Skip to content


Dr. H.T. Veera Reddi Vs. Smt. Kistamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1973)1MLJ300
AppellantDr. H.T. Veera Reddi
RespondentSmt. Kistamma
Cases ReferredSiddaiak v. Penchalamma
Excerpt:
- p.r. gokulakrishnan, j.1. c.m.a. no. 348 of 1972 is against i.a. no. 2209 of 1971, on the file of the vi assistant judge, city civil court, and c.r.p. no. 751 of 1972 is against i.a. no. 11534 of 1971, on the file of the same court. both the above i.as. were filed in o.p. no. 48 of 1971. o.p : no. 48 of 1971 now pending before the vi assistant judge, city civil court, is a petition for restitution of conjugal rights under section 9 of the hindu marriage act xxv of 1955. it was filed by the appellant, dr. h.t. veera reddi, for getting the society of his wife kistamma, the respondent, and her daughter by name babarethinamma.2. there is a long history behind between the parties prior to the filing of o.p. n0.48 of 1971. their marriage took place as early as 1943 and according to kistamma, a.....
Judgment:

P.R. Gokulakrishnan, J.

1. C.M.A. No. 348 of 1972 is against I.A. No. 2209 of 1971, on the file of the VI Assistant Judge, City Civil Court, and C.R.P. No. 751 of 1972 is against I.A. No. 11534 of 1971, on the file of the same Court. Both the above I.As. were filed in O.P. No. 48 of 1971. O.P : No. 48 of 1971 now pending before the VI Assistant Judge, City Civil Court, is a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act XXV of 1955. It was filed by the appellant, Dr. H.T. Veera Reddi, for getting the society of his Wife Kistamma, the respondent, and her daughter by name Babarethinamma.

2. There is a long history behind between the parties prior to the filing of O.P. N0.48 of 1971. Their marriage took place as early as 1943 and according to Kistamma, a daughter was born to them on 23rd December, 1958. Dr. H.T. Veera Reddi filed O.P. No. 63 of 1960 on the file of the City Civil Court, Madras, for divorce, alleging adultery and desertion on the part of his wife, Kistamma. On the dismissal of that O.P. for divorce, C.M.A. No. 83 of 1961 was filed in this Court and that was also dismissed. In L.P.A. No. 31 of 1964, of this Court, Dr. H.T. Veera Reddi was granted judicial separation. On further appeal by Kistamma to the Supreme Court in C.A. No. 1149 of 1969 the Supreme Court, by judgment dated 24th March, 1970, rejected the charges of adultery and immorality and desertion made against Kistamma and also negatived the contention of Dr. H.T. Veera Reddi regarding legitimacy of Babarethinamma. Subsequent to the judgment of the Supreme Court, notices seem to have passed between the parties, and Kistamma filed O.P. No. 25 of 1970, on the file of the Sub Court at Adoni for maintenance for herself and her daughter, claiming past maintenance of Rs. 36,000 and future maintenance at the rate of Rs. 1,000 per month from the date of petition. During January, 1(571, Dr. H.T. Veera Reddi preferred O.P. No. 48 of 1971 before the City Civil Court, Madras, under Section 9 (1) of the Hindu Marriage Act for restitution of conjugal rights.

3. In O.P. No. 48 of 1971, Dr. H.T. Veera Reddi has inter alia alleged:.His married life until now was one of misery. The several charges levelled against the petitioner by the respondent were the result of certain interested third parties being bent on ruining the career of the petitioner. The respondent made several reckless accusations against the petitioner and even went to the length of charging the petitioner of having a desire to marry another wife and that with a view to achieve that object, was anxious to get the respondent divorced. The history of events have shown that these accusations are all false.

The petitioner has been, though married several years ago, constrained to live singly for several years in view of the intransigent and obstructive attitude of the respondent. He has undergone agony for several years. .His offer to take back the respondent is perfectly bona fide and the petitioner is ready and willing to forget and forgive all that had happened and is desirous of having the consortium of the respondent..The petitioner is only ready and willing to receive back the respondent and the child and to acknowledge the child as his, so as to enable the respondent and the child to have future status and happiness in life. The petitioner and respondent are closely related and the petitioner is also anxious to uphold the dignity and reputation of the family of both the petitioner and the respondent.

On the above allegations, Dr. H.T. Veera Reddi has prayed for restitution of conjugal rights.

