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2007 DIGILAW 190 (JK)

Jai Krishan Pandita v. Nana Kumari

2007-09-14

J.P.SINGH

body2007
1. Parties to this petition are husband and wife. Petitioner husbands petition seeking dissolution of parties marriage by a Divorce decree under Section 13 of the J&K Hindu Marriage Act, 1980, was pending consideration before learned Additional District Judge (Matrimonial Cases) Jammu, when the respondent wife filed an application seeking a direction against the petitioner to return her `Istri Dhan and other gifted items which had been given to her by her parents and friends. 2. The petitioner absented from the proceedings and his petition under Section 13 of the Act was dismissed in default of appearance on 31-12-2004. Respondents application seeking recovery of Istri Dhan and gifted items however, continued to proceed in which the petitioner was set ex-parte. 3. Vide order dated 24th of March 2005, learned Additional District Judge (Matrimonial Cases), Jammu, while allowing respondents application directed the petitioner to hand over the Istri dhan mentioned in Annexure "A" to respondents application, to the respondent within a months time. 4. Aggrieved by the order, the petitioner has invoked this Courts civil revisional jurisdiction to annul the impugned order of learned Additional District Judge (Matrimonial Cases) Jammu. 5. Petitioners learned counsel Mr. Ashok Bhan contends that the impugned order is without jurisdiction as with the dismissal of petitioners petition for dissolution of Marriage, the Matrimonial Court would cease to have any jurisdiction to pass orders contemplated by Section 33 of the J&K Hindu Marriage Act. 6. Disputing the proposition of law urged by the petitioners counsel, Respondents Advocate Mr. Rajesh Oswal submits that impugned order was justified in view of the law laid down by the High Court of Jharkhand in S. Paramjit Singh v. Amarjit Kaur reported as 2005 (3) Marriage and Divorce Judicial Reports 396. 7. In the alternative, learned counsel sought to support the impugned order on the strength of power vested in a court under Section 151 of the Code of Civil Procedure. 8. I have considered the submissions made and judgments cited at the Bar. 9. Resolution of the question raised at the Bar as to whether or not a Matrimonial Court would continue to possess jurisdiction to pass appropriate orders under Section 33 of the Act regardless of the cessation of main proceedings, requires a closer look on the provisions of J&K Hindu Marriage Act, 1980. 10. 9. Resolution of the question raised at the Bar as to whether or not a Matrimonial Court would continue to possess jurisdiction to pass appropriate orders under Section 33 of the Act regardless of the cessation of main proceedings, requires a closer look on the provisions of J&K Hindu Marriage Act, 1980. 10. Section 33 of the Hindu Marriage Act which had been invoked by the respondent for seeking return of her Istri Dhan and gifted items given at the time of the marriage, opens with the expression "In any proceeding under this Act" and contemplates making of requisite provision in the Decree itself regarding the disposal of the property given to the parties at or about the time of their marriage. 11. The expression "In any proceedings under the Act the court may make such provision in the decree" demonstrates that pendency of proceedings contemplating passing of a "Decree" under the Hindu Marriage Act is the "sine quo non" for exercise of jurisdiction under Section 33 of the Act. Section 33 does not of itself gives any right to the parties to the matrimonial dispute to maintain independent proceedings for disposal of the property given to them at or about the time of the marriage. 12. With the dismissal of petitioners petition seeking Decree for dissolution of marriage, respondents right to prosecute and maintain her claim for disposal of the property given at or about the time of the marriage would, therefore, cease before the Matrimonial Court. 13. In this view of the matter, passing of the impugned order, by the Matrimonial Court when petitioners petition under Section 13 of the J&K Hindu Marriage Act stood dismissed in default of appearance, cannot be sustained and justified. 14. I do not find any merit in petitioners counsels yet another submission that dismissal of petitioners petition under Section 13 of the Hindu Marriage Act amounts to a "decree", and the impugned order even when passed subsequently, would be treated as a part of the decree passed by the Court for the simple reason that dismissal of the petition in default of appearance, looked from any angle, cannot be construed as a decree muchless, a decree under the Act. Even the Code of Civil Procedure does not recognize the dismissal of a suit in default of appearance, as a decree and specifically excludes it from the definition of the decree as it appears in Section 2 (2) of the Code of Civil Procedure. 15. That apart, I have not been able to persuade myself to agree with the view of their Lordships of the High Court of Jharkhand that even dismissal of a suit for dissolution of marriage by a decree of divorce, would amount to a "decree" as contemplated by the provisions of Section 25 of the Hindu Marriage Act, 1955. 16. The Jammu and Kashmir Hindu Marriage Act, 1980, which contains similar provisions as that of Hindu Marriage Act, 1955, contemplates four types of decrees which may be passed by a Matrimonial Court; First, Decree for Restitution of Conjugal Rights; Second, Decree for Judicial Separation; Third, Decree for nullity of Marriage; AND Fourth, Decree for Divorce. 17. A plain reading of Section 33 of the Act, makes it explicit that the legislature had intended to vest power in the Matrimonial Court to deal with the property of the parties given to them at or about the time of marriage, while passing a decree under the Act. Making of provisions in the decree in terms of Section 33 of the Act, indicates passing of a positive decree under any one of the Sections 9 to 15 of the Act rather than dismissal of a spouses petition seeking a positive relief for grant of decree in his or her favour. Dismissal of a spouses petition may not thus require exercise of jurisdiction for making provision for disposal of the property in terms of Section 33 of the Act. 18. Dismissal of a spouses main petition seeking positive relief of restitution of conjugal rights, dissolution decree or decree for nullity of marriage would not thus amount to a "decree" contemplated by Section 33 of the Act giving authority to the Matrimonial Court to deal with the property of the parties given at or about the time of the marriage. 19. Dismissal of a spouses main petition seeking positive relief of restitution of conjugal rights, dissolution decree or decree for nullity of marriage would not thus amount to a "decree" contemplated by Section 33 of the Act giving authority to the Matrimonial Court to deal with the property of the parties given at or about the time of the marriage. 19. A Division Bench Judgment of the High Court of Orissa, reported as Akasam Chinna Babu v. Akasam Parvati and another, AIR 1967 Orissa 163 while dealing with a similar question, holds as follows:- "(8) It was urged that the words " any decree" occurring in Section 25 (1) contemplates any of the decrees passed under Sections 9 to 13 of the Act and it was only in the event of any such decree being passed that the Court will have jurisdiction to order payment of permanent alimony in favour of husband or wife as the case may be. In other words, the contention is that when the suit of the plaintiff was dismissed it is not open to the Court to pass an order of alimony in favour of the wife. There appears to be some force in this contention. Under Sections 9 to 14 of the Act, the Court could pass substantive decree granting any of the reliefs provided thereunder. Section 25(1) of the Act entitles the Court to pass any order for permanent alimony. The question is whether the Court is entitled to pass such order while dismissing the petition. The language of Section 25 is plain enough to indicate that the Court is not entitled to pass such an order while dismissed the petition. The words "at the time of passing any decree do not include the case of a dismissal. The passing of an order of dismissal cannot be regarded as the passing of a decree. Several decisions have also been cited in support of such a view. (9) The Gujrat High Court I a case reported in AIR 1961 Guj. 202. Harilal Purusottam v. Lilavati Gokaldas, held that the Court will not have any jurisdiction to grant permanent alimony under Section 25 of the Act if a petition under any of the Sections 9 to 13 of the Act was dismissed. In the case reported in AIR 1962 Bom. 202. Harilal Purusottam v. Lilavati Gokaldas, held that the Court will not have any jurisdiction to grant permanent alimony under Section 25 of the Act if a petition under any of the Sections 9 to 13 of the Act was dismissed. In the case reported in AIR 1962 Bom. 27, Shantaram Gopal v. Hirabai Shantaram, the husband filed a petition for judicial separation against the wife. Later on, the husband withdrew the petition. Sometime thereafter the wife made an application for alimony and maintenance under Section 25 of the Act. It was held that the existence of any of the decrees referred to in Sections 9 to 13 was a condition precedent to the exercise of jurisdiction under Section 25 (1) and as no decree for any kind was passed in the said case, the ancillary relief for permanent alimony and maintenance under Section 25(1) will not be available. The same view has also been taken in a later decision of the Bombay High Court reported in AIR 1964 Bom. 83, Shantaram D Karnik v. Malti Shantaram Karnik. The Calcutta High Court in a case reported in AIR 1963 Cal 428. Minarani v. Dasarathi, held that the words "any decree occurring in Section 25(1) do not cover case of a dismissal. That was a case where the trial court dismissed the petition for divorce filed by husband under Section 13. Thereafter the wife filed a petition under Section 25 praying for an order for her maintenance. The question was whether the Court is competent to allow the maintenance in view of the dismissal of the petition under Section 13 of the Act. It was held that when the main petition was dismissed and no substantial relief was granted under Sections 9 to 14 of the Act, there was no passing of a decree as contemplated in Section 25 (1) and the jurisdiction to pass an order for maintenance under the Section does not arise. (10) In view of the clear provision in Section 25(1) of the Act and the position of law as enunciated in the aforesaid decisions, with which we agree. I think the learned Trial Court was not justified in allowing a decree and in passing an order for permanent alimony in favour of the defendant-wife or the daughter. (10) In view of the clear provision in Section 25(1) of the Act and the position of law as enunciated in the aforesaid decisions, with which we agree. I think the learned Trial Court was not justified in allowing a decree and in passing an order for permanent alimony in favour of the defendant-wife or the daughter. The wife as already said, would however be entitled to maintenance pendente lite at the rate granted by the Trial Court. The daughter will not be entitled to any maintenance either pendent elite or permanent in the proceedings." 20. To the same effect is the judgment reported as Shanta Ram Dinkar Karnik v. Malti Shanta Ram Karnik, AIR 1964 Bombay, 83. 21. In view of the above discussion, I am, therefore, of the view that with the dismissal of petitioners petition for dissolution of marriage by a decree of divorce, the respondents application seeking an order for return of Istri Dhan and other items gifted at the time of marriage, would not warrant any consideration. Such being the case, learned Matrimonial Court was not thus jurisdictionally competent to pass the impugned order. 22. I am not impressed by the respondents counsels submission that in the absence of any provision in the Hindu Marriage Act for passing such an order, the Matrimonial Court could pass such an order exercising power under Section 151 of the Code of Civil Procedure. This is so because Section 151 cannot be construed to be vesting additional jurisdiction in a Matrimonial Court to decide the rights of the parties regarding disposal of the property given at the time of their marriage, which jurisdiction the legislature, in its wisdom, had not thought it fit so to vest in the Matrimonial Court. Section 151 of the Code of Civil Procedure cannot be given such an enlarged interpretation in view of the provisions of Section 23 of the Act which makes the provisions of the code of civil procedure Svt. 1977 applicable to proceedings under the Hindu Marriage Act only for regulating the proceedings under the Act. 23. Section 151 of the Code of Civil Procedure is not a substantive provision which vests right in a suitor to get any relief of any kind from the Court. 1977 applicable to proceedings under the Hindu Marriage Act only for regulating the proceedings under the Act. 23. Section 151 of the Code of Civil Procedure is not a substantive provision which vests right in a suitor to get any relief of any kind from the Court. When a matter in question in any particular case or topic falls within the ambit of express provision of a statute, the inherent powers of the Court must to that extent be regarded as abrogated by the legislature. Where the legislature makes a limited provision for dealing with the rights of the parties on a particular aspect of the matter in dispute thereby ousting the jurisdiction of the Court to deal with the matter on the subject, this omission cannot in my opinion be supplied with the aid of Section 151 of the Code of Civil Procedure because such a course would amount to creating new jurisdictions which the legislature had not intended so to do. 24. Learned Counsels submission that Matrimonial Court could pass the impugned order under Section 151 of the Code of Civil Procedure, therefore, fails and is, accordingly, rejected. 25. For all what has been said above, this petition succeeds and the impugned order of Learned First Additional District Judge (Matrimonial Cases) Jammu is set aside. No costs.