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GAUHATI HIGH COURT
Manisana, J.
Nihoto Sema -Appellant
Versus
Kanili Kini Limi -Respondent
Civil Revision No. 12 (R) of 1985
Decided On : 20-09-1985
INDIAN DIVORCE ACT - JURISDICTION - INTERIM ORDERS - CUSTODY OF CHILD - PRINCIPLES OF ENGLISH LAW - HEARING OF PARTIES - WELFARE OF CHILD - [SECTION 10, 16, 17, 43, 7] - The Indian Divorce Act, 1869 (the Act) is in force in the State of Nagaland. The District Court has jurisdiction to pass interim orders during the pendency of a suit for dissolution of marriage under Section 43 of the Act. The expression "before its decree is confirmed" in Section 43 means from the date of the institution of the suit till the date of the confirmation of the decree. Section 7 of the Act incorporates the principles and rules of the Divorce and Matrimonial Causes followed in practice in England, as nearly as may be. The court shall consider and weigh all the relevant circumstances while determining the custody of a child, with the first and paramount consideration being the welfare, happiness, and interest of the child.
Fact of the Case:
A petition for dissolution of marriage was filed by the respondent against the petitioner under Section 10 of the Act on the ground of adultery coupled with cruelty. The petitioner challenged the interim orders passed by the Additional Deputy Commissioner (J), Dimapur, directing her to restore the custody of the child to the respondent.
Finding of the Court:
The court held that the Act is in force in the State of Nagaland and that the District Court has jurisdiction to pass interim orders during the pendency of a suit for dissolution of marriage under Section 43 of the Act. The court also held that Section 7 of the Act incorporates the principles and rules of the Divorce and Matrimonial Causes followed in practice in England, as nearly as may be. The court further held that the first and paramount consideration in determining the custody of a child is the welfare, happiness, and interest of the child.
Issues: 1. Whether the Indian Divorce Act is in force in the State of Nagaland? 2. Whether the District Court has jurisdiction to pass interim orders during the pendency of a suit for dissolution of marriage under Section 43 of the Act? 3. Whether Section 7 of the Act incorporates the principles and rules of the Divorce and Matrimonial Causes followed in practice in England? 4. What are the factors to be considered while determining the custody of a child?
Ratio Decidendi: 1. The Adaptation of Laws Order, 1950 made by the President under Article 372 of the Constitution brought the Act into force in the Naga Hills District, which later became part of the State of Nagaland. 2. Section 43 of the Act empowers the District Court to pass interim orders during the pendency of a suit for dissolution of marriage. The expression "before its decree is confirmed" in Section 43 means from the date of the institution of the suit till the date of the confirmation of the decree. 3. Section 7 of the Act incorporates the principles and rules of the Divorce and Matrimonial Causes followed in practice in England, as nearly as may be. This means that the court shall consider and weigh all the relevant circumstances while determining the custody of a child, with the first and paramount consideration being the welfare, happiness, and interest of the child.
Final Decision: The court dismissed the petition but directed the Additional Deputy Commissioner (J), Dimapur, to hear the petitioner on the point whether the impugned orders relating to the custody of the child will be made absolute or not.
2. On 17.4 85 respondent, Kanili Kini Limi presented a petition to the court of the Additional Deputy Commissioner (J) Dimapur, for dissolution of the marriage against the petitioner Nihoto Sema, under Section 10 of the Indian Divorce Act, 1869 (for short the "Act") on the ground that the petitioner has been guilty of adultery coupled with cruelty. In the petition, the petitioner has prayed for interim custody of the minor child "Vni' v pending the hearing of the petition on the ground that the petitioner, Nihoto Sema, on 22.3.85 took the child 'Vni' away from Nursery Class of Montessori School, Dimapur without the knowledge and consent of the respondent and that at the time of the filing of the petition, she was separated from her child. On 17.4 85, the learned Additional Deputy Commissioner directed the petitioner to restore the custody of the child, Vni, to the respondent Smt. Kanili Kini Limi on or before 27.4.85 and fixed 16.5.85 for submission of Written Statement of the petitioner. On 27.4.85 no order was passed and the records show that there is a petition dated 27.4.85 filed by the petitioner on which there is an endorsement dated 2.5.85 which reads : "Peskar - please put up record on date fixed. The Additional Deputy Commissioner on 29.4.85 passed an order to the effect that it was not known whether the service on the petitioner has been properly made or not as he as absent and that the welfare of the child requires expeditious execution of the court's order for restoring the custody of the child, Vni to the respondent. Therefore, he fixed 4.5.85 for the restoration of the custody of the child to the respondent. The learned Additional Deputy Commissioner on 8.5.85 passed an order allowing the respondent to personally go up to Alicia and receive the custody of the child from the petitioner and directing the petitioner to hand over the child on or before on 16.5.85. In the said order, the learned Deputy Commissioner also requested the Superintendent of Police, Dimapurs to provide escort to the respondent Kanili Kini Limi. Thereafter, the petitioner has filed the revision petition in this Court challenging the orders of the learned Additional Deputy Commissioner.
3. Mr. D. N. Choudhury, learned counsel for the petitioner, has submitted that the Indian Divorce Act is not in force in Nagaland; that the Additional Deputy Commissioner has no jurisdiction to pass the interim order under section 43 of the Act; that assuming that the learned Additional Deputy Commissioner has jurisdiction to pass the order, the impugned orders are illegal as they were passed without giving him an opportunity of being beard; and that it would not be for the welfare of the child to handover the child to the mother who is a business person. The respondent has controverter the contentions.
4. A short question which arises for consideration is whether the Indian Divorce Act is in force in the State of Nagaland. Mr. D. N. Choudhury, learned counsel for the petitioner has submitted that the Naga Hills District was one of the districts of the then Province of Assam. The Naga Hills District was also a part of the Scheduled Districts under the Scheduled Districts Act, 1874. Under section 3 of the Scheduled Districts Act, the local government by notification in the official Gazette would declare what enactments were actually in force in any of the Scheduled Districts or in any part of such districts. But there was no such notification.
5. Shri B. Sarma, learned counsel for the respondent has submitted that the Act has been in force i
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