Surendra Nath Dutt vs Malati And Anr. on 29 May, 1942

    Surendra Nath Dutt vs Malati And Anr. on 29/5/1942

JUDGMENT

   Edgley, J.

   1. In this case the learned District Judge of the 24-Parganas by his order,
dated 17th September 1911, has directed that the marriage of the petitioner,
Surendra Nath Dutt, with his wife, Malati alias Baby Dutt, be dissolved subject
to confirmation by the High Court. The matter has accordingly come before us
under Section 17, Divorce Act, for confirmation of the order passed by the
learned Judge. The admitted facts of the case are as follows : Surendra Nath
Dutt went through a form of marriage in 1919 with a lady named Indubala Das.
This marriage appears to have been solemnized according to Hindu rites but, in
spite of this fact, the petitioner and Indubala went through a further form of
marriage on 3rd August 1920, under the provisions of Act 3 of 1872. On 2nd
September 1938, Indubala Das, on the allegation that she had become a convert to
Islam, filed a Plaint in the Court of the third Munsif of Alipore in which she
asked for a declaration to the effect that her marriage with Surendra Nath Dutt
stood dissolved by reason of her conversion to Islam and disinclination on the
part of her husband to be converted to Islam. The case was uncontested before
the learned Munsif and, on 21st September 1938, Indubala obtained an ex parte
decree which purported to dissolve the marriage relationship between the parties
to the suit. Towards the end of 1939 the petitioner was introduced to the
respondent and a marriage was arranged between them. On 18th January 1940, the
parties went through a form of marriage under Act 3 of 1872 and, on 1st August
of the same year, the petitioner filed a petition for divorce in the Court of
the District Judge of Mymensingh on allegations to the effect that the
respondent had committed adultery on various occasions with the co-respondent,
Jyoti Prakash alias Thandu Ghose. In paras. 1 and 2 of his petition he alleged
that he had been lawfully married to Malati Dutt on 18th January 1940, and that
he was domiciled in British India. These statements were admitted by the
respondent in para. 4 of her written statement which was filed on 3rd January
1941.

   2. In the meantime the respondent, Malati Dutt, had applied to this Court in
its extraordinary original civil jurisdiction under Clause 13, Letters Patent,
read with Section 8, Divorce Act, to the effect that the pending divorce suit
might be transferred to the High Court to be tried with a maintenance suit which
had been filed by her against her husband. A rule with reference to this matter
was issued by Panekridge J. on 14th August 1940, and this rule was heard by Sen
J, on 3rd September 1940. The learned Judge by his order directed that the suit
should be transferred from Mymensingh to Alipore to be heard by the District
Judge of the 24-Parganas and further ordered that a writ of commission should
issue authorising the District Judge of Mymensingh to examine certain witnesses
at Mymensingh the commission being made returnable to the Court of the District
Judge of the 24-Parganas. Certain objections were raised before the learned
District Judge of Mymensingh with reference to the question whether Sen J. had
jurisdiction to issue the commission and a complaint was also made to the effect
that the respondent's counsel was not allowed a sufficient opportunity to cross-
examine the witnesses. These objections were overruled by the learned District
Judge and the records of the divorce suit were duly transmitted to Alipore. A
further objection was taken at Alipore as regards the jurisdiction of that Court
to try the suit and this point was decided against the respondent on 10th
February 1941. This Court was then moved under Section 115, Civil P.C., against
the order of the learned District Judge of the 24-Parganas, dated 10th February
1941. The matter was heard in due course by Mukherjea and Roxburgh JJ. who held
on 22nd May 1941 that "it is not a case of a lack of inherent jurisdiction. The
utmost that can be said is that the jurisdiction was not invoked or exercised in
the right way."

   3. The learned Judges further expressed the opinion that as no final order
had yet been passed in the suit "it would be open to the petitioner to raise
this question of jurisdiction if she is so advised if any decree for dissolution
of marriage is at all passed in this case and the matter comes up for
confirmation before this Court under the provisions of the Divorce Act."

