Skip to content


Yankappa Timmappa Kolachi Vs. Shavakka - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 220 of 1957
Judge
Reported inAIR1960Kant265; AIR1960Mys265
ActsHindu Marriage Act, 1955 - Sections 4, 9, 19 and 29(3)
AppellantYankappa Timmappa Kolachi
RespondentShavakka
Excerpt:
.....as it stands, its retrospective character must be clearly expressed. it is a well established principle that such statutes must be construed strictly, and not given a liberal interpretation. ' bearing in mind these well recognised principles we have to see whether from the relevant provisions of the 'act' it is possible to conclude, as a necessary intendment, that parliament took away the jurisdiction of the ordinary civil courts even in pending matters. - (1) when either the husband or the wife has without reasonable excuse, withdrawn from the society, of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground..........there any provisions which specifically take away the jurisdiction that existed in the ordinary civil courts to try suits for restitution of conjugal rights. hence we have to consider whether the jurisdiction of the ordinary civil courts was taken away by necessary implication.(3) it is now well settled that a statute relating to matters of procedure operates retrospectively, unless otherwise provided in the statute. but this principle is not applicable when the statute in question affects the jurisdiction of a court. provisions relating to jurisdiction are more than matters of procedure. they touch a right in existence at the passing of the statute. see colonial sugar refining co., ltd. v. irving, 1905 ac 369. in united provinces v. mt. atiqa begum , sulaiman j. observed.....
Judgment:

(1) The respondent sued the appellant, who is her husband, in Civil Suit No. 229 of 1954, in the Court of the joint Civil Judge, Junior Division, Bagalkot, for a declaration that the divorce deed marked as Exhibit 23 in this case dated 26-8-1954 was obtained from her by the defendant by means of fraud and coercion. She has also asked for restitution of conjugal rights. Both the Courts below have concurrently come to the conclusion that the deed Ex. 23 was taken by means of fraud and coercion and as such the same is not valid. They also decreed the plaintiff's claim for restitution of conjugal rights. The correctness of these conclusions cannot be, and has not been, canvassed in this Court. The only point argued before this Court is that the trial Court had no jurisdiction to try the suit in view of the provisions contained in Ss. 4, 9, 19 and 29(3) of the Hindu Marriage Act (Act XXV of 1955) which shall be hereinafter called the 'Act'.

(2) The suit out of which this appeal arose was instituted on 28-8-1954. The 'Act' came into force on 18-5-1955. There is no dispute that on the date when the suit was instituted, it was properly instituted and that the learned Joint Civil Judge, Junior Division, Bagalkot had jurisdiction to try the same. The contention advanced on behalf of the appellant is that after the 'Act' came into force the learned Joint Civil Judge lost jurisdiction to try the suit and the plaint should have been returned for presentation to the proper Court. Is this contention correct? Admittedly there are no specific provision in the 'Act' which statutorily transfer a suit of this nature to the appropriate Court constituted under the 'Act'. Nor are there any provisions which specifically take away the jurisdiction that existed in the ordinary Civil Courts to try suits for restitution of conjugal rights. Hence we have to consider whether the jurisdiction of the ordinary Civil Courts was taken away by necessary implication.

(3) It is now well settled that a statute relating to matters of procedure operates retrospectively, unless otherwise provided in the Statute. But this principle is not applicable when the statute in question affects the jurisdiction of a Court. Provisions relating to jurisdiction are more than matters of procedure. They touch a right in existence at the passing of the statute. See Colonial Sugar Refining Co., Ltd. v. Irving, 1905 AC 369. In United Provinces v. Mt. Atiqa Begum , Sulaiman J. observed :

'Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. It is a well recognised rule that statutes should, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability. It is a well established principle that such statutes must be construed strictly, and not given a liberal interpretation.'

Bearing in mind these well recognised principles we have to see whether from the relevant provisions of the 'Act' it is possible to conclude, as a necessary intendment, that Parliament took away the jurisdiction of the ordinary Civil Courts even in pending matters. The relevant provisions of the 'Act' are Ss. 4, 9, 19 and 29(3).

Section 4 :

'Overriding effect of Act.--Save as otherwise expressly provided in this Act.

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

Section 9 :

'Restitution of conjugal rights.-

(1) When either the husband or the wife has without reasonable excuse, withdrawn from the Society, of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'

Section 19 :

'Court to which petition should be made--Every petition under this 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.'

None of these provisions show that they have any retrospective operation. On the other hand they purport to be prospective in character. The only other relevant provision that bears on the point at issue is Section 29(3). This section reads :

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

It is true that this provision is silent about the pending proceedings for restitution of conjugal rights, and omission to refer to these proceedings has given support to the argument that Parliament did not want to save the pending proceedings in the matter of restitution of conjugal rights. As mentioned earlier, what is required is not the saving of pending proceedings but taking away the jurisdiction of the ordinary Civil Courts to decide pending proceedings.

To repeat myself, no provision in the Act has taken away the jurisdiction of the ordinary Civil Courts in the matter of pending proceedings. Merely because the Legislature omitted to include pending proceedings for restitution of conjugal rights in S. 29(3), it is not safe to infer that those proceedings have become sterile. Section 29(3) seems to have been incorporated in the 'Act' as a matter of abundant caution. Even without that provision the ordinary Civil Courts would have continued to have jurisdiction to try and dispose of pending proceedings which it instituted after the Act came into force, should have to be in accordance with S. 19.

In other words S. 29(3) is not a power conferring provision. It merely purports to be a saving clause. Unless it is shown that the jurisdiction of the Ordinary Civil Courts would have lapsed on the 'Act' coming into force, S. 29(3) cannot be said to serve any useful purpose. It would be a wrong process of reasoning to assume an affirmative from a negative--to assume that the Legislature removed the jurisdiction of the ordinary Civil Courts to try certain pending proceedings because it purported to save some out of those proceedings. See Gardner v. A. Lucas, (1878) 3 AC 582. In that case Hatherley observed :

'I think Mr. Benjamin pointed out one clause which said that it should not have any effect upon any matter anterior to the passing of the Act. I can only say, in the language of conveyancing, it was ex majore cautela that that should be put in. I do not think that we could found any inference upon that but we should rather be led to expect the same phraseology employed in the particular clause in question where such meaning is sought to be conveyed.'

Though it violates one of the accepted canons of construction to assume that the Legislature by over sight omitted to include pending proceedings for restitution of conjugal rights in S. 29(3) I can find no other rational explanation for that omission. In Balwant Singh v. Sardarni Balwant Kaur, AIR 1957 Pepsu 1, the Pepsu High Court held that the ordinary Civil Court's jurisdiction to try pending cases for restitution of conjugal rights was not ousted by the Act. With respect I agree with that conclusion.

(4) The learned counsel for the appellant tried to seek support from the decision in Smt. Balwant Kunwar v. Addl. Munsiff Dehra Dun, : AIR1959All7 . But this decision is of no assistance to him as the proceeding in that case was commenced after the 'Act' came into force.

(5) In the result, the appeal fails and the same is dismissed with costs.

(6) Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //