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P. Dass Vs. Mrs. Nischinta Das and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberMatrimonial Ref. No. 8 of 1950
Judge
Reported inAIR1954P& H93
ActsDivorce Act, 1869 - Sections 17
AppellantP. Dass
RespondentMrs. Nischinta Das and anr.
Advocates: D.D. Khanna, Adv.
DispositionPetition dismissed
Excerpt:
.....act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a)..........the explanation given to the learned judge being that although the petitioner came to know of his wife's adultery in december 1946, he did not file a petition for three years because he was making every effort to persuade his wife to come back which explanation was accepted by the learned judge to be reasonable and a decree 'nisi' was made thereupon.4. in the bombay high court, where a suit for divorce was filed by the wife nischinta das on the ground of her husband's adultery, desertion and cruelty, two questions were raised by the present petitioner, lt. col. p. dass, -- (1) whether tnat court had jurisdiction to try the suit, and (2) whether she was a displaced person. ten-dolkar j. on the 12th december 1949 found on these matters in favour of the wife. an appeal was taken under the.....
Judgment:

Kapur, J.

1. This is an application made by Lt. Col. P. Dass for confirmation of the decree 'nisi' passed by the District Judge of Delhi on the 16th of June, 1950, dissolving the marriage between the petitioner Lt. Col. p. Das and his wife Nisehinta Dass on the ground of her adultery with Ram Kumar Gai who was the co-respondent in the petition.

2. On the 31st of December, 1949, the petitioner, Lt. Col. P. Dass filed an application in the Court of the District Judge, Delhi, alleging that he was married to the respondent under the Special Marriage Act of 1872, that there were two children of the marriage - both sons - and that the parties last resided together at Delhi from where the respondent Nischinta Das deserted on the 14th of August, 1946, and all attempts made by him to get her to come back were of no avail. Continuing the petitioner alleged that the respondent started leading a fast life about two years after the marriage and began to neglect the children and while he was away from India on military service the respondent lived alone at Lahore & committed adultery with various persons. In paragraph 7 he alleged that she had committed adultery in Lahore and after deserting him in August 1946 she was living in adultery with theco-respondent in Delhi, Amritsar, Lahore, Bombay, and various otner places and was at the time of the petition living in adultery with the corespondent at 76, Marine Drive, Bombay. He stated in this petition that she had sued for divorce in the High Court of Judicature at Bombay on the 31st of May, 1949.

3. The learned District Judge on the evidence which was produced before him held that adultery by the wife was proved. He also took into consideration the delay in bringing the petition for divorce, the explanation given to the learned Judge being that although the petitioner came to know of his wife's adultery in December 1946, he did not file a petition for three years because he was making every effort to persuade his wife to come back which explanation was accepted by the learned Judge to be reasonable and a decree 'nisi' was made thereupon.

4. In the Bombay High Court, where a suit for divorce was filed by the wife Nischinta Das on the ground of her husband's adultery, desertion and cruelty, two questions were raised by the present petitioner, Lt. Col. p. Dass, -- (1) whether tnat Court had jurisdiction to try the suit, and (2) whether she was a displaced person. Ten-dolkar J. on the 12th December 1949 found on these matters in favour of the wife. An appeal was taken under the Letters Patent against this judgment and the judgment was confimed, the Bench holding that the wife was a displaced person. On the 11th September 1950, Tendolkar J. gave a decree 'nisi' against Lt, Col. P. Dass, exercising discretion in her favour, and this decree has since been made absolute.

5. On the 4th December 1950, the matter of confirmation came up before this Court, but as the six months had not expired since the passing of the District Judge's decree, the matter was adjourned, and on the 18th December on this Court being informed that a decree 'nisi' had been granted by the Bombay High Court and then an appeal against that decree had been taken by the petitioner in this case (Lt. Col. P. Dass) the matter was again adjourned to April 1951 and on the 2nd April the case was adjourned to await the result of the proceedings in the Bombay High Court and at the request of counsel for Col. P. Dass the matter was again adjourned in July and finally it was heard by this Court on the 4th May 1953 when an order was passed that a copy of the Bombay High Court's order must be furnished.

6. After the Letters Patent Appeal of Lt. Col. Dass was dismissed the decree was made absolute by Tendolkar J. on the 18th April, 1952. The decree in Bombay having been made absolute, there is 110 subsisting marriage between the parties to the proceedings before us which have therefore become infructuous. We would therefore not confirm the decree and dismiss the petition.

7. In the result, there will be no decree for dissolution passed by the Delhi Court as those proceedings have become Infructuous and the petition is dismissed, but the parties will bear their own costs.

Soni, J.

8. I agree.

Harnam Singh, J.

9. I agree in dismissing the petition leaving the parties to bear their own costs.


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