Topic: Apurba Mohan Ghosh vs Manashi Ghosh

Apurba Mohan Ghosh v/s Manashi Ghosh
Equivalent citations: AIR 1989 Cal 115, 93 CWN 79, I (1990) DMC 145 - Bench: A Bhattacharjee, A K Nayak - Date of Judgment: 10 June, 1988

JUDGMENT

A.M. Bhattacharjee, J.

1. The appellant-husband petitioned against the wife-respondent in court below for dissolution of the marriage on the ground of her alleged mental disorder and the petition having been dismissed, the husband has preferred this appeal to this Court. But both the parties have now filed a joint-petition before us praying that the marriage between them may be dissolved by a decree of divorce on compromise on the terms and conditions contained therein. The question that has accordingly arisen for our consideration is whether such a course is permissible under the provisions of the Hindu Marriage Act, 1955.

2. Under Section 21 of the Hindu Marriage Act, ''all proceedings under this Act shall be regulated, as far as may be, by the Civil P.C.",

which would accordingly include Order 23, Rule 3 of the Code, providing for compromise of suit. But as indicated in Section 21 itself in its opening words, the Civil P.C. would apply "subject to the other provisions contained in this Act", and as provided in Rule 3 of Order 23 of the Code, the Rule would apply only when the Court is satisfied that the "agreement of compromise", on the basis of which the proceeding is sought to be decreed, is "lawful". We would accordingly have to ascertain as to whether the "agreement or compromise" in question is lawful and whether there is anything in the Hindu Marriage Act, express or implied, to outweigh the operation of Rule 3 of Order 23 of the Civil P.C. to a proceeding under the Hindu Marriage Act.

3. Section 23 of the Hindu Marriage Act, providing for decree to be awarded thereunder, expressly provides that only when "any of the grounds for granting relief exists", obviously meaning thereby any of the grounds specified in the Act, and the other relevant provisions in Cls. (a) to (e) are also satisfied, then only, "but not otherwise", the Court can decree the reliefs prayed for. The expression "but not otherwise" is weighty enough to indicate with unmistakable clarity that a decree can be granted by the Court only when any of the statutory grounds mentioned in the Act for the grant of relief is found to exist and not merely on the grounds that the parties have agreed to the grant of such a decree. If a special statute governs the grant of relief therein and affirmatively provides that decrees for such reliefs can be granted on those grounds and also negatively provides that decrees can be granted not otherwise, i.e., on no other grounds, then the decree on any ground not provided in the statute would not only be illegal but may amount to a nullity. This is the process of reasoning on which the Supreme Court has held, in a long catena of decisions since 1970 under the Rent Control Acts, that when such Act provides that no decree for eviction can be passed except on one or more of the grounds mentioned therein, a decree passed solely on the basis of compromise without the Court's satisfaction as to the existence of any of such grounds is a nullity. Reference may be made to the

decision of the Supreme Court in Roshan Lal v. Madan Lal, where all the earlier decisions on the point have been referred to and reviewed and it has been pointed out that even where a landlord and a tenant, in order to avoid protracted litigation or otherwise, agreed to a decree of eviction on compromise, the Court can pass an effective decree of compromise only when the Court is satisfied that the compromise indicates, either on its face or in the background of other materials on record, that a statutory ground of eviction has been made out. A later decision of the Supreme Court in Nai Bahu v. Lala Ramnarayan, has also pointed out that while a decree for eviction can be passed on compromise, yet the same may be challenged as a nullity if the records do not indicate that the Court could be satisfied as to the existence of any grounds provided in the relevant law for eviction. Most of these decisions proceeded on the assumption of a public policy involved in relevant Rent Control Acts to give protection to the tenants.

4. Since marriage is an institution around which our civilised society has germinated, the question of public policy involved in the matrimonial law providing for the maintenance as well as dissolution of marriage is no less important than the public policy involved in the Rent Control Laws seeking to provide protection to the tenants. On a parity of reasoning, therefore, it must be held that since the Hindu Marriage Act has in details provided for the grounds for dissolution and has further provided in Section 23(1)(e) that dissolution can be decreed on those grounds, "but not otherwise", a decree of divorce on the basis of consent or compromise alone without the satisfaction of the Court as to the existence of any of the statutory grounds would be without jurisdiction. Our view appears to be fully fortified by the observations of the Supreme Court in Reynold Rajamani, to the effect that "when a legislative provision specifies the grounds on which divorce may be granted, they constitute the only conditions on which the court has jurisdiction to grant

divorce". That was a case under the Indian Divorce Act, 1869, Section 10 whereof specifies the grounds of divorce, but there is no express provision anywhere in that Act, analogous to Section 23(1)(e) of the Hindu Marriage Act, providing specifically that a divorce can be granted only on the grounds specified in the Section, but not otherwise. If, even in the absence of such negative prohibitory provisions, the Supreme Court has ruled in Reynold Rajamani (supra) that divorce on any ground not specified in the Act would be without jurisdiction, then the same would a fortiori apply all the more to cases under the Hindu Marriage Act, Section 23(1)(e) whereof contains such categorical prohibition,

5. It is true that by the Amendment Act of 1976, a new Section 13B has been inserted in the Hindu Marriage Act with the marginal note "Divorce by mutual consent" and that has given rise to an impression, erroneous though, that the decree of divorce can now be granted on the basis of mutual consent alone. As the provisions of the Section itself would make it clear, a decree under Section 13B cannot be passed in favour of the parties solely on the ground of their mutual consent but on the satisfaction of the Court as to the existence of three conditions, namely, (a) "that they have been living separately for a period of one year or more", (b) "that they have not been able to live together" and (c) "that they have mutually agreed that the marriage should be dissolved". So even after the introduction of this Section 13B, a compromise decree for divorce on the basis of mutual consent simpliciter would be a decree not on any of the grounds specified in the Act within the meaning of Section 23(1)(a), but one otherwise than on such grounds, which the Court is not empowered to grant under Section 23(1)(a).

6. There are no doubt some observations in the majority judgments in the Full Bench decision of the Punjab and Haryana High Court in Joginder Singh v. Pushpa, which might appear to be authority for the view that a consent decree under the Hindu Marriage Act, even though not in accordance with the provisions thereof,

may be illegal but not a nullity and therefore is to be treated as validly operative until set aside in due course of law. We are afraid, and this we say with respect, that the attention of the learned Judges were not duly drawn to the provisions of, Section 23(1)(a) and (e), whereunder decrees under the Act are to be passed only on the satisfaction of the Court as to the existence of any of the statutory grounds, "but not otherwise" and that in view of the ratio of the decisions of the Supreme Court in Roshan Lal (supra) and in Nai Bahu (supra) and the earlier decisions since 1970 referred to and relied on therein, and more particularly, the observations of the Supreme Court in the context of the Divorce Act, 1869 in Reynold Rajamani (supra), extracted hereinbefore, this view of the Punjab and Haryana High Court is no longer good law. But even going by the Punjab and Haryana view that consent decrees may be "illega" but not "nullities", no Court should lend its imprimatur to a decree even on compromise which, even though not a nullity, is nevertheless illegal It would be trite to say, as is evident from the provision of Order 23, Rule 3 of the Code of Civil Procedure, that a Court can record a compromise and pass a decree in accordance therewith only when such a compromise is lawful. It is true that this Full Bench of Punjab and Haryana decision in Joginder Singh (supra) has been referred to with approval by the Supreme Court in Saroj Rani v. Sudarshan, . Butallthat has been approved of the Punjab decision by the Supreme Court in Saroj Rani (supra) is the view that "all cases of consent decrees cannot be said to be collusive" and "consent decrees per se in matrimonial matters are not collusive". We have not propunded any contrary view hereinbefore, but have only tried to point out that a divorce-decree merely on the basis of mutual consent or compromise without any material on the record on the basis of which the Court could be satisfied as to the existence of any statutory ground for divorce would be without jurisdiction and a nullity and we have found the Supreme Court decisions in Roshan Lal (supra) and in Nai Bahu (supra) and the

series of earlier decisions referred to and relied on therein, and particularly the observations of the Supreme Court in Reynold Rajamani (supra) to be clear authorities for this proposition and we would only add that the Supreme Court in Saroj Rani (supra) has laid down nothing to the contrary and has not in fact considered the question arising before us even remotely.

7. In the case at hand, therefore, before decreeing divorce on compromise, we must find some material on the record, whether in the pleadings, evidence or otherwise, which can be a ground of divorce under the Hindu Marriage Act, for otherwise according to our reading of the relevant provisions of the Hindu Marriage Act and Order 23 of the Code of Civil Procedure and the series of decisions of the Supreme Court in Roshan Lal (supra) and Nai Bahu (supra) and the other earlier decisions referred to and relied on therein and the observations in Reynold Rajamani (supra), a decree of divorce solely on the basis of compromise, without any advertence as to the existence of any of the permissible grounds is not permissible under the Law. As we have already indicated, even a decree for divorce under the newly added Section 13B, labelled as "Divorce by mutual consent", cannot be granted by the Court on mutual consent alone, without being satisfied that the parties are living, and could not but live separately for one year or more and things have come to such a pass that they cannot cohabit together.

8. There appears to be authorities, quite a number, for the view that even where a divorce proceeding on one or more of the grounds specified in Statute has been hotly contested in the trial Court and has been dismissed, the parties, in the appeal therefrom, may for the first time apply before the Appellate Court for "divorce by mutual consent" under Section 13B and may be granted such a decree. The contention that a joint application for relief of divorce by mutual consent under Section 13B can only be filed in the District Court and it is only that Court which can pass a decree on the motion of both the parties after 6 months and within 18

months of the presentation of the petition, and not by the Appellate Court while hearing an appeal from a contested divorce proceeding has been negatived. Reference may be made, among others, to a Division Bench decision of the Andhra Pradesh High Court in K. Omprakash v. K, Nalini, where it has been held that not only the powers under Section 13B can be exercised by the Appellate Court even while hearing an appeal from a contested divorce proceeding initiated on specified ground, but that the time limit of 6 months and 18 months and all that in Section 13B(2) would not apply to the Appellate Court, the procedure contained therein being directory. Reference may also be made to a single Judge decision of the Delhi High Court fn Ganga v. Santosh, (1985) 2 DMC 7 where a decree for dissolution on mutual consent was granted by the High Court on an application before that Court in appeal.

9. We do not propose to determine that question as we are of opinion that we can record the compromise and decree divorce on that basis under the general procedure provided in Order 23, Rule 3 of the Civil P.C. which applies to the proceedings under the Hindu Marriage Act in view of Section 21 thereof. All that we have said hereinbefore is that we can not decree divorce solely on the basis of compromise unless we are also satisfied that a ground for divorce specified in the Statute can be traced on the record In the case at hand it is on record that the parties have fought with severest bellicosity in the Courts below for about two years, the charge of the husband being mental disorder of the wife and that of the wife being cruelty and physical tenure by the husband. Having lost at the first bout in the trial Court, the husband has filed this appeal and the parties were contesting the same with all severity for about two years in this Court. They are living separately during all these years and both of them have sworn in their joint-affidavit that they have not been nor would be able to live together. To the same effect is their statement before us when we directed them to appear

before us in the Chamber to ascertain the truth of their averments made in the joint-application. If the spouses could not live together, do not live together and they swear that they would no longer live or able to live together, then we have no doubt that "desertion" by the one of the other is complete whoever might have given the initial cause because all the three elements that generally go to constitute "desertion" namely, the factum of separation, the animus deserendi, i.e., the intention to live apart and the animus non-revertendi, i.e., the intention not to revert to the matrimonial home stare at the face. Being thus satisfied as to the existence of a ground justifying divorce under the Hindu Marriage Act, we should not and do not have any hesitation to direct recording of the compromise and to decree divorce in accordance with such compromise and we direct accordingly. We have noted that a learned single Judge of the Delhi High Court (Punjab and Haryana High Court) in Davinder v. Loveleen, (1982) 2 DMC 5 and also a learned single Judge of the Bombay High Court in Sudhakarv. Sulabha, (1986) 1 DMC 336 also adopted such a course; but while the learned Delhi (Punj and Har High Court) Judge has not given any reasons therefor the learned Bombay Judge, while spelling out some reasons, has not adverted to the various aspects which we have considered here.

10. We accordingly in accordance with the terms of compromise recorded in the joint petition, allow the appeal and decree that the marriage between the appellant husband and the wife-respondent stands dissolved with effect from this date. As desired by the parties, we also record that the wife respondent has acknowledged receipt of the entire amounts and also the ornaments receivable by her under the terms of compromise. The petition of compromise to form part of the decree. No costs.

Ajit Kumarnayak, J.
11. I agree.