There can be no dual opinion in respect of the
proposition that statutory provisions creating substantive right or
taking away substantive rights are ordinarily perspective. They are
retrospective only if by express words or by necessary implication
the Legislature has made them retrospective; and the retrospective
operation will be limited only to the extent to which it has been so
made by express words or necessary implication. (See Mahadeolal
Kanodia Vs. The Administrator General of West Bengal,
reported in AIR 1960 SC 936).
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.07 OF 1996
Sou.Kamal Anna Gaikwad Vs Anna Balaji Gaikwad,
CORAM : R.M.BORDE,
N.W.SAMBRE &
A.M.BADAR, JJJ.
Pronounced on : 09th May, 2014.
JUDGMENT (Per R.M.Borde, J.):
Citation; 2014(4) MHLJ 581 Bom FB
1 The instant Reference as well as the First Appeal are
directed to be placed before us in view of the order passed by the
Division Bench of this Court on 2nd September, 2004, for
consideration of issues, as to:
(1) Whether the Full Bench was justified in directing
disposal of Reference by an order dated 19.08.1997 in
view of the Full Bench judgment of this Court in
M.J.Suit No.455 of 1995 (Mrs.Pragati Varghese Vs.
Cyril George Varghese), decided on 6th & 7th May,
1997, reported in (1997) 3 MhLJ 602; and
(2) Whether the amendment directing omission of
provisions contained in Section 17 requiring
confirmation of decree for dissolution passed by the
District Judge, by the High Court i.e. the Court
composing of three Judges of the High Court operates
retrospectively thereby rendering the Reference, in a
pending matter, infructuous.
2 In order to understand the controversy giving rise to
the appeal and Reference, some relevant facts, in brief, need to be
recorded.
One Anna Balaji Gaikwad presented Regular Civil Suit
No.1 of 1991 in the District Court, Jalna, claiming decree of
dissolution of marriage solemnized with Kamal Gaikwad.
Respondent No.2 is impleaded in the proceedings since there are
allegations of keeping illicit relations with Kamal. It is not
disputed that the parties profess Christian religion.
3 After recording evidence before the trial Court, at the
conclusion of the trial, the learned District Judge passed decree on
13.10.1995 directing dissolution of marriage. The decree passed by
the District Judge came to be forwarded to the High Court for
confirmation, as required under Section 17 of the Indian Divorce
Act, 1869. (for short, ‘Act of 1869’).
4 Feeling aggrieved by the decree, wife Kamal preferred
a First Appeal in this Court and same is registered as First Appeal
No.7 of 1996.
5 Reference No.1 of 1996 was placed for consideration
before the Full Bench, as required under the provisions of Section
17 of the Special Marriage Act and the Full Bench directed that the
First Appeal be heard along with the Reference. The Full Bench,
on 19.08.1997, was pleased to pass order disposing of the
Reference, however, the First Appeal remained pending for
disposal. The text of the order, passed by the Full Bench on
19.08.1997, reads thus:
“Both the learned Counsel appearing for the
parties state that the Reference need not be
answered in view of the Full Bench judgment of
this Court in M.J.Suit No.455/1995
(Mrs.Pragati Varghese Vs. Cyril George
Varghese) decided on 6th and 7th May, 1997”.
The Full Bench further directed that the appeal be
placed for final hearing before the Division Bench and same was
accordingly placed before the Court on 02.09.2004 and the
Division Bench passed the order, as recorded in the first
paragraph.
6 In the matter of Mrs.Pragati Varghese Vs. Cyril
George Varghese, reported in (1997) 3 MhLJ 602, decided on
6th/7th May, 1997, various suits were filed by Christian wives for
dissolution of their marriages under Section 10 of the Indian
Divorce Act, 1869. Each of them impugned the vires of the
provisions of Section 10 of the Act which provides for the grounds
on which husband or wife can sue for dissolution of marriage.
7 It was contended by the wives in Pragati Varghese’s
case that provisions contained in the Act of 1869 are archaic and
adversely discriminate wives as against husbands on the ground of
sex and as such, are violative of Article 15 of the Constitution. It is
also contended that the aforesaid provisions adversely
discriminates them visavis
wives governed by other religions. It
is, thus, contended that the provisions are also violative of Article
14 of the Constitution. It was also contended that as a result of
the discriminatory provisions, they are forced to continue to live
with their husbands even though they are subjected to cruelty and
desertion. The wives contend that they are deprived of their right
to life and personal liberty, dignity, as such, the provisions of the
Act contravene Article 21 of the Constitution. The plaintiffs/wives
have also impugned certain ancillary provisions of the Act of 1869,
namely Sections 17 and 20, which provide for requirement of
confirmation of decrees of dissolution of marriage or nullity,
passed by the District Judge, by the High Court, that too normally
by a Bench of not less than three Judges.
8 The Full Bench, while deciding the matter, upheld the
contentions raised by the plaintiffs/wives and directed striking
down provisions of Section 10 of the Act which are found to be
offending Articles, 14, 15 and 21 of the Constitution. The Court
also declared that the procedure contemplated under Sections 16,
17 and 20 of the Act is unreasonable and are arbitrary in nature
and same achieves no useful object or purpose. The procedure
provided tends to perpetuate the agonies of the affected parties. If
such procedure is absent in other enactments, there is no
propriety in application of said procedure to Christian spouses.
The said procedure is held to be liable of striking down by suitable
amendments. In paragraph no.56 of the judgment, the Court has
observed:
“56 In the result, we hold that the indicated
portions of section 10 of the Act are ultra vires
Articles 14, 15 and 21 of the Constitution and
the same are accordingly struck down. We
further find the provisions of sections 16, 17
and 20 of the Act are also arbitrary and
unreasonable. We suggest that the legislature
should intervene and carry out suitable
amendments to ‘the Act’ at the earliest. We
direct that a copy of this order may be
forwarded forthwith to the Ministry of Law and
Justice for such action as they may deem fit to
take.”
9 After the decision of the Full Bench in Pragati
Varghese’s matter, the Parliament introduced a Bill for bringing
amendment in the Act of 1869 and amended certain provisions of
the Act by enacting Indian Divorce Act, 2001 (Act No. 51 of 2001).
The provisions of the Amending Act were enforced since
03.10.2001.
10 In the instant matter, as observed above, a decree for
dissolution of marriage has been passed by the District Judge on
13.10.1995 and thereupon the decree has been referred to this
Court for confirmation in accordance with Section 17 of the Act
whereupon, Reference Case No.1 of 1996 came to be registered.
Feeling aggrieved by the judgment and decree passed by the
District Judge, the wife has filed instant appeal i.e. First Appeal
No.7 of 1996 in this Court. The question that falls for
determination is:
As to whether the provisions of Indian Divorce
Act, 2001 (Act No. 51 of 2001) can be applied to
the instant proceedings retrospectively?
11 It would be appropriate to refer to certain provisions of
the Act of 1869 as applicable prior to passing of Act No.51 of 2001.
Section 3(2) defines “District Judge”. District Judge means Judge
of a principal civil court of original jurisdiction however designated.
Section 3(3) defines “District Court”. District Court means, in the
case of any petition under this Act, the Court of the District Judge
within the local limits of whose ordinary jurisdiction, or of whose
jurisdiction under this Act, the husband and wife reside or last
resided together. Section 3(4) “Court” Court
means the High
Court or the District Court, as the case may be. Section 14
provides for power of the Court to pronounce decree for dissolution
of marriage, which reads thus:
14 Power to Court to pronounce decree for
dissolving marriage:In
case the Court is satisfied on the evidence
that the case of the petitioner has been proved,
and does not find that the petitioner has been
in any manner accessory to, or conniving at,
the going through of the said form of marriage,
or the adultery of the other party to the
marriage, or has condoned the adultery
complained of, or that the petition is presented
or prosecuted in collusion with either of the
respondents, the Court shall pronounce a
decree declaring such marriage to be dissolved
in the manner and subject to all the provisions
and limitations in sections sixteen and
seventeen made and declared;
Provided that the Court shall not be
bound to pronounce such decree if it finds that
the petitioner has, during the marriage, been
guilty of adultery,
or if the petitioner has, in the opinion of
the Court, been guilty of unreasonable delay in
presenting or prosecuting such petition,
or of cruelty towards the other party to
the marriage,
or of having deserted or wilfully separated
himself or herself from the other party before
the adultery complained of, and without
reasonable excuse,
or of such wilful neglect or misconduct of
or towards the other party as has conducted to
the adultery.
Condonation: No adultery shall be
deemed to have been condoned within the
meaning of this Act unless where conjugal
cohabitation has been resumed or continued.
Section 16 relates to decree of dissolution to be nisi,
which reads thus:
16 Decrees for dissolution to be nisi.
Every decree for a dissolution of marriage made
by a High Court not being a confirmation of a
decree of a 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 six months from the pronouncing
thereof, as the High Court, by general or special
order from time to time, directs.
Collusion: During that period any person shall
be at liberty, in such manner as the High Court
by general or special order from time to time
directs, 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.
On cause being so shown, the Court shall
deal with the case by making the decree
absolute, or by reversing the decree nisi, or by
requiring further inquiry, or otherwise as
justice may demand.
The High Court may order the costs of
Counsel and witnesses and otherwise arising
from such cause being shown, to be paid by the
parties or such one or more of them as it thinks
fit, including a wife if she have separate
property.
Whenever a decree nisi has been made,
and the petitioner fails, within a reasonable
time, to move to have such decree made
absolute, the High Court may dismiss the suit.
Section 17 relates to confirmation of decree for
dissolution by District Judge, which reads thus:
17 Confirmation of decree for dissolution
by District Judge:
Every decree for a dissolution of marriage made
by a District Judge shall be subject to
confirmation by the High Court.
Cases for confirmation of a decree ‘for
dissolution of marriage shall be heard (where
the number of the Judges of the High Court is
three or upwards) by a Court composed of three
such Judges, and in case of difference the
opinion of the majority shall prevail, or (where
the number of the Judges of the High Court is
two) by a Court composed of such two Judges,
and in case of difference the opinion of the
Senior Judge shall prevail.
The High Court, if it thinks further
enquiry or additional evidence to be necessary,
may direct such enquiry to be made, or such
evidence to be taken.
The result of such enquiry and the
additional evidence shall be certified to the High
Court by the District Judge, and the High Court
shall thereupon make an order confirming the
decree for dissolution of marriage, or such other
order as to the Court seems fit;
Provided that no decree shall be
confirmed under this section 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.
During the progress of the suit in the
Court of the District Judge, any persons
suspecting that any parties to the suit are or
have been acting in collusion for the purpose of
obtaining a divorce, shall be at liberty, in such
manner as the High Court by general or special
order from time to time directs, to apply to the
High Court to remove the suit under section
eight, and the High Court shall thereupon, if it
thinks fit, remove such suit and try and
determine the same as a Court of original
jurisdiction, and the provisions contained in
section sixteen shall apply to every suit so
removed; or it may direct the District Judge to
take such steps in respect of the alleged
collusion as may be necessary to enable him to
make a decree in accordance with the justice of
the case.
Section 20 provides for confirmation of District
Judge’s decree, which reads thus:
20 Confirmation of District Judge’s
decree:
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
seventeen, clauses one, two, three and four,
shall mutatis mutandis apply to such decrees.
Section 55 provides for enforcement of, and
appeal from, orders and decrees, which reads
thus:
55 Enforcement of, and appeal from,
orders and decrees:
All decrees and orders made by the Court in
any suit or proceeding under this Act shall be
enforced and may be appealed from, in the like
manner as the decrees and orders of the Court
made in the exercise of its original civil
jurisdiction are enforced and may be appealed
from, under the laws, rules and orders for the
time being in force:
Provided that there shall be no appeal
from a decree of a District Judge for dissolution
of marriage or if nullity of marriage; nor from
the order of the High Court confirming or
refusing to confirm such decree:
No appeal as to costs.
No appeal as to costs:Provided
also
that there shall be no appeal on the subject of
costs only.
12 The unamended provisions of Section 14 of the Act of
1869 relates to power of the Court to pronounce the decree for
dissolving the marriage, which is subject to all the provisions and
limitations in Sections 16 and 17 made and declared. Section 16 of
the Act provides that the every decree for dissolution of marriage
made by the District Court being a decree nisi, not to be made
absolute till expiration of period of six months from the date of
pronouncement of the decree. Whereas, Section 17 provides for
confirmation of the decree of dissolution made by the District
Judge, subject to confirmation by the High Court. Cases for
confirmation are required to be heard by a Court composed of 3
Judges and in case of difference of opinion, the majority shall
prevail. The decrees in respect of nullity of marriage, passed by
the District Judge, are subject to confirmation by the High Court,
in the same manner, as provided in Section 17.
13 The Act of 1869, prior to its amendment, did not
provide for remedy of appeal for challenging the decree passed by
the District Judge and proviso to Section 55 of the Act specifically
provided that there shall be no appeal from the decree of the
District Judge for dissolution of marriage or nullity of the
marriage. Therefore, as on the date of presentation of instant
appeal, the Act of 1869 did not provide for such remedy.
14 The Amendment Act of 2001 (Act No.51 of 2001)
introduced major changes in the Act of 1869. Apart from
introducing additional grounds for dissolution of marriage,
consistent with the provisions of other enactments, Section 10A
provides for dissolution of marriage by mutual consent. The
provision requiring confirmation of decree for dissolution of
marriage passed by the District Judge, by the Bench of three
Judges of the High Court, has been deleted and Section 17 has
been amended empowering the High Court to remove certain suits.
In the same fashion, Section 20 requiring confirmation of a decree
of nullity, passed by the District Judge, by the Bench of Three
Judges of the High Court, has also been deleted. An appellate
remedy has been provided in respect of decrees passed by the
District Judge by removing the embargo contained in the first
proviso to Section 55.
15 There can be no dual opinion in respect of the
proposition that statutory provisions creating substantive right or
taking away substantive rights are ordinarily prospective. They are
retrospective only if by express words or by necessary implication
the Legislature has made them retrospective; and the retrospective
operation will be limited only to the extent to which it has been so
made by express words or necessary implication. (See Mahadeolal
Kanodia Vs. The Administrator General of West Bengal,
reported in AIR 1960 SC 936).
16 In the matter of Jose Da Costa and another Vs.
Bascora Sadashiva Sinai Narcornin & others, reported in AIR
1975 SC 1843, the facts giving rise to the dispute are thus:
The plaintiff instituted a suit before the Court of Judge
of Quepem Comarca in accordance with the Portuguese Law, then
in force in the territory of Goa, for ejectment of defendants from
the suit property. The suit was decreed, against which, the
defendant preferred an appeal, which came to be dismissed by the
Additional Judicial Commissioner. As such, an appeal was carried
to the Supreme Court. The argument before the Court was that
notwithstanding the fact that a plea of acquisition of title by
prescription was specifically raised in the pleadings, the grounds of
appeal, so also put in issue, the Court below has failed to give a
finding on the same. In answer, it was contended that the
appellant is precluded from agitating the plea of prescription,
because he had not filed a review application (reclamacao) in the
appropriate Court to get that nullity i.e. omission to decide this
plea, rectified within limitation in accordance with Articles 668,
669 and 717 of the Protuguese Civil Code. It was contended that
since the suit was filed before the extension of the Code of Civil
Procedure, 1908 to Goa, Daman and Diu, the Portuguese Civil
Code will continue to govern the rights of the parties in the matter
of appeal. The question, that arose for consideration, was as to
whether it was imperative for the defendants to file a “reclamacao”
under Article 669 in regard to Issue No.3 in the Court of first
instance? And the second question that arose was, when and to
what extent did the provisions of Protuguese Civil Court cease to
be applicable to the case?
17 In order to consider the question raised before the
Supreme Court, it was necessary to deal with the question as to
whether presentation of reclamacao, as prescribed under Article
669 of the Protuguese Law is a part of procedural requirement or is
a substantive right. While dealing with the issue, the Supreme
Court, in paragraphs no.28 to 31, has observed thus:
“28 Before ascertaining the effect of the
enactments aforesaid passed by the Central
Legislature on pending suits or appeals, it
would be appropriate to bear in mind two well
established principles. The first is that “while
provisions of a statute dealing merely with
matters of procedure may properly, unless that
construction be textually inadmissible, have
retrospective effect attributed to them,
provisions which touch a right in existence at
the passing of the statute are not to be applied
retrospectively in the absence of express
enactment or necessary intendment” (see Delhi
Cloth and General Mills Co. Ltd. v. Income tax
Commr.), 54 Ind App 421 = (AIR 1927 PC 242).
The second is that a right of appeal being a
substantive right the institution of a suit
carried with it the implication that all
successive appeals available under the law then
in force would be preserved to the parties to the
suit throughout the rest of the career of the
suit. There are two exceptions to the
application of this rule, viz. (1) when by
competent enactment such right of appeal is
taken away expressly or impliedly with
retrospective effect and (2) when the court to
which appeal lay at the commencement of the
suit stands abolished (see Garikapatti Veerava
v. N. Subbiah Choudhry 1957, SCR 488 = (AIR
1957 SC 540) and Colonial Sugar Refining
Co.Ltd. v. Irving, 1905 AC 369).
29 In the light of the above principles, these
points arise for consideration: Are the
provisions of the Portuguese Civil Code relating
to Reclamacao merely matters of procedure? Or,
do they create or affect vested rights and
remedies? That is to say, does a Reclamacao
have all the attributes of a substantive right of
appeal existing at the commencement of the
suit? Did the superior Court of Appeal at
Lisbon stand abolished as an appellate forum
in relation to Goa, Daman and Diu from 20121962?
If so, what is its effect on the right of
appeal given by Articles 677 and 722 of the
Portuguese Civil Code and their application to
the present case? Was the Portuguese
Supreme Court at Lisbon succeeded by the
Supreme Court of India, for the purpose of the
aforesaid Articles 677 and 722 of the
Portuguese Code? If so, did this position hold
good after 1561966?
Does the Central Act 30
of 1965 read with Notification No. S.O. 1597,
issued thereunder, expressly or impliedly, make
inapplicable the provisions of the Portuguese
Civil Code in the matter of Reclamacao in
respect of a decision or judgment rendered by
the Court of Judicial Commissioner after 1561966?
That is to say, have the rights, remedies
or obligations arising out of the Portuguese Law
relating to Reclamacao saved by any of the
clauses (a), (b) or (c) of the first Proviso to
Section 4(1) of Act 30 of 1965?
30 It may be noted that while a right of
appeal from court to court is a substantive
right which under the then law, exists on and
from the date of the institution of the suit, the
same cannot be said with regard to
Reclamacao. The provisions of the Portuguese
Civil Code relating to Reclamacao lay down only
special rules of procedure which have to be
gone through before a litigant is entitled to raise
in appeal a material point left undecided by the
lower court. The object of requiring a party
aggrieved by a ‘nullity’ is to save the time of the
appellate Court by precluding a party to
reagitate in appeal pleas that had been left
undecided by the lower court. It also minimises
the necessity of remands to the lower court for
trial of particular issues and thus shortens
litigation. The requirement of obligation to file a
Reclamacao is not an obligation to esse or /
and from the institution of the suit. Nor is the
procedural right to file Reclamacao – if at all it
can be called a ‘right’ a
vested right existing
from the date of the suit. The filing of a
Reclamacao is dependent upon the happening
of an uncertain event. It arises only when a
judgment suffering from a ‘nullity’ is passed.
Such a contingency may or may not arise. On
the other hand, in the case of a suit, it can be
predicated that it would normally result in a
decree entitling the aggrieved party to have the
suit reheard and redecided in a higher forum by
filing an appeal provided of course such a right
is available under the law prevailing at the
institution of the suit.
31 In the present case, the judgment of the
Additional Judicial Commissioner in which the
alleged “nullity” or “omission to adjudicate” on
the point of prescription occurs was delivered
on 2011968,
that is, long after the extension
of Articles 132, 133 and 134 of the
Constitution. Rules framed under Article 145 of
the Constitution and Sections 109 and 110 of
the Code of Civil Procedure to Goa, Daman and
Diu. The procedural provisions of the
Portuguese Code relating to Reclamacao, and
appeal from a decision on Reclamacao, from the
High Court in Goa, Daman and Diu stood
repealed and superseded by the extended
Indian laws when the judgment now under
appeal was rendered.”
18 It was concluded by the Supreme Court that the
Portuguese Law relating to reclamacao stood repealed and no
substantive right or obligation had been acquired or incurred
under the repealed law, within the meaning of the first proviso to
S.4(1) of Act 30 of 1965, the appellants cannot be debarred from
canvassing in this appeal under Article 136, the plea of
prescription notwithstanding the fact that they did not file any
Reclamacao in the Court of the Judicial Commissioner and as
such, the preliminary objection raised by the plaintiff came to be
rejected.
19 In juxtaposition, in the instant matter, the requirement
provided under Section 17 relating to confirmation of a decree
passed by the District Judge, of dissolution of marriage, cannot be
constructed as a procedural requirement. On the date of
presentation of instant appeal, there was no provision providing for
appellate remedy. The appeal presented by the wife challenging the
decree, on the date of presentation, was not a proper appeal since
Section 17 of the Act provides for confirmation of a decree by the
Full Bench of the High Court. The party to the Reference i.e. wife
in the instant case, can challenge validity of the decree at the time
of consideration of Reference and confirmation by the Full Bench
of the High Court. At that stage only, aggrieved party gets right to
challenge the decree. From reading the provisions, it is evident
that the confirmation of a decree is not an empty formality, as the
provision confers a substantive right on the party to the
proceedings to make grievance in respect of decree passed by the
District Judge to make a prayer to the Bench of the High Court not
to confirm the decree. In our opinion, the provisions contained in
Section 17 (prior to its amendment), shall have to be construed as
conferring substantive right on the party and the reference
procedure, provided under the said provision, cannot be termed as
a procedural requirement.
20 An identical question in respect of confirmation of a
decree of nullity under Section 20 of the Act by the Bench of the
High Court visavis
amended provisions of the Act had fallen for
consideration before the Full Bench of the Patna High Court. The
facts, governing the judgment delivered by the Full Bench of Patna
High Court, are identical to the facts of the instant matter. (Mrs.
Larley v. John @ Johny C.A.), reported in AIR 2004 Patna 53. In
the reported matter, the petitioner therein instituted a suit
claiming decree of nullity of marriage with Respondent on the
ground that Respondent was an idiot at the time of marriage. The
District Judge granted decree in favour of the petitioner subject to
confirmation by the High Court under Section 20 of the Act.
During course of hearing of the matter, petitioner presented an
application stating that Section 20 of the Act has been omitted by
the Indian Divorce Act, 2001 and, therefore, there is no
requirement of confirmation of decree passed by the Court below
and the Reference becomes redundant and infructuous. The Court
proceeded to answer the question as to whether the amendment is
made prospective or retrospective in its application. The Full
Bench of the Patna High Court, while dealing with the issue, has
observed in paragraphs no.6 to 9 of the judgment, as below:
6. From reading of the above provisions ( as
they stood ) it is evident that confirmation of
decree is not an empty formality or a routine
affair. The High Court in the facts and
circumstances of the particular case may get
further enquiry made or evidence taken and
thereafter either confirm the decree, or pass
such other order as it deems fit. The section,
thus creates right in favour of the unsuccessful
party to object to confirmation of the decree. It
may be clarified here that though Section 17
deals with decree for dissolution of marriage –
whereas the instant case is one of nullity or
marriage covered by Section 20 of the Act –
Section 20 makes the aforequoted parts of
Section 17 applicable mutatis mutandis. If a
decree of nullity of marriage made by the
District Judge is subject to confirmation by the
High Court; in other words, it does not take
effect unless and until confirmed by the High
Court, it is plain that the confirmation
provision cannot be said to be a mere matter of
procedure. The provision confers substantive
rights on the parties to he proceeding and
therefore, amendment has to be given
prospective effect. There is nothing in the
amendment to suggest that the legislature
intended it to be retrospective. For the sake of
analogy reference may be made to Section 366
of the Criminal Procedure Code which provides
for confirmation of death sentence by the High
Court. Under that Section a sentence of deth
cannot be executed unless it is confirmed by
the High Court and thus when the Court of
Session passes such a sentence the
proceedings are to be submitted to the High
Court for confirmation. Theoretically, thus,
where the accused does not prefer appeal from
the conviction, or ever where he prefers appeal,
he may alternatively argue that the death
sentence was not warranted in the facts and
circumstances of the case.
7. We could not lay our hands on any direct
decision relating to retrospective or prospective
effect of amendment relating to confirmation
provision. However, there are decisions galore
relating to amendment of appeal provisions
under different statutes. Though, it is true,
confirmation is not the same thing as appeal,
nevertheless having regard to the fact that the
High Court can make “such other order” as it
deems fit under Section 17 of the Act, there
cannot be any doubt that the Court may decline
to confirm the decree on one or the other
ground. It is true that in the present case the
defendant did not choose to contest the
proceeding either in the Court below or in this
Court. But this would hardly have any bearing
on the question – the true test being as to
whether in the event of contest by the
respondent, the reference could have become
infructuous by reason of the amendment. The
answer has to be in the negative.
8. Reference may be made to cases on the
point of prospective effect of the appeal
provision. The leading case on the point is
Garikapati Veeraya v. N. Subbiah Choudhary,
AIR 1957 SC 540, where on review of various
authorities the Constitution bench of the Apex
Court, by majority, held that the right to appeal
is not mere matter of procedure but is a
substantive right. The institution of the suit
carries with it the implication that all rights of
appeal then in force are preserved to the parties
thereto till the rest of the career of the suit.
The right of appeal is a vested right and such a
right to enter the superior Court accrues to the
litigant and exists as on and from the date the
lis commences and although it may be actually
exercised when the adverse judgment is
pronounced, such right is to be governed by the
law prevailing at the ate of the institution of the
suit or proceeding and not by the law that
prevails at the date of its decision or at the date
of the filing of the appeal. This vested right of
appeal can be taken away only by a subsequent
enactment, if it so provides expressly or by
necessary intendment, and not otherwise. In
State of Bombay v. M/s. Supreme General
Films Exchange Ltd. AIR 1960 SC 980, the
Supreme Court observed that an impairment of
the right of appeal by putting a new restriction
thereon or imposing a more onerous condition
is not a matter of procedure only; it impairs or
imperils a substantive right and an enactment
which does so is not retrospective unless it says
so expressly or by necessary intendment. In
Jse Da Costa v. Bascora Sadashiva Sinai
Narcornim, AIR 1975 SC 1843, the Supreme
Court observed that the right of appeal being a
substantive right, the institution of suit carries
with it the implication that all successive
appeals available under the law then in force
would be preserved to the parties to the suit
throughout. The Court pointed out that this
rule was subject to two exceptions – (a) when by
a competent enactment such right of appeal is
taken away expressly or impliedly with
retrospective effect and (b) when the Court to
which appeal lay at the commencement of the
suit stands abolished.
9. In view of the clear pronouncement of law
by the Apex Court, any amendment in the
appeal provision has to be held to be
prospective unless otherwise provided –
expressly or by necessary implication. A fortiori
any amendment in the confirmation provision
must also be held to be prospective unless
otherwise provided in the amendment. There is
no such clause in the amendment by which
Section 20 has simply been omitted, that is,
deleted from the Act. It would thus follow that
the deletion of Section 20 by the Indian Divorce
(Amendment) Act, 2001 has no bearing on the
present proceeding. The contention of the
petitioner in the interlocutory application that
there is no requirement of confirmation of the
decree of the Court below and the reference has
become redundant or infructuous, must
therefore be rejected.
21 In yet another matter before the Patna High Court, the
Full Bench considered an identical issue in the case of Deepa Raj
Kumar Singh Vs. Deepak Kumar, reported in AIR 2005 Patna 71.
In the reported matter, the decree was passed by the District Judge
on 28.11.1998 decreeing the suit presented by husband for
dissolution of marriage and the matter was referred to the High
Court for confirmation of decree under Section 17 of the Indian
Divorce Act, 1869. The Full Bench has taken note of the fact that
the provisions of Section 17 of the Act of 1869, mandating
confirmation of decree passed by the District Court, has been
deleted by virtue of Amendment Act of 2001. However, taking note
of the fact that the divorce case was filed in 1993 when Section 17
of the Act of 1869 was in force and that the decree was passed in
1998, the Court proceeded to take up the matter for confirmation.
It is observed, in paragraph 4 of the judgment, thus:
“.... It is well established rule of law that the
provision/statute is prospective unless it is
expressly made retrospective.”
22 The Full Bench has also observed, taking note of
decision in the matter of Mrs.Larley Vs. Mr.John (cited supra),
thus:
“..... It is well settled rule of interpretation that
every statute is prima facie prospective unless
it is expressly or by necessary implication made
to have retrospective effect and has also held
that there is no such clause in the amendment
to show that the legislature had intention to
make the amendment retrospective.”
23 In the matter of Deepika Alizabeth Couto V. Gabriel
Anthony Couto, reported in AIR 1978 Allahabad 27, where
application for reference filed before the High Court under Section
17 of the Divorce Act, as amended in Uttar Pradesh, was found to
be incompetent. The ex parte decree for dissolution of marriage
was also found to have been passed by the District Judge without
jurisdiction and as such, in exercise of supervisory jurisdiction,
the Full Bench directed to quash the decree and remitted the
matter back to the District Judge. In the reported matter, the
decree was passed on December 8, 1976, and the petition was
presented to the High Court under Section 17 of the Act praying
that the decree nisi be confirmed. Before the Allahabad High
Court, no such issue as regards retrospective or prospective
application of the provisions of the Amending Act was canvassed or
considered. The decision rendered by the Full Bench of the
Allahabad High Court, therefore, is of little relevance.
24 In the matter of Thomas K. Varghese Vs. Family
Court, Thiruvananthapuram and another, reported in AIR 2002
Kerala 380, a petition for divorce was filed before the Family Court
at Thiruvananthapuram. It was alleged in the petition that
husband and wife last resided together in Thiruvananthapuram
and, therefore, that Court has jurisdiction to hear the case. Before
the written statement was filed in the original petition, Indian
Divorce Act was amended and Section 3(3) provided that the
District Court, within whose jurisdiction the marriage was
solemnised, was also competent to decide the case. The question
of jurisdiction, as such, was directed to be considered. The Indian
Divorce act was amended with effect from 03.10.2001. The Family
Court held that though it is not proved that the parties last resided
together within Thiruvananthapuram district, by virtue of the
amendment, Family Court has got jurisdiction and that the case
could be continued. While dealing with the issue, the High Court
has observed that the amendments which are affecting procedural
rights of the parties are deemed to be retrospective in nature.
