Andhra HC (Pre-Telangana)
Choppala Lalitha Kumari vs Gogulamudi Bhaskara Rao on 6 October, 2005
Equivalent citations: 2005(6)ALT628, I(2006)DMC607
ORDER P.S. Narayana, J.
1. Heard Sri B. Devadas, the learned Counsel representing the petitioner. The matter is coming up for orders of this Court on an objection taken by the office while numbering the O.P. filed by the petitioner under Section 10-A(1) read with Section 8 of the Divorce Act, 1869 (hereinafter in short referred to as "Act" for the purpose of convenience).
2. This O.P is presented before this Court praying for dissolution of marriage on the strength of an agreement dated 26-11-1984. It is stated that the elders had settled the matter and in pursuance thereto, an agreement was entered into between the petitioner and the respondent. The office raised an objection "it should be stated how this petition can be presented in the High Court directly without approaching District Court in view of the provisions of Amendment Act (Act 51/2001) which came into force from 3-10-2001". It was also pointed out "petition may be filed in the Court of lowest grade competent to try it as per Section 15 C.P.C." Complying with the office objections, the counsel for the petitioner re-presented the Original Petition and stated." Prior to Amendment Act 51/2001 this Hon'ble Court has got jurisdiction to deal with the Matrimonial Cases. In this case, the department issued proceedings to submit Decree of Divorce after 20 years of service in the Department. As per Section 8 of the Act, the High Court has got extraordinary jurisdiction to deal with such cases. Hence petition is maintainable".
3. Sri B. Devadas, learned Counsel representing the petitioner had drawn the attention of this Court to Sections 3(1), 4, 8, 10, 10-A, 16, 17 and 19 of the Act and would point out that despite the fact that Section 10-A was inserted by the Central Act 51/2001, dated 3-10-2001, Section 16 of the Act had not been amended. The learned Counsel also would contend that despite the fact that in Section 19 of the Act, the words "jurisdiction of the District Court" had been introduced in the place of "jurisdiction of High Court" in view of the fact that the High Court or District Court are having concurrent jurisdiction to entertain Original Petitions on the matrimonial side under the Act, under exceptional circumstances this Court also can entertain the Original Petitions. The learned Counsel placed strong reliance on T. Saroja David v. Christie Francis , Usborn Lewis v. Phylis Sylvia Jordan and Anr. (D.B.), T.M. Bashiam v. M. Victor (S.B.), Joseph John Carvalho v. Leila Joseph Carvalho II (1992) DMC 524 (F.B.) (Bombay), Rosy Kurian Kannanaikal and Anr. v. Joseph Vreghese Cheeran and Anr. II (2002) DMC 79 (F.B.) (Karnataka).
4. Heard the learned Counsel for the petitioner.
5. The Divorce Act, 1869 was amended by Act 51/2001. Section 3 of the Act deals with interpretation clause. Section 3(1) of the Act defining High Court, specifies as hereunder:-
3. Interpretation clause:- In this Act, unless there be something repugnant in the subject or context,-
(1) "High Court":- "High Court" means with reference to any area,-
(a) in a State, the High Court for that State, [xxx]
(b) in Delhi, the High Court of Delhi;
(c) in Manipur and Tripura, the High Court of Assam;
(d) in the Andaman and Nicobar islands, the High Court [(ee) in Chandigarh, the High Court of Punjab and Haryana;] and in the case of any petition under this Act, "High Court" means the High Court for the area where the husband and wife reside or last resided together;]
6. Section 3(3) of the Act defines "District Court" as hereunder:-
3. Interpretation clause:- In this Act, unless there be something repugnant in the subject or context,-
(3) "District Court" means, in the case of any petition under this Act, the Court of the District judge within the local limits of whose ordinary jurisdiction, [or of whose jurisdiction under this Act, the marriage was solemnized or], husband and wife reside or last resided together;
7. Section 4 of the Act dealing with matrimonial jurisdiction of High Court to be exercised subject to Act--Exception, specifies as hereunder:-
"Matrimonial jurisdiction of High Court to be exercised subject to Act--Exception:- The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts, and by the District Courts subject to the provisions in this Act contained, and not otherwise; except so far as relates to granting of marriage-licenses, which may be granted as if this act had not been passed.
8. Section 8 of the Act dealing with extraordinary jurisdiction of High Court reads as hereunder:-
8. Extraordinary jurisdiction of High Court:- The High Court may, whenever it thinks fit, remove any try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act.
9. Section 10 of the Act deals with grounds for dissolution of marriage.
10. Section 16 of the Act dealing with decrees for dissolution to be nisi, reads as hereunder:-
16. Decrees for dissolution to be nisi :- Every decree for a dissolution of marriage made by a High Court shall, in the first instance, be a decree nisi, not to be made absolute 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.
11. Section 17 of the Act dealing with power of High Court to remove certain suits, reads as hereunder:-
17. Power of High Court to remove certain suits:- During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are to have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under Section 8, and the Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in Section 16 shall apply to every suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary, to enable him to make a decree in accordance with the justice of the case.
