1. The applicant Hariram has filed this application against the order of the Assistant Judge, Nagpur, in Civil Appeal No. 200-A of 1960, rejecting his appeal against an order under Order 7, Rule 10, Civil Procedure Code, by which the Civil Judge, Senior Division, Nagpur returned his petition for granting a decree of divorce under Section 13 of the Hindu Marriage Act for presentation to proper Court.
2. No appearance is put in on behalf of the opponent though names of two counsel are shown as having entered appearance on behalf of the opponent. Shri R. N. Deshpande, an Advocate of this Court, intimated at the commencement of the hearing that Shri K. S. Mishra was in charge of the case and he had no instructions. I have declined to adjourn the hearing as the case was posted as first case on today's board of which notice was duly given in the Daily Board.
3. The case of the applicant is that he was married under Hindu law to the opponent Shrimati Jasoti in August 1944 at Karachi in Sindh before the partition. There is no doubt that Karachi is now a part of Pakistan and therefore a foreign territory. The allegation in the plaint is that about six months prior to the partition, the applicant discovered that his wife [the opponent) had deceived him into marriage and that she was not faithful. They therefore separated while in Karachi about six months prior to the partition. That partition of India took place on and from 15th August 1947. As soon as the scheme for partition was launched the applicant came to India and so did the opponent Jasoti but separately. The applicant's case is that after having separated from his wife at Karachi itself about six months prior to partition, they never resided together and in fact he was not aware of the whereabouts of his wife since partition. The applicant took a job in Delhi and is now serving, with the Government of India as a gazetted Officer in the Export Import Department of the Central Ministry. It is alleged that the opponent Shrimati Jasoti is employed in the Telephone Department at Nagpur and is alleged to be staying with someone in adultery at Nagpur. The applicant, did not know about the whereabouts of his wife till 1953 when some correspondence seems to have commenced between the two. Thereafter the applicant came to Nagpur and made enquiries and learnt that the opponent was leading an adulterous life. He therefore filed an application in the Court of the Civil Judge, Senior Division, Nagpur, on 30th August 1959, claiming a decree for divorce on the ground that the opponent was living in adultery.
4. When the case was taken up by the Presiding Officer of that Court, it appears the case proceeded ex parte against the opponent. But the learned Judge felt some doubtabout his jurisdiction to entertain the petition filed by the applicant. The applicant has disclosed the cause of action for his petition in paragraph 13 of his application as follows :
'That the cause of action for petition arose in August, 1944, and January, 1946, and in years 1948, 49, 50, of till today between the parties and when the respondent, deserted the petitioner and continued to live in adultery respectively at Karachi and Nagpur, within the territorial limits of the ordinary original civil jurisdiction of this court and this Honourable Court has jurisdiction to try this suit.' This passage is now explained by the learned counsel appearing for the applicant to mean that the opponent is living an adulterous life since they separated while in Karachi itself, and that they never have been together since separation in Karachi six months prior to the partition.
5. The learned Judge of the original Court referring to Section 19 of the Hindu Marriage Act held that the conditions of that section for invoking the jurisdiction of his Court were not satisfied inasmuch as neither was the marriage solemnised within the jurisdiction of his Court, nor was it the case that the husband and wife resided or last resided together within the jurisdiction of his Court. It was claimed before the learned Judge that even if conditions of Section 19of the Hindu Marriage Act were not complied with, in the instant case the Court would have jurisdiction under Section 20, Civil Procedure Code, which was expressly made applicable to proceedings under the Hindu Marriage Act by Section 21. Section 21 is as follows:
'Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, ad proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1903.' :
It was urged on behalf of the applicant before the firstCourt that apart from the provisions of Section 19 of the Hindu Marriage Act the applicant would have a right to file the petition before that Court if any of the conditions of Section 20 regarding jurisdiction of the Court were satisfied; in particular, the applicant relied on two facts, namely, that the opponent who was in the position of a defendant to the action was admittedly residing within the jurisdiction of the a trial Court, and further the applicant had alleged that the cause of action, namely, the course of adulterous living, had taken place also within the jurisdiction of the trial Court. But the learned Judge did not accept this contention and declined to exercise jurisdiction. In dealing with this argument the learned Judge has observed as follows;
'...... the petitioner's learned counsel had saidthat provisions of the Civil Pro. Code regarding the place ofsuing govern such cases also. But I am unable to find anysubstance in that contention. Undoubtedly, Section 21 of this ACTmakes provision of Civil Procedure Code applicable to allproceedings under this Act. But that Section 21 opens with thewording:
'Subject to the other provisions contained in this Act...' That means, Section 21 of the Act is controlled by Section 19 of the Act. So, in the matter of jurisdiction, Section 19 must prevail and the provisions of the Civil Procedure Code regarding the place of suing cannot be resorted to in any matrimonial, proceedings taken under the Hindu Marriage Act. Thus, if, is clear that this Court has no jurisdiction to try the suit.' The Court, however, was aware of the difficult position in which the applicant will be placed on this intarpretation, and referring to that difficulty the learned Judge observed as follows:
'Perhaps, he would be required to go to Pakistan for seeking any reliefs against the respondent or he would haveto live in Nagpur district. Indeed a very unhappy position arises in this case. But the law is to be applied as it stands. Only the legislature which has made it can make provision for such extreme cases. This Court is helpless.'
6. When the matter was taken to the District Court, the learned Assistant Judge who disposed of the appeal upheld the view of the trial Court. He has, however, observed in paragraph 8 of his judgment as follows:
'It is apparent that the provisions of the C. P. Cede may be invoked by a party if there is no express provision regarding jurisdiction or regarding the place of suing under Hindu Marriage Act. Section 19 makes clear provision regarding place of suing and merely because the petitioner is not entitled to avail himself of it, that does not mean that Section 20, C. P. Code is applicable. It may be that this is rather a hard case; but the question for determination 13 whether the petitioner is entitled to take advantage of Section 20 C. P. Code when the proceeding is governed solely by Section 19 Hindu Marriage Act which overrides the provisions of Section 20 C. P. Code, because Section 21 Hindu Marriage Act lays down that the provisions of the C. P. Code will apply subject to those of Hindu Marriage Act.'
7. The applicant has new come up to this Court and has reiterated the same contentions. It is undoubtedly a somewhat peculiar case. The Hindu Marriage Act was passed by Parliament in 1955 and became the law on 18th May 1955. Under the Act certain rights have been for the first time created in favour of Hindu spouses who are citizens of this country. One of those rights is for husband or wife to obtain a decree for divorce in respect of marriage solemnised even before the commencement of this Act if one or the other of the conditions in Section 13 of the Act are satisfied. The question is whether the enforcement of this right which has been created by the Hindu Marriage Act, can be defeated or denied to a Hindu, who is otherwise entitled to it, by an interpretation put on Section 19 of the Act which makes the remedies available under the Act nugatory so far as Hindus whose marriages were solemnised in a territory which was previously a part of India but is now a part of Pakistan and who have separated before the partition, are concerned. If the provisions of Section 19 of the Hindu Marriage Act are to be interpreted in such a manner, then the only result would be that any person in the position of the applicant and the opponent in the instant case would not he entitled to avail of any of the rights or remedies created in respect of spouses, husbands or wives, under the Act, whether the marriages were solemnised before cr even after the Act. In my opinion, that could not be the intention of the law, and in particular, of the provision regarding jurisdiction of the Court created under Section 19 of the Act. It is in this context that the provisions of Section 21, which make applicable the provisions of the Code of Civil Procedure to the proceedings under the Hindu Marriage Act, have to be interpreted. It is undoubtedly true that the provisions of the Civil Procedure Code have been made applicable subject to the provisions of the Act contained therein. Therefore, the proper way of reconciling the provisions of Section 19 of the Hindu Marriage Act with the provision as to the right of suing to be found in the relevant provisions of the Cods of Civil Procedure, and in particular, Section 20 of the Code, would be first to see whether the jurisdiction can be invoked by satisfaction of any of the conditions of Section 19 of the Act. If the provisions of Section 19 of the Act had been called into play, then in that case it is those provisions which must be satisfied if they are capable of being satisfied in a particular case. On the other hand, if on the facts and circumstances like the present one it is established that none of the requirements of Section 19 of the Hindu Marriage Act regarding the jurisdiction of the Court can be satisfied, then, in my opinion, it is not the intention of the law that in such a case the party will tie without a remedy, namely, that it cannot sue for the relief at any place whatsoever. This may be illustrated by the facts of the present case itself. According to the applicant the marriage was solemnised at Karachi. It could never be the intention of the law if it is to be strictly interpreted that the parties would be expected to file a suit in Karachi. This is a law made by Indian Parliament, and it must necessarily tie operative over Indian territory. Similarly, according to the averments in the petition neither of the parties, husband and the wife, reside within the jurisdiction of the same Court, nor have they last resided together at a place within the jurisdiction of such a Court. It has been observed by the learned Judge of the Trial Court that possibly the difficulty could be got over by the applicant coming to live in Nagpur district.