Therefore, the question to be decided in the case whether
amendment to Section 3(3) of the Divorce Act conferring the
jurisdiction to District Court within whose jurisdiction the
marriage was solemnised will validate the petition already filed,
which, on the finding of facts, could not be filed before that Court
but for the amendment. It is observed by the High Court that the
statute relating to matters of procedure operates retrospectively,
unless otherwise provided in the Statute. The question of change
in the forum is a matter of procedure and the right of the parties to
institute a suit is not affected. No substantive right of the
petitioner, in the reported matter, was taken away by the
amendment and change of Forum is only procedural in nature, as
held by the Supreme Court in the matter of New India Insurance
Co. Vs. Shanti Misra, reported in AIR 1976 SC 237.
25 In the instant matter, however, it cannot be said that
the amendment, introduced by the Amendment Act of 2001, is
merely a procedural one, however, the requirement of confirmation
of a decree passed by the District Court is a substantive right. The
Act, prior to its amendment, did not provide for remedy of appeal
and as such, it is only at the stage of consideration of the matter in
Reference, an aggrieved party would have an opportunity to raise
objection to the decree. The confirmation of decree is not an empty
formality or a routine matter. The Section creates a right in favour
of unsuccessful party to raise objection to the confirmation of
decree.
26 A cursory reference can be made to certain judgments.
In the matter of Kanak Vinod Mehta Vs. Vinod Dulerai Mehta,
reported in 1991 Mh.L.J. 1064, wherein, a question was raised as
to whether, by virtue of provisions contained in Family Courts Act,
namely clause (a) of Section 8 of the Family Courts Act, the suits
presented to the High Court shall stand transferred to Family
Court in view of clause (c) of Section 8 of the Family Courts Act.
The Division Bench of this Court, while dealing with the issue, has
expressed an opinion that though the area, within which the High
Court exercises original jurisdiction, is a district Court, the High
Court is not a District Court for exercise of jurisdiction on its
appellate side. In the result, the question raised before the Court
has been answered in the negative.
27 The decision rendered by the Division Bench in Kanak
Mehta’s case, has been overruled by the Full Bench in the matter
of Romila Jaidev Shroff Vs. Jaidev Rajnikanth Shroff, reported
in 2000 (3) Mh.L.J. 468, and it is held by the Full Bench, that the
expression “district court”, as used in Section 8 of the Family
Courts Act, will include High Court exercising Original Civil
Jurisdiction under clause 12 of the Letters Patent and in view of
Section 20 of the Family Courts Act, it is the Family Court which
will have jurisdiction with respect to suits which are covered by the
provisions of the Explanation to Section 7(1) of the Family Courts
Act and not the High Court.
28 A difficulty was encountered in respect of decree nisi
passed by the High Court during the intervening period until
decision in the matter of Romila Jaidev Shroff. While dealing
with the peculiar problems, the Division Bench of this Court in the
matter of Maria Sera Pinto Vs. Milton Dias, reported in 2000 (4)
Mh.L.J. 633, ruled that the law laid down by the Full Bench in
Romila’s case, must be deemed to have been brought into effect
prospectively. It was, therefore, ordered that all the petitions
under Indian Divorce Act, in which, a decree nisi has already been
made prior to the judgment of the Full Bench in Romila’s case (i.e.
05.05.2000), shall continue to be dealt with and disposed of in
accordance with the provisions of section 17 of the Indian Divorce
Act. The Division Bench has issued directions in the aforesaid
matter, taking into consideration peculiar facts and circumstances
and finding that there are hardly 300 matters, which are required
to be dealt with wherein decree nisi has been passed by the High
Court while the view of the Division Bench, taken in the matter of
Kanak Mehta, was holding the field.
29 It would also be advantageous to refer to provisions of
Section 6 of the General Clauses Act, 1897. It is provided under
Section 6:
6 Effect of repeal:Where
this Act, or any
(Central Act) or Regulation made after the
commencement of this Act, repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not(
a) ...... ....... ....... ....... ........ ....... ........ .......
(b) ...... ....... ....... ....... ........ ....... ........ .......
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed : or
any such investigation, legal proceeding or
remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing
Act or Regulation had not been passed.
30 In view of the reasons set out above, we are in
respectful agreement with the view expressed by the Full Bench of
Patna High Court in the matter of Mrs. Larley Vs. John (supra).
On consideration of the provisions, it is evident that the
confirmation of a decree is not an empty formality or routine affair.
The Section creates right in favour of the unsuccessful party to
object for confirmation of a decree. The substantive provision
relating to confirmation of a decree will continue to hold the field
and will continue to operate. The amendment affecting vested
right would operate prospectively and there is no sufficient
indication in the statute to show that the intention of the
Legislature was to affect the existing rights. The amending
provisions brought into existence by virtue of Amending Act of
2001 shall have prospective effect and that the decree passed by
the District Court, prior to enforcement of the amendment, as in
the instant case, needs confirmation in view of Section 17 of the
Act of 1869 (prior to its amendment).
31 Similarly, the appeal provision contained in Section 55
of the Act also have to be construed to have prospective effect. The
day, on which instant appeal was presented by appellant Kamal, it
was incompetent in view of the prohibition contained in proviso to
Section 55. The amendment, whereby proviso to Section 55 has
been deleted will not validate the act of presentation of appeal and
will not vest in the appellant a right to tender an appeal. The right
to the litigant to present an appeal against a decree passed under
Indian Divorce Act by the District Judge, is available only after
enforcement of Amendment Act of 2001.
32 In this view of the matter, the appeal presented by the
appellant, being incompetent, deserves to be dismissed and same
is accordingly dismissed. The Full Bench of this Court was not
justified in directing disposal of Reference by an order dated
19.08.1997 in view of the decision of the Full Bench of this Court
in the matter of Mrs.Pragati Varghese Vs. Cyril George Varghese
(supra)., decided on 6th/7th May, 1997.
33 For the reasons set out above, the order passed by the
Full Bench dated 19.08.1997, deserves to be recalled and same is
accordingly recalled. Reference Case No.1 of 1996 deserves to be
decided in accordance with provisions of the Act of 1869, (in
accordance with provisions of law operative on the date of
presentation of the suit).
34 We have heard arguments advanced by learned
Counsel for respective parties for consideration of the Reference.
(The parties are referred to as per record of Reference No.1/96).
35 The petitionerhusband
presented Regular Civil Suit
No.1 of 1991 claiming decree of dissolution of marriage against his
wife Sow.Kamal and her paramour – Respondent No.2 Padamsing.
It is contended that the marriage was solemnised in accordance
with Christian rites and after marriage the couple resided in Jalna
city. The petitioner alleged act of commission of adultery by his
wife; and Respondent No.2 is impleaded as her paramour in the
petition for divorce. It is alleged that Respondent No.1 was leading
adulterous life. She was found in compromising position with
Respondent No.2 at petitioner’s residence on 09.08.1989. The
petitioner took both – Respondents No.1 and 2 to the Police
Station. At the relevant time, both of them were found dressed in
inner attire. The petitioner presented a complaint against
Respondent No.2 to the Magistrate’s Court for commission of an
offence punishable under Section 497 of I.P.C. and at the
conclusion of the trial, Respondent No.2 has been convicted for the
offence charged against him.
36 It is also contended that Respondents No.1 and 2 were
apprehended by the police at Aurangabad on the allegation that
they were indulging in indecent act at public place. They were
produced before the Magistrate on 26.08.1989 and both of them
pleaded guilty and were convicted on 01.09.1989. The petitioner,
apart from leading oral evidence of himself, has led evidence of his
son, who was 16 years of age and of a neighbour. The son of the
petitioner has supported the case as regards the incidence dated
10.08.1989 in respect of sexual intercourse between Respondents
No.1 & 2. The son of the petitioner, in terms, deposed before the
Court that he found his mother in the company of Respondent
No.2 in the bed room sharing common bed on the relevant day.
The neighbour examined by the petitioner has also supported his
case in respect of taking Respondents No.1 and 2 on the relevant
date to the Police Station and lodging of the complaint by him.
37 The trial Court has appreciated the oral and
documentary evidence placed on record and has recorded a finding
of fact that the allegations levelled against the wife of living in
adultery have been established by the petitioner although
Respondent wife has entered into witness box and denied the
contentions. There is a little scope to draw any other inference
except the one recorded by the trial Court. Although Respondent
wife alleged that petitioner himself was keeping illicit relations with
one Sulochana Poulas, an employee of Municipal Council, she has
not led any evidence to substantiate the allegation. It was
contended by the petitioner that there is no such employee in the
Municipal Council, namely Sulochana Poulas. Respondent No.1,
however, has not substantiated her allegations by leading cogent
evidence. The Respondent No.1 has merely levelled
unsubstantiated allegations against the petitioner as a counter
blast to the case put up by him.
38 There is no reason as to why evidence of son of the
petitioner shall be discarded. The ground raised in the petition,
seeking divorce against Respondent husband,
is covered by Section
10 of the Act of 1869. Section 10 provides that any husband may
present a petition to the District Court or High Court seeking
declaration that his marriage may be dissolved on the ground that
his wife has, since the solemnization thereof, been guilty of
adultery. Section 11 provides that the adulterer be impleaded as
coRespondent.
The Court is also required to be satisfied that
there is an absence of element of collusion in seeking decree of
dissolution. The petitioner has filed the petition seeking divorce
on the ground of adultery provided under Section 10 of the Act and
the adulterer has been impleaded as coRespondent.
The
adulterer has not led any evidence nor has controverted the
contentions raised by the petitioner. The District Court, while
considering the matter, was satisfied as regards absence of
collusion between the parties and we do not find any reason to
record our disagreement. The decree passed by the District Judge,
as such, cannot be said to be illegal. As laid down by the Special
Bench of Mysore High Court in the matter of M. Clarance s/o
Murugesh Vs. M. Raicheal d/o Mari Prakasham and another,
reported in AIR 1964 Mysore 67, wherein it is observed that, it is
equally the duty of the High Court, when the case comes up for
confirmation under S.17 to look into it in the light of the scheme of
the Act and to satisfy itself whether the decree nisi has been
properly granted. We have examined the matter carefully and we
are satisfied that decree nisi has been passed by the trial Court
properly and the same deserves to be made absolute.
39 The objections raised by the Respondentwife
for
confirmation of the decree do not deserve consideration. In the
result, decree of dissolution of marriage, granted by the District
Court on 13.10.1995, is confirmed and the Reference is accordingly
answered.
40 Shri V.J.Dixit, learned Senior Counsel, appointed as
amicus curiae, has rendered able assistance to us for disposal of
instant reference. We place on record our appreciation for his
valuable contribution.
