Law Commission Report
The Indian Divorce Act 1869
\CA_' LAW COMMISSION OF INDIA ONE HUNDRED SIXTY FOURTH REPORT ON THE INDIAN DIVORCE ACT (IV OF 1869) NOVEMBER, 1998 LAW COMMISSION OF INDIA SHASTRI BHAWAN NEW DELHI - 110 001 TEL.:338447S Refldencez 1,JANPATH NEW DELHI 1 10 011 TEL. I 3019465 JUSHCE B.RJEEVANREDDY ...Cha. .an, Law Covnnussmn 01 India ' 2 DO.N0.6(3)(50)/98-LC(LS) 18.11.1998 Dear Dr.M.Thambi Durai, I am sending herewith 164th report on "The Indian Divorce Act (IV of 1869)". 2. The subject was taken up by the Commission suo motu in view of the discriminatory provisions based on sex as appiicabie to the Christians in India, so as to make recommendations for removing anomaiies and ambiguities in the Taw. 3. It may be mentioned that the Law Commission had suggested comprehensive amendments to the Act in the Biii titied "The Christian Marriage and Matrimoniai Causes Biii, 1960" submitted aiongwith its 15th report. The Commission had aiso deait with this matter in its 22nd and 90th reports. The Commission is of the considered opinion that the recommendations made by it on the subject be impiemented expeditiousiy in the interest of sociai justice to the Christian community in India. with regards, Yours sincereiy, Z} /3 . (B.P.J§EVAN REDDY) Dr.M.Thambi Durai, Hon'b1e Minister for Law, Justice and Company Affairs, Shastri Bhawan, New Deihi. \c..,_,,,.u.. .. CHAPTER I CHAPTER II CHAPTER III CONTENTS INTRODUCTORY OBSERVATIONS OF VARIOUS HIGH COURTS RECOMMENDATIONS OF THE LAW COMMISSION FOOTNOTES AND REFERENCES PAGES 1-9 10-25 26-27 28-30 §I:iAEI_EB_l INIRODUQTORY 1.1 Significance of the/fAct and the need for revision: The Indian Divorce Act, 1869 was taken up by the Law Commission in pursuance of its terms of reference, which, inter aiia, empower the Commission to make recommendations for the removai of anomaiies, ambiguities and inequalities in the 1aw. The Act of 1869 is a centrai Act of considerabie importance to the Christian community. In view of the inequaiities pointed out in various judiciai decisions as discussed in the succeeding chapters, a review of the Act appears to b 11) badiy needed. 1.2 Scheme of the Act in brief:-- The Indian Divorce Act was enacted in the year 1869 "to amend the iaw 'eiating to divorce and matrimonial causes". Its appiication is confined to persons professing the Christian reiigion. Of course, it is enough even if one of the parties to the marriage professes Christian faith (see section 2). Section 10 sets out the grounds on which a decree for dissoiution of marriage can be made. According to section 14, such a decree for dissoiution can be granted by the "court", which expression is defined by ciause 4 of section 3 to mean the High Court or the District Court, as the case may be. Section 17, however, provides: "Every decree for a dissoiution of marriage made by a District Judge sha11 be subject to confirmation by the High Court. Cases for confirmation of a decree for dissoiution of marriage shaii 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 shaii prevaii, 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 shaii prevaii." Section 16 provides that where a decree for a dissoiution of marriage is made by the High Court (not being a confirmation of a decree of a District Court), it shaii, in the first instance, be a decree Qigi, not to be made absoiute tiii after the expiration of not iess than six months from the date of such decree. Section 20 provides that every decree of nuiiity made by a District Judge 1 shai: be subject to confirmation by the High Court in the manner provided by section 17. 1.3 isome discriminatory. anachronistic provisions of the Act:-- Section 10, which specifies the grounds for dissoiution of marriage reads as foiiowsz "10. when husband may petition for dissoiution. -- Any husband may present a petition to the District Court or to the High Court, praying that his his wife has,.since the been gui1ty of aduitery. when wife may petition for dissoiution. - soiemnization marriage may be diesoived on the ground that thereof, Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissoived on the ground that soiemnization thereof, since the her husband has exchanged his profession of Christainity for the profession of some other reiigion, and gone through a form of marriage with another woman; or has been guiity of incestuous aduitery, or of bigamy with adu1tery,' or of marriage with another