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Nanikaram Gellaram Vs. Drupadiben - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 246 of 1968
Judge
Reported inAIR1974Guj111; (1973)GLR620
ActsHindu Marriage Act, 1955 - Sections 12(2)
AppellantNanikaram Gellaram
RespondentDrupadiben
Appellant Advocate N.H. Bhatt and; K.K. Chokhawala, Advs.
Respondent Advocate S.G. Shah, Adv.
Cases ReferredMokshamandanlal v. Hariprasad Vishnuprasad
Excerpt:
.....- section 12 (20) of hindu marriage act, 1955 - section 12 (20) (b) (ii) does not prescribe period of limitation - it lays down condition precedent to entertainment of application for seeking relief of nullity of marriage - no petition for annulment of marriage to be entertained unless proceedings instituted within one year of commencement of act when marriage solemnized before commencement of act - in case marriage solemnized after commencement of act then one year to be reckoned from date of marriage. - - ' sub-section (2) reads 12 (2) notwithstanding anything contained in sub-section (1) ,no petition for annulling a marriage (a) x x x (b) on the ground specified in clause '(d) of sub-section (1) shall be entertained unless the court is satisfied- (i) x x x (ii) that..........proceedings are instituted within one year from the date of the marriage. it does not prescribe a period of limitation. clearly, therefore section 10 of the general clauses act 1897 will have no applicability in such a case. the bombay high court in : air1962bom190 (supra) has dealt with a similar situation and has taken the view that the condition laid down in section 12(2)(b)(ii)of the act does not prescribe a period of limitation for filing a petition by the plaintiffs, it is in terms mandatory and prohibitory and provides that the court shall not entertain the petition. if the conditions laid down therein are not satisfied. these conditions are in absolute terms and they cannot be relaxed. condition (ii) in clause(b) is self-evident and if the examination of the petition discloses.....
Judgment:

1. This petition involves a simple question of law as regards the interpretation of clause (b) (ii) of sub-section (2) of Section 12 of the Hindu Marriage Act. 1955 (Act No. 25 of 1955) thereinafter referred to as the Act). The original petition namely, H.M.P. No. 5 of 1965 was filed under sub-section (1) of Section 12 of the Act for annulment of the marriage on the ground covered by clause (d), namely that the respondent was at the time of the marriage pregnant by some person other than the petitioner. The petitioner's case was that his marriage with the respondent wife was solemnized, according to Hindu religious rites on June 1, 1964 at Kubernagar in Ahmedabad. At that date, he did not know that the respondent was pregnant. He came to know about it only in the month of October 1964. The respondent-wife delivered a child on October 25, 1964. The respondent-wife is now staying with her parents at Ankleshwar. It was on this allegation that the petition was filed on June 14, 1965. The respondent-wife contested the Petition by her written statement wherein she inter alia contended that her betrothal with the petitioner took place in March 1963. When her brother was in service at Anand she went to live with her brother at Ankleshwar on the transfer of her brother to Ankleshwar. She contended that during this period, the petitioner used to visit her brother's place at Ankleshwar very often that he had come twice and for the last time in January 1964 the petitioner came again to Ankleshwar that by that time both came in close contact and in January 1964 there was sexual intercourse between them. She contended that the petitioner used to see her secretly and that she had disclosed the f act of her pregnancy to the petitioner one month prior to the marriage and that fact was also known to the parents of the petitioner, She contended that the petition was not filed within one year of their marriage and could not be entertained.

2. The learned Civil Judge Senior Division. Narol , before whom this petition was filed raised a preliminary issue as regards the maintainability of the petition, in view of the provisions in Section 12(2)(b)(ii) of the Act. He found relying upon a Bombay decision, that the petition was not maintainable The decision relied upon was the one of the Division Bench of the Bombay High Court consisting of Patel and Chandrachud J.J. in Savlaram v. Yeshodabai : AIR1962Bom190 , decided on 4-9-1961. Wherein the view taken is that Section 10 of the General Clauses Act 1897, (Act No. 10 of 18971 does not apply in the case of a petition filed under Section 12 (11 (d) of the Act. as condition in Section 12(2)(b)(ii) is not complied with. It is against this decision that the present second appeal has been filed.

3. It is admitted that the proceeding has been instituted not within one year from the date of the marriage Section 12 of the Act deals with voidable marriages and the grounds on which a marriage may be annulled by a decree of nullity. The relevant ground which has been urged is one which falls under clause (d) of sub-section (1) of Section 12 of the Act. Section 12(11)(d) provides.

'12(1) Any marriage solemnized whether before or after the commencement of this Act. Or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a), (b), (c) x x x x x

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.'

Sub-section (2) reads

'12 (2) Notwithstanding anything contained in sub-section (1) , no petition for annulling a marriage

(a) x x x

(b) on the ground specified in clause '(d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) x x x

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage.