4. Kistamma, the respondent in the C.M.A., no doubt, stated in her counter that the offer of Dr. H.T. Vira Reddi is wholly mala fide as he has filed the case in 1971 to defeat her right for maintenance after she had instituted an O.P. in the Sub Court, Adoni, earlier, and that she and her child have suffered mental shock and extreme loss of health as a result of the mental cruelty and in view of that fact, she apprehends great danger to the health and life of herself and her child.

5. Dr. H.T. Veera Reddi also filed I.A. No. 2209 of 1971 in his O.P. praying for staving further her petition O.P. No. 25 of 1970, on the file of the Sub-Court, Adoni. In the application, he inter alia alleged that the respondent's launching upon the proceeding in the Adoni Court will only result in multiplication of proceedings and a clear abuse of legal process and that having regard to the wide scope of inquiry in the petition for restitution of conjugal rights, wherein all questions will have to be tried out in giving relief of restitution of conjugal rights, the proceedings in O.P. No. 25 of 1970, on the file of the Sub-Court, Adoni, for maintenance and separate residence, can be stayed till the disposal of O.P. No. 48 of 1971.

6. O.P. No. 25 of 1970, on the file of the Sub-Court, Adoni, as already stated, is a pauper suit filed by Kistamma for maintenance under the general law. There she claims Rs. 36,000 as past maintenance and Rs. 1,000 per month as future maintenance for her and her daughter Babarethinamma. In the O.P. filed by Dr. H.T. Veera Reddi, Kistamma has also filed an application in I.A. No. 11534 of 1971 under Section 10, Civil Procedure Code for staying the proceeding in O.P. No. 48 of 1971 till the disposal of her O.P. No. 25 of 1970, alleging, inter alia, that O.P. No. 4.8 of 1971 has been filed with the sole object of defeating her claim for maintenance in O.P. No. 25 of 1970, that there is absolutely no bona fides on the part of Dr. H.T. Veera Reddi in praying for restitution of conjugal rights and that in any event the matter is directly and substantially the same in both the legal proceedings, viz., O.P. No. 25 of 1970, Sub-Court, Adoni and O.P. No. 48 of 1971, City Civil Court, Madras. She has also stated that her O.P. No. 25 of 1970 having been a previously instituted proceeding, O.P, No. 48 of 1971 has to be stayed.

7. In I.A. No. 11534 of 1971,the contention of Dr. H.T. Veera Reddi is that proceedings under Section 9 of the Hindu Marriage Act is in a forum of special jurisdiction and not a suit in common law in a civil Court, whereas Kistamma's suit for arrears of maintenance is only general in character, that even otherwise the matters at issue in O.P. No. 48 of 1971 are not in common with those in O.P. No. 25 of 1970 and that in any view of the matter, the reliefs claimed in O.P. No. 48 of 1971 are of more comprehensive character and the decision one way or the other by the City Civil Court alone can give a cause of action for Kistamma being entitled to claim separate residence and maintenance, and not otherwise. He also contended that Section 10, Civil Procedure Code cannot apply in as much as the action in O.P. No. 48 of 1971 cannot be termed as a 'civil suit' and that the matters at issue are not directly or substantially the same as those which would arise in O.P. No. 25 of 1970. The further contention is that Kistamma's remedy can at all events be consequential to the decision of the matters at issue in O.P. No. 48 of 1971 and that as such Kistamma is not competent to take advantage of the provisions of the Civil Procedure Code and seek a stay of O.P. No. 48 of 1971.

8. The VI Assistant Judge, City Civil Court, heard both the injunction application I.A. No. 3209 of 1971 as well as the Section 10 stay application I.A. No. 11534 of 1971 together, and dismissed both of them. This decision he arrived at on the ground that the matters arising in O.P. No. 25 of 1970 and in O.P. No. 48 of 1971 are not identical ones, and that both the proceedings can be prosecuted separately. The lower Court observed:

The injunction to a party with respect to his taking part in the proceedings would be putting that party in a very inconvenient position.

and that Kistamma cannot be prevented effectively by an order of injunction restraining her from prosecution of the petition for maintenance till the disposal of O.P. No. 48 of 1971.

9. Aggrieved by the decision rendered by the Court below, Dr. H.T. Veera Reddi has preferred the above C.M.A. and Kistamma has preferred the above Civil Revision Petition.

