Bombay High Court
Mr. Anil Kumar Vasant Lokhande vs Mr. Purushottam Vinayak Sansare And ... on 12 January, 1993
Equivalent citations: (1994)96BOMLR373
JUDGMENT A.A. Halbe, J.
1. The important question which has been posed for determination in this appeal is whether the decree passed by the High Court in appeal, dissolving the marriage between the husband and wife, against the decree passed by the District Judge dismissing the claim for dissolution of marriage is decree nisi and is subject to Sections 16 and 17 of the Indian Divorce Act, 1869. The question has become important in view of the clear ratio laid down by the Full Bench of the Rangoon High Court in the case of Rev. Po Tun v. Na Chit and Anr. AIR 1938 Rangoon 204, wherein the High Court clearly laid down that a decree for dissolution of marriage made by the High Court under the Indian Divorce Act, either in its appellate or in its original jurisdiction, shall be decree nisi and not a decree subject to confirmation by the High Court under Section 17 of the said Act.
2. In view of the extensive arguments advanced on behalf of the parties it has become necessary to reconsider this view and ascertain as to whether this view of the scheme of the said Act. Whereas the learned advocate for the appellant has vehemently argued that this view is patently erroneous and deserves to be dissented from, the learned advocate for the respondent has urged that this is the view of the Full Bench of the High Court and that the reasons in support of that view appear to be wholly legitimate and need not be deviated from and that the same view should be taken in this matter and accordingly, the appeal should be dismissed.
3. The question arises as follows : The deceased Virbala Sumant Lokhande was married to Sumant Madhav Lokhande in the year 1964. However, on account of differences between husband and wife, Virbala filed petition for divorce against her husband being Marriage Petition No, 12 of 1968 in the District Court, Pune. The petition was dismissed by the District Judge, Pune and Virbala, therefore preferred appeal before the High Court of Bombay being Appeal No. 473 of 1970. The said divorce petition was filed on the allegations that Sumant - the husband - had indulged in adultery coupled with desertion for two years under Section 10 of the Divorce Act.
4. It may be stated that the parties were Indian Christians and were governed by the provisions of the Indian Divorce Act. The High Court allowed the appeal and ordered dissolution of marriage between these spouse upholding the allegations of the wife that the husband had indulged in adultery coupled with desertion for two years, as envisaged under Section 10 of the said Act reported in AIR 1974 Bom 279 Sumant Lokhande died on 20th March, 1974 at Pune. He was in service at Khadaki in Gurhi Depot Workshop. Virbala was the only legal heir. She was, therefore, entitled to family pension of Rs. 2,700/-; service gratuity of Rs. 9.600/- and G.P.F. of Rs. 8,400/- (in all Rs. 18,000). However, as Virbala fell sick, she executed a will dated 23rd April, 1974 in favour of her brother Purushottam Vinayak Sansare. Virbala died on 30th September, 1975 at Ahmednagar. By the will, she bequeathed all her personal properties as well as the assets comprising of pension etc. of her husband to her brother.
5. However, Anilkumar Vasant Lokhande, the nephew of deceased Sumant Madhav Lokhande, filed Misc. Applicant No. 449 of 1976/in the District Court, Pune for obtaining succession certificate, which was granted to him on 8th August, 1977. Purushottam Sansare, the brother of Virbala, therefore, challenged this issue of succession certificate on the ground that the marriage between Virbala and Sumant was not dissolved and the decree for divorce passed by the High Court was not confirmed. For this purpose, the applicant Purushottam Sansare filed Misc. Applicant No. 441 of 1977 in the Pune Court for setting aside the order of issue of succession certificate. It seems that the same was dismissed because Sansare had no locus standi to file the application in the absence of probate.
6. The petitioner Purushottam Vinayak Sansare, therefore, filed Misc. Application No, 202 of 1977 in the Court of Civil Judge, Senior Division. Nagar and contended that as the marriage between Virbala and Sumant was not dissolved, the petitioner was entitled to the assets of the deceased Sumant by virtue of the will executed by Virbala on 23rd April, 1975. This was resisted by Anilkumar Vasant Lokhande, the petitioner in succession certificate application No. 449 of 1976, on the ground that the will was false, that the petitioner Purushottam had no focus standi to file the application; that the marriage was dissolved in view of the judgment of the High Court in appeal and that the petitioner was not entitled to the assets of the deceased Sumant.
