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Tavawwa Vs. Chinnappa Mallapa Balamatti - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 539 of 1959
Judge
Reported inAIR1962Kant130; AIR1962Mys130; ILR1961KAR519
ActsHindu Marriage Act, 1955 - Sections 3, 9 and 19; Bombay Civil Courts Act - Sections 25
AppellantTavawwa
RespondentChinnappa Mallapa Balamatti
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateA.V. Albal, Adv.
Excerpt:
.....is scope for improvement cannot be a ground for any interference in the matter, in the totality of the factual and legal matrix of the present case. improvement is always a process and not an occurrence. directions are issued to achieve a perspective distributive strategy. - the learned civil judge (senior division) bijapur held that the appellant had failed to establish cruelty and ill-treatment; the learned district judge further held that the appellant had failed to establish cruelty and ill-treatment and that she had without reasonable excuse withdrawn from the society of the respondent......bijapur. the said petition was transferred by the district judge for trial and disposal to the civil judge (senior division) bijapur. the appellant resisted the petition. it is not necessary to recite the various allegations on which she resisted the petition.it is enough to state for the purposes of this appeal that the main defence of the appellant was that she was cruelly treated by her parents-in-law while she was with the respondent and was forced to abandon her husband and run away to her parent's place for safety. the respondent denied the acts of cruelty and ill-treatment. the parties adduced their evidence to substantiate their respective contentions. the learned civil judge (senior division) bijapur held that the appellant had failed to establish cruelty and ill-treatment;.....
Judgment:

Hombe Gowda, J.

(1) This is a defendant's Second Appeal and arises out of proceedings started by the respondent against the appellant for a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. The Courts below have concurrently held that the appellant has withdrawn from the society of the respondent without any reasonable excuse and have accordingly granted a decree in favour of the respondent for restitution of conjugal rights.

(2) The appellant and the respondent who are permanent residents of Jamkhandi Taluka, were married about eight years prior to 6/11/1956 the marriage; disputes arose between them subsequently and as a result the appellant withdrew from the company of the respondent and went away to her parent's house and refused to rejoin the respondent to give him conjugal happiness and comforts. The respondent, therefore, instituted proceedings under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights by presenting a petition to the District Court, Bijapur. The said petition was transferred by the District Judge for trial and disposal to the Civil Judge (Senior Division) Bijapur. The appellant resisted the petition. It is not necessary to recite the various allegations on which she resisted the petition.

It is enough to state for the purposes of this appeal that the main defence of the appellant was that she was cruelly treated by her parents-in-law while she was with the respondent and was forced to abandon her husband and run away to her parent's place for safety. The respondent denied the acts of cruelty and ill-treatment. The parties adduced their evidence to substantiate their respective contentions. The learned Civil Judge (Senior Division) Bijapur held that the appellant had failed to establish cruelty and ill-treatment; that she had no reasonable grounds or excuses to withdraw from the society of the respondent and there was absolutely no legal grounds why the decree for restitution of conjugal rights as prayed for by the respondent should not be granted. He accordingly decreed the suit for restitution of conjugal rights against the appellant. The appellant challenged the correctness and legality of the decision of the learned Civil Judge (Senior Division), Bijapur by preferring an appeal to the District Judge Bijapur.

One of the legal grounds taken by the appellant in the memorandum of appeal filed by her in the Court of the District Judge was that the learned Civil Judge (Senior Division) Bijapur had no jurisdiction to try and dispose of the petition arising under the Hindu Marriage Act, 1955. It was alleged that since the Civil Judge (Senior Division) Bijapur was not exercising ordinary jurisdiction over Jamakhandi Taluka where the parties were living, he had no jurisdiction to try the application presented by the respondent for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. The learned District Judge rejected the contention as untenable.

He held that by virtue of the power given to it under Section 3(b) of the Hindu Marriage Act, 1955, the Government of Bombay had issued a Notification No. H. M. A.. 1055/52067 dated 1st September 1955 specifying the Courts of the Civil Judge, (Senior Division) as having jurisdiction in respect of matters dealt with in the said Act with in their respective jurisdiction and in view of the specification it is idle for the appellant to contend that the learned Civil Judge (Senior Division) Bijapur who was exercising jurisdiction (special) in respect of such suits and proceedings of civil nature as may arise within the local jurisdiction of the Courts in Bijapur District presided over by Civil Judge (Junior Division) and wherein the subject- matter exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined in section 24 of the Bombay Civil Courts Act, 1896 had no jurisdiction to decide the case. The learned District Judge further held that the appellant had failed to establish cruelty and ill-treatment and that she had without reasonable excuse withdrawn from the society of the respondent. He accordingly confirmed the decree for restitution of conjugal rights against the appellant. It is against this judgment and decree passed by the learned District Judge Bijapur that this Second Appeal has been presented by the appellant.

