1. This arises out of a reference made by the Principal Civil Judge, Shimoga, by his order dated 8-9-1980 passed by him for dissolution of marriage in Matrimonial Case No. 21 of 1979, on his file.
2. Shri Chandramohan Kumar made a petition to the Court of the District Judge, Shimoga, for dissolution of his marriage with Mrs. Florence Indravathi, respondent-1 in the petition, under Section 10 of the Divorce Act, 1869, (hereinafter referred to as 'the Act'). He averred that -his marriage with respondent-1 in the petition was solemnised on 18-5-1978 according to Christian Religious Rites. After the marriage, he took respondent-1 to his residence on 21-5-1978. Respondent-1 stayed with the petitioner for a week and, thereafter, she went to Bommanahally to the house of her parents along with the petitioner. On 30-5-1978 in the night, the marital ceremony was arranged. But according to the petitioner, respondent-1 did not co-operate with the petitioner for sexual intimacy. Even on the next day and on subsequent days, she put forward some excuse or the other and did not allow the petitioner any sexual intimacy with her. The petitioner stayed with respondent-1 for four days and returned to his house. He invited respondent-1 to accompany him to his house. But, she refused to come with him. A few days thereafter, the petitioner went back to the official residence of respondent-1 at Agalagandi where she was working as a Nurse. Then also respondent-1 did not allow the petitioner to have any marital intimacy with her. She did not treat him properly with love and affection and the petitioner went back to his house being disgusted with the conduct of respondent-1. Again, on 25-6-1978, he went to the official residence of respondent-1 along with his friend N. J. Kumaraswamy. It was about 9.30 P. It. when they arrived at Agalagandi. The doors of the house of respondent-I were closed. The petitioner, according to him, knocked the the doors several times and also called out respondent-l by name several times. She did not open the doors immediately. After some time, when the petitioner started knocking the doors forcibly and loudly, respondent-1 opened the doors and the petitioner and his friend Kumaraswamy went in. They found that respondent-2 in the petition was sleeping on the bed of respondent-1 in the room where respondent-1 was sleeping. None else were in the house. When the petitioner asked respondent-1 about the presence of respondent-2, she did not give him satisfactory reply. When the petitioner insisted for a reply, respondent-1 told him that he was her friend and disclosed his name as Chandru., The petitioner got upset and slapped respondent-1 on the cheek. Respondent-1, being enraged, demanded of the petitioner and his friend to get out. She protested and declared that the petitioner was not tier husband and that she would not live with him. She called Chandru and embraced him in the presence of the-petitioner and his friend. The petitioner and his friend returned.
A few days thereafter, the petitioner, along with his mother, went to the house of respondent-1 at Agalagandi to persuade respondent-1 to go over to their house. When the petitioner with his mother went to the house, they found that the door was not bolted from inside. They opened the door and went in. They found responddents-1 and 2 in a compromising position on the bed. Respondent-l being enraged abused the Petitioner and his mother in filthy language and asked them to get out threatening to forcibly neck them out. Accordingly, the petitioner and his mother returned. Be has further averred in the petition that many of his relatives and friends saw respondents-1 and 2 moving together.
On these averments, he asserted that respondent-I was leading a life of adultery with respondent-2 ever since the marriage and he prayed for dissolution of the marriage on that ground coupled with desertion on tbv part of respondent-1 from his company without reasonable excuse.
He further averred that there was no Collusion between the parties. The Court had jurisdiction to entertain and bear The petition because they reside within the jurisdiction of the Court,
3. The petition was presented before the District Judge, Shimoga, on 4-4-14179, The learned District Judge, however, returned the petition with the concerned documents for presentation to proper Court, on 7-7-1979. Thereafter, the petition was taken back and presented before the Principal Civil Judge, Sbimoga, on 11-7-1979 and it was registered at Matrimonial Case No. 21 of 1979.
4. Notices were issued to respondents-I and 2. Respondent-1was served and was represented by a Lawyer. Notices were issued by Registered Post as also through Court to respondent-2.But he could not be served. The notices were returned with the endorsement 'No such addressee'. Thereafter, it appears that on 11-2-1980, the learned Counsel, appearing for the petitioner submitted before the Court that he gave up respondent-2and, accordingly, the petition was amended deleting respondent 2.
5. Resporident-1 filed her statement of objections to the petition denying the averments made in the petition. According to her, the petitioner was trying to marry again.The petitioner and his mother demanded that respondent-I should give all her salary to them. She could not do so she had committed liabilities. Being enraged. they drove ber out of the house. She denied all averments regarding the alleged adulterous conduct.
6. The learned Civil judge raised the following issues as arising from the,
(1) Whether the Petitioner proves That respondent-I is leading an adulterous life?
(2) Whether the petitioner is entitled to a decree for dissolution of marriage and for divorce?
(3) What order?
7. During hearing, the petitioner examined himself as P. W. I. He examined his friend N. J. Kumaraswamy as P. W. 2 and his mother Smt. Lalitbarnma as P, W. 3. He got marked Exhibit P-1 the Postal Acknowledgment and Exhibit P-2 the notice dated 26-61979 issued to respondent-1.
8. The learned Civil Judge, appreciating the evidence on record, answered Issues Nos. I and 2 in the affirmative and. in that view. he passed a decree for dissolution of marriage allowing the petition and he has referred the same to his Court for confirmation under See, 19 of the Act.
9. At the very Outset, it was noticed that the order for dissolution of marriage was passed by the Civil Judge, though the Act does not contemplate the hearing of any proceeding under it, by a Civil Judge. Accordingly, notice was issued to the, learned Advocate General to clarify the position and assist the Court with regard to the position of law.
10. Shri. B. Rudre Gowda, learned Counsel appearing for the petitioner/appellant and also Shri. Keshava Iyengar, learned Advocate General, were heard on the preliminary point as to whether the Civil Judge has jurisdiction to entertain, try and dispose of a proceeding under the Act.
11. The learned Advocate General submitted that though under Svc. .3 (4) of the Act, Court is defined as the High Court or The District Court, as the case may be, and, as such, a petition for dissolution of marriage should be made before the District Court, the Karnataka state has amended the relevant Section by the Karnataka Civil Courts Act, 1964 by Section 23 of the said Civil Courts Act, conferring Jurisdiction on the Civil Judge under the Act. He further submitted that the High Court of Karnataka has issued a Notification under the provisions of Section 23 Of the said Civil Courts Act, on 31-11-1978. investing the powers of a District Court or a District Judge on all the officers presiding over the Civil. Judges Court in the State and as such., The Civil Judge, Shimoga, could entertain, try and dispose of the petition for dissolution of marriage under Section 10 of the Act.
12. The Point., therefore that comes up for our consideration is; 'Whether the State Government is competent to amend the Central Act, conferring jurisdiction on the Civil Judge to entertain, try and dispose of matters under the Act?'
13. The subject of 'marriage and divorce, is to be found at Entry No, 5 in List III of Schedule VII to the Constitution of India. In other words the subject-matter is in the Concurrent List. Art. 254 of the Constitution of India speaks of inconsistency between laws made by Parliament and laws made by the Legislature of States. It reads:-
'(1) If any provision of law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is Competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent list, then, subject to the provisions of cl,(2), the law made by Parliament whether passed before or after the law made by the Legislature of such state, or as the case may be the existing law, shall prevail and the law made by the legislature of the state shall to the extent of repugnancy,be void.
(2) Where a Jaw made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter then, the law so made by the Legislature of State shall, if it has been reserved for the consideration of the president and has received his assent, prevail in that State:-Provided that nothing in this clause shall prevent Parliament from entacting any time any low with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'
14. Thus it is obvious that under Clause (2) of Art, 254 Of the Constitution of India the State Legislature is competent to pass any legislation with regard to one of the matters enumerated in the Concurrent List even though such legislation is repugnant to the Central Act and the State Act shall prevail over the Central Act in the State till such time as the Parliament deems it proper to amend, vary or repeal the law so made by the State Legislautre, provided the assent of the President is obtained, having reserved the same for his consideration.
15. As stated above, 'marriage and divorce' are to be found in Entry No. 5 of the Concurrent List. The State Legislature is, therefore, competent to legislate on the subject even though it may be repugnant to the provisions made in the earlier Central Act.
16. The Karnataka State passed the Karnataka Civil Courts Act, 1964. Section 23 of the said Civil Courts Act reads:-
'Power to invest Civil Judge with jurisdiction under certain Act-(1) The High Court may, by notification, invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be specified in such notification with all or any of the powers, of a District Judge or a District Court, as the case may be under the following Acts, namely:-
(i) The Divorce Act, 180, (Central Act 4 of 1869);
(ii) The Guardians and Wards Act, 1890,(Central Act 8 of 1890),
(iii) The Indian Lunacy Act, 1912 (Central Act 4 of 1912);
(jv) The Succession Act. 4925, (Central Act 39 of 1925), (Omitted by Act No. 28 of 1978);
(v) The Special Marriage Act, 19.54, (Central Act 43 of 1954).'
