D.Anthony Marianathan v. Josephine Sahayarani

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDated: 05.09.2011CoramTHE HON'BLE MR.JUSTICE P.JYOTHIMANIandTHE HON'BLE MR.JUSTICE M.DURAISWAMYandTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANMatrimo.Causes(MD)No.1 of 2011inI.A.No.113 of 2010inI.D.O.P.No.9 of 2000D.Anthony Marianathan... Petitioner/1st respondent-Vs-Josephine Sahayarani... Respondent/PetitionerPrayer:Petition filed under Section 17 of the Indian Divorce Actto send the decree passed in IDOP No.9 of 2000 dated 10.08.2000 to theHigh Court of Judicature Chennai at Madurai Branch for the confirmationof the above said decree as per the provisions stated in the IndianDivorce Act.For Petitioner:Mr.S.Siva IlayarajaFor respondent:Mr.R.Devaraj, Amicus CuriaeORDER(Order of the Court was made by P.JYOTHIMANI.J.,)The husband / petitioner herein filed I.D.O.P.No.82 of 1995against the wife/ respondent herein for judicial separation on the groundof cruelty. The decree of judicial separation was granted on 26.04.1996.Thereafter the wife filed I.D.O.P.No.9 of 2000 under Section 10 of theDivorce Act, 1869 on the ground of adultery coupled with cruelty. Thatwas filed on the file of the learned Principal District Judge, Thanjavur.In the said O.P. filed by the wife, the co-adulterer has been made assecond respondent. The learned Principal District Judge, Thanjavur haspassed an order on 10.08.2000, after analysing the documents filed andevidence submitted on behalf of the petitioner granting divorce on theabove said grounds. Since the O.P. was filed under the Divorce Act,unamended, it required confirmation of the High Court by three Judges asper Section 17 of the Act. Accordingly, this application has beenpreferred before this Court for confirmation.2.It is not in dispute that after the order was passed by thelearned Principal District Judge granting divorce, which was on10.08.2000, the Divorce Act, 1869 stood amended with effect from03.10.2001 and thereafter, the confirmation by three Judges of High Courthas been dispensed with. Since order in the O.P was passed before thedate of amendment, this application filed for confirmation. Admittedly, https://hcservices.ecourts.gov.in/hcservices/ 2the amendment which was brought in to the Indian Divorce Act, 1869 witheffect from 03.10.2001 is not retrospective.3.The question as to whether the amendment carried out to theDivorce Act with effect from 03.10.2001 is prospective or retrospectivecame to be considered by few of the High Courts in India, even thoughthere is no direct decision of this Court. But on a reading of theamendment and statement of objects and reasons appended to the proposedamendment, we are satisfied that the amendment is intended to be onlyprospective. This is also evidenced from the statement of objects andreasons, which reads as follows:“2.With a view to ascertaining the views of theChristian community on proposal for a unified law anmarriage and divorce, the Central Government convened ameeting of leaders of prominent Churches in India and theMembers of Parliament belonging to the Christian communityon the 28th April, 2000 but there was no consensus forbringing in a comprehensive legislation on Christianmarriages and matrimonial causes. However, there is noapposition from any one to amend sections 10, 17 and 20 ofthe Indian Divorce Act, 1869 suitably to remove the genderinequality as contained in section 10 and to do away withthe procedural delays in obtaining divorce due to theprovisions contained in sections 17 and 20 of the Act. TheGovernment, therefore, proposes to make suitable changes inthe Indian Divorce Act, 1869 for removing hardship to allconcerned.”4.The Indian Divorce Act, (Amended Act), 2001 as stated above,while repealing the previous Act has not saved the acts taken under theprevious Act. In the absence of such saving clause in the amended Act,by applying Section 6(b) of the General Clauses Act, 1897, which reads asfollows:“6.Effect of repeal:-Where this Act, or any [CentralAct] or Regulation made after the commencement of this Act,repeals any enactment hitherto made or hereafter to be made,then, unless a different intention appears, the repeal shallnot b)affect the previous operation of any enactment sorepealed or anything duly done or suffered thereunder”it is also clear that the amendment is not retrospective.It also adds to strengthen our view that the intention of theamendment is only prospective with the result in respect of cases whichwere filed before amendment, the amended act would not apply.5.Mr.R.Devaraj, learned Amicus curiae, who was appointed by thisCourt to assist the Court has brought to the notice of this Court aboutfew of the judgments of the other High Courts. i)A Full Bench of the Delhi High Court in Mrs.Nisha Ribero vsMr.George Mario Ribeiro in the judgment reported in II (2003) DMC 807,held that the amendment is prospective and therefore when the order was https://hcservices.ecourts.gov.in/hcservices/ 3forwarded for the purpose of confirmation, the old Section 17 was verymuch in force holding that it required confirmation of three Judges. Theoperative