Smt. Balwant Kunwar And Ors. vs Addl. Munsiff, Dehra Dun And Anr. on 30 April, 1958

    Smt. Balwant Kunwar And Ors. vs Addl. Munsiff, Dehra Dun And Anr. on 30/4/1958

ORDER

   V.G. Oak, J.

   1. The question raised in this petition under Articles 226 and 227 of the
Constitution is whether, in view of the enactment of the Hindu Marriage Act,
1955 (hereinafter referred to as the Act, or the 1955 Act), a Munsif has
jurisdiction to entertain a suit for restitution of conjugal rights where the
parties are Hindus.

   2. Ranjit Singh filed suit No, 306 of 1955 in the Court of Munsif, Dehra Dun
against Smt. Bal-want Kunwar, Bakshish Singh and Inder Kunwar. Defendant No. 1
is plaintiff's wife. Defendant No. 2 and defendant No. 3 are her brother and
mother respectively. The reliefs claimed by the plaintiff are :

     (a) a decree against the defendant No. 1 directing her to live with the
plaintiff and to allow him a free exercise of his conjugal rights:

     (b) an injunction restraining the defendants Nos. 2 and 3 from preventing
the defendant No. 1 from coming to the plaintiff's house.

   3. Various pleas were raised in defence. One of the pleas was that the Court
has no jurisdiction to try the suit. The learned Munsif took up issue No. 1 as a
preliminary issue on a question of law. On 18-4-1956 he passed an order deciding
the issue in plaintiff's favour. The learned Munsif held that he had
jurisdiction to try a suit for restitution of conjugal rights.

   The defendants are not satisfied with this decision dated 18-4-1956. They
maintain that in view of the Hindu Marriage Act, 1955, the suit is not
maintainable. Hence the present application under Articles 226 and 227 of the
Constitution.

   4. It appears that the parties are Sikhs. According to Clause (b) of Sub-
section (1) of Section 2 of the Act, the Act applies to Sikhs also. So the
present par-hies are governed by the Hindu Marriage Act, 1955.

   5. Section 9 of the Act deals with restitution of conjugal rights. Section 9
states-

     "(1) When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by
petition to the district court, for restitution of conjugal rights and the
court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted may
decree restitution of conjugal rights accordingly.

     (2) Nothing shall be pleaded in answer to a petition for restitution of
conjugal rights which Khali not be a ground for judicial separation or for
nullity of marriage or for divorce". The petitioners' contention is that the
plaintiffs only remedy was to file a petition under Section 9 of the Act, and a
suit was not maintainable in "the Munsif's Court.

   6. Section 9 of the Code of Civil Procedure deals with the general
jurisdiction of Civil Courts. Section 9, Civil Procedure Code states:

     "The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred".

   Before 1955 Munsifs had jurisdiction to try suits for restitution of conjugal
rights. The question for consideration is whether that jurisdiction has been
expressly or by implication taken away , by the 1955 Act.

   7. In Shiromani Gurdwara Prabandhak Committee Amritsar v. Shiv Ratan Dev
Singh, (S) AIR 1955 SC 576 (A), their Lordships of the Supreme Court laid down
that, the exclusion of jurisdiction of the Civil Court in respect of a suit
which is normally within its competence can be brought about only by clear and
unambiguous language or by the necessary implication thereof.

   8. In the commentary on the Code of Civil Procedure by Chitaley and Rao, 6th
edition, the learned authors observe on pages 212 and 213 as follows:

     "The mere fact that the enactment provides another remedy or a summary
remedy will not constitute a bar to a suit in a Civil Court. Nor will the
jurisdiction of a Civil Court be ousted unless the entire suit, as brought, is
barred. The mere fact that a portion of the claim is excluded from the
jurisdiction of Civil Court is no bar to the trial, by them, of another portion
of the same suit which is not so excluded .....

     If there is any doubt about the ousting of the jurisdiction of an existing
Court, the Court will lean to such an interpretation which would maintain the
existing jurisdiction."

   Again on page 255:

     "It is also a general principle that where two proceedings or two remedies
are available under the law, one of them must not be taken as operating in
derogation of the other."

