P L D 1963 (W (PLP)

* * * * * * * * *. [Note.‑The Court for Divorce and Matrimonial Causes was reconstituted by the Judicature Act of 1873, under the style of the "Probate, Divorce and Admiralty Division of the High Court", but the reference in our statute which was enacted four years earlier continues to be to the Court as it was before its reconstitution. Strictly speaking it can be said that the reference in out statute is to a Court that no longer exists, but I think the plain intention is to refer to the Divorce Court in England by whatever name it may come to be designated]. Holding that the rule of complete candour and disclosure was the first and foremost requirement in cases where a petitioner in the English Courts would be granted a decree nisi in spite of his or her own adultery, they came to the conclusion that this rule must be regarded as a principle which was binding on the Courts in Pakistan. Their Lordships quoted with approval a passage from the judgment of the learned trial Judge in which, after citing some English cases the learned Judge had also referred to the Matrimonial Causes Rules in force in England, wherein it is provided that a petition for dissolution of marriage shall conclude with a prayer setting out particulars of the relief claimed, including in appropriate cases, a prayer that the Court will exercise its discretion to grant a decree nisi notwithstanding the adultery of the petitioner during the marriage.

4. The learned Judges of the Motion Bench felt that an illegal but still nascent order had been brought before them, and they were being asked to bring it fully into existence and to bestow upon it in the exercise of their own authority, legal effectiveness, which it would otherwise never possess and wondered whether in conscience, they could proceed to do so. To quote their own words, "it is true that section 16 does not make specific provision for refusal to confirm a decree nisi on the ground that that decree is contrary to law, but we can find no authority for the proposition that Judges are bound to place the seal of finality on a decree which appears to them to be invalid." They, therefore, decided to refer the following two questions to a Full Bench :‑ "(1) Whether the proposition that a petitioner who has conceal ed the fact of his or her adultery from the Court and committed perjury with regard to it cannot ask the Court to exercise its discretion in his or her favour is a mere technicality of the English rules applicable to petitions for dissolution of marriage and judicial separation or a fundamental principle' of law? (2) If it is held that the said proposition is a fundamental principle of law, what is the effect on the decree nisi passed in this case?" The learned counsel for the petitioner thereupon presented an application to me in Chambers, contending that upon a motion to make a decree nisi absolute there was no power in the Court to reopen any of the matters that had been concluded by a decree nisi, except on grounds that were not before the Court at the time of passing that decree. He argued that a power to correct an error of law could be exercised only by way of appeal, revision or review. There was only one appeal granted and that had been exhausted in this case. There was no power of revision vested in this Court from its own judgment, and the power of review was limited strictly to certain well -defined grounds, none of which existed in this case. Finding considerable force in the contention, I referred to the same Full Bench to which the other two points were being referred, a preliminary point as to whether the Court had jurisdiction, upon the motion made in this case, to decide the points that had been referred.

5. When the reference came on for hearing before the Full Bench, it was felt that since the first point referred by the Motion Bench was of importance and the second point referred by that Bench indirectly covered the preliminary point formulated by me, in so far as it asked, what the effect would be on the decree nisi in this case if it was decided that that decree had been given contrary to law, it was desirable to deal with the reference as it had been made by the Motion Bench and to treat the preliminary point as covered by the second question referred by that Bench.

6. I come now to the first point under reference. The main provision relevant for this purpose is contained in section 14 of the Act. The purport of that section is that :‑ (a) if the misconduct of the respondent complained of by the petitioner is proved ; and (b) the petitioner has not been an accessory to, nor has connived at, nor has condoned, the misconduct complained of, nor is in collusion with either of the miscreants, the Court has no option but to pronounce a decree nisi declaring the marriage to be dissolved ; but if the petitioner also has been guilty of laches or misconduct of certain specified kinds, the Court is no ,.longer under an obligation to pronounce the decree and has an option to refuse it. When and how it will exercise its option is not stated in section

14. Nor is there a specific provision on this point in any other part of the Act. This is where section 7 comes in. As I understand it, it makes it incumbent on the Courts in Pakistan that wherever the Act makes no specific provision, they must ask themselves the question whether the Divorce Court in England would, in corres ponding conditions, give or refuse relief and act accordingly. It further requires the Courts in Pakistan to remain in step with the English Court all the time, and to alter their course from time to time if need be so as not to get out of step with that Court. This last take to be the meaning of the expression "for the time‑being", occurring in section 7.

