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Sou. Ramkuvar Madanlal Atale Vs. Madanlal Surajkaran Atale - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 846 of 1971
Judge
Reported in(1977)79BOMLR143
AppellantSou. Ramkuvar Madanlal Atale
RespondentMadanlal Surajkaran Atale
DispositionAppeal dismissed
Excerpt:
hindu marriage act (xxv of 1955), sections 10, 13, 21 and 23(1) - code of civil procedure (v of 1908), order xxiii, rule 3--whether both spouses would be entitled to a decree for judicial separation on the ground of desertion--whether a decree for judicial separation was a nullity by reason of its having been passed immediately after the joint compromise purshis was presented to the court by the parties without any further hearing of the case--whether order xxiii, rule 3 of the code of civil procedure is applicable to proceedings under the hindu marriage act.; on a petition filed in 1966 before the civil judge, senior division, poona, by the husband for judicial separation under the hindu marriage act, the husband had inter alia deposed that after the marriage at sholapur in december.....vimadalal, j.1. this appeal has been referred to me under section 98 of the code of civil procedure on a difference of opinion between my brother bhole and my brother mukhi. the facts have been set out in detail by my brother mukhi in his judgment and it is not necessary for me to set them out again. suffice it to say that, on a petition filed by the respondent-husband for judicial separation on the ground, inter alia, of desertion under the hindu marriage act, 1955, being marriage petition no. 5 of 1966, after evidence was taken, the parties presented a joint compromise purshis on september 5, 1966 in which it was stated that, in view of the evidence led before the court, it appeared that the parties could not live together as husband and wife and there was, therefore, no objection from.....
Judgment:

Vimadalal, J.

1. This appeal has been referred to me under Section 98 of the Code of Civil Procedure on a difference of opinion between my brother Bhole and my brother Mukhi. The facts have been set out in detail by my brother Mukhi in his judgment and it is not necessary for me to set them out again. Suffice it to say that, on a petition filed by the respondent-husband for judicial separation on the ground, inter alia, of desertion under the Hindu Marriage Act, 1955, being Marriage Petition No. 5 of 1966, after evidence was taken, the parties presented a joint compromise purshis on September 5, 1966 in which it was stated that, in view of the evidence led before the Court, it appeared that the parties could not live together as husband and wife and there was, therefore, no objection from them to a decree for judicial separation being passed by the Court. It was, therefore, prayed in the purshis that a decree might be passed accordingly, and it was further stated that the parties were agreed that a sum of Rs. 60 per month should be paid by the husband by way of maintenance to the wife. On that purshis, the learned Judge recorded the fact that the parties admitted the settlement as per the said purshis which had been read out and fully explained to them, and then proceeded to state as follows:

Decree in terms of this purshis and as per settlement recorded in the same and under judgment to follow.

Later on, on the same day, the learned Judge proceeded to deliver a judgment in which, after referring to the pleadings in the usual way, he set out the issues, in which the second issue related to question of desertion for the statutory period. The learned Judge then set out the substance of the evidence given by the husband as well as the wife and then stated as1 follows:

Even from the case which she has made out in her W.S. and also at the trial, it appears, that she would also be entitled for a decree for judicial separation on her own contentions and the petitioner has sought for the same relief. A good deal of effort was made, to see if there could be a reconciliation but all the efforts failed, and therefore, even on the evidence of the parties, it appears to me, that a decree for judicial separation between the parties would only be a proper solution, in the interest of the parties. I have therefore, answered issues Nos. 2 and 3 accordingly.

In the next paragraph of his judgment the learned Judge proceeded to refer to the joint compromise purshis filed by the parties and stated as follows:

Relying upon this joint purshis also, I have recorded my findings on issues Nos. 2 and 3....

He then passed a decree for desertion in favour of the husband and directed payment of alimony by him to his wife, at the agreed rate.

2. After the expiry of the statutory period of two years provided in Section 13(1A)(i) of the Hindu Marriage Act, 1955, the husband thereafter presented, on September 11, 1968, a petition for divorce, being petition No. 118 of 1968, on the ground that there was no resumption of cohabitation between the parties for the statutory period after the passing of the decree for judicial separation on September 5, 1966. In her written statement, the wife contended that no decree for divorce could be passed because the decree for judicial separation had been passed on the basis of consent terms and was, therefore, illegal and not binding on her. The learned trial Judge held that the decree in Marriage Petition No. 5 of 1966 was not a compromise decree, and he, therefore granted the decree for divorce prayed for by the husband. On an appeal by the wife to the District Court at Poona, being Civil Appeal No. 982 of 1969, it was held that the decree for judicial separation in Marriage Petition No. 5 of 1966 was not unlawful and that the proper remedy for the respondent was to appeal from it, which she had not done, and the said appeal No. 982 of 1969 was, therefore, dismissed. The wife thereafter filed a Second Appeal to this Court, and it came up before my brother Bhasme who referred it to a Division Bench. That is how this appeal came up before my brothers Bhole and Mukhi who, after hearing the same, delivered differing judgments.

3. My brother Mukhi has delivered a very learned and well-considered judgment in which he has dealt exhaustively with the various questions that were argued and raised at the hearing before them. My brother Bhole has also delivered a well-considered judgment in which, however, he has confined himself to a narrower compass. In my opinion, the matter is concluded by a very recent decision of the Supreme Court, and the only question that arises in this appeal is one of applying the principles laid down in that decision to the present case. In that view of the matter, it is really unnecessary for me to consider any of the other decisions which were cited before the learned differing Judges or before me. Before I deal with that judgment of the Supreme Court, it is, however, necessary for me to set out the relevant statutory provisions contained in the Hindu Marriage Act, 1955.

4. Section 10 of the said Act lays down the grounds on which a petition for judicial separation can be presented, and the very first ground is, desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. Section 13 lays down the grounds on which a petition for divorce may be presented, and Sub-section (1A) thereof enacts that a petition for divorce may be presented on the ground that there had been no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties. Section 21 of the said Act provides that, subject to the other provisions contained in the said Act, all proceedings thereunder are to be regulated, as far as may be, by the Code of Civil Procedure. Sub-section (1) of Section 23 of the Act is in the following terms:

23. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

Considering these statutory provisions, apart from the authority, it appears to me to be clear that only these provisions of the Code of Civil Procedure would be applicable which are not, in any manner, contrary to the provisions of the Hindu Marriage Act itself. In that view of the matter, in my opinion, even on a plain reading of Sections 21 and 23(1) it is clear that Order XXIII, Rule 3 of the Code of Civil Procedure which enjoins that the Court must pass decree in accordance with a compromise arrived at between the parties is not applicable to proceedings under the Hindu Marriage Act, 1955, by reason of the provisions of Section 23(1)(a) of the said Act which lay down in mandatory terms that before a Court can grant a decree under the said Act, it must be satisfied that one or other of the statutory grounds for granting relief exists in the case before it. It is only on the Court being so satisfied that it gets the jurisdiction to grant a decree under the said Act, and it cannot pass a decree 'otherwise' as the concluding portion of Section 23(1) clearly states. The word 'otherwise' which occurs there must naturally and necessarily comprise a decree by consent and the Court cannot, therefore, pass a consent decree unless it is itself satisfied that one or other of the grounds for granting the relief sought by the petitioner exists.

I will now turn to the very recent decision of the Supreme Court to which I have referred above, and that is the decision in the case of Nagindas v. Dalpatram A.I.R [1974] 471. The facts of that case were that the appellant before the Supreme Court was a tenant of certain premises at Surat where, at the material time, Bombay Rents, etc. Act of 1947 was applicable. The landlords (respondents before the Supreme Court) served a notice on the tenant terminating his tenancy and also requiring him to pay arrears of rent, and thereafter filed a suit for possession against the tenant on the ground of non-payment of rent, as well as on the ground of bona fide requirement of the premises by the landlords for their own use. The parties thereafter arrived at a compromise under which the tenant was to hand over possession of the suit premises without objection to the landlords by the September 30, 1968, and was to pay a certain amount as and by way of mesne profits. After the expiry of that date, the landlords filed a petition to recover possession of the suit premises in execution of the decree. One of the objections raised by the tenant to the said petition was that, since the decree had been passed by the Court without satisfying itself as to the existence of a ground of eviction under the Bombay Rents Act, it was a nullity and was not executable. The executing Court upheld that contention of the tenant and held the decree to be void, but that order of the executing Court was set aside by the Extra Assistant Judge at Surat, on appeal, holding that there was ample material in the shape of admissions in the compromise itself from which the Court could be satisfied about the existence of both the statutory grounds for eviction alleged in the plaint. The tenant thereafter preferred a revision application to the High Court of Gujarat which was dismissed, in limine, and it was against that order of dismissal that the tenant came in appeal to the Supreme Court, by the special leave of that Court. After referring to the relevant provisions of the Bombay Rents Act, the Supreme Court, stated (para. 18) that construing the provisions of Sections 12, 13 and 28 of that Act in the light of the public policy which permeated the entire scheme and structure of the Act, there was no escape from the conclusion that the Rent Court under the said Act was not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which was de horn the Act. It further proceeded to lay down that the existence of one of the statutory grounds mentioned in Sections 12 and 13 was a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions, and the parties could not by their consent confer jurisdiction on the Rent, Court to do something which, according to the legislative mandate, it could not do. The Supreme Court further proceeded to state (para. 21) that the mere fact that Order XXIII. Rule 3 of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rents Act does not remove that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute, for even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. The Supreme Court observed that the lawfulness or otherwise of the agreements was to be judged, 'also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act.' The Supreme Court then laid down the law on the point in the following terms (para. 26, p. 476):

From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself.

The Supreme Court further stated (para. 29) that in cases where an objection as to the non-excitability of the decree on the ground of its being a nullity is taken, the executing Court was not competent to go behind the decree, if the decree on the face of it, disclosed some material on the basis of which, the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction and that the executing Court could for that purpose look to the original record of the trial Court to ascertain whether there was any material furnishing a foundation for the trial Court's jurisdiction to pass the decree it did. It was observed in the judgment of the Supreme Court that all that it had to see was whether 'there was some material on the basis of which the Rent Court could have-as distinguished from must have-been satisfied as to the statutory ground for eviction.' The Supreme Court took the view that in the case before it there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under Section 12(3)(a), and the executing Court was not competent to go behind the decree and question its validity. The Supreme Court, therefore, dismissed the appeal before it.

5. The principle laid down in this decision of the Supreme Court, in my opinion, is directly applicable to the present case. It is true that the decision of the Supreme Court related to the scheme and the provisions of the Bombay Rents Act, whereas the Court is concerned in the present case with the scheme and provisions of the Hindu Marriage Act, 1955, but in my opinion, for the purpose of the point which I am considering, these two Acts are in pari materia. In Nagindas' case the Supreme Court took the view (para. 18) that construing the provisions of Sections 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permeated the entire scheme and structure of that Act, it was clear that the Court was not competent to pass a decree purely by consent of parties. The position, in my opinion, under the Hindu Marriage Act, 1955, is a fortiori the same, in so far as Section 23(1) to which I have referred lays down in unambiguous terms that the Court has to be satisfied that one or other of the grounds for granting relief under the Act exists before it can acquire the jurisdiction to grant that relief. There is, therefore, no ground on which the decision of the Supreme Court in Nagindas' case can be distinguished as far as the present case is concerned.

6. I will now proceed to consider the present case in the light of the principle laid down by the Supreme Court in Nagindas' case. The original record of the evidence taken by the Court in Marriage Petition No. 5 of 1966 is not before me, but Mr. Pratap has produced a copy of the Marathi record of that evidence for the perusal of Mr. Naik, and after looking at it, Mr. Naik has conceded that the substance of that evidence as set out in the order of the learned Civil Judge, S.D., Poona in the said petition is correct. Turning to the evidence set out in the said judgment, it is clear that the petitioner-husband had deposed before the said Court that after the marriage of the parties which took place on December 12, 1957 at Sholapur, the wife had hardly lived with him at Poona for about a fortnight when her father took her away to Sholapur, that he had gone to fetch her twice at Sholapur, butcher father told him that she was suffering from continuous headache owing to which her brain was also slightly affected and that she was not sent to him; and that she had, since then, been living with her father for about nine years prior to the giving of that evidence by the husband. It is true that, after setting out the evidence the learned Judge then proceeded to deal with the infirmities in that evidence, but I am not called upon, in the light of the principle laid down by the Supreme Court in Nagindas' case, to assess the weight or the credibility of that evidence. If there was some evidence on record on the strength of which the learned Judge 'could have' been satisfied as to the existence of the statutory ground for granting relief by way of judicial separation under the Act, that is sufficient to sustain the decree. It is also true that the learned Judge has stated in his judgment in Marriage Petition No. 5 of 1966 that it appeared to him that the wife would also be entitled to a decree for judicial separation, but in my opinion, that is an entirely erroneous statement as a matter of law, for it is inconceivable that both sides to a marriage would be entitled to a decree for judicial separation on the ground of desertion. It is; clear under the law of desertion which is well-settled by now that if one party is in desertion the other cannot be in desertion, and vice versa, but merely because the learned Judge has proceeded to lay down a proposition which is erroneous cannot make the decree for judicial separation passed by him a nullity. It may be that that decree was wrongly passed, but in order that it should be pronounced to be a nullity, in the light of the principle laid down by the Supreme Court in Nagindas' case, there must be no material on which the learned Judge should have been satisfied about the existence of one or other of the statutory grounds1 for granting that relief. The learned Judge has no doubt proceeded to state in a separate paragraph that, relying upon the joint purshis relating to the compromise 'also', he had recorded his findings on issues Nos. 2 and 3 in regard to desertion and the relief to be granted on that ground. However, so long as there was material on record in regard to the existence of the one or other of the statutory grounds, viz., in this case desertion by the wife, as the Supreme Court has observed in Nagindas' case (para. 26), 'it will be presumed that the Court was so satisfied,' and the mere fact that the Court has 'also' referred to and relied upon the joint compromise purshis cannot make any difference to that position.

7. Before concluding this judgment, I must deal with two other contentions which were raised by Mr. Naik on behalf of the wife. The first of these contentions was that the fact that the learned Judge has passed the decree for judicial separation only on the basis of the joint compromise purshis is clear from the fact that after that purshis was filed, no further arguments were advanced by the learned advocates and no further hearing took place. At that stage, however, the only part of the hearing that remained was the addresses by the learned advocates. In my opinion, the mere fact that no arguments were addressed to the Court by the learned advocates appearing for the parties before judgment was delivered is of no consequence, for the simple reason that by the very act of handing in the joint compromise purshis the learned advocates must be clearly held to have expressed their unwillingness to address arguments.

8. The second point that was raised by Mr. Naik in the course of his arguments was that by passing a decree at the foot of the joint compromise purshis in terms of that purshis 'as per settlement recorded in the same and under judgment to follow,' the learned Judge became functus officio, and the judgment delivered by him subsequent thereto is of no avail. There is, in my opinion, no substance in that contention of Mr. Naik also, in view of the fact that the judgment that was to follow was delivered by the learned Judge later on in the course of the same day. Tinder these circumstances, what the learned Judge really appears to have been done was merely to indicate at the foot of the purshis what was the judgment which he was to deliver, and which he did in fact deliver on that very day.

9. Though the learned Judges have not formulated in the Order by virtue of which the matter has been referred to me the precise point on which they have differed, both the learned Judges have referred to the point at several places in their respective judgments, and there can be no doubt that the only point on which they have differed is, whether or not the decree for judicial separation in question is a nullity by reason of its having been passed immediately after the joint compromise purshis was presented to the Court by the parties without any further hearing of the case. For the reasons stated above, I hold that the said decree for judicial separation dated September 5, 1966 is not a nullity on that account, and I concur with the view taken to that effect by my brother Bhole. In accordance with the opinion of the majority of us, the appeal of the wife is, therefore, dismissed. I, however, make no order in regard to the costs of the appeal, as it is usually the privilege of the husband to pay the wife's costs.

10. Editor's note : The differing judgments of Mukhi and Bhole JJ. dated December 17/19, 1973 are reproduced below. The former contains discussion on the distinction between illegality, irregularity and nullity of proceedings.

11. Mukhi, J. This is a second appeal from the order and judgment of the Joint Judge, Poona, in Civil Appeal No. 982 of 1969 from the decree for divorce granted in Marriage Petition No. 118 of 1968 of the Court of the Second Joint Civil Judge, Senior Division, Poona.

12. It may be mentioned that this second appeal came up for hearing before a learned single Judge of this Court (Bhasme J.), who perhaps in view of the importance of the point involved, referred it to a Division Bench without judgment.

13. In order to appreciate the point of law which arises in this second appeal, it is necessary to set out some of the relevant facts and dates.

14. The appellant Ramkuvar is the wife of the respondent, Madanlal Atale, who is the original petitioner, on whose petition a divorce was granted by the trial Court.

15. The parties to the petition were married at Sholapur on December 12, 1957. Thereafter they stayed together at Poona and it has been suggested by the respondent-husband (hereinafter referred to as 'the petitioner') that his wife stayed with him only for twenty-one days or so thereafter she went away. There is no dispute that the parties did not stay together again.

16. In 1966 (after nearly eight years) the petitioner filed a petition for judicial separation, being Marriage Petition No. 5 of 1966, in the Court of the Second Joint Civil Judge, Senior Division, Poona. In the said petition for judicial separation the petitioner contended, firstly, that his wife Ramkuvar (hereinafter referred to as 'the respondent') was an idiot and of unsound mind even before the marriage and that she had been in the Central Mental Hospital, Yerwada, for treatment. It was also suggested that the respondent's father had got her married to the petitioner by practicing fraud (on the petitioner) in this respect. The second ground on which the petition for judicial separation was based was that ever since the beginning of 1958 the respondent had left and deserted the petitioner.

17. It is significant to note, as appearing from the judgment of the trial Judge in Marriage Petition No. 5 of 1966 that the petitioner had also stated that there was no possibility of a happy married life being derived in the company of the respondent who, according to the petitioner, had deserted him for a continuous period of more than two years voluntarily.

18. The petition for judicial separation was resisted by the respondent who denied the allegations of the petitioner. She denied that she was of unsound mind when she had come to live with the petitioner or otherwise. She also denied that she and the petitioner had stayed together for only twenty-one days or so. Her contention was that before her marriage she had suffered from fever and had been sent for treatment at the Mental Hospital Yerwada, where she stayed as a voluntary patient for a few weeks and was discharged as completely cured. The respondent further contended that her marriage with the petitioner took place nearly one and half years after the said ailment for which she had been treated at the Yerwada Hospital and subsequently discharged. She contended that her ailment had been fully disclosed by her father to the petitioner and that only after full inquiry and after the petitioner had met her, did he (the petitioner) agree to marry her and in fact married her. She denied the allegations about fraud and in particular she denied that she had deserted the petitioner or that they could not lead a happy married life if the petitioner was so inclined. She asserted that she always was and was still prepared to live with the petitioner. It is not clear how this is relevant but she then stated that she had passed her Higher Hindi Examination and had appeared for the S.S.C. Examination as well as the final Hindi Examination. Perhaps the suggestion is that a person who can sit for or pass such examinations cannot be said to be an idiot.

19. It is thus to be noticed that the grounds on which the petition for judicial separation was based were two, firstly, insanity and, secondly, desertion-obviously, desertion in the context, can only mean desertion by the respondent of the petitioner.

20. On September 5, 1966 a decree for judicial separation was passed by the Court hearing the Marriage Petition No. 5 of 1960, that is to say, the Court of Shri G.K. Joshi, Second Joint Civil Judge, Senior Division, Poona, in the following circumstances.

21. It requires to be noticed that at the trial of the petition for judicial separation the ground of insanity was given up and the petition proceeded to a hearing on the only other ground left, viz. that of desertion. Such desertion could of course only be a ground if the petitioner was deserted by the respondent and not vice versa.

22. The petitioner examined himself and so did the respondent.

23. It is significant that on September 5, 1966 after evidence had been recorded, the petitioner and the respondent filed compromise purshis as follows:

In this matter compromise purshis on behalf of the applicant and the respondent is as follows: In view of the evidence led by the applicant and the respondent before the Court today, it appears that the applicant and the respondent cannot live together as husband and wife. Therefore, there is no objection from the applicant and the respondent to pass by this Court the decree for judicial separation. The applicant is willing to pay a sum of Rs. 80/- per month to the respondent as maintenance from today. It is therefore prayed that the decree may be passed accordingly.

This is the purshis.

Dated this 5th day of September, 1966.Sd/- Sd/-Ramkuvar Madanlal Atale.Pleader, 5-9-66.Sd/- Sd/- Madanlal Atale.Pleader, 5-9-66. 5-9-66Poona,Dated 5-9-1966.

24. On the said purshis the following order of the Court was made:

This joint settlement purshis was given by the parties and their pleaders, after all the evidence in the Court was recorded both oral and documentary. Parties present admit terms of this settlement purshis, read out and fully explained to them, in the presence of their advocates.

Recorded.

Decree in terms of this purshis and as per settlement recorded in the same and under judgment to follow:

Sd/ G.K. Joshi

5-9-1966. Jt. Civil Judge, S.D., Poona.

25. It is also to be noticed that the learned civil Judge after recording the settlement at once passed a decree in terms thereof, but he also stated that a judgment was to follow. Now the judgment which also bears the same date as the order on the purshis has been produced before us and I shall refer to it at a later stage.

26. Continuing the narrative, it would appear that on September 11, 1968, that is to say, within the three or four days after the statutory period of two years, the petitioner filed a petition for divorce and this is Marriage Petition No. 118 of 1968. This petition for divorce was purported to have been made under Section 13(viii) of the Hindu Marriage Act, 1955, but it is obvious that the correct provision of law would be Section 13(1A)(i) because by that time Section 13 of the Hindu Marriage Act, 1955, had already been amended.

27. In this petition for divorce the ground on which the relief by way of divorce was sought by the petitioner was that a decree for judicial separation in Marriage Petition No. 5 of 1966 had been passed on September 5, 1966 and that there had not been any resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial Separation, in a proceeding to which they wore parties.

28. It was also formally stated in the petition for divorce in paragraph 5 thereof that there had been no collusion or connivance between the petitioner and the respondent for the purpose of obtaining dissolution of marriage or for any other purpose.

29. The respondent, Ramkuvar, filed a written statement on February 24, 1969 and resisted the petition for divorce. In the said written statement the respondent contended that the decree for judicial separation had been passed on the basis of consent terms and for that reason it was not a decree of the Court and that judicial separation was not legal as the consent terms 'are originally not legal' and the decree passed on these consent terms was also illegal and, therefore, it cannot be executed and is not binding on the respondent. It was then contended that a petition for divorce could not be passed on a ground furnished by such a consent decree. The respondent also contended that the petitioner who was then reading for the law examinations had told the respondent that they should live separately and that after the petitioner had completed his studies he would allow the respondent to come and live with him and on this assurance compelled her to obey him and agree to the consent terms, as recorded.

