Andhra HC (Pre-Telangana)
Amarthala Hemalatha vs Dasari Balu Rajendra Varaprasad on 5 March, 1990
Equivalent citations: AIR1990AP220, II(1991)DMC194, AIR 1990 ANDHRA PRADESH 220
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Jagannadha Rao, J.
This reference application has come before us under Section 17 of the Indian Divorce Act 1869 (hereinafter called the Act) for confirmation of the order of lower Court in regard to the dissolution of marriage between the petitioner and the respondent.
2. The petitioner before the learned District Judge was the wife and she filed the application under Sec. 14 of the Act for dissolution of the marriage between her and the respondent. It is averred in the petition that the petitioner and the respondent are Christians and have been married on 6-1-1975 at Eluru, that the husband deserted the petitioner and that he filed O.P. No. 88/82 under Section 22 of the Indian Divorce Act on 7-6-1982 seeking judicial separation. The Court granted a decree for judicial separation on 29-6-1984 in favour of the husband. Alleging that after the said decree the parties have never lived together, the wife has filed the present petition on 27-1-1987 for divorce. The respondent-husband filed a counter pleading no objection for the dissolution of marriage. The learned District Judge addressed himself to the question whether the marriage between the petitioner and the respondent is liable to be dissolved on the ground that the petitioner and the respondent have never cohabitated together after 29-6-1984 when the decree for judicial separation was passed. Divorce was granted by the learned District Judge on the ground that after the decree for judicial separation parties have not resumed cohabitation for more than two years. Obviously he applied the analogy under the Hindu Marriage Act, 1955. The matter has now come up before us for confirmation.
3. It is true that under Section 13(1)(A) of the Hindu Marriage Act 1955 as well as under Sec.27(1)(i) of the Special Marriage Act 1954 parties to the marriage become entitled to a decree for divorce if they have not resumed cohabitation for a specified period after the passing of a decree for judicial separation. We have to decide whether the Indian Divorce Act, 1869 contains any such provision and if it does not, whether S. 7 of the Act which permits recourse to certain principles of English law to be applied in India, permits the application of current English statute law in India..
4. The point therefore arises whether the matter arising under the Indian Divorce Act 1869 the District Court could pass a decree for divorce, subject to confirmation of the High Court, at the instance of the wife merely because there has not been resumption of cohabitation for more than two years after the husband obtained adecree for judicial separation?
5. As the parties were unrepresented we requested Sri C. Sadasiva Reddy to assist the Court as amicus curiae.
6. It will be noticed that under the Indian Divorce Act 1869 the grounds for divorce at the instance of the wife are not the same as the grounds for divorce at the instance of the husband. Section 10 of the Act which deals with the question of dissolution of marriage states that a husband may obtain divorce on the ground that the wife has been guilty of adultery. So far as the wife is concerned, the section says that she may seek divorce on the ground that the husband has exchanged his profession of Christianity for the profession of some other religion and had gone through a form of marriage with another woman, or has been guilty of incestuous adultery, or bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or beastiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mense et toro; or of adultery coupled with desertion, without reasonable cause for two years or upwards. The abovesaid provision shows that in case the wife seeks for dissolution she has necessarily to prove adultery under the verious clauses of Section 10 except in regard to the clause relating to change of religion by the husband. In case the abovesaid grounds are proved the Court has power, under Sec. 14, the promounce for dissolution of the marriage subject to confirmation of the High Court.
7. In a case where the wife does not allege change of religion and remarriage by the husband and is also unable to prove adultery in the manner mentioned in the various sub-clauses in Sec. 10, it is clear that the wife is not entitled to a decree for dissolution, but she is entitled to judicial separation, under S.22. The provision for judicial separation is contained in Sec. 22 of the Act. That section reads as follows:--
"Sec. 22. Bar to decree for divorce a mensa et toro, but judicial separation obtainable by husband or wife: No decree shall hereafter be made for a divorce a mensa et toro but the husband or wife may obtain a decree decree of judicial separation on the ground of adultery to cruelty or desertion without reasonable excuse for two years or upwards and such decree shall have the effect of a divorce a mensa et toro under the existing law and such other legal effect as hereinafter mentioned."
8. In the sections immediately following Sec. 22 we find the following consequences after judicial separation. Section 24 says that in every case of judicial separation under this Act, the wife shall, from the date of sentence and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire or which may come to or devolve upon her. Two other sub-clauses in the section again deal with property. Section 25 says that in every case of judicial separation under the Act, the wife shall, whilst so separated, be considered as an unmarried woman for the purposes of contract and wrongs and injuries and suing and being sued in any civil proceeding, and her husband shall not be liable in respect of any civil proceeding, and her husband shall not be liable in respect of any contract, act or costs entered into, done, omitted or incurred by her during the separation. There are two provisos to this section and they too do not provide for any decree for dissolution being passed in case of non-resumption of cohabitation for any specified period. Section 26 provides for a reversal of a decree of judicial separation on the ground that the same has been procured in his or her absence and that there is reasonable cause for the alleged desertion, where desertion is the ground for such divorce. In other words we do not find any provision in the Act which enables the wife or the husband to seek divorce in the same manner as is provided in the Hindu Marriage Act or the Special Marriage Act for non-resumption of cohabitation for a specified period after passing of a decree for judicial separation.
