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Manilal Harjivandas Vs. Gangaben Ganeshbhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 412 of 1976
Judge
Reported inAIR1979Guj98; (1978)GLR1076
ActsCode of Civil Procedure (CPC), 1908 - Sections 11, 21 and 100 - Order 41, Rule 25 - Order 42, Rule 1; Hindu Marriage Act, 1955 - Sections 9, 13(1A), 19 and 23(1)
AppellantManilal Harjivandas
RespondentGangaben Ganeshbhai
Appellant Advocate Suresh M. Shah, Adv.
Respondent Advocate G. Vyas, Adv.
Cases ReferredManendra v. Sushila
Excerpt:
family - jurisdiction - section 21 of code of civil procedure, 1908 - appellate court or revisional court may interfere with findings of question of territorial jurisdiction if two conditions satisfied - firstly objection of jurisdiction taken in court of first instance at earliest possible opportunity and before issues settled - secondly there must be consequential failure of justice. - - 4. section 9 of the act provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other' the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 $he statements made in such petition and that there is no legal ground why the application should not.....1. the parties to this second appeal were married in village sander district mehsana according to hindu rites, some time in the year 1961. the husband contends that they last resided together in bhavnagar in the month of dec. 1970 and thereafter his wife deserted him and refused to resume cohabitation. on this ground, he filed a petition no. 39/71 in the court of the learned civil judge, senior division, bhavnagar, under section 9 of the hindu marriage act, 1955, hereinafter called 'the act' for restitution of conjugal rights. the respondent-wife, though served with the summons of the said petition, did not enter appearance and allowed it to be disposed of ex parte. the learned judge framed issues at ex. 6 and came to the conclusion that the respondent-wife had, without reasonable excuse,.....
Judgment:

1. The parties to this Second Appeal were married in village Sander District Mehsana according to Hindu rites, some time in the year 1961. The husband contends that they last resided together in Bhavnagar in the month of Dec. 1970 and thereafter his wife deserted him and refused to resume cohabitation. On this ground, he filed a petition No. 39/71 in the court of the learned Civil Judge, Senior Division, Bhavnagar, under Section 9 of the Hindu Marriage Act, 1955, hereinafter called 'the Act' for restitution of conjugal rights. The respondent-wife, though served with the summons of the said petition, did not enter appearance and allowed it to be disposed of ex parte. The learned Judge framed issues at Ex. 6 and came to the conclusion that the respondent-wife had, without reasonable excuse, withdrawn from the society of the husband. He, therefore, granted a decree for restitution of conjugal rights under section 9 of the Act on 23rd August, 1971. The certified copy of the judgment in the said petition is at Ex. 29. After the said decree was passed in favour of the husband, the respondent-wife was served with a notice dated Ist February, 1971 informing her of the decree for restitution of conjugal rights in his favour and calling upon her to resume cohabitation and fulfil her marital obligations. The respondent-wife did not answer this notice nor did' she return to the house of her husband in campliance with the decree passed in his favour. On the expiry of the statutory period, the husband, therefore, filed a petition No. 36/73 in the court of the learned Civil Judge, Senior Division, Bhavnagar, claiming divorce under : clause (ix) of sub-section (1) of S. 13 of the Act~ The respondent-wife entered appearance and resisted the petition for divorce by her written statement Ex. 10. The learned trial Judge framed appropriate issues A Ex. 12 and came to the conclusion that the respondent-wife had not complied with the decree for restitution of conjugal rights. The question of jurisdiction of the court was specifically raised in the written statement and the learned trial Judge raised an issue in this behalf and held that in view of the previous decree for restitution of conjugal rights having been passed by the Bhavnagar court, it was not open to the respondent-wife to reiterate the question of territorial jurisdiction of the court in the subsequent petition and accordingly granted a decree for divorce on 18th February, 1975.

