Binoy Mathew vs Sabu Abraham

K.K. Usha, J.—This reference arises u/s 17 of the Indian Divorce Act, 1869. Wife was the Petitioner before the District Court, Kottayam in O.P. (Div.) No. 229/96. She claimed divorce u/s 10 of the Act on the ground of cruelly. It was contended by her that she was being physically assaulted by her husband/Respondent and she was not even given proper food or clothing. Even though notice was received by the Respondent, he remained ex parte.

The Petitioner was examined as P.W. 1 and she spoke in terms of the petition. P.W. 2, her paternal uncle deposed as to how on one occasion when he visited her house, he found marks of assault on her body and he took her to ayurvedic doctor. The doctor was examined as P.W. 3 and he proved Ext. certificate. He has given evidence that he found edima on the shoulder and cheek of the Petitioner. The reason given by the Petitioner was assault by her husband P.Ws. 4 and 5 are neighbours who also supported that the Petitioner was given treatment for injuries sustained. The witnesses of the Petitioner were not cross-examined and the Respondent did not adduce any evidence. In the light of the decision of this Court in Mary Sonis Zachariah v. Union of India 1995 (1) KLT 644 (F.B) a Christian wife is entitled to get divorce on the ground of cruelty alone. The trial Court accepted the evidence adduced by the Petitioner and granted a decree for divorce.

Before this Court, even though notice is served on the Respondent, he is neither present nor represented by Counsel. We feel that it is high time that the provision regarding confirmation under Sections 17 and 20 of the Indian Divorce Act, 1869 are deleted from the Statute. Section 17 provides that every decree for dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court. It is further provided that 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, or (where the number of the Judges of the High Court is two) by a Court composed of such to Judges. Section 20 provides that every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court. That too by a Bench of three Judges in Courts where the number of Judges is three or upwards and where the number of Judges of the High Court is two, by a bench composed of two Judges. A petition u/s 10 for grant of divorce and Section 18 for declaring the marriage null and void can be filed both before the District Court as well as the High Court. When such petitions are filed in the High Court, it is being heard by a Single Judge and appeal there from by a Bench constituting two Judges. Above being the provision, we are of the view that confirmation of a judgment of the District Court by a Bench of three Judges is absolutely unwarranted. We ate also of the view that the provision for confirmation can be deleted and in its place a provision could be made for filing an appeal before the High Court by whichever party aggrieved by the order passed either u/s 10 or u/s 18. Such an appeal can be heard by a Bench consisting of two Judges as in the case of all other matrimonial appeals.

As early as in 1987 an amendment was brought in Uttar Pradesh to the Indian Divorce Act, 1869. Under the Indian Divorce Act (U.P. Amendment Act 1957) paragraphs 1 to 5 of Section 17 of the Indian Divorce Act, which contain provisions regarding confirmation of the decree for dissoultion of marriage by the High Court are deleted by the above Amendment. So also, Section 20, which provides for confirmation by the High Court of the decree for nullity of marri ige made by the District Judge incorporating paragraphs 1 to 4 of Section 17 was also deleted by the 1957 Amendment. But, unfortunately, during the last 40 years no step is seen taken to amend the Act by the Parliament by deleting these provisions. Three other High Courts including a recent decision of the Bombay High Court have pointed out the unreasonableness of this provision. In Mrs. Neena Vs. John Pormer, a Special Bench of the Madhya Pradesh High Court constituting of three Judges observed as follows:

The procedure prescribed by Section 17 of the Indian Divorce Act, 1869, requiring confirmation by the High Court of a decree for dissolution of a marriage made by District Judge, prolongs the agony of the affected parties even though none of the parties is desirous of preferring an appeal. We sec no valid justification for continuation of this procedure especially when no such procedure is prescribed by other Acts dealing with dissolution of marriages, namely, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.... In our opinion, therefore, there is an urgent need for making suitable amendments in the Indian Divorce Act, 1869 as made in Uttar Pradesh by Act No. 30 of 1957.

