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Ranjuk Ranjan Das Vs. Smt. Pranati Kumari Behera - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberMatrimonial Ref. No. 2 of 1977
Judge
Reported inAIR1982Ori37
ActsDivorce Act, 1869 - Sections 19
AppellantRanjuk Ranjan Das
RespondentSmt. Pranati Kumari Behera
Appellant AdvocateS.K. Dey, Adv.
Respondent AdvocateMahadev Misra and ;B. Das, Advs.
Cases ReferredT. Saroja David v. Christie Francis
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........day, had inherited this jurisdiction from the ecclesiastical courts. ultimately, by statute the high courts have inherited their jurisdiction direct from the supreme courts. thus the power to make decrees of nullity of marriage on the ground of duress or fraud was inherited by the supreme courts, from the ecclesiastical courts and the high courts inherited that power from the supreme courts .....' this, in our view, seems to be the correct position in law. the district court, therefore, had no jurisdiction to entertain the application and the reference thus is incompetent. we cannot in the circumstances confirm the decree. the reference is discharged. it is open to the husband if he is so advised to move this court in an appropriate proceeding. there will be no order for costs. panda,.....
Judgment:

R.N. Misra, J.

1. This is a reference made under Section 20 of the Divorce Act, 4 of 1869 (hereinafter referred to as the 'Act') by the learned District Judge of Cuttack for confirmation of the decree of nullity of marriage between the spouces.

2. The husband made an application to the learned District Judge purporting to be under Section 18 of the Act and alleged that the father of the wife suppressed the fact that she had become pregnant through some other source by the time of marriage between the spouses which took place on 10th of April, 1976, and lured the husband to marry on the representation that provision would be made for him for earning livelihood. Soon after the marriage, the husband discovered the fact that his wife was already pregnant before marriage and claimed that the marriage was a nullity on the ground that the husband's consent had been obtained by fraud.

3. The wife remained ex parte and on the basis of the evidence given by the husband and another, the learned District Judge accepted the allegations of the husband and declared the marriage to be a nullity on account of fraud subject to confirmation of the said decree by this Court.

4. Section 18 of the Act provides that any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void. The gounds of decree are contained in Section 19 which provides :--

'Such decree may be made on any of the following grounds :

1. that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

2. that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;

3. that either party was a lunatic or idiot at the time of the marriage;

4. that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

Nothing in this section shall affect the jurisdiction of the High Court to make decrees of' nullity of marriage on the ground that the consent of either party was obtained by force or fraud.'

The ground on which the petition was laid before the District Court is that consent of the husband had been obtained by fraud. The jurisdiction to entertain a petition on such ground is exclusively of the High Court. It has been pointed out in the case of T. Saroja David v. Christie Francis, AIR 1966 Andh Pra 178 (at p. 179) :--

'It may be observed that in so far as dis-j solution of marriage and nullity of marriage on the specific grounds stated in Section 19 are; concerned both the District Court and the High Court have concurrent jurisdiction and when the case is one for declaration of nullity of marriage on the ground of force or, fraud, the exclusive jurisdiction of the High Court is saved. In order to understand what this jurisdiction is, it is necessary to refer to the history of that jurisdiction. Originally, the Ecclesiastical Courts in England were empowered to deal with matrimonial matters. The Supreme Courts in India which were administering the English Law as it was on a particular day, had inherited this jurisdiction from the Ecclesiastical Courts. Ultimately, by statute the High Courts have Inherited their jurisdiction direct from the Supreme Courts. Thus the power to make decrees of nullity of marriage on the ground of duress or fraud was inherited by the Supreme Courts, from the Ecclesiastical Courts and the High Courts inherited that power from the Supreme Courts .....'

This, in our view, seems to be the correct position in law. The District Court, therefore, had no jurisdiction to entertain the application and the reference thus is incompetent. We cannot in the circumstances confirm the decree. The reference is discharged. It is open to the husband if he is so advised to move this Court in an appropriate proceeding. There will be no order for costs.

Panda, J.

5. I agree.

P.K. Mohanti, J.

6. I agree.


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