JUDGMENT B.N. Srikrishna, J.
1. This is a reference made to this Court by the Family Court at Nagpur, purportedly under section 17 of the Indian Divorce Act, 1869, for confirmation of a decree for dissolution of marriage made by the Family Court.
2. The facts giving rise to the present reference fall within a limited matrix as under :
3. The parties before us are Christians by religion and they were married on 7-5-1995 as per Christian religious rites and customs at the Methodist Marathi Church, Civil Lines, Nagpur. The marriage ran aground and a petition came to be filed before the Family Court at Nagpur on 31-8-1999 by the petitioner wife under section 10 of the Indian Divorce Act, 1869, seeking dissolution of the marriage on the grounds of cruelty coupled with adultery. This petition was contested by the respondent-husband. The Family Court tried the petition and by its judgment and decree dated 28-5-2000 allowed the petition and ordered dissolution of the marriage between the parties solemnized on 7-5-1995, by a decree of divorce. The Family Court, however, declared that the decree of divorce granted by it was subject to confirmation by the High Court. The Family Court thereafter has forwarded the reference to this Court, purportedly under section 17 of the Indian Divorce Act, for confirmation of the decree dated 28-5-2000 made by it.
4. This reference raises a question of some importance and is likely to affect other similarly placed parties. We have, therefore, bestowed anxious consideration on the following issue which arises in the case:
"Whether, after the coming into force of the Family Courts Act, 1984 and the establishment of Family Courts, the procedure of decree nisi followed by confirmation by the High Court under the Indian Divorce Act, 1869, is to be followed by the Family Court?"
5. The Indian Divorce Act, 1869 (hereinafter called "the Act") is an antiquated piece of legislation of 1869. The Act applies where both parties profess Christian faith and are married in accordance with Christian religious rites and customs. Section 10 permits such a marriage to be dissolved by a petition presented to the District Court or the High Court on several grounds indicated therein. We are presently not concerned with the exercise of jurisdiction by the High Court, but are only concerned with exercise of jurisdiction by the District Court. A peculiar feature of the Act is that divorce thereunder is a two step procedure. After the District Court makes a decree for dissolution of the marriage, which is called a decree nisi, such decree nisi has to come back to the High Court for confirmation. A decree nisi made by the District Judge is subject to confirmation by the High Court by a special Bench as prescribed by section 17 of the said Act. From the year 1869, this procedure was being consistently followed.
6. Considering that there were different Acts which applied to persons professing different religious faiths in matters of marriage, judicial separation, divorce, dissolution of marriage and custody of children-both as to the substantive law and the procedural law-parliament considered it essential to bring about some uniformity in the law. Consequently, the Family Courts Act, 1984 was enacted to achieve such uniformity. Section 7(1)(a) of the Family Courts Act provides that a Family Court shall have and exercise the jurisdiction exercisable by any District Court or any subordinate Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. The Explanation contains Clauses (a) to (g) which enumerate several categories of matrimonial and family causes. It is not in dispute that dissolution of marriage is one such cause falling under Clause (a) of the Explanation. Consequently, any suit or proceeding in any District Court or any subordinate Court for dissolution of a marriage, would now be exclusively triable by the Family Courts. Not only does Section 7 vest exclusive jurisdiction in a Family Court with regard to such causes, but section 8 also postulates the converse. Section 8 provides that where the Family Court has been established for any area, no District Court or any subordinate Civil Court shall have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to section 7(1). Section 8 also provides for automatic transfer of all such suits or other proceedings with regard to causes specified in Clauses (a) to (g) of the Explanation from any District Court or Subordinate Court to the Family Court if the suit would fall within the exclusive jurisdiction of the Family Court after its establishment.
7. Further, section 20 of the Family Courts Act provides that the Family Courts Act shall have effect notwithstanding anything 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. A conjoint reading of these provisions makes it clear that, on and from the date of which the Family Court is established, all suits or proceedings of the nature contemplated in Clauses (a) to (g) of the Explanation in section 7(1) of the Family Courts Act would automatically stand transferred to the Family Court, if they are pending suits or proceedings; from the said date the Family Court alone shall have exclusive jurisdiction to try such suits/proceedings. It would, therefore, be obvious that from the date on which the Family Court Act became applicable, by virtue of section 20, the two step procedure for a decree nisi and its confirmation contemplated by section 17 of the Act stood overridden.
8. Under the Act, a petition has to be made under section 10 for dissolution of the marriage to the 'District Court'. The expression 'District Court' is defined in section 2(3) of the Act as the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under the Act, the husband and wife reside or last resided together. A reading of section 7 with section 10 of the Act leaves no doubt that, after the establishment of the Family Courts Act, all petitions/proceedings for dissolution of marriage under section 10 of the Indian Divorce Act would have to be instituted exclusively in the Family Courts. It is also clear that even if such proceedings had already been instituted before the District Court prior to coming into force of the Family Courts Act, after the establishment of the Family Courts they would automatically stand transferred to the Family Court by reason of section 8 of the Family Courts Act.
9. We now turn to the facts of the reference before us. The Family Courts Act came into force from 1-12-1986. Pursuant thereto, Family Court was established for the Nagpur area on 22-12-1986. Precisely for this reason, the petition itself was presented to the Family Court by the parties before us. There is also no doubt that this petition was exclusively triable by the Family Court and the procedure contemplated under the Family Courts Act would automatically be applicable, the procedure contemplated by sections 15 and 17 of the Act having been overridden by reason of section 20 of the Family Courts Act. We are, therefore, of the view that, on and from the date on which the Family Court came to be established, all petitions for dissolution of Christian marriages, whether filed prior to the coming into force of the Family Courts Act, 1984 and establishment of the Family Courts and transferred to the Family Court by reason of section 8 of the Act, or filed for the first time before the Family Court, would have to be tried and disposed of only in accordance with the procedure prescribed in the Family Courts Act, 1984 and not by the provisions of the Indian Divorce Act, 1869 or any other law. We are fortified in our view by a judgment of our High Court to which one of us (Srikrishna, J.) was party, in Maria Sera Pinto v. Milton Dias, which concerned the jurisdiction to be exercised on the Original Side of the High Court in the matter of dissolution of Christian marriages and a judgment of the Division Bench of the Karnataka High Court in Joseph Varghese Cheeran v. Smt. Rosy Kurian Kannaikal, reported in 1(2000) D.M.C. 107. We respectfully agree with the view expressed by the Karnataka High Court that in respect of matters which stood transferred to the Family Court, or initiated before the Family Court, all proceedings are governed by the Family Courts Act. Consequently, a decree made by the Family Court would not need any confirmation from this Court and would operate as a final decree subject to the right of appeal under section 19 of the Family Courts Act.
10. In the result, we answer the question as follows: -
"On and from the date on which the Family Courts were established for any area, the suits or proceedings of the nature contemplated in Clauses (a) to (g) of the Explanation to sub-section (1) of section 7 of the Family Courts Act, 1984, shall be tried exclusively by the Family Court for that area; any such suits or proceedings already pending before any District Court or Subordinate Court would automatically stand transferred to such Family Court. Any decree made in any such suit or proceeding transferred or initiated in the Family Court, would operate as a final decree and would not require confirmation under section 17 of the Indian Divorce Act, 1869, but shall be subject to the right of appeal under section 19 of the Family Courts Act, 1984."
11. In the result, we make the following order:
(a) The Reference made by the Family Court for confirmation under section 17 of the Indian Divorce Act, 1869 is rejected as unnecessary and infructuous.
(b) It is declared that the decree made by the Family Court on 28-5-2000 operates as a final decree for dissolution of marriage, subject to the right of appeal under section 19 of the Family Courts Act, 1984.
12. Reference accordingly disposed of. No order as to costs.