7. That this provision is an anachronism in the statute book of Pakistan after Independence, I have no doubt. But that is a matter for the Legislature to consider. The plain duty of a Court is to give effect to the intent of the law‑maker irres pective of other considerations. It seems to me clear that it was the intention of the law‑maker that Courts in this country should refrain from giving relief in circumstances in which the English Divorce Court does not give relief and should give relief where that Court would give it, if the cause were to be determined by that Court, unless the Divorce Act compelled them to do otherwise, and if it did compel, then only to the extent to which it did so. I do not think that the words "principles and rules" were used in any technical sense. Nor does it appear to me that it was intended that any definition should be attempted to differentiate between that which was to be regarded as a "principle" and that which was to be looked upon as a "rule" in this context. All that was intended was that the Courts in this country, when acting under the Divorce Act, should take into account all those considerations of substance which the Divorce Court in England takes into account when giving or refusing relief, and all such considerations of substance, it seem to me were together designated as "principles and rules.''`

8. That the fact that a petitioner has not disclosed his or her own misconduct is a matter which the Divorce Court in England has always taken into consideration when deciding whether to withhold the relief or not, is clear from a reading of the reports of cases decided by that Court. Its effect upon the decision in the case, however, has been assessed differently at different times. There seems to have been a process of gradual evolution which it is necessary to trace before attempting an answer to the question whether a uniform principle or a rule in this behalf, capable of. being applied by .the Courts in Pakistan, can be discovered from the decisions of the English Court. If such a principle or rule can be found, I have no doubt that it is binding on the Courts in Pakistan under the law as it stands.

9. Till a little over a hundred years ago, there was no power in any Court to grant a complete dissolution of marriage.) This power was given for the first time by the Matrimonial Causes Act, 1857. In substance it provided that when certain conditions were fulfilled, it was incumbent upon the Court to dissolve the marriage at the instance of an innocent party, but it was in the discretion of the Court to dissolve the marriage or not, at the instance of a party that was not innocent. In the earlier years, the insistence on the innocence of the petitioner was great and for several decades it seems that discretion was not exercised in favour of petitioners who were not innocent except in two or three restricted classes of cases. Expressions are to be found in the cases decided during this period, of the rule that a petitioner .to get relief must come with clean hands to the Court, meaning that the petitioner's own matrimonial record must be clean. Gradually, about the turn of the century, the emphasis appears to have shifted, and the consideration that it is undesirable and productive of many other social evils, if spouses whose marriage is an irretrievable wreck, are prevented by law from leading respectable lives seems to have gained prominance. Discretion of the Court row began to be exercised more freely and its pronouncements became more and more liberal. It was pointed out that the Legislature having given an unfettered discretion to the Court, all that could be said about it was that it should be exercised cautiously and carefully and as far as possible consistently, not only in regard to parties themselves, but also with reference to the interests of public morality. But in order to enable the Court to judge whether discretion should or should to be exercised it was necessary that all the relevant facts should come before the Court. Humar, nature, however, being what it is, parties were reluctant to disclose their own guilt. An emphasis now came to be placed on the requirement that a petitioner seeking the exercise of discretion must disclose his or her own matrimonial conduct fully and frankly. Because it was being made easier and easier for persons whose own matrimonial record was not unblemished to obtain divorce, the need for candour was stressed more and more. In a case decided in 1914 Hampson v. Hampson (1914 P.104) while exercising discretion in favour of a petitioner who had not only not dis closed her of misconduct but had committed perjury with reference to it in the course of the proceedings, a stern warning was given that in the future discretion would not be exercised in favour of a petitioner in similar circumstances. In the following year in another case King v. King (1915 P. 88) again the same warning was repeated, but in spite of the previous warning, discretion was exercised in favour of a petitioner in similar circumstances. In 1921 Wilkinson v. Wilkinson (37 T L R 835) Lord Birkinhead having stressed the duty of frank and full disclosure as paramount, proceeded to exercise discretion in favour of a petitioner who had not complied with that duty. In 1930 Anted v. Anted (1929 P. 246) the position in this behalf was fully reviewed. The need for adopting a rule of pleading to be complied with by all petitioners seeking the exercise of discretion was expressed. The distinction between the matrimonial conduct of the peti tioner‑conduct in issue‑and the conduct of the petitioner in his dealings with the Court‑conduct not in issue but affecting the capacity of the Court to decide matters in issue‑was brought out, and the two were separately dealt with. As to the falsehood of the petitioner, the rule that if the true facts were ultimately ascertained, the decision in the case should be what it would have been had the true facts been revealed in the first instance, was approved, but it was made clear that a petitioner who deals deceitfully with the Court is guilty of contempt of Court and can be punished for it. It was also pointed out that after an initial suppression of facts or false denial of facts, it may become difficult or impossible for the Court to be satisfied that what has emerged in the end is in fact the whole truth and on that ground the approved rule may become inapplicable. In that particular case for this reason that rule was not applied.

