1. This Full Bench has to consider a rather important question as to the right of a Hindu to obtain divorce on the ground of desertion, which right was given to him under the Born-bay Hindu Divorce Act of 1947 and which was taken away by the Hindu Marriage Act of 1955.
2. The facts which give rise to the Full Bench are briefly these. The respondent, who is the husband, filed a petition for judicial separation before the City Civil Court on the ground that his wife, the appellant, had deserted him for a continuous period of four years from 22nd December 1950. An application for amendment of this petition was made and the amendment effected was that the petitioner sued for divorce on the ground of desertion under the Bombay Act. The learned City Civil Court Judge took the view that in view of this amendment the Court had no jurisdiction. The plaint was then presented before Mr. Justice Coyajee and the question raised before him was whether the High Court had jurisdiction to try the suit. The learned Judge came to the conclusion that the petition for divorce was properly filed under the Bombay Act, that under the Bombay Act the High Court had jurisdiction and he transferred the suit to the City Civil Court under the Bombay Matrimonial (Transfer of Cases) Act of 1950. It is against this judgment that an appeal was preferred. The appeal came before my brother Mr. Justice Section T. Desai and myself and we took the view that as the decision raised a rather important question and as there was a judgment of a Division Bench which required consideration a Full Bench should be constituted.
3. Now, the question that we have to consider is whether by reason of the provisions of the Hindu Marriage Act of 1955 (Act 25 of 1955), it is competent for the plaintiff to maintain this petition for divorce on the ground of desertion. Turning to the provisions of the two Acts, the Bombay Hindu Divorce Act of 1947 mentioned in Section 3 as one of the grounds for divorce that the defendant had deserted the plaintiff for a continuous period of four years. Under this Act 'Court' was denned in Greater Bombay as the High Court in its ordinary original civil jurisdiction and elsewhere, the Court of a District Judge, and hence if a suit had to be filed for divorce in Bombay it had to be filed in the High Court on its Original Side. This Act also dealt with suits for judicial separation under Section 4 and it may be noted that desertion was not one of the grounds on which judicial separation could be obtained. When we turn to the Hindu Marriage Act of 1955, it is necessary to observe that this was an Act to amend and codify the law relating to marriage among Hindus. It is a well known fact of which judicial notice may be taken that Parliament was anxious to bring about uniformity in the various provisions of law in different parts of India regulating Hindu marriages. Therefore, the Act aimed at uniformity and codification and at social reform. Under this Act 'divorce' was dealt with under Section 13 and desertion was not constituted a ground for divorce, only a decree for judicial Separation could be obtained on the ground of desertion, and under S. 10(1) either party to a marriage may present a petition for judicial separation on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. But desertion, apart from entitling the party deserted to a decree for judicial separation, also entitled him to -a decree for divorce under Section 13(1)(viii) when the party who deserted had not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party. Therefore, the scheme under the Hindu Marriage Act was that the petitioner could obtain a decree for judicial separation two years after desertion, and if there was no cohabitation for a further period of two years after the passing of that decree he could apply for divorce and obtain it. Therefore, it may be said that really in sub-Stance there was not much difference between the provisions of the Bombay Act and the Hindu Marriage Act because in both cases there had to be a continuous period of desertion for four years, the difference being that under the Hindu Marriage Act divorce was obtained by two stages, first a decree for judicial separation and then a decree for divorce, whereas under the Bombay Act a party could straightaway proceed to obtain divorce after desertion had continued for a period of four years. Then Section 19 dealt with jurisdiction and procedure and under this section every petition had to be presented to the District Court, which was defined as a City Civil Court in those area where a City Civil Court had been set up, and therefore every petition under this Act had to be presented to the City Civil Court. Then Section 29 dealt with savings and we are concerned with sub-s. (2);
'Nothing contained in this Act shall be deemed to effect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act.'
Sub-section (3) saves proceedings which were pending under any law for the time being in force and such proceedings were to be continued and determined as if this Act had not been passed. Sub-section (4) dealt with the Special Marriage Act of 1954 with which we are not concerned. Section 30 repealed various Acts among which is the Bombay Hindu Divorce Art of 1947. Therefore, it seems to us clear that reading Section 30 and Section 29(2) together what the Legislature intended was that having repealed certain specific Acts passed in various 'parts of India, the Legislature wanted to save rights of divorce which were granted to parties under those laws which had not been repealed by Section 30. As the right of divorce was being for the first time granted to all Hindus in India under the Hindu Marriage Act, the Legislature did not in any way want to restrict the right of divorce already enjoyed by certain sections of the people under certain special laws, and therefore, although the desire and anxiety for uniformity was there as it was revealed by the repealing Section 30, under Section 29(2) to the extent that a right to obtain dissolution of marriage was conferred by any law not repealed under Section 30 that right was saved and preserved by Section 29(2).
4. Now, in our opinion, it is not possible to contend and not possible to accept the con-: tention that Section 29(2) dealt with the Bombay; Act of 1947 and that this sub-section saves the right to obtain dissolution of marriage con-; ferred by the Bombay Act. If Section 30 had not been enacted, it was possible to urge that the Legislature intended to save rights conferred by the Bombay Act. But when there is an express repeal of the Bombay Act under Section 30, the only taw or laws to which Section 29 (2) can refer are laws which do not come within the ambit of Section 30, which have not been repealed and which deal with dissolution of a Hindu marriage. It is a matter of common knowledge that apart from the laws dealt with under Section 30 there are other laws and there are customs under which sections of Hindu citizens of this country have been exercising their right to obtain divorce and dissolution of marriage.
5. There is one other section to which reference might be made and that is Section 4 which has a characteristic marginal note 'Overriding effect of Act'. Therefore, the section was intended to provide that the provisions of the Act were to override all statutory and customary laws to the extent that they dealt with or were inconsistent with the matters dealt with by the Act, and the section provides:
'Save as otherwise expressly provided in this Act,
(a) any text, rule, or interpretation of Hindu Law or any custom or usage as part of that law In force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision Is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall Cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'
Therefore, the Legislature having expressly repealed certain Acts by Section 30 had to deal with other laws which continued on the statute book and which might have provisions with regard to matters dealt with in this Act and with regard to those laws express provision was made under Section 4(b). that those lairs to the extent that they dealt with matters which were inconsistent with the provisions of this Act shall cease to have effect and force; that means the laws were not repealed but the provisions in those laws which were inconsistent with the provisions of this Act ceased to have any validity. And with regard to Section 4(a) inasmuch as the text of Hindu Law would naturally have dealt with questions of marriage and divorce a provision was enacted that any such text or rule of Hindu Law shall cease to have effect with respect to any matter for' which provision was made in this Act. Therefore, with regard to matters dealt with by this Act this was the only law one could look to and not any text, rule or interpretation of Hindu Law. Therefore, really, the provision in Section 4(a), if anything, was more drastic than the provision in Section 4(b) of the Act. But inasmuch as 'the Bombay Act has been repealed by Section 30, neither Section 4(b) nor Section 29(2) can refer to the provisions of that Act, and therefore the only possible position that can be taken and which has been taken by Mr. Shah is that the Bom-bay Act being repealed we must give effect to the provisions of the General Clauses Act which deals with the consequences of a statute being repealed by the Legislature.
6. What is urged is that under Section 6 of the General Clauses Act the repeal of the Bombay Act cannot affect any right acquired by the petitioner. It is pointed out that no contrary or different intention has been made to appear in the Hindu Marriage Act of 1955 that the provisions of Section 6 of the General Clauses Act should not apply. Now, we will assume that the provisions of Section 6 of the General Clauses Act have application, but the Question still remains as to whether the petitioner in this case did acquire any right which was saved notwithstanding the repeal of the Bombay Act, and what is urged is that the right which was acquired was the right to obtain a divorce on the ground of desertion. The argument is put this way that the parties having married some time in 1950 and desertion having commenced on 22nd December 1950, desertion was complete on 22nd December 1954. At that time the Bombay Hindu Divorce Act of 1947 was in force and as soon as this four years' period was complete the husband, the petitioner, acquired the right to obtain a divorce on the ground of desertion and that right cannot be defeated by reason of the repeal of that Act by the Hindu Marriage Act of 1955, and therefore when he filed a petition on 26th September 1955 he could rely on the right which he had acquired under the Bombay Act, he could litigate that right, and obtain a divorce on the strength of that right. Now, it seems to us difficult to accept the proposition that in matrimonial law desertion by one party to the marriage coafers upon the other party a right of divorce. Desertion is a matrimonial offence, but in its very nature it is very different from other . matrimonial offences like adultery or cruelty. In its very nature, desertion is a continuing marital offence and it is not completed until a suit is filed for divorce on the ground of desertion. Even though desertion might have taken place for a period of four years, no right to obtain divorce is acquired by the party deserted until he files a suit because he has to show that the desertion continued right up to the date he filed the suit. Therefore, even though there may be desertion for four years, speaking generally, that desertion may be terminated by parties resuming marital relations, and if parties resume marital relations it would not again speaking generally, be open to a party deserted to rely on the prior four years' desertion and obtain a divorce. Therefore, desertion is not an offence which can be established as something specific and isolated. Adultery may be established by one act, so can cruelty, but as we just pointed out desertion must have an element of continuity, and