2. The respondent-wife preferred an appeal No. 41/75 in the court of the learned District Judge, Bhavnagar, challenging the decree for divorce granted by the trial court. The main contention which was urged before the learned District Judge was regarding the territorial jurisdiction of the Bhavnagar court to try and dispose of the petition for divorce. The learned District Judge came to the conclusion that the evidence on record disclosed that the parties did not last reside together at Bhavnagar, as contended by the petitioner, and hence, the Bhavnagar court had no jurisdiction to entertain, try and dispose of the divorce petition. He also came to the conclusion that the decree for restitution of conjugal rights was a nullity in as much as the Bhavnagar court had no jurisdiction to entertain any petition under the Act between the parties as they did not last reside together in Bhavnagar. In that view that he took, he allowed the appeal and dismissed the husband's petition for divorce. It is against this order passed by the learned District Judge that the petitioner-husband has preferred this Second Appeal.

3. The first question which this court must answer is whether the Bhavnagar court had jurisdiction to entertain, try and dispose of the divorce petition of the husband founded on the earlier decree for restitution of conjugal rights granted in his favour by the Bhavnagar court in petition No. 39/71. S. 19 of the Act, as it then stood, reads as under:

'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 solemnised or the husband and wife reside or last resided together.'

The submission made on behalf of the wife before the learned trial Judge was that the decree for restitution of conjugal rights obtained by the husband was a nullity inasmuch as the Bhavnagar court had no jurisdiction to entertain the said petition. This objection, it may be clarified, related to the territorial jurisdiction of the Bhavnagar court, in that, according to the respondent-wife, she and her husband did not last reside together in Bhavnagar, as alleged by the latter. The trial court rejected this contention on two grounds, namely, (i) such a contention is not open in collateral proceedings as the court is not entitled to go beyond the decree made in the earlier petition unless it is set aside in a subsequent suit brought for that purpose; and (ii) even on the evidence on record, it was obvious that the couple last resided together in Bhavnagar. In appeal, the learned District Judge held on merits that the brief or temporary visit of the wife to Bhavnagar around January, 1971 did not amount to 'she having last resided with her husband' and hence, the couple could not be said to have last resided together in Bhavnagar within the meaning of S. 19 of the Act. In that view that the learned District Judge took, he not only allowed the appeal dismissing the petition for divorce but took the additional step of holding that the decree for restitution of conjugal rights obtained by the husband was a nullity as the Bhavnagar court had no jurisdiction to grant such a decree. This view of the learned District Judge is seriously challenged before me by Mr. Shah, the learned advocate for the petitioner-husband.

4. Section 9 of the Act provides that when either the husband or the wife 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 $he 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. By virtue of section 19 of the Act, the petition must be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together. The petition for restitution of conjugal rights was founded on the allegation that the husband and wife last resided together at Bhavnagar, after the respondent-wife came to Bhavnagar in Dec. 1970. It was urged that the parties lived together in Bhavnagar for about 2 months and thereafter the respondent wife went to Sander on 29th Jan. 1971 on receipt of a letter from her brother She did not return to Bhavnagar to resume cohabitation even though she was served with a notice by registered post on 21st June, 1971 in that behalf. The husband, therefore, initiated proceedings against the wife under S. 9 of the Act in the Bhavnagar court and succeeded in obtaining an ex parte decree for restitution of conjugal rights on 23rd Aug 1971. This becomes clear if we refer to the averments set out in the judgment Ex. 29 of the court which awarded a decree for restitution of conjugal rights to the husband. It is indeed true that no specific issue was raised by the learned Judge on the question whether the Bhavnagar court had jurisdiction to try the petition for restitution of conjugal rights but it is obvious from the above averments that the husband approached the court with the allegation that the parties last resided together in Bhavnagar and, therefore, the court had jurisdiction to pass a decree in his favour. Now the question whether the parties last resided together in Bhavnagar is a question of fact. The question of jurisdiction of the Bhavnagar court is solely dependent on the answer that the court may give on this question of fact. This is not a case in which the court's jurisdiction to pass a decree for restitution of conjugal rights is challenged on the ground of want of inherent jurisdiction. Mr. Shah, therefore, submitted that the petition for restitution of conjugal rights filed by the husband concluded on the court having granted a decree in his favour on the finding that the parties last resided together in Bhavnagar. It must be conceded that no specific issue in this behalf was raised by the court hearing the petition under S. 9 of the Act but, contended Mr. Shah, the question must be deemed to have been concluded in favour of the husband for, if it was not so, the court could not have granted a decree for restitution of conjugal rights. Mr. Shah, therefore, submitted that the learned District Judge was not entitled to upset the decree for restitution of conjugal rights in an appeal arising out of a petition subsequently filed for divorce by coming to the conclusion on the evidence placed in the divorce petition that the Bhavnagar court had no Jurisdiction to entertain such a petition. The next limb of the submission was that once the question regarding the territorial jurisdiction of the court was decided in favour of the existence of jurisdiction, the rule of constructive res judicata contained in Explanation IV of S. 11 of the Civil P.C., would debar the court trying the subsequent petition for divorce to reach an opposite conclusion and hold that the Bhavnagar court has no jurisdiction. There is considerable merit in the submissions made before me by Mr. Shah.

