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Sm. Sundari Dasi Vs. Basudeo Lal Guraliar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberF.A. No. 227 of 1970
Judge
Reported inAIR1977Cal193
ActsMarriage Laws (Amendment) Act, 1976 - Section 39, 39(1) and 39(2); ;Hindu Marriage Act, 1955 - Sections 10, 13 and 13(1)
AppellantSm. Sundari Dasi
RespondentBasudeo Lal Guraliar
Appellant AdvocateMilan Ch. Bhattacharjee, Adv.
Respondent AdvocateNirendra Krishna Mitra and ;Partha Pratim Mukherjee, Advs.
DispositionPetition allowed
Excerpt:
- .....respondent. the respondent filed a petition against the appellant for judicial separation under hindu marriage act, 1955 on the ground of cruelty and desertion. the suit was decreed by the trial court. against that decree the present appeal has been filed by the appellant. during the pendency of the appeal the marriage laws (amendment) act, 1976 came into force on the 27th may, 1976. several changes have been introduced in the hindu marriage act, 1955 and the special marriage act, 1954 by the said marriage laws (amendment) act, 1976. section 10 of the hindu marriage act enumerates the grounds on which a decree for judicial separation could be passed. by section 4 of the amending act, section 10 of the hindu marriage act as it originally stood, has been changed entirely by a new.....
Judgment:
ORDER

1. This is an application for leave to amend the plaint under Section 39 (1) (i) and (2) of the Marriage Laws (Amendment) Act, 1976 (Act LXVIII of 1976) filed on behalf of the respondent. The respondent filed a petition against the appellant for judicial separation under Hindu Marriage Act, 1955 on the ground of cruelty and desertion. The suit was decreed by the trial Court. Against that decree the present appeal has been filed by the appellant. During the pendency of the appeal the Marriage Laws (Amendment) Act, 1976 came into force on the 27th May, 1976. Several changes have been introduced in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 by the said Marriage Laws (Amendment) Act, 1976. Section 10 of the Hindu Marriage Act enumerates the grounds on which a decree for judicial separation could be passed. By Section 4 of the amending Act, Section 10 of the Hindu Marriage Act as it originally stood, has been changed entirely by a new Sub-section (1). The amended Sub-section (1) of Section 10 provides that a petition may be presented for a decree for judicial separation on any of the grounds specified in Sub-section (1) of Section 13. Section 7 of the amending Act has replaced Clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act. Section 13 (1) (i) as it stood prior to the amendment was as follows:

'13 (1). Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i) is living in adultery; or' The amended Clause (i) of Sub-section (1) of Section 13 is as follows:

'(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or' The effect of these two amendments has been that a petition for judicial separation may be presented on the ground mentioned in Section 13 (1) (i) as amended. Similarly, the ground for granting a decree for divorce has also been changed.

The respondent-petitioner wants to take advantage of the provisions of the Hindu Marriage Act as amended by the amending Act in view of Section 39 of the amending Act. Section 39 of the amending Act makes special provision as to pending cases. The relevant portion of the said section is as follows:

'39 (1). All petitions and proceedings in causes and matters matrimonial which are pending in any Court at the commencement of the Marriage Laws Amendment) Act, 1976 shall be dealt with and decided by such Court.

(i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;

(ii) .....

(2) in every petition or proceeding to which Sub-section (1) applies, the Court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings, in so far as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, the case may be, for divorce.' In view of this provision contained in Section 39, the learned Advocate for the respondent-petitioner contends that he is entitled to amend the original petition which was filed by him for judicial separation.

2. The learned Advocate for the appellant opposite party has contended that the provisions of the amending Act cannot have any application to proceedings under the Hindu Marriage Act or the Special Marriage Act which have been disposed of by the Court of first instance. In other words, he wants to restrict the amended provisions only to proceedings pending in the trial Court. He has contended that if the amended provisions are made applicable to any proceeding other than proceedings pending before the Court of first instance, it will have the effect of depriving the party of a right of appeal which he has under the law. In considering whether the special provisions contained in Section 39 are applicable only to proceedings pending before the Court of first instance or proceedings pending in appeal, the language used in Section 39 Should be carefully looked into. The section opens with the words'all petitions and proceedings in causes and matters matrimonial which are pending in any Court'. If it was intended that the amended provisions would be applicable only to proceedings pending in the trial Court, there was no necessity of using the words 'petitions' and 'proceedings'. Then again Sub-section (1) says, 'causes and matters matrimonial which are pending in any Court' The obvious intention therefore is to make the amended provisions applicable to all proceedings whether pending in the trial Court or in appeal. This would be dear from the statement of objects and reasons of the Bill which was introduced in the Parliament It would appear from the bill that the objects of the legislation were mainly (1) to liberalise the provisions relating to divorce, (2) to enable expeditious disposal of proceedings under the Act and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Act. In the statement of objects and reasons it is stated as follows:

'To avoid multiplicity of litigation and consequent delay, it is also proposed to apply the amended law in relation to all pending proceedings under the relevant Acts.'

It is clear therefore that the amended provisions are intended to apply to all pending proceedings whether pending in the Court of first instance or in appeal.

3. The learned Advocate for the appellant opposite party contended that if the amended provisions are made applicable at the appellate stage, it would result in denying the right of appeal to a party to the litigation. That is a situation which cannot be helped. If the Parliament has enacted a provision which is meant to apply to all pending proceedings, the Court has to apply the law as it stands. It is not for the Court to go into legislative wisdom of the Parliament. In the above view of the matter we allow this application and grant leave to the respondent-petitioner to amend the petition under Section 10 of the Hindu Marriage Act in terms of the prayer made in paragraph 7 of the petition. The appellant-opposite party will be entitled to file an additional written statement within four weeks from this date. The application is allowed. There will be no order as to costs.


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