Grace Isabel Stuedman vs Anneley Eliardo Beresford De ... on 27 May, 1943

    Grace Isabel Stuedman vs Anneley Eliardo Beresford De Courey Wheeler on
27/5/1943

JUDGMENT

   Das, J.

   1. In this suit the petitioner prayed for a decree declaring that the
marriage in fact (but illegally) celebrated between her and the respondent was
and is null and void. The respondent not having appeared after personal service
of the writ of summons together with a certified copy of the petition this suit
came up for hearing as an undefended suit on May 7th last. After hearing the
evidence adduced before me I passed a decree on that date declaring that the
marriage in question was null and void. Requisition for drawing up of the decree
having been furnished a draft of the decree was prepared by the decree
department and sent to the petitioner's solicitors for their approval. This
draft was drawn up in the same form as such a decree in a suit for nullity of
marriage is nowadays drawn up in England, namely in the form of a decree nisi.
Mr. Barwell who appeared for the petitioner at the hearing mentioned the matter
to me and contended that in a suit for nullity of marriage the Courts in India
can only pass one plain and simple decree which is at once final and absolute,
as the Indian Divorce Act 1869 does not contemplate or permit two decrees namely
a decree nisi and a decree absolute, in such a. suit. The matter appeared to me
to be a difficult and complicated one and I directed the suit to be placed in my
list for hearing arguments on the point. Accordingly the suit appeared on my
list on 20th May last and the point was fully and exhaustively argued by Mr.
Barwell. Nobody appeared for the respondent but I am satisfied that all relevant
provisions and authorities have been brought to my notice by Mr. Barwell. In
view of the importance of the matter, however, I took time to consider my
judgment.

   2. The point now before me is whether a decree passed by this High Court in
exercise of its matrimonial jurisdiction in favour of a petitioner in a suit for
nullity instituted under the Indian Divorce Act 1869 should be in the form of a
decree nisi to be followed by a decree absolute or whether such decree should be
a plain and simple decree at once final and absolute. I gather from the learned
Registrar, whom I have also consulted in the matter, that the practice of this
High Court is to pass a decree nisi in a suit for nullity of marriage in the
same way as a decree nisi in a suit for dissolution of marriage and that this
practice is based on the modern English Practice adopted by this Court on the
authority of the decision of Costello J. in Henrietta Violet Wenkenbach v. Otto
Guenter Wenkenbach ('37) I. L. R. (1937) 1 Cal. 417. At the very end of the
judgment in that case at p. 277 is to be found the following passage:

     Mr. Bonnerjee and Mr. Westmacott both agree that following the English
practice and as the law stands at present in India, the decree should be a
decree nisi.

   3. Mr. Barwell contended that it did not appear from the report that the
point had been argued at all but that the Court passed a decree nisi only
because learned Counsel agreed to that effect and he invited me to give a
decision on the point on its merits. Seeing that one of the learned Counsel was
the late Mr. R. C. Bonnerjee, whose vast experience and great learning in the
law and practice relating to matrimonial causes were at all times unreservedly
recognised and respected by the Bench and the Bar alike and that he was of
opinion that the decree should be a decree nisi and that such opinion was
adopted by a Judge of the eminence of Mr. Costello J., I should long hesitate
before I should adopt a contrary view. Further I should be slow to upset a
practice which has prevailed in this High Court for a number of years unless I
am compelled to do so on a very careful consideration of the relevant provisions
of the statutes applicable to the case and judicial decisions thereon. To have a
correct appreciation of the jurisdiction and powers of this High Court in
matters matrimonial, it is necessary to look back and trace them from their
origin. Letters Patent granted by King George I to the United Company of
Merchants of England trading to the East Indies in 1726 established the Mayor's
Court at Fort William in Bengal. These Letters Patent were replaced by Letters
Patent of 1753 granted by King-George II whereby various jurisdictions including
ecclesiastical jurisdiction were conferred on that Court.

   4. Then came the Regulating Act of 1773 (13 Geo. III C. 68). Section 13 of
this Act authorised His Majesty by Charter or Letters Patent to establish a
Supreme Court of Judicature at Fort William in Bengal with full power and
authority to exercise and perform all Civil, Criminal, Admiralty and
Ecclesiastical Jurisdiction and to form and establish such rules of practice and
such rules for the process of the said Court and to do all such other things as
should be found necessary for the administration of justice. It was further
provided that the said new Charter and the jurisdiction, powers and authorities
to be thereby established should extend to all British subjects, who should
reside in the Kingdoms or Provinces of Bengal, Bihar and Orissa. By Section 19
so much of the Charter of 1753 of George II as related to the establishment of
the Mayor's Court at Calcutta or to the Civil, Criminal or Ecclesiastical
Jurisdiction thereof was repealed.