17. It may further be mentioned that Item 46 in the Concurrent List viz., List III. contains the special jurisdiction
and powers of all Courts except the Supreme Court with respect to any of the matters in the List. That being so,
it is obvious that it was competent for the State Legislature even to amend the provisions with regard to jurisdiction with respect to any of the matters in the Concurrent List and, as Pointed out above, marriage and divorce are subjects in the Concurrent List. Hence the State Legislature, was obviously competent to legislate even with regard to the Jurisdiction and powers of all Courts With regard to those matters even if they are repugnant to the provisions in the existing Central Act.
18. It is no doubt necessary to note that Clause (2) of Art. 254 of the Constitution of India contemplates that the State should reserve for consideration of the President such legislation and should receive his assent before such legislation prevails over the Central Legislation.
19. The Karnataka Civil Courts Act, 1964, was so reserved for the assent of the President and it has received the assent of the President on the 28th day of March 1964. That being so, it is obvious that the State Legislation with regard to jurisdiction of marriage and divorce as contained in S. 23 of the said Civil Courts Act prevails over the provisions made in the existing Central Act, namely the Divorce Act, 1869.
20. The Supreme Court of India, in the case of M. Karunanidhi v. Union of India : 1979CriLJ773 , had an occasion to consider this aspect and the Supreme Court has observed in this behalf thus.-
'Where however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can Ve protected by obtaining the assent of the President under Art. 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Art. 254.' (Vide: Para 8).
21. That being so, we have no hesitation to hold that Section 23 of the Karnataka Civil Courts Act, 1964, prevails over the provisions of the Act in respect of the jurisdiction of the Court to entertain, try and dispose of matters regarding dissolution of marriage,
22. The next point that arises for our consideration is: 'Whether the Notification issued under the Section by the High Court further requires the assent of the President?'
23. The Notification is dated 31-11-1978 and it reads
'In exercise of the powers under sub-see. (1) Of Section 23 of the Karnataka Civil Courts Act, 1964, (Karnataka Act 21 of 1964) and in supersession of the existing orders on the subject, the High Court of Karnataka is pleased to invest the power of a District Court or District judge on all the Officers Presiding over the Civil Judge's Courts in the State under the Acts mentioned hereunder within their respective territorial jurisdiction.
(i) The Divorce Act, 1869;
(ii) The Lunacy Act, 1912 and
(iii) The Special Marriage Act, 1954.'
24. The Supreme Court of India considered the aspect as to whether it is enough if an Act is reserved for the consideration of the President and assent of the President is taken or it is further necessary to take the assent of the President even for the notification issued under the Act, in the case, Kerala Electricity Board v. Indian Aluminiurn Co. Ltd. : 1SCR552 . Speaking on this aspect, in the majority judgment delivered by His Lord-ship Alagriswamy J., it is ruled in Para 12 of the judgment thus:
' ...........Was it necessary to get the President's assent for this notification as contended by some of the respondents? Quite clearly no Presidential assent was possible to the notification Art ' 254(2) does not contemplate Presidential assent to notifications issued under the Act. The Article contemplates Presidential assent only to laws made by the Legislature of a State 7.
25. Thus, it is obvious that it was not necessary to take the assent of the President to the notification issued under S. 23 of the Karnataka Civil Courts Act, 1964, as it was not contemplated under Art. 254(2) of the Constitution of India.
26. As a result of the above discussion, it emerges that the Civil Judge, Shimoga, has jurisdiction to entertain. try and dispose of the petition given under S. 10 of the Act. We answer the point accordingly.
27. That takes us to the consideration whether the order of dissolution of marriage passed by the learned Civil Judge, Shimoga, should be confirmed.
28. We were taken through the proceeding. We find that though Chandru, the alleged person with whom respondent-1 was having adulterous relationship, was added as a party as respondent-2 in the proceeding, he was subsequently given up by the petitioner and was deleted by amending the petition. It is further found that the learned Civil Judge has not raised an issue on the point 'whether the petitioner proves that there was no collusion between the parties in instituting the petition.' He has not discussed that aspect and has not recorded his finding ori the aspect. it is necessary for us to find out in the circumstances whether the order of the learned Civil judge in question gets vitiated.
