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Valliammal Ammal Vs. Periaswami Udayar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberS.R. Nos. 14179, 27783 and 37109 of 1958
Judge
Reported inAIR1959Mad510
ActsHindu Marriage Act, 1955 - Sections 3, 9, 10, 11, 12, 13, 19 and 28; Madras Civil Courts Act, 1873 - Sections 13
AppellantValliammal Ammal
RespondentPeriaswami Udayar
Advocates:G.R. Jagadisan, ;K.K. Sreedharan and ;K.S. Naidu, Advs.
Cases ReferredIn Colonial Sugar Refining Co. v. Irving
Excerpt:
.....in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction ore enforced and may be appealed from under any law for the time being in force; section 28 recognised the well-established principle in regard to procedure when a new jurisdiction was given to an existing court. it follows that both under the provisions of section 28 of the act, as well as the general principles of law an appeal would lie against a decree in a matrimonial cause to that court, to which appeals generally lie from a decree or order of the court to which jurisdiction is granted. but power is given to the state government to designate by notification other courts as well. it is now well settled that a right of appeal to a superior tribunal is a vested right..........jurisdiction under that act was given to the subordinate judges, district judges and city civil judges within the limits of whose jurisdiction the marriage was solemnised or the respondent resided. against any order passed on the petition by anyone of the aforesaid judges an appeal was declared to lie directly to the high court.3. the hindu marriage act, 1955, act xxv of 1955, was passed to codify the hindu law of marriage. by so doing it has effected important changes in the marriage law. it granted rights of divorce, judicial separation and permanent alimony. it is unnecessary for the present purpose to refer to the other changes introduced by the act in regard to the hindu law relating to marriages. the act also provided for remedy in respect of the new rights created by it......
Judgment:
ORDER

Ramachandra Iyer, J.

1. These matters have been referred by the office for directions as to the maintainability of the above appeals. S. R. No. 37109 is an appeal against an order for judicial separation under S. 10(1) of the Hindu Marriage Act of 1955. The petition for judicial separation was filed by the husband on 10-9-1957 in the Sub-Court, Tanjore. S. R. No. 14179 is an appeal against an order dismissing an application for divorce. That petition was filed by the husband who is the appellant on 17-12-1956 in the District Court of Tiruchirapalli.

The petition was later transferred by the District Judge to the Subordinate Judge of Tiruchirapalli, who passed an order dismissing the petition. S. R. No. 27783 is a C. M. S. A. against an order of the District Judge of South Arcot at Cuddalore, reversing the order of the Sub-Court and granting a decree for restitution of conjugal rights. The application was filed in the year 1956 originally in the District Court It was later transferred for disposal to the Subordinate Judge. The Subordinate Judge dismissed the application. On an appeal filed to the District Court by the husband an order for restitution of conjugal rights was passed. A C. M. S. A. is sought to be preferred to this Court against the order.

2. These references raise a question as to whether an appeal against an order passed by the Subordinate Judge under Sections 10, 13 or 9 of the Hindu Marriage Act, 1955 would lie to the appropriate District Court or to the High Court direct. Prior to the passing of the Central Act XXV of 1955, there was a legislation in this State in respect of certain matrimonial disputes amongst Hindus. The Madras Hindu Bigamy Prevention and Divorce Act of 1949 declared all bigamous marriages by a Hindu void and punishable. It also provided for dissolution of certain marriages. Jurisdiction under that Act was given to the Subordinate Judges, District Judges and City Civil Judges within the limits of whose jurisdiction the marriage was solemnised or the respondent resided. Against any order passed on the petition by anyone of the aforesaid Judges an appeal was declared to lie directly to the High Court.

3. The Hindu Marriage Act, 1955, Act XXV of 1955, was passed to codify the Hindu Law of Marriage. By so doing it has effected important changes in the marriage law. It granted rights of divorce, judicial separation and permanent alimony. It is unnecessary for the present purpose to refer to the Other changes introduced by the Act in regard to the Hindu law relating to marriages. The Act also provided for remedy in respect of the new rights created by it. The Act dealt with the preexisting rights of either of the spouses to sue in a civil court for restitution of conjugal rights. Section 9 provided for restitution of conjugal rights; Section 10 for judicial separation. Sections 11 and 12 related to void and avoidable marriages and Section 13 related to divorce.

4. Section 19 prescribed the court to which a petition under the Act should be made: It runs as follows:

'Every petition under the 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 term 'District Court' has been defined in Section 3(b) of the Act as meaning

'In any area for which there is a City Civil Court, that Court, and in any other area the Principal Civil Court of Original Civil Jurisdiction and: includes any other civil courts which may be specified by the State Government by notification in the official gazette as having jurisdiction in respect of masters dealt in this Act.'

Under the authority conferred by this Act the State-Government has issued G. O. 221, Home, dated 29-1-1957, empowering the Subordinate Judges of the various places to hear proceedings arising under the Act within their respective jurisdiction. Section 28 of the Act deals with the execution of orders passed by the court and also provides for a right of appeal. That section states

'All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction ore enforced and may be appealed from under any law for the time being in force; provided that there shall be no appeal on the subject of costs only.'

5. On a reading of Section 19, it is clear that the jurisdiction under the Act is given to an existing, civil court. It is no doubt true that rights un-known previously to the Hindu law are created by the Act. But the remedy in respect of those rights which are civil rights are given to the existing courts and should therefore be deemed to be an extension of their jurisdiction. Section 21 provides for the application of the rules of civil procedure in the absence of any special rules being made by the High Court for the conduct of the trial of petitions under the Act. Section 28 which I have set out above also emphasises this aspect.

6. Section 28 while it gives a right of appeal to the aggrieved spouse does not prescribe the forum. It simply says that appeals would lie as if they were decrees or orders of the court. Section 28 recognised the well-established principle in regard to procedure when a new jurisdiction was given to an existing court. The rule has been stated by Viscount Haldane, Lord Chancellor in National Telephone Co. v. Postmaster General, L.R. 1913 AC 546, thus:

When a question is stated to be referred to an established court it, in my opinion, imports that ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decision likewise attaches.'

In Secretary of State v. Chellikani Rama Rao, ILR 39 Mad 617; AIR 1916 PC 21 jurisdiction to decide certain disputes under the Forests Act was given to the District Judge. There was no provision under the Madras Forests Act for an appeal. The question arose whether an appeal would lie against an order by the District Judge under that Act. At page 624 (of ILR Mad): (at p. 23 of AIR), Lord Shaw observed:

'When proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decrees the ordinary rules or civil procedure can be applied.'

To the same effect is the judgment of the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar , where their Lordships held that where a legal right was in dispute and the ordinary courts of the country were seized of such dispute the courts were governed by the ordinary rules of procedure applicable thereto and an appeal could lie if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which did not in turn confer a right of appeal.

7. Under the Hindu Marriage Act, the Statute does give a right of appeal, but it does not prescribe the forum to which such appeals would lie. A question would also arise whether there would be only one appeal, or there would be a right of further appeal from a decree or order of the appellate court. These questions would, in my opinion, be governed by the principle of the cases referred to above; that is the procedure of the court, to which that jurisdiction under the Act is given, would apply in regard to the appeals.

It follows that both under the provisions of Section 28 of the Act, as well as the general principles of law an appeal would lie against a decree in a matrimonial cause to that court, to which appeals generally lie from a decree or order of the Court to which jurisdiction is granted. Section 13 of the Madras Civil Courts Act states:

'Regular or special appeals shall when such appeals are allowed by law lie from the decrees and orders of the District Court to the High Court, Appeals from the decrees and orders of Subordinate Judges and District Munsifs shall when such appeals are allowed by law, lie to the District Court, except when the amount or value of the subject matter of the suit exceeds Rs. 10,000, in which case the appeals shall lie to the High Court.'

It is unnecessary for the present purpose to refer to the three provisos to the section. In regard 'o a matrimonial dispute, it cannot be stated that the subject matter of the dispute exceeds Rs. 10,000. That is a matter which is not capable of valuation. It would, therefore, appear that if a Subordinate Judge were given jurisdiction under the Act, an appeal from his decision would under Section 13 of the Madras Civil Courts Act lie only to the District Judge. As the decision in the matrimonial disputes under Sections 9, 10, 11, 12 or 13 of the Hindu Marriage Act should be deemed to be a decree, a further appeal would lie from the decision of the District Judge on appeal.

8. It is, however, contended for the appellant in the first two of the above cases that an appeal from the Subordinate Judge would only lie to the High Court, and not to the District Court. The argument is that a Subordinate Judge who obtains jurisdiction by virtue of the notification made by the State Government under Section 3(b) of the Act should be deemed to be a District Court for the purpose of exercising the jurisdiction under the Act, and being deemed to be a District Court it is contended that an appeal from any order or decree of that court should necessarily lie only to the High Court, and not to any subordinate authority. I cannot, however, agree with this contention.

9. Under the Act jurisdiction in regard to the adjudication of matrimonial disputes is given to a particular class of civil courts. These have been compendiously described in the Act as a District Court, vide Section 3(b). The definition of a District Court under Section 3(b) does not mean, that a court which is notified by the State Government becomes a District Court. What the section provides is that ordinarily it is the City Civil Court or the District Court that would have jurisdiction to adjudicate disputes under the Act. But power is given to the State Government to designate by notification other courts as well.

By virtue of the notification other courts will have jurisdiction as such courts and not as a District Court, and it cannot be held that for the purpose of the Act, courts other than the District Court would by virtue of the notification become a District Court. It would, therefore, follow that if by virtue of the notification under Section 3(b) a court other than the District Court is given jurisdiction under the Act it is only an extension of jurisdiction of that court and appeals under Section 28 of the Act would lie only to that forum to which appeals generally lie from the decree and orders of that court.

10. In Venkatarama Iyer v. Srinivasa Sastrigal : AIR1944Mad31 , a question arose as to what was the proper forum of appeal in regard to an application under Rules 7 and 9 made under the Madras Agriculturists Relief Act. Rule 9 simply provided that an order declaring the amount of debt duo under Rule 7 would be subject to appeal and second appeal as if it were a decree in an original suit. The learned Judges held that the rule attracted by the procedure relating to appeals including the provisions governing the appellate jurisdiction of the courts which were essentially a matter of procedure.

It, therefore, held that Section 13 of the Madras Civil Courts Act would apply and the forum of appeal would be determined in accordance with it. In Prabhakar v. Usha Prabhakar, : AIR1953Bom189 , a question arose as to the proper forum of an appeal in a case under the Bombay Hindu Divorce Act of 1947. Originally under Section 5 of the Act jurisdiction was given only to the District Judge. Later by an amendment the District Courts were enabled to transfer the matrimonial disputes to an Assistant or a civil Judge in the District. In that case a suit under the Act was instituted prior to the amendment. But after the amendment the matter was transferred to the civil Judge and he passed a decree for divorce.

The learned Judges held that by virtue of the provisions of Section 5-A the suit transferred to the court of the Civil Judge should be regarded as a suit originally instituted in the court for the purpose of exercising powers and jurisdiction in respect of trial of the suit and that an appeal from that court would lie only to the District Judge, notwithstanding the fact that the suit was originally filed in the District Court, and later transferred to the Civil Judge, An exception, however, was made to this rule in regard to a suit which was instituted before the coming into force of the amended section giving jurisdiction to the civil judge. In such a case it was held that the appeal would lie directly to the High Court. I am of opinion that the principle of the decision in that case would apply to the present one.

11. The notification of the State Government investing jurisdiction in the Sub-Courts in regard to cases arising under the Hindu Marriage Act was made on 29-1-1957. The decree or order of the Sub-Court in regard to petition instituted thereafter being given in the exercise of its own jurisdiction. Section 13 of the Civil Courts Act would apply to the case and an appeal would lie only to the appropriate District Court. I have already indicated that on such matters there is no question of valuation.

So appeals from decrees in respect of petitions instituted in the Sub Court after 29-1-1957 would lie only to the District Court. The forum will be the same even if the petition had been instituted in the District Court after that date and transferred by that court for disposal to the Sub Court.

12. S. R. No. 37109 would, therefore, be returned to the appellant for being presented to the proper district court.

13. S. R. No. 14179 was filed on 17-12-1956 in the District Court and after the notification, was transferred to the Sub Court for disposal. An appeal is sought to be filed directly to this Court against the decree of the lower court. It is now well settled that a right of appeal to a superior Tribunal is a vested right in a litigant and such a right could not be taken away except by statute either expressly or by necessary implication taking away such a right. In the instant case on the date on which the petition was presented to the District Court, the Sub Court had no jurisdiction. An appeal would, therefore, He to the High Court in respect of proceedings initiated before the notification. Such a right of appeal would be a vested one.

In Colonial Sugar Refining Co. v. Irving, 1905 AC 369, an application was made to the Privy Council to dismiss an appeal from the judgment of the Supreme Court of Queensland on the ground that the power of the court to give leave to appeal had been abrogated by an Act. The action in respect of which the appeal was brought was commenced prior to the passing of that enactment, though leave to appeal was given subsequently. Lord Machaghten observed at page 372 ;

'As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be mere than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellant would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is was the appeal by His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.'

The Privy Council, therefore, dismissed the application holding that the leave was properly granted.

14. In the instant case the appellant had a right on the date of the notification by the Government to file an appeal to the High Court. That right could only be taken away by a provision in the statute. There is no such provision in the Hindu Marriage Act. The effect of Section 3(b) is only to empower the State Government to invest certain courts with jurisdiction under the Act. Such a notification cannot mean that the right of appeal to a particular court winch inhered in a party prior to its coming into force has been either expressly or impliedly taken away. Indeed the State Government would appear to have no such power as the only power given to them under Section 3(b) is to prescribe a court and not to modify other provisions of the Act. On this principle S. R. No. 14179 should be held to be properly filed in this court and the appeal will be numbered.

15. S. R. No. 26783 : In this case the petition was filed before the notification was made by the Government on 29-1-1957. The petitioner would, therefore, have a right of appeal to the High Court on the date when the application was filed. During the pendency of the petition in the District Court, the State Government made the, notification referred to already and as a result thereof the District Judge transferred the petition to the Sub Court. The Subordinate Judge dismissed the application. On the principles set out above an appeal would lie from the decision of the Subordinate Judge only to this court.

The petitioner filed an appeal in a court which had no jurisdiction and that court purporting to act under an appellate jurisdiction set aside the order of the Sub Court. The respondent to the application has filed the appeal as the lower appellate court had no jurisdiction. The proper way o correcting that error is by second appeal to this court. The District Judge purported to act as appellate court and the question whether he had jurisdiction so to act is a matter in respect of which a second appeal would lie. It, therefore, follows that S. R. 27783 has been properly filed as a C.M.S.A It would be admitted and numbered.


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