Bombay High Court
Maria Sera Pinto vs Milton Dias on 25 August, 2000
Equivalent citations: 2001(1)BOMCR585, (2001)1BOMLR56, I(2002)DMC554, 2000(4)MHLJ633
Bench: B.N. Srikrishna, Ranjana Desai
JUDGMENT
1. These petitions have been placed before us at the direction of the Hon'ble Chief Justice for a decision as to whether the procedure contemplated under Section 16 of the Indian Divorce Act, 1869 of confirmation of a decree nisi made by the High Court on its original side is still required in view of the coming into force of the Family Courts Act, 1984. The present petitions are all petitions filed under section 10 of the Indian Divorce Act, 1869 for dissolution of the marriage on different grounds. In each of these petitions a decree nisi has been made by a learned Single Judge of this Court in exercise of the matrimonial Jurisdiction of this Court. These decree nisi are required to be confirmed by virtue of provisions in section 16 of the Indian Divorce Act. We are informed that there are about 200 other similar matters where decree nisi has already been made by a learned Single Judge of this Court in exercise of powers under section 16 of the Indian Divorce Act, 1869. It is not necessary to discuss the facts giving rise to these petitions to decide the question referred to us. We shall refer to the facts of M. J. Petition No. 4543 of 1999 as a typical case.
2. In M. J. Petition No. 4543 of 1999 the parties are both Christians who were married in accordance with Christian rites at the St. Anthony's Church. Vakola, Mumbai on 29th October, 1983. After marriage, the parties resided at Dahisar. There is one female issue out of the marriage. The petition was presented on 31st July, 1999 invoking section 10 of the Indian Divorce Act alleging adultery on the part of the respondent-husband. This petition was tried and a decree nisi was made on 10th March, 2000. This decree nisi is required to be confirmed under section 16 of the Indian Divorce Act within a period of six months therefrom.
3. The Indian Divorce Act, 1869 is applicable where both parties are Christians. Section 10 enables either party to present a petition for dissolution of the marriage on the grounds mentioned therein. Though, as originally enacted, the grounds available to the wife for dissolution were somewhat cumbersome and onerous, as a result of the Judgment of this Court in Pragati Varghese & Ors. v. Cyril George Varghese & Ors., it has been held that the provision of Section 10, in so far as they impose a restrictive condition on the wife requiring her to plead and prove an additional ground of adultery, is unconstitutional and ultra vires Articles 14, 15 and 21 of the Constitution of India and these restrictive conditions were struck down. Thus, after the judgment in Pragati Varghese & Ors. (supra) it became permissible for the wife to petition the Court for dissolution of the marriage on the ground of bigamy, adultery, cruelty or desertion.
4. Sections 16 and 17 of the Indian Divorce Act, 1869 are relevant for our purpose and they read as under :
"16. Decrees for dissolution to be nisi. - Every decree for dissolution of marriage made by a High Court not being a confirmation of a decree of a District 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.
Collusion. - During that period any person shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the Court.
On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand.
The High Court may order the costs of Counsel and witnesses and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property.
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."
17. Confirmation of decree for dissolution by District Judge .- Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.
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, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges, and in case of difference the opinion of the Senior Judge shall prevail.
The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon, make an order confirming decree for dissolution of marriage, or such other order as to the Court seems fit :
Provided that no decree shall be confirmed under this 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.
During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or 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 High 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."
Thus, in the case of an order of dissolution of the marriage made under section 10, the Court (whether it is a District Court or the High Court) has to make a decree nisi in the first instance, which is required to be confirmed within the period prescribed under Section 17, if it is a decree nisi made by the District Judge, it is subject to confirmation by the High Court under Section 17 by a Special Bench of three Judges of this Court. If the decree nisi is made by the High Court under Section 16, it is required to be made absolute after the expiration of at least six months from the pronouncement thereof by a Single Judge of this Court on the original side. This was the procedure applicable and consistently followed under the Indian Divorce Act for dissolution of Christian marriages until a sea change was made in the law by the coming into force of the Family Courts Act, 1984.
