Darshan Singh Vs Mst. Daso

Court:Rajasthan High Court

Bench: JUSTICE M.C. Jain

Darshan Singh Vs Mst. Daso On 3 August 1979

Law Point:
Hindu Marriage Act, Ss. 9 & 25 — Husband marrying second wife and applying for restitution of conjugal rights against first wife — Court dismissing husband’s application due to his second marriage — Court cannot grant alimony to wife under S. 25 — Decree in S. 25 does not include dismissal of petition under S. 9.

JUDGEMENT

1. This is an appeal against the judgment dated 57-10-1978 passed by the District Judge, Shri Ganganagar, whereby the appellant’s petition under Sec. 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 Ghak 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 (P.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 Sec. 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 a decision of this Court in Purshotam Kewalia v. Smt. Devki, 1972 (V) 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 Sees. 9 to 13 of the Act would not be appealable. The provision of Sec. 25 may be read along with the provision of Sec. 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 Sec. 28 of the Act, as it stood prior to its amendent, 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 Sec. 28, under Sub-section (2) of Sec. 28, only orders under Sees. 25 and 26, which may not be interim orders, appealable and no other orders are appealable. Under the amended Sec. 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, admitted that the view expressed in Purshotam Kewalia’s case (supra) needs reconsideration and in the light of the provision contained in Sec. 28, the expression “paning of any decree” under Sec. 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 Sec. 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 the dismissal of the petitions after amendment of Sec. 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 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 Sec. 28 of the Act. The provisions of Sees. 25 and 28 have to be so construed so that they may effect 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 to be noticed as to how the two provisions came to be interpreted.

10. Sec. 9 provides for a petition for restitution of conjugal rights and it lays down that if there is no legal ground why the application should not be granted, the court may decree restitution of conjugal rights. Similarly, under Sec. 10 of the Act the petition is presented for a decree for judicial separation. Sub-sec. (2) of Sec. 10 uses the expression “passing of a decree for judicial separation.” Similarly Sees. 11 and 12 provide for passing of a decree of nullity of marriage under Sec. 13 of the Act marriage may be dissolved by a decrees of divorce. Thus, these five sections contemplate granting of decree for the various kinds of reliefs, which may be prayed under these provisions. Sec. 23 of the Act makes provision as to when decree granting relief can be passed under Sees. 9 to 13. Under the Sub-sec. (1) of Sec. 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 to decree the relief. The expression “decree” further occurs under Sees. 26 and 27 of the Act. It would appear that the expression “decree” in these two sections would mean decree granting relief as provisions are required to be made in such decrees for the custody of children or for disposal of property. Sec. 25, thus, has to be construed in the light of the scheme of the provisions referred to above, I may read Sec. 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 an 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 interpreted 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 Sees. 9 to 13 and this expression has not been given a meaning so as to include the dismissal of the petitions contemplated under Sees. 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 Kadia Harilal Purshotam v. Kadia Lilawati Gokaldus, AIR 1961 Guj. 202 (DB). In this case the application for restitution of conjugal rights made by the husband was dismissed by the learned District Judge and while dismissing the application, he awarded maintenance under Sec. 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 sub-sequent thereto’ in Sec. 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 Narkar v. Hirabat w/o Shantaram Gopatshet Narkar, AIR 1962 Bom. 27, Manarani v. Dasarath, AIR 1963 Cal. 428, Akasam Chinna v. Parbati, AIR 1967 Ori. 163. This view has also been expressed in Shantaram Dinhar Karnih v. Malti Shantaram Kamih, 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 Legisla ure would have suitably amended Sec. 25 as well at the time when substantial amendments were made by the Parliament, while passing the Amending Act. In “The Construction of Statutes” by 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 amply opportunity to change a consruction 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 Sutherland, 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 see. 28 of the Act, the construction placed on Sec. 25 at all needs any consideration? For examining this question, it will have to be seen as to how the mended Sec. 28 is to be construed, that is, whether the construction placed by Shri Sharma on Sec. 28 is correct, so as to mean that only decrees granting relief would be appealable or where the petitions are dismissed, they will also mount to a decree and so would be appealable. Though, there are some obrrvations 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 Kiwalia’s case, after taking into consideration of the definition of the expression “decree” under Sec. 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 Sec. 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 Sec. 25 of the Act; and thereafter the learned Judge stated that the provisions of Sec. 25 of the Act are analogous to the provisions of Sec. 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 Sees. 16 or 37 of the Indian Divorce Act. It may be stated that the learned Judge was out faced with the situation with which I am confronted in the present case, so this observation of the learned Judge only appears to be obiter that dismissal of the application under the Act will not amount in a decree.

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

“26. 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-sec. (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 Sec. 25 or Sec. 26 shall subject to the provisions of sub-Sec. (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 Sec. 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 Sec. 28. The word “made” has been used. Whereas in the other provisions, namely, Sees. 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 Sec. 28 as it stood prior to amendment or after amendment, is analogous to the provision contained in Sec. 55 of the Indian Divorce Act. Though prior to the amendment, Sec. 28 appears to have been adopted from Sec. 55 of the Indian Divorce Act and after amendment the order part of it has been placed under Sub-sec. (2) of Sec. 28. Sec. 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, ILR 1882 (IV) All. 306. Such a view has further been taken in Rustance Charles Palmer v. Carmeline Mary Palmer, ILR 1917 (XLI) Bom. 36 and Holand v. Holand, 1918 P. 273=87 LJP 15=119 LT 2266, appearing in the commentary of Sec. 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 Sec. 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 Blak’s Law Dictionary, Fourth Edition, at page 499, 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 Okl, 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 the 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 petition 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 Gurcharan Singh v. Sukhdev Kaur, AIR 1979 P & H 98, in husband’s petition for divorce; Ravishankar v. Smt. Sharda Vishwakarama, AIR 1979 MP 44, a joint petition by the spouses under Sec. 13-B of the Act inserted after the Amending Act, dismissed; Chander Dev Chadha v. Smt. Pani Bala, AIR 1979 Del. 22, the husband’s petition for restitution of conjugal rights dismissed; Nand Kishore v. Smt. Munnibai, AIR 1979 MP 45, the husband’s petition for nullity under Sec. 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 Sec. 28 of the Act, even after amendment, has been understood to mean that the dismissals of the petitions amount to a decree made under the provisions of the Act and hence arc appealable.

19. From the above discussion I am clearly of the opinion that the expression “passing of any decree” under Sec. 25 of the Act would mean decree granting relief of the nature stated in Sees. 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 Sec. 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 Sec. 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.

Appeal allowed.

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