(iii) x x x

Sub-section (2) of Section 12 provides that, a petition for a decree of nullity, on any of the four grounds, shall not be entertained. Unless the Court is satisfied that the proceedings have been instituted within one year from the date of the marriage. The Provision is a mandatory one and creates a bar to the entertainment of the petition under Section 12(1)(d), unless the Court is satisfied that the proceedings are instituted within one year from the date of the marriage. It does not prescribe a period of limitation. Clearly, therefore Section 10 of the General Clauses Act 1897 will have no applicability in such a case. The Bombay High Court in : AIR1962Bom190 (supra) has dealt with a similar situation and has taken the view that the condition laid down in Section 12(2)(b)(ii)of the Act does not prescribe a Period of limitation for filing a petition by the plaintiffs, it is in terms mandatory and Prohibitory and provides that the Court shall not entertain the petition. if the conditions laid down therein are not satisfied. These conditions are in absolute terms and they cannot be relaxed. Condition (ii) in clause(b) is self-evident and if the examination of the petition discloses that the condition is not fulfilled the Court must dismiss the Petition. It has been held that a petition filed for nullity of marriage on the ground mentioned In Section 12(17)(d) on the day on which the Court opened after long vacation during which vacation the period mentioned in Section 12(2)(b)(ii) ended, cannot be entertained. Thus, I am fortified by this Bombay view and I must accordingly hold that the petition was rightly not entertained. In the result, the appeal fails and is as to costs.

4. Mr. N. H. Bhatt, learned advocate appearing on behalf of the appellant had tried to contend before me that the Bombay view is not correct and that I should refer the matter to a larger Bench . But, I am inclined to take the same view, as the Bombay view. In my opinion, the, language of the section is mandatory and deals only with the entertainment of the petition and does not refer to limitation. I, therefore, do not see any reason to grant the necessary certificate. Leave to file Letters ' Patent Appeal is thus refused. The matter is not referable to a larger Bench.

28th September, 1972

5. After I had delivered judgment in this second appeal, but before I signed it, Mr. N. H. Bhatt appeared with Mr. S. G. Shah, learned advocate of the respondent, and asked for a further hearing of this appeal only so far as the question of grant of certificate for filing Letters Patent Appeal is concerned. He had submitted that there is a Full Bench decision of the Allahabad High Court which took a different view and he wanted to make some submissions on this point. I had, therefore, fixed the matter for rehearing this day. The learned advocates have appeared and made their respective submissions. On behalf of Mr. Bhatt, Mr. Chokhawala has appeared for the appellant and has urged that a Full Bench of the Allahabad High Court in Raja Pande v. Sheopujan Pande AIR 1942 All 429 (FB), while dealing with a case under Section 9(1)(c) of Provincial Insolvency Act (V of 1920) has taken the view that Section 10 of General Clauses Act (X of 1879) applies to all creditors' applications filed under Section 9 of the Act and consequently if the period of three months from the act of insolvency expires on a day when the court is not sitting a creditor's petition of insolvency can be validly presented on the next day when the court is sitting. Now, Section 9(1)(c) of the Provincial Insolvency Act, 1920 (5 of 1920) provides that a creditor shall not be entitled to present an insolvency petition against a debtor unless the art of insolvency on which the petition is grounded has occurred within three months before the presentation of the petition. The section thus provides not a condition precedent to the entertainment of the insolvency application, but prescribes the period within which the insolvency petition has to be filed by a creditor. Section 12(2)(b)(ii) with which I am concerned in this matter, does -not prescribe a period of limitation; but, as aforesaid, it lays down a condition precedent to the entertainment of the application for seeking a relief of nullity of marriage on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner. Sub-clause (ii) of clause (b) of sub-section (2) of Section 12 of the Act provides that notwithstanding anything contained in sub-section (1), no petition for annulling a marriage on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied that the proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage. Thus, what is laid down is a condition precedent for the entertain- of an application of a petition seeking annulment of marriage and not a prescription of a period of limitation for filing an application. The Full Bench decision which deals with the Provincial Insolvency Act can have thus no applicability. It was contended' that one year's period in the instant case fell within the Period of vacation; but that is no ground. A matter which requires to be filed within the period and which period falls during the vacation can be entertained as an urgent application and there is no bar to the competent Court to entertain such an application even during vacation. Again, Section 9 of the Provincial Insolvency Act and this very contention has come to be considered by a Full Bench of the Madras High Court in Chenchuramana Reddi v. Arunachalam AIR 1935 Mad 857 (FB), wherein the Full Bench has taken the view that

'Section 9(1)(c) is a condition precedent to the filing of the petition, that is to say, the Petitioning creditor must, on the d ay when he presents his petition, have in view some act of insolvency which the debtor has committed within the preceding three months.'

