Sajjan Emanuel Topno vs Hena Topno

S.N. Jha, J.—This matter arises out of a decree for judicial separation under the provisions of the Indian Divorce Act, 1869 (in short ''the Act''). The husband filed a petition for judicial separation which has been granted by the Court below.

The instant reference has been made purportedly u/s 17 of the Act seeking confirmation of the said decree.

A question has arisen as to the maintainability of this reference. Section 17, inter alia, provides that every decree for dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court. It would appear from the scheme of the Act that separate provisions have been made for dissolution of marriage, nullity of marriage and judicial separation as contained in Parts III to V thereof. Whereas: a decree of dissolution of marriage or nullity of marriage requires confirmation by the High Court u/s 17 by reason of the provisions as contained in Sections 14 and 20 respectively of the Act, no such provision has been made in the cases of decree of judicial separation. As a matter of fact, as would appear from the provisions as contained in Sections 24 and 25 appearing under Chapter V of the Apt, a separated wife shall be considered as unmarried with respect to property and for the purposes of contract etc. "from the date of the sentence, and whilst the separation continues". It would, thus, appear that the decree of judicial separation comes into effect from the very date of passing the same.

Mr. L.N. Deb, appearing in support of the reference has filed a written note of submission and has placed reliance on Section 9 of the Act contending that the reference is maintainable. Section 9, however, provides far making reference to High Courts when any question of law or usage having the force of law arises at any stage in the proceeding in the district Court.

In G. Pravimala Sundari Bai Vs. Guduri Premaratnam and Another, it has been held that the decree of judicial separation comes into force from the date of decree and does not require further confirmation by the High Court. Similar view has been expressed in Sahaya Barathy Vs. Anthony Sahaya Rajaputhiraik, holding that the reference to High Court u/s 17 of the Act was incompetent. In Smt. Deepika Alizabeth Couto Vs. Gabriel Anthony Couto, , by reason of deletion of the relevant parts of Section 17 providing of confirmation by the High Court by State Amendment, it was held that the decree for dissoultion of marriage also did not require any confirmation and, therefore, the petition before the High Court was incompetent. For the reasons stated above, I find myself in respectful agreement with the views expressed in the said authorities.

I, accordingly, hold that this reference is incompetent. The decree in question will be deemed to have come into effect from the date it was passed by the Court below and the same does not require any confirmation by this Court. The referece is answered accordingly.