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Sumatiben Vs. Jascant Bhogilal Sutaria - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberM.J. Petn. No. 116 of 1955
Judge
Reported in(1959)61BOMLR1565
ActsHindu Marriage Act, 1955 - Sections 25, 26, 29(3) and 30; Bombay Hindu Divorce Act - Sections 8 and 15
AppellantSumatiben
RespondentJascant Bhogilal Sutaria
Appellant AdvocateM.V. Desai, ;N.P. Engineer and ;M.R. Parpia, Advs.
Respondent AdvocateM.P. Amin and ;Arun H. Mehta, Advs.
Excerpt:
.....marriage -- maintainability of petition.;where in a proceeding under the bombay hindu divorce act, 1947, the relief in respect of the marriage itself had already been decreed before the coming into operation of the hindu marriage act, 1955, and there was no prayer for custody of children in the plaint as originally filed, a subsequent petition under section 15 of the bombay hindu divorce act, 1947, for custody of children is maintainable after the coming into operation of the hindu marriage act, 1955. - .....make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody maintenance and education of such decree or interim orders in case the suit fo obtaining such decree were still pending.' it is this section under which the present petition has been made. the central act. however, came into operation on 18-5-1955, that is prior to the filling of this petition.(4) section 30 of the central act provides as follows:'the hindu marriage disabilities removal act, 1946 (xxviii of 1946), the hindu marriage validity act, 1949 (21 of 1949), the bombay prevention of hindu bigamous marriages act, 1946 (bombay act xxv of 1946) the bombay hindu divorce act. 1947 (bombay act xxii of 1947), the madras hindu (bigamy prevention and divorce) act, 1949 (madras act vi.....
Judgment:
ORDER

(1) The petitoner in this case is the wife, the respondent being her former husband, her marriage with whom has been dissolved. The petitioner was married a son since named Tarang was born to the petitoner on the 10th of August 1948. On or abour 11-3-1955 the petitioner filed suit No. 166 and 1955, being the suit in which this petition has been filed, agianst the respondent for divorces and dissolution of the said marriage on the ground of desertion of the said marriage on the ground of desertion under the provisions of the Bombay Hindu Divorce Act, 1947, which was then in force. In the suit there was prayer for dissolution of marriage but there was a prayer for dissolution of marriage but there was no prayer for the custody of the son Tarang, although since prior to te filing of the suit Tarang was in the custody of the respondent. A decree for dissolution of marriage in the suit on 12-4-1944. The petitioner, in November 1958, filed the present petition praying inter alia for the custody of Tarang, and in the alternative, for an order directing the respondent to allow the petitioner to take away her minor son Tarang to live with her at Bombay during the school vacation and/or during sutiable school holidays.

(2) The respondent is resisting this petition on several grounds one of which is by way of preliminary objection. That preliminary objection is that the petition in so many ords staes that the same has been filed under S. 15 of the Bombay Hindu Divorce Act, 1947 (which I will hereafter refer to as 'the Bombay Act'), that the Bombay Act stands repealed by S. 30 of the Hindu Marriage Act, 1955 (which I hereafter refer to as 'the Central Act') and that, therefore, this petition is mixconceived and must be dismissed.

(3) Section 15 of the Bombay Act provided as follows:

:In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, the marriage of whose parents is the subject of such suit, and may, after the decree, upon appllication by petition for the purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody maintenance and education of such decree or interim orders in case the suit fo obtaining such decree were still pending.' It is this section under which the present petition has been made. The Central Act. however, came into operation on 18-5-1955, that is prior to the filling of this petition.

(4) Section 30 of the Central Act provides as follows:

'The Hindu Marriage Disabilities Removal Act, 1946 (XXVIII of 1946), the Hindu Marriage Validity Act, 1949 (21 of 1949), the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 (Bombay Act XXV of 1946) the Bombay Hindu Divorce Act. 1947 (Bombay Act XXII of 1947), the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 (Madras Act VI of 1949), the Saurashtra Prevention of Hindu Bigamous Marriages Act, 1950 (Saurashtra Act V of 1950) and the Saurashtra Hindu Divorce Act. 1952, (Saurashtra Act XXX of 1952) are hereby repealed.'

(5) Only sub-section (3) of S. 29 of the Central Act is revelant for the purposes of this petition and the same provides as follows.'

'Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judical separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.'