10. Thiru P. Venkataswami, the learned Counsel appearing for the appellant in the C.M.A., took me through various provisions of the Hindu Marriage Act and the Code of Civil Procedure and also through various decisions of Courts in support of the prayer of his client for the grant of an injunction against Kistamma. Thiru Sankaran, the learned Counsel for the respondent in the C.M.A., also took me through various decisions and argued that no injunction can be granted, which, if granted, will in effect, prohibit a Court not within the jurisdiction of this Court, from proceeding with the suit pending before it.

11. In Minohar Lal v. Seth Hiralal : AIR1962SC527 , the Supreme Court had occasion to deal with Section 10 and also Order 39, Rules 1 and 2, Civil Procedure Code. The majority view in that decision is that there is nothing in Order 39, Rules 1 and 2, which provides specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules and that the rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.. The Supreme Court has further held that the provision of Section 151, Civil Procedure Code make it clear that the inherent powers are not controlled by the provisions of the Code of Civil Procedure and that it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Finally, the Supreme Court allowed the appeal' and observed--

In view of the various considerations stated above, we are of opinion that the order under appeal cannot be sustained and cannot be said to be an order necessary in the interests of justice or to prevent the abuse of the process of the Court.

In the above decision, the Supreme Court has referred to the decision of the Kings Bench in Cohan v. Bothfield (1919) 1 K.B. 410, wherein the Bench observed:

While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised, and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless.

Thus it is clear that the principle evolved by the Supreme Court in the above decision is that the Court has power both under Order 39, Rules 1 and 2 and Section 151, Civil Procedure Code to grant an injunction restraining the party concerned from proceeding with the suit in a different Court under the jurisdiction of a different High Court. Of course, such power has to be used with great care and on ample evidence produced by the applicant.

12. Ram Bahadur Thakur and Company v. Devidayal (Sales) Limited : AIR1954Bom176 , while dealing with the provisions of Section 10, Civil Procedure Code held that the provisions of Section 10 and Section 151 of the Civil Procedure Code must be read together, and if the Court which is asked to stay a suit comes to the conclusion that by staying the suit before it, it would perpetrate an abuse of the process of Court, or would enable the other party to obtain a benefit to which in view of his conduct he is not Hgitimately entitled, then, notwithstanding the provision of Section 10, the Court would be justified in refusing to stay the suit before it, even though that suit is a subsequently instituted suit. But this view of the Bombay High Court on Section 10 and Section 151., Civil Procedure Code was held to be incorrect by the Supreme Court in Manohar Lal v. Seth Hiralal : AIR1962SC527 . I do not think it is necessary to consider the Bombay decision in this C.M.A., as we are not at present on the provisions of Section 10 Civil Procedure Code, but only on the applicability of Order 39, Rules 1 and 2 read with Section 151, Civil Procedure Code.

In Rash Behary Dey v. Bhowani Churn Base I.L.R. (1907) Cal. 97, the Calcutta High Court has held in a suit filed in the High Court for specific performance of an agreement for lease of certain premises wherein the plaintiff sought for an injunction to restrain the defendant from proceeding with a suit instituted by the latter in the Small Clause Court for ejectment of the former from the same premises, that the High Court has power under its general equity jurisdiction to grant an injunction of the character, independently of the Code of Civil Procedure.

13. In Mungle Chand v. Gopal Ram I.L.R. (1907) Cal. 101, the plaintiffs in the suit before the High Court sought for an injunction under Sections 492 and 493, Civil Procedure Code (Act XIV of 1882) restraining the defendants from proceeding with a suit previously instituted in the Court of the Subordinate Judge at Bareilly. The Sub-Court at Bareilly was under the jurisdiction of the Allahabad High Court. The claim of the defendants before that Court was for recovery of a certain sum of money as due to them by the plaintiffs in respect of the same transactions which formed the subject-matter of the suit before the Calcutta High Court. Subsequent to the institution of the suit before the Bareilly Sub Court, the suit before the Calcutta High-Court was instituted for recovery of a certain sum of money by the plaintiffs. Along with the suit, the plaintiffs applied for and obtained a rule nisi upon the defendants to show cause why an injunction should not be granted against them restraining them, until the final determination of the High Court suit or until the further order of the High Court, from further proceeding with the suit then pending in the Bareilly Court. It was further ordered that the rule should not be served on the defendants until the payment into Court by the plaintiffs of a stated sum, being the amount of the claim against them, in the Bareilly Court, which payment the plaintiffs in their petition for the rule, had offered to make, and accordingly made. Mr. C.R. Das appearing for the defendants in the High Court suit stated that the effect of the order, if made absolute, would be to stay the proceedings in the Bareilly Court, and would amount to an interference with the jurisdiction of the Allahabad High Court, to which the Bareilly Court was subordinate. He further contended that the proper course was for the plaintiffs to apply to the Bareilly Court; under Section 20, Civil Procedure Code for a stay of proceedings there and that further the Calcutta High Court had no jurisdiction to grant the injunction, inasmuch as it did not come within the provisions of Sections 492 and 493, Civil Procedure Code. This was opposed by the other side. The Calcutta High Court has held:

