Darshan Singh vs Mst. Daso on 3 August, 1979

    Darshan Singh vs Mst. Daso on 3/8/1979

JUDGMENT

   M.C. Jain, J.

   1. This is an appeal against the judgment dated 17-10-1978 passed by the
District Judge, Sri Ganganagar, whereby the appellant's petition under Section 9
of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"), was
dismissed and the petitioner-appellant was ordered to pay maintenance to the
non-petitioner-respondent for herself and her daughter to the tune of Rs. 300/-
per month.

   2. The appellant's case was that the parties were married about seven years
ago according to Hindu rites. They lived as husband and wife at Chak 3 M.D.,
Tehsil Anupgarh, and a daughter was born out of the wedlock. About three years
ago, the non-petitioner left the company of the petitioner without any
reasonable excuse and went to her parents. Despite several efforts, she did not
return to her matrimonial home. The non-petitioner admitted the other facts as
averred by the petitioner. She, however, denied the allegations made against her
with regard to leaving the company of the petitioner without any reasonable
excuse. After traversing these allegations, it was averred by her that the
petitioner in her absence married one Mst. Puni about 3-4 years ago without her
consent and when her father came to leave her at the petitioner's house, the
petitioner refused to accept her. The non-petitioner had no alternative, but
under compulsion had to go back with her father. It was also averred that in the
presence of the second wife, it will not be in her interest to live with the
petitioner and she will have to suffer physical and mental torture and she will
be deprived of her matrimonial rights. She also claimed maintenance @ Rs. 300/-
per month from the petitioner for herself and her daughter.

   3. The learned District Judge framed as many as four issues and recorded the
evidence of the parties. After hearing arguments the learned District Judge
dismissed the petition for restitution of conjugal rights and awarded
maintenance @ Rs. 300/- per month. The learned District Judge found that the
petitioner married the second wife and there was reasonable excuse for the non-
petitioner for not living with the petitioner.

   4. Dissatisfied with the judgment, decree and order of the learned District
Judge, the petitioner has preferred this appeal.

   5. I have heard Shri M. L. Garg, learned counsel for the petitioner-appellant
and Shri S. N. Sharma, learned counsel for the non-petitioner-respondent.

   6. As regards the relief of restitution of conjugal rights, Shri Garg has not
seriously contested the appeal and in my opinion, rightly so. The finding of the
learned District Judge on issue No. 1, relating to second marriage by the
petitioner, is unimpeachable. The petitioner has led no evidence and as such
there was no escape for the learned District Judge except to hold that the
petitioner married a second wife and on that basis further it has been found
that there was reasonable cause for the non-petitioner not to live with the
petitioner. The statement of Mst. Daso and her father Jangir-singh {D. W. 3)
were to the effect that the non-petitioner was turned out from the house and not
accepted by the petitioner in view of his second marriage, although Mst. Daso
stated that she is still prepared to live with the petitioner, provided she is
kept with love. There are no reasons to differ from these findings arrived at by
the learned District Judge.

   7. The main attack of Shri Garg is on the order awarding maintenance to the
non-petitioner. Shri Garg urged that when the petition for restitution of
conjugal rights was dismissed, then under Section 25 of the Act, no alimony
could be awarded. Section 25 of the Act would be attracted only when any decree
is passed granting any relief under Sections 9 to 13. The order awarding
maintenance under Section 25 in the present case, according to Shri Garg, is
without jurisdiction, as, such an order can only be passed "at the time of
passing any decree or at any time subsequent thereto". Shri Garg in support of
his contention placed reliance on a decision of this Court in Purshotam Kewalia
v. Smt. Devki, (1972) 5 WLN 654.