woman with aduitery, or of rape, sodomy or bestiaiity, or of aduitery coupied with such crueity as without aduitery wouid have entitied her to a divorce a mensa et toro, or of aduitery coupied with desertion, without reasonabie excuse, for two years or 1.4 It may be emphasised even section 10 makes a ciear and invidious against the woman. upwards." at this stage that discrimination Whiie a man seeking disso1ution need prove oniy aduitery on the part of his wife, a wife is required to prove some other maritai offence to aduitery to be abie to obtain dissolution. in addition 1.4.1 In section 55 of the Indian Divorce Act, an appea1 has been provided against a decree made by the High Court as if it were a decree made in exercise of its origina1 civi1 jurisdiction which means that an appeai iies to a division bench against an order of the judge of a High Court granting a decree for dissoiution of marriage under section 16. 1.4.2 The Act was made more than 128 years ago. In view of its antiquated and discriminatory provisions, it has become an anachronism today. The Law Commission was seized of this probiem in the past and has been making repeated recommendations for a thorough review of the iaw and for enacting a new Act in its piace. 1.5 Previous Reports of the Commission and iater deve1ogments:-- The Law Commission had suggested comprehensive amendments to the Act in the Biii titied "The Christian Marriage and Matrimonial Causes Biii, 1960" submitted aiong with its 15th Report' whereby both husband and wife were given the right to seek dissoiution of marriage on aimost a11 grounds mentioned in the Speciai Marriage Act, 1954, inciuding the ground of :du1tery simpiiciter, crueity and desertion as per ciause 30 of the Biii. In ciause 31, the Law Commission also recommended that a provision be made for the grant of divorce if after a decree for judicial separation, cohabitation had not been resumed. on receipt of the 15th Report, the Government finalised a Bill on the lines suggested by the Law Commission and again referred the matter to the Law Commission for its views after inviting opinion from the public. Accordingly, the Law Commission after ascertaining public opinion submitted the 22nd Report? reiterating its earlier stand. Though on receipt of the 22nd Report, the Christian Marriage and Matrimonial Causes Bill, 1961 was introduced in the Parliament, the same lapsed on the dissolution of the Lok Sabha. It further appears from the counter-affidavit filed by the Union of India in Mary Sonia v. Union of India3 that after consulting the leaders of the Christian community, the Central Government had prepared another Bill called Christian Marriage Bill, 1994 but it is not clear why this has not been enacted by Parliament so far. The following extracts from the counter--afFidavit are relevant: "In view of the fact that owing to the strong opposition from certain segments of the Christian community, the earlier action of the Government of India for bringing in a comprehensive legislation relating to marriage and matrimonial causes of the Christian community could not be got enacted. Now we have, through the efforts of the Joint Women's Programme, a voluntary women's organisation, received comprehensive proposals in the form of draft Bi11s for changes in the personai Taws of the Christian community from the Christian churches. These Bi11s inc1ude the draft Christian Marriage Bi11, 1994 which seeks to consoTidate, amend and codify the Taw reiating to marriage and matrimoniai causes of persons professing the christian re1igion and to repeai the Indian Divorce Act, 1869 and Indian Christian Marriage Act, 1872 among other things. The grounds for divorce proposed in the aforesaid Bi11 are more Tiberai in nature in tune with the changed social-economic conditions of the community and the prevaiiing Taw reiating to marriage and divorce avaiiabie under the Speciai Marriage Act, 1954. The grounds for divorce inciude desertion of the petitioner by the other spouse for a continuous period of not Tess than two years immediateiy preceding the presentation of the petition. It has been stated that the Biii has the support of the Cathoiic Bishops' Conference of India (CBCI) and 27 Member Churches of the Nationai Councii of Churches in India (NCCI) and some other independent churches. Since the christian churches have now come forward with the necessary Tegisiative proposai, the Government are actively considering the same /ryl with a view to bringing in necessary Iegisiation as ear1y as possib1e. The proposa1s are being studied and examined." 