portion of the judgment reads as follows:The said amendment Act also altered the name ofthe Act from “Indian Divorce Act” to “Divorce Act, 1869”.Thus, after the amendment, which took effect on03.10.2001, no confirmation by the High Court of a decreeof dissolution passed by the trial Court was necessary.The question, therefore, is whether the present decreeneeds to be confirmed by this Court or not? It is clearthat on 25.09.2001 when the judgment and order was made bythe learned Additional District Judge the amendment hadnot come into effect. As such, the date on which theorder forwarding the records to this Court was passed forthe purposes of confirmation of the decree, the provisionsof the old section 17 were very much in force. Thispetition would, therefore, have to be disposed of underthe old provisions of Section 17 and, therefore, aconfirmation of the decree would be necessary.”ii)Likewise, a Full Bench of the Patna High Court has also takenthe same view in Deepa Raj Kumar Singh vs Deepak Kumar reported in II(2005) DMC 352, holding that every statute is prima facie prospective,unless it is expressed or by necessary implication made applicableretrospectively, thereby deciding that Section 17 of the old Act willapply in cases like one on hand in requiring confirmation. The operativeportion of the judgment reads as follows:“At this juncture it would not be out of place tomention here that Section 17 of the Divorce Act, 1869 dealswith confirmation of judgment and decree by the High Courtpassed by the Court below. The said provision has beendeleted by the Indian Divorce (Amendment) Act, 2001.However, the divorce case was filed in 1993 when Section 17of the Divorce Act, 1869 was in force. The decree was alsopassed in the year 1988 when the said provision was inforce. It is well settled rule of law that theprovision/statute is prospective unless it is expressly maderetrospective. In this regard reference may be made to adecision in the case of Mrs.Larley vs Mr.John @ Johny C.A.,2004(1) PLJR 564 (FB). The Full Bench while consideringSection 17 of the Divorce Act and amendment/deletion ofSection 17 by Amendment Act, 2001 has held that it is wellsettled rule of interpretation that every statute is primafacie prospective, unless it is expressly or by necessaryimplication made to have retrospective effect and has alsoheld that there is no such clause in the amendment by IndianDivorce Act, 1869 the Court below has referred the judgmentand decree under Section 17 of the Divorce Act forconfirmation by this Court and no party has enteredappearance in spite of the publication of notice in thenewspapers, the Court has no option but to confirm thedecree.” https://hcservices.ecourts.gov.in/hcservices/

46.While agreeing with the decision taken by the Full Bench of thePatna and Delhi High Courts, we hold that the amendment carried out tothe Divorce Act, is only prospective and it would not have effect on anapplication already filed under the unamended Act and pending. On thefacts of the present case, as stated above, when the trial court passedorder of divorce, which was on 10.08.2000, the amendment did not comeinto effect. The amendment having come into effect on 03.10.2001 and thematter being filed under Section 17 of the Divorce Act, we are of theview that it requires confirmation of three judges of the High Court, asper the unamended Act.7.We have perused the order passed by the learned PrincipalDistrict Judge as a trial Court. The trial court has taken note of theevidence of P.Ws.1 & 2, P.W.1 being the petitioner in the O.P and alsoconsidered the various exhibits particularly Ex.P.5 dated 26.04.1996,which is an order passed in I.D.O.P.No.82 of 1995 filed by the husbandfor judicial separation on the ground of cruelty and has granted decreeof divorce. There is no contra evidence on the side of the husbandbefore the trial court since he remained exparte before the trial court.In the present application for confirmation, the husband is representedby the counsel.8.We have heard the learned counsel for the husband also, who alsosubmitted that his client stood exparte before the trial court and thereis no contra evidence even now.9.We have carefully considered the pleadings and also evidence letin by the wife and another witness on her behalf and we are in agreementwith the finding of the learned trial Judge in granting divorce. 10.We place on record our deep appreciation to the sincere effortsmade by Mr.R.Devaraj, learned counsel who was appointed as amicus curiaeby this Court, who has taken enormous efforts to find out variousjudgments from various High Courts apart from bringing out the amendedprovisions in a proper manner. Hence the decree passed by the learnedtrial Judge granting divorce is made absolute. Confirmation shall takeeffect from the date of passing of the judgment and decree by the trialcourt. Sd/-Assistant Registrar (RTI)/True Copy/Sub Assistant Registrar (C.S)ToThe Principal District Judge, Thanjavur.+ 2 cc to M/s.S.Siva Ilayaraja, Advocate, SR No.29842Matrimo.Causes(MD)No.1 of 2011inI.A.No.113 of 2010inI.D.O.P.No.9 of 200005.09.2011vs/RJ/20.10.11/(4p/4c)