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Savlaram Kacharoo Mhatre Vs. Yeshodabai Savlaram Mhatre - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 353 of 1959
Judge
Reported inAIR1962Bom190; (1962)64BOMLR27; ILR1962Bom326
ActsHindu Marriage Act, 1955 - Sections 12, 12(1) and 12(2); General Clauses Act, 1897 - Sections 10
AppellantSavlaram Kacharoo Mhatre
RespondentYeshodabai Savlaram Mhatre
Appellant AdvocateD.P. Hegde, Adv.
Respondent AdvocateV.B. Rege, Adv.
Excerpt:
.....under section 12(1)(d) for annulment of marriage solemnized before commencement of act--petition filed beyond period mentioned in section 12(2)(b)(ii)--maintainability of petition.;compliance with 3. 12(2)(b) of the hindu marriage act, 1955, is a condition precedent to the entertainment of a petition under section 12(1 )(d) of the act, and, therefore, a petition filed beyond the period mentioned in section 12(2)(b)(ii) of the act cannot be saved by reason of the provisions of section 10 of the general clauses act, 1897.;mokshamadanlal v. hariprasad (1956) 58 bom. l.r. 568, chenchuramana v. arunachalam (1935) i.l.r. 58 mad. 794, f.b. muradan sardar v. secretary of state for india in council [1939] 1 cal. 425 and h.h. raja harinder singh v. s. karnail singh [1957] s.c.r. 208, referred..........court of the civil judge, s. d., at thana on the ground that the respondent was pregnant at the time of marriage by some person other than the petitioner-appellant and that he was ignorant of the pregnancy at the time of marriage. the marriage between the appellant and the respondent took place on 8th february 1955. the appellant alleged that she delivered a full-time male child on the 6th of august 1955 about 180 days after the marriage was solemnized.(2) the hindu marriage act, 1955, came into force on 18th may, 1955. the court was closed for summer vacation on 17th may and reopened on 11th june and the appellant filed the petition under section 12(1)(d) of the act on 11th june 1956. the trial court dismissed it on the ground that it was not filed within one year of the commencement.....
Judgment:

(1) The appellant filed a petition for annulment of marriage asking for a decree of nullity in the court of the Civil Judge, S. D., at Thana on the ground that the respondent was pregnant at the time of marriage by some person other than the petitioner-appellant and that he was ignorant of the pregnancy at the time of marriage. The marriage between the appellant and the respondent took place on 8th February 1955. The appellant alleged that she delivered a full-time male child on the 6th of August 1955 about 180 days after the marriage was solemnized.

(2) The Hindu Marriage Act, 1955, came into force on 18th May, 1955. The Court was closed for Summer Vacation on 17th May and reopened on 11th June and the appellant filed the petition under section 12(1)(d) of the Act on 11th June 1956. The trial Court dismissed it on the ground that it was not filed within one year of the commencement of the Act as required by section 12(2)(b) (ii) and the decision of the trial Court is confirmed in appeal by the District Court. It is against this judgment that the present second appeal is filed to this Court.

(3) It is argued by Mr. Hegde that section 10 of the General Clauses Act applies to this case, and if it applies, his filing of the petition on the re-opening of the Court on 11th June 1956 was proper and the Courts below were wrong in dismissing his petition. Section 10 of the General Clauses Act, so far as is relevant, reads as follows:

'Where, by any Central Act . . . . . . . . . .made after the commencement of this Act, or any act or proceeding is directed or allowed to be done or taken in any Court. . . . . .on a certain day or within a prescribed period, then, if the Court . . . . . .is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court . . . . . . .is open,'

Mr. Hegde contends that the application of the provision should not be unduly restricted. He relies on the decision of the Supreme Court in the case of Harinder Singh v. Karnail Singh : [1957]1SCR208 and contends that we should construe the words used in section 12 of the Hindu Marriage Act, 1955 as prescribing a period for the doing of the act as was done in that case and hold that the petition is properly presented. Now, the case before the Supreme Court arose out of an election petition. The last day of filing of the petition fell on a holiday and therefore it was filed on the next working day. The Supreme Court construed the rules framed under the Representation of People Act, 1951 and held that Rule 119 (a) prescribed a period for the presentation of an election petition though the words used were 'not later then fourteen days.'

(4) The question then is one of construction of section 12 of the Hindu Marriage Act,. 1955. If on a fair construction we can come to the conclusion that it merely prescribes a period during which certain thing may be done or prescribes a terminal date before which something may be done then section 10 must be applied. Section 12 of the Act provides that on any of the grounds mentioned in clauses (a), (b), (c) and (d) of sub-section (1) of Section 12 any marriage solemnised whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity the ground made in the present case being one under clause (d) of section 12(1) i.e. that the respondent was at the time of the marriage pregnant by some person other than the petitioner. There is, however a limitation on this power and that is provided by sub-section (2) of section 12. Sub-section (2), so far as is relevant provides:

(1) no petition for annulling a marriage-

xxx xxx xxx (b) on the ground specified in clause (d) of sub-section (1), shall be entertained unless the Court is satisfied.

(I) that the petitioner was at the time of marriage ignorant of the facts alleged.

(Ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage and

(iii) that material intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.'

A fair reading of this section clearly shows that it does not prescribe a period for filing a petition by the plaintiff; it is in terms mandatory and prohibitory and provides that the Court shall not entertain the petition if the conditions laid down therein are not satisfied. These conditions are in absolute terms and they cannot be relaxed. Now, it is argued that the words 'no petition shall be entertained' cannot mean that the petition must be dismissed in limine merely because it is filed beyond one year mentioned in that clauses (i) and (iii) of sub-section (2) (b) of section 12. It may be that two of the conditions, i.e. those in (i) and (iii) may require evidence before the making of the decree. But so far as condition (ii) is concerned, it is self evident from examination of the plaint and if the examination discloses that the condition is not fulfilled, the Court must dismiss the petition.

(5) Mr. Hegde also relies on the provisions of section 23(1)(d) or the Hindu Marriage Act and contends that it gives a discretion to the Court not to make a decree if there is undue delay in he institution of the proceeding and it is contended that this shows that condition of clause (b) in S. 12(2) was not intended to be mandatory. It is not possible to accept this contention. This section must apply to the other provisions in the Act and not to section 12 which lays down special conditions of its own. It may moreover be that even if the proceeding is instituted within one year, discretion may be exercised by the Court under sub-clause (d) of section 23(1). There is also reason for the strict condition. The effects f such a decree are far reaching at least so far as the child is concerned, and inasmuch as special right was created in respect of marriages solemnised before the Act came into force this strict condition may have been imposed. The intention clearly was to prevent the court from passing a decree if the condition was not fulfilled. Under these circumstances it is clear that the provisions of section 10 of the General Clauses Act cannot have any application to proceeding under section 12(1)(d) of the Act, as compliance with sub-section (2) clause (d) is a condition precedent to the success of the application. This conclusion is supported by decisions in Mokshamandanlal v. Hariprasad : AIR1956Bom650 , Chenchuramana v. Arunachalam, ILR 58 Mad 794: (AIR 1935 Mad 857) and Muradan Sardar v. Secy. Of State : AIR1939Cal313 where application of the Limitation Act was negatived to petitions for adjudication under the Provincial Insolvency Act.

(6) The Courts below were therefore right in rejecting the appellant's petition. The appeal is therefore dismissed with costs.

(7) Appeal dismissed.


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