9. The question arises as to what is meant by a divorce a mensa et toro mentioned in one of the sub-clauses in Section 10 and also in Section 22 of the Act and as to what is the meaning of the words in Section 22 which enables a wife to obtain a decree for judicial separation, on the ground of adultery or cruelty or desertion without reasonable excuse for two years or upwards and in the statutory declaration that such decree "shall have the effect of a divorce a mensa et toro under the existing law and such other legal effect as hereinafter mentioned". It is here necessary to go into the historical backgrounds of the law relating to divorce in England.
10. In England from the middle of the 12th Century, the ecclesiastical courts were recognised as having exclusive jurisdiction in matter of marriage and divorce, as that term was then understood and since the Church of Rome was the supreme ecclesiastical authority in England, the ecclesiastical courts applied the canon law in matrimonial causes. Christian marriage was indissoluble, but divorce a mensa et thoro, in the nature of the present day judicial separation, that is divorce without right thereafter to marry another person while the former spouse still lives, was granted in certain causes. The Reformation of Henry VIII in the sixteenth century had no outstanding effect upon the jurisdiction or structure of the ecclesiastical courts. The country was divided into the provinces of Canterbury and York, and the Court of Arches in Canterbury and the Court of Chancery in York heard appeals from courts of first instance within the dioceses of their respective provinces; these courts of first instance were known as diocesan or consistory courts. There developed in course of time a method of divorce a vinculo matrimonii, that is divorce in its current meaning of dissolution with the right thereafter to marry another person while the former spouse still lives. This method was by private Act of Parliament, but the procedure was strict and cumbrous and only the rich could avail themselves of it. Such Divorce Acts were most numerous in the century and a half, preceding the enactment of the Matrimonial Causes Act 1857. During that period some 317 enactments were passed dissolving marriages.
11. After 1857, divorce meant dissolution of marriage with the right thereafter to marry another person while the former spouse was still living. Divorce by judicial process in England first came into operation in 1858 by vritue of the Matrimonial Causes Act, 1857. This Act perpetuated much of the old ecclesiastical law and practice with regard to nullity and judicial separation (divorce a mensa et thoro). A series of amending and supplemental Acts were consolidated in the Supreme Court of Judicature (Consolidation) Act 1925. The Matrimonial Causes Act 1937 introduced extensive new grounds for divorce, judicial separation and annulment of marriage, and also gave power to the court to pronounce a decree of presumption of death and dissolution of marriage. As far as divorce and nullity were concerned, the provisions of the Act of 1937 and the ecclesiastical law as to nullity remained in force until the coming into force of the Divorce Reform Act 1969 and the Nullity of Marriage Act 1971 and these Acts have been repealed by the Matrimonial Causes Act 1973. (see Halsbury's Laws of England, 4th Edition, 1975, paras 501, 502).
12. Under the present English law a person is not prevented from presenting a petition for a decree of divorce on the same facts or substantially the same facts as those on which a judicial separation or a Magistrates' Matrimonial Order or corresponding order has already been obtained under the Matrimonial Causes Act 1973. Where a petition for judicial separation has been presented within three years of the marriage, it is permissible to present a petition for divorce after expiration of that period alleging such of the facts as were alleged in the petition for judicial separation and no leave is required to do so. (ibid para 650).
13. However, the Indian Law of Divorce so far as Christians are concerned has remained stagnant since 1869. No provision has been introduced for permitting a wife to seek divorce, upon cessation of cohabitation for a specified period after a decree for judicial separation. All that Section 22 provides is that (Sic) if one of adultery or cruelty or desertion without reasonable cause for two years or upwards, alone are proved, the husband or wife may obtain only a decree of judicial separation. Such a decree shall have effect only of a divorce a mensa et toro under the then existing law. In other words, there is no right to marry another person while the former spouse still lives. Under Section 24 the wife is considered unmarried with respect to the property which she may acquire or which may come to or devolve upon her while under Sec. 25 she shall be considered as an unmarried woman for the purposes merely of contract and wrongs and injuries and for suing or being sued. The decree for judicial separation does not have any other effect and cannot lead to a decree for total dissolution of marriage while the former spouse lives. The Court below was, therefore, clearly wrong in. passing a decree for divorce subject to con-firmation of this Court as is contemplated under the Hindu Marriage Act and the Special Marriage Act.
