. The view that the decree was a nullity
by reason of the proviso in Section 17 could only be supported on the principle
that wherever a decision is wrong in law, or violated a rule of procedure, the
Court must be held incompetent to deliver it. Such a principle is obviously
unsustainable. In the first place, it is opposed to the language of Sections 41
and 44 of the Evidence Act, which were undoubtedly meant to make the decrees
which they refer to conclusive except in a very restricted class of cases. If
the intention had been to make such decrees questionable on the ground of any
legal defect or irregularity, very different expressions would have been used,
and it would be inaccurate to describe such decrees as constituting "conclusive
proof." In the second place, If the principle were sound, any judgment might be
collaterally attacked by contending: that it was in violation of such rules of
procedure as the rule of res judicata contained in Section 13 of the Code of
Civil Procedure, or the rule of limitation contained in Section 4 of the
Limitation Act, 1877. These rules are expressed in language as peremptory as
that of the proviso in Section 17 of the Divorce Act; but it has never been
held, and it could not be held, that a Court which erroneously decrees a suit
which it should have dismissed as time-barred, or as barred by the rule of res
judicata, acts without jurisdiction and is not competent to deliver its decree.
The insecurity of titles and of status arising from the adoption of such a
principle is just what Sections 41 and 44 of the Evidence Act were intended to
prevent. The Sections recognize that, given the competency of the Court, even
error or irregularity in the decision is a less evil than the total absence of
finality which would be the only alternative. In the third place, the judgment
of the Privy Council in Amir Hasan Khan v. Sheo Bakhsh Singh (1884) I.L.R. 11
Cal. p. 6 : L.R. 11 I.A. 237, shows that, even for the purposes of direct attack
in revision under Section 622 of the Code of Civil Procedure, a decree cannot be
held to have been made without jurisdiction or illegally, merely because it is
wrong in law or alleged to be in violation of such rules of procedure as those
contained in Sections 13 and 43 of the Code. If so, then a fortiori such a
decree could not be regarded as made without jurisdiction for the purposes, not
of direct but merely collateral attack in a subsequent suit. In Sardarmal
Jagonath v. Aranvayal Sabhapathy Moodliar (1896) I.L.R. 21 Bom. 205, a judgment-
creditor sought to maintain an attachment on the property of his debtor who had
previously been adjudicated an insolvent by the Madras Insolvent Court, and to
resist a claim by the Official Assignee, under Section 278 of the Code, for the
release of the property from attachment, on the ground that the order of
adjudication and the vesting order were null and void, and gave no title to the
Official Assignee, inasmuch as the original petition to the Insolvent Court
disclosed no act of insolvency on which an order of adjudication could legally
be passed under the Statute. I held that as the Madras Court was undoubtedly
competent to deal with the petition, and was both competent and bound to
consider whether the acts alleged in the petition constituted acts of insolvency
within the meaning of the Statute, the order, even if wrong in law, was not one
which the Madras Court was not competent to deliver within the meaning of
Section 44 of the Evidence Act, and that therefore it could not be treated in
collateral proceedings as null and void, but was conclusive of the insolvency
and of the Official Assignee's title. At page 214 of the Report, I said: "Once
recognize that a Court is competent to decide a suit or a petition in insolvency
or any other matter, and it follows that it is competent to decide all questions
which arise in that matter, whether they are questions of fact or of law, and
whether they appear on the face of the plaint or petition or arise subsequently.
If it decides them wrongly, its decision may be subject to reversal on appeal or
otherwise, but cannot be treated as a nullity." The same principle is, I think,
recognized in the judgment of Mr. Justice Knox and Mr. Justice Aikman in Durga
Prasad v. Mahabir Prasad Weekly Notes 1899 p. 199. The English, Indian and
American authorities collected in Mr. Hukm Chand's learned Treatise on the Law
of Res Judicata, Chap. VII, Sections 186, 187, 189,190 and 192, establish that
for the purpose of showing in collateral proceedings that a judgment is void for
want of jurisdiction or competency in the Court, it is not sufficient to show
error in law, irregularity in practice, or departure from the provisions of the
law of procedure, as for instance, by taking the proceedings at a wrong or
unauthorized time. In one American case cited at p. 475, it was said "the
principle is so well settled that it is said to be an axiom of the Law, that
when a Court has jurisdiction over the subject-matter and the parties, its
judgment cannot be impeached collaterally for errors of law, or irregularity in
practice." In another American case cited at page 476, it was said:
"Jurisdiction having been obtained, the fact that the judgment was rendered
sooner than it should have been, does not make the judgment void: a judgment
thus rendered is irregular only." The whole subject is elaborately discussed by
a learned American author, Mr. Vanfleet, in his work "The Law of Collateral
Attack on Judicial Proceedings" (see especially Chapter VIII), In Chapter XIV,
Sections 710, 711, 712 and 713, the author gives instances to show that a
"premature judgment," that is, a judgment given before it ought to have been
given according to the law of procedure, cannot therefore be treated in
collateral proceedings as void and given by a Court without jurisdiction. "An
administrator's order to sell land could not be granted lawfully until after the
final account of the personal assets had been settled; but an order granted
before that had been done is not void. The Missouri Statute required the Court
to delay the approval of an administrator's or guardian's sale of land until the
next term after it was made, but such a sale is not void because approved at the
same term or an adjourned term."

   5. For these reasons I would answer the reference by saying that, in our
opinion, the marriage of the respondent with the petitioner was not invalid by
reason of any want of jurisdiction in the High Court's decree of the 7th
December 1888.

   6. I desire to repeat what I stated at the hearing, that the Court is much
indebted to Mr. Porter and Mr. Sorabji, who appeared as amici curiae for the co-
respondent and the petitioner, respectively, for the assistance rendered to the
Bench by their very able argument.

   Knox, J.

   7. I fully concur both in the reasons and in the conclusions arrived at by
the learned Chief Justice, and have nothing further to add.

   Blair, J.

   8. I also entirely concur in the conclusions arrived at by the learned Chief
Justice and in the reasoning on which those conclusions are based. I have only
one addition to make. It is that, in my opinion, the judgment of a Bench of this
Court confirming the decree for nullity of marriage is an authority on the
question of law whether for the validity of such a confirming order a delay of
six months is necessary. The Bench which implicitly decided that the six months'
delay imposed in cases of dissolution of marriage was not necessary in cases of
nullity was a Bench similarly constituted to the present, and of co-ordinate
authority; and, if not by strict law, by the comity of the Courts, the law in
such a decision ought to be taken as authoritative until declared to be
erroneous by a Full Bench of the Court. A fortiori it was not open to an
inferior Court to question the decision of any Bench of this Court. It is
impossible to draw the inference which appears to be suggested by the District
Judge that the matter was not considered and decided by the Bench of this Court
which confirmed the decree of nullity. It was necessary as a foundation for the
order which it made that it should have adjudicated on that question and decided
that the six months' delay was not in that case imposed by the law. Therefore on
authority as well as on the reasoning set forth in detail in the learned Chief
Justice's judgment I would make the same answer to this reference.