   5. This was followed by the Charter of 1774 establishing the Supreme Court of
Judicature at Fort William in Bengal. By Clause 22 of this Charter the Supreme
Court of Judicature was constituted as a Court of Ecclesiastical Jurisdiction
with full power and authority to administer and execute within the said Province
of Bengal" Bihar and Orissa and towards and upon British subjects there
residing, the Ecclesiastical law "as the same is now used and exercised in the
Diocese of London in Great Britain, so far as the circumstances and occasions of
the said provinces or the people shall admit and require." By Clause 36 the
Mayor's Court of Calcutta and all its jurisdictions including ecclesiastical
jurisdiction were abolished. Clause 38 of this Charter empowered the Supreme
Court to frame rules of practice for the administration of Justice and the due
exercise of the Civil, Criminal, Admiralty and Ecclesiastical Jurisdiction
thereby created. It will be noticed that by this Charter the law to be
administered by the Supreme Court in exercise of its Ecclesiastical Jurisdiction
was rigidly fixed and limited to the Ecclesiastical law as the same was then, i.
e., in 1774 used and exercised in the Diocese of London.

   6. From the time that the Church of Rome became the Supreme Ecclesiastical
Authority in England, the Ecclesiastical Courts applied the Canon law in
matrimonial causes. Christiah marriage was indissoluble but divorce a mensa et
thoro equivalent to our present day judicial separation was granted for certain
causes; There developed in course of time a method of divorce a vinculo by
Private Act of Parliament. This method continued up to 1857 when the Matrimonial
Causes Act (20 & 21 vic., C. 85) came to be passed in that year. By this Act the
jurisdiction then exercisable by Ecclesiastical Courts in England in respect of
divorce a mensa at thoro, suits for nullity of marriage, suits for restitution
of conjugal rights and in all causes, suits and matters matrimonial was taken
away and vested in Her Majesty to be exercised in Her name in a Court of Record
to be called "the Court of Divorce and Matrimonial Causes." Section 22 of this
Act of 1857 was in the following terms:

     22. 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 Ecclesiastical Courts have
heretofore acted and given relief, but subject to the provisions herein
contained and to the rules and orders under this Act.

   This Act, therefore, perpetuated the old ecclesiastical practice as to
proceedings for nullity and judicial separation and introduced into England the
practice of granting complete divorce by judicial process. The next important
Act was the Matrimonial Causes Act of 1860 (23 & 24 Vic., C. 144). Section 7 of
this Act provided that every decree for a divorce should, in the first instance,
be a decree nisi not to be made absolute till after the expiration of such time,
not less than three months from the pronouncing thereof, as the Court should by
general or special order from time to time direct. This section also gave
liberty to any person 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 and also authorised Her
Majesty's Proctor to intervene. In view of this legislation it would appear that
prior to 1860 there used to be one decree in all matrimonial causes. While all
these changes in matrimonial law and practice were being brought about in
England, the Supreme Court in Calcutta was apparently rigidly fixed to the old
ecclesiastical law that was used and exercised in the Diocese of London in 1774.
In 1861 was passed what is commonly called the Indian High Courts Act (24 & 25
Vic. C., 104). Section 1 authorised Her Majesty by Letters Patent to establish
High Courts at Calcutta, Bombay and Madras. By Section 8 of this Act, amongst
other things, the Supreme Court, the Courts of Sadar Dewani Adawlat and Sadar
Nijamat Adawlut at Calcutta were abolished. Section 9 of this Act provided that
the High Courts to be established should have and exercise all such Civil,
Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial
Jurisdictions, Original and Appellate and all such powers and authority for and
in relation to the administration of justice as Her Majesty might by such
Letters Patent grant and direct and that save as by such Letters Patent might be
otherwise directed and subject and without prejudice to the legislative powers
in relation to the matters aforesaid of the Governor-General of India in
Council, the High Courts should have and. exercise all jurisdiction and every
power and authority whatsoever in any manner vested in any of the Courts in the
same presidency abolished under this Act at the time of abolition of such last
mentioned Courts. The High Court, therefore, was to inherit all the
jurisdictions and powers of the Supreme Court.