5. As pointed out in the foregoing paras of this judgment, the petition for restitution of conjugal rights was filed in the Bhavnagar court by the husband on the allegation that the couple last resided together in Bhavnagar in Dec. 1970 for about two months. The learned trial Judge, who disposed of the petition for restitution of conjugal rights, did not raise any specific issue in this behalf but he passed a decree in favour of the husband. By necessary implication, therefore, the learned trial Judge accepted the evidence of the husband in this behalf and thought that the Bhavnagar court had jurisdiction and granted a decree for restitution of conjugal rights in favour of the husband. It must be remembered that the respondent-wife did not contest that petition and allowed it to be decided ex parte. Under S. 19 of the Act, the court was competent to grant a decree to the husband accepting his allegation that the couple last resided together in Bhavnagar. S. 21, C. P.C. provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.. In order that an appellate or revisional court may interfere with the findings on the question of territorial jurisdiction, this section requires two conditions to be satisfied; namely, (i) that the objection as to jurisdiction was taken in court of first instance at the earliest possible opportunity and before the issues were settled; and (ii) there has been a consequential failure of justice. Therefore, even if the question of territorial jurisdiction is raised at the earliest point of time in the court of first instance and in every case before the issues are settled, the appellate or revisional court would not be ju3tified in interfering with the finding in favour of existence of jurisdiction unless it is further shown that the same has resulted in failure of justice. 'In the instant case, Mr. Shah, rightly pointed out that the respondent-wife did not contest the petition for restitution of conjugal rights. He further pointed out that there is nothing on record to show that according to the respondent-wife the finding of the court in favour of existence of jurisdiction has resulted in failure of justice. A vain attempt was made by Mr. Vyas to urge that she did not defend the petition as it was filed in the Bhavnagar court because the expense would have been prohibitive. The respondent-wife has not uttered a word in this behalf, even if it is assumed for the sake of argument that such a contention is open to her in the subsequent petition filed by the husband for divorce., It, therefore, becomes clear that in view of S. 21, C.P.C. even the appellate or revisional court could not have set aside the decree for restitution of conjugal rights on the ground that the Bhavnagar court had no jurisdiction unless the afore said two conditions were satisfied. Much less, therefore, in a subsequent petition for divorce, founded on the decree for restitution of conjugal rights granted in the earlier proceedings could the court go into the question of territorial jurisdiction and hold that the decree for restitution of conjugal rights is a nullity as the parties did not, in fact, last reside together in Bhavnagar. The decision of the learned District Judge holding that the decree for restitution of conjugal rights is a nullity, proceeds on the ignor-1 once of the provisions of S. 21 C.P.C.

6. A reference to Hira Lal Patni v. Kali Nath : [1962]2SCR747 , will make it clear that it is settled law that objection as to legal jurisdiction of a court stands on a different footing from an objection as to the competence of the court to try a case. Competence of a court to try a case goes to the very root of jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. But an objection as to the legal jurisdiction of a court can be waived and this principle has received statutory recognition in S. 21, C.P.C. In para 4 of the judgment, their Lordships have made it clear that the validity of a decree can be challenged in execution proceedings only on the ground that the court, which pass~ ed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign' to its jurisdiction. 'These observations lend support to the argument that a decree passed in earlier proceedings cannot be struck down as a nullity in collateral proceedings on the ground that the court which passed the decree was lacking in legal jurisdiction.

7. It is true that in the earlier petition, the question whether the Bhavnagar court had jurisdiction to decide the petition for restitution of conjugal rights was riot specifically raised by the trial court. It is, however, clear from the facts set out in the judgment that the petitioner went to court on the allegation that the parties to the petition last resided together in Bhavnagar within the meaning of S. 19 of the Act. S. 11, C.P.C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court competent t; try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Reliance was placed on Explanation IV to this section which reads as under:

'IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'

Mr. Shah argued, relying on the language of this Explanation, that the question regarding the territorial jurisdiction of the Bhavnagar court was a matter in issue in the former suit and the respondent wife ought to have made it a ground of defence if, according to her, the parties had not last resided together in Bhavnagar within the meaning of S. 19 of the Act. If the respondent-wife chooses to remain absent on the service of the summons of the institution of the proceedings and allows the matter to be decided ex parte, it must be held that she failed to raise the ground of defence which she ought to have raised to defeat the petition for restitution of conjugal rights. It she fails to contest the husband's allegation that the parties last resided together in Bhavnagar, even though the issue may rot have been specifically raised by the court, the matter must be deemed to have been directly and substantially in issue in the former suit in view of the above Explanation. Explanation IV, therefore, introduces the principle of constructive res judicata and provides that if any matter which might or ought - to have been made a ground of defence in the former suit between the same parties is not set tip the matter shall be deemed to have been directly and substantially in issue in such a suit. In my opinion, on the principle of constructive res judicata an objection to the territorial jurisdiction of the court in the previous suit, which might or ought to have been raised therein, must be deemed to have been heard and decided in favour of the existence of jurisdiction and the party, which chooses not to raise the issue in defence is precluded from raising it in a subsequent petition between the same parties. It is unnecessary to refer to a plethora of cases on this point but it will be sufficient to reproduce the observations of Fawcett, J. in Rajaram Tukararn v. Central Bank of India Ltd. : AIR1926Bom481 . In the second column on p. 486, says the learned Judge:

'The decisions in question will be found cited in Mulla's Commentary on the Civil P.C., 7th Edn. p. 39. In addition to the Bombay cases there cited, I may refer to Chhaganlal v. Bai Karkha ((1909) 11 Bom LR 345) and Baishanker Nanabhai v. Morarji Keshavji & Co. ((1911) 13 Bom LR 950) which are supported by the Privy Council decision in Raja of Ramnad v. Yelusarni Tevar (48 Ind App 45): (AIR 1921 PC 23) of my remarks in Gadigappa v. Shidappa (ILR 48 Bom 698 at p. 652) (AIR 1924 Born. 495). These decisions all go upon the view that, where a matter has been constructively in issue so as to bring it under Expln. 4 to S. 11, it could not, from the very nature of the case, be heard and decided, and it will be deemed to be heard and decided, against the party who might and ought to have alleged it.'

These observations clearly support the view that I take.

8. Mr. Vyas, the learned advocate for the respondent-wiie tried to explain away this view by saying that it can apply to only those bases where it is necessary for the defendant to defend the action but not otherwise. His submission was that the wife was always ready and willing to resume cohabitation but it was the conduct of the husband which made it difficult for her to go and live with him. He, therefore, submitted, that the wife had no objection to a decree for restitution of conjugal rights being awarded to the husband as she herself was ready and willing to resume cohabitation. It was therefore, not necessary for the respondent-wife to defeat the action for restitution of conjugal rights commenced by her husband and, hence, argued Mr. Vyas, it was not necessary for her to enter appearance and resist the petition on the ground that the Bhavnagar court had no jurisdiction to deal with the matter. There is no merit in this submission for the obvious reason that under sub-section (1A) of S. 13 of the Act, on the expiry of the statutory period either party to the marriage was entitled to claim divorce on the ground that there had been no restitution of conjugal rights after the passing of the decree. If the wife wanted to avoid the consequence set out in sub-section (1A) of S. 13 of the Act, it was necessary for her to defend the petition brought by the husband for restitution of conjugal rights. I am, therefore, not impressed by the submission of Mr. Vyas that it was absolutely unnecessary for the respondent-wife to defend the action commenced by her husband and, therefore, Explanation IV to S, 11, CRC can have no application.

9. Mr. Vyas next submitted that the petitioner-husband after securing a decree for restitution of conjugal rights did not evince any desire to receive his wife back even though the latter was keen to reunite. He pointed out that the essence of a decree for restitution of conjugal rights is that the husband desiring the company of the wife must make an effort to recall his wife so that they may be able to lead conjugal life. His submission was that the significant feature of a petition for restitution of conjugal rights is that it is a remedy in the direction of preserving the marriage rather than dissolving it and, hence, it is necessary for the husband to show that after securing a decree for restitution of conjugal rights, he made sincere efforts to recall his wife but restitution of conjugal rights was not possible because of the attitude adopted by his wife. Mr. Vyas invited my attention to the letters Exhs. 30 to 33 and 60 as well as the document Ex. 56 which shows that she resigned her job with effect from 21st July, 1972 in support of his submission that the respondent-wife was ever desirous of returning to the fold of her husband and had in fact, with that view in mind, gone to Malund, the residence of her father-in-law, as her husband had no fixed place of abode in Bhavnagar, where he was still studying. By taking me through this documentary evidence as well as the oral testimony of the respondent-wife, Mr. Vyas attempted to impress upon me that the decree for restitution of conjugal rights could not be made effective, not because of the attitude adopted by the wife but because he husband was not sincere and had evincea no desire whatsoever to restart life with his wife. This submission of Mr. Vyas was repelled by Mr, Shah, firstly, on the ground that under section 9 of the Act, a decree for restitution of conjugal rights could only be passed in favour of the husband on proof that the wife had withdrawn from his society without reasonable excuse. He next submitted that a decree for divorce cannot be refused on the ground that the husband was trying to take advantage of his own wrong unless it is established he is guilty of misconduct, serious enough to justify denial of the relief to which he is otherwise entitled. A mere disinclination to agree to an offer of reunion will not be enough to defeat the husband's claim for a decree of divorce on the ground that the decree for restitution of conjugal rights had not been complied with. It was pointed out by Mr, Shah that these are pure questions of fact and this court in Second Appeal would not be entitled to review the evidence to come to a conclusion different from the concurrent findings of fact recorded in this behalf by both the courts below. I think there is considerable force in the submission of Mr. Shah. The trial court while dealing with this aspect of the matter, observed as under:

'If we keep the above dates before our eves, then it will be apparent that the whole story put up by the opponent about having stayed with the petitioner at Malund is nothing but a concoction, it is very clear that from 1-7-72 up to 31-12-72 the petitioner had never stayed at Malund even for some days and for this reason it cannot be believed that the opponent had stayed with him in the months of May and July at Malund'

After referring to the letter, to which my attention was drawn by Mr. Vyas the learned trial Judge concluded 'I refuse to believe the opponent that after she received the letter Ex. 31, she had gone to stay with the petitioner at Malund'. The learned trial Judge had raised a specific issue on the point whether the petitioner was taking advantage of his own wrong or disability and had answered it in the negative. This finding of fact was seriously challenged in appeal before the learned District Judge. The learned District Judge considered the oral as well as the documentary evidence in this behalf and refused to believe the wife's contention that she had gone to Malund to resume cohabitation with her husband. The learned District Judge in terms agreed with the view taken by the learned trial Judge on the appreciation of evidence and observed as under:

'Therefore, the learned Judge was right in not believing her and was right in coming to the conclusion that appellant did not comply with the decree of restitution of conjugal rights passed in H. M. P. 39/7l.'

It will thus appear from the observations of the two courts below that both the courts have come to the conclusion that it was the wife who had failed to comply with the decree for restitution of conjugal rights. This is a finding of fact and it is not open to me in Second Appeal to review the evidence and come to a different conclusion as urged by Mr. Vyas.

10. The last submission made by Mr: Vyas raises an interesting and neat question of law bearing on the interpretation of sub-section (1) of Section 23 of the Act. Under Section 9 of the Act, either party is entitled to a decree for restitution of conjugal rights, if his or her spouse has withdrawn from his or her society without reasonable excuse, provided there is no legal ground why the application should not be granted. Section 23(l) of the Act next provides as under:

'' 23(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that:-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpo7e of such relief, and

(b) where the ground of the petition is the ground specified in clause (f) of sub-section (1) of Section 10, or in clause (1) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.'

Sub-section (2) of Section 23, with which we are not concerned in this Appeal, enjoins upon the court to make every endeavour to bring about a reconciliation between the parties before proceeding to grant any relief under the Act. On a conjoint reading of Sections 9 and 23(l) of the Act, it becomes obvious that if the petitioner is found taking advantage of his own wrong or disability or if the petition is presented or prosecuted in collusion with the opposite party or there has been an unnecessary or improper delay in instituting the proceedings or there is any other legal impediment, the court would be justified in refusing to pass a decree in favour of the petitioner. Sub-section (1) of Section 23 circumscribes the jurisdiction of the court trying matrimonial causes under the Act. It imposes an obligation or duty on the court to satisfy itself that the petition does not suffer from any of the impediments set out in cls. (a) to (e) of that sub-section. This becomes clear from the words 'if he court is satisfied' employed in the opening lines of the sub-section. This is a mandatory duty or obligation cast be the statute on the court whether or not the petition is defended. The concluding words 'in such a case but not otherwise' clearly indicate that the sub-section is mandatory in nature and if the court fails to record its satisfaction in respect of the matters set out in clause (a) to clause (e) of sub-section (1) of Section 23, the decree would be a nullity. In other words, the jurisdiction of the court to grant a relief under the Act depends on its satisfaction that none of the impediments in cls. (.) to (e) of the sub-section exist to deny the relief sought by the petitioner. It is clear from the facts of the present case that the court which granted a decree for restitution of conjugal rights, had failed to apply its mind and perform the mandatory duty cast on it by sub-section (1) of Section 23 of the Act. Mr. Vyas drawing inspiration from the Supreme Court decisions in Rent Control Legislations, argued that the failure on the part of the court which granted the decree for restitution of conjugal rights to apply its mind to matters set out in clauses (a) to (e) of sub-section (1) of Section 23 of the Act, renders the decree for restitution of conjugal rights a nullity and the prayer for divorce, which is solely based on the non-performance of that decree, must, therefore, be rejected. I think Mr. Vyas is on firmer grounds so far as this contention is concerned.

11. In Ferozi Lal Jain v. Man Mal : AIR1970SC794 , the court was dealing with a decree passed on the basis of a compromise between the parties disregarding the requirement of S. 13(l) of the Delhi and Ajmer Rent Control Act, 1952, That section lends protection to a tenant against eviction. It provided that notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) unless the court is satisfied that the tenant had, without the written consent of the landlord, sub-let, assigned or otherwise parted with the possession of the whole or any part of the Premises it is clear from the plain language of the above provision that a decree for possession could be passed by the court only if it was satisfied that one or more of the grounds mentioned in Section 13(l) was established, The Supreme Court pointed out that without such satisfaction the court is incompetent to pass a decree for possession. In other words, say their Lordships, the jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13(l) exist. Then come the relevant observations on which Mr. Vyas placed considerable reliance : They are as under:

'It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.'

The Division Bench of this High Court in Shah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand, (1971) 12 Guj LR 1012, after a review of the case law in this behalf observed that even though a fetter is created by the Legislature that a court under the Rent Act shall not pass an eviction decree unless one or the other of the grounds specified exists and the court is satisfied about the same, the jurisdiction of the Court is held to operate in a wider area, because of the terms of Section 28 of the Bombay Rents, Hotel and Lodging Horse Rates (Control) Act, 1947, which entitles the court to determine conclusively whether or not such a ground for eviction exists. It was pointed out that the satisfaction of the court as to the existence of the relevant ground for eviction, which is a condition for the further exercise of jurisdiction of the court to pass a decree for eviction is a question in issue which is left to the Rent Court to decide. If the Rent Court while deciding this issue reaches a wrong conclusion, it cannot be said that it has clutched at jurisdiction which it did not have. In that case, the Rent Court would be deciding a question of law within its jurisdiction and if the decision is wrong, it can be corrected in appeal. Therefore, even when the court wrongly holds that it was satisfied as to the existence of the relevant ground, it could not be said to be committing an error pertaining to its jurisdiction, It is only when the court passes a forbidden decree by going outside the ambit of jurisdiction i.e. passes decree de hors or ultra vires the Rent Act, that the decree can be attacked on the ground of lack of inherent jurisdiction. In other words, if there is foundation for the Exercise of jurisdiction of the Rent Court, the eviction decree could not be treated as a nullity merely on the ground that the satisfaction of the Court was wrongly reached. Therefore, even if the Court passes a decree on the basis of the compromise arrived at between the parties, without in terms recording its satisfaction in its order, or because it was wrongly satisfied as to the existence of the relevant ground for eviction, the decree cannot be set at naught as a nullity if it is found that there was foundation for the exercise of jurisdiction i.e. there was material on record which would justify the Rent Court in invoking its jurisdiction. This view of the Gujarat High Court was affirmed by the Supreme Court in Nagindas Ramd&v.; Dalpatram Ichharam alias Brijram : [1974]2SCR544 . The principle emerging from a conspectus of the case law was stated in the following words in para 26 of the judgment:

''................the principle that emerges is, that if at the time of the passing of the decree, there was some material before the court, on the basis of which, the court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself.'

Again in para 29 of the judgment, the following relevant observations were made:

'If, on the face of it, the decree does rot show the existence of such material or jurisdictional, fact the Executing Court may look to the original record of the trial Court to ascertain whether there was any material furnishing a foundation for the trial Court's jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial Court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court could have as distinguished from must have been satisfied as to the statutory ground for eviction.'

12. Two more decisions, one of the Allahabad High Court and the other of the Orissa High Court directly bearing on the question of interpretation of Section 23(l) of the Act, were pressed, in service by Mr. Vyas in Smt. Hirakali v. Dr. Ram Asrey Awasthi, AIR 1971 All 291 the Court was dealing with a petition for dissolution of marriage based on a consent decree for judicial separation Linder Section 10 of the Act. After stating the distinction between a decree passed without jurisdiction and a decree passed, in the wrong exercise of jurisdiction, the Court observed as under on page 203 after reproducing Section 23 of the Act:

'The concluding words of sub-section (1) of Section 23, namely, 'in such a case but not otherwise' mean that the provisions of the sub-section are mandatory and the Court will be incompetent to grant a decree if the conditions in subclauses (a), (b), (c), (d) and (e) mentioned in the sub-section which are cumulative, are not fulfilled. The initial words of the section, namely, 'if the court is satisfied' indicate that decrees for judicial separation or dissolution of marriage are passed only upon strict proof of the said conditions, it makes no difference whether the proceeding is defended or undefended.

The court then proceeded to observe in para 9 of the judgment that the provisions of Section 23(l) are mandatory and non-compliance thereof deprives the court of its jurisdiction to grant a decree for judicial separation or dissolution of the marriage. The court then considered the merits of the case and came to the conclusion that none of the grounds on the basis of which a decree for judicial separation could be asked, were proved and, therefore, the decree was one without jurisdiction and a nullity. The Orissa High Court in Anupama Misra v. Bhagaban Misra : AIR1972Ori163 also came to the conclusion that the provisions of Section 23 were mandatory in nature and impose vital conditions on the power and duty of court in the matter of granting any relief under the Act, It was pointed out that before any relief could be granted under the Act the court must examine all the relevant facts, whether the petition is defended or not, before granting the relief. While doing so, the court must apply its mind to Section 23(l) of the Act and must be satisfied with regard to the matters in clauses (a) to (e) of that sub-section before passing a decree claimed in the petition. While referring lo the decision of the Supreme Court in Manendra v. Sushila, AIR 1965 SC 364, wherein the Supreme Court observed that 'a court has to pass a decree in the proceedings only when it is satisfied about certain matters specified in Section 23', the Court observed as under (at p. 166 of AIR 1972 Orissa):

'It has been judicially held 1hat Subsec (1) of S. 23 of the Hindu Marriage Act is mandatory. That is also clear from the concluding words of sub-section (1) viz., 'in such a case, but not otherwise'. It will be incompetent for a court to grant any relief under the Act if the conditions under clauses (a) to (e) of sub-section (1) of this section are fulfilled. This is clear from the opening part of sub-section (1) of this section, 'if the court is satisfied'. The court must reach its satisfaction about the matters specified in Section 23, irrespective of whether a spouse, proceeded against under this Act is defended or not.'

After making the above observations, the learned Judge proceeded to observe that if a decree for any of the reliefs claimed under the Act is passed without the court being satisfied as to the matters specified in Section 23, it amounts to passing of the same in illegal exercise of its jurisdiction and is ineffective in law.

13. It will appear from the above case law that if a decree is passed by a court in ignorance of the provisions of Section 23(l) of the Act, such a decree would be a nullity and a divorce petition based on such a null and void decree would automatically fail. A decree passed under the provisions of the Act on a wrong decision in regard to the matters specified in clauses (a) to (e) of Section 23(l) of the Act would, however, be a valid decree unless it is set aside in appeal by the competent court. The court, which is invested with jurisdiction Linder Section 19 of the Act is entitled to decide on the existence or otherwise of the matters specified in Section 23(l) of the Act and if it reaches a wrong conclusion on the material placed before it, such a decree would be erroneous and liable to be set aside in appeal but it will not be a -nullity. However, if a decree is passed under the provisions of the Act totally disregarding the provisions of Section 23(l) of the Act, such a decree would be one without jurisdiction and, therefore, null and void. As pointed out by the Supreme Court in Nagindas Ramdas (supra) : [1974]2SCR544 while affirming the decision of the Gujarat High Court in Shah Rasiklal Chunilal (1971) 12 Guj LR 1012 (supra) if the decree on the face of it does not show the existence of jurisdictional material or fact, the question whether there was material or foundation before the court, which passed the decree, would have to be determined on perusal of the original record of the trial court. In the present case, the decree Ex. 29, on the face of it does not disclose if before the trial court there was material in regard to the matters specified in Section 23(1) of the Act. The point that the decree for restitution of conjugal rights was a nullity as it was passed in ignorance o Section 23(1) cl the Act, was raised for the first time in this Second Appeal by Mr. Vyas. The petitioner husband therefore, had no opportunity to point out from the record of the proceedings of the earlier petition as to the existence of the jurisdictional facts in regard to matters spoken of in Section 23(l) of the Act. It is, therefore, necessary that before finally pronouncing on the question whether the decree for restitution of conjugal rights is a nullity as it ignores the requirements of Section 23(l) of the Act, the petitioner should be given an opportunity to bring on record the relevant material from the earlier proceedings to satisfy the court as to the existence of jurisdictional facts in the earlier proceedings it is, therefore, necessary to remand the case on this limited point.

14. In the result, the Second Appeal is partly allowed. The decision of the learned District Judge dismissing the petition for divorce is set aside. The case is remanded to the trial court to decide whether the decree for restitution of conjugal rights is a nullity An the light of the above discussion, The trial court will, on the decision that it reaches on this question, either grant or refuse the decree for divorce sought by the petitioner-husband. The parties will bear their awn costs throughout.

15. Case remanded.


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