14. A similar question arose before a Special Bench of the Madras High Court in T. M. Bashiam v. M. Victor, . There also there was a decree for judicial separation granted in favour of the wife against the husband under Section 22. The wife further alleged that after the said decree there is no resumption of cohabitation for four years and she therefore prays for grant of a decree nisi for dissolution of marriage. It was held that she could not obtain any such decree and that it was obligatory on her to secure a decree for dissolution of marriage under Sec. 10 only on the grounds mentioned in that section.
15. It is then argued that Sec. 7 of the Act enables the Court to resort to the provisions of the English law dealing with the grant of divorce after expiry of specified period during which there is no resumption of cohabitation.
It may be noted that earlier under the Matrimonial Causes Act 1950, in England a party could obtain diverge, if, for three years after the decree for judicial separation there had been no resumption of cohabitation between the wife and the husband. The said provisions have been further liberalised in the Matrimonial "Causes Act 1973 as stated above. But the question is whether Sec. 7 of the Act permits resort to the English law in relation to the obtaining a decree for divorce after a decree for judicial separation.
16. Section 7 of the Act states that the Courts in India have to act upon principles of English Divorce Court. The question arises whether this is referable to the procedural part of the English Law of the substantive English statute law. We shall refer to Section 7. It reads:
"Sec. 7 : Courts to act on Principles of English Divorce Court:-- Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceeding 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 the relief.
Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian Religion at the time of the occurrence of the facts on which the claim to relief is founded."
17. The abovesaid provision had been interpreted by different High Courts differently. A Division Bench of the Bombay High Court consisting of Chagla, C.J. and Tendolkar, J. in Ramesh Raman Lal v. Kusum Madgaokar, AIR 1949 Bom 1 had occasion to deal with Section 7. The learned Judges had to interpret the opening words of Section 7 'subject to the provisions contained in this Act' and observed that Section 7 dealt with matters of substantive law and not adjective law of England and also that as long as there is no prohibition in the Indian Divorce Act 1869 to grant relief, relief could be granted in accordance with the principles of English statute law as modified from time to time in England.
18. A Full Bench of the Madras High^ Court in Sumathi Ammal v. D. Paul, AIR 1936 Madras 324 consisting of Stone and Mockett, JJ. (Wadsworth, J. dissenting) reviewed the whole history of legislation and also considered the judgment of the Privy Council in Iswarayya v. Swarnam Iswarayya, AIR 1931 PC 234 and held that the effect of Sec. 7 was that not only principles and rules of law but also statutory provisions and statutory rules in force and in obligation (Sic) in the Courts for divorce or Matrimonial Causes in England, are to be applied while granting relief under the Indian law.
19. However, our Supreme Court has now held in Reynold Rajamani v. Union of India, that Sec. 7 does not have the effect of engrafting into the Indian law, the substantive grounds for divorce which are introduced into the English Statute Law from time to time. In the abovesaid case the parties sought to obtain consent divorce under Sec. 28 of the Special Marriage Act, but the District Judge, Delhi dismissed the application on the ground that the parties are governed by the Indian Divorce Act 1869 and not by the Special Marriage Act 1954. Thereafter the parties applied for permission to amend the joint petition to rely upon Sec. 7 of the Indian Divorce Act 1869 read with Sec. 1 (2) (d) of the Matrimonial Causes Act 1973 of England, which permitted such a divorce. They alleged that they had been living separately for more than two years and had not been able to live together and that their marriage has-broken down irretrievably and that therefore they were entitled to a decree for divorce by consent. The Supreme Court dismissed the petition holding that the parties were not entitled to rely on the provisions of the English statute. It was held that Sec. 7 of the Act did not entitle the parties to rely upon the corresponding statute in England as amended from time to time.
20. In view of the said decision of the Supreme Court, it is not permissible for the parties to seek dissolution of the marriage on grounds presently contained in the English statute law for divorce, such as non-resumption of cohabitation for a specified period subsequent to the passing of the decree for judicial separation. We are, therefore, unable to confirm the decree for dissolution as granted by the lower Court. We hold that it will be necessary for the wife to file a fresh petition and seek divorce only on the specified grounds mentioned in S. 10 of the Act. She may, therefore, pursue her remedies in accordance with law.
21. We thank Sri C. Sadasiva Reddi, Advocate, for helping the court in this matter at our request.
22. For the aforesaid reasons, we refuse to confirm the decree for dissolution of the marriage on the grounds mentioned in the O.P. but we however pass only a decree of Judicial separation. The petitioner may however pursue her remedies for divorce in accordance with S. 10 of the Act. The reference is disposed of accordingly.
Answer accordingly.