When courts become ‘functus officio’?

Section 44 although refers to ‘confirmation in the head note’, in substance, it relates to powers of the Courts (may be District Court or the High Court). Section 44 vest powers in the District Court to pass the Order even after it has finally disposed of the matter. Generally, after the powers are exercised, the Courts become ‘functus officio’. Functus officio means the powers of Courts are taken off once the powers are exercised.

But under Section 44 of the Act, the Courts do not become ‘functus officio’ and continue to have the jurisdiction and powers, notwithstanding the fact that the Courts could have very well passed the said Order/direction/provision when the matter was before it. The Courts thus can:

(a) Pass orders

(b) Make provisions

In respect of

(i) Custody of Children

(ii) Maintenance and Education of children, and

(iii) Placing the children under protection of the Court

Section 44 invests such powers in the Court only when the Petitioner makes the Application to it.

Settlement of property

Section 40 uses the terminology ‘Settlement’. The word settlement has not to be misunderstood to mean the decision of dispute and finally settling the dispute. The term ‘Settlement’ in Section 40 is used to mean the disposition of property or orders relating to the property. Section 40 empowers the District Court to pass the final order or the interim Order from time to time in respect of property.

Property may be movable or immovable. The property may belong to the husband or to the wife. The Petition or the Suit may be in respect of Divorce or Decree of Nullity. Whatever it may be, the District Court, considers it so necessary to pass the appropriate Order in respect of property. By the Order of the District Court, the benefit of property may go to the husband or to the wife or only to children or to the children and their parents. The whole idea is to avoid future litigation and controversy in future in respect of property in which the husband and wife may claim their respective share. Indeed, for passing the Order in respect of property, it will be necessary for any District Court to ascertain the property of the husband and wife.

The property may have come to common hotchpots through husband or wife, before marriage or after marriage (ante nuptial or postnuptial). It means what property has come and at what point of time has come is wholly irrelevant. The moment, the Court considers it necessary to pass the appropriate order in respect of property; it must do so without any technical hitch.

It is also clarified in Section 40 that the District Court will pass the appropriate order in respect of the entire property in dispute, or a portion of it, giving benefit of it to husband, wife or children as the case may be. Section 60 grants immunity to those who have, in good faith, dealt with the property in which wife has obtained the Order of protection against her husband. Similarly, the protection is extended to those who have dealt with such property in good faith after the protection is vacated or the decree is reversed. Indeed, such protection is only to those who did not have the knowledge of the reversal of the Decree and not to those who had knowledge of the reversal of the decree.

Remarriage

Chapter XIII, Section 57 deals with the remarriage after the first marriage is dissolved for any reason enumerated in the Act. It allows the two separated spouses to remarry after the appeal period is over. Indeed, this provision is amended in the light of the deletion of the provisions of confirmation. Earlier, it was necessary to have the confirmation of the High Court, if the decree of dissolution (Divorce) or the Decree of Nullity is granted.

Now when no confirmation is required, the Law allows the two spouses to marry as they desire but only after the appeal period is over. Therefore, obviously and correctly, the parties are prohibited in contracting another marriage before the expiry of appeal period and when the appeal is pending for hearing and final disposal in the appellate court. The parties therefore, must ascertain whether any appeal is filed and whether it is pending; otherwise, serious legal consequences may ensue. In the latest but interesting case before the Hon’ble Supreme Court of India, the wife contracted second marriage after her first marriage was dissolved.

She had two children. But in appeal, the High Court set aside the dissolution against which the wife approached the Hon’ble Supreme Court of India. It was argued before the Hon’ble Supreme Court of India that in the interest of (i) justice and (ii) parties, the first marriage should be dissolved. The apex Court refused to dissolve the first marriage and observed that the right of appeal is recognized under all systems of civilized legal jurisprudence. If despite the pendency of appeal, the party chooses to solemnize the marriage, the adventure is deemed to have been undertaken at one’s own risk and the ultimate consequences of the judgment in the appeal. It is not known whether after the verdict of the apex court, the wife went back to her first husband and with her second husband or without him! But anyone may guess.