   4. The records were then returned to the Court of the learned District Judge
of the 24-Parganas who took further evidence in the matter and pronounced
judgment in favour of the petitioner on 17th September 1941. When this matter
first came before us for hearing Mr. Roy Chowdhury on behalf of the respondent
indicated to us that one of the main points which he proposed to argue was that
the petitioner's first marriage was still subsisting and that the decree of the
learned Munsif of Alipore, dated 21st September 1938, was not binding on his
client, The learned advocate informed us that in support of this argument he
proposed to rely on the decision of this Court in the exercise of its original
matrimonial jurisdiction in Noor Jehan Begum v. Eugene Tisoenko . In that case
the main point argued on behalf of the plaintiff in the Court of first instance
was that, whatever her domicile might be, after refusal by her husband to adopt
Islam after her conversion to that faith, the plaintiff was entitled to a
declaration to the effect that her marriage with her husband stood dissolved in
accordance with the principles of Mahomedan law which she had adopted as her
own. Mr. Mazumdar, who appeared for the plaintiff, admitted that such a
declaration would not operate as a judgment in rem having regard to the
provisions of Section 43, Specific Relief Act. He also admitted that it would
not possess any extra territorial validity. The decision was to the effect that
the Plaintiff could only obtain a decree for divorce according to the lex fori
of her husband's domicile and that the rule of Mahomedan law on which she relied
must be regarded as obsolete and contrary to public policy. When Eugene
Tiscenko'a case Noor Jehan Begum v. Eugene Tisoenko came before the Court of
Appeal on 19th December 1941 Noor Jehan Begum v. Eugene Tisoenko their Lordships
decided that as the parties were not domiciled in India, this Court. had no
jurisdiction to entertain the proceedings. It ' was not therefore necessary to
come to any final conclusion with regard to those provisions of the Mahomedan
law on which Mr. Majumdar had relied in the first Court.

   5. After Mr. Roy Chowdhury had indicated the position which he proposed to
adopt with regard to the decree of the learned Munsif, dated 21st September
1938, we considered that an adjournment should be granted for the purpose of
enabling the husband to appear in the further proceedings in this Court if he
desired to do so. We also asked Mr. S.M. Bose to appear as amicus curiae in view
of the importance of the point of law which had been raised. The further hearing
of the matter was consequently adjourned until 27th April 1942, On 27th April
1942, Mr. Surita appearing on behalf of the petitioner, Surendra Nath Dutt,
contended that, although his client and his first wife had gone through a second
form of marriage in 1920, under the provisions of Act 3 of 1872, nevertheless
the only effective marriage between them was that which had been contracted in
1919. He argued that the judgment of the learned Munsif of Alipore, dated 21st
September 1938, operated as a judgment in rem, that thereafter the petitioner
had contracted a lawful marriage with the respondent and that on the facts
proved his client was entitled to a decree for the dissolution of the second
marriage.

   6. Mr. S.M. Bose as amicus curiae maintained that, on the evidence as it
stood, it was difficult to come to a clear finding on the question whether
Surendra Nath Dutt and Indubala Das had been lawfully married in 1919 according
to Hindu rites or whether the only effective marriage between them was that
which had been celebrated on 3rd August 1920, under the provisions of Act 3 of
1872. The position which he adopted was that, if Surendra Nath Dutt and Indubala
Das were lawfully married under Act 3 of 1872, the marriage could not be
dissolved by a decree passed by a Munsif and any suoh decree purporting to
dissolve the marriage would have to be regarded as a nullity. If, on the other
hand, the petitioner and Indubala were lawfully married in 1919, according to
Hindu rites he maintained that the decree of the learned Munsif dated 21st
September 1938, would not operate as a judgment in rem binding on the
respondent, in view of the provisions of Section 41, Evidence Act, and Section
43, Specific Relief Act. The respondent, therefore, would be at liberty to
contend that, as far as she was concerned, the first marriage still subsisted
and to argue on the basis of the decision in Noor Jehan Begum v. Eugene Tisoenko
, that no Court

   can validly dissolve a marriage merely on the ground that the wife had become
a convert to Islam and that her husband had refused to adopt that faith after it
had been presented to him.