   7. Pursuant to this Act, Letters Patent of 1862 were issued establishing this
High Court. Clause 35 of these Letters Patent gave this High Court matrimonial
jurisdiction on Christian subject within the local limits of the ecclesiastical
jurisdiction of the Supreme Court. Clause 37 of this Charter ordained, inter
alia, that the proceedings in matters matrimonial should be regulated by the
rules of the Court for Divorce and Matrimonial Causes in England and that the
proceedings in other civil suits should be regulated by Act 8 of 1859 and
reserved to the Indian Legislature power to make laws relating to the Civil
Procedure. It will thus be seen that the practice and procedure of the
Matrimonial Court in England were directed to be followed by this High Court in
matrimonial matters. These Letters Patent, however, were replaced by Letters
Patent of 1865. By these Letters Patent of 1865 this High Court was continued.
Clause 35 of these Letters Patent ordains that this High Court should have
jurisdiction in matters matrimonial between Her Majesty's subjects professing
the Christian religion. Clause 37 of these Letters Patent provides as follows:

     "And we do further ordain that it shall be lawful for the said High Court
of Judicature at Fort William in Bengal from time to time to make rules and
orders for the purpose of regulating all proceedings in civil cases which may be
brought before the said High Court, including proceedings in its Admiralty,
Vice-Admiralty, Testamentary, Intestate, and Matrimonial jurisdictions
respectively: Provided always that the said High Court shall be guided in making
such rules and orders, as far as possible, by the provisions of the Code of
Civil Procedure, being an Act passed by the Governor-General in Council and
being Act No. 8 of 1859, and the provisions of any law which has been made,
amending or altering the same, by competent legislative authority for India."

   It will be noticed that there is no reference in this Clause 37, Letters
Patent of 1865 to the Rules of the Court for Divorce and Matrimonial Causes in
England such as there was in the corresponding Clause 37, Letters Patent of
1862. I consider this change as indeed significant and showing in unmistakable
terms that the intention was that the High Court should have its own rules of
procedure in all civil oases including matrimonial causes untrammelled by the
English law of procedure. Clause 44 of these Letters Patent as it originally
stood declared that all provisions of these Letters Patent were to be subject to
the legislative powers of the Governor-General in Council. This clause was
amended in 1919 to bring it into conformity with the Government of India Act
1915. A year after the publication of these Letters Patent, the Matrimonial
Causes Act of 1860 (29 & 30 Vic., C. 32) was passed in England. By Section 3 of
this Act it was provided that no decree nisi for a divorce should be made
absolute until after the expiration of six calendar months from the pronouncing
thereof unless the Court should fix a shorter time.

   8. To summarise the position up to 1866: In England all matters matrimonial
were to be dealt with by the Court of Divorce and Matrimonial Causes. In
accordance with the provisions of the Matrimonial Causes Acts I have mentioned,
in a suit for dissolution of marriage there had to be passed a decree nisi to be
made absolute after the expiration of six months. In all other matrimonial
causes including suits for nullity of marriage the matter was still governed,
under Section 22 of the Act of 1857, by the principles and rules of
Ecclesiastical Courts and one decree had to be passed in such suit. In India
this High Court inherited all the jurisdictions of the Supreme Court including
its ecclesiastical jurisdiction and had to administer the ecclesiastical law as
was used and exercised in 1774 in the Diocese of London; but under Clause 37,
Letters Patent of 1865 the procedure was to be regulated by the Rules framed by
the High Court conformably to the provisions of the Civil Procedure Code of 1859
and, subsequent modification thereof. The provisions of the Letters Patent,
however, were subject to the powers of the Indian Legislature. It was in these
circumstances the Indian Divorce Act of 1869 came to be passed amending the law
relating to divorce and matrimonial causes in India. The 62 sections of this Act
are grouped under different heads in 14 parts. Section 7 which is in Part II
provided as follows:

     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.