The question is whether effect can be given to the requirements of justice by the stay of the suit in the Bareilly Court. I think the powers of this Court to grant temporary injunctions are not confined to the terms of Sections 492 and 493 of the Civil Procedure Code. This Court has acted for a long series of years on the view that its powers of control over persons within its jurisdiction, by injunctions operating in personam, are not restricted by the provisions of the Civil Procedure Code, and I think it is too late to ask us to depart from its practice. Therefore I think this Court has power to restrain the defendant from proceeding with the suit at Bareilly, if justice requires the step. The question is whether I should adopt this course. The Bareilly Court will doubtless stay the defendant's suit in the Bareilly Court, when that Court is informed that this Court has restrained the defendant from proceeding with that suit. I am not to assume that the Judge of the Bareilly Court will take any step unfair to the defendant, or compel him to act in any way inconsistent with his duty of obedience to this Court.

On the above observations, interim injunction was made absolute by the Calcutta High Court. It is clear that the High Court of Calcutta in the above decision invoked the powers under Section 151, Civil Procedure Code, in the interests of justice, to grant the injunction as against a person from proceeding with a suit which was pending in a Court under the jurisdiction of a different High Court even though that suit was a previously instituted suit.

14. The decisions cited by Thiru P. Venkataswami, the learned Counsel for the appellant, such as Ram Sadan Biswas v. Mathura Mohan Harra : AIR1925Cal233 , Venkatesa Tauaker v. Ramisami Chettiar I.L.R. (1895) Mad. 338, and Ramayyar v. Ramiyyar I.L.R. (1898) Mad. 356, though they deal with the powers of granting injunction, are in respect of cases arising out of Specific Relief Act and as such, they cannot be on all fours applied to the facts of the present case.

Upendra Das v. Krushan Sahu : AIR1972Ori12 , lays down the principles on which exercise of discretion rests for the grant of injunction; and it is stated thus:

(i) In the facts and circumstances of each individual case there must exist a strong probability that the petitioner has an ultimate chance of success in the suit. This concept has been otherwise expressed by saying that there must be a prima facie case.

(ii) As the injunction is granted during the pendency of the suit the Court will interfere to protect the plaintiff from injuries which are irreparable. The expression 'irreparable injury' means that it must be a material One which cannot be adequately compensated for in damages. The injury need not be actual but may be apprehended.

(iii) The Court is to balance and weigh the mischief or inconvenience to either side before issuing or withholding the injunction. The principle is otherwise expressed by saying that the Court is to look to the balance of convenience.

15. In Hemanta Kumar v. Lilabati A.I.R. 1971 Ori 34 a Bench of the Orissa High Court has laid down the well-settled principles which govern the exercise of the discretion conferred by Order 39, Rules 1 and 2. Civil Procedure Code, in granting injunction It is stated by the Bench as follows:

(1) The person seeking a temporary injunction must satisfy the Court that there is a serious question to be tried in the suit and that on the facts before the Court there is a probability of his being entitled to the relief asked for;

(2) Court's interference is necessary to protect the applicant from the species of injury which is described as irreparable before his legal right can be established on trial; and

(3) The comparative mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that which is likely to arise from granting it.

16. In Sankara Pillai v. Inez Rosario : AIR1971Ker27 cited by Thiru Venkataswami, the powers of the High Court to interfere under Section 115, Civil Procedure Code, in cases where temporary injunction has been granted have been discussed, and the principles for granting injunction, as noticed in the decisions supra, have been re-stated.