   9. In order to decide whether jurisdiction of Munsifs to try claims for
restitution of conjugal rights has been taken away by the 1955 Act, it will be
necessary to examine the general scheme of the Act. According to the preamble,
this is an Act to amend and codify the law relating to marriage among Hindus.
The preamble suggests that Parliament intended to codify the law relating to
marriage among Hindus. Section 4 of the Act deals with the overriding effect of
the Act. According, to Clause (b) of Section 4

     "any other law in force immediately before the commencement of this Act
shall cease to have effect in so far as it is inconsistent with any off the
provisions contained in this Act".

   10. Part III of the Act deals with restitution of conjugal rights and
judicial separation. Section 9 dealing with restitution of conjugal rights has
already been quoted. Section 10 provides for petition for obtaining Judicial
separation. Before 1955 the general Hindu Law did not recognize judicial
separation among Hindus. The 1955 Act recognizes the right of judicial
separation among Hindus.

   Before 1955 a Hindu in general could not institute a suit in a Munsifs Court
for judicial separation. There is nothing in the Act to suggest that, after 1955
a Munsif can try a suit for judicial separation. If a Munsif cannot try a suit
for judicial separation, there is no special reason why a Munsif must have power
to try a suit for restitution of conjugal rights.

   11. Part IV of the Act deals with nullity of marriage and divorce. Section 11
deals with void marriages. Mr. Brij Lal Gupta appearing for the plaintiff
pointed out that, Section 11 mentions marriages solemnized after the
commencement of the Act, and does not mention marriages solemnized before the
commencement of the Act. Section 12 deals with voidable marriages. Section 12
deals with both types of marriages solemnized before or after the commencement
of the Act. Part V of the Act deals with jurisdiction and procedure. Section 19
states:

     "Every petition presented under this Act shall be presented to the district
court within the local limits of whose ordinary original civil jurisdiction the
marriage was solemnized or the husband and wife reside or last resided
together."

   It may be noted that both Sections 9 and 19 emphasize that, a petition for
restitution of conjugal rights ought to be presented to the district court.

   12. Section 29 deals with savings, Section 29(3) states:

     "Nothing contained in this Act shall affect any proceeding under any law
for the time being in force for declaring any marriage to be null and void or
for annulling or dissolving any marriage or for judicial separation pending at
the commencement of this Act, and any such proceeding may be continued and
determined as if this Act had not been passed."

   13. Section 29(3) saves pending proceedings in certain cases. If a divorce
suit was pending from before 1955, such a suit may be continued in spite of the
passing of the Act. Section 29(3) suggests that it would not be possible to
institute-a fresh suit for divorce in a Munsif's Court after the commencement of
the Act. Section 29(3) makes no reference to a suit for restitution of con-
jugal rights. The Act came into force in May 1955. The present suit was filed in
August 1955, i. e., after the commencement of the Act. Since the present suit
was filed after the commencement of the Act, Section 29(3) has no application to
the present case.

   14. It will be useful to compare the provisions of the 1955 Act with the
Indian Divorce Act (Act IV of 1869). Section 4 of the Indian Divorce Act deals
with matrimonial jurisdiction. Section 4 states:

     "The jurisdiction now exercised by the High Courts in respect of divorce 'a
mense et toro', and in all other causes, suits and matters matrimonial, shall be
exercised by such Courts and by the District Courts subject to the provisions in
this Act contained, and not otherwise: ....."

   The expression 'not otherwise' appearing in Section 4 suggests that, Civil
Judges and Munsifs have no jurisdiction to try matters dealt with in the Indian
Divorce Act. Section 10 of the Indian Divorce Act provides for a petition by a
husband or a wife for dissolution of marriage. Section 18 provides for a
petition by husband or a wife for declaration about nullity of marriage. Section
23 deals with a petition for judicial separation. Section 32 deals with a
petition for restitution of conjugal rights. Section 32, Indian Divorce Act
states :

     "When either the husband or the wife has, without reasonable excuse
withdrawn from the society of the other, either wife or husband may apply, by
petition to the District Court or the High Court, for restitution of conjugal
rights, and the Court, on being satisfied of the truth of the statements made in
such petition, and that there is, no legal ground why the application should not
be granted, may decree restitution of conjugal rights accordingly."

   The language of Sub-section (1) of Section 9 of the Hindu Marriage Act, 1955
is similar to the language of Section 32 of the Indian Divorce Act. It is true
that the language of Section 19 of the 1955 Act is different from the language
of Section 4 of the Indian Divorce Act. But the 1955 Act follows the general
pattern of the Indian Divorce Act.

