Skip to content


Udainath Misra Vs. Mst. Chhaya Misrani and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal Nos. 404 and 405 of 1960
Judge
Reported inAIR1963Ori27; 28(1962)CLT353
ActsHindu Marriage Act, 1955 - Sections 9, 19, 29 and 29(3)
AppellantUdainath Misra
RespondentMst. Chhaya Misrani and ors.
Appellant AdvocateS. Acharaya and ;L.M. Nanda, Advs.
Respondent AdvocatePassayat, ;N.C. Patnaik and ;B. Mohanty, Advs.
DispositionAppeals dismissed
Cases Referred and Bikram Singh v. Sudarsan Singh
Excerpt:
.....glt 246, are not good law]. - 26 of 1954 is clearly maintain ab e in civil court and second appeal no. 9. (1) when either the husband or the write has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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. the appeals must therefore fail, but in thecircumstances without costs of this court......no. 405 of 1960 has no merit.4. if mr. acharya's argument that suits for restitution of conjugal rights pending by way 18, 1955 are not cognizable by civil court and must be tried by the district judge has any force, then title suit no. 13 of 1955 filed by udayanath must be dismissed and second appeal no. 404 of 1960 would have no merit. i am, however, unable to agree that suits for restitution of conjugal rights pending on may 18, 1955 are not cognizable by civil courts.5. in garikapati v. subbiah choudhury, (s) air 1957 sc 540, their lordships observed;'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 proceeding. the right of appeal is not a mere.....
Judgment:

G.K. Misra, J.

1. Second Appeal No. 405 of 1960 arises out of Title Suit No. 26 of 1954 and Second Appeal No. 404 of 1960 arises out of Title Suit No. 13 of 1955, the sum were respectively filed on November 16, 1954 and February 24, 1955. The genealogy in Title Suit No. 26 of 1954 is as follows:

SIDHESWAR MISRA (D.1)

|

___________________________

| |

Udayanath D.2) Parasana (D-3)

Wife - Chhaya

Plaintiff

Chhaya filed the suit for recovery of maintenance and arrear of maintenance at the rate of Rs. 30/- per month. The genealogy in T. S. No. 13 of 1955 is as follows:

NALAMBAR DAS

|

_________________________________

| | | |

Kusa Dhanu Renu Chhayya (D-1)

(D-2) (D-3) (D-4) Husband - Udayanath

Plaintiff.

This suit was filed by Udayanath for restitution of conjugal rights against Chhaya. Both the suits were heard analogously and the learned Subordinate Judge of Bolangir disposed them of on September 28, 1957. Title Suit No. 26 of 1954 was decreed granting maintenance at the rate of Rs. 20/- per month and arrears of maintenance at Rs. 240/-. Title Suit No. 13 of 1955 for restitution of conjugal rights was dismissed. The appeals against the judgment and decree of the learned Subordinate Judge were dismissed by the learned District Judge of Bolangir. Second Appeal No. 404 of 1960 has been filed by Udayanath and 405 of 1960 has been filed by Udayanath, Sidneswar and Parasana.

2. Mr. Acharya, for the appellants in both the appeals, did not challenge the findings on fact arrived at by the courts below. It is, therefore, not necessary to give the details of fact on the basis of which maintenance or restitution of conjugal rights was claimed. The only point urged by him is that the Courts below had no jurisdiction to try the suits after the passing of the Hindu Marriage Act, 1955 (Act XXV of 1955) -- hereinafter to be referred to as the Act -- which came into force on May 18, 1955. He relies upon Sections 4, 9, 10, 19, 25 and 29(3) of the Act, and certain reported decisions.

3. It must be made clear at the outset that the Act does not affect the jurisdiction of the Court to take cognisance of the suit relating to claim for maintenance, The suit for maintenance was filed under the Hindu Married Women's Right to Separate Residence and Maintenance Act (19 of 1946) and the Civil Court had jurisdiction to take cognizance of such a suit. The jurisdiction of the Civil Court to try suits for maintenance has not been affected in any manner by the Hindu Adoption and Maintenance ACT (78 of 1955) which came into force on December 21, 1956, Section 25 of the Hindu Marriage Act, 1955 providing for permanent alimony and maintenance in certain cases only pertains to grant of maintenance during the pendency of the suits of the nature referred to therein. On this simple argument Title Suit No. 26 of 1954 is clearly maintain ab e in Civil Court and Second Appeal No. 405 of 1960 has no merit.

4. If Mr. Acharya's argument that suits for restitution of conjugal rights pending by Way 18, 1955 are not cognizable by Civil Court and must be tried by the District Judge has any force, then Title Suit No. 13 of 1955 filed by Udayanath must be dismissed and second appeal No. 404 of 1960 would have no merit. I am, however, unable to agree that suits for restitution of conjugal rights pending on May 18, 1955 are not cognizable by Civil Courts.

5. In Garikapati v. Subbiah Choudhury, (S) AIR 1957 SC 540, their lordships observed;

'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 proceeding. The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'

6. As the Civil Court had jurisdiction to try suits for restitution of conjugal rights prior to May 18, 1955, it is necessary to examine whether the Act has taken away this jurisdiction either expressly or by necessary intendment. The relevant sections in this connection are 4, 9, 19 and 29(3):

'4. 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.

9. (1) When either the husband or the write 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.

19. 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 solemnized or the husband and wife reside or last resided together.

29. (3) 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 manifest that there is absolutely no express provision in the Act stating that pending cases are not cognisable by Civil Courts. There is no provision that the pending cases would stand automatically transferred to the District Judge who was given exclusive jurisdiction to try such suits. It cannot also be contended that the pending cases would come to a close and the plaintiff would file a fresh application in respect of the identical cause* of action, which would involve consideration of the question of limitation. It is true that Section 29(3) provides that the Act shall not apply to pending cases in respect of judicial separation, void or voidable marriages and divorce, and the Act is silent about the pending cases on restitution of conjugal rights. But there is authority for the proposition that even if there is provision in a statute in respect of certain matter that they would not operate retrospectively, it would not lead to the necessary inference that a provision about which there is an omission of a statement whether it will operate prospectively or retrospectively, is to operate retrospectively. In other words, merely because the Act is silent with regard to pending cases on restitution of conjugal rights, it would not necessarily follow that the Act would operate retrospectively so far as the pending cases are concerned. This point has been elaborately discussed in Baiwant Singh v. Balwant Kaur, (S) AIR 1957 Pepsu 1, and their Lordships held that the Act would not retrospectively operate even though there was an omission. This Division Bench decision was followed by a learned Single Judge in Yankappa Timmappa v. Shavakka, AIR 1960 Mys 255. In Mulla's Hindu Law, 12th Edn. at page 814 the comment is as follows:

'It is submitted that the suits for restitution of conjugal rights between Hindus, whose marriage was solemnised in accordance with Hindu Law, pending at the date of the commencement of this Act, will be within the ambit of Section 9. The defence to any such suit can be those mentioned in Sub-section (2). A different view has been expressed by the High Court of Pepsu, but the only question for the determination of the court in that case related to jurisdiction and not to the applicability of the provisions contained in the present section, x x x x X X Section 19 applies only to petitions presented after the Act came into operation and there is no other provision in the Act which affects the jurisdiction of courts which were competent to try pending suits for restitution of conjugal rights.'

The author also supports the view that so far as jurisdiction for trying the pending suits and appeals is concerned, the Civil Court would continue to have jurisdiction, the comment rather is that the substantive provision of the Act with regard to averments either by way of attack or by way of defence would be in accordance with the provisions of the Act and not in accordance with the provisions of old law. But all the same the jurisdiction of the courts trying the pending suits by the date when the Act came into force would not be affected.

Mr. Acharya cited Bootan Bai v. Durga Prasad Chaturai, AIR 1959 Madh Pra 410; Smt. Balwanti Kunwar v. Additional Munsiff, Dehra Dun, AIR 1959 AM 7; Monika Das v. Promode Kumar Roy, AIR 1960 Cal 577 and Bikram Singh v. Sudarsan Singh, AIR 1961 All 150, in support of the contention that the jurisdiction of the Civil Courts would be ousted even in respect of pending suits. These authorities refer to suits which were all filed subsequent to the passing of the Act. It is elementary and the principle is won settled that with regard to those suits the Act would apply and the District Judge is the only Court of original jurisdiction competent to try such suits. The decisions do not rightly make any discussion with regard to the pending suits as the question did not arise for consideration. I find no substance in these contentions.

7. Mr. Acharya very fairly cited all the decisions forand against him; I however find no merit in any of hiscontentions. The appeals must therefore fail, but in thecircumstances without costs of this Court.


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