17. In Manohar Lal v. Seth Hiralal : AIR1962SC527 the principles to be followed for grant of injunction have been laid down. Though the Supreme Court refused an injunction in that case, it has held that in the interests of justice to avert abuse of the process of Court, the Court has power to grant injunction apart from the provisions of Order 39, Rules 1 and 2 and under Section 151, Civil Procedure Code also. We have, to be guided by the principles laid down for the grant of injunction, in the aforesaid decisions; the conclusion arrived at therein cannot be made applicable to cases where injunction is played for. Each case has to depend upon its own facts and to be decided on the principles enunciated in the decisions noticed above. It is thus necessary to discuss the facts of the case on hand in detail.

18. Dr. H.T. Veera Reddi has filed O.P. No. 48 of 1971 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Section 9, Hindu Marriage Act, is in these terms--

(1) 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 the 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.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.

Section 19 of the Act states--

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 solemnized or the husband and wife reside or last resided together.

Section 24 of the said Act provides--

Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regarding to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.

19. From the foregoing sections it is clear that a special forum has been provided by the special Act for the purpose of I dealing with matrimonial cases and that the special Act provides for payment of 'maintenance' pendente lite both for the person and also for the litigation expenses. No doubt, Thiru Sankaran, the learned Counsel for the respondent in the C.M.A. submitted that the judgment in a petition for restitution of conjugal rights is not a judgment in rem which comes under Section 41 of the Evidence Act and as such a petition for restitution of conjugal rights cannot be deemed as of wider and more comprehensive amplitude than a suit for maintenance, as the one filed by the respondent in the C.M.A. For this proposition, Thiru Sankaran cited the decision in Ma Po Khin v. Ma Shin I.L.R. (1933) Rang. 198, and also the observations of Sarkar in his Law of Evidence at page 467. In Ma Po Khin v. Ma Shin I.L.R. (1933) Rang. 198, a Bench of the Rangoon High Court has held:

A suit for restitution of conjugal rights is purely a private suit between two-persons. No one else has any right to intervene in the matter, and the judgment in such a suit cannot be treated as a judgment in rem within Section 41 of the Evidence Act.

The Bench further held:

The judgment was not that of a Court acting in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, and was not binding on the first respondent in the present litigation.

It has to be noted that during the rendering of the said decision, any Act, such as the Hindu Marriage Act or any other special Act, was not in force for the purpose of dealing with matrimonial cases.

20. In contrast to the above decision, Thiru VenkatasWami, appearing for the-appellant, cited the decision in Siddaiah v. Penchalamma : AIR1963AP158 . The facts of that case were : The appellant in that case, who was the husband of the respondent, applied for a decree for judicial separation against the wife in the Sub-Court, Kavali, on the allegation that she had deserted him : some years before the institution of that petition. The petition was opposed by the wife inter alia on the plea that a prior decision rendered by the District Munsif's Court, Kavali, that the husband had abandoned his wife and therefore the latter was entitled to separate maintenance operated as res judicata in the subsequent proceedings. This issue was tried as a preliminary one and it was found in favour of the wife. On that view, the Sub-Judge dismissed the petition of the husband under Section 10, Hindu Marriage Act. It was that view of the Sub-Judge that was canvassed before the Andhra Pradesh High Court. The Bench, while deciding that case, held--

It should be borne in mind that the judgment in the maintenance suit decided the rights as between the parties and that being a proceeding inter partes, in our opinion, it cannot be pleaded as a bar to a petition under Section 10 of the Hindu Marriage Act. A judgment by a Subordinate Judge or a District Judge in exercise of the jurisdiction conferred upon them by the Hindu Marriage Act would surely fall within the purview of Section 41 of the Indian Evidence Act. Any decision given in the exercise of matrimonial jurisdiction would be conclusive not only against the parties to the proceeding but against the whole world. In other words, such judgments would operate as judgments in rent The suit decided by the District Munsif would not bind anyone except the parties thereto and it is only a Court exercising matrimonial jurisdiction that could make judgments in tem A valid dissolution of marriage causes the relationship between the husband and wife to cease to exist as against the whole world. That result could not be achieved by a decision rendered by a civil Court in a suit for maintenance.

