Report No. 164
2.8.1. Existing provision for confirmation by a special Bench' of three judges of the High Court, criticised.-
The aforesaid provision for confirmation by a special Bench of three judges of the High Court has been uniformly criticised by almost all the High Courts in the country. They have suggested that the relevant provisions be amended to bring them on par with the corresponding provisions in other personal laws. A brief reference to the said decisions would be in order.
2.3.2. In Mrs. Neena v. John, AIR 1985 MP 85 (87), a special bench of the three judges of the High Court of Madhya Pradesh observed as under:
"the procedure prescribed by section 17 of, the Indian Divorce Act, 1869, requiring confirmation by the High Court of a decree for dissolution of a marriage made by District Judge, prolongs the agony of the affected parties even though none of the parties is desirous of preferring an appeal. We see no valid justification for continuation of this procedure especially when no such procedure is prescribed by other Acts dealing with dissolution of marriages, namely, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955... In our opinion, therefore, there is an urgent need for making suitable amendments in the Indian Divorce Act, 1869 as made in Uttar Pradesh by Act No. 30 of 1957."
2.8.3. Similarly, a special Bench of three judges of the Calcutta High Court observed as follows in Swapna Ghosh v. Sadananda Ghosh, AIR 1989 Cal 1 (2):
"I have, however, my own doubts as to whether the provisions of section 17 of the Indian Divorce Act requiring confirmation of the decree of the trial court by the High Court should any longer be retained. A decree for dissolution of marriage among the Hindus, Buddhists, Sikhs and Jains under the Hindu Marriage Act, 1955 among the Parsis under the Parsi Marriage and Divorce Act, 1936, among the Muslims under the Dissolution of Muslim Marriage Act, 1939 are made by the District Courts and under the last mentioned Act, even by courts of lower rank and all such decrees operate with the fullest efficacy without any confirmation from the High Court.
It is, recommendation to that effect in emphatic terms Have not the Christian spouses been denied procedural reasonableness and due process by these provisions of section 17 providing for compulsory confirmation hearing, in the context of the spouses belonging to other communities whose matrimonial proceedings are not subjected to any such further hearing?"
2.8.4. The same views have been reiterated in another decision of the Calcutta High Court in Ramish Francis Toppo v. Violet Francis Toppo, AIR 1989 Cal 128.
2.9. To the same effect are observations of special Bench of three judges of the Bombay High Court in Mrs. Pragati Varghese v. Cyril George Varghese, AIR 1997 Born 349 (FB) 373:
"Section 17, we further find, provides that in case a High Court comprises of only two judges and decree passed by a District Court comes up for confirmation before the said two judges and in case of a difference of opinion, the provision contemplates that the decision of the senior judge would prevail. In our judgment, the aforesaid procedure contemplated by sections 16, 17 and 20 are unreasonable and are arbitrary in nature. The same achieves no useful object or purpose. The procedure provided tends to perpetuate the agonies of the affected parties for no useful purpose. If such a procedure is absent in other similar enactments, we do not find any propriety why this procedure should be applied to Christian spouses.
The said procedure, in the circumstances, is liable to be struck down by suitable amendments, which we suggest should be brought about by suitable amendments in the Act. We further find the provisions of sections 16, 17 and 20 of the Act are also arbitrary and unreasonable. We suggest that the legislature should intervene and carry out suitable amendments to 'the Act' at the earliest. We direct that a copy of this order may be forwarded forthwith to the Ministry of Law and Justice for such action as they may deem fit to take."
2.10. The latest decision reiterating the above observations is that of the Kerala High Court. A special Bench of three judges observed thus in their order dated 10th August, 19981. The relevant observations are to the following effect:
"Before this Court, even though notice is served on the respondent, he is neither present nor represented by counsel. We feel that it is high time that the provision regarding confirmation under sections 17 and 20 of the Indian Divorce Act, 1869 are deleted from the statute. Section 17 provides that every decree for dissolution of marriage made by a district judge shall be subject to confirmation by the High Court.
It is further provided that cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the judges of the High Court is three or upwards) by a court composed of three such judges or (where the number of the judges of the High Court is two) by a court composed of such two judges. Section 20 provides that every decree of nullity of marriage made by a district judge shall be subject to confirmation by the High Court.
That too by a bench of three judges in courts where the number of judges is three or upwards and where the number of judges of the High Court is two, by a bench composed of two judges. A petition under section 10 for grant of divorce and section 18 for declaring the marriage null and void can be filed both before the district court as well as the High Court. When such petitions are filed in the High Court, it is being heard by a single judge and appeal therefrom by a bench constituting two judges.
Above being the provision, we are of the view that confirmation of a judgment of the district court by a bench of three judges is absolutely unwarranted. We are also of the view that the provision for confirmation can be deleted and in its place a provision could be made for filing an appeal before the High Court by whichever party aggrieved by the order passed either under section 10 or under section 18. Such an appeal can be heard by a bench consisting of two judges as in the case of all other matrimonial appeals."
1. C.M. Reference No. 48/98 (Bincy Mathew v: Sabu Abraham), decided on 10-8-33 by the High Court of Kerala.
2.11. The Madras High Court has also expressed similar views in Solomon Solomon Devasahayam Selvaraj v. Chandirah Mary, (1968) 1 Mluj 289.