12. Section 19 of the Act dealing with the grounds of decree specifies as hereunder:-
19. Grounds of decree - Such decree may be made on any of the following grounds:-
(1) that the respondent was important at the time of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the District Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
13. Section 10-A of the Act, which had been introduced by Act 51/2001 on 3-10-2001, reads as hereunder:-
10-A. Dissolution of marriage by mutual consent:- (1) Subject to the provisions of this Act and the rules made there under, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.]
14. It is no doubt true that Sub-section (1) of Section 10-A specifies that subject to the provisions of the Act and the rules made there under a petition for dissolution of marriage may be presented to the District Court by the both parties to the marriage together whether such marriage was solemnized before or after the commencement of the amended Divorce Act, 2001.
15. The words "the High Court may whenever, it thinks fit remove and try and determine as a Court of Original Jurisdiction any suit or proceeding instituted under this Act in any Court of District Judge" in Section 8 of the Act and the words "every decree for a dissolution of marriage made by a High Court' in Section 16 of the Act would assume some importance.
16. In T. Saroja David v. Christie Francies (1st supra) a learned Judge of this Court held that insofar as dissolution of marriage and nullity of the marriage on the specific grounds stated in Section 19 are concerned both the District Court and High Court have concurrent jurisdiction and when the case is one for declaration of nullity of marriage on the ground of force or fraud the exclusive jurisdiction of the High Court is saved. It is pertinent to note that this decision was rendered while dealing with Section 19 of the Act as it stood then unamended. Be that as it may, the learned Judge no doubt had traced the history of conferment of jurisdiction on the Courts relating to matrimonial disputes.
17. In T.M. Bashiam v. M. Victor (3rd supra), the Special Bench of Madras High Court at para No. 7 observed as hereunder:-
"In this contest, learned Counsel for the petitioner (the wife) has raised an argument that Section 17 itself may taken as violating Article 14 of the Constitution, because it provides for the reference to this Court to be heard by a Bench of three Judges of this Court, for confirmation of a decree nisi for dissolution of marriage granted by any District Court whereas, with regard such case arising under the original civil jurisdiction of this Court, and the proceeding is a petition before a learned Single Judge of this Court on the Original Side. The argument appears to be wholly lacking invalidity. Firstly, it is not unreasonable differentiation; nor one unrelated to a very clear principle of distinction, that the jurisdiction of a superior tribunal attracts cases arising within its territory, while inferior tribunals have to deal with cases in their similar jurisdiction. If such a principle or scheme were to be held as offending Article 14, the entire hierarchy of Courts, and the different provisions for the institution and disposal of civil matters in these Courts will have to be abolished.
Further, we may point out that under Section 8 of the same Act the High Court has the power to remove any cause from the Curt of any District Judge, to itself. If a particular petitioner requires' a trial on the original side of this Court, that petitioner has a mode of approach to this Court for redress by invoking this provision, of course, in a suitable case. Again, even a decree for dissolution granted by a learned single Judge of this Court is admittedly a decree nisi, and may be subject to a Letters Patent Appeal under Section 15 of the Letters Patent. We are unable to see any principle of discrimination whatever in Section 17 of the Act, and we may finally observe that, even if such an argument has to be accepted for the sake of hypothesis, it would still involve an adverse result to the petitioner, because the reference itself will have to be quashed, as well as the decree nisi of the learned District Judge.
18. In Osborne Lewis Jordan v. Phylis Sylvia Jordan and Anr. (2nd supra), the Division Bench of Delhi High Court at para No. 9 observed as hereunder:-
"It will, therefore, be seen that persons domiciled in India who profess Christian religion may present a petition for dissolution of marriage under Section 10 of the Divorce Act, 1869 on the various grounds contained in the said section either before the High Court or before the District Court. Though concurrent jurisdiction is given to the District Court and the High Court for entertaining a petition for dissolution of marriage the procedure to be followed and the power conferred under the various provisions and the Act are different. Section 17 of the Act provides that when a decree for dissolution of marriage is made by the District Judge it shall be subject to confirmation by the High Court. Where the number of Judges of the High Court is three or upwards the confirmation of the decree has to be made by a Bench composed of at least three Judges. The decree for dissolution of marriage passed by the District Court cannot be confirmed under this section till after the expiration of not less than six months."
19. In Joseph John Carvalho v. Leila Joseph Carvalho (4th supra) the Full Bench of Bombay High Court held at paragraphs 11 and 12 as under:-
"Secondly, the provisions of Sections 4, 8, 9, 17 and 20 clearly show that basically it is the High Court which is invested with the matrimonial jurisdiction under the Indian Divorce Act. There is further reason to hold that the High Court will always have the jurisdiction under the Act because under Section 19 of the Act, the decree for a declaration that the marriage is null and void can be passed either by the High Court or the District Court on any one of the four specific grounds mentioned therein. However, the proviso to the said section states that nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. Therefore, it is clear that when the petition is for a decree of nullity of marriage on the ground that the consent of either party was obtained by force or fraud, the petition will have to be necessarily heard by the High Court as the High Court alone has the exclusive jurisdiction in that behalf. If the interpretation put by the Division Bench in Dnyaneshwar's case (supra) is accepted, then it will mean that this ground under the said proviso will be available only to the husband and wife who reside or last resided together within the area under the original jurisdiction of the High Court and the parties staying elsewhere outside the original jurisdiction of the High Court will not be entitled to a decree of nullity on the said ground at all. That the jurisdiction to pass a decree of nullity on the said ground is exclusive with the High Court admits of no doubt. In such a case, it is difficult to comprehend a situation that the statute makes available a particular ground for declaration of nullity of marriage only to a limited class of persons residing in the limits of the original civil jurisdiction of the High Court.
We are in respectful agreement with the decision of the Andhra Pradesh High Court in Saroja v. Christie Francis (AIR 1966 A.P. 178) laying down the proposition that insofar as dissolution of marriage and nullity of marriage on the specific grounds stated in Section 19 are concerned, both the District Court and the High Court have concurrent jurisdiction and when the case is one for declaration of nullity of marriage on the ground of force or fraud, the exclusive jurisdiction of the High Court is saved is the correct proposition of law. The said proposition has been approved by a Full Bench of the Karnataka High Court in I.A. Jayaraj v. I.M. Florence as also by a Division Bench of the Kerala High Court in Usha v. Abraham .
20. It is true that the Full Bench of Bombay High Court in the decision referred to supra had dealt with the aspect of jurisdiction in relation to Section 19 of the Act as it then stood.
21. Strong reliance was placed on the decision of the Full Bench of Karnataka High Court (5th supra), wherein while deciding an application made under Section 10-A of the Act on mutual consent it was observed at para 21 as hereunder:-
"Though the larger Bench is not generally called upon to decide the case on merits, since in the present case regarding merits of the dispute between the parties had also been referred to us, we will consider the same. The parties who are present in the Court and identified by their Counsel submitted that they (petitioner and the respondent) are living separately for more than eight years and in view of the insertion of Section 10-A in the Divorce Act providing for dissolution of marriage by mutual consent they may be granted a decree for dissolution, instead of examining the decree of the Family Court under Section 17. The petitioner has in fact filed an application I.A. 1 on 13-1-2002 for this purpose. Learned Counsel for the parties submits that as these proceedings for confirmation of divorce under Section 17 is a continuation of the original lis, a decree for dissolution of marriage may be granted under Section 10-A of the Divorce Act be passed. A petition for divorce can be converted into one for divorce by mutual consent and subject to satisfaction regarding free consent by parties, the Court can grant a decree for dissolution by mutual consent. Though Section 10-A refers to District Court, there is no impediment for the High Court to grant the decree for mutual consent. having considered what the parties have stated before us and being satisfied of the grounds made in the application under Section 10-A of the Divorce Act and by virtue of the power conferred on this Court Section 16 of the Divorce Act, we hereby grant a decree nisi for dissolution of marriage with a direction to the Registry to place this matter before the concerned full Bench after six months from today for making the decree nisi absolute as required under law. In view of it, is unnecessary to examine on merits as to whether the decree for dissolution requires to be confirmed. We answer point (iii) accordingly.
22. Though the facts of the said case are slightly different, the Full Bench arrived at a definite conclusion that though Section 10-A of the Act refers to District Court, there is no impediment or bar to the High Court in granting decree of divorce on mutual consent. Herein is a case where the wife is approaching this Court by filling O.P. on the ground that way back in 1984 by virtue of an agreement, wife and husband separated themselves. It is one thing to say that at the time of confirmation when an application to grant a decree for divorce on mutual consent is made the same has to be considered by this Court, it is yet another aspect to entertain original petition praying for divorce at the first instance without invoking the jurisdiction of the District Court.
23. No doubt on a careful analysis of the different provisions of the Act and the scheme of the Act, it cannot be said that this Court has no jurisdiction at all to entertain OP. of this nature but at the same time as a matter of practice and procedure, it is made clear that the parties normally have to approach the District Court to file such Original Petitions. It is one thing to say that this Court is having jurisdiction to entertain the Original Petition of this nature, it is yet another thing to say that in practice and procedure it would be always just and proper for a party to approach the District Court instead of approaching this Court straightaway.
24. In the light of the peculiar facts of this Court (sic. case), this Court is of the considered opinion that the exceptional circumstances pleaded definitely can be gone into even by District Court and hence as a matter of practice and procedure this Court is inclined to return the papers to the learned Counsel for the purpose of presenting the papers to the proper Court. Office to return the papers to the learned Counsel forthwith so as to enable him to present the same before the appropriate Court and it is needless to say that appropriate Court will entertain the same in accordance with law and dispose of the same at the earliest point of time in view of the urgency pleaded before this Court.
25. This petition is disposed of accordingly.