Amita Biswas vs Alwin Atindra Biswas

Ray, J.—There are two applications on behalf of Amita Biswas for grant of certificate for appeal to the Supreme Court.

There are also two applications on behalf of Balraj Man chanda for grant of certificate for appeal to the Supreme Court.

These four applications had been pending and were Recently assigned by the Chief Justice to this Bench for hearing.

Of the aforesaid four applications two applications are for certificate for leave to appeal against the judgment, decree and order dated April 30, 1960, in Divorce Suit No. 35 of 1959, in the Court of the District Judge of 24-Parganas, Alipore, confirmed by the Bench Decision of this Court on April 20, 1961.

The other two applications for leave to appeal are against the order of the appellate Court dated June 5, 1961, rejecting the applications under Order 9, Rule 13 of the CPC to set aside the decree of the appellate Court dated April 20, 1961.

It is necessary to refer to certain facts to appreciate the grounds for leave to appeal to the Supreme Court.

Alwin Atindra Biswas instituted Divorce Suit No. 35 of 1959 in the Court of the 5th Additional District Judge, 24-Parganas, against the Respondent Mrs. Amita Biswas and the co-Respondent Balraj Manchanda for dissolution of the marriage. By judgment dated April 30, 1960, the Additional District Judge directed that the marriage between the parties be dissolved subject to confirmation by this Court. Thereafter the reference was made to this Court u/s 17 of the Indian Divorce Act. Notices of the reference were directed to be served by the Registrar of this Court. In pursuance of this aforesaid order three notices were issued: one, upon the Petitioner Atindra Nath Biswas; another, upon the Respondent Amita Biswas; and the third one, upon the co-Respondent Balraj Manchanda. The addresses at which the registered notices were sent were addresses given by the parties in the decree for the purpose of service of notices. All the notices bore the postal stamp of July 30, 1960. The notice upon the Petitioner was accepted by him, and he actually appeared through an Advocate at the hearing. The notices upon the Respondent Amita Biswas and the co-Respondent Balraj Manchanda were returned by the serving peon with the remark ''left''. Thereafter the Registrar directed substituted service of the notices upon the Respondent and the co-Respondent and it appeared from the process server''s report that one copy of the notice in each case was hung in front of the door of ''the respective addresses as given in the decree of the lower Court and the other copy at the District Court premises.

The reference was heard by the appellate Court consisting of Lahiri, C.J., Bachawat and Sen, JJ. on April 20, 1961. The appellate Court confirmed the decree passed by the District Court.

On May 18, 1961, the Respondent Amita Biswas and the coRespondent Balraj Manchanda filed two separate applications for setting aside the ex parte decree passed by the appellate Court on April 20, 1961. The appellate Court found that there was no averment that Amita Biswas was residing at premises No. 218, Lower Circular Road on the date on which the peon made the endorsement, namely August 1, 1960, and further that the petition was not affirmed by Amita Biswas but by one of her friends. The appellate Court was not prepared to attach any importance to the statements made in the petition that the endorsement of the postal peon was false.

As to Balraj Manchanda the Appellant Court said that his case was that he had changed the original address during the pendency of the proceedings in the trial Court, but he did not take care to communicate change of address either to the Court below or to this Court and, therefore, the Registrar was right in directing registered notice to issue at the address as recorded in the decree nisi.

The appellate Court held that neither the Respondent nor the co-Respondent could claim as a matter of right that notices of the proceeding u/s 17 of the Indian Divorce Act should have been served upon them. First, it was held that Section 17 of the Indian Divorce Act does not lay down any procedure to be followed by this Court for confirming a decree nisi made by the District Court. Secondly, Rule 16 of chap. II of the Appellate Side Rules of this Court merely states that the time within which a decree of a District Court may not u/s 17 of the Indian Divorce Act be confirmed shall be six months from the pronouncement thereof and, therefore, the rule does not require any notice to be served upon the parties in a reference u/s 17 of the Indian Divorce Act. Thirdly, it was said that the practice of this Court of serving notices u/s 17 of the Indian Divorce Act, which originated in Divorce Suit No. 16 of 1950 in the Court of the Third Extra-Additional District Judge, 24-Parganas, directed that if notices sent by the Court be returned undelivered by the postal authorities with the remark ''not known'' substituted service would be effected upon the persons. Fourthly, it was said that provisions contained in Order 5, Rule 20 of the Code could not apply and the practice which has been in force for over a decade has acquired sanctity. Fifthly, it was said that neither law nor rule required service of a notice and no litigant had a right to approach this Court with a petition for setting aside an ex parte decree confirming a decree nisi on the ground that the party did not receive any notice. Finally, the appellate Court said that both the Respondent and the co-Respondent contested the suit and they knew that the proceedings would be forwarded to this Court for confirmation, and it was their duty to take steps in the reference which was a continuation of the proceedings commenced in the District Court.