10. Consequent upon this decision, a direction was given as to pleadings or the 29th of May 1930, which became the starting point of building z procedure that was later embodied as rule 28 of the Matrimonial Causes Act, 1937, and still later as rule 28 of the Matrimonial Causes Rules, 1944, making it obligatory on a petitioner asking for the exercise of discretion to lodge a full statement of the particulars of his own misconduct.

11. In spite of this statutory rule of pleading, it appears from the decision of the House of Lords in a case that was decided in 1943 Blunt v. Blunt (1943 E R Vol. 2, H L p. 76) that the consequences of non disclosure continued to be governed by the rule stated and approved in Anted v. Anted. The trial Judge, in the case before the House of Lords, had exercised his discretion in favour of a petitioner who had not dealt with the Court frankly as required. The Court of Appeal had reversed the decision of the trial Judge, namely on the ground that the duty of frank disclosure being fundamental to the Court's ability to decide the matter, its disregard could not be, but had beer, overlooked. Disagreeing with the Court of Appeal, Viscount Simons, delivering the opinion of the House, said: "It seems to me clear that he (the trial Judge) took into consideration the petitioner's conduct in relation to the Court, but that he came to the conclusion that he had finally succeeded in ascertaining the relevant facts, including the facts as to the petitioner's attempts at deception, and that on the sum total of those facts, he ought to exercise his discretion in the petitioner's favour." In the course of this judgment, Viscount Simons dealt with the points that should be considered when deciding whether dis cretion should be exercised or not. He tabulated four points relating to the interest of the children, if any, and the desirability of enabling the parties to remarry and live respectably, which had been laid down in two decisions to which he referred. He then went on to say: "To these four considerations I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz. the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. It is noteworthy that in recent years this last consideration has operated to induce the Court to exercise a favourable dis cretion in many instances when in earlier times a decree would certainly have been refused."

12. It seems to me clear from a reading of the cases that were referred to at the hearing, that the principle which is being uniformly applied in England in respect of the exercise of discretion in relation to dissolution of marriage at the instance of a party whose own matrimonial record is blameworthy, is that the question whether the marriage should or should not be dissolved must be decided with reference only to the facts bearing on the matrimonial conduct of the petitioner, with due regard to all the interests affected in the circumstances of each case ; that if a peti tioner prevents the Court from finding out those facts, he or she is guilty of contempt of Court, but that does not mean that a marriage is not to be dissolved, if on the facts as finally ascertained it is desirable that it should be dissolved ; but that if the deception practised by a petitioner upon the Court renders it impossible for the Court to achieve the confidence that what has been ascertained is the whole truth and nothing but the truth, the Court may, on that account, be helpless in the matter of deciding whether it would or would not dissolve the marriage if all the relevant facts were known to it, and may for that reason‑and not as a punishment to the petitioner for contempt of Court or perjury‑refuse to dissolve the marriage. Once it is recognised that in the dissolution of a marriage, interests other than those of the petitioner are involved, including those of the community at large, it would be anomalous to disregard these interests because a misguided petitioner dealt deceitfully with the Court at some stage or other. Such a petitioner must be punished, but the punishment must be for the offence of dealing deceitfully with the Court and must be of a kind that its incidence is confined only to the petitioner. If in a given case the only substantial interest to be adversely affected is that of the petitioner, discretionary relief may properly be refused in addition to or in place of punishment for contempt of Court or perjury.