A.M.BADAR N.W.SAMBRE R.M.BORDE
JUDGE JUDGE JUDGE
proposition that statutory provisions creating substantive right or
taking away substantive rights are ordinarily perspective. They are
retrospective only if by express words or by necessary implication
the Legislature has made them retrospective; and the retrospective
operation will be limited only to the extent to which it has been so
made by express words or necessary implication. (See Mahadeolal
Kanodia Vs. The Administrator General of West Bengal,
reported in AIR 1960 SC 936).
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.07 OF 1996
Sou.Kamal Anna Gaikwad Vs Anna Balaji Gaikwad,
CORAM : R.M.BORDE,
N.W.SAMBRE &
A.M.BADAR, JJJ.
Pronounced on : 09th May, 2014.
JUDGMENT (Per R.M.Borde, J.):
Citation; 2014(4) MHLJ 581 Bom FB
1 The instant Reference as well as the First Appeal are
directed to be placed before us in view of the order passed by the
Division Bench of this Court on 2nd September, 2004, for
consideration of issues, as to:
(1) Whether the Full Bench was justified in directing
disposal of Reference by an order dated 19.08.1997 in
view of the Full Bench judgment of this Court in
M.J.Suit No.455 of 1995 (Mrs.Pragati Varghese Vs.
Cyril George Varghese), decided on 6th & 7th May,
1997, reported in (1997) 3 MhLJ 602; and
(2) Whether the amendment directing omission of
provisions contained in Section 17 requiring
confirmation of decree for dissolution passed by the
District Judge, by the High Court i.e. the Court
composing of three Judges of the High Court operates
retrospectively thereby rendering the Reference, in a
pending matter, infructuous.
2 In order to understand the controversy giving rise to
the appeal and Reference, some relevant facts, in brief, need to be
recorded.
One Anna Balaji Gaikwad presented Regular Civil Suit
No.1 of 1991 in the District Court, Jalna, claiming decree of
dissolution of marriage solemnized with Kamal Gaikwad.
Respondent No.2 is impleaded in the proceedings since there are
allegations of keeping illicit relations with Kamal. It is not
disputed that the parties profess Christian religion.
3 After recording evidence before the trial Court, at the
conclusion of the trial, the learned District Judge passed decree on
13.10.1995 directing dissolution of marriage. The decree passed by
the District Judge came to be forwarded to the High Court for
confirmation, as required under Section 17 of the Indian Divorce
Act, 1869. (for short, ‘Act of 1869’).
4 Feeling aggrieved by the decree, wife Kamal preferred
a First Appeal in this Court and same is registered as First Appeal
No.7 of 1996.
5 Reference No.1 of 1996 was placed for consideration
before the Full Bench, as required under the provisions of Section
17 of the Special Marriage Act and the Full Bench directed that the
First Appeal be heard along with the Reference. The Full Bench,
on 19.08.1997, was pleased to pass order disposing of the
Reference, however, the First Appeal remained pending for
disposal. The text of the order, passed by the Full Bench on
19.08.1997, reads thus:
“Both the learned Counsel appearing for the
parties state that the Reference need not be
answered in view of the Full Bench judgment of
this Court in M.J.Suit No.455/1995
(Mrs.Pragati Varghese Vs. Cyril George
Varghese) decided on 6th and 7th May, 1997”.
The Full Bench further directed that the appeal be
placed for final hearing before the Division Bench and same was
accordingly placed before the Court on 02.09.2004 and the
Division Bench passed the order, as recorded in the first
paragraph.
6 In the matter of Mrs.Pragati Varghese Vs. Cyril
George Varghese, reported in (1997) 3 MhLJ 602, decided on
6th/7th May, 1997, various suits were filed by Christian wives for
dissolution of their marriages under Section 10 of the Indian
Divorce Act, 1869. Each of them impugned the vires of the
provisions of Section 10 of the Act which provides for the grounds
on which husband or wife can sue for dissolution of marriage.
7 It was contended by the wives in Pragati Varghese’s
case that provisions contained in the Act of 1869 are archaic and
adversely discriminate wives as against husbands on the ground of
sex and as such, are violative of Article 15 of the Constitution. It is
also contended that the aforesaid provisions adversely
discriminates them visavis
wives governed by other religions. It
is, thus, contended that the provisions are also violative of Article
14 of the Constitution. It was also contended that as a result of
the discriminatory provisions, they are forced to continue to live
with their husbands even though they are subjected to cruelty and
desertion. The wives contend that they are deprived of their right
to life and personal liberty, dignity, as such, the provisions of the
Act contravene Article 21 of the Constitution. The plaintiffs/wives
have also impugned certain ancillary provisions of the Act of 1869,
namely Sections 17 and 20, which provide for requirement of
confirmation of decrees of dissolution of marriage or nullity,
passed by the District Judge, by the High Court, that too normally
by a Bench of not less than three Judges.
8 The Full Bench, while deciding the matter, upheld the
contentions raised by the plaintiffs/wives and directed striking
down provisions of Section 10 of the Act which are found to be
offending Articles, 14, 15 and 21 of the Constitution. The Court
also declared that the procedure contemplated under Sections 16,
17 and 20 of the Act is unreasonable and are arbitrary in nature
and same achieves no useful object or purpose. The procedure
provided tends to perpetuate the agonies of the affected parties. If
such procedure is absent in other enactments, there is no
propriety in application of said procedure to Christian spouses.
The said procedure is held to be liable of striking down by suitable
amendments. In paragraph no.56 of the judgment, the Court has
observed:
“56 In the result, we hold that the indicated
portions of section 10 of the Act are ultra vires
Articles 14, 15 and 21 of the Constitution and
the same are accordingly struck down. We
further find the provisions of sections 16, 17
and 20 of the Act are also arbitrary and
unreasonable. We suggest that the legislature
should intervene and carry out suitable
amendments to ‘the Act’ at the earliest. We
direct that a copy of this order may be
forwarded forthwith to the Ministry of Law and
Justice for such action as they may deem fit to
take.”
9 After the decision of the Full Bench in Pragati
Varghese’s matter, the Parliament introduced a Bill for bringing
amendment in the Act of 1869 and amended certain provisions of
the Act by enacting Indian Divorce Act, 2001 (Act No. 51 of 2001).
The provisions of the Amending Act were enforced since
03.10.2001.
10 In the instant matter, as observed above, a decree for
dissolution of marriage has been passed by the District Judge on
13.10.1995 and thereupon the decree has been referred to this
Court for confirmation in accordance with Section 17 of the Act
whereupon, Reference Case No.1 of 1996 came to be registered.
Feeling aggrieved by the judgment and decree passed by the
District Judge, the wife has filed instant appeal i.e. First Appeal
No.7 of 1996 in this Court. The question that falls for
determination is:
As to whether the provisions of Indian Divorce
Act, 2001 (Act No. 51 of 2001) can be applied to
the instant proceedings retrospectively?
11 It would be appropriate to refer to certain provisions of
the Act of 1869 as applicable prior to passing of Act No.51 of 2001.
Section 3(2) defines “District Judge”. District Judge means Judge
of a principal civil court of original jurisdiction however designated.
Section 3(3) defines “District Court”. District Court means, in the
case of any petition under this Act, the Court of the District Judge
within the local limits of whose ordinary jurisdiction, or of whose
jurisdiction under this Act, the husband and wife reside or last
resided together. Section 3(4) “Court” Court
means the High
Court or the District Court, as the case may be. Section 14
provides for power of the Court to pronounce decree for dissolution
of marriage, which reads thus:
14 Power to Court to pronounce decree for
dissolving marriage:In
case the Court is satisfied on the evidence
that the case of the petitioner has been proved,
and does not find that the petitioner has been
in any manner accessory to, or conniving at,
the going through of the said form of marriage,
or the adultery of the other party to the
marriage, or has condoned the adultery
complained of, or that the petition is presented
or prosecuted in collusion with either of the
respondents, the Court shall pronounce a
decree declaring such marriage to be dissolved
in the manner and subject to all the provisions
and limitations in sections sixteen and
seventeen made and declared;
Provided that the Court shall not be
bound to pronounce such decree if it finds that
the petitioner has, during the marriage, been
guilty of adultery,
or if the petitioner has, in the opinion of
the Court, been guilty of unreasonable delay in
presenting or prosecuting such petition,
or of cruelty towards the other party to
the marriage,
or of having deserted or wilfully separated
himself or herself from the other party before
the adultery complained of, and without
reasonable excuse,
or of such wilful neglect or misconduct of
or towards the other party as has conducted to
the adultery.
Condonation: No adultery shall be
deemed to have been condoned within the
meaning of this Act unless where conjugal
cohabitation has been resumed or continued.
Section 16 relates to decree of dissolution to be nisi,
which reads thus:
16 Decrees for dissolution to be nisi.
Every decree for a dissolution of marriage made
by a High Court not being a confirmation of a
decree of a 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 six months from the pronouncing
thereof, as the High Court, by general or special
order from time to time, directs.
Collusion: During that period any person shall
be at liberty, in such manner as the High Court
by general or special order from time to time
directs, 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.
On cause being so shown, the Court shall
deal with the case by making the decree
absolute, or by reversing the decree nisi, or by
requiring further inquiry, or otherwise as
justice may demand.
The High Court may order the costs of
Counsel and witnesses and otherwise arising
from such cause being shown, to be paid by the
parties or such one or more of them as it thinks
fit, including a wife if she have separate
property.
Whenever a decree nisi has been made,
and the petitioner fails, within a reasonable
time, to move to have such decree made
absolute, the High Court may dismiss the suit.
Section 17 relates to confirmation of decree for
dissolution by District Judge, which reads thus:
17 Confirmation of decree for dissolution
by District Judge:
Every decree for a dissolution of marriage made
by a District Judge shall be subject to
confirmation by the High Court.
Cases for confirmation of a decree ‘for
dissolution of marriage shall be heard (where
the number of the Judges of the High Court is
three or upwards) by a Court composed of three
such Judges, and in case of difference the
opinion of the majority shall prevail, or (where
the number of the Judges of the High Court is
two) by a Court composed of such two Judges,
and in case of difference the opinion of the
Senior Judge shall prevail.
The High Court, if it thinks further
enquiry or additional evidence to be necessary,
may direct such enquiry to be made, or such
evidence to be taken.
The result of such enquiry and the
additional evidence shall be certified to the High
Court by the District Judge, and the High Court
shall thereupon make an order confirming the
decree for dissolution of marriage, or such other
order as to the Court seems fit;
Provided that no decree shall be
confirmed under this section 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.
During the progress of the suit in the
Court of the District Judge, any persons
suspecting that any parties to the suit are or
have been acting in collusion for the purpose of
obtaining a divorce, shall be at liberty, in such
manner as the High Court by general or special
order from time to time directs, to apply to the
High Court to remove the suit under section
eight, and the High Court shall thereupon, if it
thinks fit, remove such suit and try and
determine the same as a Court of original
jurisdiction, and the provisions contained in
section sixteen shall apply to every suit so
removed; or it may direct the District Judge to
take such steps in respect of the alleged
collusion as may be necessary to enable him to
make a decree in accordance with the justice of
the case.
Section 20 provides for confirmation of District
Judge’s decree, which reads thus:
20 Confirmation of District Judge’s
decree:
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
seventeen, clauses one, two, three and four,
shall mutatis mutandis apply to such decrees.
Section 55 provides for enforcement of, and
appeal from, orders and decrees, which reads
thus:
55 Enforcement of, and appeal from,
orders and decrees:
All decrees and orders made by the Court in
any suit or proceeding under this Act shall be
enforced and may be appealed from, in the like
manner as the decrees and orders of the Court
made in the exercise of its original civil
jurisdiction are enforced and may be appealed
from, under the laws, rules and orders for the
time being in force:
Provided that there shall be no appeal
from a decree of a District Judge for dissolution
of marriage or if nullity of marriage; nor from
the order of the High Court confirming or
refusing to confirm such decree:
No appeal as to costs.
No appeal as to costs:Provided
also
that there shall be no appeal on the subject of
costs only.
12 The unamended provisions of Section 14 of the Act of
1869 relates to power of the Court to pronounce the decree for
dissolving the marriage, which is subject to all the provisions and
limitations in Sections 16 and 17 made and declared. Section 16 of
the Act provides that the every decree for dissolution of marriage
made by the District Court being a decree nisi, not to be made
absolute till expiration of period of six months from the date of
pronouncement of the decree. Whereas, Section 17 provides for
confirmation of the decree of dissolution made by the District
Judge, subject to confirmation by the High Court. Cases for
confirmation are required to be heard by a Court composed of 3
Judges and in case of difference of opinion, the majority shall
prevail. The decrees in respect of nullity of marriage, passed by
the District Judge, are subject to confirmation by the High Court,
in the same manner, as provided in Section 17.
13 The Act of 1869, prior to its amendment, did not
provide for remedy of appeal for challenging the decree passed by
the District Judge and proviso to Section 55 of the Act specifically
provided that there shall be no appeal from the decree of the
District Judge for dissolution of marriage or nullity of the
marriage. Therefore, as on the date of presentation of instant
appeal, the Act of 1869 did not provide for such remedy.
14 The Amendment Act of 2001 (Act No.51 of 2001)
introduced major changes in the Act of 1869. Apart from
introducing additional grounds for dissolution of marriage,
consistent with the provisions of other enactments, Section 10A
provides for dissolution of marriage by mutual consent. The
provision requiring confirmation of decree for dissolution of
marriage passed by the District Judge, by the Bench of three
Judges of the High Court, has been deleted and Section 17 has
been amended empowering the High Court to remove certain suits.
In the same fashion, Section 20 requiring confirmation of a decree
of nullity, passed by the District Judge, by the Bench of Three
Judges of the High Court, has also been deleted. An appellate
remedy has been provided in respect of decrees passed by the
District Judge by removing the embargo contained in the first
proviso to Section 55.
15 There can be no dual opinion in respect of the
proposition that statutory provisions creating substantive right or
taking away substantive rights are ordinarily prospective. They are
retrospective only if by express words or by necessary implication
the Legislature has made them retrospective; and the retrospective
operation will be limited only to the extent to which it has been so
made by express words or necessary implication. (See Mahadeolal
Kanodia Vs. The Administrator General of West Bengal,
reported in AIR 1960 SC 936).
16 In the matter of Jose Da Costa and another Vs.
Bascora Sadashiva Sinai Narcornin & others, reported in AIR
1975 SC 1843, the facts giving rise to the dispute are thus:
The plaintiff instituted a suit before the Court of Judge
of Quepem Comarca in accordance with the Portuguese Law, then
in force in the territory of Goa, for ejectment of defendants from
the suit property. The suit was decreed, against which, the
defendant preferred an appeal, which came to be dismissed by the
Additional Judicial Commissioner. As such, an appeal was carried
to the Supreme Court. The argument before the Court was that
notwithstanding the fact that a plea of acquisition of title by
prescription was specifically raised in the pleadings, the grounds of
appeal, so also put in issue, the Court below has failed to give a
finding on the same. In answer, it was contended that the
appellant is precluded from agitating the plea of prescription,
because he had not filed a review application (reclamacao) in the
appropriate Court to get that nullity i.e. omission to decide this
plea, rectified within limitation in accordance with Articles 668,
669 and 717 of the Protuguese Civil Code. It was contended that
since the suit was filed before the extension of the Code of Civil
Procedure, 1908 to Goa, Daman and Diu, the Portuguese Civil
Code will continue to govern the rights of the parties in the matter
of appeal. The question, that arose for consideration, was as to
whether it was imperative for the defendants to file a “reclamacao”
under Article 669 in regard to Issue No.3 in the Court of first
instance? And the second question that arose was, when and to
what extent did the provisions of Protuguese Civil Court cease to
be applicable to the case?
17 In order to consider the question raised before the
Supreme Court, it was necessary to deal with the question as to
whether presentation of reclamacao, as prescribed under Article
669 of the Protuguese Law is a part of procedural requirement or is
a substantive right. While dealing with the issue, the Supreme
Court, in paragraphs no.28 to 31, has observed thus:
“28 Before ascertaining the effect of the
enactments aforesaid passed by the Central
Legislature on pending suits or appeals, it
would be appropriate to bear in mind two well
established principles. The first is that “while
provisions of a statute dealing merely with
matters of procedure may properly, unless that
construction be textually inadmissible, have
retrospective effect attributed to them,
provisions which touch a right in existence at
the passing of the statute are not to be applied
retrospectively in the absence of express
enactment or necessary intendment” (see Delhi
Cloth and General Mills Co. Ltd. v. Income tax
Commr.), 54 Ind App 421 = (AIR 1927 PC 242).
The second is that a right of appeal being a
substantive right the institution of a suit
carried with it the implication that all
successive appeals available under the law then
in force would be preserved to the parties to the
suit throughout the rest of the career of the
suit. There are two exceptions to the
application of this rule, viz. (1) when by
competent enactment such right of appeal is
taken away expressly or impliedly with
retrospective effect and (2) when the court to
which appeal lay at the commencement of the
suit stands abolished (see Garikapatti Veerava
v. N. Subbiah Choudhry 1957, SCR 488 = (AIR
1957 SC 540) and Colonial Sugar Refining
Co.Ltd. v. Irving, 1905 AC 369).
29 In the light of the above principles, these
points arise for consideration: Are the
provisions of the Portuguese Civil Code relating
to Reclamacao merely matters of procedure? Or,
do they create or affect vested rights and
remedies? That is to say, does a Reclamacao
have all the attributes of a substantive right of
appeal existing at the commencement of the
suit? Did the superior Court of Appeal at
Lisbon stand abolished as an appellate forum
in relation to Goa, Daman and Diu from 20121962?
If so, what is its effect on the right of
appeal given by Articles 677 and 722 of the
Portuguese Civil Code and their application to
the present case? Was the Portuguese
Supreme Court at Lisbon succeeded by the
Supreme Court of India, for the purpose of the
aforesaid Articles 677 and 722 of the
Portuguese Code? If so, did this position hold
good after 1561966?
Does the Central Act 30
of 1965 read with Notification No. S.O. 1597,
issued thereunder, expressly or impliedly, make
inapplicable the provisions of the Portuguese
Civil Code in the matter of Reclamacao in
respect of a decision or judgment rendered by
the Court of Judicial Commissioner after 1561966?
That is to say, have the rights, remedies
or obligations arising out of the Portuguese Law
relating to Reclamacao saved by any of the
clauses (a), (b) or (c) of the first Proviso to
Section 4(1) of Act 30 of 1965?
30 It may be noted that while a right of
appeal from court to court is a substantive
right which under the then law, exists on and
from the date of the institution of the suit, the
same cannot be said with regard to
Reclamacao. The provisions of the Portuguese
Civil Code relating to Reclamacao lay down only
special rules of procedure which have to be
gone through before a litigant is entitled to raise
in appeal a material point left undecided by the
lower court. The object of requiring a party
aggrieved by a ‘nullity’ is to save the time of the
appellate Court by precluding a party to
reagitate in appeal pleas that had been left
undecided by the lower court. It also minimises
the necessity of remands to the lower court for
trial of particular issues and thus shortens
litigation. The requirement of obligation to file a
Reclamacao is not an obligation to esse or /
and from the institution of the suit. Nor is the
procedural right to file Reclamacao – if at all it
can be called a ‘right’ a
vested right existing
from the date of the suit. The filing of a
Reclamacao is dependent upon the happening
of an uncertain event. It arises only when a
judgment suffering from a ‘nullity’ is passed.
Such a contingency may or may not arise. On
the other hand, in the case of a suit, it can be
predicated that it would normally result in a
decree entitling the aggrieved party to have the
suit reheard and redecided in a higher forum by
filing an appeal provided of course such a right
is available under the law prevailing at the
institution of the suit.
31 In the present case, the judgment of the
Additional Judicial Commissioner in which the
alleged “nullity” or “omission to adjudicate” on
the point of prescription occurs was delivered
on 2011968,
that is, long after the extension
of Articles 132, 133 and 134 of the
Constitution. Rules framed under Article 145 of
the Constitution and Sections 109 and 110 of
the Code of Civil Procedure to Goa, Daman and
Diu. The procedural provisions of the
Portuguese Code relating to Reclamacao, and
appeal from a decision on Reclamacao, from the
High Court in Goa, Daman and Diu stood
repealed and superseded by the extended
Indian laws when the judgment now under
appeal was rendered.”
18 It was concluded by the Supreme Court that the
Portuguese Law relating to reclamacao stood repealed and no
substantive right or obligation had been acquired or incurred
under the repealed law, within the meaning of the first proviso to
S.4(1) of Act 30 of 1965, the appellants cannot be debarred from
canvassing in this appeal under Article 136, the plea of
prescription notwithstanding the fact that they did not file any
Reclamacao in the Court of the Judicial Commissioner and as
such, the preliminary objection raised by the plaintiff came to be
rejected.
