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2000 Supreme(Bom) 1025
IN THE HIGH COURT OF BOMBAY AT GOA
F.I. REBELLO, V.C. DAGA, JJ.
Monica Variato – Appellant
Versus
Thomas Variato, son of D.J.J. Furtado e Souza – Respondent
Letters Patent Appeal No. 31 of 1998
Decided On : 19-06-2000
Shri M.S. Usgaonkar, Senior Advocate with Shri Valmiki Menezes, Advocate for the Appellant.
Shri S.D. Lotlikar, Amicus Curiae for the Respondent.
A decree for divorce by mutual consent requires the parties' free and voluntary consent to remain subsistent from the filing of the petition until the final decree; if consent is withdrawn at any stage, the court loses jurisdiction to grant the divorce.
Headnote:(A) Special Marriage Act, 1954 - Sections 28 and 31 - Divorce Law - Dissolution of marriage by mutual consent - Requirement of continuous consent - Mutual consent must exist not only at the time of presenting the petition and passing the provisional decree but must also persist until the final decree is granted - If consent is withdrawn or a party remains absent, the Court lacks jurisdiction to grant the decree. (Paras 16, 21)
(B) Jurisdiction - Private International Law - Domicile as the test for matrimonial jurisdiction - In the absence of a pervasive central enactment in specific regions, the Court of civil jurisdiction where the parties have their matrimonial home or domicile shall have the authority to decide matrimonial matters following the applicable personal law or customary law. (Paras 25, 29, 31)
Facts of the case:
The parties had married under a special legislative enactment and subsequently petitioned for divorce by mutual consent. The respondent later challenged the territorial and subject-matter jurisdiction of the trial court, asserting that the marriage was governed by laws specific to the region where they resided and that the central statute was inapplicable. Additionally, the respondent formally withdrew his consent and alleged that his original signature was obtained under duress. The lower courts dismissed the application on grounds of non-maintainability and lack of jurisdiction.
Findings of Court:
The Court held that for a divorce by mutual consent, consent is the foundational element that must endure throughout the entire legal process. It found that even if a petition is filed under a special statute, the jurisdictional competence resides with the local civil court when the central law is not extended to that region. However, the withdrawal of consent by the respondent rendered the divorce petition unsustainable under both the special statute and the prevailing local laws.
Issues: The main issues were the necessity of continuous consent until the final decree for mutual divorce, the determination of the appropriate forum in regions where central marriage legislation has not been formally extended, and whether the withdrawal of consent deprives the court of its jurisdiction to pass a final decree.
Ratio Decidendi: The Court ruled that a decree for divorce by mutual consent requires the survival of the parties' voluntary agreement until the moment of the final order. As the respondent had clearly manifested an intention to withdraw consent, the court's jurisdiction to grant the relief lapsed, rendering the request for a final decree legally incompetent.
Result: Appeal dismissed.
JUDGMENT
(PER REBELLO, J.)
Appellant and respondent were married on 4th October 1975 under the Special Marriage Act at Mumbai. They presented a petition for divorce by mutual consent under Section 36 of the Law of Divorce as applicable in the State of Goa. They also applied for provisional divorce. The petition was filed on 13th October 1988 both by the appellant and the respondent. The matter was taken up by the Civil Judge, Senior Division, Mapusa on the very same day. On 13th October 1988 there was an Order granting provisional divorce for a period of one year in terms of Article 39 of the Law of Divorce.
2. On 30th May 1990 the appellant herein filed an application. In that application it was averred that one year had lapsed from the date of the provisional divorce. It was further contended that the appellant herein still maintained her decision of seeking divorce as relations between the appellant and respondent had broken down irretrievably. Appellant therefore sought decree of final divorce. Respondent, on receiving a copy of the application set out that the respondent was married at Mumbai where the petitioner no.1 was permanently residing. The appellant was German national at the time of their marriage and continued to be so. The marriage, therefore, it was contended, having been solemnized under the provisions of the Special Marriage Act, their rights and obligations are governed by that Act. The Law of Divorce as applied in the State of Goa, therefore, it is contended, would not apply. It was further contended that the signature of the respondent was obtained by the appellant on the joint application by deception. The respondent averred that when he signed the petition he was fully drunk and not in his proper senses. He also contended that even otherwise he was withdrawing his consent.
In a rejoinder the appellant set out that at least for 10 years previous to the filing of the joint application, the appellant and the respondent were domiciled in Goa. The respondent, therefore, could not turn around and challenge the jurisdiction of the Court.
3. The trial Court by its Decree dated 23rd April 1996 dismissed the application for divorce by mutual consent. While so holding the Court held that the marriage was not transcribed before the Civil Registrar's Office. The Court held that there was no marriage between the appellant and respondent under the law of the land. In these circumstances, the Court held that the parties were not eligible for divorce under laws in force in Goa. The Court then held that as the parties had married under the Special Marriage Act, the proper course was to apply for divorce under the Special Marriage Act in the Court having jurisdiction.
4. Against the said Order the appellant herein preferred an appeal before this Court. The same was numbered as First Appeal No. 77 of 1996. Before the learned Single Judge it had been contended that a Portuguese male and a foreigner contracting a marriage in a foreign country would still be governed by the provisions of the Portuguese Civil Code pertaining to marriages. Merely because the marriage was not registered in Goa, it is contended, that would not cease to be a valid marriage. On behalf of the respondent herein, it was contended that Article 1107 of the Portuguese Civil Code would not apply. The marriage, it was contended, was performed under the Special Marriage Act, 1954. The remedy of the party, therefore, would be to apply under Section 31 of the said Act before the District Court. The Act, it is contended, has not been extended to the State of Goa as when the Act was enacted, Goa was not a part of India.
By Judgment dated 5th November 1997, a learned Single Judge of this Court dismissed the appeal. While so holding, the learned Single Judge held that the petition filed under Chapter III of the Law of Divorce as applicable in this State was not maintainable. The reason for so holding was that the appellant and respondent had married under the Special Ma