29. Section 11 of the Act specifically states:
'Adulterer to be co-respondent. -Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds. to be allowed by the Court:-
(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed.
(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;
(3) that the alleged adulterer is dead.'
29A. Thus, law requires that the husband shall add the adulterer as a correspondent in the proceeding. The provision is mandatory.
30. It is no doubt true that the adulterer was added as a co-respondent viz., respondent-2 in the petition when the petition was presented by the husband to the Court under S. 10 of the Act. Subsequently, however, obviously, by an oral submission to the Court, the petitioner has amended the petition by deleting the name of the co-respondent vi7,, respondent-2, the adulterer. We find from the Order Sheet that on 11-2-1980. the learned Civil Judge has made the following endorsement, inter alia:
'Petitioner's Counsel gives up the 2nd respondent, Petition amended accordingly.'
31. Thus, it is obvious that there was no application made by the petitioner for being excused from adding the name of the co-respondent on any of the grounds mentioned in S. 11 ofl the Act. The Court, without such an application and without looking into the provisions of the Act on an oral submission made by the Counsel for the petitioner, allowed the Counsel to delete the name of respondent-2 from the petition and to amend the petition accordingly.
32. The petition is amended by deleting the name of respondent-2 on 11-2-1980. Thus, in effect, there was a petition before Court for .4issolution of marriage under S. 10 of the Act made by the husband without adding the adulterer as a co-respondent and without being excused by the Court from adding the adulterer as a co-respondent on any of the grounds mentioned in S. 11 of the Act.
33. The point for our consideration, in the circumstances, is:
'Whether such a petition is maintainable in law?'
34. As pointed out above, the provision in S. 11 of the Act is mandatory, A petition without the co-respondent1 cannot be maintained unless leave to dispense with his presence has actually been obtained from the Court. For obtaining such a leave, a formal application has to be made supported by proper evidence making out one of the conditions mentioned in S. 11 of the Act; Vide William Percy Bowman v. Harriet Dorothy Bowman, (AIR 1942 All 223) and Susanta Kumar Mitra v. Smt. Himangshu Prova Mitra : AIR1964Cal33 .
35. Indian Courts do not have the same discretion in divorce proceedings to dispense with the naming of a co respondent as the English Courts have. The three grounds mentioned in S. 11 of the Act are the only one on which leave can be so granted to proceed with a petition for dissolution of marriage, (Vide Charles Henry Smalley v. Mrs. Olive Muriel Smalley .
36. It is further laid down by the Bombay High Court that the Court should not lightly excuse a party from making any enquiry which he can reasonably be expected to make as to the adulterer. (Vide: John Over v. Muriel : (1925)27BOMLR251 ).
37. That being so, we are constrained to hold that the petition of the husband given under S. 10 of the Act for dissolution of marriage is itself defective not being in accordance with the provisions of S. 11 of the Act and, hence it is not maintainable in law.
38. For the reasons stated above, the question of confirmation of the order of dissolution of marriage would not
survive for consideration. In the normal course, the reference itself should have been dismissed. Since, however there is a legal error committed by the Court a n allowing the petitioner to amend the petition, by deleting respon-
dent-2, without any format application and prayer for leave to dispense with the presence of respondent-2, on any of the grounds mentioned in S. 11 of the Act, it becomes necessary to return the proceeding to the learned Court judge to enable the petitioner to make a formal, application, if he so desires, as no litigant shall suffer on account of any mistake committed by the Court or its officers.
39. Moreover, as pointed out above, the learned Civil Judge has not raised an issue on the point of absence of collision between the parties and has not considered that aspect in the course of his judgment, as is required under S. 12 of the Act.
40. Section 12 of the Act reads:
'Court to be satisfied of absence of collusion-
Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any counter charge which may be made against the petitioner.'
41. This provision has been ignored by the learned Civil Judge. On this count also, it would be necessary to send back the case for further enquiry to the learned Civil, Judge
42. In the circumstances, the reference is returned to the Principal Civil Judge, Shimoga, with a direction that he shall now give an opportunity to the petitioner to apply for leave to dispense with the presence of the adulterer in the proceeding on a valid ground, if he so desires and to consider the aspects contained in S. 12 of the Act after raising the necessary issue.
43. No costs of this proceeding.
44. Order accordingly.