(6) On a simple reading of the said S. 3 it is quite clear that the Bombay Act stood repealed at the date of the filing of this petition and that therefore this petition would be incompetent under S. 15 of the Bombay Act unless such a petition is saved under the provisions of sub-section (3) of S. 29 of the Central Act.

(7) What Mr Amin, the learned counsel for the respondent, contended was that what are saved by the said sub-section (3) are proceedings under the Bombay Act for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judical separation pending at the commencement of the Central Act and that only such proceedings may, by virtue of the provisions contained in the said sub-section (3). be continued passed. What Mr. Amin contended was that under sub-section (3) of S. 29 a proceeding under the Bombay Act would be saved only if that proceeding was for seeking relief for declaring any marriage to be null void or for annulling or for dissolving any marriage or for judicial separation-which reliefs, may it be noticed, are in respect of the marriage itself and if such a proceeding was pending at the commencement of the Central Act must be the adjudication as to such a relief in respect of the marriage itself and what would be saved would be onl that part of such proceeding which sought such a relief, e.g., for custody of children. In order to test Mr. Amin's argument I put a hypothetical case to him, viz., if a suit under the Bombay Act as filed before 18-5-1955 praying for dissolution of marriage and for custody of children and was pending in respect of both these reliefs at the commencement of the Central Act, would the suit in respect of the relief for custody of children and was pending in respect of both these reliefs at the commencement of the Central Act, would the suit in respect of the relief for custody of children be saved? Mr. Amin thereupon made a concession that it would be saved. I thereupon put a further hypothetical case to Mr. Amin that if in a suit of the nature metnioned in the first hypothetical case a decree for dssolution of the marriage had aleady been passed before 18-5-1955, but the suit stood over in respect of the other relief for custody of children - and I may state from my experience that it was not infrequent that in such suits decrees for dissolution of marriage used to be passed first and the suit in respect of the relief for custody of children used to be adjourned for some time - and the suit in respect of that other relief reached hearing afer the 18th May 1955, would the suit for that relief be saved? Mr. Amin stated that it would be saved and gave the reason for his answer that it would be saved because the relief for custody of children had been asked for in the plaint itself along with the relief for dissolution of marriage. Mr. Amin's final argument narrowed down to a contention that if in a proceeding under the Bombay Act the relief in respect of the marriage itself had already been decreed before 18-5-1955 and there was no prayer for custody of children in the plaint itself, a subsequent petition could not be made for the first time after 18-5-1955 although such a subsequent petition would have been permissible under S. 15 of the Bombay Act before its repeal. With respect to Mr. Amin, the said concessions made by Mr. Amin later in his argument are, in my opinion, not logical and I must ascertion the correct position in law and see whether Mr. Amin had to make such concessions because of his very first contention not being justifiable in law.

(8) For a clearer understanding of the position it is necessary to consider first the provisions of S. 15 of the Bombay Act. In respect of that section, in the initial stages, Mr. Amin contended that even when the Bombay Act was in force no orders in respect f the custody, maintenance or education of children could for the first time be passed after a decree was passed in respect of the marriage of the parrents of such children. What he contended was that in a suit for dissolution of marriage, an order in respect of the custody, maintenance and education of children could be made oly by way of an interim order or by way of a provision in the decree dissolving the marriage but that once a decree was passed in respect of the marriage but that decree did not contain any provision for the custody, maintenance and education of children, no order for such custody, maintenance and education of children could be made after the passing of such decree. In other words, according to Mr. Amin's contention, once a decree for the dissolution of the marriage was passed the only power which the Court would have under S. 15 in respect of the custody, maintenance and education of children would be a power in the nature of varying or altering such provision in that behalf as may already be contained in the decree. The words, in S. 15, however, ae 'may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary form time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the suit for obtaining such decreee were still pending.' Th word 'revoke, suspend or vary' would support Mr. Amin's contention, because, in their grammatical sense they presuppose an existing order in that behalf, but the work 'make,' however, implies that a power is given to make such an order for the first time even after the decree although thre may be no such order already existing in the decree which has already been passed. Similarly, the words 'as might have been made by such decre or interim orders in case the suit for obtaining such decree were still pending' suggest that even after the passign of a decree which does not contain any provision with respect to the custody, maintenance and education of children the Court has still thesame powers in that behalf as it ad before the passing of the decree. The effect of these words is that even after passing of the decree the suit is, as it were, notionally to be deemed to be still pending and the Court can exercise the same powers even after the decree as it could exercise before or at the time of the passing of such decree. Having realised the force of these provisions in S. 15, Mr. Amin later force of these provisions in S. 15, Mr. Amin later on did not press his point that a fresh order could not be made by a Court under S. 15 with respect to the custody, maintenance and educations of children even after the decree was passed dissolving the marriage of the parents.

