Neil Gerard D''Cruz vs Jacqulin Rozario

Thomas, Ag. C.J.

Confirmation is sought to be accorded to a decree passed by the Family Court declaring the marriage between the parties herein as null and void. But the decree having been passed only on 29-6-l995 the Registry of the High Court raised a doubt whether the same can be considered for confirmation without lapse of an interval of six months. Smt. K. Meera, learned counsel for the petitioner urged the matter to be sent up on the judicial side as she was of the view that the period of six months envisaged in the proviso to 4th paragraph of Section 17 of the Indian Divorce Act (for short ''the Act'') is not applicable to confirmation of a decree of nullity. Hence we heard learned counsel on that point first.

The Act envisages two modes to wriggled out of the catches of the broken. matrimonial alliance. One is by obtaining a decree for dissolution of marriage and the other is by obtaining a decree declaring the marriage null and void. Two forums are vested with jurisdiction to deal with either of them, except in regard to a decree of nullity on the ground of fraud or farce for which High Court alone has exclusive jurisdiction.

Section 10 of the Act deals with petitions filed for dissolution of marriage. The section enables a petitioner to file the petition either to the District Court or to the High Court since both forums have concurrent jurisdiction to entertain such petition. Section 17 provides that the decree of dissolution of marriage passed by the District Judge shall be subject to confirmation by the High Court. But the proviso to paragraph 4 of Section 17 reads thus :

"Provided that no decree shall be confirmed under the 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".

In this context we shall refer to the High Court''s power to pass a decree of dissolution. It is contained in Section 16 of the Act. The provision directs that such decree shall at first instance be only a decree nisi. The further restriction is that such a decree shall not be made absolute till the expiration of a period of not less than 6 months.

The above are the relevant provisions dealing with making of decrees for dissolution of marriage. Now we shall refer to the provisions dealing with decree declaring the marriage null and void.

Section 18 enables a husband or wife to present a petition either to the District Court or to the High Court for a decree declaring the marriage null and void on one of the grounds enumerated in Section 19. It is pertinent in this context to note that when the High Court passes a decree of nullity of marriage, there is no requirement that such decree shall be made at the first instance as a decree nisi. That means, when the decree of nullity is passed by the High Court, it takes effect on the very day itself. But a decree of nullity passed by a District Court will remain in limbo until confirmed by the High Court. In the above context, we have to understand the scope of Section 20 of the Act. It reads thus :

"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."

The latin words "mutatis mutandis" are not redundant in the provision as they were included in the section with a purpose. Those words mean "with due alteration of details in comparable cases" (vide Concise Oxford Dictionary). In Mithra''s legal dictionary, the expression "mutatis mutandis" is clarified as a rule of adaptation in same or similar circumstances.

"The phrase is often used in legislation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects. It is nothing but a rule of adaptation".

Its effect, therefore, is that the provisions contained in Section 17 need be followed subject to such adaptations or alterations as may be necessary, if a similar situation arises when the section is involved.

There seems to be a jurisprudential sense in prescribing a minimum period of interval to lapse between the date of decree for dissolution and its confirmation. In the case of a decree of dissolution law pre-supposes a valid marriage. A period of six months before confirmation of the decree can have useful deliberations for making another attempt to save the matrimonial alliance, or to resort to counselling process to . bring about a rapprochement between the spouses etc. But in the case of nullity of marriage, there is no such pre-supposition, and on the other hand law regards that no valid marriage had ever taken place. In such a situation, no useful purpose is served by providing an interregnum of six months between the date of decree and confirmation. If any such interregnum was contemplated by the legislature even for a decree of nullity of marriage, there is no reason for not providing such a period when the decree of nullity is passed by the High Court. It is pertinent to note that when the decree is for dissolution of marriage, whether such decree is passed by the District Court or the High Court the Act requires that a period of six months should elapse before it is confirmed or is made absolute as the case may be.

There was a controversy between Allahabad High Court and Bombay High Court during the early years of this century as to whether six months should elapse before confirmation of a decree of nullity passed by the District Court. Bombay High Court in A. v. E., ILR (1899) Bom 460 has held that lapse of such a period is sine qua non for confirmation of decree of nullity also. But Allahabad High Court in Edward Caston v. L.H. Caston ILR (1900) All 270 dissented from it and held that it is not necessary to wait for six months to confirm the decree of nullity passed by a District Court. A Full (Special) Bench of the Lahore High Court has followed the Allahabad High Court''s view in C. Samuel v. N. Samuel, AIR 1934 Lah 636

In the light of the reasoning adopted by us we too are of the view that the period of six months envisaged in Section 17 is intended to apply only to decrees of dissolution of marriage and not to decrees of nullity of marriage.

Coming to the facts of this case, petitioner husband alleged that the wife/respondent was impotent. Petitioner was examined as P.W, 1 and he has stated that there was no consummation of marriage and that the respondent was unwilling to cohabit with him and further that respondent did not reciprocate to the erotic overtures or the coo made by him and she remained stone stiff right through. He was not cross-examined and the respondent remained ex parte.

There is no rule of law that uncorroborated testimony of a witness should not be relied on by the Court to reach a finding though as a rule of caution, courts have insisted on corroboration in appropriate cases. In a matter like this when one party has asserted about a certain state of things experienced by him and such assertions remained uncontroverted and the other party has not addressed any contra evidence, there is nothing wrong in acting on such testimony if it is found reliable.

Family Court, before which the evidence was given, was obviously impressed by the veracity of P.W. 1 ''s testimony and acted on it. We confirm the decree.