   7. Mr. Roy Choudhury's contention was of a threefold nature. In the first
place, he maintained that Sen J.'s order, dated 3rd September 1940, transferring
the divorce suit from Mymensingh to Alipore was without jurisdiction. He next
contended that no valid marriage had been contracted between Surendra Nath Dutt
and Malati Dutt in view of the fact that the learned Munsif of Alipore had no
jurisdiction to dissolve a marriage under Act 3 of 1872 and that, if an
effective marriage between Surendra Nath Dutt and Indu Bala Das had been
performed according to Hindu rites, the decree of the learned Munsif, dated 21st
September 1938, could not operate as a judgment in rem. Finally, he contended
that he would be in a position to show that the alleged acts of adultery had not
been proved. At this stage it may be noted that all the parties concerned
expressed their willingness that the question of Sen J.'s jurisdiction to
transfer the divorce suit from Mymensingh to Alipore should be decided by this
Bench as this question had not been expressly raised at the time when the
learned Judge made the order. Having regard to the considerations which had been
placed before us on 27th April 1942, we adjourned the further hearing of this
matter until 21st May 1942 in order that further evidence might be given by the
parties with regard to the first marriage alleged to have been contracted
between Surendra Nath Dutt and Indubala Das.

   8. On 21st May 1942, Mr. Surita filed a copy of the Registrar's certificate
in respect of the marriage contracted between Surendra Nath Dutt and Indubala
Das under Act 3 of 1872 on 3rd August 1920. He maintained, however, that any
further evidence should not be taken at the present stage of the proceedings
because his client had alleged and proved a de facto marriage in 1919, which had
been solemnised according to Hindu rites. This marriage was admitted by, the
respondent in para. 4 of her written statement which had not been amended and he
maintained that the petitioner would be gravely prejudiced if the respondent
were allowed now to adopt a position inconsistent with her pleadings. On this
point Mr. Roy Chowdhury maintained that the fact of Surendra Nath Dutt's first
marriage was only disclosed in the petitioner's evidence before Mr. Lethbridge
on 9th September 1941, after she had filed her written statement and that, in
any event, he was entitled to raise the question of the illegality of the second
marriage as a point of law. On a reference to the record, however, we find that
the first marriage was disclosed in Surendra Nath Dutta's evidence before the
Commissioner at Mymensingh on 19th September 1940 --long before the date of the
respondent's written statement which was not filed until 3rd January 1941. Had
she desired to impugn the validity of her marriage with the petitioner, she had
ample opportunity to do so, but she allowed the case to go to trial with an
admission that her marriage with Surendra Nath Dutt was subsisting and lawful.
Further, she sued the petitioner for maintenance in this Court on the footing
that she had contracted a valid marriage with him. At no stage in the
proceedings has she filed an application to the effect that she might be
permitted to alter or amend her pleadings in accordance with the provisions of
Order 6, Rule 17, Civil P.C. If she had expressly assailed the validity of her
marriage with the petitioner, the latter might conceivably have chosen to sue
for a declaration of the nullity of his marriage with the respondent, but for
him to do so now would involve him in considerable costs.

   9. In any event, we are satisfied that the evidence already on the record is
sufficient to show prima facie that a de facto marriage under the provisions of
Act 3 of 1872 was contracted between the parties on 18th January 1940, and, this
being the case, the onus would lie on the respondent to show that this marriage
was unlawful either by reason of the fact that a marriage contracted in 1919 was
still subsisting and had not been legally dissolved or that the subsequent
marriage between the petitioner and his first wife which was solemnized on 3rd
August 1920, had not been dissolved by a Court of competent jurisdiction. Having
regard to these circumstances we are of opinion that the respondent at the
present stage of the proceedings cannot be allowed to resile from the position
deliberately adopted by her in her written statement in which she had admitted
the validity of her marriage with the petitioner. Before the case went to trial
the petitioner, was entitled to a full knowledge of any intention which the
respondent may have had to impugn the validity of her marriage with him. To
allow her now to resile from the position which she had adopted in her pleadings
would materially prejudice the petitioner's position and we are, therefore, not
prepared to allow her to raise any points of law or of fact inconsistent with
the admission contained in her written statement to the effect that she had been
lawfully married to the petitioner on 18th January 1940. The questions which
have been raised by Mr. Roy Chowdhury are of course of far reaching importance
with reference to the law of marriage. Their final solution is a matter of
urgency but, on the facts of the present case, further consideration of those
questions must be postponed until a more suitable occasion arises.

