Phiroze Bomanshaw Pothiwalla vs Shirinbai Phiroze Pothiwalla on 30 March, 1937

    Phiroze Bomanshaw Pothiwalla vs Shirinbai Phiroze Pothiwalla on 30/3/1937

JUDGMENT

   B.J. Wadia, J.

   1. Plaintiff has filed this suit against his wife to have his marriage
dissolved on the ground that at the time of the marriage she was of unsound mind
and has been habitually so up to the date of the institution of the suit, or in
the alternative to have the marriage declared null and void on the same ground,
but under the provisions of Section 27 of the old Parsi Marriage and Divorce Act
of 1865. In the body of the plaint it is stated that the plaintiff will in the
further alternative ask for a decree for judicial separation; but there is no
prayer for judicial separation. The written statement was put in by the wife
through her father as guardian ad litem, and the issues were settled in chambers
in the ordinary course. The plaint was admitted by me provisionally, as I felt
some doubt at the time about the suit being maintainable. Two issues were tried
as preliminary issues, namely, issue (2)whether the plaint discloses any cause
of action as regards the reliefs for nullity and judicial separation, and (3)
whether the claim made and all the reliefs sought in the suit are barred by the
law of limitation.

   2. The plaintiff has made three claims in the plaint, but he prays only for
dissolution of the marriage, or in the alternative, for a declaration of
nullity. With regard to the prayer for dissolution of marriage, the appropriate
provision in the Act of 1936 is Section 32(b), under which it is provided that
the plaintiff may sue the defendant for divorce on the ground that the defendant
at the time of the marriage was of unsound mind and has been habitually so upto
the date of the suit: provided that divorce shall not be granted on this ground,
unless the plaintiff (1) was ignorant of the fact at the time of the marriage,
and (2) has filed the suit within three years from the date of the marriage. The
conditions laid down in the proviso are cumulative, so that before the suit can
lie, plaintiff must show that he was ignorant of his wife's unsoundness of mind
at the date of the marriage, and secondly, that the suit has been brought within
three years, not from the date of his knowledge of the wife's unsoundness of
mind, but within three years from the date of the marriage. The defendant has
put in a written statement, denying that she was of unsound mind at the date of
her marriage, or that even if she was the plaintiff was ignorant of it. Assuming
even that under the first condition the plaintiff was so ignorant, the second
condition is clearly against the plaintiff, for the suit is filed more than
three years after the date of the marriage, the parties having been married in
1925. It is admitted that the plaintiff can sue only for divorce on the ground
of his wife's unsoundness of mind under the new Act of 1936, and I do not
understand how it can be argued that only the first part of Section 32(b)
applies, and that the proviso does not apply, in this case. Under Section 27 of
the old Act the only relief which the plaintiff could claim on the ground of his
wife's unsoundness of mind was a declaration that the marriage was null and void
upon proof that: the lunacy or habitual unsoundness of mind existed at the time
of the marriage and was continuous. That relief is now done away with under the
new Act which only gives to the plaintiff the right to have the marriage
dissolved on the ground of unsoundness of mind, provided the suit is brought
within three years from the date of the marriage. The claim for dissolution of
the marriage is, therefore, time-barred.