The next one relied on by Thiru Venkata-swami with regard to the abovesaid proposition is the case reported in S.M. Pande v. Manokar : AIR1971Bom183 , where the Bombay High Court, dissenting from the view taken in Ma Po Khin v. Ma Shin I.L.R. (1933) Rang. 198, observed--

It will be seen that a judgment, order or decree of a competent Court in the exercise of matrimonial jurisdiction is of a conclusive nature and confers upon a person a right in rem which is not only binding on the parties to the suit, but binding as against the whole world. Prior to the enactment of the Hindu Marriage Act, 1955 so far as the Hindus were concerned, there was no matrimonial jurisdiction to decide the questions regarding the matters connected with marriage, such as restitution of conjugal rights, judicial separation, divorce, nullity of marriage, declaration of a marriage as void etc. By enacting the Hindu Marriage Act, 1955, Act XXV of 1955, a special jurisdiction has now been conferred with respect to the Hindu inhabitants in relation to marital matters and now the District Court is constituted a special Court for determining the question arising under the Hindu Marriage Act. All these questions now arising under the within the matrimonial jurisdiction and are no longer triable by the ordinary civil Courts as was done previously under Section 9 of the Code of Civil Procedure. Previously suits for restitution of conjugal rights could be entertained by the ordinary civil Courts under their general powers under Section 9 of the Code of Civil Procedure and they had jurisdiction to decide the question regarding the status of the parties and they could give or refuse declarations in that respect and give the necessary reliefs. But after the passing of the Hindu Marriage Act, 1955, the jurisdiction has been exclusively given to the District Courts which have now to try matters falling under the Hindu Marriage Act. Sarkar in his Evidence Act, Eleventh Edition, at page 466 states that a judgment of a Court under the Hindu Marriage Act, 1955, is one in the exercise of matrimonial jurisdiction and falls under Section 41 and would be conclusive against the whole world. This proposition has been laid down in a decision reported in Siddaiah v. Penchalamma : AIR1963AP158 , in which it is said that a judgment by a Subordinate Judge or District Judge in the exercise of the jurisdiction conferred upon him by the Hindu Marriage Act would fall within the purview of Section 41 of the Evidence Act and the decision given in the exercise of matrimonial jurisdiction would be conclusive not only against the parties to the proceeding, but against the whole world. In other words, such judgments would operate as judgments in rent. We respectfully concur with this view expressed by the Division Bench of the Andhra Pradesh High Court.

21. From the abovesaid two decisions, it is clear that any decision rendered in O.P. No. 48 of 1971 on the file of the City Civil Court, Madras, will be a judgment in rem rendered under the special enactment and by the special Court constituted under the special enactment, viz., the Hindu Marriage Act, which is definitely a Court of wider amplitude than that in which the suit for maintenance is pending. The appellant in the C.M.A. has invoked the special jurisdiction under the matrimonial law and the rights of the respondent Kistamma will in no way be jeopardised by such proceedings and her right to get maintenance pending disposal of the petition for restitution of conjugal rights is amply protected by Section 24 of the Hindu Marriage Act.

22. Thiru Sankaran nevertheless cited the decision reported in Zakeria Sulemcm v. Collector, Yeotmal : AIR1963Bom233 , for the proposition that Section 151, Civil Procedure Code cannot be applied to a special jurisdiction such as the one for entertaining a petition for restitution of conjugal rights. In that decision, the Bombay High Court has held that inherent powers can only be implied in the civil Courts having general jurisdiction; but where special authorities are constituted under a special statute and for a special object, it is not possible to imply inherent powers in them. Dealing with the Rent Control Order of Bombay, the Bombay High Court, in that decision, found that there was no express provision in the Rent Control Order permitting the Rent Controller or the Appellate Authority to dismiss for default or to restore to file an application or appeal. The High Court also held that for good cause the Rent Controller would have to consider the evidence and circumstances in each case and decide for himself as to whether a petition can be dismissed for default or restored to file for sufficient cause. I do not think the facts of the said decision are applicable to the case on hand. As far as the present case is concerned, it arises under the Hindu Marriage Act and the Act itself specifically provides under Section 21 that--

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure 1908 (V of 1908).

In proceedings under the Act the Court regulates the same by the Code of Civil, Procedure and if necessary will have recourse to its inherent powers under the Code (sect ion 151) on principles which are well-established. In Mulla, Hindu Law, 13th edition, this position has been sufficiently explained by the author at page 708.

