M.N.SHUKLA,J. - (1.) JUDGEMENT This reference purporting to be one under S. 17 of the Indian Divorce Act. 1869 (hereinafter referred to as the Act) reveals a curious state of affairs. A petition was made under S. 10 of the Act by the petitioner Smt. Deepika Alizabeth Couto in the court of the District Judge, Gorakhpur. The allegations in the petition were that she and her husband were married in the year 1965 according to the Christian rituals; that the respondent was a habitual drunkard who constantly beat the petitioner using filthy abuses and treated her with cruelty whenever she went to live with him at Jamshedpur. On account of this cruel treatment her physical and mental health was completely impaired and it was no longer safe for her to live with him. It appears that the respondent did not contest the petition in the court below. In support of these allegations, the petitioner examined herself. The learned District Judge passed an ex parte order dated Dec. 18, 1976 whereby he allowed the petition and a decree nisi was passed. Thereafter, the petitioner made the present application in this Court under S. 17 of the Act, praying that the decree nisi dated Dec. 18, 1976, passed by the District Judge, Gorakhpur, be confirmed.
(2.) WE have heard the learned counsel for the parties. It is apparent from the perusal of S. 17 of the Indian Divorce Act, 1869 as amended by the Indian Divorce (U. P. Amendment) Act XXX of 1957 that a decree passed under S. 10 of the Act, as in the instant case, does not require any confirmation by the High Court. Section 17 of the Indian Divorce Act, prior to the U. P. Amendment Act, stood as follows :- " 17. Confirmation of decree for dissolution by District Judge.- Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court. 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, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges; and in case of difference, the opinion of the senior Judge shall prevail. The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken. The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit; Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs. During the progress of the suit in the Court of the District Judge, any person, suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under S. 8, and the High Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in S. 16 shall apply to every suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case." Section 4 of the U. P. Amendment Act of 1957 effects an amendment in S. 17 of the Indian Divorce Act and provides that paras. 1 to 5 of S. 17 shall be deleted. It will be noticed that para 1 of S. 17 required confirmation by the High Court of a decree for dissolution of marriage passed by the District Judge under S. 10 of the Act. In view of the amendment it is apparent that no such confirmation is now required. In the circumstances the petition filed in this Court under S. 17 of the Act was clearly incompetent. Learned counsel for the petitioner was not able to refer to any provision of law under which such petition would lie. It is accordingly liable to be dismissed. It is surprising that the learned counsel for the petitioner filed this petition without ascertaining even the basic fact whether such petition lay in this Court.
(3.) NORMALLY we would have stopped short at this point but in view of the compelling circumstances of this case we are constrained to go a step further. We cannot escape noticing the fact that the decree passed by the District Judge is itself without jurisdiction and so cannot be sustained. The reason is that a perusal of the terms of S. 10 of the Act makes it clear that cruelty per se is not a ground for granting a decree for dissolution. The section very clearly provides that one of the grounds, on which the petition for the dissolution of marriage would lie, can be " adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa at thoro" . In other words, the cruelty of a special kind, coupled with adultery would furnish a ground for a petition of dissolution under S. 10. The construction that we are placing on this section finds support from two Full Bench decisions of the Madras High Court in Siluvaimani Ammal v. Thangiah Nadar (AIR 1956 Mad 421) and Ambujam G. Ammal v. M. R. Arumugham (AIR 1966 Mad 153). The ratio of these authorities is that cruelty by itself is not an adequate ground for divorce. If the wife is to succeed in a decree for divorce against the husband, she must show not merely cruelty of the special kind referred to above, but adultery coupled with such cruelty. In these circumstances it is clear that not only a reference to this Court under S. 17 of the Act was not competent but the petition initially presented in the court below under S. 10 of the Indian Divorce Act was also not maintainable and the entire proceedings were without jurisdiction.;