Kikishru Nadershaw Chinoy vs Nargesh Kikishru Chinoy Nee ... on 25 January, 1941

    Kikishru Nadershaw Chinoy vs Nargesh Kikishru Chinoy Nee Nargesh Dorabji
Tarapore on 25/1/1941

ORDER

   Gentle, J.

   1. This is an application by the respondent in a petition presented pursuant
to the Parsi Marriage and Divorce Act 3 of 1936. In the application the
applicant seeks to obtain revocation of the order giving leave to the petitioner
to present her proceedings in this Court, the grounds being that the balance of
convenience will be met by the proceeding being presented in a Court nearer to
the Punjab where the respondent says he is residing. This Court is not the High
Court sitting in its original jurisdiction. It is the Parsi Chief Matrimonial
Court which is constituted under the provisions of Sections 18 and 19, Parsi
Marriage and Divorce Act, 1936. The application on the face of it purports to
have been issued under Order 13, Rule 14 (f) of the Rules of the Original Side
of the High Court. This rule provides that the Judge sitting on the original
side of the High Court shall deal with applications for revocation of orders
granting leave to sue.

   2. The petitioner applied to the Parsi Chief Matrimonial Court under Section
29, Sub-section (3) of the Act for leave to present her proceedings in the
Matrimonial Court in Madras and on 6th February 1941, this Court granted the
leave which the petitioner sought. Learned counsel on behalf of the respondent,
the applicant in the application before me, has with great frankness, conceded
that his client was served with the proceedings in the suit brought against him
by his wife by the end of February 1941. Early in the month of March, this Court
fixed the date to hear the suit between the petitioner and the respondent to
take place on 5th August 1941 and again learned counsel on behalf of the
respondent has conceded that his client was aware of the date of trial by end of
March 1941. No step was taken by him until 7th May 1941 when the present
application was issued to revoke the leave granted to the petitioning wife to
bring her proceedings in Madras. This application was not served until on or
about 20th July. Learned counsel on behalf of the wife takes the preliminary
objection that the wrong procedure has been adopted and ho relies upon the
provisions of Section 47, Parsi Marriage and Divorce Act, which, so far as is
material, provides as follows:

     An appeal shall lie to the High Court from... (b) the granting of leave by
any such Court under Sub-section (3) of Section 29 provided that such appeal
shall be instituted within three calendar months after the decision appealed
from shall have been pronounced.

   3. The words above "such Court" clearly refer to the Chief Parsi Matrimonial
Court within the jurisdiction of the High Court. It is contended that the
husband should have presented an appeal to the High Court from the decision of
the Matrimonial Court granting leave to sue and the machinery which has been
adopted pursuant to the provisions of the original side rules of the High Court
is wrong and consequently this application must fail. Prior to 1936 the
statutory enactment in force was the Parsi Marriage and Divorce Act of 1865
which contains some similar provisions to the Act of 1936 but by Section 51 of
the earlier Act the High Court of the area in which the Parsi Matrimonial Court
is established was empowered to make such rules and regulations concerning the
practice and procedure in the Matrimonial Court as it might consider expedient.
Under the provision of the section, to which I just referred, the High Court
provided in Section 35, Rule 18 of its original side rules that the rules of the
High Court should apply to all suits under the Matrimonial Parsi Marriage and
Divorce Act of 1865. Counsel on behalf of the husband thereupon contends that
the original side rules are still applicable to the Parsi Matrimonial Court and
he is entitled to present this application. Section 53 of the Act of 1936
repealed the whole of the Act of 1865. It has therefore repealed Section 51 to
which I have referred. By the Repealing and Amending Act of 1937, Section 53 of
the 1936 Act was itself repealed. Section 24, General Clauses Act, provides
that:

     Where any Act...is...repealed and reenacted with or without modification,
then, unless it is otherwise expressly provided, any order, scheme, rule, form
or by-law, made or issued under the repealed Act...shall, so far as it is not
inconsistent with the provisions re-enacted, continue in force and be deemed to
have been issued under the provisions so re-enacted.

   4. The important words to emphasise are "so far as it is not inconsistent
with the provisions re-enacted." Under the Act of 1865 there was no provision by
which the potential petitioner in a matrimonial suit in a Parsi Court could
obtain leave to present the proceedings and there was no comparable provision in
the earlier Act to that contained in Section 29 (3) of the 1936 Act. The
appellate provision in Section 47 (b) of the 1936 Act is also a new provision
which expressly gives a remedy by appeal in regard to the grant by the Court of
leave to present proceedings under Section 29(3). This provision is in conflict
with the provisions in Order 13, Rule 14(a) of the Original, Side Rules of the
High Court which provides a remedy for revocation of leave to sue by means of an
application to the Judge and which is therefore inconsistent with the statutory
provision in Section 47(b) of the Act of 1936. It is not necessary for me to
decide whether or not all the original side rules of the High Court still have
application to the Matrimonial Court for this reason. Assuming that they do,
then, the provision by which an application can be made to the Judge to revoke
the leave to sue is inconsistent with the statutory provision and in consequence
the statutory provision must prevail. It is quite clear that the remedy open to
the respondent husband in the proceedings was to have availed himself of the
appellate provisions Section 47(b) of the Act of 1936. He has not done so but
has taken proceedings under a rule of the original side of the High Court which,
in my view, has no application to the Matrimonial Court. The consequence is that
the present application cannot be entertained and must be dismissed with costs.

   5. Learned counsel on behalf of the husband (respondent) applied for an
extension of time to be given to his client for filing the written statement and
he stated the reason why it had not already been filed or prepared was because
of the pendency of the present application. The respondent took no steps at all
until more than two months had elapsed after he was informed of the filing of
the suit in this Court and not until about six weeks following his being
apprised of the date of trial and although the application was issued on 7th May
1941 service was not effected on the wife's learned advocate until about 20th
July. True it is that the vacation of this Court was then taking place, but I
see nothing to have prevented initiation of the proceedings long before the
present application was filed. I see no ground to extend the time. I refuse to
do so.