19 In juxtaposition, in the instant matter, the requirement
provided under Section 17 relating to confirmation of a decree
passed by the District Judge, of dissolution of marriage, cannot be
constructed as a procedural requirement. On the date of
presentation of instant appeal, there was no provision providing for
appellate remedy. The appeal presented by the wife challenging the
decree, on the date of presentation, was not a proper appeal since
Section 17 of the Act provides for confirmation of a decree by the
Full Bench of the High Court. The party to the Reference i.e. wife
in the instant case, can challenge validity of the decree at the time
of consideration of Reference and confirmation by the Full Bench
of the High Court. At that stage only, aggrieved party gets right to
challenge the decree. From reading the provisions, it is evident
that the confirmation of a decree is not an empty formality, as the
provision confers a substantive right on the party to the
proceedings to make grievance in respect of decree passed by the
District Judge to make a prayer to the Bench of the High Court not
to confirm the decree. In our opinion, the provisions contained in
Section 17 (prior to its amendment), shall have to be construed as
conferring substantive right on the party and the reference
procedure, provided under the said provision, cannot be termed as
a procedural requirement.
20 An identical question in respect of confirmation of a
decree of nullity under Section 20 of the Act by the Bench of the
High Court visavis
amended provisions of the Act had fallen for
consideration before the Full Bench of the Patna High Court. The
facts, governing the judgment delivered by the Full Bench of Patna
High Court, are identical to the facts of the instant matter. (Mrs.
Larley v. John @ Johny C.A.), reported in AIR 2004 Patna 53. In
the reported matter, the petitioner therein instituted a suit
claiming decree of nullity of marriage with Respondent on the
ground that Respondent was an idiot at the time of marriage. The
District Judge granted decree in favour of the petitioner subject to
confirmation by the High Court under Section 20 of the Act.
During course of hearing of the matter, petitioner presented an
application stating that Section 20 of the Act has been omitted by
the Indian Divorce Act, 2001 and, therefore, there is no
requirement of confirmation of decree passed by the Court below
and the Reference becomes redundant and infructuous. The Court
proceeded to answer the question as to whether the amendment is
made prospective or retrospective in its application. The Full
Bench of the Patna High Court, while dealing with the issue, has
observed in paragraphs no.6 to 9 of the judgment, as below:
6. From reading of the above provisions ( as
they stood ) it is evident that confirmation of
decree is not an empty formality or a routine
affair. The High Court in the facts and
circumstances of the particular case may get
further enquiry made or evidence taken and
thereafter either confirm the decree, or pass
such other order as it deems fit. The section,
thus creates right in favour of the unsuccessful
party to object to confirmation of the decree. It
may be clarified here that though Section 17
deals with decree for dissolution of marriage –
whereas the instant case is one of nullity or
marriage covered by Section 20 of the Act –
Section 20 makes the aforequoted parts of
Section 17 applicable mutatis mutandis. If a
decree of nullity of marriage made by the
District Judge is subject to confirmation by the
High Court; in other words, it does not take
effect unless and until confirmed by the High
Court, it is plain that the confirmation
provision cannot be said to be a mere matter of
procedure. The provision confers substantive
rights on the parties to he proceeding and
therefore, amendment has to be given
prospective effect. There is nothing in the
amendment to suggest that the legislature
intended it to be retrospective. For the sake of
analogy reference may be made to Section 366
of the Criminal Procedure Code which provides
for confirmation of death sentence by the High
Court. Under that Section a sentence of deth
cannot be executed unless it is confirmed by
the High Court and thus when the Court of
Session passes such a sentence the
proceedings are to be submitted to the High
Court for confirmation. Theoretically, thus,
where the accused does not prefer appeal from
the conviction, or ever where he prefers appeal,
he may alternatively argue that the death
sentence was not warranted in the facts and
circumstances of the case.
7. We could not lay our hands on any direct
decision relating to retrospective or prospective
effect of amendment relating to confirmation
provision. However, there are decisions galore
relating to amendment of appeal provisions
under different statutes. Though, it is true,
confirmation is not the same thing as appeal,
nevertheless having regard to the fact that the
High Court can make “such other order” as it
deems fit under Section 17 of the Act, there
cannot be any doubt that the Court may decline
to confirm the decree on one or the other
ground. It is true that in the present case the
defendant did not choose to contest the
proceeding either in the Court below or in this
Court. But this would hardly have any bearing
on the question – the true test being as to
whether in the event of contest by the
respondent, the reference could have become
infructuous by reason of the amendment. The
answer has to be in the negative.
8. Reference may be made to cases on the
point of prospective effect of the appeal
provision. The leading case on the point is
Garikapati Veeraya v. N. Subbiah Choudhary,
AIR 1957 SC 540, where on review of various
authorities the Constitution bench of the Apex
Court, by majority, held that the right to appeal
is not mere matter of procedure but is a
substantive right. The institution of the suit
carries with it the implication that all rights of
appeal then in force are preserved to the parties
thereto till the rest of the career of the suit.
The right of appeal is a vested right and such a
right to enter the superior Court accrues to the
litigant and exists as on and from the date the
lis commences and although it may be actually
exercised when the adverse judgment is
pronounced, such right is to be governed by the
law prevailing at the ate of the institution of the
suit or proceeding and not by the law that
prevails at the date of its decision or at the date
of the filing of the appeal. This vested right of
appeal can be taken away only by a subsequent
enactment, if it so provides expressly or by
necessary intendment, and not otherwise. In
State of Bombay v. M/s. Supreme General
Films Exchange Ltd. AIR 1960 SC 980, the
Supreme Court observed that an impairment of
the right of appeal by putting a new restriction
thereon or imposing a more onerous condition
is not a matter of procedure only; it impairs or
imperils a substantive right and an enactment
which does so is not retrospective unless it says
so expressly or by necessary intendment. In
Jse Da Costa v. Bascora Sadashiva Sinai
Narcornim, AIR 1975 SC 1843, the Supreme
Court observed that the right of appeal being a
substantive right, the institution of suit carries
with it the implication that all successive
appeals available under the law then in force
would be preserved to the parties to the suit
throughout. The Court pointed out that this
rule was subject to two exceptions – (a) when by
a competent enactment such right of appeal is
taken away expressly or impliedly with
retrospective effect and (b) when the Court to
which appeal lay at the commencement of the
suit stands abolished.
9. In view of the clear pronouncement of law
by the Apex Court, any amendment in the
appeal provision has to be held to be
prospective unless otherwise provided –
expressly or by necessary implication. A fortiori
any amendment in the confirmation provision
must also be held to be prospective unless
otherwise provided in the amendment. There is
no such clause in the amendment by which
Section 20 has simply been omitted, that is,
deleted from the Act. It would thus follow that
the deletion of Section 20 by the Indian Divorce
(Amendment) Act, 2001 has no bearing on the
present proceeding. The contention of the
petitioner in the interlocutory application that
there is no requirement of confirmation of the
decree of the Court below and the reference has
become redundant or infructuous, must
therefore be rejected.
21 In yet another matter before the Patna High Court, the
Full Bench considered an identical issue in the case of Deepa Raj
Kumar Singh Vs. Deepak Kumar, reported in AIR 2005 Patna 71.
In the reported matter, the decree was passed by the District Judge
on 28.11.1998 decreeing the suit presented by husband for
dissolution of marriage and the matter was referred to the High
Court for confirmation of decree under Section 17 of the Indian
Divorce Act, 1869. The Full Bench has taken note of the fact that
the provisions of Section 17 of the Act of 1869, mandating
confirmation of decree passed by the District Court, has been
deleted by virtue of Amendment Act of 2001. However, taking note
of the fact that the divorce case was filed in 1993 when Section 17
of the Act of 1869 was in force and that the decree was passed in
1998, the Court proceeded to take up the matter for confirmation.
It is observed, in paragraph 4 of the judgment, thus:
“.... It is well established rule of law that the
provision/statute is prospective unless it is
expressly made retrospective.”
22 The Full Bench has also observed, taking note of
decision in the matter of Mrs.Larley Vs. Mr.John (cited supra),
thus:
“..... It is well settled rule of interpretation that
every statute is prima facie prospective unless
it is expressly or by necessary implication made
to have retrospective effect and has also held
that there is no such clause in the amendment
to show that the legislature had intention to
make the amendment retrospective.”
23 In the matter of Deepika Alizabeth Couto V. Gabriel
Anthony Couto, reported in AIR 1978 Allahabad 27, where
application for reference filed before the High Court under Section
17 of the Divorce Act, as amended in Uttar Pradesh, was found to
be incompetent. The ex parte decree for dissolution of marriage
was also found to have been passed by the District Judge without
jurisdiction and as such, in exercise of supervisory jurisdiction,
the Full Bench directed to quash the decree and remitted the
matter back to the District Judge. In the reported matter, the
decree was passed on December 8, 1976, and the petition was
presented to the High Court under Section 17 of the Act praying
that the decree nisi be confirmed. Before the Allahabad High
Court, no such issue as regards retrospective or prospective
application of the provisions of the Amending Act was canvassed or
considered. The decision rendered by the Full Bench of the
Allahabad High Court, therefore, is of little relevance.
24 In the matter of Thomas K. Varghese Vs. Family
Court, Thiruvananthapuram and another, reported in AIR 2002
Kerala 380, a petition for divorce was filed before the Family Court
at Thiruvananthapuram. It was alleged in the petition that
husband and wife last resided together in Thiruvananthapuram
and, therefore, that Court has jurisdiction to hear the case. Before
the written statement was filed in the original petition, Indian
Divorce Act was amended and Section 3(3) provided that the
District Court, within whose jurisdiction the marriage was
solemnised, was also competent to decide the case. The question
of jurisdiction, as such, was directed to be considered. The Indian
Divorce act was amended with effect from 03.10.2001. The Family
Court held that though it is not proved that the parties last resided
together within Thiruvananthapuram district, by virtue of the
amendment, Family Court has got jurisdiction and that the case
could be continued. While dealing with the issue, the High Court
has observed that the amendments which are affecting procedural
rights of the parties are deemed to be retrospective in nature.
Therefore, the question to be decided in the case whether
amendment to Section 3(3) of the Divorce Act conferring the
jurisdiction to District Court within whose jurisdiction the
marriage was solemnised will validate the petition already filed,
which, on the finding of facts, could not be filed before that Court
but for the amendment. It is observed by the High Court that the
statute relating to matters of procedure operates retrospectively,
unless otherwise provided in the Statute. The question of change
in the forum is a matter of procedure and the right of the parties to
institute a suit is not affected. No substantive right of the
petitioner, in the reported matter, was taken away by the
amendment and change of Forum is only procedural in nature, as
held by the Supreme Court in the matter of New India Insurance
Co. Vs. Shanti Misra, reported in AIR 1976 SC 237.
25 In the instant matter, however, it cannot be said that
the amendment, introduced by the Amendment Act of 2001, is
merely a procedural one, however, the requirement of confirmation
of a decree passed by the District Court is a substantive right. The
Act, prior to its amendment, did not provide for remedy of appeal
and as such, it is only at the stage of consideration of the matter in
Reference, an aggrieved party would have an opportunity to raise
objection to the decree. The confirmation of decree is not an empty
formality or a routine matter. The Section creates a right in favour
of unsuccessful party to raise objection to the confirmation of
decree.
26 A cursory reference can be made to certain judgments.
In the matter of Kanak Vinod Mehta Vs. Vinod Dulerai Mehta,
reported in 1991 Mh.L.J. 1064, wherein, a question was raised as
to whether, by virtue of provisions contained in Family Courts Act,
namely clause (a) of Section 8 of the Family Courts Act, the suits
presented to the High Court shall stand transferred to Family
Court in view of clause (c) of Section 8 of the Family Courts Act.
The Division Bench of this Court, while dealing with the issue, has
expressed an opinion that though the area, within which the High
Court exercises original jurisdiction, is a district Court, the High
Court is not a District Court for exercise of jurisdiction on its
appellate side. In the result, the question raised before the Court
has been answered in the negative.
27 The decision rendered by the Division Bench in Kanak
Mehta’s case, has been overruled by the Full Bench in the matter
of Romila Jaidev Shroff Vs. Jaidev Rajnikanth Shroff, reported
in 2000 (3) Mh.L.J. 468, and it is held by the Full Bench, that the
expression “district court”, as used in Section 8 of the Family
Courts Act, will include High Court exercising Original Civil
Jurisdiction under clause 12 of the Letters Patent and in view of
Section 20 of the Family Courts Act, it is the Family Court which
will have jurisdiction with respect to suits which are covered by the
provisions of the Explanation to Section 7(1) of the Family Courts
Act and not the High Court.
28 A difficulty was encountered in respect of decree nisi
passed by the High Court during the intervening period until
decision in the matter of Romila Jaidev Shroff. While dealing
with the peculiar problems, the Division Bench of this Court in the
matter of Maria Sera Pinto Vs. Milton Dias, reported in 2000 (4)
Mh.L.J. 633, ruled that the law laid down by the Full Bench in
Romila’s case, must be deemed to have been brought into effect
prospectively. It was, therefore, ordered that all the petitions
under Indian Divorce Act, in which, a decree nisi has already been
made prior to the judgment of the Full Bench in Romila’s case (i.e.
05.05.2000), shall continue to be dealt with and disposed of in
accordance with the provisions of section 17 of the Indian Divorce
Act. The Division Bench has issued directions in the aforesaid
matter, taking into consideration peculiar facts and circumstances
and finding that there are hardly 300 matters, which are required
to be dealt with wherein decree nisi has been passed by the High
Court while the view of the Division Bench, taken in the matter of
Kanak Mehta, was holding the field.
29 It would also be advantageous to refer to provisions of
Section 6 of the General Clauses Act, 1897. It is provided under
Section 6:
6 Effect of repeal:Where
this Act, or any
(Central Act) or Regulation made after the
commencement of this Act, repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not(
a) ...... ....... ....... ....... ........ ....... ........ .......
(b) ...... ....... ....... ....... ........ ....... ........ .......
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed : or
any such investigation, legal proceeding or
remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing
Act or Regulation had not been passed.
30 In view of the reasons set out above, we are in
respectful agreement with the view expressed by the Full Bench of
Patna High Court in the matter of Mrs. Larley Vs. John (supra).
On consideration of the provisions, it is evident that the
confirmation of a decree is not an empty formality or routine affair.
The Section creates right in favour of the unsuccessful party to
object for confirmation of a decree. The substantive provision
relating to confirmation of a decree will continue to hold the field
and will continue to operate. The amendment affecting vested
right would operate prospectively and there is no sufficient
indication in the statute to show that the intention of the
Legislature was to affect the existing rights. The amending
provisions brought into existence by virtue of Amending Act of
2001 shall have prospective effect and that the decree passed by
the District Court, prior to enforcement of the amendment, as in
the instant case, needs confirmation in view of Section 17 of the
Act of 1869 (prior to its amendment).
31 Similarly, the appeal provision contained in Section 55
of the Act also have to be construed to have prospective effect. The
day, on which instant appeal was presented by appellant Kamal, it
was incompetent in view of the prohibition contained in proviso to
Section 55. The amendment, whereby proviso to Section 55 has
been deleted will not validate the act of presentation of appeal and
will not vest in the appellant a right to tender an appeal. The right
to the litigant to present an appeal against a decree passed under
Indian Divorce Act by the District Judge, is available only after
enforcement of Amendment Act of 2001.
32 In this view of the matter, the appeal presented by the
appellant, being incompetent, deserves to be dismissed and same
is accordingly dismissed. The Full Bench of this Court was not
justified in directing disposal of Reference by an order dated
19.08.1997 in view of the decision of the Full Bench of this Court
in the matter of Mrs.Pragati Varghese Vs. Cyril George Varghese
(supra)., decided on 6th/7th May, 1997.
33 For the reasons set out above, the order passed by the
Full Bench dated 19.08.1997, deserves to be recalled and same is
accordingly recalled. Reference Case No.1 of 1996 deserves to be
decided in accordance with provisions of the Act of 1869, (in
accordance with provisions of law operative on the date of
presentation of the suit).
34 We have heard arguments advanced by learned
Counsel for respective parties for consideration of the Reference.
(The parties are referred to as per record of Reference No.1/96).
35 The petitionerhusband
presented Regular Civil Suit
No.1 of 1991 claiming decree of dissolution of marriage against his
wife Sow.Kamal and her paramour – Respondent No.2 Padamsing.
It is contended that the marriage was solemnised in accordance
with Christian rites and after marriage the couple resided in Jalna
city. The petitioner alleged act of commission of adultery by his
wife; and Respondent No.2 is impleaded as her paramour in the
petition for divorce. It is alleged that Respondent No.1 was leading
adulterous life. She was found in compromising position with
Respondent No.2 at petitioner’s residence on 09.08.1989. The
petitioner took both – Respondents No.1 and 2 to the Police
Station. At the relevant time, both of them were found dressed in
inner attire. The petitioner presented a complaint against
Respondent No.2 to the Magistrate’s Court for commission of an
offence punishable under Section 497 of I.P.C. and at the
conclusion of the trial, Respondent No.2 has been convicted for the
offence charged against him.
36 It is also contended that Respondents No.1 and 2 were
apprehended by the police at Aurangabad on the allegation that
they were indulging in indecent act at public place. They were
produced before the Magistrate on 26.08.1989 and both of them
pleaded guilty and were convicted on 01.09.1989. The petitioner,
apart from leading oral evidence of himself, has led evidence of his
son, who was 16 years of age and of a neighbour. The son of the
petitioner has supported the case as regards the incidence dated
10.08.1989 in respect of sexual intercourse between Respondents
No.1 & 2. The son of the petitioner, in terms, deposed before the
Court that he found his mother in the company of Respondent
No.2 in the bed room sharing common bed on the relevant day.
The neighbour examined by the petitioner has also supported his
case in respect of taking Respondents No.1 and 2 on the relevant
date to the Police Station and lodging of the complaint by him.
37 The trial Court has appreciated the oral and
documentary evidence placed on record and has recorded a finding
of fact that the allegations levelled against the wife of living in
adultery have been established by the petitioner although
Respondent wife has entered into witness box and denied the
contentions. There is a little scope to draw any other inference
except the one recorded by the trial Court. Although Respondent
wife alleged that petitioner himself was keeping illicit relations with
one Sulochana Poulas, an employee of Municipal Council, she has
not led any evidence to substantiate the allegation. It was
contended by the petitioner that there is no such employee in the
Municipal Council, namely Sulochana Poulas. Respondent No.1,
however, has not substantiated her allegations by leading cogent
evidence. The Respondent No.1 has merely levelled
unsubstantiated allegations against the petitioner as a counter
blast to the case put up by him.
38 There is no reason as to why evidence of son of the
petitioner shall be discarded. The ground raised in the petition,
seeking divorce against Respondent husband,
is covered by Section
10 of the Act of 1869. Section 10 provides that any husband may
present a petition to the District Court or High Court seeking
declaration that his marriage may be dissolved on the ground that
his wife has, since the solemnization thereof, been guilty of
adultery. Section 11 provides that the adulterer be impleaded as
coRespondent.
The Court is also required to be satisfied that
there is an absence of element of collusion in seeking decree of
dissolution. The petitioner has filed the petition seeking divorce
on the ground of adultery provided under Section 10 of the Act and
the adulterer has been impleaded as coRespondent.
The
adulterer has not led any evidence nor has controverted the
contentions raised by the petitioner. The District Court, while
considering the matter, was satisfied as regards absence of
collusion between the parties and we do not find any reason to
record our disagreement. The decree passed by the District Judge,
as such, cannot be said to be illegal. As laid down by the Special
Bench of Mysore High Court in the matter of M. Clarance s/o
Murugesh Vs. M. Raicheal d/o Mari Prakasham and another,
reported in AIR 1964 Mysore 67, wherein it is observed that, it is
equally the duty of the High Court, when the case comes up for
confirmation under S.17 to look into it in the light of the scheme of
the Act and to satisfy itself whether the decree nisi has been
properly granted. We have examined the matter carefully and we
are satisfied that decree nisi has been passed by the trial Court
properly and the same deserves to be made absolute.
39 The objections raised by the Respondentwife
for
confirmation of the decree do not deserve consideration. In the
result, decree of dissolution of marriage, granted by the District
Court on 13.10.1995, is confirmed and the Reference is accordingly
answered.
40 Shri V.J.Dixit, learned Senior Counsel, appointed as
amicus curiae, has rendered able assistance to us for disposal of
instant reference. We place on record our appreciation for his
valuable contribution.
A.M.BADAR N.W.SAMBRE R.M.BORDE
JUDGE JUDGE JUDGE
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