1.5.1 Evidence of Christian community considered by the Commission in its previous reports for making recommendations for amendment of Section 10 of the Act:- It is aiso reievant to note that the 15th and 22nd Reports (supra) were prepared after coiiecting evidence from ieaders of the Christian Church, representatives of the Christian Associations, members of the Christian community, Bar Associations and Judiciai Officers in the country. The reports wouid reveai that there was a demand from the Christian community itseif For inciusion of progressive grounds' for divorce Tike crue1ty and desertion which are avai1ab1e in aimost ail modern 11! 1 1 1 gi.iations on the subject. Since the iaw continued as such, in 1983, the Law Commission of India headed by none other than Tate Hon'b1e Justice K.K. Mathew suo motu took note of the urgent need to amend the provisions contained in section 10 of the Act and submitted its 90th Report dated 17.5.1983 recommending urgent amendment of that section. It is appropriate to quote the reasons given in the report: "The reason why we attach the highest importance to amending section 10 as above may be stated. We regard such an amendment as a constitutionai imperative. In our view, if the section is to stand the test of the constitutional mandate of equaiity before the Taw and equai protection of the Taws, in the context of avoiding discrimination between the sexes, then the amendment is necessary. If Pariiament does not remove the discrimination, the courts, in exercise of their jurisdiction to remedy vioiations of fundamentai rights, are bound, some day, to deciare the section as VO'id. . 1.5.2 Though more than fifteen years have eiapsed after the "aid Report, no effective action seems to have been taken by the Pariiament on the basis of the same to amend section 10 of the Act. The Commission reiterates the urgent necessity of amending section 10 of the Act to remove discrimination between the sexes and recommends that the offending words which have aiready been struck down 'by the Keraia and Andhra Pradesh High Courts, be dei ted. «II 1.6 Observations of Courts regarding review of Act:-- The courts in India have noted the antiquated and anomaious nature gof the Act and stressed the need for amendment of the law in various judgements. In S D Seivaraj v. Chandirah Mary', Aiagiriswami, J. (as he then was) had stressed the need for an immediate amendment of the Act on the 1ines of the provisions contained in the Hindu Marriage Act, 1955, the Parsi .Marriage and Divorce Act, 1936, and the Specia1 Marriage Act, 1954. In T.M. Bgshiam v. M. Victor', a specia1 Bench of the same court after referring to the observations of A1agiriswami, J. in Se1varaj's case has made the fo11owing observations: "It is oniy under this Act (4 of 1869) that the Iaw 'emains where it was, when this enactment was born, so that parties governed by this 1aw are under the grave disadvantage that, even if a husband deserts his wife for a considerabie period, that wi11 be no ground for divorce; in our view, it is a genuine hardship and there is urgent need for re-examination of the provisions of Act 4 of 1869, as the Act governs a 1arge body of persons in this country to see that its 5 provisions are rendered humane and up-to-date." (emphasis supplied) 1.7 It is, therefore, recommended that Pariiament enact a comprehensive 1aw governing the marriage, divorce and other a11ied aspects of the Christians in India. The draft Biii enciosed with the 22nd report of the Law Commission, a draft Christian Marriage and Matrimonia1 Causes Biil, 1961 and the draft Christian Marriage B111: 1994, referred to hereinabove, shou1d serv III In 'A1 O' '.11 Ill _. II) a or such a Taw. We do not think that there is any ground for procrastinating the matter any 1onger. CHAPIER II OBSERVATIONS OF VARIOUS HIGH COURTS PART I 2.1 Constitutionally invalid provisions:-- Though as obiter, A.M. Bhattacharjee, J. speaking for the Full Bench in Swapna Ghosh v. Sadananda Ghosh' had the following observations to make in regard to the constitutionality of the provisions under consideration: If the husband is entitled to dissolution on the ground of adultery simpliciter on the part of the wife, but the wife is not so entitled unless some other matrimonial fault is also found to be superadded, then it is difficult to understand as to why this provision shall not be held to be discriminatory on the ground of sex alone and thus to be ultra vires. Art.15 of the Constitution countermanding any discrimination on such ground 2.2 Discriminatory Drovision under section 102- Then again, under the Divorce Act, Christian spouses are not (tr ntitled to dissolution of marriage on the ground of rug cruelty or desertion, but are only entitled to Judicial separation under section 22 which shall have the effect of a divorce a mensa et torg, that is separation only from "bed and board" whereunder matrimonial bond remains undissolved. But spouses married under the Special Marriage Act, 1954, Hindu, Bhuddhist, Sikh and Jain spouses governed by the Hindu Marriage Act, 1955, Zoroastrian spouses governed by the Parsi Marriage and" Divorce Act, 1936, Muslim wives under the Dissolution of the Muslim Marriages Act, 1939, are entitled, to dissolution of marriage, and not merely judicial separation, on those grounds. Are we then discriminating against Christian spouses and that too, on the ground of their being Christian by religion and thus violating the mandate of Art.15 interdicting discrimination on the ground of Religion only? 2.2.1 K.T. Thomas, J. has also made the following observations and directions while passing an interim order3 [in 0.P. No.5805 of 1988]: After independence, the Indian Parliament brought about radical changes in the marriage law applicable to Hindus, Parsis and even to foreigners living in India by incorporating progressive and realistic grounds for divorce in such enactments. But either for no reason or for reasons which are not easy to comprehend, the iaw of marriage appiicabie to Christians remains unreaiistic and antiquated." After observing so, the iearned Judge has directed the Union of India to take a finai decision regarding the recommendations of the Law Commission in its 90th Report aiready referred to within a period of six months from the date of receipt of a copy of the said order. In spite of such a positive direction, no Finai decision to amend the iaw, has been taken though the direction was given on 13.12.1989. 2.3 In Mary Sonia v. Union of India3, a Fuii Bench of the Keraia High' Court has struck down the discriminatory words in section 10. The deciaration granted by the High Court is in the Foiiowing words: "For aii the above reasons, we would hoid that the offending portions of the provisions as aiready indicated are severabie and they are iiabie to be quashed as uitra vires. we wouid further hoid that the remaining portions of the provisions can remain as vaiid provisions aiiowing dissoiution of marriage on grounds of aduitery simpiiciter and desertion and/or crueity independent of aduitery. Adoption of such a course, in our view, wouid heip to avoid striking f'\ L . A Q . 1 down of the entire provisions in section 10 of the Act and to grant necessary reiiefs to the petitioners and simi1ar1y situated Christian wives seeking dissoiution of their marriage which has for aii intents and purposes ceased to exist in reaiity. we wou1d accordingiy sever and quash the words "incestuous" and "aduitery coupied with" from the provisions in section 10 of the Act and wouid d c1are that section 10 LII wi11 remain hereafter operative without the above words." Having granted the aforesaid deciaration, the Fuii Bench proceeded to make the foiiowing pertinent observations': "Before parting with this case, we wouid like to observe that in spite of a positive direction bv 4 Thomas, J. in these two Original Petitions which were fiied in the year 1988, directing the Centrai Government to take a finai decision on the recommendations of the Law Commission in its 80th Report for making amendments to 8.10 of the Act, no finai decision has been taken in the matter tiii today. The direction issued was to take a decision within six months from the date of receipt of a copy of the order dated ..,,....'., r>>'V/ . .._ __, , __ 13.12.1990. In spite of such a peremptory direction, the Centrai Government has not even cared to inform this Court about the decision if any taken in the matter ti11 the fag end of the arguments in this case when the Centrai Government P1eader has produced the communication to which we have aiready referred to. It is after taking note of, if we may say so, the tota11y intransigent attitude adopted by the Central Government in the matter of taking a finai decision regarding the amendment of the law on the point which was recommended by successive Law Commissions of India at ieast from 1961 onwards and the various courts in India through their observations and directions inc1uding the positive direction in this case, that we have decided to consider the matter on merits and to grant the reiiefs prayed for, assuming the roie of the 'eformer to the extent 1ega11y permissibie as an attempt to bridge the gap between the pereonai iaws. 2.4 In Youth Weifare Federation (represented by its Chairman. K.J. Prasad) v. Union of India5, a Fu11 Bench of the Andhra Pradesh High Court heid that section 10 of the Indian Divorce Act, 1869, is inconsistent with Articie 14 of the Constitution, being discriminatory against wife "who is subjected to more onerous grounds to obtain divorce than the husband...." 2.5 A Speciai Bench of the same Court in N. Sarada Mani v. G. Aiexander and another5, again reiterated the view of the Fu11 Bench as under: "...we are of the opinion that the grounds which are avaiiabie to the wife (sic -- "husband") under section 10 shou1d aiso be made avaiiable to the husband (sic -- "wife") in a petition fiied by him (sic - "her") seeking divorce and the Pariiament shouid immediately take note of the discrimination writ iarge between the grounds avaiiabie to the wife and the husband in a petition for divorce. It is for the Pariiament to take note of this anamoiy and fi1i~in the void by suitabie iegisiation. A pre--constitution discrimination by the provision in sectixn 10 of the Indian Divorce Act, 1863, it is rightiy heid by the Fu11 Bench in Youth Weifare Federation case (supra), cannot survive the test of eduaiity between men and women as envisaged under Articies 14 and 15 of the Constitution of India." [In Anii Kumar Mahsi v. U.O.I.7 th ID Supreme Court of India, in another context, heid that wherea U) husband couid get dissoiution of marriage on the ground of aduitery simpiiciter, wife had to prove that husband was guiity of not (1) with on1y aduitery simpiiciter but that aduitery was incestuous, (ii) coupied with bigamy, (iii). coupied marriage to another woman, (iv) coupied with crueity which without aduitery wouid have entitied her to divorce a mensa et toro. To that extent, it was the wife who was discriminated against and at a disadvantage.) 2.6 Inasmuch as the aforesaid decisions of the High Courts have no binding effect in States other than where they are iocated, and a1so because, the whoie Act needs to be repiaced by a new and modern iegisiation, it is absoiuteiy essentiai to enact a new iaw on the iines of the draft Biii prepared by the Law Commission and reiterated by it again under the Chairmanship of Mr. Justice K.K. Mathew, former Judge, Supreme India, which is enclosed to the Reports of Commission referred to hereinabove. PART II URGENT NECESSITY T0 AMEND SECTIONS 17 AND 20 OF THE AQT 2.7 If for any reason, there is going to be some deiay in enacting a new comprehensive 1aw as suggested in Part I and paragraph 1.5.2, supra of this report, the provisions in sections 17 and 20 may at ieast be amended forthwith in the circumstances and for the reasons mentioned hereinafter. 2.8 The general practice appears to be that parties seeking dissolution of marriage under this Act generaiiy approach the District Court but that court can grant oniy the decree nisi which has to be confirmed by a Bench of not iess than three judges of the High Court. Of course, if the High Court has oniy two judges then the two judges shaii form a Bench and can hear such reference. (As a matter of fact, today there is no High Court with oniy two Judges, except perhaps Sikkim.) On account of the 'heavy ioad of work in a11 the High Courts in the country, constitution of a three-judge Bench to hear the confirmation matters under this Act takes a iong time, indeed severai years. Parties who have obtained a decree J ni.i of dissoiution from the District Court have to wait interminably ti11 a special bench of three judges is constituted. The persona} Taws governing the Hindus and Musiims do not contain any provision for confirmation by a speciai Bench of three judges. Under the Hindu Marriage Act, 1955, a decree for divorce or dissoiution can be made by,a District Judge fina11y and it is upto a Tosing party to fi1e an appeai to the High Court which of course is to be heard by a Bench of two judges. Simiiar is the case in the case of Musiims. 2.8.1 Existing provision for confirmation by a speciai Bench of three judges of the High Court. criticised:-- The aforesaid provision for confirmation by a speciai Bench of three judges of the High Court has been uniformiy criticised by aimost aii the High Courts in the country. They have suggested that the reievant provisions be :mended to bring them on par with the corresponding provisions in other personai Taws. A brief reference to the said decisions wou1d be in order. 2.8.2 In Mrs Neena v. John Pormera, a specia1 bench of the three judges of the High Court of Madhya Pradesh observed as under: the procedure prescribed by section 17 of 4.. the Indian Divorce Act, 1869, requiring «D confirmation by the High Court of a d cree for dissoiution of a marriage made by District Judge, proiongs the agtny of the affected partie. even though none of the parties is desirous of preferring an appea1. we see no vaiid justification for continuation of this procedure especia11y when no such procedure is prescribed by other Acts dealing with dissoiution of marriages, name1y, the Speciai Marriage Act, 1954 and the Hindu Marriage Act, 1955... In our opinion, therefore, there is an urgent need for making suitabie amendments in the Indian Divorce Act, 1869 as made in Uttar Pradesh by Act No.30 of 1957." 2.8.3 Simiiariy, a speciai Bench of three judges of the Caicutta High Court observed as foiiows in Swapna Ghosh v. Sadananda Ghosh and another': "I have, however, my own doubts as to whether the provisions of section 17 of the Indian Divorce Act requiring confirmation of the decree of the triai court by the High Court shouid any ionger be retained. A decree for dissoiution of marriage among the Hindus, Buddhists, Sikhs and Jains under the Hindu Marriage Act, 1955 among the Parsis under the Parsi Marriage and Divorce Act 1936, among the Musiims under the Dissoiution of Musiim Marriage Act, 1839 are made by the District Courts and under the last mentioned Act, even by courts of iower rank and aii such decrees operate with the fu11est efficacy without any confirmation from the High Court. It is, therefore, difficult to appreciate the retention of the provisions of section 17 of the Divorce Act providing that the Christian coup1es, even after obtaining a decree for dissoiution from the District Court, may be after a iong-drawn and streneous iitigation, must sti11 wait for confirmation thereof from the High Court before those decrees can be compiete and binding. These provisions of section 17 even assuming that they had their days when enacted in the mid-ninteenth century, have probabiy outiived their purposes particuiariy in the context of the iater enactments reiating to matrimoniai iaws governing the other communities and referred to hereinabove and oniy resuit in protracting and proionging the iitigation, even where none of the parties is in a mood to have a further review or reconsideration of their case by any higher court. A11 these considerations Ted the Legisiature of the State of Uttar Pradesh to do away with these provisions in section 17 of the Divorce Act by a State Amendment Act being Act No.30 of 1957. We are inciined to think that our Pariiament, or_ the State Legisiatures (marriage and divorce being matters in the Concurrent List) shouid very seriousiy consider the question of introducing simiiar amendments in the Divorce Act of 1869 to bring it in harmonious conformity with other ana1ogous enactments on the subject governing the other communities in India and we' are giad to note that a specia1 bench of the Madhya Pradesh High Court whiie disposing of a confirmation proceeding under section 17 of the Act in Neena v. John Parmer AIR 1985 Medhya Pradesh 85 at p.87 (FB) has aiso made recommendation to that effect in emphatic terms... Have not the Christian spouses been denied procedurai reasonableness and due process by these provisions of section 17 providing for compuisory confirmation hearing, in the context of the spouses beionging to other communities whose matrimoniai proceedings are not subjected to any such further hearing?" 2.8.4 The same views have been reiterated in another decision of the Caicutta High Court in Ramish Francis Toppo v. Vioiet Francis ToDDo1°. 2.9 To the same effect are observations of special Bench of three judges of the Bombay High Court in Mrs. Pragati Varghese and etc. v. Qyrii George Varghese and etc.": "Section 17, we further find, provides that in case a High Court comprises of oniy two judges and decree passed by a District Court comes up for confirmation before the said two judges and in case of a difference of opinion, the provision contemp1ates that the decision of the senior judge wouid prevaii. In our judgement, the aforesaid procedure contempiated by sections '6, ,.__l" 17 and 20 are unreasonabie and are arbitrary in nature. The same achieves no useful object or purpose. The procedure provided tends to perpetuate the agonies of the affected parties for no usefui purpose. If such a procedure is - 1 [3 U1 ent in other simiiar enactments, we do not find any propriety why this procedure shouid be appiied to Christian spouses. The said procedure, in the circumstances, is Tiabie to be struck down by suitabie amendments, which we suggest shouid be brought about by suitable rmendments in the Act. We further find the provisions of sections 16, 17 and 20 of the Act are aiso arbitrary and unreasonabie. we suggest that the Tegisiature shouid intervene and carry out amendments to 'the Act' at the eariiest. We di'ect that a copy of this order may be forwarded forthwith to the Ministry of Law and Justice for such action as they may deem fit to take.' (emphasis suppiied) suitabie. Y-9v 2.10 The iatest decision reiterating the above observations is that of the Keraia High Court. A speciai Bench of three judges observed thus in their order dated 10th August 1998'3. The reievant observations are to the foiiowing effect: "Before this Court, even though notice is served on the respondent, he is neither present nor
represented by counsei. we feei that it is high time that the provision regarding confirmation under sections 17 and 20 of the Indian Divorce Act 1869 are deieted from the statute. Section 17 provides that every decree for dissoiution of marriage made by a district judge shaii be subject to confirmation by the High Court. It is further provided that cases for confirmation of a decree for dissoiution of marriage shaii be heard (where the number of the judges of the High Court is three or upwards) by a court composed of three such judges or (where the number of the judges of the High Court is two) by a court composed of such two judges. Section 20 provides that every decree of nuiiity of marriage made by a district judge shaii be subject to confirmation by the High Court. That too by a bench of three judges in courts where the number of judges is three or upwards and where the number of High Court is two, by a bench composed of two judges. A petition under section 10 for grant of divorce and section 18 for deciaring the marriage nu11 and void can be_ fiied both before the district court as we11 as the High Court. when such petitions are fiied in the High Court, it is being heard by a singie judge and appeai therefrom by a bench constituting two judges. Above being the provision, we are of the view that confirmation of a judgment of the district court by a bench of three judges is absoiuteiy unwarranted. We are aiso of the view that the provision for confirmation can be deieted and in its piace a provision could be made for fiiing an appeai before the High Court by whichever party aggrieved by the order passed either under section 10 or under section 18. Such an appeal can be heard by a bench consisting of two judges as in the case of a11 other matrimoniai appeais." (emphasis suppiied) 2.11 The Madras High Court has aiso expressed simiiar views in So1omon Devasahayam Seivaraj v. Chandirah flaty.'3- , 2.12 U.P. Amendment Act No.30 of 1957:
It may aiso be mentioned that as far back as 1957, the U.P. Legisiature has amended the Indian Divorce Act, 1869 by U.P. Amendment Act No.30 of 19 U1 ~ ' J V de1eting ciauses 1 to 5 of section 17 of the Act which provide that a District Court a1one can make a decree nisi and that such decree nisi has to be confirmed by a specia1 Bench of three judges of the High Court and other a11ied provisions. Section 20 which provides that every decree of nu11ity of marriage made by a District Judge sha11 be subject to confirmation by the High Court was also omitted by the said U.P. Amendment Act. No objection has been taken by any section or the Christian community to the above Amendment Act nor has anyone criticised the aforementioned observations of the High Courts.
CHAPTER III RECOMMENDATIONS OF THE LAW COMMISSION
3.1 The Law Commission is in fu11 agreement with the views expressed by Law Commission in its eariier reports mentioned hereinabove and the views expressed unanimousiy by severai High Courts in the country.
(i) It is, therefore, recommended that Pariiament enact a comprehensive iaw governing the marriage, divorce and aiiied other aspects of the Christians in India. The draft Biii enciosed with the 15th report of the Law Commission, the draft Christian Marriage and Matrimoniai Causes Biii, 1961 as modified by the 22nd 'eport of the Law Commission and the draft Christian Marriage Biii, 1994, referred to hereinabove, shouid serve as a basis for such a law. we do not think that there is any ground for procrastinating the matter any ionger.
(ii) The Law Commission further recommends that in any event paragraphs 1 to 5 of section 17 and section 20 of the Indian Divorce Act, 1869, be .de1eted forthwith. The last remaining paragraph of section 17 would thus become section 17.
Further, .ection 10 shouid also be amended in the manner indicated in para 1.
U1 .2 of this 'eport.
V'?
3.2 The Law Commission wishes to emphasise the fact that the provisions contained in sections 17 and 20 are oniy procedural in nature and there is abso1ute1y no possibiiity of any member of the Christian community objecting to amendments suggested herein. Section 10 of the Act aiso needs to be amended suitab1y so that the female spouses are not discriminated vis-a--vis maie spouses in obtaining divorce, as indicated by us in paragraph 1.5.2 above. Indeed, the offending portions have been aiready struck down by Kerala and Andhra Pradesh High Courts and there is not a murmur against the x1;
said decisions by any member of,Christian Community. The ommission recommends 0 Law that at least these amendments be made without any delay.
(MREJHETTC m m U /V' / .Jus%:cE LEI A sETH)(RETp) (DR.SUBHASH MEMBER MEMBER DATED: 18TH NOVEMBER, 1998 'J! MEMBER-SECRETARY
0) Footnotes and References QflAEIEB-I 15th Report of the Law Commission of India on "Law Reiating to Marriage and Divorce Amongst Christians in India" with "Christian Marriage and Matrimonia1 Causes Biii, 1960" appended. 22nd Report of the Law Commission of India on "Christian Marriage and Matrimoniai Causes Bi11 1961".
Mary Sonia v. Union of India, 1995 (1) KerLT 644. S.D. Se1varaj v. Chandirah Marv, (1968) 1 M.L.J.
289. T.M. Bashiam v. M. Victor, AIR 1970 Madras 12. ml
0) Footnotes and References CHAPTEB_Ll Suagna Ghosh v. ggggngnda Ghosh, AIR 1989 Ca1. 1. O.P. No.5805 of 1988 referred to in Mary Sonia V} Union of India, 1995 (1) KerLT 644. Mary Sonia v. Union of India, 1995 (1) KerLT 644 at
672. Id. D. 673.
Youth weifare 'Federation (represented by its Chairman. K.J. Prasad) v. Union of India, (1996) 4 Andh L.J. 1138.
N. Sarada Mani v. G. Aiexander, AIR 1998 Andhra Pradesh 157 at 161-162.
Anii Kumar Mahsi v. Union o Iggig, (1994) 5 SCC 704, 706.
Mrs. Neena v. John Pormer, AIR 1985 Madhya Pradesh 85 at 87.
Swagna Ghosh v. Sadananda Ghosh and another, AIR 1989 Ca1. 1 at 2.
10.
11.
12. Ramish Francis Toppo v. Vio1et Francis Toppo, AIR 1989 Ca1. 128.
Mrs. Pragati Varghese and etc. v. Cxr11 George Varghese and etc., AIR 1997 Bom 349 (F8) at 373. ! C.M. Reference No.48/98 (fiihcx Mathew v. gggg Abraham), decided on. 10.8.98 by the High Court of Kera1a.
So1omon Devasahayam Se1varaj v. Qhghdirah Magi, (1968) 1 M.L.J. 289.