   3. The alternative prayer is to have the marriage declared null and void. As
I have said before, the plaintiff cannot ask for that relief on the ground of
his wife's unsoundness of mind under the new Act. Counsel for the plaintiff
thereupon argued that he could fall back upon the provisions of Section 27 of
the old Act. Under the old Act also there was a proviso that no suit could be
brought under Section 27, if the plaintiff should at the time of the marriage
have known that the respondent was a lunatic or of habitually unsound mind.
Assuming, again, that the plaintiff did not know of such unsoundness at the date
of the marriage, two questions still arise : (a) whether the old Section 27 can
now apply, and (b) even if it does, whether the suit is barred by limitation.
Under Section 53 of the new Act the old Act of 1865 is entirely repealed. It is
laid down inter alia in Section 52 of the new Act that the provisions of the Act
shall apply to all suits to which the same are applicable, whether the
circumstances relied on occurred before or after the passing of the Act. The
circumstances relied on by the plaintiff are (1) that he and his wife were
married in 1925 (2) that she was then of unsound mind, and (3) that her
unsoundness of mind has continued upto the date of the suit. The suit was filed
in December, 1936, after the new Act was passed. If any cause of action can be
based on these circumstances, it can be only for dissolution of the marriage
under Section 32(ft), as the provisions of Section 32(b) would apply to these
circumstances by virtue of Section 52 of the Act. Counsel, however, contended
that the plaintiff could also sue for a declaration of nullity, and he relied on
Section 6(c) of the General Clauses Act of 1897. It is provided by Section 6
that where the General Clauses Act or any Act of the Governor General in Council
or Regulation made after the commencement of the General Clauses Act repeals any
enactment hitherto made, then unless a different intention appears, the repeal
shall not affect any right which accrued to the plaintiff under the enactment so
repealed. It was, therefore, argued that the plaintiff's right to sue for
nullity on the ground of his wife's unsoundness of mind under the old Act of
1865 was not affected by the new Act of 1936. The provisions of Section 6 of the
General Clauses Act are, however, subject to the appearance of a different
intention. That intention must be gathered from the words of Section 52 of the
new Act. Section 52 is not very happily wordedi, but it seems to me that the
provisions of the new Act will apply to this suit, though the circumstances
relied on by the plaintiff occurred before the passing of the Act. In my opinion
the legislature has done away with the relief of declaration of nullity of
marriage on the ground of unsoundness of mind, and substituted in its place the
relief of dissolution of marriage, provided the two conditions laid down in the
proviso to Section 32(6) are fulfilled. It might be a hardship upon the
plaintiff that his right of action should now be barred, and that he should be
prevented from proving after more than three years from the date of the marriage
that his wife was of unsound mind at the date of the marriage and was habitually
so upto the date of the suit; but he is himself to blame for this result by not
having taken the proper proceedings in time. According to para. 8 of the plaint
the defendant's father requested the plaintiff in February, 1928, to take
custody of the child of the marriage, as the defendant was unable to look after
her owing to her mental unsoundness, and the plaintiff accordingly did so. If he
did not know of such unsoundness at the date of his marriage, he certainly knew
of it in February, 1928; and as that unsoundness was continuous, he could have
brought his suit under the old Act for a declaration of nullity. A question was
raised whether, under Section 27 of the old Act, a suit filed more than six
years after the cause of action arose would have been barred under Article 120
of the Indian Limitation Act. Counsel relied on the judgment of the appeal Court
in Bed Shirinbai v. Kharskedji (1896) I.L.R. 22 Bom. 430 in which Article 120
was applied in a suit for declaration of nullity of marriage on the ground of
the marriage being an infant marriage. There was no time-limit for a suit under
Section 27 of the old Act. It was provided under Section 32 of the old Act that
in a suit for divorce or judicial separation the Court has to be satisfied that
there has been no unnecessary or improper delay in the institution of the suit.
That provision did not apply to a suit for a declaration of nullity of marriage
on the ground of unsoundness of mind under Section 27. Does it therefore follow
that such a suit under the old Act could have been brought at any time after the
husband came to know of his wife's unsoundness of mind, provided that he did not
know of it at the date of the marriage? There is considerable force in the
contention raised by the defendant's counsel that such a suit, under the old
Act, would be governed by the provisions of the Indian Limitation Act which
applies to all suits generally, unless any kind of suit is particularly exempted
from its provisions. It is not however, necessary to pursue this point any
further, because I have already said that Section 27 of the old Act does not
apply to the facts stated in the case, and it is, therefore, an entirely
academic question for the Court to consider within what time a suit under
Section 27 could have been brought. In my opinion the suit, in so far as it
prays for dissolution of marriage, is barred under Section 32(ft) of the new
Act, and in so far as it claims a declaration of nullity of marriage, it is not
maintainable.

   4. The last relief claimed is one for judicial separation. There is no prayer
to that effect. Counsel for the plaintiff argued that no prayer was necessary,
nor was even any amendment of the plaint necessary if the Court could on the
evidence come to the conclusion that the plaintiff had made out a case for
judicial separation. He relied on the provisions of Order VII, Rule 7, of the
Civil Procedure Code. In my opinion that rule does not cover this case at all.
All that is there provided is that it is no longer necessary for a plaintiff
specifically to claim a general relief in a suit, the relief which is described
as "such further and other relief as the nature of the case may require." A
relief claiming judicial separation is not a general relief. It wag open however
to the plaintiff to have applied for an amendment of the Plaint, and I would
have been willing to entertain the application, if I was of opinion that the
claim for judicial separation could now be entertained. Under Section 34 of the
new Act there are four grounds on which any married person can under the Act sue
for judicial separation, namely (a) on any of the grounds on which the plaintiff
could have filed a suit for divorce, or (b) on the ground that the defendant had
been guilty of such cruelty to the plaintiff and/or the children of the marriage
as to render it in the judgment of the Court improper to compel him to live with
her, or (c) on the ground that the defendant had used such personal violence as
also to render it improper for husband and wife to live together, or (d) the
defendant had behaved in such a way towards the plaintiff also as to render it
in the judgment of the Court improper for them to live together. In the first
place none of these grounds is alleged in the plaint. Assuming, however, that on
an amendment of the plaint the plaintiff had asked for judicial separation on
the ground on which he asks for divorce, namely, that the defendant at the time
of the marriage was of unsound mind and had been habitually so upto the date of
the suit, the suit for judicial separation would have been barred under the
proviso to Section 32(ft). I do not think that it is open to the plaintiff to
rely in respect of his claim for judicial separation on a portion only of
Section 32(b), and ignore the proviso. If the plaintiff was entitled to sue for
judicial separation on the ground laid down in Section 32(6) of the new Act, the
entire provision would be applicable, and ad the suit was filed more than three
years from the date of the marriage, the relief for judicial separation would
also be barred. Even if the proviso did not apply, the plaintiff would still
have to show under Section 35 that he had filed a suit for judicial separation
without unnecessary or improper delay, and the delay after 1928, when, as stated
in the plaint, the plaintiff knew of his wife's mental unsound-ness, cannot be
considered either necessary or proper for the filing of the suit. In any event,
therefore, the suit for judicial separation would have been barred, and I
thought it unnecessary to consider the question of an amendment.

   5. In the result, issue 2 must be decided in the negative, and issue 3 in the
affirmative.

   6. The suit must, therefore, be dismissed with costs. Plaintiff to pay the
defendant's costs of the suit taxed as between party and party on the Original
Side scale on the footing of one counsel being employed for the trial of these
issues.