   10. The next point to be considered is whether Mr. Lethbridge had
jurisdiction to try the divorce suit by reason of its transfer to his Court
under Sen J.'s order, dated 3rd September 1940. On this point Mr. Roy Chowdhury
has adopted the arguments which appear to have been addressed to Mukherjea and
Roxburgh JJ., by Mr. S.N. Banerjee when this matter came before this Court in
its civil revisional jurisdiction in May 1941 : Malati Dutt v. Surendra Nath
Dutt . He

   maintained that the power to transfer a case from one Court to another Court
subordinate to the High Court can only be exercised by a Bench on the appellate
side under Rule 3, Chap. 3, Part 1 of the Appellate Side Rules, which is to the
effect that "civil business arising from the districts of each group shall be
Laid before the Division Court appointed by the Chief Justice to deal with such
business." He also relied on Section 24, Civil P.C, which empowers this Court to
transfer suits to any Court subordinate to it and argued that the Court of the
District Judge of the 24-Parganas can only be regarded as subordinate to this
Court in its appellate jurisdiction. The legal aspect of the question was
discussed at some considerable length in Mukherjea J.'s judgment in Malati Dutt
v. Surendra Nath Dutt cited above. The learned Judge pointed out that the
provision contained in Part 1, Ch. 3, Rule 3 of the Appellate Side Rules "is
very general in its expression and does not specifically cover a case of this
description." He went on to say that:

     Sen J. obviously proceeded upon the assumption that the present case is
governed by Rule 44, Ch. 35A of the Original Side Rules .... We think that in
these doubtful cases where the rules themselves are ambiguous it would not be
just or proper on our part to exercise our powers of revision under Section 115,
Civil P.C., and treat the proceedings before the District Judge of Alipur as
being initiated without jurisdiction.

   11. Section 8, Divorce Act, contains an express provision enabling the High
Court, whenever it thinks fit, to remove and try and determine as a Court of
original jurisdiction any suit or proceeding instituted under this Act in the
Court of any District Judge within the limits of its jurisdiction under this Act
and also to withdraw any such suit or proceedings and transfer it for trial or
disposal to the Court of any other such District Judge. Section 45 of the Act
provides that:

     Subject to the provisions herein contained all proceedings under this Act
between party and party shall be regulated by the Code of Civil Procedure.

   12. It, therefore, follows that, as the Act contains an express provision
regulating the transfer of a suit from the Court of one District Judge to that
of another District Judge, Section 24, Civil P.C., can have no application.
Certain rules have been framed by the High Court under the provisions of Section
62, Divorce Act, and these rules are contained in Ch. 35A of the Original Side
Rules. Most of these rules relate to cases under the Divorce Act, which are
triable by the High Court on the original side in its matrimonial jurisdiction
under Section 10, Divorce Act. Rule 44, however, relates to the procedure to be
followed in connexion with applications under Section 8 of the Act. It is headed
"Removal of Suits, etc," and is in the following terms:

     An application to the High Court to remove a suit or proceeding under
Section 8 of the Act shall be made by an ex parte application to the Judge on
the original side in open Court for a Rule on the party or parties concerned to
show cause against such removal.

   13. Having regard to the express terms of this rule it may of course be
argued that it is only intended to relate to a base under the first part of
Section 8, Divorce Act, in which the High Court is asked to remove a case
pending before a District Judge and try such case as a Court of original
jurisdiction. Obviously, such an application would have to be made to a Judge
sitting singly on the Original Side. But the heading of the rule "Removal of
suits, etc.," indicates that it was intended also to cover applications for
transfer under the second part of Section 8, Divorce Act. It is unreasonable to
suppose that in framing these rules it was the intention of the High Court that,
in a case in which the best interests of the parties would be served by
transferring a suit to another district instead of to the High Court, such
parties should be compelled to in our additional expenditure by making a further
application to a Bench on the Appellate Side of the Court. The general scheme of
the Divorce Act and the rules framed under that Act is that all matters with
which the High Court is empowered to deal should come before this Court in its
original jurisdiction and this is emphasised by Rule 46 of the Rules contained
in Chap. 35A which is in the following terms:

     In any matter of practice or procedure which is not governed by statute or
dealt with by these rules the rules of the original side in respect of like
matters shall be deemed to apply.