8. There is a conflict of views whether the word 'together' in a similar provision under the Indian Divorce Act qualifies the word 'reside' or only words 'last resided'. Even assuming that the condition of Section 19 could be taken to have been satisfied were the husband to take his residence in the same place or at least under the jurisdiction of the same Court as the wife, in order to give jurisdiction to that Court, this would amount to putting an impossible condition to attract the jurisdiction of the Court or to give effective remedy to an aggrieved person under the Act. It is stated before the Court by the applicant that he is in the permanent service of the Government of India and that he has to reside in Delhi for that service. Even if the applicant were so minded, he cannot come to Nagpur and 'reside' in Nagpur or at any place within the jurisdiction of the Court at Nagpur because he will not be coming to Nagpur and residing as a measure of permanent residence. A casual visit to Nagpur or even a limited period of stay in Nagpur may not possibly amount to residence in Nagpur so as to satisfy the condition of Section 19 that both the husband and wife reside at Nagpur to give jurisdiction to the Court at Nagpur. All these difficulties have arisen because the Courts below have taken the view that the conditions of jurisdiction prescribed in Section 19 must be satisfied in all cases, even In cases where the marriages were solemnised in a territory which is no longer a part of the Indian Union. It is well known that millions of people were required to leave their permanent places of domicile and residence and come to India from territories which were allocated to Pakistan. It is not possible to interpret Section 19 in such a way as to deny to all these persons right of access to Courts in matrimonial cases under the Hindu law because they cannot satisfy the conditions of Section 19 as interpreted in the Court below. In my opinion, It is precisely in this class of cases that the provisions of Section 20 of the Code of Civil Procedure could be brought Into play because such action will not conflict with the provisions of Section 19 at all. If conditions as existing between the parties are such as not to bring Into play the provisions of Section 19 of the Act, then it cannot be said that the action has been commenced at a place and in a Court other than the Court in which it ought to be commenced. Primarily by application of the provisions of Section 19 of the Hindu Marriage Act if there is a competition between two juristictions, it is undoubtedly true that that Court will have jurisdiction which satisfies conditions of Section 19 of the Hindu Marriage Act. But in the case of a spouse like the petitioner, who cannot satisfy the condition of Section 19, the residuary remedy that is made available to the petitioner byapplication of the provisions of the Civil Procedure Code in general, and in particular, of Section 20 regarding the place of suing, must be made available to a litigant for relief under the Hindu Marriage Act. In this aspect of the case, In my opinion, the view taken by the Courts below is not sustainable and the denial of jurisdiction by the first Court will not be justified.
9. In this connection, the learned counsel for the applicant has invited my attention to certain decisions of this Court. In Thornton v. Thornton, ILR 10 Bom 422, which-was a case under the Indian Divorce Act between European British subjects, the action was instituted in the High Court though the cause of action had arisen at Secunderabad. At the time of filing the petition the respondent was not resident in Bombay or within India, having left for England prior to the presentation of the petition. One of the questions raised was regarding the jurisdiction of the Bombay High Court to entertain the petition. The view on which this petition was entertained is noticed in a later decision of this Court in Nusserwanji Wadia v. Eleonora Wadia, ILR 38 Bom 125; AIR 1914 Bom 211, After referring to the decision in ILR 10 Bom 422, the learned Chief Justice observed as follows:
'Another aspect of the question of jurisdiction may be based upon an argument suggested by the case of ILR 10 Bom 422, in which counsel suggested that the jurisdiction of that Bombay High Court in a suit for divorce was based on Section 45 of the Divorce Act which imported Section 17 of the Civil Procedure Code and thus gave Jurisdiction where the cause of action arose. Cotton, L. J., seems to have accepted this as the basis of the jurisdiction-claimed.'
This has reference to a passage in ILR 10 Bom 422 to Be found at p. 431 to the following effect:
'As regards the minor objection to the jurisdiction on the point of residence, I think the petition sufficiently satisfies the Act in alleging residence of the petitioner in India and the commission of the act of adultery whilst the parties resided last together in India.'
10. It may be noted that Section 45 of the Indian Divorce Act is almost identical in terms with Section 21 of the Hindu Marriage Act, which provided that
'subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Cede of Civil Procedure.'
Thus, in this case where the provision as to jurisdiction specifically contained in Section 19 of the Hindu Marriage Act, viz. the place of solemnisation of marriage or place of residence of husband and wife, either separately or together, within the jurisdiction of the Court is impossible of satisfaction, in my opinion, the provisions of Section 20 of the Code of Civil Procedure are sufficient to create jurisdiction in the ordinary CMI Court at a place where either the defendant resides or the cause of action Is said to arise.
11. Having taken this view, I allow the application for revision, set aside the orders of the Courts below and direct that the Trial Court shall proceed with the petition merits after issuing notice. As sufficient time has already elapsed since the action commenced in 1959, the case will be disposed of as expeditiously as possible. As no appearance has been made on behalf of the opponent, there will be no order as to costs.
12. Revision allowed.