30. I have already set out the consent purshis as filed and the order of the Court made thereupon. The respondent also sought to suggest that the petitioner was taking advantage of his own wrong in filing the petition for divorce and, therefore, the divorce should be refused to him. Obviously, this has reference to the provisions contained in Section 23 of the Hindu Marriage Act, 1955. In the alternative the respondent asked for alimony at the rate of Rs. 100 per month.

31. The learned trial Judge hearing the petition for divorce held that the decree in Marriage Petition No. 5 of 1966 was not a compromise decree; that there was no collusion between the parties; and that the allegation of fraud in arriving at the consent terms was not proved. The learned trial Judge hearing the petition for divorce also held that the petitioner as the husband was not in any way taking advantage of his own wrong.

32. It is, however, significant that although a specific issue on this point, being issue No. 4A, was raised by the learned trial Judge hearing the petition for divorce, on an application made in this behalf by the respondent, the trial Judge omitted to refer to this issue in his judgment and deal with it on the basis of the evidence before him. However, as I have stated above, the learned Judge appears to have recorded that the petitioner-husband was not taking advantage of his own wrong. It may be noticed that issue No. 4A was raised by the Court on September 9, 1969 in the following words:

(4A). Whether in seeking dissolution of his marriage with the respondent by a decree of divorce on the ground relied on by him in the petition, the petitioner is seeking in any way to take advantage of his own wrong.

33. The respondent then filed an appeal in the District Court of the Joint Judge, Poona, being Civil Appeal No. 982 of 1969. The lower appellate Court held inter-alia that decree for judicial separation in Marriage Petition No. 5 of 1966 was not unlawful and that the proper remedy for the respondent was to appeal from it. The learned appellate Judge did not consider the aspect of nullity at all. The appeal was dismissed and that is how the wife has filed this appeal.

34. These then are facts and Mr. Bhimrao Naik, the learned advocate for the appellant-respondent-wife has taken up two main contentions. The first contention of his is that the consent decree for judicial separation dated September 5, 1966 is a nullity and of no legal effect and that, therefore, a petition for divorce based on such a decree is incompetent. Mr. Naik then contends that it is open to him to challenge the decree for judicial separation in the proceedings for a decree for divorce because the decree for judicial separation passed by the learned trial Judge in Marriage Petition No. 5 of 1966 is not merely invalid but a nullity and of no legal effect whatsoever and it is, therefore, open to the respondent-wife to demonstrate this in collateral proceedings notwithstanding the fact that no appeal against that decree had been filed by her.

35. The second contention of Mr. Naik is that the respondent had always been and is even today prepared to go and live with her husband and that in this contest the conduct of the petitioner as the husband is such that he is taking advantage of his own wrong for the purpose of seeking relief by a decree for divorce which he is not entitled to by reason of the mandatory provisions of Section 23 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').

36. Mr. Naik contends that both these questions are questions of law.

37. Mr. Pratap, the learned Counsel for the petitioner, contends firstly that the decree for judicial separation passed on September 5, 1966 is in fact not a consent decree; that assuming it was so, the respondent cannot challenge its validity in these proceedings because she did not file a regular appeal therefrom. Mr. Pratap states that the decree for judicial separation cannot be described as a nullity if regard is had to all the relevant facts and circumstances.

38. As regards the contention under Section 23 of the Act, Mr. Pratap contends that the petitioner is not taking advantage of any wrong for the purpose of the reliefs that he seeks by way of divorce on the grounds as contained in Section 13(1A)(i) of the Act. Mr. Pratap cannot say why the trial Judge did not refer to issue No. 4A in his judgment.

39. I will deal with the second contention first.

40. It is to be noticed that both the Courts below have held that there is no obligation on the husband to call back his wife after a decree for judicial separation is passed.

41. Now, it appears to me that it is not disputed and is in anyway established that the respondent has all along been willing to reside with the petitioner and even today she has said so. Indeed an offer was made at the Bar by Mr. Naik on her behalf to the effect that if the petitioner is willing to take her back she is ready and willing to go to him right away.

42. Now, it is obvious that the petitioner does not want her and in fact has never wanted her. This is clear from his own evidence and no attempt has been made to conceal this fact or contend to the contrary.

43. In his evidence before the Court hearing the petition for divorce, the petitioner stated:

My wife had sent a reply to my notice in which she had stated that she was ready to stay with me and that I should come and take her to my house. I did not go to bring my wife.

He then goes to the length of saying:

I never liked my wife. I also did not like my wife when I filed the application for judicial separation. I never loved my wife.

And again: 'I was never ready to stay with my wife.'

44. Now, it is not necessary to go into factual aspects because what we have to consider here is a question of law, of course, based on the fact that the petitioner as the husband, after the decree for judicial separation was passed, is not willing to take back the respondent-wife and let her live with him.

45. The question that falls for determination is whether this behaviour of the petitioner is such that it can be said that he is taking advantage of his own wrong, for the purpose of seeking relief by way of divorce.

46. It is obvious that if the petitioner had acceded to the respondent's entreaties to take her back even after the decree for judicial separation' had been passed, then the ground under Section 13(1A)(i) of the Act that there was no resumption of cohabitation between the parties could not have arisen or before available to the petitioner.

47. If it were to be said that even after the decree for judicial separation has been passed it is the duty of the husband or for that matter any spouse to take back his wife or husband and resume cohabitation, then it could perhaps be contended that the petitioner was taking advantage of his or her own wrong is not permitting the resumption of cohabitation and thereby 'creating' a ground for divorce.

48. But this does not appear to be so and the point is concluded by the judgment of a Division Bench of this Court in Jethabhai v. Manabai (1973) 76 Bom. L.R. 304 to which I was a party.

49. In that case a similar question arose and Section 13(1A) as well as Section 28 of the Act were considered in some depth and the question that fell for consideration was whether the husband was under an obligation to cohabit with his wife after the decree for judicial separation had been passed. In that case it was the wife who had obtained a decree for judicial separation and it was the husband who had filed the petition for divorce on the ground contained in Section 13(1A)(i) of the Act. It was suggested that notwithstanding the decree for judicial separation it was the duty of the husband to make overtures and efforts to take back his wife to live with, him and that if he did not make these efforts then it could be said that he was taking advantage of his own wrong and such a behaviour would disentitle him to a decree for divorce. This Court negatived that contention and held that 'If the ground for judicial separation is desertion then it would be unrealistic to suggest that even after the matrimonial offence or wrong of desertion continues.'

50. As regards the effect of a decree for judicial separation the Court observed as follows (p. 319):

Now, the effect of a decree for judicial separation is only this; it puts the marriage, BE to say, in cold storage without dissolving it there and then. In other words, there is a suspension and as Section 10(2) says, the petitioner is absolved from the obligation to cohabit. It would, therefore, on principle and authority follow that after such a decree had been passed by the Court, the obligation of the petitioner to cohabit with the respondent is suspended and on a logical follow up it would come to this that the right of the respondent would also be suspended.

51. The Court thus came to the conclusion that where a decree for judicial separation had been passed it was no longer obligatory for either party to cohabit with the other.

52. In these circumstances it was held that the failure of the petitioner-husband in that case to make efforts to call back his wife to live with him did not amount to taking advantage of his own wrong. As a matter of fact, the effect of a decree for judicial separation on the matrimonial wrong on which the decree for judicial separation was based was set out in the following words (p. 820):.the effect of a decree for judicial separation would be that once a decree has been passed the matrimonial wrong or offence on which it was based whether 'desertion' or 'cruelty' etc. exhausts itself and it would not be open to the parties to look back (after the Court has pronounced its judgment and determined that one of the parties was guilty of a matrimonial offence such as desertion) and to say that the matrimonial offence of desertion continues. The correct view would be that once a decree has been passed the matrimonial offence of desertion (with which we are concerned in the instant case) would come to an end.

53. The judgment of this Court in Jethabhai v. Manabai, therefore, is authority for the proposition that after the passing of a decree for judicial separation there is no obligation on the part of either party to resume cohabitation and therefore, the contention of Mr. Naik that in the case before us the p3titionor is taking advantage of his own wrong in persistently refusing to take back the respondent to live with him although she has always been willing to go to him is not sustainable.

54. Mr. Naik then said that if the refusal of the petitioner to take his wife back was not a wrong, then Section 23 of the Act would be a dead letter because when the ground for divorce is furnished by a decree for judicial separation and non-resumption of cohabitation thereof then there could conceiveably be no basis for any one to say that the petitioner was taking advantage of his own wrong. Now a similar contention was taken in Jethabhai v. Manabai and it is appropriate to notice what the Court observed in relation to that contention (p. 323):

It is thus to be noticed that when a petition for divorce is based on either of the two grounds mentioned in Section 13(1A), Section 28(1) will apply and it would be the duty of the Court to satisfy itself that not only does the ground for granting the relief for divorce exists but that the petitioner is not in any way taking advantage of his or her own wrong or disability, if any, for the purpose of the relief of divorce. But the scope of Section 23(1)(a) in relation to the grounds for divorce, as contained in Section 13(1A), must, in ray opinion, of necessity and logic be somewhat limited. It is not possible to envisage what kind of wrong or disability would have to be taken into consideration. Human ingenuity being what it is, there is no doubt that many cases will arise where notwithstanding that ft ground for divorce exists, there may be something in the conduct of the petitioner which would be so reprehensible that the Court would deny to such a petitioner the relief by way of divorce, on the consideration that the petitioner was taking advantage of his or her own wrong.

55. Apart from the failure of the petitioner to accede to the entreaties of the respondent to take her back and permit her to live with him (which, as I have. stated, cannot be considered to be a wrong within the meaning of Section 23 of the Act) Mr. Naik has not pointed out any other behaviour of the petitioner which could be said to constitute a wrong of which ho could be said to be taking advantage of, for the purpose of seeking relief by way of divorce. This contention of Mr. Naik, therefore, fails.

56. I will now come to the remaining contention, which, in ray view, is of considerable importance. This question relates to a consideration whether the decree for judicial separation made on September 5, 1966 is a nullity and if it is a nullity then what is its effect on the petition for divorce.

57. In order to consider this, it is necessary to notice Sections 9, 10 and 13 of the Act.

58. Now, Section 9 provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to the Court for restitution of conjugal rights. It is to be noticed that the Court can grant a decree for restitution of conjugal rights only on being satisfied of the truth of the statements made in such petition and must further hold that there is no legal ground why the application could not be granted. This clearly means that the Court has to come to a finding that the ground for granting a decree for restitution of conjugal rights conclusively exists and also negatively that there is no legal ground on the basis of which the decree should be refused. This, in my view, refers to the provisions of Section 23 of the Act.

59. Section 10 of the Act is a similar provision in so far as it provides for the granting of a decree for judicial separation and such a decree can only be granted on any one of the grounds being found to be in existence. If the ground is, desertion, then the Court is duty be und to first arrive at a clear finding that the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. If there is no such finding, then the Court can proceed no further. It is to be noticed that the word used and which has a legal connotation is 'deserted'. Mere physical leaving may not amount to desertion. If the ground is insanity then it must be affirmatively proved before the Court and the Court must arrive at a finding that the respondent has been factually of unsound mind for a period of not less than two years immediately preceding the presentation of the petition. There are, of course, other grounds but each of such grounds can be made the basis of a petition for judicial separation and must, of course, be found to exist. It can never be disputed that the only way of arriving at any such finding by a Court would be on evidence produced before it and a hearing. If there is an admission of the parties the Court would have to consider the evidentiary value of such an admission for the purpose of arriving at the finding. It is not unknown that false admissions are often made for ulterior purposes. A false admission could also lead to an inference of collusion.

60. Now, so far as the ground of desertion is concerned, the section contains an Explanation which goes to show that desertion of the petitioner has to be, (if it is to serve as a ground for a decree for judicial separation)(a) without reasonable cause, (b) without consent or (c) against the wish of such party. It is also provided that the expression 'desertion' is to include wilful neglect of the petitioner by the other party to the marriage. It is, in my view, conceivable that in a given case parties may even physically continue to reside under the same roof and yet under the inclusive clause in the explanation there may be desertion of one by the other within the meaning of the section.

61. Section 13 provides for dissolution of marriage by a decree of divorce and after the Amending Act of 1964 non-resumption of cohabitation as between the parties to the marriage for a specified period after the passing of a decree for judicial separation is made a specific ground for divorce.

62. The act clearly shows that the jurisdiction of the Court to grant a decree for judicial separation or a decree for divorce is dependent on the existence of the ground or grounds as set out in the relevant section.

63. It is also appropriate to notice the exact phraseology and the content of Section 28 of the Act. Section 23 reads as follows:

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.

64. It is obvious that Section 28 is a mandatory section and in terms it provides that where there is any proceeding before the Court under the Act, be it a petition for judicial separation; a petition for divorce; a petition for nullity of marriage or any other petition, the Court shall not decree such relief unless the Court is satisfied that any of the grounds for granting relief exist and further that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. There are further exhortations in the section and these are that (1) so far as the ground of the other party having had sexual intercourse with any person than his or her spouse or of living in adultery is concerned, there has been no condonation or where there is cruelty, such cruelty has not been condoned; (2) the petition is not presented or prosecuted in collusion with the respondent; (3) there has been no unnecessary or improper delay and finally a provision of a general nature namely that there is no other legal ground which could be an impediment to the petitioner seeking the relief sought.

65. The words used in the last sentence of the section are, in my view, of great importance in so far as they limit the power and the jurisdiction of the Court. These words read in juxtaposition with the first sentence of the section clearly provide that relief can be granted only if the Court is satisfied that the provisions of this section have been complied with and then it is stated 'then, in such a case, but not otherwise, the Court shall decree such relief accordingly'.

66. To put it somewhat differently, the Court must first be satisfied that the ground for granting relief exists. If the ground does not exist or there is no finding as to its existence, then the Court will obviously have no jurisdiction to proceed further and grant the relief sought. The Court has also to ensure that the petitioner is not in any way taking advantage of his own wrong, that there is no condonation or connivance, that there is no collusion and that there is no delay. All these are specific statutory bars to the Court exercising the jurisdiction of granting relief whether by way of a decree for judicial separation, divorce or nullity or for that matter oven supplementary and interlocutory proceedings under the Act. It is to be noticed that the words used in the section are 'in any proceedings under this Act.'

67. If one looks at Sections 24, 25 and 26 of the Act, which deal with alimony, maintenance and custody of children or Section 27 which deals with the disposal of property, one will at once notice that any application under these sections would be a proceeding under the Act and the Court would be mandatorily be und to take into consideration the provisions of Section 23 before granting any such relief.

68. A consideration of the relevant provisions of the Act in my view clearly show that there is a bar to the parties obtaining any relief under the Act by consent without the Court having applied its own mind and arriving at the necessary finding on material before it that the ground or basis for granting the relief exists. It would not be sufficient for the parties to say that they agree that the ground exists. Indeed if the parties were to say that they 'admit' the existence of some ground the Court would be at once on guard to enquire and investigate whether there is collusion between the parties.

69. Apart from interlocutory reliefs, it is obvious that there is no provision for divorce or for that matter for judicial separation in the Hindu Marriage Act, 1955, by mutual consent. Indeed, there is no such provision in the Indian Divorce Act of 1869 or the Parsi Marriage Act of 1936 or even in the English Matrimonial Causes Act, 1965. The fact that there is a specific provision in the Special Marriage Act for divorce by mutual consent itself demonstrates that the concept of divorce by mutual consent is not recognised either in Hindu Law or under the Hindu Marriage Act, 1955. There is, however, recently a move in that general direction so far as English law is concerned, and this is to be found in the Divorce Reforms Act, 1969, which is an Act to amend the grounds for divorce and judicial separation, Section 1 whereof provides that:

After the commencement of this Act the sole ground on which the petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably.

70. This is no doubt a reform in the right direction, because, as I said in my judgment in Jethabhai v. Manabai, the time had come when it was unrealistic to insist on continuing a marriage which had failed and it would be more in the interest of society to dissolve such a marriage than to maintain the farce of a union which had broken down and inspite of lapse of a certain period of time was beyond redemption. But even this is not really a matter of consent between the parties to dissolve the marriage union.

71. In any event, parties can never be permitted to obtain a divorce in clear violation of statutory provisions.

72. It is in the light of these observations that the Court will have to consider the effect of a decree for judicial separation if such a decree for judicial separation be shown to be a nullity.

73. Unfortunately, the law on the question of nullity of a decree or order is not altogether clear. A number of authorities have been cited before us by both the parties and I shall deal with thern, in order to notice the exact concept and content of the doctrine of nullity.

74. Now, it has been laid down repeatedly that a decree which is passed without jurisdiction is nullity. The difficulty arises when one has to consider what the expression nullity really means and connotes in law.

75. I will first refer to a passage in 'Terms de la ley', where it is stated that ''Errour' is a fault in a judgment, or in the process or proceeding to judgment or in the execution upon the same, in a Court of record-Which in the civil law is called a nullity' See Strouds Judicial Dictionary, fourth edn., vol. 2, page 932.

76. Now, this definition does not really resolve the question without further discussion and consideration of authorities.

77. A recent decision of the Court of Appeal in England has been cited before us. It is the case of Pritchard, Deed. In re [1963] 1 Ch.D. 502. That was a case whore the widow of a testator had commenced proceedings asking for a reasonable provision to be made for her out of his estate and these proceedings were commenced by an originating summons which only one day before the expiry of six months period of Limitation under the relevant Act was accepted and sealed in the local District Registry. Thereafter the District Registrar informed the parties that ho doubted whether ho had power to proceed with the matter, because the originating summons had been irregularly issued by the District Registry instead of the Contra Office, could not be removed to the Central Office. The Registrar held that the original summons was a nullity and that is how the widow moved the Chancery Division asking that the proceedings be transferred to London. Wilbarforce J. held that the originating summons was nullity and all steps taken under it void. On appeal, the Appeal Court by majority held that the originating summons was a nullity, that nothing could be done about it because limitation had expired and the appeal was dismissed. Lord Donning gave a dissenting judgment. No doubt the proceedings before the Court of appeal wore concerned with the rules of the Supreme Court and Order LIV, Rule 4B and Order LXX, Rule 1 and the question was whether the originating summons issued from the District Registry Court ho re-moved to the Chancery Division in London, But the value of this judgment is in the fact that Upjohn L.J. has very concisely and with great clarity discussed the doctrine of nullity and categorised it into three clauses.

78. Upjohn L.J. referred to the difficulty of attempting to draw an exact line of difference between an irregularity and a nullity. Ho referred to certain cases of the English Courts and of the Privy Council and mentioned that there wore certain proceedings so defective that they may properly be described as nullity.

79. It is appropriate to refer to a passage from the judgment of Upjohn L.J. whore he has referred to various classes of nullity (p. 523):

I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Order 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Order 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae. Lord Denning in MacFoy v. United Africa Co. Ltd. [1962] A.C. 152 pointed out that a useful test was whether the defect could be waived. I agree with that as a good common-sense test, but I also agree with Mr. Rubin that it cannot be a completely legal test, for until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver.

The authorities do establish one or two classes of nullity such as the following. There may be others, though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with : see, for example, Whitehead v. Whitehead orse. Vasber [1962] 3 All. E.R. 800, (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings, (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement: see, for example, Finnegan v. Cementation Co. Ld. [1953] 1 Q.B. 688.

80. Danckwerts, L.J. agreed with the judgment of Upjohn L.J., but Lord Donning in his dissenting judgment hold that the particular originating summons, which was the subject-matter of the case before him, was not a nullity and on his interpretation of Order LXX of the Rules of the Supreme Court he felt that the error could be remedied and made this interesting observation (p. 518):

My brethren take a different view. They think the defect is fatal, and that the widow must be driven from the judgment seat without a hearing. I greatly regret that this should be so. Quite recently in Pontin v. Wood [1962] 1 Q.B. 594, Holroyd Pearce L.J. recalled the proud beast of Bewen L.J. : 'It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation.' The present case, and some others which I have quoted, show that in this year, 1963, the assertion can no longer be made. We have not followed the handwriting of our predecessors. We have marred our copy-book with blots, and the more's the pity of it.

81. Now there can be no doubt that as far as possible the Courts should never allow a litigant's right to be defeated by a technicality or a slip or a mistaken step, but when an order or decree is without jurisdiction or legal basis, and therefore a nullity, the Court cannot ignore in its duty to consider the legal effect of such an order or decree.

82. It is to be noticed that the third class of nullity to which Upjohn L.J. referred is 'proceedings which appear to be duly issued but fail to comply with a statutory requirement.' This class of nullity is, in my opinion, important for the purposes of the case before us. I may at once state that Mr. Pratap, the learned advocate for the petitioner, contended that even the third category or class of nullity referred to by Upjohn L.J. really dealt with the issue of process. Now that may be so, but for the purpose of discovering the meaning of the term 'nullity', I find the observations of Upjohn L.J. of considerable assistance.

83. The contention of Mr. Pratap, the learned advocate for the petitioner, is that a subsisting decree by a duly constituted Court cannot be treated as a nullity. Ho bases his argument on the concept that when one says that the Court has no jurisdiction then the reference is to territorial and pecuniary jurisdiction, as well as to jurisdiction over the subject-matter. Mr. Pratap's contention, therefore, is that where a Court merely contravenes a statutory requirement, but otherwise has jurisdiction, then it can never be said that the order or decree of the Court is a nullity and all that can be said is that it is an irregularity or an illegality which can only be set right in appeal. Mr. Pratap cited a judgment of the Rangoon High Court in Nathan v. Samson A.I.R [1931] Ran. 252., which is a Full Bench decision and the question that was referred to the Full Bench was as follows:

Can a Court to which a decree has been transferred refuse to execute a decree on the ground of its nullity as having been passed by a Court which had no jurisdiction to deal with the matter which came before it.

84. The answer to this question, as given by the Full Bench, was in the negative.

85. It is stated in this judgment that (p. 256):.a subsisting decree passed by a duly constituted Court that has not been set aside in proceedings by way of appeal, revision, review or otherwise, is not to be treated as a mere nullity, but is binding and conclusive against the parties thereto, duly impleaded in the suit.

86. There is some discussion that if the decree has been passed by a Court which is not duly constituted, then such an adjudication is not a decree at all in the eye of the law, and that such a 'decree' in the strict sense of the term is a nullity a 'mere nothing'; that it need not be sob aside; may be disregarded by any Court to which it is presented. So also is a decree that has been passed against a dead person.

87. In the said Rangoon case there is a reference to a judgment of this Court in Vishnu Sakharam Nagarkar v. Krishnarao Malhar I.L.R (1886) Bom. 153, which seems to suggest that if an order is beyond the jurisdiction and has not been got rid of by proceedings directed to that object it could not be challenged in a collateral inquiry.

88. I feel that it is appropriate at this stage to refer to a judgment of the Supreme Court in Kiran Singh v. Chaman Paswan : [1955]1SCR117 , where the following passage occurs (p. 342):.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 wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice', and that its judgment and decree would be nullities.

89. These observations of the Supreme Court clearly indicate that a decree if found to be a nullity can be challenged whenever and wherever it is sought to be enforced or relied upon and even in collateral proceedings.

90. The position in law, therefore, is clear. Once a party can establish that a decree is a nullity then no matter that he has not taken any proceedings to have it set-aside or have it formally declared as a nullity, it is always open to him to canvass its invalidity in any proceedings whore such a decree is sought to be relied upon. The judgment of this Court in Vishnu Sakharam Nagarkar v. Krishnarao Malhar, is, therefore, of no assistance to Mr. Pratap.

91. As I have said, the question is whether a particular decree is a nullity or whether it is merely illegal. In my view, it is clear that once it is established to the satisfaction of the Court that a decree is a nullity its existence can be ignored by the Court, particularly in collateral proceedings where it is sought to be used or relied upon.

92. The question that will always arise when it is to be determined whether a particular decree is a nullity or not is whether it is of such a nature that it cannot be said to be merely irregular or illegal. Mr. Pratap invited our attention to a judgment of this Court in Harkishandas v. Gulabdas : AIR1956Bom513 , in support of his contention that there is a difference between a decree being illegal and a decree being a nullity. Now that was a decision under Section 88 of the Code of Civil Procedure and the Court had to decide what were the pleas which could be entertained under that section and the Court made a distinction between a plea that tended to show that a decree in question was a nullity and the plea that merely challenged the validity or propriety of the decree on the ground that it was contrary to the provisions of law. The Court also observed that if the plea was that the decree was contrary to law in the sense that in passing the said decree certain provisions of the law had been ignored or contravened that would not necessarily make the decree a nullity and that allegations about the impropriety or illegality of the decree cannot be entertained in execution proceedings.

93. Now, apart from the fact that these were execution proceedings with which we are not concerned in the case before us, it is significant that the Court has used the words 'not necessarily' to show that where there is a contravention of the provisions of the law, then the question whether the decree may be a nullity or may not be a nullity would depend upon the facts of the case and the law concerned. Contravention of provisions of law can be of several hues. There can be a technical contravention which may be ignored but there can also be a basic contravention which may go to the root of the matter.

94. In any event, there is a recent decision of the Supreme Court which was cited by Mr. Naik and this is in the case of Kaushalya Devi v. K.L. Bansal : [1969]2SCR1048 , where the Supreme Court has held while dealing with the Delhi and Ajmer Rent Control Act (13 of 1952) that a decree in contravention of Section 13 thereof was a nullity and could not be executed. I shall refer to this case when I discuss the facts of the case before us, but it is sufficient to state at the moment that the Supreme Court has clearly laid down that contravention of a provision of law may render a decree to be a nullity. As a matter of fact, there is no real conflict between the Bombay decision just now cited and the Supreme Court decision because the learned Judges of the Bombay High Court have very properly held that contravention of a provision of law may not necessarily make a decree a nullity, meaning thereby, as I see it, that there can be oases where the contravention is of such a nature that it would make the decree to be a nullity.

95. Mr. Pratap's contention therefore, that it is only when there is lack of inherent jurisdiction that the question of nullity can arise is, in my view, not correct.

96. Once it is established that the decree is without jurisdiction, than such a decree would be a nullity. But lack of jurisdiction can arise in various ways. Mr. Pratap seems to feel that it is only the lack of inherent jurisdiction, i.e. to say, jurisdiction at the threshold that can render a decree a nullity. But that in my opinion would be taking a somewhat narrow view.

97. In a very recent judgment of the Supreme Court M.L. Sethi v. R.P. Kapur : [1973]1SCR697 , Mathew J., who spoke for the Court, dealt with this aspect and discussed the concept of jurisdiction. This is what His Lordship stated (p. 2384):

The word 'jurisdiction' is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic v. Foreign Comp. Comm. (1969) 2 A.C. 147 namely, the entitlement 'to enter upon the enquiry in question'. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by by Lord Denman in The Queen v. Belton (1841) L.R. 1 Q.B. 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd., Lord Reid said:.But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirement of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. In the same case, Lord Pearce said (p. 195):

Lack of jurisdiction may arise in various ways. There may be an absence of these formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity'.

The Supreme Court then went on to observe that the dicta of the majority of the House of Lords in the case referred showed the extent to which 'we have moved away from the traditional concept of 'jurisdiction'.' The Court also observed that the practical effect of the decision was that any error of law could be reckoned as jurisdictional.

98. Now, so far as lack of inherent jurisdiction is concerned, there can never be any controversy, although there are cases where, as provided in the Civil Procedure Code, even lack of jurisdiction may be waived as in the case of pecuniary jurisdiction. There can also be no difficulty when a decree is passed against a dead person. It is obviously a nullity and I do not think anybody can seriously contend to the contrary.

99. Mr. Pratap has referred to certain other authorities which are really authorities in relation to execution proceedings and has fairly conceded that these authorities have been cited by him on the footing that, if at all, the decree for judicial separation was merely illegal but not a nullity.

100. The real question, therefore, which is to be determined by the Court is whether the decree for judicial separation which was passed in Marriage Petition No. 5 of 1966 was in the circumstances and on the face of the record a nullity or merely illegal, as being in contravention of the provisions of the Hindu Marriage Act, 1955.

101. But before I consider that question, there is one aspect of general law as to nullities which must be discussed, and that is; when does an order or decree passed in contravention of some provisions of law become a nullity? The distinction between illegality and nullity may often be blurred but is not really difficult to draw.

102. In my opinion, when there is infraction of a procedural part of the law and which in conceiveable cases could be waived by a party, then there would be only an illegality. But if the contravention of law is of such a nature that the very basis and foundation of the jurisdiction and power of the Court is non-existent, then it can never be said that there is merely an error of law which can be cured or even waived by the party affected.

103. In my opinion, the real test, therefore, in considering whether the contravention of law in a particular case is such that it makes a decree or an order a nullity, is whether the defect can be waived by the party affected.

104. Now, it is settled law that a Court has jurisdiction to decide wrong as well as right. But can a Court proceed to decide what it has no power to decide? In other words, if the foundation of jurisdiction is absent, can the Court nevertheless proceed to 'decide' the question and pass a decree.

105. It is interesting to notice that in Pritchard, Decd., In re, which has been mentioned above, Upjohn L.J. referred to the test enunciated by Lord Donning in MacFoy v. United Africa Co. Ltd.; namely, whether a defect could be waived. Upjohn L.J. agreed that such a test would be a good common-sense test, but observed that it could not be a completely legal test, because, according to him, 'until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver'.

106. It would, therefore, come to this that in each case it would be necessary for the Court to see what is the basis of the alleged defect and then proceed to determine whether the order or decree in question is merely illegal or a nullity.

107. It is interesting to notice that the word 'null' means of no legal or binding force or validity or of no validity; or of no legal force or effect. The word 'null' is often used in conjunction with the word 'void' and sometimes interchangeably. However, there are instances where by reason of the context, the words 'null and void' may be used as moaning voidable. But as far as the word 'nullity' is concerned, it expresses a complete absence of legal or binding force. An order or decree which is a nullity is non est. It is, of course, advisable for the person aggrieved to take appropriate steps to formally sot aside such an order in appropriate proceedings but in law such a step is not necessary and the person concerned can ignore an order or a decree which is a nullity and when such an order or decree comes to the attention of the Court or is sought to be made the basis of a further order then it is always open to the person concerned to contend that such an order or decree being a nullity cannot be made a foundation of any further order or decree.

108. In Corpus Juris Secundum the word 'nullity' has been referred to in the following manner:

It has been said that it is very difficult to give a concise, and yet sufficiently comprehensive definition of a nullity. In law it means a void act or an act having no legal force or validity; invalid; null; that which is morally impossible. It is such a defect as renders the proceedings in which it occurs totally null and void, of no avail or effect whatever, and incapable of being made so. A nullity may be either absolute or relative.

'Nullity' has been distinguished from 'irregularity'...' Vol. 66, at p. 984.

109. It is also appropriate to notice that nullity in litigation is said to be an error which is incurable, as indicated in Hoffman v. Crerar 18 O. P. 473. In Sunol v. Hepburn 1 Cal. 245 , it was stated that:

An absolute nullity is that which arises from a law, whether civil or criminal, the principal motive of which is the public interest, while a relative nullity is that which affects only certain individuals.

110. Having discussed the nature and content of the concept of 'nullity', I will deal with the facts of this case in order to determine whether the decree for judicial separation passed by the trial Court in Marriage Petition No, 5 is, as contended by Mr. Nails, a nullity.

111. Now, it has to be noticed that when the petitioner filed the petition for judicial separation, being Marriage Petition No. 5 of 1966, he claimed the relief on the basis of two grounds : One that the respondent was of unsound mind even before the marriage and as a corollary to that ground that a fraud had been practised on him in so far as he had not been shown the respondent but only his uncle one Shankarlal Somani had seen her. However, by a purshis, which is Exh. 24, this ground was given up.

112. The only other ground on which the petition was based was that the respondent had deserted the petitioner. A decree for judicial separation could have been validly passed by the Court on arriving at a clear finding (however, erroneous such a finding may have been) that the ground had been made out and such a finding would have to be that it was the respondent who had deserted the petitioner within the moaning of Section 10(1)(a), and the Explanation thereto of the Act.

113. What happened, however, was that the parties filed purshis after evidence had been led in which there is no reference to or even an admission that the respondent had deserted the petitioner but there is a joint statement that the petitioner and the respondent 'cannot live together as husband and wife'. In other words, there is a joint statement and admission of the parties that the marriage has broken down. Unfortunately the law of divorce in India has not yet advanced to the stage where such a ground can be made the basis of a decree for judicial separation. I have already referred to the fact that in England by the Divorce Reform Act of 1969 such a ground i.e. that the marriage has irrevocably broken down is now made the sole ground for divorce, although certain other considerations have to be taken into consideration by the Court in accordance with the English Act.

114. Therefore, the compromise purshis does not set out any ground as being in existence on the basis of which the Court would have jurisdiction to pass a decree for judicial separation.

115. When the learned trial Judge after reading the purshis, recorded it and wrote on it, 'decree in terms of this purshis', then there can be no manner of doubt that the existence of the ground of desertion had not yet been established and indeed it can be said that it was not in the mind of the Judge at all. From what he has written on the purshis, it is clear that he was recording a settlement between the parties, the basis of settlement being that the parties could not live together as husband and wife. There is a, vague reference to the fact that this conclusion of the parties is arrived at 'in view of the evidence.' Now, if the evidence had been merely to show that the respondent had deserted the petitioner, then perhaps it could have been contended, although I have my doubts, that the reason why the parties could not live together as husband and wife was the fact that the wife had deserted the husband. But the evidence, far from showing any desertion by the respondent shows that the petitioner from the time of the marriage did not want the respondent to live with him as his wife.