   8. Shri S. N. Sharma, learned counsel for the

   non-petitioner-respondent, on the other hand, submitted that dismissal of the
petition is not simply an order of dismissal, but it also amounts to a decree.
The expression "decree" should be given its well accepted connotation. Where
there has been a formal expression of an adjudication conclusively determining
the rights of the parties whereby granting relief or refusing relief, such
formal expression should be taken to be decree. If such a meaning is not given
to the expression "decree", dismissal of the petition under Sections 9 to 13 of
the Act would not be appealable. The provision of Section 25 may be read along
with the provision of Section 28 of the Act. If the two provisions are read
together it would be clear that where petition is dismissed, such a dismissal
would also amount to a decree, else it would not be appealable. Shri Sharma
urged that under Section 28 of the Act, as it stood prior to its amendment, by
Marriage Laws (Amendment) Act, 1976 (hereinafter referred to as "Amending Act"),
all decrees and orders made by the court in any proceedings under the Act were
appealable and it presented no difficulty if the dismissal of the petition is
considered to be a decree or an order, but after amendment of Section 28, under
Sub-section (2) of section 28, only orders under Sections 25 and 26, which may
not be interim orders, are appealable and no other orders are appealable. Under
the amended Section 28, dismissal of the petition, if not taken to be a decree,
would not be appealable and such could not be the intention of the Parliament
that finality may be attached to the adjudication made by the District Judge
dismissing the petition. Shri Sharma, therefore, submitted that the view
expressed in Purshotam Kewalia's case (supra) needs reconsideration and in the
light of the provision contained in Section 28, the expression "passing of any
decree" under Section 25 of the Act should be construed. He urged that with
regard to the interpretation of the expression "decree made by the Court in any
proceeding under this Act" under the amended Section 28, there is no decision
holding that dismissal of the petition also amounts to a decree, but there have
been series of decisions where appeals have been preferred against dismissal of
the petitions after amendment of Section 28, whereby it can be said that all
concerned impliedly accepted the view that dismissal of the petition under the
Act also amounts to a decree, though the controversy did not arise at all in
those cases. Shri Sharma further urged that if narrower view of the Word
"decree" is taken so as to exclude the dismissal of the petition then the
petitioner's appeal against the dismissal of his petition, is not maintainable.

   9. Having heard the learned counsel for the parties, in my opinion the
controversy has become serious and. needs deeper consideration after amendment
of Section 28 of the Act. The provisions of Sections 25 and 28 have to be so
construed so that they may reflect the real intention of the legislature. For
the proper appreciation of the controversy the scheme of the various provisions
of the Act, needs to be examined and after examining the scheme, it has also to
be noticed as to how the two provisions came to be interpreted.

   10. Section 9 provides for a petition for restitution of conjugal rights and
it lays down that if there is no legal grounds why the application should not be
granted, the court may decree restitution of conjugal rights. Similarly, under
Section 10 of the Act the petition is presented for a decree for judicial
separation. Sub-section (2) of Section 10 uses the expression "passing of a
decree for judicial separation". Similarly Sections 11 and 12 provide for
passing of a decree of nullity of marriage and under Section 13 of the Act
marriage may be dissolved by a decree of divorce. Thus, these five sections
contemplate granting of decrees for the various kinds of reliefs, which may be
prayed under these provisions. Section 23 of the Act makes a provision as to
when decree granting relief can be passed under Sections 9 to 13. Under Sub-
section (i) of Section 23 the court is required to be satisfied with regard to
the matters enumerated in Clauses (a) to (e) and after such satisfaction the
court'is required ta decree the relief.

   The expression "decree" further occurs under Sections 26 and 27 of the Act.
It would appear that the expression "decree" in these two sections would mean
decree granting a relief as provisions are required to be made in such decrees
for the custody of children or for disposal of property. Section 25, thus, has
to be construed in the light of the scheme of the provisions referred to above.
I may read Section 25 of the Act to the extent, which is relevant in this
case:--

     "25. Permanent alimony and maintenance. -- (1) Any court exercising
jurisdiction under this Act may, at the time of passing any decree or at any
time subsequent thereto, on application made to it for the purpose by either the
wife or the husband, as the case may be, order that the respondent shall pay to
the applicant for her or his maintenance and support such gross sum or such
monthly, or periodical sum for a term not exceeding the life of the applicant
as, having regard to the respondent's own income and other property, if any, the
income and other property of the applicant, the conduct of the parties and other
circumstances of the case, it may seem to the court to be just, and any such
payment may be secured, if necessary, by a charge on the immovable property of
the respondent."

