The provisions of the Indian Divorce Act, 1869, are antiquated and need to be modernized to bring them in line with the progressive enactments relating to marriage in other communities.

M. ANANTANARAYANAN, C. J. :- This is a reference by the learned District Judge of South Arcot at Cuddalore, under Sections 10 and 17 of the Indian Divorce Act (4 of 1869), for making absolute the decree nisi granted by him dissolving the marriage between the petitioner and the respondent. As the entire reference involves an issue of law with regard to jurisdiction, and, further, an issue concerning which we are unable to see any room for doubt or difficulty, it is not necessary to canvass the merits, except to the strict extent required for the disposal of this reference.

2. It is admitted that in certain earlier proceedings between the parties, which are among the typed papers as O. P. No. 240 of 1962, a decree was granted in favour of the petitioner (the wife) for judicial separation from the respondent (the husband) under Section 22 of the Indian Divorce Act. The petitioner alleges that though four years have passed since that decree, there has been no resumption of matrimonial living between the parties. In brief she now desires that she should be granted a decree nisi for dissolution of the marriage, merely because of the lapse of an interval of four years after the decree for judicial separation under Section 22.

3. It is sufficient to point out that this is plainly opposed to the scheme and the provisions of the Indian Divorce Act (4 of 1869). Though one may doubt the wisdom of the legislative provisions of this Act, in the light of more progressive marriage laws that have since been enacted with regard to other communities, as far as the parties governed by this Act are concerned, the decree for judicial separation does not ripen into a decree for dissolution of the marriage, because of the lapse of any interval of time. On the contrary, a wife under this Act, can obtain a decree for dissolution of the marriage under Section 10 only on the grounds exhibited under that section. If she alleges adultery against the husband, it will either have to be adultery coupled with cruelty as defined in the relevant clause, or adultery coupled with desertion for two years or upwards.

4. The learned Judge (District Judge) was perfectly aware of the limited nature of the reliefs that could be granted, under the provisions of the Indian Divorce Act. But it appeared to him that, under Section 7 of that Act, it would be competent for him to invoke the clauses of S. 7 (1) to (3) of the Matrimonial Causes Act, 1950, of the United Kingdom. Under those provisions, a party may be entitled to the relief of divorce, if, for three years after the decree for judicial separation, there had been no resumption of cohabitation between the wife and the husband. The learned Judge invoked those provisions, and granted a decree nisi, subject to our confirmation.

5. It is sufficient to be very brief, to demonstrate that the learned Judge has fallen into a palpable error, in the course that he pursued S. 7 of the Act 4 of 1869 makes it clear beyond doubt (1) that the section itself is 'subject to the provisions contained in this Act'; and (2) that what the section enjoins is that the High Courts and District Courts should 'act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.' Apart from every other difficulty, there is the insuperable difficulty, that, under the provisions of the Act (4 of 1869), a decree for judicial separation cannot ripen into a decree for divorce, by mere lapse of time. That is opposed to the scheme and the provisions of the Act. For reasons best known to the Legislature, and into which we need not proceed here, the Legislature has limited the

remedy of the wife to obtain divorce, to the situation and the causes set forth in the latter part of Section 10 of the Act. The fact that there was an earlier decree for judicial separati