(9) But Mr. Amin maintenance that the last portion of S. 15 indicates that it applied only in these cases in which there was in the plaint not only a prayer for dissolution of marriage but also a prayer with respect to the custody, maintenance and education of children. In other words, his contention was that in those cases where in the plaint there was only a prayer for dissolution of marriage and thereafter a decree was passed granting the prayer, because there was no prayer with respect to the custody, maintenance and education of children in the original plaint the Court would have no jurisdiction under S. 15, after the passing of the decree for dissolution to make any order with respect to the custody, maintenance and education of children. In my opinion, there is no justification for reading S. 15 in the manner contended for by Mr. Amin. As noted earlier,in my opinion, on its proper interpretation, S. 15 provides, as it were, for a notional pendency of the suit even after the passing of the decree for dissolution of marriage. Even though the plaint contained a prayer only for dissolution of marriage and even I a decree is passed granting that prayer, by reason of the provisions of S. 15 the suit is notionally deemed to be still pending with a view to enable either of the parents to make an application at any time after the passing of such decree, in that very suit for obtaining an order with respect to the custody, maintenance and education of children, then normally when te Court granted a decree for dissolution of marriage, it would have made some order in connection with that other prayer also either granting it or rejecting it or ordering thesame to stand over to be dealt with in future. In the latter eventuality, if that prayer was stood over, there would be no necessity for a fresh petition for an order with respect to the custody, maintenance and education of children as provided for in S. 15. S. 15, however, does provide for an application to be made by a petition and that provision in S. 15 indicates that such a petition ould be made even when there was originally no prayer in that behalf in the plaint. If full effect is given to these words in S. 15: 'upon application by petition for the purpose,' 'make' and 'as might have been made by such decree or interim orders in case the suit for obtaining such decree were still pending,' it is clear that it is open under S. 15 to a Court to make an order with respect to the custody, maintenance and education of children even after the passing of the decree for the dissolution of the marriage and even though in the plaint as orginally filed there was no prayer for such custody, maintenance and education of children.

(10) I will now turn to sub-section (3) of S. 29 of the Hindu Marriage Act, 1955 and for a proper appreciatin of the same, it is necessaryto bear in mind certain other provisions of the Bombay Act and the Central Act. Under the Bombay Act, when it was in force, there could have been filed a suit for dissolution of marriage. Even after a decree was passed dissolving the marriage an application could have been made S. 15 in respect of the custody, education and maintenance of the children of the marriage and under S. 8(1) for permanent alimony. I have already stated that the language of S. 15 shows that an application for custody, education and maintenance of children could be made, even for the first time after the passing of the decree for dissolution of marriage. Similarly, it is quite clear that an application for permanent alimony also could be made even for the first time after the passing of the decree for dissolution of marriage, because the material words of S. 8(1) are: 'at the time of passing any decree under this Act or subsequent thereto.' The provision in the Central Act in respect of applications for custody, education and maintenance of children is contained in S. 26 and in respect of applications for permanent alimony is contained in S. 25 and for the purposes of the present consideration the language of Ss. 26 and 25 of the Central Act is similar,though not absolutely identical, to that of Ss. 15 and 8 respectively of the Bombay Act. The intention of the Bombay Legislature as gathered from the language of Ss. 15 and 8 of the Bombay Act appears to be that application for custody, education and maintenance of children and for permanent alimony could and should be made in the very suit or proceeding for dissolution of marriage even after the passing of the decree for dissolution of marriage. The same appears to be the intention of the Central Legislature as gathered from the provision enacted in Ss. 26 and 25 of the Central Act. The reason for that intention of the two Legislatures and thescheme of the two enactments is als natural, because the very necessity to provide for the custody, education and maintenance of children and for permanent alimony arises because a decree for the dissolution of the marriage has been granted and is but consequential upon and incidental to such decree. When that intention and that scheme of the Bombay Act has been adopted and continued in the Central Act can it be said that the Central Act in enacting the repealing provision in S. 30 and the saving provision in S. 29(3) which two provisions must be read together - intended that after the repeal of the Bombay Act no application should be made for custody, education or maintenance of children or for permanent alimony after the repeal of the Bombay Act in suits under the Bombay Act in which decrees for dissolution of marriage had already been passed before the repeal of the Bombay Act? It can be argued that after the repeal of the Bombay Act, it ws not intended that applications for custody, maintenance and education of children should be made in the very suits in which decrees for dissolution of marriage had already been passed before the repeal of the Bombay Act because it is possible to make such applications, though not under the repealed Bombay Act, but under other provisions of law, e.g., the Guardians and Wards Act. But what about applications for permanent alimony? If a decre for dissolution of marriage had already been passed, but no application for permanent alimony had been made before the repeal of the Bombay Act, was the right tro subsequently apply for alimony completely taken away by repealing the Bombay Act the right to apply under S. 8 for permanent alimony was taken away, it appears to me that the inevitable result would be that the right to apply for permanent alimony would completely disappear, as there appears to be no other provision of law which would enable an application being made in such a case for permanent alimony. Such an unreasonable intention to take away that right to permanent alimony cannot be ascribed to the legislature. And if the right to make such a subsequent application for permanent alimony cannot have been intended to be taken away, why should there have been a different intention in respect of a subsequent application for custody, education or maintenance of children although it may be possible to obtain such later relief under some other law

