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Dharam Sheela Bai Vs. Ram Dayal Bhatnagar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1961CriLJ236
AppellantDharam Sheela Bai
RespondentRam Dayal Bhatnagar
Cases ReferredIn Sohan Choudhari v. R.D. Doongaji
Excerpt:
.....liable to be set aside. - the learned trial judge has fully considered the entire evidence on record and his discussion is elaborate and well-reasoned. no doubt the said presumption is one of fact and is rebuttable by strong evidence. there is no satisfactory rebuttal of the presumption, nay, her living with sharma, deserting her husband, is yet another strong circumstance which fortifies the presumption to the degree of conclusiveness, 12. devisingh and chinne were the other witnesses produced by the petitioner to show that the appellant and ram krishan were residing as husband and wife as was apparent from their conduct. the wife is 50 years old and the less said about her being sold the better......court' is defined in section 3(b) of the act inter alia meaning principal civil court of original civil jurisdiction. there can be no doubt that the district court and district judge do not rncan the same thing.section 3 of the madhya pradesh civil courts act, 1958 enumerates the classes of civil courts and mentions separately the court of the district judge and the court of the addl. district judge. shri patankar's contention is that these two are distinct courts and it is the court of the district judge alone which can be termed the district court, but not the court of the addl. district judge. in my opinion, this contention must be rejected in view of section 7 of the civil courts act which runs thus:the court of the district judge shall be the principal civil court of original.....
Judgment:

Shiv Dayal, J.

1. This is an appeal from a decree of divorce on a petition by the husband under Section 13 of the Hindu Marriage Act, 1955 on the ground that the wife was living in adultery.

2. It was urged in the petition that on June 18, 1958, the petitioner and his son found the appellant in compromising position with one Ram Krishan Sharma. The next day she left her husband's house and was since then residing with Ram Krishna. The wife resisted the petition and denied the charge of adultery as also of illicit intimacy with Ram Krisban. i According to her, she was beaten by her husband several times and he wanted to sell her. She also made an application' for maintenance. The learned trial Judge, having elaborately discussed the material on record, came to the conclusion that the appellant was living in adultery with Ram Krishan.

3. Shri Patankar first of all contends that the Additional District Judge, Gwalior, had no jurisdiction to try the petition. The argument is that it is only the District Judge who was competent to try it. Reliance is placed on Kuldip Singh v. State of Punjab, (S) : 1956CriLJ781 . In my opinion the contention is without force.

4. It is true that Section 13 of the Hindu Marriage Act does not name the Court to which a petition under it is to be presented unlike Section 10, yet Section 19 makes it clear that the petition is to be presented to the District Court. The expression 'District Court' is defined in Section 3(b) of the Act inter alia meaning principal civil Court of original civil jurisdiction. There can be no doubt that the District Court and District Judge do not rncan the same thing.

Section 3 of the Madhya Pradesh Civil Courts Act, 1958 enumerates the classes of civil courts and mentions separately the court of the District Judge and the Court of the Addl. District Judge. Shri Patankar's contention is that these two are distinct courts and it is the court of the District Judge alone which can be termed the District Court, but not the Court of the Addl. District Judge. In my opinion, this contention must be rejected in view of Section 7 of the Civil Courts Act which runs thus:

The Court of the District Judge shall be the Principal Civil Court of original jurisdiction in the Civil District.

2. An Additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District Judge by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge.

It is quite clear that although it is the Court of the District Judge which is the principal civil court of original civil jurisdiction, the Additional District Judge is invested with the power to discharge any of the functions of a District Judge including the functions of the principal Civil court of original civil jurisdiction, which the District Judge may assign to him. And as soon as the. assignment is there the Addl. District Judge has jurisdiction to exercise the same powers as the District Judge.

5. The present case was initially dealt with by Shri V.K. DoBgre, District Judge, himself. Thereafter, Shri G. S. Asthana, District Judge, himself dealt with the case. Later on, by his order dated March 1, 1960, in consequence of re-distribution of work, he transferred the case to the Court of the Addl. District Judge. Thus the assignment within the meaning of Section 7 of the Civil Courts Act was there and, by virtue of the said provision, the Additional District Judge could exercise the powers of the District Court, that is to say, as a principal Civil Court of original jurisdiction within the meaning of Section 3(b) of the Hindu Marriage Act.