it is difficult to say of desertion in matrimonial law that any deserted party acquires a right to obtain divorce on the ground of desertion merely because the other party has deserted him for a specific period of time. It is pointed out that in the Bombay Act under Section 3 the Legislature has not stated that the desertion should continue till the institution of the suit, and attention is drawn to Clauses (a), (b) and (c) of sub-y. (1) where the time is taken up to the institution of the suit, and it is therefore said that whatever might be the position under Clauses (a), (b) and (c) of Section 3 (1), as far as Clause (d) is concerned it is not necessary that desertion should continue till the institution' of the suit. Mr. Shah found it difficult, and rightly, to substantiate the proposition that a party could get divorce if desertion had come to an end at the date of the suit, but his contention was that after four years the right to obtain divorce was complete and then that right might be extinguished or abandoned by the desertion coming to an end. In our opinion, though it is difficult to understand why the Legislature has used different language in Clause (d) of Section 3 (1), there is on this aspect little difference in substance and effect between the provision of law contained in Clause (d) and Clauses (a), (b) and (c). The Legislature is at pains to point out that the desertion must be for a continuous period of four years and it is clear that period must be continuous up to the institution of the suit. It is significant that the Hindu Marriage Act of 1955 now when dealing with desertion under Section 10 does make it clear that the period must be continued up to the presentation of the petition. The Supreme Court in a recent judgment had to consider the language used in the Bombay Act and the learned Judges in Bipinchandra Jai-singhbhai v. Prabhavati, : 1SCR838 , point out that it was not clear whether the omission of this last clause in Section 3(1)(d) had any practical result.
7. Mr. Shah has drawn our attention to some English and Indian cases to help us to construe the expression 'right acquired' in Section 6 of the General Clauses Act. Now, those cases deal with different statutes and different conditions and circumstances and we do not see how tnose decisions can help us to construe the position that arises in the case with which we ate dealing. We are concerned with a Divorce Act and what we have to decide is whether the fact that desertion has continued for a period of four years gives to the deserted party a right within the meaning of Section 6 of the General Clauses Act, and for the reasons given by us we cannot take the view that any right is acquired by the deserted party, which right can be saved by reason of the provisions of Section 6 of the General Clauses Act.
8. Now, with respect, Mr. Justice Coyajee in coming to the conclusion that he did has overlooked the provisions of Section 30. His attention was not drawn to the fact that the Bombay Act was repealed. The other error, again with respect into which he has fallen is that he has taken 'the view that Section 29 (2) refers to the Bombay Act,, although the Bombay Act had been expressly repealed by Section 30. Practically the same view has been taken oy the Division Bench whose judgment we have to consider. This is the judgment of Mr. Justice Dixit and Mr. Justice Tendolkar in Hirabai Rarnchandra v. Hamchandra Rawoo, Civil Appln. No. 1410 of 1956 delivered on 22-2-1957 reported in : AIR1958Bom26 (B). The basis of the judgment, with respect, is--to quote the words of Mr. Justice Tendolkar who delivered the judgment--there can be no doubt that the right to obtain a divorce on the ground of desertion is conferred by a special enactment, the Bombay Hindu Divorce Act. The learned Judge says this in reference to Section 23 (2), thereby taking the view that the right conferred by the Bombay Act was saved by that sub-section. The learned Judges also, with respect, have overlooked Section 30 and their attention was obviously not drawn to the fact that the Legislature had expressly repealed the Bombay Act. With regard to the observation in the judgment that the right to obtain a divorce is a vested right, we are unable to agree with it in view of what we have already said. The view taken by the learned Judges is that on the four years expiring the right to obtain divorce became a vested right and the filing of the suit was merely the enforcement of that right. Now. we have pointed out that desertion does not become complete until a suit is instituted and desertion has continued upto the date of the institution of the suit. With respect, therefore, we are of the opinion that this case was erroneously decided and that no right to obtain divorce on the ground of desertion survives after the repeal of the Bombay Act.
9. The result, therefore, is that we must hold that the only right which the petitioner has is to obtain a decree for judicial separation under the Hindu Marriage Act of 1955. That was his original petition and that petition was rightly presented to the City Civil Court. We are therefore of the opinion that the City Civil Court has jurisdiction tc try the suit. The suit is already pending before the City Civil Court. We therefore direct that the learned Judge will dispose of the suit on merits alter striking off the amendment effected in the plaint seeking divorce on the ground of desertion.
10. Mr. Shah tells us that a large number, of decrees have been passed on the basis that divorce could be obtained on the ground of desertion under the Bombay Hindu Divorce Act of 1947 notwithstanding its repeal. This would naturally lead to serious complications. In our opinion, this is a proper case where the Legislature should pass a validating Act validating decrees already passed under the Bombay Act.
11. Costs of the appeal costs in the cause.
12. Order accordingly.