Counsel on behalf of the Appellant Amita Biswas contended first, that notice of reference u/s 17 of the Indian Divorce Act, 1869, was required to be served personally; secondly, that the practice of this Court of serving the Respondent by substituted service in the event of service by registered post having been returned undelivered or unaffected was not under any rule of law and, therefore, it was not a service which a party could claim as of right; thirdly, that the proceedings u/s 17 of the Indian Divorce Act were not a continuation of the proceedings commenced in the District Court; and fourthly, that the appellate Court erred in considering the evidence of the Appellant Amita Biswas in coming to the conclusion that the endorsement of the postal peon was not false. Counsel for the coRespondent adopted the same contentions.

Counsel on behalf of Alwin Atindra Biswas on the other hand contended, first, that the order and decision of the appellate Court in the application under Order 9, Rule 13 of the CPC to set aside the decree of confirmation, was not an order under the Indian Divorce Act and, therefore, was not appealable and was also not a final order which could be appealable. Secondly, it was contended that in fact the appellate Court found that service was effected and therefore the questions canvassed by the Appellant were academic and hypothetical. Thirdly, it was contended that no notice was required for the proceedings u/s 17 of the Indian Divorce Act and, in any event, there was service by registered post and thereafter there was substituted service. Finally, it was contended that the proceedings u/s 17 of the Indian Divorce Act were a continuation of the proceedings commenced in the District Court.

Counsel for the Appellant relied on the decisions in John Roberts Vs. Joyee Roberts and Another, and AIR 1945 67 (Lahore) in support of the proposition that notice was necessary in proceedings u/s 17 of the Indian Divorce Act. Counsel for the Appellant also invited our attention to the decisions in K.J. v. K. ILR (1952) Nag. 570 : AIR 1952 Nag. 395, Harris v. Harris AIR 1921 Lah. 310, which stated that notice was not necessary. It was, therefore, said that because of conflict of decisions in the High Courts this question should be settled by the decision of the Supreme Court.

The decision in John Roberts Vs. Joyee Roberts and Another, related to confirmation of a decree u/s 17 of the Indian Divorce Act. The Respondent and the co-Respondent did not appear at the trial. It was contended on the authority of the decision in Harris v. Harris AIR 1921 Lah. 310 that it was not necessary to serve notice of the application made in the High Court for confirmation of the decree. The Allahabad decision rested on an earlier Allahabad decision in Culley v. Culley (1888) ILR 10 All. 559 that the Court should not confirm a decree without an application being made for that purpose. In that context it was held that service of notice of application for confirmation of decree was essential in the interest of justice.

The decision in Norris v. Norris AIR 1945 Lah. 67 held that the practice of the Court was to make a petition for confirmation of the decree. That practice underwent change and a petition was no longer considered to be necessary. It was not denied in that case that notice of the proceedings for confirmation of the decree had to be given to the parties. The Court expressed the view that it could not lay down as a general rule that no notice need be issued. It was also said in that case that if a party did not appear at or contest the proceedings in the lower Court notice of confirmation proceedings was not necessary.

There is no practice of this Court that an application is to be made for confirmation of the decree. Section 17 of the Indian Divorce Act does not contemplate that any application is to be made for confirmation. The Allahabad and the Lahore decisions on which counsel for the Appellant relied related to the question of service of notice where applications for confirmation of the decree were made either as a practice of the Court or at the instance of a party. It is understandable that if an application is made, notice should be given of that application to the person who is sought to be affected thereby. There does not appear to be any conflict of decisions of the High Courts on this point because there is no decision that in confirmation proceedings, where no application for confirmation is made, any notice is yet contemplated.