7. The learned trial Judge, after recording the evidence and considering the documents on record, found that Virbala had properly executed the will; that the marriage was not dissolved as the decree of the High Court was in the nature of decree nisi and not confirmed and hence the applicant Purushottam was entitled to the personal assets of Virbala and also the assets of the deceased Sumant. Accordingly, the learned trial Judge ordered that the probate together with the will annexed, of the deceased Virbala, should be issued in favour of the petitioner Purushottam Vinayak Sansare. Anilkumar was ordered to pay the costs of the suit.
8. Being aggrieved by the Judgment and decree, the appellant Anilkumar Vasant Lokhande has preferred that first appeal inter alia contending that the decree passed by the High Court itself was a final decree and was not a decree nisi; that the marriage between Virbala and Sumant was dissolved and that the petitioner was not entitled to any of the assets of the deceased Sumant and accordingly, the appeal should be allowed. He also contended that the will is a false will and hence the probate granted in favour of the petitioner was not legal and was liable to be revoked.
9. Now, taking the allegation that the will is not a valid will and that there are several circumstances which indicated that this was not the last legal will of deceased Virbala, I feel that no longer discussion is warranted. The learned trial Judge has discussed as to how the will is valid. The learned advocate for the appellant has contended that if one looks to the signature of the testator Virbala, it would be found that there are tremors in the signature of the testator and this should persuade the Court to hold that the will is not a properly executed valid will. On the other hand, the learned advocate for the respondent has contended that there is not a single suggestion to any of the witnesses examined on behalf of the petitioner that Virbala was not in a, fit mental condition to execute the will. Suggestions regarding tremors etc. would fall into insignificance if there is nothing on record to show that Virbala was not in a fit mental condition to execute the will.
10. I do find a lot of substance of this argument. One Bond writer by name Laxman Dagadu Kolhe has been examined at Exhibit 54. He has stated that the will, was scribed by him at the instance of Virbala. She expressed her desire to execute the will and bequeath the assets of the deceased Sumant in favour of her brother - the petitioner. Accordingly, Kolhe drafted the will and the same was confirmed by Virbala. Kolhe has stated that Virbala was in good condition, she was sitting and instructing him about the contents of the will and her physical condition was good. When he asked Virbala as to why she was making the will, Virbala told him that she was suffering from an incurable disease of Cancer. Virbala advised him not to register the will as it was optional. Kolhe has stoutly denied that Virbala's mental condition was totally depressed or that she looked frightened. Anil was absent at that time.
11. The other witness Kunte has also deposed that the will was properly executed. Even the petitioner subcribed to the validity of the will and as urged by the learned advocate for the respondent, the mental condition of Virbala was sound. There is nothing on record to show that Virbala was not in fit mental condition to execute this will in favour of the petitioner. The discussion appearing in the judgment of the learned trial Judge is quite proper. No circumstances are seen on record to discard the finding of the trial Court and I, therefore, hold that the will at Exhibit 53 is the last will. of deceased Virbala and it is valid and operative.
12. However, the second question which needs an elaborate consideration is whether the decree of divorce passed by the High Court in appeal against dismissal of the petition by Virbala is decree nisi. If it is decree nisi, then the position of law is very clear, as is enunciated in the judgment of the Andhra Pradesh High Court reported in the case of Vempa Sunanda v. Vempa - Venkata Subbarao AIR 1957 AP 424. The Court held that the decree nistis only a conditional decree. It does not change the status of the parties. The parties continue as husband and wife till the decree is made absolute. This being the non-controverted provision, if the decree passed in this case by the High Court is decree nisi the petitioner - brother of the deceased Virbala is entitled to succeed to the estate of the deceased Lokhande. But if the said decree is not decree nisi but a final decree, the petitioner Sansare will not be entitled to the estate of the deceased although he may be entitled to the personal effects and assets of the deceased Virbala.
13. The learned advocate for the appellant has drawn my attention to the scheme of the Indian Divorce Act and also to the relevant rules of the Bombay High Court on appellate side as well as the relevant rules of the Bombay High Court on original side. He has stated that the Indian Divorce Act deals with the various aspects of the marriage between Christians namely dissolution of marriage, nullity of marriage, judicial separation etc. According to him, Part III of the Act, commencing from Section 10 to Section 17A, relates solely to the original jurisdiction of the High Court because the word used is 'suit' which means a suit filed before the original Court, as is provided in Sections 9 and 10, and other relevant provisions relating to the suit under the Code of Civil Procedure. Relying on Section 45 of the Act, he has stated that all the proceedings under the Divorce Act shall be regulated by the Code of Civil Procedure as Sections 55 and 56 of the said Act provide for application of the provisions of appeal to the proceedings under the Indian Divorce Act.