   The above provision came to be inter preted by the various High Courts in
India and the expression "passing any decree" has been given a meaning of decree
whereby relief has been granted, a decree as contemplated in Sections 9 to 13
and this expression has not been given a meaning so as to include the dis missal
of the petitions contemplated un der Sections 9 to 13. Such a view has been
taken by the Bombay High Court and this view has further found favour with the
Gujarat, Calcutta High Courts and this Court as well has adopted the same view
in Purshotam Kewalia's case (supra). The first case on the subject is a decision
of Gujarat High Court in Harilal Purshottam v. Lilavati Gokaldas (AIR 1961 Guj
202). In this case the ap plication for restitution of conjugal rights made by
the husband was dismiss ed by the learned District Judge and while dismissing
the application, he awarded maintenance under Section 25 of the Act to the wife.
The learned Judges of the High Court observed as under :--

     "The words 'at the time of passing any decree or at any time subsequent
thereto' in Section 25 mean at the time of passing any decree of the kind
referred to in the earlier provisions of the Act and not at the time of
dismissing the petition for any of the reliefs provided in those sections or any
time subsequent thereto. The expression "any decree' does not include an order
of dismissal. The passing of an order of dismissal of a petition cannot be
regarded as the passing of a decree within the meaning of this section".

   The above excerpt is quoted in Purshotam Kewalia's case (supra). Further this
view has been expressed in subsequent cases, namely in Shantaram Gopalshet v.
Hirabat, (AIR 1962 Bom 27), Minarani v. Dasarath, (AIR 1963 Cal 428) and Akasam
Chinna v. Parbati, (AIR 1967 Orissa 163). This view has also been expressed in
Shantaram Dinkar v. Malti Shantaram Karnik, (AIR 1964 Bom 83). If the view taken
by the High Courts in India was not in accordance with the intention of the
Legislature, the Legislature would have suitably amended Section 25 as well at
the time when substantial amendments were made by the Parliament, while passing
the Amending Act. In "The Construction of Statutes" fey Crawford (1940 Edition)
at page 308, Note 184 it is stated as under:--

     "184. Effect of Construction or interpretation on the Law. -- Stare
Decisis. The construction placed upon a statute by the courts becomes a part of
the statute, and hence a part of the law thereby enacted. If the legislature,
after ample opportunity to change a construction by the enactment of an
amendment, fails to do so, it gives its approval of the construction placed on
the enactment by the courts".

   11. In Statutes and Statutory Construction by Surtherland, Volume 2, Third
Edition (1943) at page 523, in Note 5109, it is stated as under:--

     "Where a statute has received a contemporaneous and practical
interpretation and the statute as interpreted is re-enacted, the practical
interpretation is accorded greater weight than it ordinarily receives, and is
regarded presumptively the correct interpretation of the law. The rule is based
upon the theory that the legislature is acquainted with the contemporaneous
interpretation of a statute, especially, when made by an administrative body or
executive officers charged with the duty of administering or enforcing the law,
and therefore impliedly adopts the interpretation upon re-enactment".

   12. Now the question arises whether in view of the amendment of Section 28 of
the Act, the construction placed on Section 25 at all needs any consideration?
For examining this question, it will have to be seen as to how the amended
Section 28 is to be construed, that is, whether the construction placed by Shri
Sharma on Section 28 is correct, so as to mean that only decrees granting relief
would be appealable or where the petitions are dismissed, they will also amount
to a decree and so would be appealable. Though, there are some observations made
in Purshotam Kewalia's case (supra), but on the basis of those. observations, it
cannot be said that it is the ratio of that case. It has been observed in
Purshotam Kewalia's case, after taking into consideration the definition of the
expression "decree" under Section 2 of the Code of Civil Procedure that where a
suit has been dismissed after trial, such dismissal is a decree within the
meaning of Section 2. Civil Procedure Code, but dismissal of an application
under the Act will not amount to a decree. It was further observed in that case
that the provisions of the Act show that it is only when the relief claimed is
decreed that the adjudication of the court will amount to the passing of any
decree within the meaning of Section 25 of the Act; and thereafter the learned
Judge stated that the provisions of Section 25 of the Act are analogous to the
provisions of Section 37 of the Indian Divorce Act; and reference was made to a
decision under the Indian Divorce Act holding that it was not competent for the
court dismissing the husband's petition for dissolution of marriage to award
maintenance to the wife under Section 16 or 37 of the Indian Divorce Act. It may
be stated that the learned Judge was not faced with the situation with which I
am confronted in the present case, 30 this observation of the learned Judge only
appears to be obiter that dismissal of the application under the Act will not
amount to a decree.

   13. For the proper appreciation of the controversy I may read Section 28, as
it stood prior to the amendment of 1976 and after its amendment in 1976:--

     "28. Enforcement of, and appeal from, decrees and orders. -- All decrees
and orders made by the court in any proceeding under this Act shall be enforced
in 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 any
law for the time being in force:

     Provided that there shall be no appeal on the subject of costs only".

     "28. Appeals from Decrees and Orders--(1) All decrees made by the court in
any proceeding under this Act shall, subject to the provisions of Sub-section
(3), be appealable as decrees of the court made in the exercise of its original
civil jurisdiction, and every such appeal shall lie to the court to which
appeals ordinarily lie from the decision of the court given in the exercise of
its original civil jurisdiction.

     (2) Orders made by the court in any proceeding under this Act under Section
25 or Section 26 shall, subject to the provisions of Sub-section (3), be
appealable if they are not interim orders, and every such appeal shall lie to
the court to which appeals ordinarily lie from the decisions of the court given
in exercise of its original civil jurisdiction.

     (3) There shall be no appeal under this section on the subject of costs
only.

     (4) Every appeal under this section shall be preferred within a period of
thirty days from the date of the decree or order,"

   14. A bare reading of the provisions of Section 28 before and after its
amendment makes it amply clear that prior to its amendment all decrees or orders
were appealable, whereas after amendment all decrees made in any proceedings
under the Act have been made appealable. The word "passed" has not been made use
of in Section 28. The word "made" has been used. Whereas in the other
provisions, namely, Sections 10, 23 and 25 the word "passed" is used, which
reflects the intention of the legislature in the sense of "granting relief",
whereas the words "making any decree" may mean in both the senses "granting of
any relief or refusing any relief". The provision of Section 28, as it stood
prior to amendment or after amendment, is analogous to the provision contained
in Section 55 of the Indian Divorce Act. Though prior to the amendment, Section
28 appears to have been adopted from Section 55 of the Indian Divorce Act and
after amendment the other part of it has been placed under Sub-section (2) of
Section 28. Section 55 of the Indian Divorce Act came to be interpreted by
courts in India and it has been construed that dismissal of a petition would
amount to a decree and would be appealable. It has been so held in Morgan v.
Morgan ( (1882) ILR 4 All 306). Such a view has further been taken in E.C.
Palmer v. C.M. Palmer (1917) ILR 41 Bom 36), and Holland v. Holland, (1918 P.
273: 87 LJP 142: 119 LT 266, appearing in the commentary of Section 55 of the
Indian Divorce Act by S. C. Manchanda (1969) Third Edition, at page 483, Foot
Note 3).

   15. In Shantaram Dinkar Karnik's case (supra) it has been observed in para 3
that although technically speaking, dismissal of a suit or a petition may be
called a decree, such decree is not contemplated by Section 25(1) of the Hindu
Marriage Act. It would appear from these observations that for purpose of
Section 25 dismissal of the petition does not amount to a decree and granting of
relief alone may be termed as a decree, but for purposes of Section 28,
dismissal of a petition may be considered to be a decree.

   16. In Black's Law Dictionary, Fourth Edition, at page 498, it is stated as
under:--

     "The judgment of a court of equity or admiralty, answering for most
purposes to the judgment of a court of common law. A decree in equity is a
sentence or order of the court, pronounced on hearing and understanding all the
points in issue, and determining the rights of all the parties to the suit,
according to equity and good conscience".

