Christian Law of Divorce in India - The Amendment Act of 2001 and Its Intricacies

The Amendment Act of 2001 and Its Intricacies

However, there are many incongruities in the provisions under the Divorce Act after its amendment. With the deletion of the words "District Court" from section 16 of the Act, the cumulative effect is that a District Court can now issue a decree absolute at the first instance whereas a High Court can only pronounce a decree nisi at the first instance which has to be made absolute after the expiry of a period of six months from the date of the said decree. As a result the District Court is conferred with more powers than the High Court in this regard. There is total non-application of mind on these aspects by the Legislature. However, with the amendment of sections 17 and 20, the requirement of confirmation of the decrees passed by the District Court/ Family Court has now been done away with, which, in fact grants great relief to parties, who invoke the jurisdiction of the District Court or the Family Court.

But Parliament has miserably failed to incorporate specific provisions as to jurisdiction of the Courts to entertain petitions or suit under the Act. The age-old concept of the place where the parties have last resided together is still retained in the matter of High Courts. The attempt made to confer jurisdiction on District Courts/Family Courts in whose jurisdiction the marriage was solemnised has been worded in clumsy language in subsection 3 of section 3. The District Court gets jurisdiction if the marriage was solemnised under this Act within its jurisdiction. For that matter, no marriage is solemnised under this Act and there are no provisions under this Act dealing with solemnisation of marriages. In fact the provision in the Act of 1869 that the proceedings ought to be instituted in the place where the parties reside or last resided together, has been creating a lot of confusion, trouble and cost to the litigants and the Courts in the past. Parties might have last resided together at places beyond India, or at places outside their State and on separation they might have got settled down at their respective native places. To drive them to a place where they last resided together to seek matrimonial reliefs is nothing short of harassment to the core. It is pertinent to note that the Marriage Laws (Amendment) Act, 2003 has also been not made applicable in the case of proceedings under the Divorce Act. Again, the Amendment has not specified as to whether it is retrospective in operation and no specific provision has been made regarding pending proceedings and especially that of confirmation proceedings pending before the High Court.

Further, the Indian Divorce (Amendment) Act, 2001, has failed to specify the jurisdiction of the High Court vis-à-vis the District Court/ Family Court. Under section 4 of the Divorce Act, as it stands amended, the jurisdiction now exercised by the High Courts in respect of proceedings under the Act shall be exercised by such High Court and by the District Court subject to the provisions contained in the Act. The historical evolution of the law shows that the High Court exercised original jurisdiction in matrimonial matters even prior to the enactment of the Indian Divorce Act, 1869. That being so, the original jurisdiction of the High Court has never been interfered with under the Act of 1869 and all pending suits in the High Courts were to be dealt with under the Act of 1869 as specified in Section 6 of the Act. Even in the Indian Divorce (Amendment) Act of 2001, no change has been made in section 4 or section 6 of the Act of 1869. Further, section 16 provides that every decree for dissolution of marriage made by High Court shall in the first instance, be a decree nisi. And, under sub section (1) of section 3 read with section 4, makes it clear that a petition can be filed in the High Court for the area where the husband and wife reside or last resided together. Again, the appeal provision under section 56 also adds strength to this position where it is provided that an appeal can be filed against a decree or order of a High Court made on appeal or otherwise, when the High Court declares that the case is a fit one for appeal to the Supreme Court. This view stands strengthened on an analysis of the statement of objects and reasons for the Indian Divorce (Amendment) Act of 2001. From the statement of objects and reasons for the Act, it is evident that the intention of the Legislature was only to obliterate gender discrimination and to do away with the procedural requirement of confirmation from the High Court in respect of decrees of nullity and divorce granted by the District Court. Therefore, obviously, the Legislature did not interfere with the provisions dealing with jurisdiction of Courts. The Forms given in the Schedule have not been amended. As per the Forms, petitions can be filed in the High Court or in the District Court. In short, the Indian Divorce (Amendment) Act, 2001, has conferred wider powers on the District Courts/Family Courts and it has done away with gender discrimination writ large in the various provisions of the Act but has not substantially affected the Original Jurisdiction of the High Court.

However a different approach to the question of jurisdiction of the High Court is also possible. It can be argued that even though the original jurisdiction of the High Courts are still preserved, as sections 10, 18, 22, 32 etc. enables a petitioner to move the District Court only and that the provisions enabling the High Court to exercise original jurisdiction will be attracted only in the case of exercise of jurisdiction under section 8 of the Act. In this context it can be observed that the High Court can exercise its discretion in the matter of exercise of jurisdiction and if the Court is satisfied that invoking of the jurisdiction of the High Court is not with malafides so as to harass the respondent, the High Court may still exercise its original jurisdiction in appropriate cases.

It is in this state of confusion that the High Court of Kerala took suo motu Proceedings to decide on the question of exercise of jurisdiction by the District Court/ Family Court viz-a-viz the High Court after the Amendment Act of 2001. It was held that as a result of the amendments carried out by Act No. 51 of 2001, the original jurisdiction of High Court in matrimonial matters under the Divorce Act is taken away except to the limited extent retained under Section 17. The original jurisdiction is now confined to the special power of the High Court under Section 17 to be exercised in the circumstances indicated therein. The view taken by the learned single judge in Sherly Thomas v. Johny that, after the amendment of section 10 and 18 of the Indian Divorce Act, the High Court lacks jurisdiction to entertain petitions under section 10 and 18 of the Divorce Act was approved by the Special Bench. Apart from the limited area under section 17, the original jurisdiction in matrimonial matters under the Divorce Act now rests exclusively with the Family Courts, in areas where they are in existence, and in other areas with the District Courts.

It was further held that in matters where decrees nisi have been passed by the High Court, the decrees nisi would have to be confirmed by the High Court by following the procedure prescribed under section 16 of the Divorce Act. And it was also held that all the Original Petitions under the Indian Divorce Act pending in the High Court on 3 October 2001 shall continue to be heard and disposed of in accordance with the unamended Indian Divorce Act, 1869,for that would be consistent with the provisions of section 6 of the General Clauses Act. Since the amending Act has come into force from 3 October 2001 and as it has no retrospective effect, all petitions filed thereafter in the High Court must necessarily be transferred to the District/Family Court, whatever be the stage. In cases where decrees were already passed prior to 3 October 2001, they are to be disposed of in accordance with the procedure in Section 20. Any other view would mean depriving the litigant of the benefit of confirmation of the decree as also the right of appeal, which would not be available in their cases.

Both the Legislature and the High Court still failed to advert to a vital issue in this matter. What law and what procedure would apply to matters instituted prior to 3 October 2001 before the Family Court/ District Court and pending as on 3 October 2001. Whether decrees passed after 3 October 2001 in such cases would still require to be confirmed by the High Court. It appears that as the High Court has already held that the amendment Act of 2001 is not retrospective in operation, decrees passed in such pending matters as aforesaid still require to be confirmed by the High Court, as otherwise such decrees will have no legal validity. In spite of all the shortcomings, the Indian Divorce (Amendment) Act, 2001, is by and large a welcome measure.However section 10A provides that the divorce by mutual consent.