SARDAR MUHAMMAD IQBAL, J.--Mrs. I. Butt, whose maiden, name was Nee Isabella Houghton, a Christian lady, was married, according to Christian rites, on the 27th of November 1954 with Mr. Khalid Bilal Butt, who was renamed Stand Claus Joseph. Three children were born out of this union.
The relations between them, however, became strained, and consequently on the 22nd of May 1965, Mrs. I. Butt, moved before the District Judge at Lahore a petition under section 10 of the Divorce-Act IV of 1869, for the dissolution of marriage. According to her allegations, throughout the married life of the parties, the respondent had been treating her with cruelty. She was turned out of the house on the 4th of September 1962, whereafter the respondent failed to provide maintenance to her and she earned her livelihood by adopting the profession of teaching. It was further pleaded that the respondent had reverted to Islam and also committed bigamy by marrying another woman according to Muslim rites. The District Judge gave notice of the petition to the respondent, but he refused to accept service. Substituted service was done through the Pakistan Times, Lahore, but he did not appear in Court. Ex parte proceedings were, therefore, taken against him. The learned District Judge, after recording evidence of the witnesses produced by the lady, dissolved the marriage on the grounds that the respondent had failed to provide maintenance to the petitioner ; that he treated her with cruelty, and that the respondent was guilty of bigamy. The decree of the District Judge is before us for confirmation under section 17 of the Act.
2. Although notice of the reference was given to both the parties, yet none of them appeared before us. As already observed, the learned District Judge, has held that cruelty on the part of the respondent has been sufficiently proved by evidence produced by the petitioner. He has further held that the respondent failed to provide maintenance to the petitioner for more than two years.
The petitioner has also brought evidence on record to prove that the respondent has renounced Christianity and has reverted to Islam, and that he has actually remarried and has gone through a form of marriage with another woman according to Muslim rites. We have perused the entire evidence and find that the learned District Judge has rightly concluded in favour of the petitioner.
3. There is a reference before us by the District Judge but there is no application for confirmation of the decree, by any of the parties. The question arises whether on reference made by the District Judge the High Court becomes vested with the jurisdiction to pass order under section 17 and the exercise of such a jurisdiction is not dependent on an application to be made by the petitioner.
There is divergence of opinion on this simple point. In Gulley v. Gulley it was held that the Court could not confirm the decree without an application being made to it for the purpose. The same view was taken in Johan Roberts v. Joyes Roberts and it was further observed that the respondent against whom the decree is passed is debarred from taking any steps in the matter of the confirmation of the decree by the High Court until the petitioner chooses to apply for confirmation.
On the basis of the practice prevalent in England, it was observed in A. F. H. Pushong v. Mrs. R. 0.
Pushong that on the application of the person who is an innocent party, a decree can be confirmed by the High Court. Thus, the view of the Allahabad High Court consistently has been that a decree passed by a District Judge cannot be confirmed unless the petitioner chooses to move for its confirmation, and the High Court cannot pass any order merely on a reference made to it by the District Judge.
In none of the judgments of Allahabad High Court the scope of section 17 was considered on its own tenor and the decisions are based on the practice prevalent in England.
4. High Courts had the exclusive jurisdiction before the Divorce Act of 1869 to deal with, and try, cases of divorce between the Christian spouses. To relieve the poor Christians living in the districts far away from the Seat of the High Court, of the hardship which they had to suffer in order to invoke directly the jurisdiction of the High Court, it was provided by section 4 of the 1869-Act that District Courts will have the concurrent jurisdiction with the High Court in such matters. A provision was, however, made in section 17 that "every decree for discelution of marriage made by a District Judge shall be subject to confirmation by the High Court". Once the District Judge passes a decree for dissolution of marriage between Christian spouses, he is under a statutory obligation to refer the case to the High Court for its confirmation. If it refuses to confirm, it is tantamount to an order of dismissal of the petition. There being no provision that the High Court cannot take action on a reference made to it by the District Judge unless an application is made to it by the petitioner, it is not permissible to read these words in the section. In fact, the moment a decree is referred by the District Judge to the High Court, it becomes its statutory responsibility to dispose of the reference.
There is no provision like section 17 in the English Law. The English practice which does not provide for a procedure of hearing such cases at two stages, as here, firstly by the District Judge and then for confirmation by the High Court, could not be a valid basis for holding that the jurisdiction of the Court to confirm decree is dependent on the application to be made by the petitioner. In C.