116. If proper effect is to be given to the order of the learned trial Judge in Marriage Petition No. 5 of 1966 as recorded on the compromise purshis, then the moment the learned trial Judge signed the order on the compromise purshis the decree for judicial separation had been passed. It was suggested by Mr. Pratap, the learned advocate for the petitioner, that the order on the compromise purshis itself shows that not only that the decree is in terms of the purshis and as per settlement recorded in the same, but it is also 'under judgment to follow'. According to Mr. Pratap, the decree for judicial separation is based on the judgment and he even goes so far as to say that the order on the purshis is non est. We must, therefore, see whether Mr. Pratap's contention is even factually correct. I would fancy, that once the learned trial Judge had passed the decree in terms of the purshis, then he would be functus officio and anything that he said in the judgment which was to follow would be of no relevance.

117. It is to be noticed that one of the matters of which the Court is to be satisfied under Section 23 of the Act before granting the relief is that there must be no collusion between the parties. Now, the filing of the compromise purshis would at the very least suggest that there was some sort of collusion between he parties. It is significant that at the time of the order on the compromise purshis oven though evidence may have been recorded, the Court had not heard the arguments of the advocates on the evidence.

118. But let us see what the judgment itself says. After considering the evidence which was led before him, the learned Judge makes the following significant observation:

The respondent has been examined at exh. 31 and has told her own story frankly admitting that she had been admitted to the Mental Hospital at Yerwada. Even from the case which the has made out in her written statement and also at the trial, it appears that she would also be entitled for a decree for judicial separation on her own contentions and the petitioner has sought for the same relief.

(Italics supplied)

119. Now, far from holding or recording a finding on the evidence that the respondent had deserted the petitioner, the learned trial Judge holds that the respondent herself had proved at the trial that she would be entitled to a decree for judicial separation from her husband. It is significant and it cannot be ignored, that in the petition for judicial separation there was no ground excepting the ground that the petitioner had been deserted by the respondent. Curiously the learned trial Judge held that it was the petitioner who had deserted the respondent and not vice versa, because otherwise how could he with any show of reason say that the case made out by the respondent in her written statement and also at the trial was such that she would be entitled to a decree for judicial separation. Obviously she would be so entitled only on the ground of her being deserted because there was no ground left in the petition other than that of desertion.

120. The learned trial Judge then goes on to say that a good deal of effort was made by him to bring about a reconciliation which efforts did not succeed and, therefore, 'a decree for judicial separation between the parties would only be a proper solution in the interest of the parties'. From these observations the learned trial Judge came to a startling conclusion that issues No Section 2 and 3 i.e. whether the petitioner proved that the respondent has deserted him and was, therefore, entitled to a decree for judicial separation, are answered in the affirmative. In fact the words used are 'I have therefore answered issues Nos. 2 and 3 accordingly'. The use of the word 'accordingly' is, in my view, significant.

121. As if this was not enough, the learned trial Judge then refers to joint compromise purshis recording the settlement and praying for a decree for judicial separation and fixing alimony at Rs. 60 and states : 'Relying upon this joint purshis also, I have recorded my finding on issues Nos. 2 and 3'.

122. I find it difficult to understand how the joint purshis spells out desertion by the respondent of the petitioner, on any other ground on which a decree for judicial separation could be passed.

123. It is in my view substantially clear that if the compromise purshis is to be read with the judgment that has followed, it is clear on the face of the record without any elaborate arguments that the existence of the ground of desertion has not only been not established but the learned trial Judge has not even considered it necessary to do so. He appears to have been more concerned with the compromise purshis whereby the parties have stated in clear terms that they are unable to live as husband and wife and, therefore, the granting of the decree for judicial separation was in the words of the trial judge 'the only solution in the interest of the parties'.

124. As the Supreme Court has held in Kaushalya Devi v. K.L. Bansal, supra, 'a decree passed by a Court without satisfying itself if the grounds for passing such a decree existed is a nullity'. That was a case under the Delhi and Ajmer Rent Control Act and in my opinion clearly lays down the law as to what is the effect of the decree which is passed without the Court giving a finding as to the existence of the statutory ground on which the relevant order can be made. It is to be noticed that in that case the grounds for ejectment were clearly sot out in the plaint. But the parties effected a compromise and requested the Court to pass a decree in terms of the compromise so that there was no finding as to the existence of the ground or grounds for eviction. In this case the Supreme Court has laid down that a decree in contravention of Section 18 of the Delhi and Ajmer Rent Control Act was a nullity and could not be executed. It is to be noticed that the Court had no inherent jurisdiction or that the proceedings could not have been commenced. This was a case where without the existence of the ground the Court had no jurisdiction to pass the order.

125. Now, the question before us is whether the decree under the Hindu Marriage Act, 1955, which is in contravention of Section 10(1)(a) read with the Explanation and with Section 23 of the said Act can be said to be merely an illegal decree which could have only been set aside in appeal and which could not be attacked as a nullity in collateral matrimonial proceedings. As I have discussed above, the Hindu Marriage Act, 1955, does not contemplate, much less permit, the granting of a decree for judicial separation or for divorce by consent of the parties, unless the ground for relief not only exists but has been found to exist by the Court on the evidence and after hearing. Without such a ground having been found to exist the Court will have no jurisdiction to grant the relief.

126. Our attention was invited to a judgment of a single Judge of this Court in Krishnan Nair v. Ramchandra : AIR1956Bom268 , to show that if it is contended that the decree is a nullity then this should appear on the face of the decree and must not require investigation. This may be true in a manner of speaking but it cannot be overlooked that the Court must at least look into the record not for the purpose of investigation as if it was trying an issue but to see the relevant material on the basis of which it can be said that the decree is a nullity is there. For instance, it cannot be doubted that whore the contention is that a decree is a nullity because the defendant was dead at the time when it was passed, it can never be contended that the Court must only look at the decree (which would in any case not show that the defendant had died) and not consider an affidavit or a certificate issued by proper authority to show that the defendant was in fact on the date of the decree already dead.

127. It would be unrealistic to suggest that if the record shows the basis (or if one may say the non-basis) on which the decree was passed then such perusal was an 'investigation'. The judgment cited therefore does not help or advance the case of the petitioner.

128. The lower appellate Court Judge, while discussing the decree for judicial separation, appears to have only attempted to show that if the decree for judicial separation was illegal then the proper remedy for the respondent, was to file an appeal therefrom. The lower appellate Judge seems to have completely ignored the question of nullity and in fact he does not seem to have considered that aspect at all. I should have thought that the record which was before the learned appellate Judge clearly showed that the decree for judicial separation would not be passed on compromise purshis or on a settlement between the parties. It was, therefore, the duty of the Court to consider whether the decree for judicial separation was a nullity or not. This he has failed to do.

129. Mr. Pratap sought to suggest that because no appeal was filed by the respondent against the decree for judicial separation which, as we have noticed, is the only ground for the decree for divorce, the question as to whether the Court can pass a decree on compromise and settlement between the parties was constructively decided and, therefore, operates as constructive res judicata. I must confess that this appeared to be a very ingenious argument but I regret that it is completely fallacious. It amounts to saying that two parties before the Court can ask the Court to pass a completely illegal order and that if neither party then files an appeal such an illegal order which may be a nullity must stand for all time as a valid order with the imprimatur of the Court.

130. If Mr. Pratap's argument was accepted, it would load to the startling result that although the Hindu Marriage Act, 1955, does not permit a decree by consent of the parties, all that the parties had to do was for one of them to file a petition containing some of the statutory grounds. Whether the grounds ware true or false would not matter. The other party would then file a written statement contesting the validity of these grounds. Then the parties could hand over a compromise purshis or consent terms and the Court would put its seal upon it and pass the decree sought for. There would be no finding as to the existence of any of the statutory grounds and no one would bother. If none of the parties appealed, the judicial separation or divorce or nullity of marriage would be valid. Curiously, if any party appealed the other side would say : How can you appeal from a consent decree

131. I am unable to persuade myself to hold that such a decree if obtained would be anything else than a nullity.

132. I have often noted that by taking a somewhat extreme example or illustration a point of law can be brought out and properly appreciated. Let me therefore take an example : Suppose a Court were to be told when a case came up for hearing that the defendant was dead and an issue arises to whether a decree can be passed notwithstanding the fact that the defendant was dead. The Court may decide that notwithstanding the fact that the defendant was dead was brought to its notice and his heirs had not been brought on record, the Court had nevertheless the power to pass a decree. I am not suggesting that any Court would do so, but only supposing that it did. Suppose the Court then passed a decree against the dead defendant, would the decree be merely illegal on the footing that a Court can decide right or wrong, or would it be a nullity? I asked Mr. Pratap whether in such a case such a decree could only be sat aside in an appeal or revision or review but not attacked in collateral proceedings and with his characteristic fairness Mr. Pratap said that it would come to that.

133. I do not see any significant difference between a decree passed on compromise under the Hindu Marriage Act, 1955, and a decree against a dead person. Both are nullities as being without jurisdiction and as nullities can be attacked in collateral proceedings if such decrees are sought to be used against the person concerned.

134. Mr. Pratap then suggested that the appellant was now estopped from contending that the decree for judicial separation was a nullity. It is settled law that no doctrine of estoppel by res judicata can abrogate the duty of the Court. In any event estoppel must be raised by full and proper pleadings and this cannot be said to have been done.

135. I have already referred to the Supreme Court case in Kiran Singh v. Chaman Paswan, whore it has been held that a decree which is a nullity can be attacked in collateral proceedings. On the facts before us, the petitioner sought to obtain a divorce only on the ground as contained in Section 13(1A)(i) that there was a decree for judicial separation. If that decree for judicial separation is a nullity, and I hold that it is a nullity, then the ground on the basis of which the decree for divorce was granted in Marriage Petition No. 118 of 1968 was non-existent. It then follows that divorce would itself, at the very least be illegal and the decree for divorce is liable to be set aside.

136. Mr. Pratap sought to distinguish the judgment of the Supreme Court in Kaushalya Devi v. K.L. Bansal, on the ground that no evidence was recorded in that case and that from the pleadings the matter proceeded to compromise, whereas in the case before us the evidence was recorded. I regret I am unable to see how this distinguishes the case, The ratio of the Supreme Court decision is clear and in my view the test laid down is that where it is provided by law that a particular decree can be passed on certain grounds then unless these grounds or at least one of them is shown to exist, the decree would be a nullity. As I have stated, if the learned trial Judge in Marriage Petition No. 5 of 1966 had given a finding on the evidence before him (however insufficient the evidence may have been) that the petitioner was deserted by the respondent, the matter would have been different. Curiously what the learned trial Judge stated in his judgment (after he had passed the decree on the purshis) was that the respondent herself could have got a decree on the evidence led in the case, meaning thereby that he was giving a finding that it was the petitioner who had deserted the respondent and not the other way round.

137. Mr. Pratap has also referred to a decision of the Madras High Court in Chinnapa Reddi v. Srinivasa RaoA.I.R [1935] Mad. 835, where a distinction is sought to be drawn between the inherent want of jurisdiction and want of jurisdiction on the ground which has to be determined by the Court. According to Mr. Pratap, in the first case the decision would be a nullity, but in the second case it would only be voidable. I do net see how this case, assuming I was to follow it, can make any difference, apart from the fact that any such view is impliedly overruled by the Supreme Court judgment in Kaushalya Devi's case. I have already discussed how the decree for judicial separation with which we are concerned is a nullity because the very foundation for it was not there and this is apparent on the face of the record. I have proceeded on the judgment of the learned trial Judge without even looking into the evidence as was recorded in that case i.e. Marriage Petition No. 5 of 1966.