(3) The fact that the appellant and the respondent are Hindus and were legally married about years prior to the date of the presentation of the petition by the respondent under section 9 of the Hindu Marriage Act, 1955 is not disputed. It is also not disputed that the appellant withdrew from the society of the respondent about two years after the marriage and has been living with her parents ever since till the date of the petition. The Courts below have concurrently held that the defence of the appellant that because she was subjected to ill-treatment by her parents-in-law she was compelled to withdraw herself from the society of the respondent and run away from his house to the house of her parents for safety has not at all been established. This being a finding of fact cannot be interfered with in this Second Appeal.

(4) The only point for consideration is whether there is any substance in the contention of the appellant that the Civil Judge (Senior Division) Bijapur had no jurisdiction to hear and dispose of the petition presented by the respondent for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Under Section 19 of the Hindu Marriage Act, 1955 every petition under the said Act has to be presented to the District Court within whose ordinary original civil jurisdiction, the marriage was solemnized or the husband addition wife reside or last resided together. Section 3(b) defines the 'District Court' for the purposes of the Act. It states

'that unless the context otherwise requires 'District Court' means in any area for which there is a city civil court which may be specified by the State Government by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.' It is thus clear that while Section 19 of the Act enacts that the petitions under the Act are to be presented before the District Court and the District Judge alone has power to entertain such petitions, which is a 'District Court' given in Section 3(b) of the said Act. Under Section 3(b) 'District Court' means in the first place a city civil court in the area in which there is such court and in any other area the principal civil court of original jurisdiction. The definition further states that in addition to these courts other civil courts will also be included in the expression 'district court' if such other civil courts are notified by the State Government in the Official Gazette as having jurisdiction in respect of matter dealt with in the Act.

Therefore, under the expression 'district court' as defined in the Hindu Marriage Act come all city courts, all courts of District Judges of the District and also other civil Courts notified by the State Government in the manner provided. In the case before us it is not disputed that by virtue of the power given to it under Section 3(b) of the Hindu Marriage Act the Government of Bombay has issued a Notification bearing No. H. M. A.. 1055/52067 dated 1st September 1955, specifying all the Courts of Civil Judge (Senior Division) in the State of Bombay as having jurisdiction in respect of the matters as dealt with in the said Act within their respective jurisdiction.

The contention of Mr. Datar for the appellant is that the above said notification issued by the Government of Bombay must be read as investing the Courts of the Civil Judges (Senior Division) with this special jurisdiction provided those Courts were the ordinary jurisdiction over the said territory under Section 24 of the Bombay Civil Courts Act. It was argued that by virtue of the Notification the Civil Judge, Senior Division, Bijapur is empowered to exercise jurisdiction over all matters arising out of Hindu Marriage Act, 1955 in the Taluk as of Bijapur, India Shindigi and which are within the limits of his ordinary jurisdiction and that the said notification does not empower him to deal with such matters which may arise in the areas over which he exercises special jurisdiction conferred under Section 25 of the Bombay Civil Courts Act. I am unable to accept this contention of Mr. Datar.

In my opinion there is absolutely no reason for limiting the words 'within their respective jurisdiction' in the Notification to the ordinary jurisdiction conferred under section 24 of the Bombay Civil Courts Act. Admittedly the Civil Judge (Senior Division) Bijapur has jurisdiction over the entire District of Bijapur though it is not a jurisdiction in all civil suits or proceedings wherein the subject matter exceeds Rs. 10,000/- in value. The Notification issued by the Government of Bombay specifying the Court of the Civil Judges (Senior Division) as having jurisdiction in respect of the matters dealt with in the Hindu Marriage Act, 1955 within their respective jurisdiction has not made any distinction between ordinary jurisdiction and special jurisdiction of the Civil Judge (Senior Division) to deal with matters under the Hindu Marriage Act, 1955 within their respective jurisdiction.

In the circumstances I am of the opinion that there is absolutely no justification for any Court to restrict its scope and confine it only that the area coming under ordinary civil jurisdiction of the civil Judge (Senior Division). Obviously the object of the Government of Bombay in specifying the Courts of Civil Judge (Senior Division) as having jurisdiction in respect of the matters dealt with in the said Act within their respective jurisdiction was to relieve the District Court of the work arising under the Act. Therefore in considering Section 3(b) and the Notification issued by the Government on the authority conferred on it by the said Section, we should give effect to that presumed object rather than put upon the wordings of the Notification a narrower construction and defeat the said object. I am therefore, unable to accept the contention of Mr. Datar that the Civil Judge (Senior Division) Bijapur had no jurisdiction to hear and dispose of the application presented by the respondent for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. No other point was urged on behalf of the appellant.

(5) In the result, therefore, this Second Appeal fails and the same is dismissed with costs.

S.R. Das Gupta, C.J.

(6) I agree.

(7) Appeal dismissed.


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