Laxman Singh v. Kesharbai — 1963 DIGILAW 17 (MP)

ORDER Tare, J.- 1. This appeal under section 23 of the Hindu Marriage Act, 1935 is by the plaintiff-husband against the decree, dated 23-8-1961 passed by Shri P. V. Muzumdar, First Additional District Judge, Indore, in Civil Suit No 22 of 1960 dismissing the petitioner's claim for restitution of conjugal rights under section 9 of the Act. 2. The appellant had presented his petition in the Court of the District Judge who, however, transferred the case for trial to the Court of the First Additional District Judge, Indore, in pursuance of a distribution memo dated 1-1-1960. The appellant sought restitution of conjugal rights on the allegation that the respondent had been married to him on 18-6-1941 and that she had left her husband's home some time in the year 1959 without any reasonable cause. It was also alleged that there were five issues born to the parties after the marriage. 3. The respondent denied that she was the married wife of the appellant. She also alleged that she feared physical injury at the hands of the appellant. She further alleged that the appellant's married wife lives with him in his own house. 4. The trial Judge held that the respondent had been the petitioner's keep and that at no time a marriage according to the caste. custom was per formed. In that view the petitioner was held disentitled to claim restitution of conjugal rights. 5. The learned counsel for the appellant argued that the Additional District Judge had no jurisdiction to try a petition under the Hindu Marriage Act, 1955. It was pointed out that as per section 3 (b) of the Act, 'district Court' means in any area for which there is a city civil Court, that Court, and in any other area the principal civil Court of original jurisdiction, and includes any other civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. It was further pointed out that the present petition had been filed on 25-7-1960 while the State Government had issued a notification No. 36802-11386-XXI.B, dated, 7-12-1960 published in Madhya Pradesh Gazette, dated, 23-12-1960, part 1, page 1936 under section 3 (b) of the Act empowering all the Courts of Additional District Judge to try cases under the Hindu Marriage Act, 1955. It was suggested that as such the subsequent authorization by the State Government could not empower the First Additional District Judge, Indore, to try cases retrospectively. 6. So far an empowering by the State Government under section 3 (b) of the Act is concerned, the contention of the learned counsel for the appellant is not without substance. It is true that the notification has not the effect of empowering the Additional District Judges to try cases retrospectively. However, that is not the end of the matter. 7. Section 19 of the Act requires that every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and the wife reside or last resided together. Further on section 21 of the Act provides that subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. By virtue of section 3 (b) of the Hindu Marriage Act, 1955, the State Government may have been authorized to empower the Courts of the Additional District Judges to try cases under the Act. But by virtue of the fact that the Court trying a case under the Hindu Marriage Act is a civil Court to which the provisions of the Civil Procedure Code are applicable except of the extent, as are modified by the specific provisions of the Act, we have to take into consideration the provisions of the Madhya Pradesh Civil Courts Act, 1958, Section 3 of the said Act classified the different Courts as under- (i) The Court of the District Judge; (ii) the Court of the Additional District Judges; (iii) the Court of the Civil Court Judge (Class I) and (iv) the Court of the Civil Judge (Class II). Further on, section 7 of the said Act provide as under:- "The Court of the District Judge shall be the Principal Civil Court of original jurisdiction in the civil district. Further on, section 7 of the said Act provide as under:- "The Court of the District Judge shall be the Principal Civil Court of original jurisdiction in the civil district. (2) An Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge." 8. The provision in section 7 (2) of the Madhya Pradesh Civil Courts Act, 1958 is on the same lines as section 23 of the Madhya Bharat Civil Courts Act, 1949 and as such altogether different from the provisions of the C. P. Civil Courts Act, 1917. Under the C. P. Act the Court of the Additional District Judge was not a separate entity but a part and parcel of the district Court. The Additional Judge was merely additional to the Court of the District Judge. But, under the present Act, the Court of the Additional District Judge is a separate entity from that of the Court of the District Judge. However, the court of the Additional District Judge can perform at the functions of a principal civil Court of original jurisdiction in case it is so empowered in that behalf by the District Judge by way of a general or a special order. In the instant case, the District Judge, Indore by a distribution memo, dated, 1-1-1960 had empowered the First Additional District Judge, Indore to try all cases under the Hindu Marriage Act, 1955. This power conferred by section 7 (2) of the M. P. Courts Act, 1958 is in addition to the power conferred on the State Government by virtue of section 3 (b) of the Hindu Marriage Act, 1955. Therefore, so far as the Additional District Judges in a civil district are concerned, they can certainly be empowered to perform the functions of a principal civil Court of original jurisdiction if they are so empowered by a general or a special order of the District Judge. We are of opinion that the objection of the appellant that the First Additional District Judge, Indore had no jurisdiction to try the suit is without any substance, whatsoever. In this connection, we might mention the case of Dharam Sheela Bai Vs. We are of opinion that the objection of the appellant that the First Additional District Judge, Indore had no jurisdiction to try the suit is without any substance, whatsoever. In this connection, we might mention the case of Dharam Sheela Bai Vs. Ram Dayal, 1961 JLJ 466, decided by Khan and Shivdayal JJ. holding that "the Additional District Judge can perform the functions of a principal Civil Court of original jurisdiction in case he is so empowered by a general or special order issued by the District Judge under section 7 (2) of the M. P. Civil Courts Act, 1958. We are in agreement with the view expressed by our learned brothers. The case of Janak Dulari Vs. Narain Dass, AIR 959 Punjab 50, relied on by the learned counsel for the appellant is clearly distinguishable on the ground that the provisions of the Punjab Courts Act are slightly different and the view taken by the learned Judge turned on the special provisions of that Act. This was what the learned Judge observed:- "It is also laid down that the Court of Additional District fudge is not a division Court of the Court of District Judge. Thus the Punjab Courts Act dose not contemplate a Court of Additional District Judge. The Court of Additional District Judge, therefore, cannot be considered to be a civil Court of original jurisdiction under the Hi'1du Marriage Act particularly when section 20 lays down that there shall be only one District Judge in each district and section 24 provides that the Court of District Judge shall be deemed to be district Court or Principal Civil Court of original jurisdiction in the district: It is true that under section 21 (2) an Additional Judge is authorised to discharge the functions of a District Judge and in the discharge oft'1ese functions he exercises the same powers as the District Judge but this section does not refer to a Court of Additional District Judge and the Supreme Court has held that the Court of Additional Judge is a distinct Court. Speaking for myself I always consider the Court of Additional District Judge to be a Court of Additional Judge under the Punjab Courts Act and that when a case was transferred to it by the District Judge then the Additional District Judge exercised the same powers as the District Judge as provided in section 21 (2) of the Punjab Courts Act. In view of some observations of the Supreme Court, I feel some difficulty in considering this position to be correct. The matter is important and in my opinion it should be decided by a larger Bench." This order of reference was made by a 'Single Judge and the reference came up for hearing before a Division Bench. 9. It is partinent to note the provisions of section 21 of the Punjab Courts Act (No.6 of 1918). It is as under:- "(1) When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judges as may be necessary. (2) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those function he shall exercise the same powers as the District Judge." Further on section 24 of the Punjab Courts Act provides that the Court of the District Judge shall be deemed to be the District Court or Principal Civil Court of original jurisdiction in the district. The view of the learned Judger of the Division Bench was based on the fact that as per section 18 of the Punjab Courts Act the classes of civil Courts constituted were (i) the Court or the District Judge; (ii) the Court of the Additional Judge; and (iii) the Court of the Subordinate Judge. Therefore, according to the special provisions of the Punjab Courts Act, the Court of the Additional District Judge was not an entity distinct and separate. It was for that reason that the learned Judges distinguished the provisions of the Punjab Courts Act from similar provisions in other enactments in other states. Therefore, according to the special provisions of the Punjab Courts Act, the Court of the Additional District Judge was not an entity distinct and separate. It was for that reason that the learned Judges distinguished the provisions of the Punjab Courts Act from similar provisions in other enactments in other states. Therefore, according to the special provisions of the said Act, an Additional Judge would be a part and parcel of the Court of the District Judge, who would be empowered to try such cases and exercise such powers as the State Government might confer on him or the District Judge might delegate to him by a special assignment under section 21 (2) of the Act. This provision is certainly different from the provisions of sections 6 and 7 of the Madhya Pradesh Civil Courts Act, 1958 according to which the Court of the Additional District Judge is a distinct and separate entity, and he does not function merely as an Additional Judge to the District Court. The view taken by our learned. brothers Khan and Shiv Dayal, JJ in the case referred to above, therefore, appears to be perfectly justified on the proper interpretation of the provisions of the Madhya Pradesh Civil Courts Act, 1958 and we see no reason to differ from that view. 10. It was further pointed out by the learned counsel for the appellant that the Punjab view is based on the view as expressed in the Supreme Court case of Kuldip Singh Vs. The State of Punjab and another, AIR 1956 SC 391 . In this, connection we may observe that the view of Their Lordships of the Supreme Court is necessarily based on the special provisions of the Punjab