(11) In my opinion, all these difficulties would arise if too narrow a construction is placed on the language of sub-section (3) of S. 29 of the Central Act. That sub-section provides:

'Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act. . . . . .'

The Bombay Act was a 'law for the time being in force' within the meaning of that phrase in subsection (3). Now what would be saved would be a proceeding under the Bombay Act 'for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of the Central Act.' The Bombay Act did not provide for 'declaring any marriage to be null and void,' not did it provide for 'annulling any marriage' and these phrase would, therefore, not be applicable to the Bombay Act. The presence of those two phrases in thesaid sub-section (3) is due to the other enactments repealed by S. 30 of the Central Act. The phrase 'dissolving any marriage' is tantamount to 'divorce,' which is the word used in the Bombay Act. Therefore the relevant words in the said sub-section (3) are 'any proceeding' under the Bombay Act 'for dissolving any marriage or for judicial separation' and 'pending at the commencement of this Act.' It is clear that in order to be saved, it must be a proceeding for dissolving any marriage or for judicial separation pending at the commencement of the Central Act. But what is the interpretation of these words? It is clear that the said sub-s. (3) would save all proceedings in which the relief was for dissolving any marriage or for judicial separation and the adjudication as to such relief had not yet been made and was still pending at the commencement of the Central Act. But would that sub-section (3) also save a second category of proceedings which were initially for dissolving a marriage or for judicial separation and in which that relief had been granted before the commencement of the Central Act but which were at the commencement of the Central Act, still pending because a relief aleady prayed for therein for custody, education or maintenance of children or for permanent alimony had remained to be adjudicated upon? And would that sub-section (3) also save a third category of proceedings in which even thogh there was no such relief originally prayed for and could not therefore be said to have remained unadjudicated upon but yet, from the very nature of the original proceedings, it was notionally to be deemed to be pendign for any subsequent application for and adjudication of the necessary relief or reliefs in respect of custody, education and maintenance of children or permanent alimony as and when occasion for the same arises. In my opinion, on a correc interpretation, even the said second and third categories of proceedings would also be saved. Sub-section (3) of S. 29 saves all proceedings which were initially for dissolution of marriage or for judicial separation under the Bombay Act. It is not that they would be saved only if the relief for dissolving the marriage or for judicial separation was still pending at the commencement of the Central Act. If in a proceeding a relief for custody of children or for permanent alimony was asked for but remained unadjudicated upon at the commencement of the Central Act or even if no such relief was in fact asked for before the commencement of the Central Act, the proceeding must be deemed to be pending at the commencement of the Central At and even such a proceeding having initially been 'for dissolving a marriage' or 'for judicial separation' is also saved. The reason why even the said second and third categories of proceedings would be saved is thatr all the said three categories of proceedings would essentially be for dissolving a marriage or fo judicial separation and the granting of relief in respect of custody, education or maintenance of children or for permanent alimony would be merely incidental thereto and by reason of the provisions of Ss. 15 and 8 such incidental relief was capable of being granted at any time even after a decree from the essential relief was passed and the proceeding must even thereafter be deemed to be pending for such incidental relief being granted therein. The present petition even though it falls within the said third category is therefore competent and maintainable although it has been filed after the Bombay Act stood repealed.

(12) Under the circumstances, the respondent fails in the priliminary point taken by him.

(The rest of the judgment is not material for purposes of this report.)

(13) Order accordingly.


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