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1985 Supreme(Del) 229
High Court Of Delhi
USBORN LEWIS - Appellant
Versus
PHYLIS JORDAN - Respondent
L.P.A. 30 of 1985
Decided On : 05/23/1985
LILY THOMAS
The High Court has the jurisdiction to hear appeals from decrees of District Judges refusing to pass a decree for dissolution of marriage, but it cannot exercise powers more than what the District Judge had. The power of transfer to the High Court under Section 8 of the Indian Divorce Act, 1869, can only be invoked during the pendency of the petition and not after its dismissal.
Headnote:
INDIAN DIVORCE ACT, 1869 - DISSOLUTION OF MARRIAGE - ADULTERY - APPEAL - JURISDICTION OF HIGH COURT - POWER TO GRANT DECREE ABSOLUTE - SECTION 8 - SECTION 10 - SECTION 13 - SECTION 14 - SECTION 16 - SECTION 17 - SECTION 55 - SECTION 56 - SUMMARY
Fact of the Case:
Appellant and Respondent 1, both Christians, were married in 1949. They had a child in 1956. In 1974, Respondent 1 returned to Calcutta and refused to come back to Delhi, where the Appellant was working. Appellant filed for judicial separation in 1979 and was granted an ex-parte decree in 1980. In 1980, Appellant filed for dissolution of marriage on the ground of adultery. Notice was served by publication, but neither Respondent appeared. The ADJ dismissed the petition, finding insufficient proof of adultery. Appellant appealed to the Single Judge, who held the ADJ's judgment void ab initio and remanded the case for a fresh decision. Appellant filed a Letters Patent Appeal against the remand order and a separate application under Section 8 of the Indian Divorce Act, 1869, requesting the High Court to exercise its power to dispose of the main petition on merits.
Finding of the Court:
The High Court held that the Single Judge erred in remanding the case to the ADJ. The High Court found that the ADJ's judgment was not void ab initio and that the Single Judge should have gone into the merits of the case and decided the appeal. The High Court also held that the Appellant's application under Section 8 was misconceived, as the power to transfer a petition to the High Court under Section 8 can only be invoked during the pendency of the petition and not after its dismissal.
Issues: 1. Whether the Single Judge erred in remanding the case to the ADJ instead of deciding the appeal on merits? 2. Whether the High Court has the power to grant a decree absolute for dissolution of marriage in an appeal from a District Judge's judgment? 3. Whether the Appellant's application under Section 8 of the Indian Divorce Act, 1869, was misconceived?
Ratio Decidendi: 1. The High Court has the jurisdiction to hear appeals from decrees of District Judges refusing to pass a decree for dissolution of marriage. The erroneous mention of the Hindu Marriage Act in the District Judge's order does not render the judgment void ab initio. 2. The High Court, while acting as a Court of appeal against the District Judge's judgment, cannot exercise powers more than what the District Judge had. The District Judge had no power to grant a decree absolute since it was subject to confirmation by a Bench of three judges of the High Court. Therefore, the High Court cannot grant a decree absolute in an appeal from a District Judge's judgment. 3. The power of transfer to the High Court under Section 8 of the Indian Divorce Act, 1869, can only be invoked during the pendency of the petition and not after its dismissal. Therefore, the Appellant's application under Section 8 was misconceived.
Final Decision: The High Court set aside the judgments of the ADJ and the Single Judge and passed a decree nisi for dissolution of marriage, subject to the same being made absolute after six months.
( 1 ) THIS Letters Patent Appeal is directed against the Judgment of the Single Judge dated 12. 8. 85 whereby the Single Judge remanded the case back to the ADJ for a fresh decision and refused to exercise power u/s 8 of the Indian Divorce Act, 1869 as (the act ) and also without disposing of the main appeal on merits.
( 2 ) THE facts of the case lie in a very narrow compass. The appellant and respondent 1 being Christians were merried according to Roman Catholic rites at St. Thomas Church, Calcutta on 26. 11. 49. A female child was born out of this wed-lock on25. l2. 56. Since the appellant got a job at Delhi, the Appellant alongwith respondent 1 shifted to Delhi in 1967. However, sometimes in 1974 respondent 1 returned to Calcutta and refused to come back to Delhi. The appellant pursuaded her to come back but without any success. The appellant, therefore, filed a petition for judicial separation in the court of ADJ, Delhi in 1979. Though notice was sent to respondent 1 she did not appear and therefore, the ADJ on 1. 2 80 granted an ex-parte decree for Judicial separation.
( 3 ) ON 15. 10. 80 a petition was filed by the appellant in the court of the ADJ, Delhi for dissolution of marriage u/s 10 of the Acton the ground that respondent 1 was living in adultery with respondent 2. Since notice of the petition could not be served on either of the respondents the same was served by publication. Inspite of publication of the notice the respondents did not chose to appear before the ADJ in the said proceedings and therefore, the proceedings were held ex-parte against the wife. The ADJ recorded the evidence of the appellant and thereafter passed an order on 30. 3. 82 refusing to grant divorce. While dismissing the petition for dissolution of marriage the learned ADJ held that there was lack of sufficient proof to substantiate the allegation made by the appellant regarding the adulterous relations of respondent 1 with respondent 2. The learned ADJ Judge further held that though neither the wife nor the corespondent had chosen to contest the petition the onus was on the appellant to substantiate his allegation made by him in the petition against the wife. Against this order dated 30. 3. 82 the appellant filed F. A. O. 155/82 in this court.
( 4 ) THE Single Judge issued notice to the respondents but again none of the two respondents could be served. Another publication was made in Anand Bazar Patrika which is a widely read newspaper in Eastern India and particularly in Calcutta where the respondents are alleged to be residing. The Single Judge held that the judgment of the ADJ was void ab initio and therefore, remitted the case back to the ADJ for a fresh decision on merits.
( 5 ) A separate application was filed by the appellant being C. M. No. 492 of 1985 praying that the High Court should exercise its power u/s 8 of the Act and dispose of the main petition on merits instead of remitting it back to the ADJ for deciding it afresh. This prayer of the appellant also did not find favour with Single Judge and by a separate order dated 14. 2. 85 Single Judge refused to exercise jurisdiction u/s 8 of the Act. The appellant has filed this L. P. A. only against the order of remand made by Single Judge in F. A. O. 155/82
( 6 ) IT was contended by the counsel for the appellant that once the Single Judge had held that the judgment and order of ADJ was patently illegal and absurd, the Single Judge ought to have allowed the appeal on merits and not remanded the case back for a fresh decision. It was contended that the Single Judge failed to appreciate that since the case had proceeded ex-parte all the evidence that could be available to the appellant to substantiate his contentions and allegations made by him against the respondents was produced by the appellant. The appellant himself had been examined as P. W. 1 and had made a statement on oath. This statement of the appellant was filed as and annexure to the F. A,o. and, therefo