   14. The only Bench in the High Court of competent jurisdiction to hear and
determine a suit under the Divorce Act would be a Judge sitting singly on the
original side, duly empowered in this behalf by the Chief Justice. In this
connexion, it may be noted that the second part of Section 8, Divorce Act,
authorises the High Court to withdraw a suit and then transfer it. The
implication of the use of the word 'withdraw' seems to be that this power can
only be exercised in order to withdraw a suit in the first instance to the Court
of a Judge competent to try it. In other words, the withdrawal order must be
made by a Judge on the original side who would himself be competent to try the
suit under the provisions of the Divorce Act. We, therefore, think that there
can be no doubt that Sen J. had jurisdiction to transfer the suit from the Court
of the District Judge of Mymensingh to the Court of District Judge of the
24-Parganas.

   15. Mr. Roy Chowdhury argues, however, that in any event Sen J.'s order for
the issue of a writ of commission was without jurisdiction. With regard to this
point admittedly no objection was raised before the learned Judge at the time
when he made the order to the effect that certain witnesses should be examined
on commission at Mymensingh. In Act, this part of the order seems to have been
in the nature of a consent order. The rules which have been framed under Section
62, Divorce Act, are silent on the question whether or not a Judge of this Court
is authorised to issue commissions for the examination of witnesses when a case
has been transferred from one District Court to another under the provisions of
the second part of Section 8 of the Act. We do not think, however, that either
the Act or the rules contain any implication to the effect that such an order
would be without jurisdiction and as the learned Judge would certainly have been
competent to make such an order if he had removed the case to his own file, it
seems to follow that he would also have jurisdiction to do so at the time of
withdrawing the case and transferring it. As this is a matter which is not dealt
with by the rules contained in Chap. 35A, Original Side Rules, we think that
Rule 46 should be applied and this being the case, the order with regard to the
issue of the writ of commission should be deemed to be merely complementary and
consequential to the order of withdrawal and would be governed by the rules
relating to commissions contained in Chap. 22, Original Side Rules. These points
must, therefore, be decided against the respondent.

   16. Finally, Mr. Roy Chowdhury in dealing with the merits of the case argues
that his client was prejudiced as her counsel had no sufficient opportunity to
cross-examine the petitioner's witnesses when they were examined on commission
at Mymensingh and further that the charges of adultery have not been proved.
With regard to the first of these complaints we do not think that the learned
District Judge of Mymensingh adopted an unreasonable attitude as regards the
questions put up by counsel to the petitioner's witnesses. Further, even after
Mr. B.B. Chatterjee retired from the case, the respondent was still represented
by a lawyer who was competent to continue the cross-examination. It follows,
therefore that in our opinion she has sustained no prejudice in connexion with
this matter. As regards the specific instances of adultery alleged by the
petitioner we have perused the evidence and we are entirely in agreement with
the findings of the learned District Judge. The evidence was ample and complete
and it appears from the record that on 15th September 1941, learned Counsel for
the respondent stated that he had been instructed by his client to say that she
was not in a position either to resist the charges made against her or to make
good the counter charges which she had made against the petitioner. In these
circumstances he asked leave to withdraw, which was granted to him. We are
satisfied that the petitioner has succeeded in proving that the respondent has
committed adultery with the co-respondent. He is, therefore, entitled to a
decree for the dissolution of his marriage. In view of the considerations
discussed in this judgment we confirm the decree under Section 17, Divorce Act.
The parties will bear their own costs.

   Sen, J.

   17. I agree.

   Akram, J.

   18. I agree.