138. Now, if the decree purported to have been passed by the trial Court in Marriage Petition No. 5 of 1966 was a nullity then the petitioner had no ground available to him under Section 13(1A)(i) of the Act when he filed the petition for divorce in a Marriage Petition No. 118 of 1968 apart from the ground that the respondent was of unsound mind. That ground, as I have stated, ho gave up. The petition for divorce was, therefore, without any statutory ground available to the petitioner and could not, therefore, survive.

139. In the circumstances and in this view of the matter, this appeal must be allowed and the decree for divorce passed by the trial Court in Marriage Petition No. 118 of 1968 is sot aside. The petitioner will pay the costs of the respondent.

Bhole, J.

140. I regret I cannot agree with my learned brother Mukhi, J. and the only point of difference appears to be whether the decree obtained by the respondent (I will use the word 'husband' hero for the respondent and 'wife' for the applicant here) under Section 10 of the Hindu Marriage Act, 1955 for a judicial separation is a nullity or is not a nullity. The husband had instituted proceedings against his wife in the year 1906 and had obtained a decree for judicial separation against the wife on September 5, 1960. The case of the husband in the Marriage Petition for divorce was that since the date of decree for the judicial separation, cohabitation was not resumed between the parties and that therefore ho is entitled to get a decree for divorce against his wife under Section 18 of the Hindu Marriage Act. The wife resisted his application on the ground that the decree for judicial separation was obtained by the husband on the basis of a compromise and that therefore that decree is invalid. Her complaint was that her husband represented to her that because he is appearing for LL.B. Examination, she should live separately and that afterwards she could come and stay with him; and that she should compromise on an agreed alimony of a sum of Rs. 60 per month; and because of that she signed the compromise purshis; she was compelled to act in these proceedings according to the wishes of her husband and it is for these reasons that the decree for judicial separation, which was passed was illegal. In the alternative she also prayed that if the decree for divorce was granted, she should be given an alimony at the rate of Rs. 100 per month.

141. It is on the basis of the pleadings of the parties that certain issues were raised by the trial Court and it found that the decree was quite legal, that cohabitation was also not resumed after the decree for judicial separation and that therefore a decree for divorce as prayed by the husband should be passed and it did pass a decree. Against that decree for divorce an appeal was filed before the learned Joint Judge, Poona, who also found that the husband had obtained a decree for a judicial separation; that there was no resumption of cohabitation between the husband and the wife and that the decree was quite legal. On the basis of these findings the learned Joint Judge dismissed the appeal with costs. It is this decree passed by the learned Joint Judge, Poona that is challenged here. The only point, therefore, that arises here for consideration is whether this decree passed by the learned Joint Judge is legal and proper.

142. Two points are raised here by Mr. Naik, the learned advocate for the appellant-wife. The first point is that subsequent conduct of parties after the decree for judicial separation was passed, should be considered and that relief sought by the husband here should not be granted, because according to him, the husband is taking advantage of his own wrong for the purpose of obtaining relief. It is his complaint that the wife was ready to go and resume cohabitation with the husband but the husband was never ready for it. It is this conduct of the husband which according to Mr. Naik should be taken into consideration and it is on the basis of this conduct of the husband which is a 'wrong' under Section 23 of the Hindu Marriage Act, 1955, according to Mr. Naik, that he should not be given any relief. The parties wore married on December 12, 1957. After that she stayed according to her for about twenty-one days and according to the husband six days and no more with him. Except for this period they wore separate and the wife was living with her father at Sholapur and the husband at Poona. There was some correspondence between the parties and ultimately a petition for judicial separation was filed by the husband in the year 1966. The husband obtained a decree for judicial separation on September 5, 1966. The wife wanted to go to the husband but he refused to allow her and in this way they remained separated after the decree of the judicial separation. The point, therefore, that arises here for consideration is whether the husband in not taking back his wife after the decree for judicial separation can be said to have committed a 'wrong' as defined in Section 23 of the Hindu Marriage Act and if he has committed a wrong, can ho be granted the relief, which he seeks. Under Section 10(2) of the Hindu Marriage Act whore a decree for judicial separation has been passed it shall no longer be obligatory for the petitioner to cohabit with the respondent but the Court may on the application by petition of either party and on being satisfied of the truth of the statement made in such petition rescind the decree if it considers it just and reasonable to do so. Evidently, therefore whore ft decree for judicial separation has been passed by a Court, it is not at all obligatory for the husband to resume cohabitation with his wife. There may be circumstances however where after a decree for judicial separation was obtained, there was reconciliation between the husband and the wife and an application made to the Court accordingly. It is in these circumstances that a Court can investigate into the truth of the statement made in that application and rescind the decree if it considers it just and reasonable in the circumstances of the case. The statute, therefore, is dear and it is not at all obligatory on the husband to cohabit with the respondent. The complaint of the wife hero, therefore, that although she was willing to go to her husband, she was not allowed by him and that because she was not allowed, therefore it should be considered as a 'wrong' under Section 23 of the Hindu Marriage Act is without substance. Mr. Naik relies on Laxmibai v. Laxmichand (1967) 70 Bom. L.R. 80 for his contention that this conduct is actually a wrong done by the husband and that therefore ho should not be given any relief. I do not think this contention is of any substance because in that case there was already a decree for restitution of conjugal rights and the husband who approached the Court for divorce refused to comply with that decree for restitution of conjugal rights obtained by the wife. Chandrachud J., as he then was, refused to grant a decree of divorce on the ground that the party seeking to get a divorce was taking advantage of his own wrong as contemplated by Section 23(1)(a) of the Hindu Marriage Act. That case, therefore, will be of no help to Mr. Naik. In the other cited case Madhukar v. Saral : AIR1973Bom55 the respondent wife had obtained a decree for judicial separation on the ground of desertion and cruelty. The ground given by the learned trial Judge for dismissal of the husband's petition for divorce was that Section 13(1A) of the Hindu Marriage Act was controlled by Section 23 of the said Act. He had observed that the decree for judicial separation in favour of the respondent was passed on the ground of cruelty and because the respondent was ill-treated, the learned trial Judge took the view that after the decree for judicial separation was passed, the petitioner should have assured the respondent that ho would treat her well but there was no evidence before the Court that the petitioner had at any time assured the respondent that he would treat her well; as there was no evidence that he had asked her to come back and stay with him and that she had refused, the petitioner was taking advantage of his own wrong and was not entitled to the relief under Section 13(1A). It, however, appears that in that case the respondent-wife remained absent and the case was decided ex parte. She was also absent in the High Court. Nain J., who heard the appeal, was unable to spoil out any such obligation against the petitioner from Section 12(1A) and according to him if there was no such obligation on him there was no question of his being in the wrong by not carrying out such obligation such as to disentitle him to the relief of divorce. The order of the trial Court, therefore, was sot aside. This case, therefore, does not help Mr. Naik.

143. But a Division Bench of this Court, where my learned brother Mukhi J. was a party in Jethabhai v. Manabai (1973) 76 Bom. L.R. 304, took a view that there was no obligation on the part of the husband after obtaining the decree for judicial separation to resume cohabitation even if the wife wants it. Both my learned brothers Nathwani and Mukhi JJ. took the view that there was no obligation on a party to make any efforts to resume cohabitation with the other spouse. I agree, with respect, to this proposition of law enunciated by the Division Bench. I, therefore, do not think that the first point raised by Mr. Naik is of any consequence.

144. The other important point raised by him is that the decree for judicial separation obtained by the husband is a nullity. It must at once be stated here that the wife never raised this question of nullity even in her written statement. The issue which was framed by the trial Court as well as by the appellate Court was not an issue, whether the decree for a judicial separation was a nullity or not, but the issue framed was whether the decree passed in Marriage Petition No. 5 of 1966 was illegal. The question whether that decree was a nullity appears, therefore to have been raised here for the first time. Of course if the decree in fact is a nullity, it is not even necessary for us to raise such an issue and we can at once ignore that decree because it is in fact a nullity. Lot us, therefore, see whether that decree for judicial separation is a nullity.

145. What is nullity? In Kiran Singh v. Chaman Paswan : [1955]1SCR117 , the Supreme Court was dealing with a decree passed without jurisdiction and during the course of its judgment observed that it is a fundamental principle that the decree passed by a Court without jurisdication is a nullity and that its invalidity should be set up whenever and wherever it is sought to be enforced or rolled upon even at the stage of execration and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a decree cannot be cured even by consent of parties. The decree, which is a nullity, should be as good as non-existent. It is in fact void ab-initio. It does not exist from its very inception. There is no legal force to that decree at all and therefore it is not binding. It cannot be recognised from the very outset. The error committed by the Court in passing such a decree is such that it is incurable. The point, therefore, that arises here for consideration is whether the decree obtained by the husband for judicial separation is a nullity.

146. It is also better to remember that when a plea of nullity of a decree is raised either while executing that decree or in collateral proceedings, that nullity must be apparent on the face of the decree. That nullity should not be such as could only be found on the ascertainment of facts, on the sifting of material or on search of some relevant data. The nullity should be quite apparent. This Court has also taken this view in Krishnan Nair v. Ramchandra : AIR1956Bom268 . Shah J. in that case after relying on Kiran Singh v. Chaman Paswan and Mohanlal v. Benoy Kishna : [1953]4SCR377 expressed the view (p. 269):

If for purposes of ascertaining whether the Court which passed it had or had no jurisdiction to pass it, it is necessary to make investigation as to the jurisdiction of the Court then the executing Court has no competence to permit that investigation to be made.

Therefore, whenever there is a plea of nullity of a decree such a plea should be entertained only when the nullity is apparent on the face of the decree and when it is not at all necessary to make any investigation as to the jurisdiction of the Court to pass such a decree which is a nullity.

147. We should also distinguish when such a plea is raised, a plea of nullity from a plea which is contrary to the provisions of law. This Court in Harkishandas v. Gulabdas : AIR1956Bom513 , was dealing with Section 38 of the Civil Procedure Code and has observed as under (p. 516):

In determining the jurisdiction of the executing Court to entertain pleas under Section 38 Civil P.C., it is always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenge the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is a nullity and so cannot be executed, it would be open to the executing Court to entertain the plea.

On the other hand, if the plea is that the decree is contrary to law in the sense that In passing the said decree certain provisions of the law have been ignored or contravened that would not necessarily make the decree a nullity and allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings.

Therefore a decree can be a nullity and the decree in a given case can be contrary to the provisions of law.