23. Thiru Sankaran also cited the decision in Union of India v. Sailendra Nath : AIR1966Cal603 for the proposition that Section 151, Civil Procedure Code is hot applicable to the facts of the present case. The Calcutta High Court, in that decision, dealing with the prayer for subsistence allowance observed that in the suit by a Government servant challenging the order of his transfer he applied for payment of subsistence allowance during the pendency of the suit but that there being no provision in the Code to grant subsistence allowance during the pendency of the suit, interlocutory order for subsistence allowance cannot be made under the inherent power of the Court under Section 151, Civil Procedure Code. The power relates to matters of procedure and as such Section 151 does not apply to an interlocutory order going beyond the scope of the suit. The right to get subsistence allowance not being related to a matter of procedure, order under Section 151, Civil Procedure Code, cannot be made. I do not think there is any relevancy in quoting this decision in the face of the Supreme Court decision in Manohar Lal v. Seth Hiralal : AIR1962SC527 , where it has been categorically held that Courts have power under Section 151 read with Order 39, Rules 1 and 2, Civil Procedure Code to grant necessary injunction in the interests of justice.

24. On an analysis of the above decision of the Supreme Court it can be seen that there cannot be any difficulty in coming to the conclusion that Section 151, Civil Procedure Code, can be applied to cases arising under the Hindu Marriage Act. The decisions reported in Siddiah v. Penchalamma : AIR1963AP158 , and S.M. Pande v. Manohar : AIR1971Bom183 make it very clear that judgment in the case of restitution of conjugal rights will clearly come under Section 41, Evidence Act, and as such a judgment will be a judgment in rent. There is no difficulty in coming to the conclusion that a petition for restitution of conjugal rights is of wider amplitude than a suit for maintenance filed in the ordinary civil Court. In view of the special jurisdiction conferred upon the Court under the Hindu Marriage Act and also in view of the fact that judgments rendered by such special Courts are judgments in rent, any prayer for a decision on the right to get maintenance in an ordinary civil Court will have no effect in the face of a decision rendered by the Court vested with matrimonial jurisdiction.

25. Kistamma, the respondent in the C.M.A. has no doubt filed her suit for maintenance which is prior in point of time to the petition for restitution of conjugal rights by the husband. But that itself cannot be a ground to refuse the prayer for injunction, if the petitioner, who wants the injunction, is able to prove that both in the interests of justice and to avoid multiplicity of decisions, the injunction has to be granted. As early as 24th March, 1970 the Supreme Court rendered the judgment, holding that the appellant had not proved adultery, so as to entitle judicial separation against Kistamma. Subsequent to the Supreme Court decision, it is in evidence, the appellant Dr. H.T. Veera Reddi wanted to lead marital life with Kistamma and her daughter by forgetting the past episodes in order to purchase mental peace. Accordingly on 6th May, 1970, under Exhibit B-2 the appellant invited the respondent and her daughter to come and stay with him. On 4th June, 1970, under Exhibit B-3, Kistamma sent a reply refusing to join the husband. Under Exhibit B-4 dated 14th July, 1970, the appellant sent a rejoinder to Exhibit B-3. During the period July, 1970 and January, 1971, the appellant had to be out of India on his further training in surgery. During his absence, Kistamma filed O.P. No. 25 of 1970 on 29th July, 1970, in the Sub-Court, Adoni in Kurnool district, claiming maintenance both for herself and her daughter at the rate of Rs. 1,000 per month and past maintenance of Rs. 36,000. Subsequent to his return to India, the appellant preferred O.P. No. 48 of 1971 on the file of the City Civil Court, Madras, on 22nd January, 1971, for restitution of conjugal rights as against Kistamma. In that petition, he has filed I.A. No. 2209 of 1971 for injunction which is the subject-matter of the C.M.A.

26. Thus, it is clear from the facts narrated above, that Kistamma, the respondent, forestalling the filing of a petition for restitution of conjugal rights, came forward with a suit for maintenance. As I have discussed already, a petition for restitution of conjugal rights is of wider amplitude wherein the defence that can be put forth in the suit for maintenance and the question as to whether maintenance can be granted or not, can as well be agitated more effectively and bindingly upon the parties. Such a decision will be a judgment in rent.

27. No doubt, the Supreme Court, in Manohar Lal v. Seth Hiralal : AIR1962SC527 , has made mention regarding the position that in spite of a party being restrained from proceeding with his suit, the Court dealing with that suit may sometime insist upon him to proceed with the same. Any order that can be passed by a Court must be an order which should be respected by the other Court. The assumption as to what will happen to an order of injunction if the other Court insists upon proceeding with the trial cannot be visualized as at present since we proceed on the basis that the other Court will definitely respect any directions given to the party in respect of the suit pending before it. If that Court were to be in the jurisdiction of this Court, there cannot be any difficulty. But the difficulty arises since the Court which has to respect an order of this Court is outside) the jurisdiction of this Court. Such type of extreme cases cannot, in my opinion, curtail the powers conferred upon the High Court under Section 151, Civil Procedure Code. Even the Supreme Court dealing with powers under Section 151., Civil Procedure Code, which are inherent in the High Court, has stated that in the interests of justice and to avoid abuse of the process of the Court, the Court has power to issue appropriate injunction.