     "The words "judgment" and "decree', however, are often used synonymously;
Finnell v. Finnell, 113 Old. 269, 230, p. 912, 913; especially now that the
Codes have abolished the distinction between law and equity; Henderson v.
Arkansas 71 Okl. 253, 176 p. 751, 753".

   17. In Stroud's Judicial Dictionary Fourth Edition, it is stated as under:--

     "A decree is the final Order of a court in a suit, e. g. prior to the
Judicature Act 1873 (c. 66), a chancery decree, "Decree' closely resembles, but
is not identical with, "judgment", "The final decision of a divorce proceeding
is termed a 'decree"; the proceeding itself is usually styled a 'cause', or
'suit".."

   18. Decree in its ordinary connotation may mean formal expression of
adjudication determining the rights of the parties In any cause. It may be
stated that Section 21 of the Act makes the Civil Procedure Code so far as may
be applicable to the proceedings under the Act subject to the provisions of the
Act and Rules of the High Court. The definition of the word "decree' as is given
in Section 2 (2) of the Civil Procedure Code may be applicable so far as may be
to the expression "decree" in Section 28 of the Act. It is true that the same
meaning cannot be assigned to the word "decree' as is found in its definition in
the Civil Procedure Code, but to this extent the definition can be made
applicable that dismissal of the petition is nothing, but formal expression of
an adjudication determining the rights of the parties in a cause, In this sense
if the expression is interpreted in Section 28, it would include not only decree
granting relief, but also decree dismissing the petition. Had this been not the
intention, the legislature could have used the same expression that all decrees
granting relief or decrees passed under the provisions of the Act, would be
appealable. In the mind of the legislature passing of any decree was to mean
granting any relief and making of any decree was to mean granting and refusing
any relief. It is in this way that the two provisions can be construed
reflecting the real intention of the legislature, for it cannot be conceived
that refusing of relief by dismissal of a petition would be made non-appealable.
The legislative intent had been so read by all concerned and it has been
impliedly accepted that where the petitions are dismissed, such dismissal would
amount to a decree and would be appealable. Appeals against dismissal of the
petitions have been filed after amendment of Section 28 of the Act and they have
been heard and disposed of by various High Courts in India. Reference in this
connection may be made to Gurucharan Singh v. Sukhdev Kaur, (AIR 1979 Punj & Har
98), in husband's petition for divorce; Ravishanker v. Smt. Sharda Vishwakarma,
(AIR 1978 Madh Pra 44), a joint petition by the spouses under Section 13B of the
Act inserted after the Amending Act, dismissed; Chander Dev Chadha v. Smt. Rani
Bala, (AIR 1979 Delhi 22), the husband's petition for restitution of conjugal
rights dismissed; Nandkishore v. Smt. Munnibai, (AIR 1979 Madh Pra 45), the
husband's petition for nullity under Section 12 (1)(d) of the Act, dismissed.
When appeals have been preferred against dismissal of the petitions and the
objections have not been raised under the amended Section 28 of the Act it can
legitimately be taken that Section 28 of the Act, even after amendment, has been
understood to mean that the dismissals of the petitions amount to decrees made
under the provisions of the Act and hence are appealable.

   19. From the above discussion I am clearly of the opinion that expression
"passing of any decree' under Section 25 of the Act would mean decree granting
relief of the nature stated in Sections 9 to 13 of the Act and the expression
"decrees" made under the provisions of the Act, would mean decrees granting
relief or refusing relief and it cannot be the intention of the legislature to
attach finality to the orders of the District Judges regarding the dismissal of
the petitions: under Sections 9 to 13 of the Act. Thus, I hold that the present
appeal against the dismissal of the petition under Section 9 of the Act, is
maintainable and I further hold that as relief of restitution of conjugal rights
has not been granted, award of maintenance under Section 25 of the Act was
without jurisdiction and the award of maintenance cannot be sustained in the
light of the case law discussed above.

   20. In the result, this appeal is allowed in part. The decree of the learned
District Judge dismissing the appellant's petition for restitution of conjugal
rights shall stand. However, the order granting maintenance is set aside. Under
the circumstances of the case the parties shall bear their own costs of this
appeal.