Gallimore v. Alice Gallimoreit was held that to complete the jurisdiction it is not necessary that there should be any personal appearance of the petitioner before the High Court, and that even if the guilty party applies for confirmation of the decree, the jurisdiction of the High Court, which arises in any case, is not destroyed. This view was affirmed in Stiphun Surin v. Piary Marki. Exactly the same view was expressed in Guda William v. Guda Karunmma. In William Dare v. Mrs. Balle again a similar view was taken. Stuart v. Stuart is a case where the High Court of Calcutta confirmed the decree on a reference made to it by the District Judge when the petitioner had not appeared nor had moved an application. It clearly implies from the judgment that an application for confirmation is not necessary. The view taken by the High Courts of Madras and Patna, and impliedly by the Calcutta High Court, being consistent with the provisions of section 17 is to be1 2 3 4 5 6 7 8 preferred to the view of Allahabad High Court. The jurisdiction of the High Court to confirm a decree passed by a District Judge depends on a reference made to it by the District Judge, and it is not necessary that there should be an application on behalf of the petitioner seeking the confirmation, otherwise it will frustrate the very purpose and object of the Legislature in conferring jurisdiction on the District Judges to decide the suits for divorce. It could not be the intention that if, with a view to relieving a Christian lady of a hardship, a provision was made for enabling her to bring petition for dissolution of marriage before the District Court and after she succeeds in getting the decree, she should again apply to the High Court for its confirmation. It is not necessary, in our opinion, for the petitioner to move an application for confirmation.
5. The next question to be examined is whether a decree against a respondent can be confirmed without service notice on him. It was held in Hicks v. Hicks, that it is "not necessary in order that a decree nisi for dissolution of marriage may be made absolute, that the decree should be served upon the respondents". This judgment is based on Warden v. Warden and Willis v. Willis, and was followed in Herris v. Herds, where it was observed that in proceedings for the confirmation of a decree nisi for the dissolution of a marriage, it is not necessary that the respondent should be served with a notice of proceedings. It was held in Dudley Whigham Norris v. Margaret Norris, that a notice can be dispensed with in an appropriate case, e g. a case in which the respondent after due notice of the proceedings in the lower Court did not put in appearance. It depends on the circumstances of each case whether or not the respondent should be served with notice. Where the respondent has contested and has opposed the petition B for dissolution of marriage. he should be served with a notice because unless he is so served he shall not have an opportunity to show cause as to why the decree should not be confirmed. The Court can, under section 17, refuse confirmation of the decree and in case it is to pass any such order it is again necessary that the petitioner should likewise be served, because by the refusal to confirm the decree, her rights are to be adversely affected.
6. So far as the respondent in the present case is concerned, he had been served with notice of the petition filed by the petitioner in the lower Court, but he remained ex parte throughout. A notice of the reference was also sent to him, but he has not turned up. He had ample opportunity in the lower Court to contest the petition had he been so minded. We, therefore, do not consider it necessary to send to him notice of these proceedings once again, for the confirmation of the decree is nothing more than a mere continuation of the original suit which had been filed in the Court below. The decree for dissolution of marriage between Mrs. I. Butt and Mr. Khalid Bilal Butt is confirmed. Since, however, the parties are absent, we make no order as to costs.
7. Before parting with the case, we would like to observe that much water has flown under the bridge since the Divorce Act was brought on the Statute Book in 1.1869, and things have undergone a considerable change. In a case of dissolution of marriage between two Christians the matter is heard under section 4 of the Act firstly by the District Judge and the decree passed by him under section 16 dissolving the marriage is subject to the confirmation by the High Court under section 17.
The reference is required by law to be heard by a Special Bench of three Judges. As against this a Muslim wife can file a suit for dissolution of marriage before a Family Court and its decision is, except on the ground that the husband has misappropriated her property, final. The decision is not even appealable to the High Court. Marriage is a sacred bond between the spouses, whether it is a Muslim or a Christian union. If a marriage between the Muslim spouses can be dissolved on a suit filed by the wife by the Family Court there does not appear any justification for keeping sections 16 and 17 alive.. The law needs amendment, and we have no doubt that if a provision similar to that as is in the Family Laws Ordinance, 1961, for the dissolution of marriages between the Muslims is made in the Divorce Act, it will not only remove the aforesaid anomaly, but it shall also relieve the Christian spouses of a great hardship which they have to face through a lengthy and tardy9 10 11 12 13 procedure of the Divorce Act, 1869.
We would direct that a copy of this judgment be sent, for necessary action, to the Secretary to Government of West Pakistan, Law Department, Lahore with a proper covering letter by the Registrar of the Court. I L R 10 All. 559 AIR 1948 All. 161 AIR 1934 All. 624 AIR 1936 Pat. 15 AIR 1955 Pat. 519 AIR 1916 Mad. 296 I L R 34 Mad. 339 I L R 53 Cal. 436 I L R 18 Cal. 439 9 B L R Ap. 39 BLROC 52 AIR 1921 Lah. 310 AIR 1945 Lah. 67