G. Gallimore vs Alice Gallimore and Another

Courtney-Terrell, C.J.—This case comes before the Court u/s 17, Divorce Act. Charles Gallimore, the petitioner husband, petitioned for a dissolution of marriage from his wife Alice Gallimore before the District Judge and cited a certain person as co-respondent. The Judge heard the case upon the evidence and came to the conclusion--and we see no reason to differ from him--that the respondent had been guilty of adultery with the co-respondent. He pronounced a decree for dissolution, announcing that the decree would be subject to confirmation by the High Court. The papers were sent by the District Judge to the High Court in the ordinary course of affairs. The petitioner Charles Gallimore however has taken no steps to move the Court to confirm the decree which was granted to him. The decree was dated 2nd of November 1932, and we are now in the year 1935. The substantial point with which we have to deal, having satisfied ourselves that the procedure taken by the District Judge was a correct procedure and that his findings are not vitiated by any lack of the proper precautions to be taken in such circumstances, is as to whether in the absence of specific application by the petitioner we are entitled to confirm the decree. The jurisdiction of the Courts in divorce is a creation of the Indian Divorce Act which succeeded certain prior enactments. Section 7 of the Act states:

Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are, as nearly as may be, conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.

Then follows a proviso with which we are not concerned. Two courses of procedure are open alternatively to a petitioner: he may either come to the High Court direct u/s 16 of the Act, and in that case the Court will in the first instance pronounce a decree nisi--that term having been derived from the English practice--which is not to be made absolute until 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. The concluding paragraph of the section is as follows:

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.

The alternative procedure is provided by Section 17, according to which the petitioner may proceed before the District Judge. There the words "decree nisi" are not used at all. The section opens with the words:

Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.

Then the cases for confirmation are to be heard by not less than three Judges in the case of a High Court constituted as this High Court in fact is. The High Court has the power, if it is necessary, to direct further inquiry and further taking of evidence, and when the result of such inquiry and additional evidence are certified to the High Court, "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. Then there is a proviso that no decree shall be confirmed under this section until after the expiration of not less than six months from the pronouncing thereof. Certain doubts have apparently arisen as to whether in the event of such a reference by the District Judge himself of his order for confirmation, or in the case of an application by the respondent--but in either case without the application of the petitioner himself--the Court has power to confirm the decree. It cannot be denied that Section 17 makes no such reservation in favour of the rights of the petitioner and there is nothing in the section itself which would suggest that the active motion of the petitioner is necessary before the Court can exercise its jurisdiction to confirm the decree. The whole idea that the active motion of the petitioner is necessary seems to have sprung from the English practice and from that part of Section 7 which directs the Court to apply the principles and rules of the English Divorce Court; but such a conclusion cannot be arrived at without ignoring the opening words of that section: "Subject to the provisions contained in this Act". The procedure instituted by Section 17 of the Act is a new procedure which has no parallel in the English law and is specific in itself and contains no saving clause of any kind applying any principles existing in any other country. The matter has been the subject of divergent opinions. On the one hand, there is a series of decisions of the High Court of Allahabad; on the other hand, there is a corresponding series of decisions in the opposite direction by the High Court of Madras, and in my opinion the view of the High Court of Madras is distinctly to be preferred, and that Court has decided that no application by the petitioner is necessary for the exercise of the jurisdiction of confirmation. It is not necessary to go through all the Allahabad decisions. I will refer however to two only. The earlier case is a Full Bench decision of that High Court: Forshaw v. Forshaw (1909) 31 All 511. In that case the petitioner did not appear and the learned Judges seem to have feared that it was possible that the differences between the petitioner and the respondent might have been composed.

They refer to an earlier case of Culley v. Culley (1888) 10 All 559, which they followed and decided that it was necessary to have a motion before the Court before the jurisdiction could be exercised. Later on, the petition for confirmation was in fact made by the husband and the Court confirmed the decree. But the case was not argued at any length, nor does anyone appear to have pointed out to the learned Judges, first of all, the nature of Section 7 of the Act applying the principles of the English law only to those cases in respect of which specific provision was not made by the Act, and, secondly, the attention of the learned Judges does not seem to have been drawn to the difference between Sections 16 and 17 of the Act. There was a subsequent case before the Full Bench of the High Court, which is Pushong v. Pushong 1934 All 624, which came before Young, Thom and Bennet, JJ. Once again the nature of Section 7 and the difference between Sections 16 and 17 do not seem to have been presented to the Court nor indeed was the decision of the High Court of Madras, to which I shall refer in a moment, brought to the attention of the Judges. They appear to have taken the matter as beyond dispute and as being settled by a matter of practice, and simply stated that it was contrary to principle that a marriage should be dissolved on the motion of the guilty party. They do not seem to have considered the question as to whether or not, even if there should have been no motion before the Court, the Court itself had no jurisdiction to deal with the decree made by the District Judge when reported by the District Judge to them. With these decisions of the Allahabad High Court, I respectfully disagree, and I turn now to the decision of the Full Bench of the Madras High Court consisting of Sir John Wallis, C.J., and Ayling and Sadasiva Aiyar, JJ. In that case, Guda William v. Guda Karunamma 1916 Mad 296, the Chief Justice and Ayling, J., held that the jurisdiction of the High Court to confirm the decree in a divorce case arises immediately upon a reference by the District Court, and to complete the jurisdiction it is not necessary that there should be any personal appearance of the petitioner before the High Court. Sadasiva Aiyar, J., appears to have differed from that point of view and seems to have treated the decree of the District Court as a "decree nisi", requiring a subsequent decree absolute. There is no report of the argument which took place, but the dissentient learned Judge''s attention does not seem to have been called to the fact that the term ''decree nisi'' is not used in Section 17, whereas it is used in the case of Section 16. Further, differing from the other learned Judges, he seems to have the idea that some principle which is binding upon the Indian Courts imports the idea borrowed from England that the guilty party cannot himself petition. A petition is not necessary at all for the exercise of the jurisdiction; and if the law be as Sir John Wallis says, and I venture to agree, that the jurisdiction arises immediately upon a reference, then the mere fact that the guilty party may also have applied for confirmation of the decree does not destroy the jurisdiction which arises in any case.

This decision follows an earlier Full Bench case of William Dare v. Mrs. Belle (1911) 34 Mad 339. In the earlier case the reasoning of the Allahabad High Court was expressly dissented from and the difference between Sections 16 and 17 of the Act was discussed. It was pointed out that u/s 17 it was in-accurate to speak of the decree of the District Judge as a decree nisi. In the case before us there is no ground, having regard to the length of time which has taken place since the decree and the fact that a citation by advertisement in the newspapers was directed upon the petitioner, to believe that any reconciliation between the parties either has taken place or is likely to take place, and there is no ground for refusing the confirmation of the decree. The fact that the guilty wife has put in a petition for confirmation of the decree is, in my opinion, immaterial to the question of the exercise of our jurisdiction which, as Sir John Wallis says, arose immediately upon the reference by the District Judge. I would therefore confirm the decree.

Dhavle, J.

I agree.

Agarwala, J.

I agree.