Delhi High Court
Mrs. Nisha Ribero vs Mr. George Mario Ribeiro on 26 September, 2003
Equivalent citations: 2004 IAD Delhi 70, 108 (2003) DLT 48, II (2003) DMC 807, 2003 (71) DRJ 763
Bench: B Patel, A Sikri, B D Ahmed
ORDER
1. This Reference has been made by the Additional District Judge under Section 17 of the Indian Divorce Act, 1869 by his order dated 25.9.2001. By a judgment and order of the same date i.e., 25.9.2001, the learned Additional District Judge allowed the petition of the petitioner (wife) which had been filed under Section 10 of the Indian Divorce Act, 1869 for dissolution of marriage on the grounds of cruelty, adultery and desertion. The petitioner and the respondent No.1 (George Mario Riberio) were married on 1.6.1992 in New Delhi under the Indian Christian Marriage Act,1872. Various allegations were made in the Petition. The respondent/husband filed a written statement on 30.11.2000. The case was posted on 4.1.2001 for conciliation but the Respondent No.1/husband did not turn up on that date and, accordingly, the respondents were proceeded ex parte thereafter. To prove her case the petitioner examined herself, her two brothers-in-law and her brother. On the basis of the unchallenged and non-rebutted deposition of the petitioner and her other witnesses the trial Court came to the conclusion that the respondent No.1(husband) had treated the petitioner with cruelty, both physical and mental. The trial Court also came to the conclusion that the respondent No.1 had been living in adultery with respondent No.2 and had deserted the petitioner for more than two years prior to filing of the divorce petition. Accordingly, the trial Court allowed the petition in favor of the petitioner dissolving the marriage by a decree of divorce on the ground of desertion coupled with adultery and cruelty as specified under Section 10 of the Indian Divorce Act with costs. We have carefully gone through the judgment of the trial Court and find no infirmity in the same.
2. As indicated above, by a separate order dated 25.9.2001, the learned Additional District Judge, in purported compliance with the provisions of Section 17 of the Indian Divorce Act, 1869, transmitted the records to this Court for confirmation of the said decree in terms of the said provisions. However, it is to be noted that Parliament enacted the Indian Divorce (Amendment) Act, 2001 which received the assent of the President on 24.9.2001 and came into force on 3.10.2001. By virtue of Section 12 of the said Amendment Act of 2001, Section 17 was substituted by the following Section 17:-
"17. Power of High Court to remove certain suits. - During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under Section 8, and the court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a court of original jurisdiction, and the provisions contained in Section 16 shall apply to every suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary, to enable him to make a decree in accordance with the justice of the case."
As such by virtue of the amendment the old Section 17 which required a decree of dissolution of marriage made by the District Judge to be confirmed by the High Court, had been removed. Section 17 as it stood prior to the amendment is as under:-
"17. Confirmation of decree for dissolution by District Judge.
Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.
Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges, and in case of difference the opinion of the senior Judge shall prevail.
The High Court, if it think further enquiry or additional evidence to be necessary, may direct such enquiry to be made or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit:
Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under section 8, and the High Court shall thereupon, if it think fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section 16 shall apply to every suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case."
The said amendment Act also altered the name of the Act from "Indian Divorce Act" to "Divorce Act, 1869". Thus, after the amendment, which took effect on 3.10.2001, no confirmation by the High Court of a decree of dissolution passed by the trial Court was necessary. The question, therefore, is whether the present decree needs to be confirmed by this Court or not? It is clear that on 25.9.2001 when the judgment and order was made by the learned Additional District Judge the amendment had not come into effect. As such, the date on which the order forwarding the records to this Court was passed for the purposes of confirmation of the decree, the provisions of the old Section 17 were very much in force. This petition would, therefore, have to be disposed of under the old provisions of Section 17 and, therefore, a confirmation of the decree would be necessary.
3. As indicated above the trial Court allowed the petition in favor of the petitioner and dissolved the marriage by a decree of divorce on the ground of desertion coupled with adultery and cruelty. We have already stated above that we find no infirmity in the judgment and decree of the learned Additional District Judge and, accordingly, we confirm the same.
4. Reference stands disposed of accordingly.