5. The Family Courts Act, 1984 was enacted to provide for the establishment of Family Courts "with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith." as indicated in the preamble of the Act. A separate forum known as Family Court, with facilities for expert advice on matrimonial matters from marriage counsellors, and with emphasis on the conciliatory process more than adjudicatory process, was set up under this Act. Simultaneously with the setting up of the Family Courts, Parliament thought that the jurisdiction of the Civil Courts in matters which would legitimately fall within the province of the Family Court, needed to be curtailed. Consequently, Section 8 of the Family Courts Act provides that where a Family Court has been established for any area, no District Court or subordinate Civil Court referred to in section 7(1) shall exercise jurisdiction in respect of any suit or proceedings of the nature referred to in the explanation of that sub-section. Further, clause (c) of section 8 provides that all such suits which were pending before the District Court or Civil Court immediately before the establishment of such Family Courts, and which are required to be initiated in the Family Court upon the Family Courts being established, shall stand transferred to the Family Court on the date on which such Family Court is established. Consequent upon the Family Court Act coming into force, all matrimonial matters which were dealt with by the City Civil Court in the City of Bombay were automatically transferred to the Family Court and the Family Court has been dealing with such matters.
6. There was however some doubt entertained as to whether the Family Court Act made an inroad into the original jurisdiction of this Court Lo entertain matrimonial cases. Different Single Judges had taken conflicting views. The matter came up before a Division Bench of this Court in Kanak Vinod Mehta v. Vinod Dulerai Mehta,. The Division Bench to which one of us (Srikrishna, J.) was a party, took the view that though the area within which the High Court exercises original jurisdiction is a District Court, a High Court is not a District Court for it also exercises jurisdiction on its appellate side, not only over that district but over the entire State. The Division Bench of this Court in Kanak Mehta's case followed the view of the Full Bench of the Madras High Court in Mary Thomas v. K. E. Thomas, on the principle that the Family Courts Act being a Central Act, if one High Court had taken a particular view, other High Courts should normally follow the same view. Consequently, the Division Bench of this Court in Kanak Mehta's case held that, notwithstanding the coming into force of the Family Courts Act and the establishment of the Family Courts, the High Court on its original side would not cease to have jurisdiction in regard to the categories of suits and proceedings mentioned in the Explanation to sub-section (1) of section. This law was being followed on the original side of this Court until the view of the Division Bench itself came to be called into question before a Full Bench of this Court.
7. In Romila Jaidev Shroff v. Jaidev Rajnikant Shroff, a Full Bench of this Court (to which one of us, Smt. Ranjana Desai, J. was a party) in its judgment in Notice of Motion No. 3254 of 1999 in Suit No. 5885 of 1999 decided on 5th May , 2000 (Per N. J. Pandya, Smt. Ranjana Desai and V. C. Daga, JJ.) disagreed with the view of the Division Bench in Kanak Mehta's case and categorically laid down that when the High Court exercises its powers on the original side, the High Court really acts "as a District Court" within the meaning of the Civil Procedure Code as also within the meaning of the term as used in the Family Court Act, 1984. The Full Bench of our High Court in Romila Jaidev Shroff's case disagreed with the view expressed by the Full Bench of the Madras High Court in Mary Thomas's case (supra) by relying on the view expressed by the Supreme Court in Raja Soap Factory and Ors. v. S. P. Shantharaj and Ors., The Full Bench also emphasised that Section 20 of the Family Courts Act has an overriding effect and overrides anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the said Act. The Full Bench pointed out that a High Court exercises original jurisdiction in matrimonial cases on the original side only by virtue of the Letters Patent and in the view of the Full Bench, Letters Patent was an instrument included in expression "any law for the time being in force" or "an instrument having effect by virtue of law" which was overridden by section 20. Thus, the Full Bench concluded :
"..... in our opinion, the conclusion would be inescapable that when the High Court exercises its Ordinary Original Civil Jurisdiction in relation to the matters under the Family Courts Act. It would be a District Court as understood therein. It would, therefore, lose its jurisdiction."
In the view of the Full Bench, after coming into force of the Family Courts Act, 1984 and establishment of the Family Court for Mumbai Area, a High Court would completely lose its jurisdiction by virtue of the provisions of Sections 7 and 8 read with Section 20 of the Family Courts Act, 1984 and that, by virtue of clause (c) of sub-section (1) of Section 8, all the matrimonial matters pending before the High Court on the Original Side shall stand transferred to the Family Court for hearing and disposal in accordance with the provisions of the said Act.
8. The peculiar problem that has arisen today before us was not apparently presented to the Full Bench as otherwise the Full Bench might have resolved that issue also. The problem arises only in the case of matrimonial jurisdiction exercised by this Court under the provisions of the Indian Divorce Act, 1869. As we have already pointed out, dissolution of a marriage under the Indian Divorce Act is a two step procedure - first, there is a decree nisi and, second, a decree nisi is either made absolute by the High Court, itself or confirmed by the High Court depending whether the decree nisi was passed by a Single Judge of this Court or by a District Court. For a period of about nine years (from 27.2.1991 on which date Kanak Mehta's was decided till 5.5.2000 when Romila's case was decided) this Court continued to exercise jurisdiction in matrimonial cases arising under the Indian Divorce Act, 1869. A number of petitions were tried and decrees nisi for dissolution were made. While these were pending confirmation by the High Court, the judgment of the Full Bench in Romila's case came in and the situation under taw was drastically changed. For about nine years, the litigants, lawyers (and Judges too) considered themselves bound by the law laid down by the Division Bench of this Court in Kanak Mehta's case. Consequently, the view taken was that the jurisdiction under the Indian Divorce Act, 1869 was exercisable by the High Court on the original side. It is only as a result of the judgment in Romila's case, from 5th May, 2000, that the law has been given a different meaning.
9. The question that confronts us is : whether, in a situation like this, we must hold that the Full Bench has merely interpreted the provisions of the Family Courts Act, 1984 and that view taken by the Full Bench would be the law with effect from 1984 when the said Act came into force? Though our first instinct was to say so, on deeper reflection we are satisfied that taking such a view would cause great prejudice, inconvenience and injustice to the parties in the 200 petitions, which are almost over, by sending them to the Family Court for further trial and disposal in accordance with the Family Courts Act. Three considerations prompt us to take the view that the law laid down by the Full Bench in Romila's case must be deemed to have been brought into prospectively. First, whether the view taken by the Full Bench amounted to prospective overruling or had to be applied retrospectively was neither canvassed before the Full Bench nor adverted to and decided. The life of law is not logic, but convenience, as Holmes pointed out. We must, therefore, interpret the law in such a manner that it causes least inconvenience to innocent parties. Second, in any event, during the period between 1991 to 2000 the judgment which held the field was Kanak Mehta's case and that was the law which was being followed by the litigants, Advocates and Judges. We see no reason or compulsion to totally upset that view at this distant point of time and cause inconvenience to innocent parties. Third, the number of cases to be dealt with is limited, being about 200, once they have been disposed of, there is no question of further cases arising now in view of the clear pronouncement of law by the Full Bench in Romila's case.
10. Keeping in mind all these three considerations, we are of the view that during the period when Kanak Mehta's case held the field, the jurisdiction was rightly exercised by this Court on the original side and proceedings taken thereunder and decrees nisi made would have to be held valid and binding on parties. Once we accept this position, then it is clear that the decrees of dissolution already made prior to the Judgment in Romila's case would have to be made absolute in accordance with the provisions of Section 16 of the Indian Divorce Act. 1869. If the proceedings were pending at a stage prior to the making the decree nisi, then there is no difficulty in holding that those proceedings shall stand transferred to the Family Court and be disposed of in accordance with the said Act.
11. Our attention is drawn by Ms. Agnes to the judgment of Karnataka High Court in Joseph Varghese Cheeran v. Smt. Rosy Kurian Kannaikai,. The Division Bench of the Karnataka High Court was concerned there with a similar dilemma pursuant to the coming into force of the Family Court Act. A decree for dissolution of the marriage was rendered by the Family Court in exercise of its power under the Family Court Act. An appeal was carried there against under section 19 to the High Court of Karnataka. Simultaneously, the Family Court also made a reference for confirmation of the decrees granted under section 17 of the Indian Divorce Act. Considering the situation in its entirely, the Karnataka High Court was of a view that once the decree of dissolution of the marriage was made under the Family Court Act, it could only be further processed in accordance with the procedure prescribed under the said Act and not in accordance with the procedure under the Indian Divorce Act. 1869- Consequently, the High Court look the view that there was no necessity for a confirmation under section 17 of the Indian Divorce Act, 1869. Further, it was held that the appeal was perfectly maintainable under section 19 of the Family Court Act, 1984. As far as we are concerned, the situation is the converse. It is also not so simple for historical reasons which we have already indicated. None of the proceedings under the Indian Divorce Act, 1869 which were pending before this Court was legally held transferable to the Family Court for a period of nine years from 1991 (Kanak Mehta) to 2000 (Romila). Thus, though we respectfully concur with the view expressed by the Division Bench of the Karnataka High Court that once the proceedings are transferred to the Family Court, it alone shall have jurisdiction to deal with and all further proceedings shall be governed by the provisions of the Family Courts Act alone, this view by itself does not help us in resolution of the problem before us.
12. In arriving at our conclusion, we are also not unmindful of the criticism made by the Division Bench of this Court in Pragati Varghese's case about the cumbersome procedure under sections 16. 17 and 20 of the Indian Divorce Act and the recommendation made to the Legislature to do away with the cumbersome procedure by bringing a suitable amendment. We are also fortified in our view by the judgment of the Special Bench of the Calcutta High Court in Swapna Ghosh v. Sadananda Ghosh and Anr., The Calcutta High Court also criticised the incongruity of requirement of the confirmation of the decree and pointed out that this was cumbersome and it was high time that the Legislature stepped in to do away with the cumbersome procedure under the Indian Divorce Act. For one reason or the other, nothing has happened on the Legislative front. In our judgment, the view we propose to take, coupled with the fortuitous development in the Family Court Act, 1984 and its interpretation by the Full Bench in Pragati Varghese's case renders it unnecessary for the Legislature to act now. We are of the view that as from the date of the Romila's case all pending matters where a decree nisi has not been made by this Court are required to be transferred to the Family Court which alone shall exercise jurisdiction in those cases in accordance with the provisions of the Family Courts Act, 1984. Once this occurs, it is clear that there is no further question of confirmation of the decree by the Family Court. The anathema of sections 16, 17 and 20 of the Indian Divorce Act is automatically removed.
13. Our attention was also drawn by Ms. Agnes to Rules 818. 819 and 820 of the Rules and Forms of the High Court of Judicature at Bombay (O.S.) Rules. We are of the view that, except only in cases where the decrees nisi would have to be made absolute in accordance with the O.S. Rules 818, 819 and 820, there would be no further occasion for play of these Rules. Once the existing decrees nisi, which were already granted prior to the Judgment in Romila's case are dealt with and made absolute, rules 818. 819 and 820 would became dead letters to be excised on a future occasion by the High Court in exercise of its amendatory powers.
14. In conclusion, we hold as under :-
(a) All petitions under the Indian Divorce Act in which a decree nisi has already been made prior to the date of the Judgment of the Full Bench in Romila Jaidev Shroff (i.e. 5.5.2000), shall continue to be dealt with and disposed of in accordance with the provisions of Section 16 of the Indian Divorce Act by being placed before a learned Single Judge for being made absolute.
(b) All other petitions and proceedings which were at a stage prior to decree nisi, as on 5.5.2000, shall stand transferred automatically to the Family Court. The Family Court shall deal with such proceedings in accordance with the provisions of the Family Courts Act, 1984.
(c) In respect of matters which had arisen under the Indian Divorce Act, 1869 and stand transferred to the Family Court with effect from 5.5.2000, there shall be no need for the decree of the Family Court to be confirmed as contemplated under sections 17 and 20 of the Indian Divorce Act. The provisions of Section 19 of the Family Courts Act dealing with appeals shall be applicable to them also.
15. We accordingly, answer the Reference made to us as above. We direct that all petitions under the Indian Divorce Act pending before the Original Side of this Court be disposed of in accordance with the directions given above.
16. Parties to act on an ordinary copy of the judgment duly authenticated by the Court Associate.
17. Certified copy expedited.