The main legal point established in the judgment is that the decree to be passed by the High Court in a suit for nullity of marriage under the Indian Divorce Act 1869 must be a plain, simple, absolute decree, as in a suit for declaration of nullity of marriage between non-Christian persons under the Specific Relief Act.

JUDGMENT

Das, J. - In this suit the petitioner prayed for a decree declaring that the marriage in fact (but illegally) celebrated between her and the respondent was and is null and void. The respondent not having appeared after personal service of the writ of summons together with a certified copy of the petition this suit came up for hearing as an undefended suit on May 7th last. After hearing the evidence adduced before me I passed a decree on that date declaring that the marriage in question was null and void. Requisition for drawing up of the decree having been furnished a draft of the decree was prepared by the decree department and sent to the petitioner's solicitors for their approval. This draft was drawn up in the same form as such a decree in a suit for nullity of marriage is nowadays drawn up in England, namely in the form of a decree nisi. Mr. Barwell who appeared for the petitioner at the hearing mentioned the matter to me and contended that in a suit for nullity of marriage the Courts in India can only pass one plain and simple decree which is at once final and absolute, as the Indian Divorce Act 1869 does not contemplate or permit two decrees namely a decree nisi and a decree absolute, in such a. suit. The matter appeared to me to be a difficult and complicated one and I directed the suit to be placed in my list for hearing arguments on the point. Accordingly the suit appeared on my list on 20th May last and the point was fully and exhaustively argued by Mr. Barwell. Nobody appeared for the respondent but I am satisfied that all relevant provisions and authorities have been brought to my notice by Mr. Barwell. In view of the importance of the matter, however, I took time to consider my judgment.

2. The point now before me is whether a decree passed by this High Court in exercise of its matrimonial jurisdiction in favour of a petitioner in a suit for nullity instituted under the Indian Divorce Act 1869 should be in the form of a decree nisi to be followed by a decree absolute or whether such decree should be a plain and simple decree at once final and absolute. I gather from the learned Registrar, whom I have also consulted in the matter, that the practice of this High Court is to pass a decree nisi in a suit for nullity of marriage in the same way as a decree nisi in a suit for dissolution of marriage and that this practice is based on the modern English Practice adopted by this Court on the authority of the decision of Costello J. in Henrietta Violet Wenkenbach v. Otto Guenter Wenkenbach I. L. R. (1937) WB. 417. At the very end of the judgment in that case at p. 277 is to be found the following passage:

Mr. Bonnerjee and Mr. Westmacott both agree that following the English practice and as the law stands at present in India, the decree should be a decree nisi.

3. Mr. Barwell contended that it did not appear from the report that the point had been argued at all but that the Court passed a decree nisi only because learned Counsel agreed to that effect and he invited me to give a decision on the point on its merits. Seeing that one of the learned Counsel was the late Mr. R. C. Bonnerjee, whose vast experience and great learning in the law and practice relating to matrimonial causes were at all times unreservedly recognised and respected by the Bench and the Bar alike and that he was of opinion that the decree should be a decree nisi and that such opinion was adopted by a Judge of the eminence of Mr. Costello J., I should long hesitate before I should adopt a contrary view. Further I should be slow to upset a practice which has prevailed in this High Court for a number of years unless I am compelled to do so on a very careful consideration of the relevant provisions of the statutes applicable to the case and judicial decisions thereon. To have a correct appreciation of the jurisdiction and powers of this High Court in matters matrimonial, it is necessary to look back and trace them from their origin. Letters Patent gran