In Swapan Ghosh v. Sadananda Ghosh and Anr. AIR 1989 Cal 1 a Special Bench of the Calcutta High Court constituting of three Judges had occasion to consider the very same issue. A.M. Bhattacharjee, J. who wrote the judgment for the Special Bench observed as follows :

I have, however, my own doubts as to whether the provisions of Section 17 of the Indian Divorce Act requiring confirmation of the decree of the trail Court by the High Court should any longer be retained. A decree for dissolution of marriage among the Hindus, Buddhists, Sikhs and Jains under the Hindu Marriage Act, 1955, among the Parsis under the Parsi Marriage and Divorce Act, 1936, among the Muslims under the Dissolution of Muslim Marriages Act, 1939 are made by the District Courts and under the last mentioned Act, even by Courts of lower rank and all such decrees operate with the fullest efficacy without any confirmation from the High Court. It is, therefore, difficult to appreciate the retention of the provisions of Section 17 of the Divorce Act providing that the Christian couples, even after obtaining a decree for dissolution from the District Court, may be after a long-drawn and streneous litigation, must still wait for confirmation thereof from the High Court before those decrees can be complete and binding. These provisions of Section 17, even assuming that they had their days when enacted in the mid-ninteenth Century, have probably outlived their purposes, particularly in the context of the later enactments relating to matrimonial laws governing the other communities and referred to hereinabove and only result in protracting and prolonging the litigation, even where none of the parties is in a mood to have a further review or reconsideration of their case by any higher Court. All these considerations led the Legislature-of the State of Uttar Pradesh to do away with these provisions in Section 17 of the Diovrce Act by a State Amendment Act being Act No. 30 of 1957. We are inclined to think that our parliament, or the State Legislatures (Marriage and Divorce being matters in the Concurrent List) should very seriously consider the question of introducing similar amendments in the Divorce Act of 1869 to bring it in harmonious conformity with-other analogous enactments on the subject governing the other communities in India and we are glad to note that a Special Bench of the Madhya Pradesh High Court, while disposing of a confirmation proceeding u/s 17 of the Act in Meena v. John Former AIR 1985 MP 85 P-87 (F.B.), has also made recommendation to that effect in emphatic terms. Whatever doubts there may still be about substantive due process, procedural due process or procedural reasonableness has doubtlessly is been made a part of our Constitutional Law by our apex Court since the decision in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and reference may also be made to the later decisions in Bachan Singh and Others Vs. State of Punjab and Others, and in Mithu Vs. State of Punjab, and to other post-Maneka decisions for the re-affirmation of this position. Have not the Christian spouses been denied procedural reasonableness and due process by these provisions of Section 17 providing for compulsory confirmation hearing, in the context of the spouses belonging to other communities whose matrimonial proceedings are not subjected to any such further hearing?

The same view was reiterated by A.M. Battacharjee, J. in a later Special Bench decision of the Calcutta High Court in Ramish Francis Toppo Vs. Violet Francis Toppo, .

In Solomon Devasahayam Selvaraj Vs. Chandriah Mary, Alagiri Swamy J., then of the Madras High Court had also occasion to comment upon the irrelevance of retaining the provisions for confirmation in the Indian Divorce Act. This was the same view taken by a Full Bench of the Bombay High Court in Mrs. Pragati Varghese and etc. Vs. Cyril George Varghese and etc., It was observed as follows:

Section 17, we further find, provides that in case a High Court comprises of only two Judges and decree passed by a District Court comes up for confirmation before the said two Judges and in case of a difference of opinion, the provision contemplates that the decision of the Senior Judge would prevail. In our Judgment, the aforesaid procedure contemplated by Sections 16, 17 and 20 are unreasonable and are arbitrary in nature. The same achieves no useful object or purpose. The procedure provided tends to prepectuate the agonies of the affected parties for no useful purpose. If such a procedure is absent in other similar enactments, we do not find any propriety why this procedure should be applied to Christian spouses. The said procedure, in the circumstances, is liable to be struck down by suitable amendments, which we suggest should be brought about by suitable amendments in the Act.

...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.

The present case is an example of how parties are unnecessarily put to trouble by these provisions for confirmation. Both sides have no complaint about the order passed by the Court below. In almost all the cases, which come up for confirmation both sides agreed for an order of confirmation.'' Their only complaint would be that they are compelled to wait for long periods till a Bench of three Judges is constituted in order to enjoy the benefit of the decree. We are of the view that to compell the Christian spouses alone to follow this procedure is clearly unfair and arbitrary. If a provision for appeal is provided, only those who are really aggrieved by the order passed by the trial Court need come to this Court by filing appeal.

On merits, we find that the Court below has correctly granted a decree for dissolution of marriage to the Petitioner. We are also satisfied that there is no collusion between the parties. The decree for dissolution of marriage to the Petitioner stands confirmed.

We direct the registry to forward a copy of this judgment to the Ministry of Law and Justice, Union of India, the Law Secretary, State of Kerala and also to the Chairman, Law Commission of India.