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Report No. 15

77. Decree nisi and decree absolute.-

A question on which there is divergence of opinion is as to the procedure to be followed before a decree for divorce is finally made. Under section 16 of the Indian Divorce Act, a decree nisi has first to be passed, and a decree absolute could thereafter be made only after the expiration of such time as the High Court might direct, but not less than six months from the pronouncement of the decree nisi. The point for consideration now is, whether the proposed legislation should retain that procedure, or whether, dispensing with the decree nisi, it should provide for a decree for divorce being straightway passed.

In support of the latter view, it is said that that would simplify the procedure in an action for divorce, save time and reduce expense. It is also pointed out that both the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, provide for the passing of only a single decree, and it is said that it is desirable that the law relating to divorce among Christians must also fall in line with them, and that therefore the provision for the passing of a decree nisi should be abolished. As against this, it is claimed that the procedure of passing a decree nisi, before a decree absolute dissolving the marriage is made, has certain advantages justifying its retention.

First, it is said that the provision that there should first be a decree nisi and that a specified period should elapse before it could be made absolute, would give the parties a further opportunity of becoming reconciled. Secondly, it is said that the present procedure is better suited to prevent collusive decrees of divorce being obtained. Mere service of summons in a divorce action on the respondent goes generally unnoticed; but the proceedings in court resulting in a decree are bound to attract attention and afford reasonable opportunity to any person to establish that the proceedings are really collusive.

It is said that the need for such a provision is all the greater, as it is now proposed to omit1 section 17A of the Indian Divorce Act, and there would thus be no officer who could intervene in the proceedings and object to a decree being passed on the ground of collusion. In this connection, reference may be made to the sections of the Matrimonial Causes Act, 1950, bearing on this point. Section 12(1) provides for a decree nisi being passed, and that can be made absolute only after the expiry of six months from the pronouncement thereof unless the court fixes a shorter time. Then section 12(2) provides that any person might intervene and show cause why it should not be made absolute, on the ground of collusion or other relevant circumstances.

It is said that the proposed legislation should be on the same lines for this reason as well. Thirdly, it is said that the procedure of first passing a decree nisi and then absolute obtains in all the English-speaking countries and has practically come to be regarded as part of the law of the Christians. The question whether this procedure should be continued, or whether one decree should be passed dissolving the marriage was considered by the Royal Commission2, and it expressed the opinion that it was desirable to retain the existing procedure of passing a decree nisi which could be made absolute after a specified period, and it has further suggested that that period should be three months.

The evidence of the witnesses before us is also in support of this view. There was only one witness who stated that the procedure of passing two decrees might be abolished, but in the course of discussion, it appeared that his objection to its retention was based mainly on the ground of additional expense. The Roman Catholic witnesses, on the other hand, desired that after the passing of a decree nisi nine months should elapse before a decree absolute is passed.

1. See para. 79, infra.

2. Report of the Royal Commission on Marriage and Divorce, 1955 Cmd. 6785, pp. 250 to 252, paras. 952 to 958.

78. It will be relevant, for the purpose of deciding which of the two views should be accepted, to refer to section 57 of the Indian Divorce Act, which enacts that when a decree for divorce has been passed, it shall be lawful for the respective parties to marry again after the expiration of six months from the date of the decree and not earlier. The combined effect of sections 16 and 57 of the Divorce Act is that after a decree nisi has been passed for dissolution, six months must elapse before a decree absolute can be passed, and another six months must elapse before the parties can re-marry.

Section 30 of the Special Marriage Act, 1954, provides that when the marriage has been dissolved by a decree, and that decree has become final, the parties thereto may re-marry after the lapse of one year, but not earlier. A similar provision has been enacted in section 15 of the Hindu Marriage Act, 1955. Now it is for consideration whether it would be expedient to enact a prohibition against re-marriage after a decree for dissolution is finally made. If there is a marriage during the prohibited period, it is in law null and void and the children of that marriage would be illegitimate.

Questions have also arisen as to the paternity of children born after the decree for dissolution of the marriage and within the prohibited period. We are disposed to think that the purpose of prohibiting a marriage after a decree for dissolution, namely, to prevent resort to divorce proceedings for getting rid of the wife, so as to be able to marry another woman is better served by prescribing an interval between the decree nisi and the decree absolute.

So far as the parties to the action are concerned, it will make no difference in the result whether there is a single decree dissolving the marriage, followed by a period during which they cannot re-marry, or whether there is a decree nisi, followed by a decree for divorce to be after a specified period, with no further prohibition against re-marriage. After careful consideration, we have come to the conclusion that the procedure of decree nisi and decree absolute should be retained, and that after the final decree, the parties should be free to re-marry (after the period of appeal has expired).

Report on the Law of Christian Marriage and Divorce Back

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