F.H. Percy vs J. Percy on 16 May, 1896

Allahabad High Court
F.H. Percy vs J. Percy on 16 May, 1896
Equivalent citations: (1896) ILR 18 All 375
Author: K John Edge
Bench: J Edge, Kt., Aikman, Blennerhassett


John Edge, Kt., C.J.

1. Mrs. Florence Helen Percy on the 7th of October 1893 presented her petition for divorce in the Court of the District Judge of Lucknow. Her husband was the respondent. The petition alleged matters which, if true, entitled Mrs. Percy to a decree for the dissolution of her marriage. The case came on to be tried by the Additional Judge of Lucknow, to whose file we presume the petition had been transferred for hearing. He dismissed the petition. Mrs. Percy presented her memorandum of appeal to this Court, and it was admitted. When the appeal came on for argument, the question arose as to whether this Court had jurisdiction to entertain and determine the appeal; in other words, whether an appeal from the District Judge of Lucknow, dismissing a petition for dissolution of marriage, lay to this Court.

2. The question of jurisdiction is one of the first importance. If this Court, not having jurisdiction in appeal were to grant the relief asked for in this appeal and to decree dissolution of marriage, and either of these parties, believing himself or herself free, were to contract marriage with another person and have children, those children would be illegitimate and subject to all the disabilities of illegitimate children.

3. There is no doubt that for some purposes this is the Court having jurisdiction in metrimonial cases instituted in the Courts of the District Judges in Oudh. By Section 3 of Act No. IV of 1869, the High Court mentioned in the Act is, so far as the non-regulation provinces are concerned, the High Court or Chief Court to whose original criminal jurisdiction the petitioner is for the time being subject, or would be subject if he or she were a European British subject of Her Majesty. By Notification No. 1203, dated the 23rd of September 1874, the original and appellate Criminal jurisdiction to be thereafter exercised over European British subjects of Her Majesty in Oudh is to be exercised by the High Court of these Provinces. That notification was issued under Section 3 of the Statute 28 Vict., Cap. XXV. By subsection 2 of Section 3 of Act No. IV of 1869, the District Judge for the purposes-of the Divorce Act meant, in the non-regulation provinces, the Commissioner of a Division. By Section 27 of Act No. XIII of 1879 it was enacted that “for the purposes of the Indian Divorce Act the Judicial Commissioner (of Oudh) shall, throughout the territories to which this Act applies, be deemed to be the Commissioner of a Division.” By Section 42 of Act No. XX of 1890, the words “District Judge” were substituted for “Judicial Commissioner” in Section 27 of Act No. XIII of 1879. We have now traced out the jurisdiction under which the petition for dissolution of marriage was presented to and received in the Court of the District Judge of Lucknow. There is no doubt that, under Section 8 of Act No. IV of 1869, this Court had power to remove and try and determine as a Court of original jurisdiction this suit for divorce while it was pending in the Court of the District Judge of Lucknow. If any question of law had arisen and a reference had to be made under Section 9 of Act No. IV of 1869 by the Court of the District Judge of Lucknow, that reference could only have been made to this Court. The petitioner could, under Section 13, instead of appealing from the decree of the District Judge of Lucknow, have instituted her suit in this Court, notwithstanding that her suit had been heard and determined by the District Judge of Lucknow. Further, if the District Judge had made a decree for dissolution of marriage, it was this Court, and this Court alone, which could, under Section 17, have confirmed that decree. All these powers to which we have been referring were given to this High Court in cases under the Divorce Act which might be decided in the Courts having jurisdiction as Courts of First Instance in Oudh. One would naturally assume that in those cases in which an appeal is given by Act No. IV of 1869 from a decree or order in a matrimonial suit by a District Judge, the appeal would lie to the Court which had the power to withdraw the suit before decision from the Court of the District Judge, to advise on a reference the District Judge upon questions of law arising in the suit and to confirm the decree for dissolution of marriage when passed by the District Judge. One would naturally have expected that the Court to which such jurisdiction was given by the Legislature would be the Court to which jurisdiction in appeal from orders in such suits made by a District Judge would be given. A right of appeal, as has been frequently decided, is not a natural and inherent right attaching to litigation; it is a right which is given, and can only be given, by statute; and it is only the Court to which the jurisdiction is given to entertain an appeal in a particular matter which can hear and determine such an appeal. In order to see whether any right of appeal is given under Act No. IV of 1869 from the decree or order of the District Judge, we have to turn to Section 55 of that Act. So far as is material, that section enacts as follows: “All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and maybe appealed from in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under the laws, rules and orders for the time being in force.” Mr. Howard, who appeared for the petitioner appellant before us, contended, on the authority of the decision of this Court in Morgan v. Morgan I.L.R. 4 All. 306, that the appeal in this case lay to this Court.

4. We regret to say that we are unable to follow that decision. It appears to us that it is based upon the assumption that, because this Court is for certain purposes the High Court for Oudh under Act No. IV of 1869, appeals from the District Judges of Oudh lie, under Section 55 of that Act, to this Court. It was not noticed that in framing Section 55 the jurisdiction in appeal was made to depend on the original civil jurisdiction, and not, as in cases of confirmation under the Act, on the original criminal jurisdiction in cases of European British subjects of Her Majesty. At no time had this Court any jurisdiction to hear appeals from decrees of Courts in Oudh passed in the exercise of their original civil jurisdiction. There is under certain circumstances a power in the Judicial Commissioner’s Court to make a reference under Section 9 of Act No. XIV of 1891 to the High Court. All we have to decide is that the appeal does not lie to us. It is no part of our duty to decide where the appeal does lie, but we think it right to suggest that if it does not lie to the Court of the Judicial Commissioner of Oudh in this case, Section 55 of Act No. IV of 1869 is a dead letter so far as rights of appeal under that section from decisions in Oudh are concerned.

5. We should also like to point out a difficulty which may arise, assuming that the Court of the Judicial Commissioner of Oudh accepts and entertains the appeal in this case from the District Judge of Lucknow, and makes a decree dissolving the marriage between Mr. and Mrs. Percy. The difficulty in that case may be as to whether a decree nisi made on appeal can be confirmed by the Court of the Judicial Commissioner, that Court not being a High Court for the purposes of Act No. IV of 1869. It might be that the decree of the Judicial Commissioner could never be confirmed. Their Lordships of the Privy Council are not a High Court for the purposes of Act No. IV of 1869, and the decree of the Judicial Commissioner’s Court, if one is made on appeal in this case, would not be a decree of a District Judge, and consequently would not be capable of confirmation by this Court under Section 17. It appears to us that speedy legislation is necessary to remove the difficulties which we have pointed out, which in our opinion are obviously caused by an oversight on the part of the gentlemen who drafted Act No. IV of 1869.

6. We much regret that we have been compelled to come to the conclusion that we have no jurisdiction to grant the petitioner the relief which she sought in vain in the Court of the District Judge of Lucknow. We direct that the memorandum of appeal filed in this Court be returned to the petitioner so that she may present it to the Court having jurisdiction to entertain it, or may, if so advised, present an original petition for dissolution of marriage in this Court under Section 13 of Act No. IV of 1869.

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