   9. The group of sections collected under Part III deals with proceedings for
dissolution of marriage. Broadly speaking these sections adopt the principles of
law administered by the Matrimonial Court of England under the Matrimonial
Causes Acts. Section 14 authorises the Court under certain conditions to
pronounce a decree declaring a marriage to be dissolved subject to the
provisions of Sections 16 and 17. Section 16 provides that every decree for
dissolution of marriage made by a High Court, not being a confirmation of decree
of the 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 6 months
from the pronouncing thereof, as the High Court by general or special order from
time to time directs and the section gives liberty to any person to show cause
why the said decree should not be made absolute by reason of certain facts
therein specified. Section 17 provides that every decree for a dissolution of
marriage made by a District Judge shall be subject to confirmation by the High
Court, provided that no decree shall be confirmed under this section till after
the expiration of such time, not less than C months from the pronouncing
thereof, as the High Court by general or special order from time to time
directs. Section 17A which was inserted by Act 15 of 1927 provides for the
appointment of an officer with like right of showing cause why a decree for
dissolution of marriage should not be made absolute or should not be confirmed
as is exercisable in England by the King's Proctor. Thus these sections adopting
the principles and rules of the English Court provide for the passing of a
decree nisi in a suit for dissolution of marriage, to be made absolute or to be
confirmed after the expiration of six months as the case may be and for
intervention by any party or the officer appointed under Section 17A in case of
proceedings for dissolution of marriage.

   10. The group of Sections (18 to 21) under Part IV deals with proceedings for
nullity of marriage. Section 18 authorises any husband or wife to present a
petition to the District Court or to the High Court praying that his or her
marriage may be declared null and void. Section 19 provides that such decree may
be made on any of the grounds set out thereunder. Section 20 requires that every
decree of nullity of marriage made by a District Judge shall be subject to the
confirmation of the High Court and makes the provisions of Section 17 Clauses 1,
2, 3 and 4 apply mutatis mutandis to such decree. It will be noticed that these
sections make no provision in so many words for the passing, in a suit for
nullity of marriage, of a decree nisi to be made absolute after the expiration
of a specified time, nor is there any provision for intervention by any person
or any officer in such a suit. This was exactly the position in England in 1869
in regard to suits for nullity of marriage. It is clear therefore that in 1869
these provisions of Part IV contemplated and intended one decree to be passed in
a suit for nullity of marriage such as used to be done in England at that time.
It is also clear that in 1869 the intention of the Legislature was to make a
difference with regard to a decree in a suit for dissolution of marriage and a
decree in a suit for nullity of marriage. This distinction is noticeable in
various subsequent sections of the Act, e.g., Sections 40, 43, 44 and 57.

   11. Sections 45 to 56 are grouped in Part XII under the heading "Procedure".
Section 45 provides that subject to the provisions herein contained all
proceedings under this Act between party and party shall be regulated by the
Code of Civil Procedure: Section 62 which is to be found in Part XIV under the
heading "Miscellaneous" empowers the High Court to make rules under the Act,
subject to the proviso that such rules must be consistent with the provisions of
the Act and the Code of Civil Procedure. It is clear, therefore, that by express
provisions of the Act matters of procedure are to be regulated by the Code of
Civil Procedure and by rules made by the High Court consistently with the
provision of the Act and the Code of Civil Procedure. These provisions are also
in accordance with Clause (37), Letters Patent of 1865. Under the combined
operations of the Letters Patent of 1865 and like Indian Divorce Act 1869, the
position, so far as this High Court is concerned, is therefore as follows:

     (a) This High Court has matrimonial jurisdiction which it has inherited
from the Supreme Court.

     (b) The substantive law to be applied by this High Court in exercise of its
matrimonial jurisdiction is to be: (i) The provisions of the Indian Divorce Act.
(ii) Subject to the provisions of the Indian Divorce Act the principles land
rules on which the Court for Divorce and matrimonial causes in England acts and
gives relief for the time being. (iii) Subject to the provisions of the Indian
Divorce Act and the Matrimonial Causes Acts of England the principles and rules
of ecclesiastical law as were used and exercised in the Diocese of London in
1774.

     (c) The proceedings in matrimonial causes are to be regulated by the
provisions of the Code of Civil Procedure and the rules made) by the High Court
in conformity therewith.

   12. Section 106, Government of India Act of 1915 and Section 223, Government
of India Act 1935 have made no change in the position so far as the matrimonial
jurisdiction vested in this High Court is. concerned. While the Statute Law in
India has thus remained practically what it was in 1869 the law in England has
undergone considerable change since then. Thus, the Matrimonial Causes Act of
1873 (36 & 37 Vic., C. 31) extended the .provisions of Section 7, Matrimonial
Causes Act of 1860 (23 & 24 Vic., C. 144) and Section 3, Matrimonial Causes Act
of 1866 (29 & 30 vic., C. 32) which required that a decree in a suit for
dissolution of marriage should in the first instance be a decree nisi not to be
made absolute till after the expiration of such period not less than six months
as the High Court may direct, to suits for nullity of marriage. The provisions
applicable to matrimonial causes have since been consolidated and set out in
Part VIII of the Supreme Court of Judicature (Consolidation) Act of 1925 (15 &
16 Geo. V, C. 49). Section 183 of this Act provides that every decree for a
divorce or for nullity of marriage shall in the first instance be a decree nisi
not to be made absolute until after the expiration of six months from the
pronouncing thereof unless the Court fixes a shorter time. Liberty is also given
by this section to any person to show cause why the decree should not be made
absolute by reason of the facts stated therein. Thus in England since 1874 a
decree in a suit for nullity has been placed on the same footing as a decree in
a suit for dissolution of marriage, with the same provision for intervention by
any person in both cases.

