Somnath Iyer, J.
(1)This is a husband's appeal from an order made by the Principal Civil Judge, Bangalore, refusing a decree for divorce under Section 13(1)(viii) of the Hindu Marriage Act. It was in the year 1939 that the two spouses were married in Gujaranwala which is now in Pakistan. They resided together for sometime in Rawalpindi which is also now in Pakistan. Where there was a partition of the country, the two spouses began to live in India permanently. The husband is in Bangalore, and the wife is in Delhi.
(2) On July 23, 1959, the husband made an application to the Principal District Judge, Bangalore, in Miscellaneous No. 200/1959 for a decree for judicial separation on the ground of desertion on the part of the wife. That decree was made in his favour on September 28, 1959. On March 9, 1962, the husband made an application under Section 13(1)(viii) of the Hindu Marriage Act for a decree of divorce on the ground that the decree for judicial separation had not been followed by any subsequent resumption of co-habitation for a space of two years or upwards after the decree was made. Both on the occasion when the husband sought a decree for judicial separation and also when he sought a decree of divorce, the wife did not appear. The application for a decree of divorce was made by the husband to the Court of the Principal Civil Judge, Bangalore, since when that application was made, he had been invested with jurisdiction to decide applications presented under the Act.
(3) The Principal Civil Judge dismissed the husband's application on the ground that he had no jurisdiction to hear and decide it. He depended in support of his conclusion on Section 19 of the Act which provides that every application under the Act shall be presented to the District Court within the local limits of whose ordinary original Civil Jurisdiction the marriage was solemnised or the husband and wife reside or last resided together. The words 'District Court' occurring in this Section as defined by Section 3(b) of the Act includes other Civil Courts specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters deals with by the Act and since the Principal Civil Judge's Court was one of the Courts so specified the husband's application was made to that Court. But the Civil Judge, taking the view that since the marriage was not solemnised within his jurisdiction and since the spouses neither reside nor last resided together within his jurisdiction at any relevant point of time, he had no jurisdiction to hear the application, dismissed it. It is from this order that the husband appeals.
(4) For the first time in this litigation, the wife has entered appearance before this Court and Mr. Nazereth appearing for her, opposes the appeal.
(5) The argument maintained by Mr. Suri appearing for the husband was that we should say that the Civil Judge should have made a decree of divorce in this case since, if he declined Jurisdiction to make that decree, the husband would have no remedy whatsoever for the enforcement of a right expressly conferred by the Act on him.
(6) In support of that submission, he depended upon a decision of the Rajasthan High Court in Neelakantan v. Neelakantan, . That was a case in which the marriage was solemnised in England, but, when the husband returned to India, the wife refused to join him. When there was an application under the Special Marriage Act for a divorce, the question arose whether under Section 31 of that Act which corresponds to Section 19 of the Hindu Marriage Act, the District Judge of Jodhpur to whom the application was presented, had jurisdiction to give the divorce. That question arose since the marriage had been solemnised in England and the spouses had never resided together in India. Modi, J. was of the view that the wife's domicile became her husband's domicile after the marriage, that the Courts of the husband's domicile had jurisdiction to decide a matrimonial dispute between the spouses and that the District Judge of Jodhpur who was presiding over a Court within the husband's domicile, could grant the divorce on principles of Private International Law. That view expressed by Modi, J. as can be seen from the discussion was principally influenced by the fact that in his opinion, any other view would leave the husband without a remedy.
(7) Mr. Nazereth appearing for the wide has asked us to say that we should not concur in the view expressed by Modi, J. and has pointed out that the impression in the mind of the learned Judge that the husband would have been without a remedy if the divorce sought by him was not granted, overlooks the provisions of the Indian Divorc Act, under which the husband who was a Christian would have sought a divorce under that law.
(8) It does not appear to us that we need embark upon an investigation into the correctness of the postulates placed before us by Mr. Suri on behalf of the husband or by Mr. Nazereth on behalf of the wife. It seems to us that this appeal should succeed on a much shorter ground.
(9) When the husband made an application for a decree for judicial separation on July 23, 1959, that application was not opposed by the wife. The District Judge did investigate the question at one stage in those proceedings whether he had jurisdiction to make the decree and reached the conclusion that he had. So it was that he made a decree for judicial separation on September 28, 1959.
(10) Now, Section 13(I)(viii) of the Hindu Marriage Act creates a right to a decree of divorce in cases where there has been non-resumption of cohabitation for a space of two years and more after the passing of a decree for judicial separation. We cannot accede to the view suggested by Mr. Nazareth that we should regard the earlier decree for judicial separation as a nullity, since, according to him, there was neither the solemnisation of the marriage nor the required residence of the spouses within the Jurisdiction of the District Judge. The argument overlooks the essential distinction between absence of territorial Jurisdiction and absence of inherent jurisdiction which was explained by the Supreme Court in Kiran Singh v. Chaman Paswan, : 1SCR117 , thus :
'.......With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice............The policy underlying Ss. 21 and 99 C.P.C. and S. 11 of the Suits Valuation Act is the same, namely that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits...' (page 342).
(11) Although Mr. Nazereth maintained an argument to the contrary, it seems to us that the objection to Jurisdiction now advanced on behalf of the wife in the context of the earlier application for judicial separation is an objection of a technical nature amounting as it plainly does to an objection to territorial Jurisdiction. If an appellate Court could not have listened to that objection after an appeal had been preferred from a decree for judicial separation made by the District Court on the earlier occasion, it should follow that we should not listen to that objection in these proceedings in which the application was for a decree of divorce on the foundation of the earlier decree for judicial separation.
(12) The authoritative elucidation of the position by the Supreme Court in the above case weakens the decision in Kunja Mohan v. Mohindra Chandra, AIR 1923 Cal 619 on which Mr. Nazareth depended. That was a case in which the sale held by an executing Court within whose jurisdiction the properties sold were not situate, was pronounced to be void' in collateral proceeding.
(13) If therefore, it is not open to the wife to call in question the decree for judicial separation made by the District Judge, it is not, in our opinion open to her to say that the application for a decree of divorce which the husband subsequently sought should not be made by the Court of the Civil Judge on whom devolved the jurisdiction which the District Judge originally possessed. In effect, an application under S. 13(I)(viii) of the Hindu Marriage Act is the continuation of an application presented under Section 10 for a decree for judicial separation. The right to a decree of divorce is what flows from a disobeyed decree for judicial separation and it would be incongruous in our opinion for anyone to suggest that although a decree for judicial separation was properly made a decree of divorce which is what should necessarily follow a disobedience of the decree for judicial separation should not be made by the same Court which made the earlier decree or by another Court which inherits its jurisdiction. In our opinion the Civil Judge was not, therefore, right in declining jurisdiction.
(14) In the view that we take, it is not necessary to discuss the decision in Nalinkhya v. Shyam Sunder, : 4SCR533 on which Mr. Nazereth depended in which it was explained that the Court cannot supply a casus omissus.
(15) It is not disputed before us that there had been no resumption of cohabitation by the spouses for two years and more after the passing of the decree for judicial separation. That being so, this is a case in which in reversal of the decision of the Civil Judge, we should make in favour of the husband, a decree of divorce as prayed for by him. That decree we hereby make and we hereby dissolve the marriage of the appellant and the respondent by that decree.
(16) In the circumstances, we make no order as to costs.
(17) Appeal allowed.