6. The decision of the Supreme Court relied on by tile counsel does not apply here. In that case their Lordships considered the provisions contained in the Punjab Courts Act VI of 1918. That Act provided for three classes of civil courts namely:

1. the Court of the District Judge,

2. the Court of the Additional Judge, and

3. the court of the Subordinate Judge.

That Act nowhere spoke of an 'Additional District Judge' or an 'Additional Judge' mentioned as No. 2 above was not a Judge of co-ordinate judicial authority with the District Judge, Their Lordships already observed:

If his functions are confined to the hearing of appeals he cannot exercise original jurisdiction and vice versa, but if he is invested with the functions of an appellate tribunal at the District Court level then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain.

Such position does not obtain under the Madhya Pradesh Civil Courts Act.

7. Shri Patankar then relies on a decision of the Punjab High Court in Janak Dulari v. Narain Dass AIR 1959 Punjab 50. That was a Case under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on a husband's petition. It was urged before the High Court that an application under the Hindu Marriage Act could not be heard by any Court other than the District Court which under Section 3(b), of that Act meant a Principal Civil Court of original civil jurisdiction, and the Punjab Courts Act did not mention a Court of the Additional District Judge. This contention was upheld relying on the decision in Kuldeep Singh's case, (S) : 1956CriLJ781 (supra). For reasons already stated that decision of the Punjab High Court also does not become apposite here.

8. In Sohan Choudhari v. R.D. Doongaji 1959 Jab LJ 754, Section 14 of the Central Provinces and Berar Courts Act, 1917 was considered. There also, the class of courts were the same as under the Punjab Act of 1918, that is (a) the District Court (b) the Court of the Civil Judge; and there was a provision for the appointment of (c) 'an Additional Judge or Judges'. Although in that Act the Court of an Additional District Judge was not named yet it was held that an Additional Judge to the District Court was a Judge of the District Court, It is not necessary to rely on that authority in view of the clear provisions of the Madhya Pradesh Civil Courts Act.

9. It is then urged by Shri Patankar that the finding of fact reached by the Additional District Judge is not correct. There is no substance in this contention. The learned trial Judge has fully considered the entire evidence on record and his discussion is elaborate and well-reasoned. It is remarkable that the appellant's son Manohar Lal came forward as a witness and stated that for about 11/2 years his mother had become corrupt and this information he received from his brother Shyam Lal when the witness was in. Bombay. He came down to Bhander and several people told him of the illicit intimacy between his mother and Ram Krishan Sharma. On the X8th June he himself saw his mother and Ram Krishan Sharma lying on the same cot with Sharma's dhoti unadjusted, And the next morning she left her husband's home and since then was residing with Sharma. There is nothing in his cross-examination to show why he was giving this kind of evidence against his own mother.

10. Admittedly, the appellant is residing not] in her husband's house, but in the house of Ram Krishna Sharina who is in no way related to her.

11. Shyamlal, the other son of the appellant also gave evidence against his mother and stated about the illicit relations between her and Ram Krishan Sharma. It is one of the strangest presumption based on human experience that a woman must be unchaste when her children say so in the Court, No one resents anything more than an assault, by word or action on the chastity of one's mother. The very word 'mother' carries with it a sense of highest reverence. No doubt the said presumption is one of fact and is rebuttable by strong evidence.

This is not a case where the father is accused of his wifes' murder. No one but two sons of the appellant had to speak in the open court about her adulterous conduct. There is no satisfactory rebuttal of the presumption, Nay, her living with Sharma, deserting her husband, is yet another strong circumstance which fortifies the presumption to the degree of conclusiveness,

12. Devisingh and Chinne were the other witnesses produced by the petitioner to show that the appellant and Ram Krishan were residing as husband and wife as was apparent from their conduct.

13. The trial Judge has disbelieved the appellant's evidence and it is unnecessary to re-travel those grounds.

14. Since the appeal is without substance, it is dismissed in limine.

A.H Khan, J.

15. I agree with my learned brother that there is no substance in the appeal, which must foe dismissed. There is one more reason why the story of the wife the defendant that she left her husband, because he wanted to sell her away is not worthy of credence. The wife is 50 years old and the less said about her being sold the better. A woman at this age has great value in the eyes of her children and husband, but I am afraid that in the matrimonial market, she would not fetch much and the husband cannot think of doing so.


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