13. This I find to be the principle on which the Divorce Court in England acts. The rule of pleading introduced in England first by instructions and later by statute and still later by statutory rules, is not applicable to our Courts, because procedure and pleadings here are governed by the Code of Civil Procedure by reason of the provision in section 45 of the Divorce Act. In any case, the consequence of deception while complying with that rule of pleading is nowhere stated to be a compulsory dismissal of the petition. On the contrary, the House of Lords in Blunt v. Blunt proceeded to deal with such a case and went to the length of setting aside an appellate decision that was based on the consideration that discretion ought not to have been exercised in favour of such a petitioner.

14. I would, therefore, answer the first point under reference as follows :‑ The general considerations on which the Divorce Court in England acts and gives relief to guilty petitioners seeking a dissolution of marriage, are "principles and rules" within the meaning of section 7 of the Divorce Act and must be followed by the Courts in Pakistan as nearly as may be; but the Divorce Court in England does not appear to be with‑holding the relief of dissolution of marriage on the consideration which the question as formulated assumed to be a consideration on which that Court withholds the relief.

15. In this view of the matter the decree nisi pronounced by the Appellate Bench is' obviously not contrary to law. To what extent an appellate Bench should interfere with a discretion exercised by the trial Judge is a question that does not arise in this reference. I may mention, however, that the House of Lords in Blunt v. Blunt have dealt with this matter also, and concluded that the exercise of discretion ought not to be inter fered with in appeal unless there existed a misconception in the mind of the trial Judge that would render his decision "erroneous" within the meaning of that word as used in an earlier case Holland v. Holland (1918 P. 273). Whether the judgment of the trial Judge did or did not fall within that description, it is not necessary to decide in this case. But assuming that it did not, and assuming consequently that the Appellate Bench should not have reversed the discretionary judgment of the trial Judge, the decree nisi, pronounced by the appellate Bench, would not on that account, become invalid or contrary to law.

16. That being so, the second question referred by the Motion Bench is rendered hypothetical and need not be answered. Since, however, we heard full arguments on that point, I think it would be an unsatisfactory disposal of this reference, if I did not express an opinion on it. It seems to me that a decree of Court made with jurisdiction must take effect according to its tenor unless it is set aside, in exercise of some jurisdiction expressly authorising a Court to do so. And this must be so even if the decree is contrary to law. A Bench which is hearing a motion to make a decree nisi absolute has not been vested by section 16 of the Divorce Act, or by any other law that has been brought to my notice, with the power to set aside or pronounce that decree to have been given contrary to law or to have been invalidly made. The power given to it seems to be the power to deal with it on the assumption that it was properly made when it was made and to see, in the light of circumstances if any, which, were not before the Court at the time when the decree nisi was made, whether it should be made absolute, or reversed or whether it should be a further inquiry should be ordered, or some other proceeding taken. If that be so, the fact,. that a decree nisi appears to the Court hearing a motion to make it absolute, to be invalid, would have no effect on the decree nisi, and the Court would be bound to deal with it as it would have dealt with it, if it were not of that opinion. SHABIR AHMAD, J.‑I agree but would add a few words. As a member of the Bench which passed the decree nisi in this case and as one who had written the judgment I can assert that the intention of the Bench was that the technicalities regarding pleadings which may be of importance in England could not be made applicable to cases which were covered by the Divorce Act IV of 1869. The order of my Lord the Chief Justice makes it clear that extreme candour about one's own sexual lapses during the continuance of marriage is no longer a pre‑requisite in cases of this type in England and if it were to be treated as a pre‑requisite here what the Court would be doing is to apply the law which is not in force any longer in a thing that will amount to a contravention of law. ORTCHESON, J.‑I also agree with His Lordship the Chief Justice. A. H. Reference answered.