14. Virbala filed the petition in District Court on the ground that Sumant had indulged in adultery coupled with desertion without reasonable excuse for two years. The trial Court examined the aspects regarding the allegations and found that Virbala had failed to prove adultery as well as the desertion and accordingly, dismissed the petition. But the High Court in the above appeal found that Virbala had made out a case of desertion and adultery and accordingly, allowed the appeal and declared by decree that the marriage between the husband and wife was dissolved under Section 10 of the Act. According to him. Sections 16 and 17 cannot be pressed into service because Section 16 deals with the original proceedings before the High Court whereas Section 17 relates to the confirmation of decree for dissolution of marriage passed by the District Court. Both these provisions relate to the decree for dissolution of marriage either by the High Court or the District Court but those provisions do not relate to the dissolution decree passed by the High Court in appeal. In appeal, the entire evidence is reappreciated, scrutinised and hence the question of decree being decree nisi would not at all arise. It is a final decree in appeal under Order XLI of the Code of Civil Procedure.
15. He has further contended that the Section 14 relates to the powers of the Court to pronounce decree for dissolution of marriage, which shall be subject to limitations in Sections 16 and 17 of the Act. He has further drawn my attention to Section 13 of the Act and has contended that the said Act provides for the petition by one spouse to the High Court even if a similar petition of that spouse is dismissed by the District Court. This provision, according to him, is in total conflict with the principle of res judicata. However, this aspect is not challenged on that count but it is suggested that this provision also does not provide for only an appeal to be preferred to the High Court against the dismissal of the petition for dissolution. The High Court exercise the concurrent Jurisdiction and may disassociate itself from the decree of dismissal and may pass the decree for dissolution. The pertinent condition is that when the petition is filed to the High Court in spite of dismissal of similar petition by the District Court, the High Court is empowered to consider the question afresh by getting the evidence adduced from both the spouses.
16. Section 14, as indicated, also relates to the original jurisdiction of the Court because it starts with "The Court being satisfied with the evidence on record adduced by the parties." It also relates to the decree for dissolution of marriage and there is nothing that relates to the decree for dissolution which is passed in appeal. Section 17, according to him, is altogether a distinct section which relates to the confirmation of decree for dissolution of marriage passed by District Court. The Bench of 2 or 3 Judges of the High Court has to confirm the decree. The High Court is empowered to take into consideration additional evidence which it may direct to the District Judge to record.
17. As against this, the learned Advocate for the respondent has contended that Section 16 is a comprehensive section. It includes the decree of dissolution passed by the high Court for the first time even in appeal. It may be either in appeal or in a suit before it. All the provisions of the Statute should be interpreted harmoniously and when the scheme of the Act is such that care has to be taken while passing the decree of dissolution, the matter has to be considered by the same Court at the later stage of confirmation. Dissolution of marriage is discouraged under the Divorce Act and that is why two stage scrutiny of the decree for dissolution is incorporated in Sections 16 and 17 of the Act. The first decree is decree nisi and the second decree on confirmation is final. This proposition is supported by the above view of the Rangoon High Court.
18. Now in order to appreciate these rival arguments, the scheme of the Act may be considered. In that Act, the High Court is defined in Section 3, Sub-section(l) whereas District Judge is defined in Section 3, Sub-section (2). Sub-section (3) of Section 3 relates to the District Court presided over by the District Judge within the local limits of whose ordinary jurisdiction the husband and wife reside or last resided together. Sub-section (4) of Section 3 relates to the Court, which means the High Court or the District Court, as the case may be. This would, therefore, show that so far as divorce petitions are concerned under the Act, both the High Court and District Court appear to stand on same footing while deciding the petitions on the original side. Section 4 provides that both the High Court and the District Court can exercise the jurisdiction under the Act and that the matrimonial jurisdiction of the High Court is subject to the provisions of the Indian Divorce Act.
19. Section 5 reads that any decree or order of the former Supreme Court of Judicature of Calcutta, Madras and Bombay sitting on the ecclesiastical side or any of the said High Court sitting in exercise of their matrimonial jurisdiction in any matrimonial matter may be enforced and dealt with by the said High Court respectively in a like manner as if such decree or order has been originally made by the Court so enforcing or dealing with the same. Under Section 8, the High Court is empowered to remove any matter from the District Judge and transfer it to other District Judge for disposal according to law. These provisions indicate that both High Court and District Court have original civil jurisdiction to try the petition for dissolution of marriage.
