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N.C. Dass Vs. Smt. ChIn Mayee Dass - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 4 of 1979
Judge
Reported inAIR1982MP120
ActsHindu Marriage Act, 1955 - Sections 13(1) and 39(1)
AppellantN.C. Dass
RespondentSmt. ChIn Mayee Dass
Appellant AdvocateRavish Agarwal, Adv.
Respondent AdvocateD.M. Dharmadhikari, Adv.
DispositionAppeal allowed
Cases ReferredRadheshyam Gupta v. Laxmi Bai
Excerpt:
- - it is true that, in certain context, the word 'proceeding' may be given a limited construction to include only an original proceeding like a suit, but there is no reason to give a limited construction to that word as it occurs in section 39 of the amending act......for the submission that the benefit of the provisions of the act as amended could be given in all pending proceedings. the learned single judge negatived this contention and held that section 39 of the amending act was not applicable to pending appeals. it is the same contention which has been repeated before us.3. section 13(1)(i) of the hindu marriage act as originally enacted enabled dissolution of marriage by a decree of divorce on the ground that the respondent 'is living in adultery'. by the amending act, this provision was substituted by a new provision according to which a decree for dissolution of marriage by divorce can be obtained on the ground that the respondent 'has, after the solemnization of the marriage has voluntary sexual intercourse with any person other than his or.....
Judgment:

G.P. Singh, C.J.

1. This Is an appeal against the judgment and decree dated 31st July 1979 passed by a learned single Judge in First Appeal No. 166 of 1976.

2. The appellant N. C. Dass was married to the respondent Smt. Chin Mayee Dass according to the Hindu rites on 14th July 1959. The appellant on 17th July 1975 filed a petition under 13 of the Hindu Marriage Act, 1955, for divorce in the Court of Fourth Additional District Judge, Jabalpur on the ground that the respondent was living in adultery. The trial Court held that on the date of the petition the respondent was not living in adultery and on this ground the petition was dismissed on 26th April 1976. In the first appeal filed against the dismissal of the petition, the appellant contended before the learned single Judge that he should be given the benefit of Section 13, as amended by the Marriage Laws (Amend-ment) Act, 1'976 (Act No. 68 of 1976) which came into force on 27th May 1976. The appellant relied upon Section 39 of the Amending Act for the submission that the benefit of the provisions of the Act as amended could be given in all pending proceedings. The learned single Judge negatived this contention and held that Section 39 of the Amending Act was not applicable to pending appeals. It is the same contention which has been repeated before us.

3. Section 13(1)(i) of the Hindu Marriage Act as originally enacted enabled dissolution of marriage by a decree of divorce on the ground that the respondent 'is living in adultery'. By the Amending Act, this provision was substituted by a new provision according to which a decree for dissolution of marriage by divorce can be obtained on the ground that the respondent 'has, after the solemnization of the marriage has voluntary sexual intercourse with any person other than his or her spouse.' As stated in the notes on clauses of the Bill this amendment of Section 13(1)(i) was to make it clear that a single act of voluntary sexual intercourse by either party with any person other than his or her spouse shall constitute a ground for divorce for the other party. The Amending Act was enacted with the object : (1) to liberalise the provisions relating to divorce, (2) to enable expeditious disposal of proceedings under the Act, and (3) to remove certain anomalies and handicaps that had come to light after the passing of the Act as originally enacted. With a view to avoid multiplicity of litigation and consequent delay, it was proposed to apply the amended law in relation to all pending proceedings : (see Statement of Objects and Reasons, Gazette of India, Extraordinary Part II, Section 2, dated 29th March 1976, p. 780). Section 39 of the Amending Act which was enacted with this purpose reads as follows :

'39. Special provision as to pending cases.-

(1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1979, shall be dealt with and decided by such court-

(i) If it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;

(ii) If it is a petition or proceeding under the Special Marriage Act, then so faras may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act,

(2) In every petition or proceeding to which Sub-section (1) applies, the Court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings, in so far as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce.'

