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Judges : R.RAJENDRA BABU
Sherly Thomas - Appellant
Versus
Johny - Respondent
Case No : OP No 21040 of 1998
Decided On : 11/29/2001
Advocates Appeared :
For the Petitioner: G.S. Reghunath, Mohan Jacob George, Advocates. For the Respondent: Dr. Sebastian Champapilly, Kurian Antony Edassery, Advocates.
Divorce Act –Sections 8,10A, 19, 18, 13B, 17 and 20 –Issue on dissolution of Marriage –The learned counsel for the petitioner submitted that in view of the extraordinary jurisdiction conferred on the High Court under S. 8 of the Divorce Act, this Court is fully competent to entertain the petition as it can be deemed to be a petition filed before the District Court and withdrawn to this Court for adjudication –S. 8 of the Act says that the High Court may, whenever it thinks fit, remove and try and determine as a court of original jurisdiction, any suit or proceeding instituted under this Act in the court of any District Judge within the limits of its jurisdiction under this Act –In view of the above provision the High Court can withdraw any petition pending before the District Court and try it and dispose of it exercising its original jurisdiction – As a petition for dissolution of marriage has been pending before this court and it is filed in the pending case, it can be disposed of exercising the extraordinary jurisdiction conferred under the Act –The important question for consideration is whether a joint petition under S. 10A of the Divorce Act can be entertained before the High Court in a pending case filed by one of the spouses for dissolution of their marriage –Held, A waiting period of six months also had been stipulated by which a confirmation order could be passed only after six months from the date of the decree nisi –The above provision in the statute still remains and every order passed by the High Court is liable to confirmation and as such an order has to be treated as a decree nisi –When no specific provision is made to treat an order passed under S.10A on mutual consent by the parties as absolute in view of S. 16 of the Act, every order passed by the High Court, not being an order on appeal from an order passed by the District Court, is liable for confirmation – Hence an order passed by this Court under S. 10-A also is liable for confirmation and has to be treated only as a decree nisi –On a consideration of the entire circumstances Court do not think that the joint application filed by the parties is collusive, and it can be accepted and acted upon and hence Court think it just and proper to grant just and appropriate relief to the parties by accepting the CMP filed by the parties for dissolution of the marriage on mutual consent –Civil Miscellaneous Petition allowed
R. Rajendra Babu, J.
The important question for consideration is whether a joint petition u/s . 10 A of the Divorce Act can be entertained before the High Court in a pending case filed by one of the spouses for dissolution of their marriage.
2. The wife filed O.P. 21040/98 for dissolution of the marriage between the petitioner and the 1st respondent alleging the grounds of cruelty, desertion and adultery. It was alleged that the marriage between the petitioner and the 1st respondent was solemnized on 21.4.1988 at St. George Forane Church, Kaipuzha, Kottayam, as per the religious rites among Christian community and thereafter they lived in the house of the 1st respondent. A child was born on 7.9.91 out of the above wedlock , and the 1st respondent was always cruel towards the petitioner and she was subjected to physical as well as mental cruelty. Thereafter he deserted the petitioner and the child from January 1998 onwards, and the 1st respondent was leading an adulterous life with respondents 2 and 3 and hence the petitioner sought for a decree of dissolution of the marriage.
3. The 1st respondent filed an objection denying all the allegations raised against him, and contended that he was not leading an adulterous life as alleged, but the petitioner was leading an adulterous life. On the basis of the contentions put forward by the parties, elaborate evidence had been let in by both sides. On the side of the petitioner P. Ws. 1 to 4 were examined whereas R. Ws. 1 to 12 were examined on the side of the respodnets. Documents were also produced and got marked on both sides. After the amendment to the Indian Divorce Act which had come into effect w. e.f. 3.10. 2001, the petitioner and the 1st respondent filed CMP 53500/2001, a joint petition u/s. 10-A of the Divorce Act for dissolution of the marriage by mutual consent. Thereafter the petitioner and the 1sat respondent were examined and both of them had given evidence that they have voluntarily agreed for a dissolution of the marriage as it has become impossible for them to lead a matrimonial life together.
4. Heard the learned counsel for the petitioner and the 1st respondent.
5. The question for consideration is whether this court (High Court) can pass an order dissolving the marriage between the petitioner and the 1st respondent on their mutual consent u/s.10-A of the Divorce Act when the statute says that the petition has be filed before the District Court. CMP 53500/2001 was filed u/s. 10-A of the Divorce Act, by mutual consent of both the husband and the wife for dissolution of the marriage. As per section 10-A of the Divorce Act, a joint petition by the husband and the wife for dissolution of the marriage has to be filed before the District Court. Sec. 10-A does not authorize the filing of a joint petition before the High Court. The learned counsel for both sides submitted that such a petition can be filed before the High Court, as a matter for dissolution of the marriage was already pending before this court and hence there is no statutory bar for entertaining such a petition. In this context it would be relevant to consider the amendments effected to the Indian Divorce Act. As per sec.10 of the Indian Divorce Act (prior to the amendment) a petition for dissolution of marriage could be filed either before the District Court or before the High Court whereas after the amendment to Sec.10, a petition for dissolution of marriage could be filed only before the District Court. The provision for filing a petition before the High Court u/s.10 of the Indian Divorce Act had been deleted by the amendment. As per sec.18 of the Indian Divorce Act (prior to the amendment), a husband or wife was entitled to present a petition before the District Court or before the High Court praying for a declaration of the marriage as null and void. But, by the amendment, the jurisdiction of the High Court for entertaining a petition for declaring the marriage null and void had been taken away an
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