JUDGMENT
Venkataswami Bellie, J.
1. The learned District Judge of Tiruchirapalli has passed an order of dissolution of marriage in I.D.O.P. No. 10 of 1989 filed by the wife against her husband under Sees. 18 and 22 of the Indian Divorce Act, 1869 for a declaration of her marriage with the first respondent as null and void or in the alternative for judicial separation. The matter is now posted before us for confirmation of that order under Section 20 of the Indian Divorce Act.
2. The case of the petitioner-wife is that the petitioner was married to the first respondent on 13.2.1984. Ever since the marriage the petitioner was ill-treated by the first respondent for extracting dowry money. She was beaten and abused with filthy language. She was deprived, of her gold jewels weighing about ten sovereigns. Unable to bear the harassment she attempted to commit suicide on 17.5.1984. In this connection a complaint was made to the police on 22.6.1984 but no action was taken. Thereafter there was no conhabitation between the spouses. In four months’ time she was forced to come out of the matrimonial house. It is the further case of the petitioner that at the time of marriage she was only 15 years and four months old. This fact was suppressed and a false certificate was obtained from the church for the purpose of solemnisation of the marriage. Though the petitioner was not at all willing she was forced to marry the first respondent. She was forcibly converted from the protestant faith to Catholicism for the purpose of marriage with the first respondent who was a catholic. These illegal activities were perpetrated by the second and third respondents who are respectively the brother-in-law and mother of the petitioner. Now that the petitioner has become a major she wants an order of nullity of the marriage. On these grounds the petitioner has sought for an order declaring the marriage as null and void or in the alternative for judicial separation.
3. The first respondent-husband remained exparte. Respondents 2 and 3 appear to have engaged counsel and through him they expressed no objection to the petition.
4. The petitioner was examined as P.W. 1 and seven documents were filed. The petitioner in her evidence has spoken to the effect that she was a minor at the time of the marriage and also about the ill-treatment meted out to her by the first respondent. Relying on this evidence of the petitioner and also Ex.A-3 complaint dated 22.6.1984 to the police by the petitioner’s mother-third respondent. Ex.A-4 letter dated 7.6.1984 written by the first respondent-husband to the third respondent. Ex.A-5 notice dated 1.10.1988 issued by the first respondent through his counsel to the petitioner, and Ex.A-6 reply notice by the petitioner’s counsel, the learned District Judge found that these prove the case of the petitioner. On this finding he passed an order for dissolution of marriage.
5. It is now contended before us by the learned Counsel for the respondents who have been appointed as amicus curiae that the allegation that the consent of the petitioner for the marriage was obtained by force and fraud on which allegation the declaration of nullity of the marriage is sought for is not one of those grounds enumerated in Section 19 of the Indian Divorce Act, 1869 for the District Court to pass an order that the marriage is null and void under Section 18 and therefore the order cannot be upheld as correct and hence this Court cannot confirm that. We see that this contention is correct. The four grounds on which an order declaring a marriage as null and void enumerated in Section 19 do not cover aground that theconsent of any spouse was obtained by force or fraud Section 19 is as follows:
19. Grounds of decree: Such decree may be made on any of the following grounds : (1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage’
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
A full reading of this Section particularly the last sentences, viz. “Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud” shows that though the District Court has no jurisdiction the High Court can make decrees of nullity of marriage on the ground that consent of either party was obtained by force or fraud.
6. Now, since the District Court has passed an order without jurisdiction that order cannot be confirmed as right. But we have to consider whether even though the order of the District Court cannot be confirmed as right, the High Court, dealing with the matter on a re ference made under Section 20, considering the evidence on record, itself can pass a decree of nullity of marriage on the ground that the consent of either party was obtained by fraud or force. Apart from Section 19 no other provision in the Act is brought to our notice which deals with such right of the High Court. Therefore, it appears to us that it cannot be said that only upon a petition or suit filed in the High Court a decree of nullity of marriage can be passed and there is nothing inhibiting the High Court to pass such a decree while considering under Section 20 for confirmation of an order passed by the District Court when it (High Court) finds that the order of the District Court is without jurisdiction but there is materials placed before the District Court and now before the High Court upon which a decree of nullity of marriage can be passed on the ground that the consent was obtained by force or fraud. The averment in the petition that the consent of the petitioner for the marriage was obtained by coercion and fraud and she was a minor at the time of the marriage has not been controverted since no counter has been filed. Her evidence as P.W.I substantiating this also remains unrebutted. Ex.A-2 School Transfer Certificate also corroborates the evidence of P.W.I that at the time of her marriage she was a minor. At this juncture we can make note of the fact that not only in the District Court the first respondent has remained ex pane but in this Court also he has not responded to the notice sent to him and this reflects the first respondent’s total disinclination to have any say in the matter. In these circumstances we are of the view that even though the order of the District Court is without jurisdiction and as such it has got to be set aside, and thus setting it aside this Court can pass a decree for dissolution of marriage.
7. The result is that the order of dissolution of marriage passed by the District Court is set aside, but in its place there will be an order of dissolution of the marriage passed by this Court.