4. The words 'all petitions and proceedings in causes and matters matrimonial which are pending in any Court' as they occur in Section 39 (1) are words of wide amplitude. The word 'proceeding' in a general sense means the form and manner of conducting judicial business before a Court or judicial officer (see Black's Law Dictionary p. 1368). A suit, appeal and second appeal can all be described as proceedings. It is true that, in certain context, the word 'proceeding' may be given a limited construction to include only an original proceeding like a suit, but there is no reason to give a limited construction to that word as it occurs in Section 39 of the Amending Act. Apart from that on general principles 'the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings' (See Garikapati v. Subbiah Choudhary, AIR 1957 SC 540, p. 553). It has also been held that as an appeal is intended to interfere in the cause it is a part of it and so an appeal is a continuation of the suit and the appellate Court while hearing an appeal can also be said to be hearing the suit : (See Dayawati v. Inderjit, AIR 1966 SC 1423, p. 1427; Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 FC 5, p. 13 and Ram Sarup v. Munshi, AIR 1963 SC 553, p. 563). On this reasoning) an appeal against a decree in a petition! for divorce is only a continuation of the petition which must be taken to be pending till the appeal is decided. Having re-gard to the object in enacting Section 39 which was to shorten litigation and to enable the benefit of the liberalised provisions to be taken in pending proceedings, there is no justification for construing Section 39 in a restricted manner. In our opinion, the words 'all petitions and proceedingsin causes and matters matrimonial which are pending as used in Section 39 (1) of theAmending Act must be construed to include all petitions and proceedings which have not been finally decided irrespective of whether they are pending in the original Court or in appeal at the commencement of the Amending Act. The view that we have taken is shared by the Calcutta High Court in Sundari Dasi v. Basudeo Lal, AIR 1977 Cal 193. The learned single Judge in holding that a pending appeal is not included in Section 39 has referred to a decision of a Division Bench of this Court in Radheshyam Gupta v. Laxmi Bai, 1977 MPLJ 259 : (AIR 1977 Madh Pra 271). Thai was a case in which an application under Section 24 was pending in the trial Court when the Amending Act came into force. The question that arose in that case was whether an order passed after commencement of the Amending Act in a pending application under Section 24 was appealable under Section 28. Section 28 as amended does not provide for any appeal against an order passed under Section 24. Originally Section 28 provided for anappeal against all orders. Normally a right of appeal accrues at the time of Institution of a legal proceeding and, therefore, it was argued in that case that the right of appeal against the order under Section 24 accrued to the aggrieved party under Section 28 as it originally stood on the date of the filing of that application and that it was not defealed by the amendment of Section 28. It was, however, held that all pending proceedings were to be dealt with as it originally instituted under the Act as amended by virtue of the fiction enacted in Section 39 and so it could not be held that any right of appeal accrued to a party in a pending application under Section 24 which was decided after the commencement of the Amending Act. The general observations in that case that the appellate Court must decide the appeal and apply the same law which the trial Court was bound to apply, have to be read in the context of that case. The question that arises in this case for decision before us did not arise in that case. That case has no application for answering the question whether the words 'all petitions and proceedings in causes and matters matrimonial' will include an appeal which was pending at the commencement of the Amending Act. We are, therefore, of opinion that the appellant is entitled to Invoke the liberalised provisions of Section 13 and is entitled to get a decree for divorce on the ground that the respondent has,after the solemnization of the marriage, had voluntary sexual intercourse with any person other than the appellant.

5. As regards the question whether the appellant has succeeded in proving the above ground, it may be mentioned that the proceedings were throughout ex parte. The appellant produced the letter Ex. P-2 dated 15th November 1974 written and signed by the respondent in which there is a clear admission that the respondent after her marriage with the appellant had sexual intercourse with one Anjani Sarkar. She expressed her desire in this letter that having realised that she had committed a sin she would go for meditation to some Ashram. There is no reason not to accept the truthfulness of the admission made by the respondent in this letter. We, therefore, hold that the appellant has succeeded in proving that the respondent has had sexual intercourse after the marriage with a person other than the appellant and that the appellant is entitled to get a decree for divorce under Section 13(1)(i) as amended.

6. The appeal is allowed. The judgments and decrees passed by the trial Court and by the learned single Judge are set aside. The petition for divorce is allowed. Let a decree of divorce be passed dissolving the marriage. There will be no order as to costs throughout.


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