The Full Bench has further observed,

'A fraudulent preference Is an Act of insolvency and as Section 9(1)(c) does not Provide a period of limitation, but is a condition precedent as soon as three months' period expires from the date of transfer by a debtor to a creditor, the transaction ceases to be impeachable by other creditors under the Insolvency Act and the transfer ceases on that day to be an act of insolvency. An insolvency petition cannot therefore be presented, where three months have expired during the vacation, just after the vacation.'

This Full Bench decision has been followed by the Nagpur High Court in Chintaman Laxman v. Ramgopal Raghunathdas AIR 1948 Nag 385. The learned Judge has dissented with the view taken by the Full Bench of the Allahabad High Court and has taken the view that the period of three months prescribed under Section 9(1)(c) of the Provincial Insolvency Act is not a period of limitation, but is a condition precedent to the filing of the insolvency petition itself. A Division Bench of the Calcutta High Court in Muradan Sardar v. Secy. of State : AIR1939Cal313 , has followed the Full Bench Madras decision. An earlier decision of the Bombay High Court delivered by J. C. Shah, J., (as he then was) in Mokshamandanlal v. Hariprasad Vishnuprasad : AIR1956Bom650 , has taken the view that Section 9(1)(c) of Provincial Insolvency Act, 1920, does not prescribe a period of limitation for presentation of a petition by a creditor for adjudication but sets out a condition precedent, and by applying the rule contained in Section 14 of the Limitation Act a petition filed after the expiry of three months cannot be made to conform to the strict requirement of Section 9(1)(c) of the Provincial Insolvency Act. In the Bombay case, it was held that

'Where the petition for adjudicating the respondent an insolvent was lodged in the Insolvency Court at Broach on 23-4-1951 which had no jurisdiction to entertain the petition the proceeding taken in the insolvency Court at Borivli on 15-11-1951 could not be regarded as an extension of the proceeding filed in the former Court, and the petition must be regarded as presented on 15-11-1951. The petition having been presented more than three months after the date on which the act of insolvency occurred, it must be regarded as not complying with the requirement of Section 9 of the Provincial Insolvency Act.'

Dealing with the Full Bench decision of the Allahabad High Court in AIR 1942 All. 429 (FB), Shah J. has observed:

'The learned Judges who constituted the Full Bench arrived at their decision on different grounds, Iqbal Ahmad, C. J., and Plowden J., expressed the opinion that the period of three months in Section 9(1)(c) was a 'period of limitation' but they observed that even if it were not, Section 10 of the General Clauses Act applied to petitions for insolvency. They also expressed the opinion that a petition for adjudicating a debtor an insolvent was not a suit, appeal or application for which a period of limitation was prescribed by any special or local law and therefore, the sections referred to in Section 29(2) of the Limitation Act did not apply thereto.'

The learned Judge has then referred to the observations of Dar, J. and Dar, J. held that

'S. 9(1)(c) prescribed a period of limitation for an application under a special law and by the operation of Section 29(2), Section 4 of the Limitation Act applied to a petition for adjudication. The Court in that case refused to accept the 'View that Section 9(1)(c) of the Provincial Insolvency Act did not prescribe a period of limitation taken by the Madras High Court in AIR 1935 Mad 857 (FB) and the Calcutta High Court in AIR 1939 Cal 313.'

Shah J. has then observed that:

'It is difficult to appreciate the distinction between 'a petition' and an application within the meaning of Section 29(2) of the Limitation Act. However in view of the proviso enacted by the Parliament by Act III of 1950, the question whether in the circumstances the petition for adjudication in Raja Pande's case may be regarded as maintainable is academic.

But for reasons hereinbefore mentioned, I am unable to agree with the view that Section 9(1)(c) prescribes a period of limitation and is not in form and substance a condition on the strict compliance of which alone a petition for adjudication can be maintained.'

As aforesaid, he has taken the view that Section 9(1)(c) does not prescribe a period of limitation for presentation of a petition by a creditor for adjudication but sets out a condition precedent, and by applying the rule contained in Section 14 of the Limitation Act a petition filed after the expiry of three months cannot be made to conform to the strict requirement of Section 9(1)(c) of the Provincial Insolvency Act. With respect, I agree with the reasoning of Shah J. which again having been delivered before 'the appointed day' and on the bifurcation of the bigger bilingual Bombay State is binding to me. In my opinion, therefore, Mr. S. G. Shah, learned advocate , appearing on behalf of the respondent, who has relied upon the Madras Full Bench decision and on Nagpur, Bombay and the Calcutta High Court decisions is right when he contends that Section 10 of the General Clauses Act will not be attracted in the instant case especially when I am here concerned with a case falling under Section 12(1)(d) read with Section 12(2)(b)(ii) of the Hindu Marriage Act, 1955. I cannot, therefore, accept Mr. Chokhawala's contention that this is a fit case in which I should grant a certificate to the appellant for filing Letters Patent Appeal.

6. The decision given by me earlier on September 26, 1972 thus stands and leave to file Letters Patent Appeal is refused.

7. Appeal dismissed.


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