20. Coming to the provisions in Chapter III about dissolution of marriage, it is pertinent to note that the wife can file a suit for dissolution of marriage on the ground of adultery coupled with desertion without reasonable excuse for a period of two years. Section 13 is to the effect that if the Court finds that the allegation regarding adultery has not been proved or that the petitioner had access or that the petition is presented in collusion, the Court may dismiss the petition. The proviso is relevant and the same is that -
When a petition is dismissed by the District Court under Section 12, the petitioner may, nevertheless, present a similar petition to the High Court.
21. This would show that both the District Court as well as the High Court can entertain the similar application for dissolution of marriage. If the District Court dismisses the application the High Court can very well consider the same independently of the decision of the District Court. This provision if construed in correct perspective, would mean that the petition can be filed on the original side of the High Court even if the same has been dismissed by the District Court and it will have to be observed that this would be an independent petition to High Court and High Court will have to decide it independently of the evidence as well as findings of the District Court, which has dismissed the petition. Section 14 is about the powers of the Court to pronounce decree for dissolution of marriage. If the Court is satisfied by evidence that the petitioner was not in accessory to or conniving at the adultery etc., that the petitioner did not collude with the other party, the Court can pronounce a decree for dissolution of marriage, subject of course to the provisions of Sections 16 and 17 of the Act.
22. Section 13 has unusual tenor because the same party seeking dissolution can approach the District Court for dissolution of marriage and then to the High Court, if District Court dismisses the petition. Indirectly, therefore, it appears that a party would not ordinarily avail of the remedy of appeal when it can present same petition to the High Court and get an opportunity of fresh trial and added right of confirmation.
23. Section 15 is about the relief in case of opposition on certain grounds. The said provision is not relevant for this matter but the next and important section is Section 16, which is as follows:
Section 16 - Every decree for a 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.
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 direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or 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 cost 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 has 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, High Court may dismiss the suit.
24. My attention is drawn to the last clause of the said section and it is to the effect that :
Whenever a decree nisi has been made and the petitioner fails, within a reasonable time to move to have such decree made absolute. High Court may dismiss the suit.
It would manifest that Section 16 distinguishes petition before the High Court and confirmation proceedings before the High Court on a decree passed by the District Court for dissolution of marriage. This would, therefore, clearly show that under Section 16, the proceedings about dissolution of marriage are the proceedings on original side. The High Court is a trial Court and this position is reaffirmed by the fact that the High Court would dismiss the suit if decree nisi is not confirmed within a reasonable time.
25. It would be also necessary to observe that during the period between the decree nisi and final decree, if the High Court finds that the decree nisi has been obtained by collusion or by reason of material facts not brought on record, the High Court can reverse the decree nisi or may require further enquiry, as the justice may demand. It is also necessary to emphasise that the High Court could order payment of costs of the Counsel and the witnesses and this would again raffirm the conclusion that Section 16 solely relates to the original jurisdiction of the High Court and if that be so, it will have to be stated that Section 16 of the Act, by no stretch of imagination, can connote a decree for dissolution of marriage by the High Court in appeal against the dismissal of petition for dissolution passed by the District Court. The decree passed by the District Judge about dissolution of marriage has to be confirmed by the High Court only under Section 17 and there is no other provision which provides for confirmation of the decree passed by District Judge.
26. Justice Manchanda, in his book, The Law and Practice of Divorce, 4th Edition on page 125 commentary under Section 16 of the Indian Divorce Act- has commented that Section 16 applies to the proceedings instituted in the High Court under its original matrimonial jurisdiction. These observations have been derived from 43 Indian Cases, page 519, Lower Burmah High Court in the case of M.A. Wang v. Ibrahim. The Court observed that under Section 16 of the Indian Divorce Act, a decree nisi can be pronounced only by a High Court. (Full Bench decision) in that case, Divisional Court passed decree nisi for dissolution of marriage and forwarded it for confirmation to the High Court.