   13. The question is whether this High Court is to follow and adopt this
change as regards decree nisi in the case of a decree to be passed by it in a
suit for nullity. This practice of making a decree nisi in a suit for nullity is
certainly not any part of the ecclesiastical law that was used and exercised in
the Diocese in London in 1774 nor is this practice enjoined or permitted by the
sections collected in Part IV, Indian Divorce Act, or the Code of Civil
Procedure or the rules framed by the High Court. The only way by which this new
practice can be introduced in this Court is by applying the provisions of
Section 7, Indian Divorce Act, which I have already quoted at length. It will be
noticed that the main provisions of that section are "subject to the provisions
contained in this Act."

   14. Mr. Barwell contended that Section 7 provides for adoption of substantive
matrimonial law of England as applied by the Courts of Divorce and Matrimonial
Causes, but not the adjective or procedural law. He referred me to the language
of Section 7 of our Act and the language of Section 22, English Matrimonial
Causes Act of 1857 and contended that the significant word "proceed" which is to
be found in Section 22, English Act of 1857 has been omitted from Section 7,
Indian Act of 1869. Prom this circumstance Mr. Barwell wanted me to conclude
that the meaning and intention of Section 7 of our Act of 1869 was not to adopt
the law of procedure for the time being prevailing in England. While agreeing
with Mr. Barwell that the omission of the word "proceed" is somewhat significant
I would not be prepared to go further and uphold Mr. Barwell's contention on
this circumstance alone. But on a careful and anxious consideration of other
matters also adverted to by Mr. Barwell in his able and learned argument to
which I shall presently refer I find myself in agreement with his general
contention on this point.

   15. My reasons are as follows : (a) Under Clause 37, Letters Patent of 1865,
and the provisions of Sections 45 and 62 of our Act of 1869, matters of
procedure in matrimonial causes in this Court are to be regulated by the Code of
Civil Procedure and the Rules made by the High Court. The passing of the decree
in a suit, the form and contents of the decree and other cognate matters fall
within the domain of the law of procedure and are therefore to be regulated by
the Code of Civil Procedure and the Rules made by the High Court. The Civil
Procedure Code in certain cases provides for the passing of two decrees, e. g.,
in mortgage suits, administrative suits, partition suits, in suits for mesne
profits, partnership suits and account suits. In all other cases the Code
provides for one decree to be passed. The Divorce Act, 1869, expressly provides
for passing of a decree nisi in a suit for dissolution of marriage to be made
absolute later on. Therefore passing of one decree in all matrimonial suits
other than a suit for dissolution of marriage is obligatory on this Court.

   16. (b) Further, on a careful consideration of the judicial decisions of high
authority on Section 7, Divorce Act, I find myself in agreement with Mr. Barwell
that the words "principles and rules" in Section 7 do not include the law of
procedure prevailing in England for the time being. Thus, in 4 Beng. In Abbott
v. Abbott ('69) 4 Beng. L. R. (O. C.) 51 which was decided in the very year in
which the Divorce Act had been passed, Mcpherson J. observed that all the
procedure under the Divorce Act is, by Section 45, to be regulated by Act VIII
of 1859 and that Section 7, 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. Again in the case of Bailey v. Bailey (1897) 8 P. D. 217 which was
decided in 1897 but was reported in the foot-note in (1897) 8 P. D. 217 Jenkins
J. held that the expression "principles and rules" does not apply to procedure
but points rather to the rules and principles on which the Court deals with the
matrimonial causes in requiring a certain degree of evidence, and other cognate
matters. This decision was followed by Henderson J. and his decision was upheld
by the Court on appeal in Ramsay v. Boyle ('03) 30 Cal. 489. It was definitely
held there that Section 7 of the Act does not apply to matters of procedure. The
same view was adopted by the Bombay High Court in A (husband) v. B (wife) ('98)
22 Bom. 612 where Farran C. J. observed as follows:

     The principles and rules here referred to, are not, we think mere rules of
procedure including rules which regulate appeals which are laid down in the
subsequent Sections (45 and 55) of the Act, but are the rules and principles
which determine the cases in which the Court will grant relief to the petitioner
appearing before it or refuse that relief -- rules of quasi-substantive rather
than mere adjective law. Exactly the same language was used in giving the
Matrimonial Court in England jurisdiction to deal with cases over which the
Ecclesiastical Courts had theretofore such jurisdiction, Sections 20 and 21
Vict., Ch. 85, Section 22. The above was the view taken in 4 Beng. L. R. (O. C.)
51 in Abbott v. Abbott ('69) 4 Beng. L. R. (O. C.) 51 and is, we think, the
correct view."

   17. The observation of Reilly J. in D. Iswarayya v. S. Iswarayya ('30) 17 A.
I. R. 1930 Mad. 154 that

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

   was characterised as obiter by Stone J. in (FB), Agnes Sumathi Ammal v. D.
Paul . The case before Reilly J. dealt with the

   question whether the Courts in India had power to increase permanent alimony
after having once made an order for alimony. As pointed out by Mr. Barwell, in
substance this case dealt with what may be called substantive law relating to
substantive rights of the wife and not with mere matters of procedure and
consequently when the case came before the Judicial Committee in D. Iswarayya v.
S. Iswarayya , their Lordships applying Section 7 of the Act held that the rule
of the English law introduced by subsequent statutes giving power to the Court
to increase or decrease the amount of alimony from time to time was to be
followed by the Court in India. Viewed in this light, the decision in 58 I. A.
330 does not militate against but rather supports the point raised by Mr.
Barwell. Stone J., however, only disagreed with the last seven words in the
observation of Reilly J. quoted above but appears to have agreed with the rest
of that observation of Reilly J. In fact he went further than Reilly J. With the
utmost respect to both the learned Judges I do not find myself in agreement with
any portion of the observations of Reilly J. quoted above except that the words
'principles and rules' in Section 7, Divorce Act, mean principles and rules of
law. I prefer to follow the rulings of this Court to which I have already
referred. I shall deal with the decision in Agnes Sumathi Ammal v. D. Paul

   in greater detail later on.

   18. (c) Even if the words 'principles and rules' in Section 7 of our Act
brings within its ambit the law of procedure, yet in my opinion, the modern
English practice of passing a decree nisi in a nullity suit cannot be introduced
in our practice. The Code of Civil Procedure has been adopted by Section 45,
Divorce Act. This Section 45 is an express provision of our Act and consequently
the main provision of Section 7, Divorce Act is subject to Section 45. The
English practice of passing a decree nisi in a nullity suit introduced in
England by the Matrimonial Causes Act of 1873 is clearly repugnant to what I
conceive to be clearly enjoined, by the Code of Civil Procedure and the latter
Code being expressly directed to be followed by this Court by Section 45 of our
Act, Section 7 must give way to Section 45.

   19. (d) Apart from the considerations of Clause 37, Letters Patent, and
Section 45 of the Act and of the provisions of the Code of Civil Procedure to
which I have adverted, I also find further and other difficulties in adopting
the modern English practice of passing a decree nisi in a suit for nullity. It
will be remembered that in 1869 there was no practice of passing a decree nisi
in any matrimonial cause except in a suit for dissolution of marriage. The
Indian Divorce Act admittedly embodied the law as it then was in England.
Therefore in 1869 the group of sections collected in part IV under the heading "
nullity of marriage " clearly contemplated and meant one decree in a suit for
nullity of marriage. If that was the plain intent and meaning of those sections
in 1869, as it must have been, then by necessary implication those sections, in
1869, excluded the idea of two decrees being passed in a nullity suit. It is
true that the object of Section 7 of the Act was to provide for a certain amount
of elasticity and adaptability by the use of the words "for the time being" in
that section as opposed to the rigidity of the words "as the same is now used
and exercised in the Diocese of London" to be found in Clause 22 of the Charter
of 1774 which established the Supreme Court; but I cannot think that this
circumstance can alter the meaning of the sections in Part IV of the Act.
Sections which meant and. contemplated one decree in 1869 cannot mean and
contemplate two decrees in 1874. If therefore those sections continue to-mean
and contemplate one decree as they did in 1869, then introduction of the modern
English practice will lead to absurdity, for the modern practice will require
two decrees when the sections in Part IV will insist on one decree. The two
things cannot stand together as they are repugnant to each other. Therefore the
meaning and intent of those sections in Part IV must prevail, because Section 7
is subject to other provisions of the Act. For this reason also I should not, by
the application of Section 7, introduce any rule of law or procedure which will
violate or run counter to the plain meaning of the other sections or the
necessary implication thereof.