28. The Sub-Court at Adoni, no doubt, deals with O.P. No. 25 of 1970, which was a previously instituted proceeding to that in O.P. No. 48 of 1971. But the Sub-Court, Adoni, which is subordinate to, and functions in the State jurisdiction of, the Andhra Pradesh High Court, will definitely see the reasoning in Siddaiak v. Penchalamma : AIR1963AP158 , wherein the Andhra Pradesh High Court has categorically held that a decision given by a Court having special jurisdiction is a judgment in rent. If that is appreciated, there cannot be any difficulty for the Court at Adoni to respect the order passed by this Court.

29. I have already mentioned that there cannot be difficulty for the respondent Kistamma in getting maintenance pendente lite in O.P. No. 48 of 1971 itself. Section 24, Hindu Marriage Act, gives ample remedy to her. In view of Exhibits B-2, B-3 and B-4 and also the averments in the petition in O.P. No. 48 of 1971, there cannot be any difficulty in coming to the conclusion prima facie that the respondent, Kistamma, forestalling the filing of the petition for restitution of conjugal rights, has hurried to the Court at Adoni with O.P. No. 25 of 1970 for maintenance. Both in the interests of justice, to avoid multiplicity of proceedings and also to avoid abuse of the process of Court, the respondent, Kistamma, is restrained from proceeding with O.P. No. 25 of 1970 pending on the file of the Sub-Court at Adoni, until the disposal of O.P. No. 48 of 1971, on the file of the City Civil Court, Madras. The City Civil Court, Madras, before which O.P. No. 48 of 1971 is pending, is directed to give top priority to the trial of O.P. No. 48 of 1971 and dispose if of according to law within two months from this date.

30. With the aforesaid observations, the C.M.A. is allowed. There will be no order as to costs.

31. C.R.P. No. 751 of 1972 has been filed by Kistamma against the order refusing to stay O.P. No. 48 of 1971 under Section 10, Civil Procedure Code. Section 10, Civil Procedure Code reads--

No Court shall proceed with the trial of any suit in which the matter is issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court, beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court.

32. Thiru Sankaran, the learned Counsel for the petitioner, Kistamma, stated that his client's suit for maintenance at Sub-Court, Adoni, in O.P. No. 25 of 1970 is a previously instituted suit and that O.P. No. 48 of 1971 is a subsequent petition. He further submitted that the parties in both the proceedings are the same and the matter in issue in both is also directly and substantially the same. Thiru VenkatasWami, the learned Counsel for the respondent, Dr. H.T. Veera Reddi, contended that the matter in issue in O.P. No. 48 of 1971 is not directly and substantially the same as in O.P. No. 25 of 1970.

33. In the petition for restitution of conjugal rights, the matter in issue is whether the petitioner, Dr. H.T. Veera Reddi, is entitled to get the company of his wife and daughter. If that is decided in the affirmative, there is no question of awarding any maintenance to the petitioner in the C.R.P. On the other hand, if the decision in the matrimonial cause were to be that Dr. H.T. Veera Reddi is not entitled to have the company of Kistamma, then, automatically, the suit for maintenance has to be decreed except for the ascertainment of the quantum thereof. Hence it cannot be said that the matter in issue in O.P. No. 48 of 1971 is directly and substantially in issue in O.P. No. 25 of 1970 pending in the Sub-Court, Adoni.

34. Thiru VenkatasWami further contended that O.P. No. 48 of 1971 cannot be construed as a 'suit' and as such no stay can be granted under Section 10, Civil Procedure Code, which visualizes only staying of 'suit'. For this proposition he has cited various decisions. It is unnecessary for me to discuss them in view of my finding that the matter in issue in O.P. No. 48 of 1971 is not directly and substantially in issue in O.P. No. 25 of 1970....

35. These apart, there is no question of any error of jurisdiction in the order on hand for me to interfere in this revision.

36. In these circumstances, the C.R.P. is dismissed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //