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2014 DIGILAW 1438 (HP)

Sushma,Sunita Devi v. Vivek Rai

2014-10-16

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. The appellant has challenged the order passed by learned District Judge, Kullu, dated 21.12.2013 in H.M.P.No.15 of 2011 whereby a decree of divorce was passed in favour of the petitioner and against the respondent under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’). 2. Shri Neeraj Gupta, learned counsel for the appellant has raised preliminary submission that the parties are the members of Scheduled Tribe and in terms of Section 2(2) of the Act, the provisions of Hindu Marriage Act are not applicable to the parties having been specifically excluded and, therefore, the learned Court below had no jurisdiction to entertain much less decide the lis. 3. This Court vide its order dated 22.8.2014 directed the parties to file affidavits as to whether they belong to scheduled tribe or not, within the meaning of Clause 25 of Article 366 of the Constitution of India. Pursuant to such directions, both the parties have filed the affidavits and it is abundantly clear from the perusal thereof that both the parties are members of Scheduled Tribes within the meaning of Clause 25 of Article 366 of the Constitution of India as notified by the Constitution (Schedule Tribe) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 63 of 1956, 108 of 1956, 18 of 1987 and 15 of 1990. Sub Section 2 of Section 2 of the Act reads hus: “(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.” The aforesaid sub Section starts with the non-obstante clause and, therefore, has overriding effect overall the provisions of the Statute and it cannot be disputed that the judgment therefore rendered by the learned District Judge, Kullu is coram non-judice. 4. The learned counsel for the respondent has though made a faint attempt to canvass that no objection regarding jurisdiction was ever raised by the appellant before the learned Courts below and, therefore, the appellant is estopped from raising such a plea in these proceedings. I am afraid that such a plea cannot be accepted for more than one reason. 4. The learned counsel for the respondent has though made a faint attempt to canvass that no objection regarding jurisdiction was ever raised by the appellant before the learned Courts below and, therefore, the appellant is estopped from raising such a plea in these proceedings. I am afraid that such a plea cannot be accepted for more than one reason. Firstly, the Court cannot be conferred jurisdiction by consent of parties and in case there is inherent lack of jurisdiction, then the order passed by such court is void, ab initio and is a nullity and decision amounts to nothing. 5. Reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and another (2005) 7 SCC 791 which reads as follows: “29. Ms. Malhotra, then contended that Section 21 of the Code, requires that the objection to the jurisdiction must be taken by the party at the earliest possible opportunity and in any case where the issues are settled at or before settlement of such issues. In the instant case, the suit was filed by the plaintiff in 1988 and written statement was filed by the defendants in 1989 wherein jurisdiction of the court was 'admitted'. On the basis of the pleadings of the parties, issues were framed by the court in February, 1997. In view of the admission of jurisdiction of court, no issue as to jurisdiction of the court was framed. It was only in 1998 that an application for amendment of written statement was filed raising a plea as to absence of jurisdiction of the court. Both the courts were wholly wrong in allowing the amendment and in ignoring Section 21 of the Code. Our attention in this connection was invited by the learned counsel to Hira Lal v. Kali Nath, (1962) 2 SCR 747 and Bahrein Petroleum Co. v. Pappu, 1966 (1) SCR 461 . 30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity. 31. In Halsbury's Laws of England, (4th edn.), Reissue, Vol. 10; para 317; it is stated; 317. Consent and waiver.- Where, by reason of any limitation imposed by statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent." 32. In Bahrein Petroleum Co., this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent." 32. In Bahrein Petroleum Co., this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well-settled and needs no authority that 'where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing.' A decree passed by a court having no jurisdiction is non-est and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice. 33. In Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR 1954 SC 340 , this Court declared; "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction _ strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." (emphasis supplied) 37. In the instant case, Delhi Court has no jurisdiction since the property is not situate within the jurisdiction of that court. The trial court was, therefore, right in passing an order returning the plaint to the plaintiff for presentation to the proper court. Hence, even though the plaintiff is right in submitting that the defendants had agreed to the jurisdiction of Delhi Court and in the original written statement, they had admitted that Delhi Court had jurisdiction and even after the amendment in the written statement, the paragraph relating to jurisdiction had remained as it was, i.e. Delhi Court had jurisdiction, it cannot take away the right of the defendants to challenge the jurisdiction of the court nor it can confer jurisdiction on Delhi Court, which it did not possess. Since the suit was for specific performance of agreement and possession of immovable property situated outside the jurisdiction of Delhi Court, the trial court was right in holding that it had no jurisdiction.” 6. Since the suit was for specific performance of agreement and possession of immovable property situated outside the jurisdiction of Delhi Court, the trial court was right in holding that it had no jurisdiction.” 6. In view of the aforesaid exposition of law coupled with the provisions of the Act, it can be safely concluded that the petition filed by the respondent for dissolution of marriage by way of decree of divorce under the provisions of Hindu Marriage Act, 1955 was not maintainable and the decree so passed was therefore a nullity since the Act was not applicable to either of the parties who admittedly were members of a scheduled tribe within the meaning of Clause 25 of Article 366 of the Constitution of India. Such decree being a nullity cannot withstand judicial scrutiny and accordingly is set aside. Resultantly, the appeal is allowed and the impugned judgment passed by the learned District Judge, Kullu in HMP No.15 of 2011 is set aside leaving the parties to bear their own costs. Pending applications, if any, shall stand disposed of.