Courts Act, particularly sections 18 and 21 as is clear from the following observations of Their Lordships:- As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed. The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the powers of a District Judge when dealing with the matters specially entrusted to it its jurisdiction. The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the powers of a District Judge when dealing with the matters specially entrusted to it its jurisdiction. We hold therefore that the court of the Additional Judge is not a division Court of the Court of the District Judge but a separate and distinct Court of its own." It was for that reason that Their Lordships of the Supreme Court laid down that the order passed by the Additional Judge hearing an appeal under section 476-B of the Criminal Procedure Code wag without jurisdiction as the Judge was merely Additional Judge not specifically empowered in that behalf. The same considerations, in our opinion, are wholly inapplicable to the special provisions of the Madhya Pradesh Civil Courts Act, 1958 which stand on a different footing. For this reason we are unable to apply the reasoning of the learned Judges of the Division Bench of the Punjab High Court to the provisions of the Madhya Pradesh. Civil Courts Act, 1958. We, therefore, hold that by virtue of the general order, dated, 1-1-1960 passed by the District Judge Indore, the Court of the First Additional. District Judge, Indore had the jurisdiction and the power to try all cases under the Hindu Marriage Act, 1955. 11. Coming to the next question whether the respondent was the married wife of the appellant, we may observe that the app~l1ani's own testimony as (P.W.1) disproves his case of a marriage according to any statutory prevision of a marriage according to any statutory provision or a caste custom. The appellant in his petition 'alleged that he had married the respondent in Natra from of marriage which is prevalent among community. According to him the Natra marriage took place at Indore and at that time the respondent was living at village, Abhaypur. Further he stated that he performed the Natra with the respondent alter 3 years of the respondents shifting to Indore. Further he stated that the respondent stayed with him for about 3 years without any Natra marriage being performed. The only proof of Natra m1.rriage according to him was the execution of (Ex. P.1) which is a divorce deed executed by the respondent's former husband Amarsingh. 12. Further he stated that the respondent stayed with him for about 3 years without any Natra marriage being performed. The only proof of Natra m1.rriage according to him was the execution of (Ex. P.1) which is a divorce deed executed by the respondent's former husband Amarsingh. 12. The witness further stated that the only ceremony he performed about Natra marriage was the execution of a deed, dated, 15-4-1944 by the respondent's former husband, Amarsingh. He also admitted that after he had brought the respondent to Indore, she was staying with him and nobody know of her presence. When Amarsingh came to know of that, he raised dispute and as a result of the same a divorce deed was executed by Amarsingh after accepting some composition money from the appellant. Further on, he stated that besides getting this divorce deed executed, he did not perform any of the caste ceremony regarding Natra marriage at any time. Therefore, from his own deposition the case of a Natra marriage is totally belied. The only fact established is that he had kept the respondent as a concubine without performing any marriage according to the caste custom. Not a single witness has been adduced in evidence to show that the caste people were invited for any ceremony regarding Natra marriage. 13. However; the learned counsel for the appellant urged that it is not proved as to what ceremonies are actually required for a Natra marriage. In our opinion, it was for the appellant to have established the fact of a valid marriage according to the caste custom before he could claim restitution of conjugal rights. It is to be noted that restitution of conjugal rights can be claimed regarding a married wife, and not a mistress or a concubine. As laid down by a Division Bench of the Madras High Court in Deivanai Achi and another Vs. R. M. Al. Ct. Chidambaram Chettar and others, AIR 1954 Mad. 657 , a Hindu marriage must be according to Shastras or according to the special custom prevalent amongst any particular community. Any form of marriage not recognised either by the Hindu Shastrus or by the caste custom cannot be considered to be a marriage according to the Hindu law. The marriage may also be solemnized according to any statutory provision prevalent 'in any territory. Any form of marriage not recognised either by the Hindu Shastrus or by the caste custom cannot be considered to be a marriage according to the Hindu law. The marriage may also be solemnized according to any statutory provision prevalent 'in any territory. But unless one of these things is established, it cannot be said that there has been a valid marriage, which is necessary for applicability of the provisions relating to restitution of conjugal rights, judicial separation and divorce under the Hindu Marriage Act, 1955. Therefore, to conclude, we are of opinion that the trial Juc1ge was right in holding that the respondent is not the married wife of the appellant and as such not entitled to restitution of conjugal rights. 14. The decree under appeal being correct we see no reason to interfere with the same. Accordingly, it is dismissed with costs. Counsel's fee in this Court Rs. 50, if certified.