   20. (e) Clause 37, Letters Patent of 1865 having expressly changed the
language employed in Clause 37, Letters Patent of 1862 which had introduced the
practice of the English matrimonial Courts, I find it difficult to conceive that
the Indian Legislature by Section 7, Divorce Act, intended to go back to the
position that had been created by the Letters Patent of 1862.

   21. (f) The observations that have been made in different judicial decisions
as to the form of a decree in a suit for nullity also point to the same
conclusion. The first case to which I need refer is the case in A (wife) v. B
(husband) ('99) 23 Bom 460. The question there was whether a decree of nullity
of marriage made by a District Judge could be confirmed by the High Court before
the expiration of 6 months from the pronouncing thereof and therefore strictly
speaking the case is not in point. But there are observations in that case which
support Mr. Harwell's contention. Thus Parsons A. C. J. observed as follows at
page 462:

     No doubt a difference is thus made between decrees for nullity passed by a
High Court and those passed by a District Judge. The former are made absolute at
once, the latter have to be confirmed by the High Court after a lapse of six
months' time. No argument, however, can be based on this difference. Decrees for
dissolution of marriage passed by a High Court are delayed in order to allow
persons to intervene as provided by Section 16, but there is no provision
allowing of intervention in the case of decree of nullity passed by a High
Court. They may, therefore, be made absolute at once. In the case of decrees
passed by a District Judge for dissolution, there is no provision made for any
intervention, but yet they have to wait for six months before they can be
confirmed. There is no reason, therefore, why decrees for nullity should not
wait the same time.

   22. The fact that at the time the Act was passed, decrees for nullity were
made absolute at once under English law gives us no assistance. All we can say
about this is that the Legislature adopted the English law in the case of
decrees passed by a High Court and disregarded it in the case of decrees passed
by a District Court, for which latter decrees a different procedure was
expressly provided. For this reason we cannot under Section 7 apply the law that
since 1873 has been in force in England, under which the Courts there have a
discretion to shorten the period of six months for which decrees of nullity have
ordinarily to wait (Section 36, Vic. C. 31)." In the above observations in so
far as they relate to a decree in a suit for nullity passed by the High Court
the learned Acting Chief Justice merely states the practice adopted by the
Bombay High Court of making one absolute decree in such a suit, assumes the
correctness of such practice and proceeds to discuss the point in issue in the
light of this practice. The point I am now considering was not the exact point
in issue in that case and therefore these observations are not of very great
assistance in determining whether such practice is the correct one although I
agree that it is so. Before leaving this case I should refer to the following
passage in the judgment of Ranade J. at page 464:

     Then again Section 7 of the Act, directs that the principles and rules
followed by English Divorce Courts shall govern, as far as may be, the Courts
here in dispensing relief. The English enactments did not at first direct that
decrees even in suits for dissolution of marriage should be made decrees nisi,
but only allowed appeal within three months (S. 55 of 20 & 21 Vic., C. 85). Such
appeal was allowed in cases o nullity decrees also by Section 17 of 21 and 22
Vic., C.

     108. Later on, Section 7 of 23 and 24 Vic., C.144 provided that every
decree for divorce should in the first instance be a decree nisi, not to be made
absolute till after three months had expired, and Section 3 of 29 and 30 Vic.,
C. 32, extended this period to six months. In 1873 the same period was provided
for in respect of nullity decrees. It is thus clear that both on grounds of
strict construction, and general reasoning as well as analogy with the
corresponding provisions of English law, the principles of which are obligatory
on Courts in India under Section 7, it must be held that Clause 4 of Section 17
with the proviso applies to nullity decrees sent up for confirmation under
Section 20, and that no order of confirmation can be passed till after six
months have expired.

   23. In so far as the above observations of the learned Judge seem to imply
that Section 7 of our Act, attracts all changes in the English law and that the
English practice of passing a decree nisi in a nullity suit should be introduced
here under Section 7, I respectfully disagree with the same. The considerations
and the authorities I have referred to above were not discussed in that case.
The case in Edward Caston v. L. H. Caston (1900) 22 All. 270 (F. B.) was also
concerned with the question whether a decree of nullity of marriage made by a
District Judge could be confirmed by the High Court before the expiration of six
months from the pronouncing thereof and therefore this case is also not strictly
in point. Mr. Bar-well, however, relied on the following observations of
Strachey C. J. at pp. 277 and 278:

     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.

   The above observations also like those of Parsons A. C. J. in A (wife) v. B
(husband) ('99) 23 Bom 460 merely state the practice of the Allahabad High Court
of passing one absolute decree in a suit for nullity and the point really in
issue in that case is tested in the light of this practice. This case also does
not help very much on the question whether such practice is the proper practice.
In Wilson v. K. H. Wilson ('31) 18 A. I. R. 1931 Lah. 245, Tapp J. allowed the
appeal and passed a decree for nullity and expressly stated that the decree
would be an absolute one. Mr. Bar-well relied on this case in support of his
contention. No reasons having been given this decision is not of any great
assistance except as showing the practice of the Lahore High Court. In C. Samuel
v. M. S. N. Samuel. ('34) 21 A. I. R. 1934 Lah. 636, the same question of time
for confirmation of a decree of nullity passed by a District Judge arose and the
Special Bench of the Lahore High Court followed the Allahabad decision. There
are observations, however, in this case recognising that the Indian Divorce Act
makes a distinction between decrees for dissolution, of marriage and decrees for
annulling a marriage.

   24. The last case is the case in (FB), Agnes Sumathi Ammal v. D. Paul to
which I have already referred. In this case the

   question that is now before me was also precisely in point. Stone and Mockett
JJ. held that the proper form of a decree to be passed in the first instance in
a suit for a declaration of nullity of marriage filed on the Original Side of
the Madras High Court was that of a decree nisi and not a decree absolute.
Wadsworth J. expressed a contrary opinion. Stone J. took the view that Section
7, Indian Divorce Act, enabled the Madras High Court to adopt the change brought
about by the English Matrimonial Causes Acts. He regarded the words "principles
and rules" in Section 7 as embracing all principles and rules of law, of
evidence, of interpretations, and practice and procedure including all
provisions and Statutes and rules made in England from time to time. The learned
Judge read the observations of the Judicial Committee in D. Iswarayya v. S.
Iswarayya as supporting his views. As I have

   already explained the last mentioned case does not support the very broad
general proposition assumed by Stone J. The provisions of the Letters Patent of
1865 or of Section 45, Indian Divorce Act or the Code of Civil Procedure or the
considerations and difficulties I have discussed above do not appear to have
been adverted to by his Lordship. Mockett J. also toot the same view of Section
7. With the utmost respect I cannot agree with those learned Judges. I
respectfully agree with the conclusion arrived at by Wadsworth J. for reasons
stated by him as also for the other reasons stated by me above. It is needless
to repeat my reasons.

   25. In my opinion, therefore, the decree to be passed by this High Court in
exercise of its matrimonial jurisdiction in a suit for nullity of marriage filed
under the Indian Divorce Act must be one plain, simple, absolute decree as would
be passed in a suit for declaration of nullity of marriage between non-Christian
persons under Section 45, Specific Relief Act. Notwithstanding the great
eminence of the learned Judge and of learned Counsel who were concerned with the
case reported in 41 C.W.N. 268, and with the utmost respect to them, the
practice introduced by them does not appear to me to be the correct practice
under the law prevailing in this country. I accordingly direct that one simple
decree declaring the marriage to be null and void be drawn up in this case.
Before leaving the case I cannot but refer to the following observations of
Ranade J. in 23 Bom. 460 at pp. 463-64:

     Quite apart from the requirements of a strict legal construction, it may be
noted that the reasons of expediency, which suggest that such confirmation
should not be made in the case of decrees for the dissolution of marriage till
after six months have expired, hold equally good in the case of nullity decrees.
The interests of children have to be safeguarded equally in either case. In the
case of decrees declaring marriage null on the ground of bigamy, for instance,
the status of the children, as legitimate or bastard, may often be involved in
the confirmation of such decrees more seriously even than in the case of decrees
for the dissolution of marriage. There is equal room for collusion in both
oases. The same safeguards are, therefore, needed in the one case as in the
other.

   I fully agree with the reasons of expediency mentioned by his Lordship but
those are matters for the Legislature. I do not think these reasons can or
should weigh with the Court in construing a statute. It is for the Legislature
to remedy the defect in our law and bring it into line with the English law.