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2000 DIGILAW 637 (KER)

Raju v. Elsamma

2000-12-01

D.SREEDEVI

body2000
ORDER 1.This Court by judgment, dated 18th September 2000 passed a decree nisi dissolving the marriage between the petitioner and the respondent, which was solemnized on 19th July 1990 at St. Johns Baptist Church, Vadakara. The petitioner has now filed this petition for making the decree absolute before the expiry of six months. He seeks relaxation of the period of six months on personal grounds. From April 1991 onwards the petitioner and the respondent were living separately. 2. The first respondent/wife filed a petition for judicial separation in O.P. 13272/95 before this Court alleging impotency and cruelty against the petitioner. That petition was dismissed, against which she filed an appeal in M.F.A. 1364/97. That was also dismissed. During the pendency of the appeal, the first respondent/wife contracted a second marriage with one M.P. Poulose, the second respondent herein under the Special Marriage Act on 5th September 1998. On coming to know of this, the petitioner filed the above original petition on the ground of adultery committed by the first respondent with the second respondent. That petition was allowed on 18th September 2000. 3. It is submitted for the petitioner that all along he remained unemployed due to the disruption of the family life and due to the pendency of the divorce proceedings. He tried to get an employment in Canada through one of his relatives and secured an offer of employment in Canada. Therefore, he has filed an application in the Canadian High Commission at New Delhi. Based on his application he underwent a Medical Examination and got cleared in the Medical Checkup. As per the conditions stipulated by the Canadian High Commission, the results of medical examination are valid only for 12 months from the date of examination. He has produced Annexure I, a copy of the communication received by him. If all the formalities are not completed within one year, his application would lapse. 4. One of the conditions forgetting a visa to Canada is that there should not be any court proceedings pending against the petitioner in India. He has produced a copy of the decree nisi before the Canadian High Commission to which they gave the following reply. "The document you sent with your letter is a 'decree nisi'. 4. One of the conditions forgetting a visa to Canada is that there should not be any court proceedings pending against the petitioner in India. He has produced a copy of the decree nisi before the Canadian High Commission to which they gave the following reply. "The document you sent with your letter is a 'decree nisi'. We however, require a 'decree absolute' issued by the High Court because under the Indian Divorce Act, a divorce is not final until a 'decree nisi' has been confirmed by the High Court and made absolute." Therefore, in order to get a job in Canada a decree which has been made-absolute has to be produced before the Canadian High Commission. 5. Finding valid grounds for granting a decree, a decree nisi has been passed by this Court. For making a decree absolute, the petitioner has to, wait for six months. The High Courts in India have no power to shorten the time. But, the courts in England shorten the time of six months under exceptional circumstances to make the decree absolute. Here, in this case, if there is delay in making the decree nisi absolute, the petitioner will not be able to get a job. S.7 of the Indian Divorce Act provides as. follows: "Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court of Divorce and Matrimonial causes in England for the time being acts and gives relief: Provided that nothing in this section shall deprive the said Court of Jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded." In the light of S.7 of the Indian Divorce Act this Court can act upon the principles of English Divorce Court. The Courts in England will not, unless there be exceptiocal circumstances in the case, shorten the time within which the decree nisi may be made absolute in suits for nullity. There is not much difference between a decree of divorce and a decree of nullity. The Courts in England will not, unless there be exceptiocal circumstances in the case, shorten the time within which the decree nisi may be made absolute in suits for nullity. There is not much difference between a decree of divorce and a decree of nullity. Therefore under compelling circumstances the court can relax the period prescribed for making the decree nisi absolute. No objection has so far been filed by any person against the decree nisi. Therefore, considering the special circumstance under which the petitioner is put to and also the ends of justice, I feel that the decree nisi has to be made absolute before the expiry of six months and as such the decree is made absolute.