   15. Mr. Brij Lal Gupta contended that Section 9 of the 1955 Act merely
provides for a summary remedy. This summary remedy is in addition to the rights
of a party to file a regular suit. Section 21 of the Act deals with the
application of the Code of Civil Procedure:

     "Subject to the other provisions contained in this Act and to such rules as
the High Court may make in this behalf, all proceedings under this Act shall be
regulated, as far as may be, by the Code of Civil Procedure, 1908."

   Section 9 lays down that, if the petitioner makes out a case, the District
Court may decree restitution of conjugal rights. Section 28 provides for appeals
from such decrees. Thus the procedure in a petition filed under Section 9 of the
Act is practically the same as in a regular suit. There is no particular reason
for treating a petition under Section 9 of the Act as a summary proceeding.

   Mr. Brij Lal Gupta urged that, according to Sub-section (2) of Section 9 of
the Act, only particular pleas can be raised in defence in such a petition. He
contended that it would be possible to raise in regular suit pleas, which are
not allowed under Section 9(2) of the Act.

   16. The consequence of treating petitions under the Act as summary
proceedings would be this. A party would be entitled to file a regular suit in
addition to a petition under the Act. A person who has lost in a petition under
Section 9 of the Act, would be entitled to file a regular suit in the Munsif's
Court. In such a situation a Munsif may have to record findings, which are in
conflict with the finding of the District Court in a petition under Section 9 of
the Act. I do not think that Parliament envisaged such a situation.

   17. It has been noted that, it was the intention of Parliament to codify the
law relating to marriage among Hindus. It appears that Parliament intended to
deal exhaustively with marriages and allied questions. It appears that
Parliament concluded that, restitution of conjugal rights, nullity of marriages,
judicial separation and divorce are serious matters.

   Junior officers should not be entrusted with such serious matters. It was,
therefore decided that the District Court alone should deal with such important
questions. It was, therefore, laid down in the Act that, such reliefs may be
obtained by filing petitions before the District Court. I agree with Mr. Brijlal
Gupta that, there are in the Act no express words taking away the jurisdiction
of civil Judges and Munsifs.

   At the same time the scheme of the Act suggests that, the District Court
alone should deal with such matters. The District Court has been given exclusive
jurisdiction with respect to restitution of conjugal rights, judicial
separation, nullity of marriage and divorce. By implication, a Munsif has no
jurisdiction to entertain a suit for restitution of conjugal rights.

   18. There are two reliefs in the plaint. The first relief claimed by the
plaintiff is for a decree against defendant No. 1 directing her to live with the
plaintiff and to allow him a free exercise of his conjugal rights. In short, the
plaintiff asks for a decree agninst defendant No. 1 for restitution of conjugal
rights. Relief (a) is obviously covered by Section 9 of the Act. The learned
Munsif has no jurisdiction to grant relief (a).

   19. Relief (b) is:--

     "An injunction restraining the defendants Nos. 2 and 3 from preventing the
defendant No. 1 from coming to the plaintiff's house."

   Mr. Brij Lal Gupta urged that relief (b) does not fall under Section 9 of the
Act; and so the Munsif has jurisdiction to grant relief (b) at least. The words
used in Section 9 of the Act are:

     "..... The husband ..... may apply, by petition to the District Court, for
restitution of conjugal rights ....."

   Section 9 does not lay down that, a petition by the husband can be directed
against the wife only. The plaintiff's case is that defendants Nos. 2 and 3 are
preventing defendant No. 1 from returning to the plaintiff's house. Relief (b)
mentioned in the plaint is incidental to the relief (a) in the plaint.

   It was open to the plaintiff to combine both these reliefs (a) and (b) in a
petition under Section 9 of the Act. If such a petition is filed, the District
Court would be competent to grant both the reliefs (a) and (b) to the plaintiff-
petitioner. So, both reliefs (a) and (b) are covered by Section 9 of the Act.
The learned Munsif has no jurisdiction to try the suit as regards relief (b)
also.

   20. Since the Munsif has no jurisdiction to try the suit at all, this is a
fit case for issuing a writ in the nature of prohibition. The question of
jurisdiction is not free from difficulty. Parties may, therefore, be directed to
bear their own costs.

   21. The petition is allowed. Proceedings in suit No. 306 of 1955 pending
before the learned Additional Munsif, Dehra Dun are quashed. Parties shall bear
their own costs.