In the present case the appellate Court came to the conclusion that notice had in fact been served and the practice of the Court, which has been followed for over a decade, was upheld to be salutary and adequate. Counsel for the Appellant contended that practice as to service did not confer any right on a person to insist on service. Practice of the Court means that it is a rule of the Court to be followed, cursus curia est lex curia. The practice of the Court is the law of the Court. Practice is founded on justice and convenience. Counsel for the Appellant expressed apprehension that practice might not be followed. Such apprehension is unfounded because the course of the Court is the practice of the Court''.

As to right of any person to insist on a notice, the question is, first, whether the proceedings u/s 17 of the Indian Divorce Act are fresh proceedings or a continuation of the proceedings commenced in the District Court and, secondly, whether a person who is a party to the proceedings in the District Court can insist on a right to be given notice of the proceedings for confirmation. In the present case the appellate Court held that the proceedings were continuation of the proceedings in the District Court and notice could not be claimed as of right but notice was given as of grace. In the decision in K.J. v. K. Supra it was said that no notice was necessary to be given on the persons u/s 17 of the Indian Divorce Act for two reasons. First, that the person had ample opportunity in the lower Court to contest but he remained absent and, secondly, the confirmation of the decree nisi was nothing more than a mere continuation of the original suit.

The provisions contained in Section 17 of the Indian Divorce Act indicate that if the High Court thinks further enquiry or additional evidence to be necessary, the High Court will direct such enquiry to be made. The provision as to review of evidence shows the statutory safeguard in regard to the rights and liabilities of the parties on the question affecting their status of marriage. Such a provision for confirmation of decree is not to be found in the Code of Civil Procedure. The provisions as to confirmation indicate that the character of the decree passed by the District Judge is made subject to the review of the evidence by the appellate Court. The proceeding for confirmation derive? its force from the provisions in the statute and it is not at the invitation of any party. In other words, confirmation flows as a statutory duty, and it cannot be taken away or arrested by any party.

Reference may be made to the decision in Stiphan Surin v. Piary Marki AIR 1955 Pat. 519 where the Patna High Court referred to its earlier decision in G. Gallimore Vs. Alice Gallimore and Another, and said that the jurisdiction of the High Court to confirm a decree in a divorce action arose immediately upon a reference made by the District Court, and to complete that jurisdiction it was not necessary that there should be any personal appearance of the Petitioner. The Patna High Court came to the conclusion that no application was necessary to confirm the decree. I am of opinion that no application is necessary for confirmation of the decree and the confirmation is because of the provisions in the statute that the District Court is bound to send up the decree to the High Court for confirmation and the decree of the District Court does not have any effectiveness unless and until it is confirmed by the High Court. The judgment of the District Court is that the decree is subject to confirmation by the High Court and parties are put upon notice to that effect. It is, therefore, manifest that the confirmation of the decree by the High Court is a mere continuation of the proceeding commenced before the District Court and no notice for confirmation of the proceedings is contemplated by the statute.

In view of our conclusion that the proceedings for confirmation u/s 17 of the Indian Divorce Act are continuation of the proceedings initiated in the District Court, and that such procedure for confirmation is not envisaged in the CPC it would be opposed to logic or principle to say that the provisions contained in the CPC with regard to service are attracted. In the first place Sections 45 and 50 of the Indian Divorce Act indicate that the CPC does not apply where specific provisions are made. There are specific provisions for service of petition. The proceedings resulting in a decree before the District Judge come up before the High Court for confirmation. Secondly, these proceedings for confirmation are continuation of the proceedings before the District Judge. There is no initiation of proceeding by any party for confirmation. The notice that is given by the Court at the time of confirmation of the decree is a practice of the Court designed as a measure of grace to inform that the proceedings will be confirmed. Notice has already been given to the party in the District Court where it is said that the proceedings will be subject to confirmation by the High Court. The parties are put on notice that the proceedings will be confirmed. It is upto the parties to appear or not to appear. If a party does not appear at the time of confirmation, the party does so at his choice. Counsel for the Appellant submitted on the analogy of Rule 11 in Chap. XI of the Appellate Side Rules that notice was mandatory. Rule 11 is in relation to reference proceedings u/s 307 of the Code of Criminal Procedure. It is obvious that such rule is specially designed for criminal matters and cannot apply to proceedings u/s 17 of the Indian Divorce Act.

