Tapuriah Jain & Associates

BOMBAY HIGH COURT

MINOO RUSTOMJI SHROFF & ORS. VS. UOI & ORS.

DATED : 10.03.2005

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

The petitioners, who are the trustees of the Parsi Panchayat Funds and Properties have sought a declaration that the learned Presiding Judge of the Parsi Chief Matrimonial Court at Bombay does not have jurisdiction to pass a decree of divorce by mutual consent under the Parsi Marriage And Divorce Act, 1936 without seeking aid/assistance from the delegates appointed under the Act. The petitioners have also sought a Writ of Certiorari to quash the decrees passed by the learned Presiding Judge (a learned Judge of this High Court) of the Parsi Chief Matrimonial Court dissolving the marriages of respondent Nos. 3 and 4 and so on to respondent Nos. 27 and 28.

Facts of the Case :

The question of law that arises for consideration in this petition is whether in a suit filed under Section 32B of the Act for divorce by mutual consent the Presiding Judge of the Parsi Chief Matrimonial Court is entitled to pass a decree declaring the marriage to be dissolved without seeking the aid/assistance of the delegates.

From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both.

It provides that "on the motion of both the parties....if the petition is not withdrawn in the meantime, the Court shall.....pass a decree of divorce.." What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."

Judgement :

The judgment does not support Mr. Dada's submission. We will presume that the interpretation placed by the Supreme Court on Section 13B of the Hindu Marriage Act, 1955 applies equally, to Section 32B of The Parsi Marriage And Divorce Act. In that event, the necessary consequence of one of the parties withdrawing their consent after the suit has been filed for divorce by mutual consent but before it is decreed, would be to take the suit out of the purview of Section 32B. In such an eventuality, there would be no question of seeking the aid of the delegates. In fact, the judgment is against Mr. Dada's submission.

Mr. Dada stated that so far the delegates have never caused any obstruction or impediment in the smooth functioning of the Court. We have no reason to doubt the same. However responsible and co-operative the conduct of the delegates may have been over the years, the same cannot be an aid in the interpretation of the provisions of the Act. In the circumstances, the Writ Petition is dismissed.

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BOMBAY HIGH COURT

MINOO RUSTOMJI SHROFF & ORS. VS. UOI & ORS.

DATED : 10.03.2005

Equivalent citations: 2005 (4) BomCR 147, 2005 (2) MhLj 1124

Author: S J Vazifdar

Bench: A Shah, S Vazifdar

JUDGMENT S. J. Vazifdar, J.

1. By consent the Writ Petition is admitted. At the request of the petitioners it was taken up for final hearing.

2. The petitioners, who are the trustees of the Parsi Panchayat Funds and Properties have sought a declaration that the learned Presiding Judge of the Parsi Chief Matrimonial Court at Bombay does not have jurisdiction to pass a decree of divorce by mutual consent under the Parsi Marriage And Divorce Act, 1936 without seeking aid/assistance from the delegates appointed under the Act. The petitioners have also sought a Writ of Certiorari to quash the decrees passed by the learned Presiding Judge (a learned Judge of this High Court) of the Parsi Chief Matrimonial Court dissolving the marriages of respondent Nos. 3 and 4 and so on to respondent Nos. 27 and 28.

Respondent Nos. 3 to 28 are Parsi Zoroastrians. The Writ of Certiorari is sought on the basis that the decrees were passed by the Presiding Judge without seeking the aid/assistance of the delegates appointed under the Act. It is necessary to note that the decrees were passed in suits filed by respondent Nos. 3 to 28 under Section 32-B which provides for "Divorce by mutual consent".

3. The question of law that arises for consideration in this petition is whether in a suit filed under Section 32B of the Act for divorce by mutual consent the Presiding Judge of the Parsi Chief Matrimonial Court is entitled to pass a decree declaring the marriage to be dissolved without seeking the aid/assistance of the delegates.

4. The parties have proceeded on the basis that the Petition is maintainable. It is not necessary therefore for us to decide whether the petitioners who were naturally not parties to the decrees nor concerned with the suits in which they were passed have locus-standi and whether the Petition is maintainable as it in effect seeks quashing judicial orders.

5. Section 32-B of the said Act reads as under :--

"32B Divorce by mutual consent.-- (1) Subject to the provisions of this Act, a suit for divorce may be filed by both the parties to a marriage together whether such marriage was solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

Provided that no suit under this sub-section shall be filed unless at the date of the filing of the suit one year has lapsed since the date of the marriage.

(2) The Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and the averments in the plaint are true and that the consent of either party to the suit was not obtained by force or fraud, pass a decree declaring the marriage to be dissolved with effect from the date of the decree."

6. Mr. Dada, the learned Senior Counsel appearing on behalf of the petitioners, submitted that the learned Judge did not have either the power or the jurisdiction to pass the said orders and decrees dissolving the marriage of respondent Nos. 3 to 28 without seeking the aid/assistance of the delegates appointed under Section 24 of the Act. The submission calls for the consideration of Sections 2(2), 18, 19, 24, 35 and 46 of the said Act which read as under :

"2. Definitions.-- ............................

(2) "Court" means a Court constituted under this Act;"

"18. Constitution of special Courts under the Act.-- For the purpose of hearing suits under this Act, a special Court shall be constituted in each of the Presidency-towns of Calcutta, Madras and Bombay, and in such other places in the territories of the several State Governments as such Governments respectively shall think fit."

"19. Parsi Chief Matrimonial Courts.-- The Court so constituted in each of the Presidency-towns shall be entitled the Parsi Chief Matrimonial Court of Calcutta, Madras or Bombay, as the case may be. The local limits of the jurisdiction of a Parsi Chief Matrimonial Court shall be conterminous with the local limits of the Ordinary Original Civil Jurisdiction of the High Court. The Chief Justice of the High Court or such other Judge of the same Court, as the Chief Justice shall from time to time appoint; shall be the Judge of such Matrimonial Court, and, in the trial of cases under this Act, he shall be aided [by five delegates, except in regard to --

(a) interlocutory applications and proceedings?

(b) alimony and maintenance, both permanent as well as pendente lite;

(d) all matters and proceedings other than the regular hearing of cases.]"

"24. Appointment of delegates.-- (1) The State Government shall, in the Presidency-towns and districts subject to their respective Governments, respectively appoint persons to be delegates to aid in the adjudication of cases arising under this Act, after giving the local Parsis an opportunity of expressing their opinion in such manner as the respective Governments may think fit.

(2) The persons so appointed shall be Parsis, their names shall be published in the Official Gazette and their number shall, within the local limits of the Ordinary Original Civil Jurisdiction of a High Court, be not more than thirty, and in districts beyond such limits, not more than twenty."

"35. Decrees in certain suits.-- In any suit under Sections 30, 31, 32, [32-A] or 34, whether defended or not, if the Court be satisfied that any of the grounds set forth in those sections for granting relief exist, that none of the grounds therein set forth for withholding relief exist and that --

(a) the act or omission set forth in the plaint has; not been condoned;

(b) the husband and wife are not colluding together;

(d) (save whether a definite period of limitation is provided by this Act) there has been no unnecessary or improper delay in instituting the suit; and

(e) there is no other legal ground why relief should not be granted; then and in such case, but not otherwise, the Court shall decree such relief accordingly."

"46. Determination of question of law and procedure and of fact.-- In suits under this Act all questions of law and procedure shall be determined by the presiding Judge, but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried :

Provided that, where such delegates are equally divided in opinion, the decision on the facts shall be the decision of the presiding Judge."

7. There cannot be any dispute that in contested matters the Presiding Judge is to be aided by five delegates. This is clear from a conjoint reading of Sections 19, 24 and 46 of the Act. Section 24 provides that the State Government shall appoint persons to be delegates "to aid in the adjudication of cases arising under this Act". Under Section 46 while all questions of law and procedure are to be determined by the Presiding Judge, the decision on facts shall be the decision of the majority of the delegates before whom the case is tried. It is only in the event of the delegates being equally divided in opinion, that the decision on facts shall be the decision of the Presiding Judge.

8. This bring us to the question that falls for our consideration. Section 32-B was inserted in the said Act by the Parsi Marriage and Divorce (Amendment) Act, 1988. Prior thereto divorce by consent was not permitted among Parsis.

9. The fact that prior to the impugned orders and judgments the aid and assistance of the delegates had always been taken is not material for the purpose of interpreting Section 32-B. On the other hand, it is well known that the Parsi Matrimonial Court sits only once or twice in the year. Therefore, if the aid and assistance of the delegates is mandatory even in cases of divorce by mutual consent, parties will have to wait for an extremely long time to obtain decrees. These are however only practical, administrative difficulties and cannot be an aid in the construction of a statutory provision.

10. We are unable to agree with Mr. Dada's submission. Section 19, to our mind makes it clear, that the Principal Judge is to be aided by the delegates only in contested matters and not in matters which are filed for divorce by mutual consent. This, is clear from Section 19 which provides that it is "in the trial of cases" that the Principal Judge shall be aided by the five delegates except in regard inter-alia to "all matters and proceedings other than regular hearing of cases." What is material are the words "regular hearing" of cases.

If, as contended by Mr. Dada, the aid of the delegates was mandatory at the trial of all hearing of cases including cases which are filed for divorce by mutual consent, it would not have been necessary to use the word "regular". The use of term "regular" in Clause (d) indicates a reference to contested matters and not to matters which are not contested. Had the intention been otherwise the word "regular" would not have been used. It would have been sufficient to merely use the expression "hearing of cases". A view to the contrary would render the word "regular" otiose.

11. It is pertinent to note that the excepted matters enumerated in Clauses (a) to (d) of Section 19 were introduced by the same Amending Act of 1988 which introduced Section 32B. This is a further indication of the intention of the Legislature to exclude the role of delegates in suits instituted under Section 32B.

12. Further under Section 24, the State Government is required to appoint persons to be delegates "to aid in the adjudication of cases arising under this Act". The role of delegates is clearly excluded in respect of adjudication of contested cases. Where a divorce is sought by mutual consent no "adjudication" within the meaning of that expression in Sections 19 or 24 of the Act is called for.

13. Mr. Dada referred to several judicial and lexical definitions of the term adjudication. In Black's Law Dictionary (8th Edn.) the term is defined thus :

"adjudication n. 1. The legal process of resolving a dispute; the process of judicially deciding a case 2. JUDGMENT."

14. It is apparent that the term adjudication though of wide import connotes different concepts depending on the context in which it is used. In our opinion an analysis of the provisions of the Act indicates that the term as used in the Act connotes a resolution of issues in contested matters, i.e. matters other than those under Section 32B where a divorce is sought by mutual consent.

15. Finally, the doubt if any, is removed by contrasting Section 32B with Section 35.

Section 35 confers powers on the Court to decree such relief as may be prayed for inter-alia under Section 32 "if the Court be satisfied" that any of the grounds set forth in those Sections for granting relief exist and that none of the grounds set forth in Section 35 for withholding the relief exist. It is important to note that the satisfaction of the Court in Section 35 is not to be determined as stated in Section 32B(2) viz. "after hearing the parties and after making such inquiry as it thinks fit". There is thus a marked difference between contested and uncontested matters regarding the manner in which the Court is required to satisfy itself of the existence of facts entitling the parties to the reliefs claimed therein.

There is a clear distinction in the procedure to be adopted by the Court while deciding contested and uncontested matters. The use of the words "after hearing the parties and after making such inquiry as it thinks fit" in Section 32B(2) and the absence thereof in Section 35 establishes this clearly.

16. Mr. Dada however submitted that Section 32-B requires adjudication even in suits filed under Section 32-B in respect of three facts viz. whether both the parties have been living separately for a period of one year or not; whether they have been unable to live together and whether they have mutually agreed that the marriage should be dissolved. Mr. Dada submitted that these are questions of fact which require adjudication in every case and on such questions of fact also the decision of the delegates is final. We are unable to agree. It is true that these facts must be established. However, the mode of establishing these three ingredients is by hearing parties and by making such inquiry as the Court thinks fit. To uphold Mr. Dada's contention we must ignore the words "after hearing the parties and after making such inquiry as it thinks fit" found in Section 32B.

17. The inquiry contemplated in Section 32-B(2) is an inquiry into facts. Section 32B specifies the manner in which the satisfaction or otherwise of the Court is to be determined viz. "after hearing the parties and after making such inquiry as it thinks fit". There is hardly any question of law involved in that respect. The satisfaction is to be that of the Court. The satisfaction is to be based on the inquiry. The nature, extent and the mode of the inquiry is to be determined by the Court.

18. There is no question therefore of the delegates making an enquiry. It is the Court that is to hear the parties and make such enquiry as it thinks fit. Wide discretion is given to the Court as to the extent, mode and manner of the inquiry required in each case. It would depend upon the facts and circumstances of each case. The Court may in its discretion seek the assistance of the delegates even while deciding suits under Section 32B. That however is purely discretionary. The Court is not bound to seek the assistance of the delegates in such cases.

19. To accept Mr. Dada's submission would lead to Section 32B becoming unworkable. For instance the Judge may in exercise of his discretion come to the conclusion that a particular type of inquiry is sufficient in a given case. The delegates on the other hand may have a different view altogether. They may feel that further inquiries are required. This would lead to enormous confusion in the working of the Act.

20. Mr. Dada relied upon the judgment of the Supreme Court in Smt. Sureshta Devi v. Om Prakash, 1991 Mh.L.J. (S.C.) 324 - AIR 1992 SC 1904. The issue there was whether a party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent or whether the consent once given is irrevocable. The Supreme Court held as under:

"10. Under Sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce."

"13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both.

The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties....if the petition is not withdrawn in the meantime, the Court shall.....pass a decree of divorce.." What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties.

If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."

21. Mr. Dada stated that so far the delegates have never caused any obstruction or impediment in the smooth functioning of the Court. We have no reason to doubt the same. However responsible and co-operative the conduct of the delegates may have been over the years, the same cannot be an aid in the interpretation of the provisions of the Act.

In the circumstances, the Writ Petition is dismissed. There shall however be no order as to costs.

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