148. In a given case a Court also sometimes exercises a jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested or act in the exercise of jurisdiction illegally or with material irregularity. It is a well-settled principle that once a Court assumes jurisdiction, it does not exercise its jurisdiction illegally or with material irregularity simply because it decides a question of law or fact erroneously. Where a Court has jurisdiction to determine a question and determines it, it cannot be said that it has acted illegally or with material irregularity because it has given an erroneous decision on a question of fact or even on law. Whether a Court decides rightly or wrongly, it has jurisdiction to decide a case and oven if it decided it wrongly, it cannot be said it exorcised its jurisdiction illegally or with material irregularity. Even therefore in cases where a Court exercises its jurisdiction but does it wrongly, it cannot be said that the decree passed by such a Court is a nullity. Lot us now therefore test the decree for judicial separation. The husband had filed Marriage Petition No. 5 of 1966 for obtaining a decree for judicial separation firstly on the ground of his wife being of unsound mind and secondly on the ground that she had abandoned him for a period of more than nine years. The wife resisted the petition of her husband and denied the allegation but admitted that because she had suffered from fever as a result of which her brain was slightly affected, therefore she had to be treated in a mental hospital at Yerwada for a month and that she married one and half years after her discharge from the mental hospital. She admitted having left her husband after living with him only for some days at Poona. The husband examined himself during the course of these proceedings and the wife also examined herself. It appears that efforts were also made for reconciliation. Those efforts failed. At the fag end of the proceedings a compromise purshis on behalf of both the parties was filed on December 5, 1966, The compromise purshis is as follows:

In this matter compromise purshis on behalf of the applicant and the respondent is as follows:-In view of the evidence led by the applicant and the Respondent before the Court to-day, it appears that the applicant and the Respondent cannot live together as husband and wife. Therefore there is no objection from the applicant and the Respondent to pass by this Court the decree for judicial separation. The applicant is willing to pay a sum of Rs. 60 per month to the Respondent as maintenance, from to-day. It is therefore prayed that the decree may be passed accordingly. This is the purshis. Dated this 5th day of September 1966.

The learned Joint Judge passed the following order:

This joint settlement purshis was given by the parties and their pleaders after all the evidence in the Court was recorded both oral and documentary. Parties present admit terms of this settlement purshis, read out and fully explained to them, in the presence of their advocates. Recorded. Decree in terms of this purshis as per settlement recorded in the same and under judgment to follow.

The learned Judge framed during the proceedings the following issues:

(1) Whether the petitioner husband proves that the respondent has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition?

(2) Does he in the alternative prove that she has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition?

(3) Is the petitioner entitled to a decree of judicial separation sought; and if so what order as to alimony?

(4) What decree or order? Findings (1) Not proved; (2) and (3) Yes; and Rs. 60 per month from September 5, 1966 onwards and (4) as below. The decree as drawn is as follows : 'The suit coming on for hearing and final disposal before the Second Joint Civil Judge, S.D., Poona, on the 5th day of September 1966 when Shri Neurgonkar, pleader for the applicant and Shri Bhalikar pleader for the respondent were present, the following order is passed. The Application for Judicial Separation is decreed in favour of the applicant. The applicant shall pay regularly monthly maintenance of Rs, 60 to the respondent from September 5, 1966. The applicant shall pay first of the such instalment of maintenance on or before October 4, 1960. The subsequent instalments shall be paid on the same date from month to month. The parties to bear their own costs.

Bill of Costs

Applicant RespondentRs. 64.50 Rs. 23.40Dated this 5th day of the month of September 1966.

Given under my signature and seal of the Court.

Sd/-G.K. Joshi.

2nd Joint Civil Judge, S.D. Poona,

3-10-1966.

149. Now, therefore, the point is whether the decree for judicial separation as passed by the loamed Judge in the petition for judicial separation can be said to be a nullity. Admittedly there were pleadings of the parties. The evidence was also recorded during the course of the proceedings. A compromise purshis was given during the proceedings. The learned Judge after passing an order on the compromise purshis delivered the judgment after framing the necessary issues on the points of dispute between the parties and after answering these issues. An order was then finally passed. A decree was thereafter drawn in terms of the final order passed by the learned Judge. Can such a decree passed in the above circumstances be said to be a decree in nullity? Can it be said that such a decree can have no legal force? Can it be said that that decree cannot be recognised? Can it be said that it was void ab initio and that it did not exist from its very inception? Can it be said that an error committed if any by the learned Judge is such an error that the decree became a nullity? It must be said that the wife, who was perhaps aggrieved by the decree, did not go in appeal and challenge either the judgment or the decree of the trial Court. She seems to have got up only after her husband after obtaining the decree for judicial separation and waiting for more than two years, filed a suit for obtaining divorce.

150. Mr. Naik contends here that the decree for judicial separation is a nullity because the decree is in terms of compromise purshis. He relies for this purpose on the observations of the Supreme Court in Kaushalya Devi v. K.L. Bansal : [1969]2SCR1048 . The Supreme Court in that case was dealing with Section 13 of Delhi and Ajmer Rent Control Act. In that case the parties had entered into a compromise that the decree for ejectment be passed against the defendant executable after certain date and that a new standard rent at a certain amount be fixed to be payable from a certain date and the Court recorded the following order:

In view of the statement of the parties' counsel and the written compromise a decree is passed in favour of the plaintiff against the defendant.

In such circumstances the Supreme Court has observed (p. 839):.In Bahadur Singh's' case, Civil Appeals Nos. 2464 and 2468 of 1966, decided 16-10-1968 this Court held that the decree passed on the basis of an award was in contravention of Section 13(1) of the Act because the Court had passed the decree in terms of the award without satisfying itself that the ground of eviction existed. Bachawat, J. speaking for the Court, observed that 'on the plain wording of Section 13(1) the Court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution'. This Court, accordingly declared inter alia that 'the decree' in so far as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed.

It is, therefore, the contention of Mr. Naik that the decree in the instant case is more or less on par with the decree, which was before the Supreme Court and therefore this decree should also be treated as a. nullity. We do not know what Section 13 of the Delhi and Ajmer Rent Control Act was but the judgment of the Supreme Court shows that except for the order, which I have mentioned above, the Court neither dealt with the case on merits nor framed any issues on which the parties were in dispute nor passed any order as a result of the judgment. The only order, which was passed in the case and which was before the Supreme Court was that in view of the statement of the parties counsel and the written compromise the decree was passed in favour of the plaintiff and against the defendant. Can we, therefore, compare such a decree which was based entirely on the compromise of the parties with the decree, which is before us? I am afraid our facts are different to the facts of the case before the Supreme Court.

151. It is true that after the evidence was recorded by the parties the parties also passed a compromise purshis as stated above. It is also true that the Court has recorded that the decree is in terms of the purshis and as per the settlement recorded and also under the judgment which will follow. But can we forget the judgment recorded after this by the Court and base all our conclusions only on the interim order passed by the learned Judge on the purshis? This order not only says that the decree should be in terms of the purshis but also under the judgment, which was to follow, We have read the judgment and it cannot in my view be said that the decree with which we are concerned is the decree only in terms of the purshis and therefore is a nullity.

152. We have seen that when a plea of nullity is taken, the nullity should be noticed on the face of the decree. We cannot investigate and find out whether the decree is a nullity or whether it is not a nullity. We cannot ascertain certain facts or sift certain material or search for certain relevant data before we arrive at the nullity part of the decree. In that view of the matter therefore the decree for judicial separation cannot be said to be a nullity.

153. It is possible the learned Judge might not have assessed the evidence properly. It is not uncommon to see Judges emphasizing one aspect of the evidence more than the other part of the evidence. We got also cases where they lamentably disregard certain important circumstances. It is also possible the approach of the learned Civil Judge may be different to what it ought to have been. Can we at this stage of the proceeding sit in appeal against an order and judgment from the decree for judicial separation and try to see whether this is a proper order or an improper order? Even if as Mr. Naik says the learned Judge did not correctly find whether there were grounds or whether there wore no grounds for judicial separation that will be no argument for the purpose of dubbing that approach as nullity. In fact oven if the learned civil Judge has approached in that way, the decree passed by him cannot be a nullity. In order that the decree should be a nullity, the error must be such that it is incurable. The error must be such that the decree has no legal force from the beginning and is not binding at all. The decree from its very inception must be non-existent. It certainly does not depend upon the approach of the civil Judge or upon the method of assessment of the evidence or upon his coming to the conclusion, correct or incorrect, on issues of facts. This contention of Mr. Naik, therefore, is not correct.

154. Mr. Naik relies on some English cases. They are:

(1) Pritchard, Decd., In re [1963] 1 Ch. D. 502,

(2) Brady v. Barrow Steelworks, Ltd. [1965] 2 All. E.R. 639 and (3) Woodland v. Woodland [1928] All. E.R.690. The latter two cases are more or loss based on the principle enunciated in Pritchard, Decd., In re. The British case was a case of a widow of a testator, who was asking for a reasonable provision out of the testator's estate under the Inheritance (Family Provision) Act, 1938. The proceedings were begun by the preparation of an originating summons, which on October 9, the day before expiry of the six-month period of limitation under the Act of 1938 was accepted and scaled in the local district registry. Further steps Were thereafter taken by the parties under the direction of the District Registrar; but in January 1962 the District Registrar informed the parties that having regard to the terms of R.S.C., Order 54 Rule 4B he doubted too late to start the proceedings, therefore in the central office an application was made to the registrar asking why the cause, having irregularly issued from the district registry instead of the central office should not be removed to the central office. The registrar refused the application holding that the originating summons was a nullity and all subsequent steps taken by the parties or by the Court wore ultra vires. On a summons by the widow in the Chancery Division asking that the proceedings be transferred to London, Wilberforce J. held that the originating summons was a nullity and all steps under it void. On appeal it was held (Lord Denning M.R. dissenting) that the originating summons had never been issued and was a nullity ab initio, for whore an action was commenced by an originating summons which was purely a creature of the Rules of the Supreme Court and where the summons was not issued in accordance with the only relevant rule, Order 54 Rule 4B that constituted a fundamental failure to comply with the requirement of Section 225 of the Supreme Court of Judicature (Consolidation) Act, 1925 relating to the issue of civil proceedings; and the Court had no power under R.S.C. Order 70, Rule 1 to cure proceedings which was a nullity. Accordingly, as the limitation period under the Act of 1938 had expired, the widow had no remedy. Lord Denning M.R. held that this was a case of a mere irregularity. Upjohn L.J. held that a review of the authorities on nullities and irregularities establishes as classes of nullity (1) proceedings which ought to have been served but have never come to the notice of the defendant at all; (2) proceedings which have never started at all owing to some fundamental defect in issuing them; and (3) proceedings which appear to be duly issued but fail to comply with a statutory requirement. In my view this case also does not help Mr. Naik because this case deals with the initiating of the proceedings and the issue of notice before initiating proceedings; this case deals with the defect in the issue of a notice, which was a non-compliance of a statute. In other words it deals with the jurisdiction of the Court on the issue of process but Mr. Naik relies on the case Finnegan v. Cementation Co. Ld. [1953] 1 Q.B. 688. Mr. Naik says that this case deals with one of the aspects of nullity. This was a case of a widow, who sued for damages under the Fatal Accidents Act. The action had to be commenced within a year of the death. She sued within the year but by a slip she was described in the title and the indorsement as 'administratix'. She was not allowed to amend so as to describe herself 'as widow'. She was penalised for the slip by finding hor claim barred by the statute. It is mentioned in this judgment that since the decision of that case English Courts advanced considerably and began to retrace their stops. That case also in my view will not help Mr. Naik.

155. Therefore, this is not a case whore the decree for judicial separation is a nullity. Neither can it be said to be non-existent nor it can be said that the error was such that it was incurable. In fact the question of jurisdiction does not arise in that decision at all. As mentioned earlier the wife also has not taken a plea of nullity but has merely alleged that the decree was illegal and an illegal decree is different from a decree in nullity. If that is so, then the appellant cannot succeed.

156. I will, therefore, have to decide this appeal against her. I, therefore, dismiss her appeal.

ORDER OF THE COURT

157. Since we differ, the matter may be placed before the Hon'ble the Chief Justice for further direction.


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