27. The other important fact which needs to be queried is whether there is discrimination against the party, it is construed that the decree passed in appeal is not decree nisi, because under Section 16, the decree for dissolution can be reversed in case the same has been obtained by collusion or by concealment of material facts. This query can be replied in short by observing that the sub-clause of Section 16 would not come into force at all when the High Court in appeal sets aside the order of dismissal of the petition and allows dissolution because that cannot be in collusion or by concealment of material facts. The High Court in appeal shall have to consider the matter afresh and take into consideration the entire evidence including documents on record and come to the conclusion that the decree of dismissal is not proper and that the decree for dissolution of marriage is warranted in view of the satisfactory evidence under Section 10 of the Act. It has, therefore, been rightly suggested by the learned Advocate for the appellant that the sub-clause of Section 16 cannot be availed of by the respondents in this case. They are the sub-clauses which emanate from the decree for dissolution of marriage and not decree of dismissal of the petition for dissolution of marriage. There is no question of the parties colluding to get the decree for dissolution passed by the District Judge or even by the High Court, as contemplated under Section 16 of the Act. There is also no question of material facts being kept behind and in that light of the matter, Section 16 shall have to be construed as one which provides for the trial of the petition by the High Court and not confirmation of a decree of the District Court. The wording of Section 17 is that every decree for dissolution of marriage by the District Judge shall be subject to confirmation by the High Court. Two or three Judges of the High Court can confirm the decree subject to the guidelines provided in Section 17.
28. The other relevant provisions are Sections 45, 55 and 56. As indicated, Section 45 provides for the application of Code of Civil Procedure to the proceedings under the Divorce Act. Section 55 relates to the appeal against the decree and orders passed by the Court in any suit or proceedings under the Act. The Provision to Section 55 provides that there shall be no appeal from a decree of the District Judge for dissolution of marriage or nullity of marriage. This would impliedly mean that the appeal can certainly lie against the decree of the District Judge dismissing the claim for dissolution of marriage and what comes before the High Court is decree of dismissal in a petition for dissolution of marriage and as indicated, the High Court is competent to set aside the dismissal and declare the dissolution.
29. Section 56 is also important, when it speaks that any person may appeal to the Supreme Court from any decree other than decree nisi of High Court made an appeal or otherwise. It would be seen that the appellate jurisdiction of the High Court exists independently of the original jurisdiction of the High Court and if that be so, it cannot be said that the decree passed in appeal is a decree nisi under Order XXI of the Civil Procedure Code. It cannot be lost sight of that the High Court would go in details against the dismissal of the petition and the requisite care about ordering the dissolution shall be deemed to have been observed in the appellate jurisdiction. Any other interpretation making the decree as nisi in face of the specific wording of Section 16 or 17 would amount to supplying guidelines which would not be the function of the High Court. It cannot be read in Section 16 nor can it be construed in the said provision that the decree for dissolution of marriage passed by the High Court in the first instance should be construed to mean that the decree of dissolution of marriage passed by the High Court against the dismissal by the District Judge is the first decree for dissolution and that it should be a decree nisi under Section 16 of the Act.
30. While interpreting the statute, it has been consistently observed that while considering the statute, it is very useful to adhere to the ordinary meaning of the words and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further. The inconvenience should be order on absurdity.
31. Bindra, in his Interpretation of Statutes, has observed :
Casus omissus is a point or case unprovided for. When a given state of affairs does not come within the obvious meaning of the words of the statute, that is, when certain contingencies are not provided for, or when the words do not embrace the particular question in hand, it is case of casus omissus. We are entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A casus omissus should not be readily inferred. In trying to solve a difficulty, Courts must not proceed as mere grammarians of the written law but must search for the true intention of the legislature. But the intention of the legislature is not to be judged by what is in its mind but by its expression of that mind in the relevant statute itself. The only repository of a legislature's intention is the language it has used and in examining that language, it must be presumed that the legislature knows the accepted vocabulary of legislative bodies and so knows what words are required and considered apt to effect a particular result. If it has not made a provision or used words from which is a particular result can properly be found, Courts will not be justified in finding it, simply because a contrary decision would cause hardship to public.
The Courts cannot venture upon the dangerous path of judicial legislation to supuly omissions or remedy defects in matters committed to a co-ordinate branch of the Government. It is far better to wait for necessary corrections by those authorised to make them or in fact for them to remain unmade, however desirable they may be, than for judicial tribunals to transcend the just limits of their constitutional powers.
It is not permissible to create casus omissus by interpretation save in some cases of strong necessity.
Whether the omission is international or in advertent is no concern of the Court and a casus omissus cannot be supplied by Court of law. The omission can only be supplied by statute or statutory action. The Court cannot put into the Act words which are not expressed and which cannot reasonably be implied on any recognised principles of construction. That would be a work of legislation not of construction and outside the province of the Court. A Court of law can have no warrant for interpreting a statute on the basis of certain words which are not to be found there.
Omissions are not to be lightly inferred to read words in a statute unless clear reason for it is found within the four corners of the Act itself or unless it is necessary to do so to give the language sense and meaning in its context.
32. In view of the above observations, it will have to be said that the decree passed by the High Court dissolving the marriage, in appeal against the dismissal of the claim by the District Court is a final decree and cannot be deemed to be a decree nisi. Neither Section 16 nor Section 17 of the Act can be construed to mean that the decree passed in appeal is the first decree and, therefore, the decree nisi. It would be necessary to observe that the Rangoon High Court, in the above ruling, has observed that it would not be proper to construe that Section 16 applies only to the High Court in exercise of the original civil jurisdiction because that would be ignoring a fact that only four High Courts in India and Burma have original civil jurisdiction. If the legislature had intended to do so, it would have provided specifically in that behalf.
33. I am afraid that this observation cannot be accepted in view of the fact that the Letters Patent Act is of 1862 and the Chapter so far as the Bombay High Court are concerned was handed down in 1-865 before the Indian Divorce Act, 1869 came into force. It cannot be said that the Parliament was unaware of it or that Her Majesty's Government was not aware of this. It is precisely because as four chartered High Courts were empowered to try the matters in original jurisdiction, if became necessary to enact Section 16 of the Act. Chapter 45 of the Original Side Rules does not contain the rules under Sections 16 and 17 of the Act meaning thereby that no decree nisi is envisaged in the actions of the High Court passing decrees in the appellate jurisdiction., Similarly in Chapter 18 of the Appellate Side Rules, there are provisions about confirmation of the decree for dissolution of marriage passed by the District Judge. These rules do not provide for any eventuality arising out of decree for dissolution passed in appeal and as indicated, it cannot be interpreted that Section 16 covers this eventuality. As a matter of fact, Section 56 provides distinctly for the decree passed by the High Court in appeal other than the decree nisi.
34. Similarly the argument on behalf of the learned Advocate for the respondent that decree nisi has to put for confirmation before the Bench of 2 or 3 High Court Judges would also pale into insignificance if the judgment of the Sind High Court in the case of Wiilliam Knox Hewson v. Mrs. Lilian Mary Hewson AIR 1947 Sind 18, is taken into consideration. According to that ratio, a decree passed by the High Court in its original jurisdiction by Single Bench has to be confirmed by that Judge and not Bench of Judges as mentioned in Section 17. On the other hand, an appeal referred from the decree of the Court of the first instance requires rehearing of the whole suit, as if litigated against the Court of appeal and the final decree in appeal to be the final decree of the suit, even if it is subject to variation. As indicated, the High Court in the above ruling was pleased to set aside the dismissal and ordered the dissolution of marriage.
35. The learned Advocate for the respondent has contended that the observations in the judgment about the final payment of alimony subject to confirmation of decree under Section 37 of the Act would mean that the decree passed in appeal was a decree nisi. I am afraid that this observation would not bar the consideration of the provisions of Divorce Act. The above point about decree in appeal being final was not pressed in that appeal and, therefore, the Court was not required to decide that question. The only deducible ratio is that the High Court in appeal could pass the decree for dissolution of marriage.
36. Even if the problem is reviewed from another angle, it would be found that no deadlock is created by adopting the interpretation as suggested above. The High Court sitting in appeal is duty bound and presumed to have done so on the detailed consideration of the evidence adduced before the trial Court and arrive at a conclusion other than one recorded by the District Judge. There is, therefore, a safeguard provided in appeal for passing the decree of dissolution without the same being required to be confirmed by the same Court.
37. For all those reasons, it will have to be held that the view taken by the Rangoon High Court cannot be accepted and has to be respectfully dissented from. The arguments similar to those advanced here do not seem to have advanced before the Rangoon High Court. The High Court, therefore, was not required to consider all the ramifications of Sections 16 and 17 and hence it will have to be observed that the decree in appeal passed by the High Court is not a decree nisi. It is a final decree which terminates the relationship between husband and wife and in that light of the matter, the appeal shall have to be allowed to that extent. The petitioner, brother of the deceased Virbala, shall not be entitled to the assets of the deceased Sumant Lokhande. Accordingly, the following order.
38. The appeal is partly allowed and it is hereby declared that the assets of the deceased Sumant Lokhande shall be excluded from the probate together with the Will of Virbala and the petitioner Purushottam Sansare shall be entitled only to the assets and effects of the deceased Virbala. In the circumstances, the parties shall bear their own costs.