We are unable to hold that there is any conflict of decisions in regard to service of notice or that service of notice is as of right.

Counsel on behalf of the Respondent contended, first, that the order on the application under Order 9, Rule 13 of the CPC was not an order under the Indian Divorce Act and, therefore, it was not appealable and, secondly, it was not a final order. It was said by counsel for the Appellant that the order would be an order under the Act, because it was for the purpose of setting aside the ex parte decree passed under the Act. Section 56 of the Indian Divorce Act states that a person may appeal to Supreme Court from any decree (other than a decree nisi) or order under this Act of a High Court made on appeal or otherwise and from any decree (other than a decree nisi) or orders made in the exercise of original jurisdiction by Judges of a High Court or any Division Court from which an appeal shall not lie to the High Court where the High Court declares that this case is a fit one for appeal to the Supreme Court. The orders are explicable with reference to the provisions in the Indian Divorce Act which contemplates several types or orders. In order to be a final order it should be remembered, first, that the order is not an interlocutory order, secondly, that it should not leave the original proceeding alive and there should be a final determination of the rights of the parties and that the order should of its own force affect the rights of the parties. A final order determined the dispute and brings the case to an end. The test for determination of the finality must be in relation to the suit. An order refusing to restore an appeal merely refuses to allow the matter to be reagitated. Such art order of its own force does not affect the rights of the parties. See M.A. Janaki Vs. M.A. Srirangammal, . Counsel for the Respondent rightly relied on the decision in In Re: S.N. Vittal alias Sankar Valvekar and Others, in support of the contention that an order refusing an application to set aside an ex parte decree is not a final order. In Seth Premchand Satramdas Vs. The State of Bihar, the Supreme Court said that no appeal shall lie to the Federal Court from an order of the High Court dismissing an application u/s 21(3) of the Bihar Sales Tax Act to direct the Board of Revenue to State a case. Two reasons were given. First, that the order of the High Court was passed not in exercise of appellate or original jurisdiction but in the advisory jurisdiction of the High Court and, secondly, the order did not affect the rights of the parties for the ultimate order was to be passed by the Board of Revenue. In the present case the order dismissing the applications for setting aside the ex parte decree did not of its own force affect the rights of the parties nor did it have the effect of determining the proceedings.

With regard to the confirmation of decree it was contended that the Indian Divorce Act contravened the provisions in Article 14 of the Constitution because the husband u/s 10 of the Divorce Act had the right to institute the proceedings against the wife on the ground of adultery alone, but the wife could not institute proceedings for dissolution against the husband only on the ground of adultery. This point was not taken in the District Court, nor was this point canvassed before the appellate Court. We are, therefore, unable to allow this contention to be agitated and further there is no judgment on this point.

The other contention for leave to appeal to the Supreme Court was that the provisions of Section 14 of the Indian Divorce Act contemplate that when the Court is satisfied on the evidence that the case of the Petitioner has been proved that the Court finds that the Petitioner has not in any way been accessory to, or connived at the adultery of the other party, or that the Petitioner has not condoned the adultery complained of, or that the petition is not presented or prosecuted in collusion with either of the Respondents, the Court shall pronounce a decree declaring such marriage to be dissolved. It is said that there is no finding that the Petitioner is not guilty of collusion and, therefore, one of the limbs in Section 14 of the Indian Divorce Act has not been the subject-matter of the pronouncement of the decree.

In Section 14 it is stated that the Court shall pronounce a decree declaring such marriage to be dissolved in the matter and subject to all the provisions and limitations in Sections 16 and 17 of the Act. Section 16 refers to the decree nisi for dissolution made by the High Court not being a confirmation of a decree. Section 17 speaks of confirmation of a decree made by the District Judge. Further Section 14 indicates that the Court shall pronounce a decree. In the present case the Court has given its finding on all the issues and the appellate Bench has confirmed the decree on a review of the entire evidence. No separate funding is necessary and even if such a finding is necessary it is embodied in the decree and the decree is to be read in that light.

These cases are not fit cases for grant of certificate for leave to appeal to the Supreme Court. The applications are dismissed.

Each party to pay and bear its own costs of the applications.

Sankar Prasad Mitra, J.

I agree.

Ghose, J.

I agree.