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Aklemannessa Bibi Vs. Mahomed Hatem - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal849
AppellantAklemannessa Bibi
RespondentMahomed Hatem
Cases ReferredBadal Aurat v. Queen
Excerpt:
restitution of conjugal rights - jurisdiction of munsif-bengal, n.w.p. and assam civil courts act (xii of 1887) sections 18, 19, 21--suits valuation act (vii of 1887) sections 9, 11--valuation of quit--jurisdiction--mahomedan marriage, requirements of. - .....thousand rupees.' the effect of these provisions is to confer on a district judge or a subordinate judge jurisdiction to try all original civil suits, and to confer on a munsif co-ordinate jurisdiction to try all like suits of which the value does not exceed one thousand rupees; and it is only by reason of section 15 of the civil prooedure code, which provides that every suit shall be instituted in the court of the lowest grade competent to try it, that suits of which the value does not exceed one thousand rupees, which would otherwise be, triable by a district judge, a subordinate judge or a munsif, must be instituted before a munsif: see matra mondal v. hari mohan mullick (1889) i.l.r. 17 calc. 155. the present suit for restitution of conjugal rights. is therefore triable by a.....
Judgment:

Geidt and Mookerjee, JJ.

1. The plaintiff instituted the suit, out of which this appeal arises, in the Court of the Second Munsif at Atia upon the allegation that the first defendant was his lawfully married wife, that the other defendants had brought her under their influence and prevented her from coming to Ma house and that he was accordingly entitled to a decree for restitution of conjugal rights. The relief claimed in the plaint was valued at Rs. 49. The defendants resisted the plaintiff's claim on the ground that there had been no valid marriage, hut they did not take exception to the valuation of the suit. Two issues were raised in the Court of first instance, namely, first, whether defendant No. 1 was the lawfully married wife of the plaintiff, and secondly, whether the plaintiff was entitled to the enforcement of conjugal rights prayed for. The learned Munsif found that there was no valid marriage between the plaintiff and the first defendant and dismissed the suit. The plaintiff appealed to the Subordinate Judge, who held upon the evidence that the plaintiff did marry the first defendant in the nika form, and made a decree in favour of the plaintiff.

2. The defendants have appealed to this Court, and on their behalf, the decision of the Court below has been assailed, on two grounds, namely, first, that the learned Subordinate Judge ought to have maintained the decree of dismissal made by the Court of first instance, inasmuch as the Munsif had no jurisdiction to try a suit for restitution of conjugal rights; secondly, that the judgment of the Subordinate Judge is defective, inasmuch as he has not found that the formal requirements of a Mahomedan marriage were complied with. We shall deal with each of these objections separately.

3. As to the first contention raised by the learned vakil for the appellant, he concedes that it was not taken in the Court of first instance; nor was it taken is the grounds of appeal to the Subordinate Judge, and, so far as we can gather from the judgment, the only question which appears, to have been discussed before him, was whether there had been a valid marriage between the parties; the defendants, however, assert that, although not taken in the memorandum of appeal, the ground was urged before the Subordinate Judge that the Munsif had no jurisdiction to try the suit, and they produce affidavits in support of their allegation; the plaintiff, on the other hand, denies that any such point was argued before the lower Appellate Court. We have, however, allowed the point to be argued, as it is one of general importance, and does not require the investigation of any facts for its decision. As pointed out by their Lordships of the Judicial Committee in Ledgard v. Bull (1886) I.L.R. 9 All. 191; L.R. 13 I.A. 134, 145, 'when a Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot by their mutual consent convert it into a proper judicial process.' In a later case Meenakshi Naidoo v. Subramaniya Sastri (1887) I.L.R. 11 Mad. 26; L.R. 14 I.A. 160, 167, their Lordships pointed out that, where an appeal had been heard without objection, though no appeal was allowed by law, the judgment must be reversed, for 'no amount of consent could confer jurisdiction, where no jurisdiction exists.' In a still later case, Raja Har Narain Singh v. Chaudhurain Bhagwant Kuar (1891) I.L.R. 13 All. 300; L.R. 18 I.A. 55, 58, their Lordships pointed out that though an objection relating to jurisdiction might not have been taken in any of the Subordinate Courts, it might be successfully taken even before the ultimate Court of Appeal, for 'the Statute is there, and the Judges were bound to take judicial notice of it.' We shall now proceed to examine whether the objection to the jurisdiction of the Munsif is well founded.

4. Under Section 18 of Act XII of 1887, 'save as otherwise provided by any enactment for the time being in force, the jurisdiction of a District Judge or Subordinate Judge extends, subject to the provisions of Section 15 of the Code of Civil Procedure, to all original suits for the time being cognisable by Civil Courts.' The first clause of Section 19 of Act XII of 1887 then provides that, 'save as aforesaid, and subject to the provisions of Sub-section (2), the jurisdiction of a Munsif extends to all like suits, of which the value does not exceed one thousand rupees.' The effect of these provisions is to confer on a District Judge or a Subordinate Judge jurisdiction to try all original civil suits, and to confer on a Munsif co-ordinate jurisdiction to try all like suits of which the value does not exceed one thousand rupees; and it is only by reason of Section 15 of the Civil Prooedure Code, which provides that every suit shall be instituted in the Court of the lowest grade competent to try it, that suits of which the value does not exceed one thousand rupees, which would otherwise be, triable by a District Judge, a Subordinate Judge or a Munsif, must be instituted before a Munsif: see Matra Mondal v. Hari Mohan Mullick (1889) I.L.R. 17 Calc. 155. The present suit for restitution of conjugal rights. is therefore triable by a Subordinate Judge, unless it can be shown that its value does not exceed one thousand rupees. The learned vakil for the plaintiff-respondent contends that his claim was valued without any objection at Rs. 49, and this valuation must determine the forum, in which the suit is triable. In answer the learned vakil for the appellant argues that a suit for the restitution of conjugal rights is incapable of being valued, and that consequently the arbitrary valuation placed by the plaintiff in his plaint ought not to be a determining factor in fixing the forum. We are of opinion that this contention is well founded, and is supported by the derisions of this Court in the cases of Golam Rahman v. Fatima Bibi (1886) I.L.R. 13 Calc. 232 and Mowla Newaz v. Sajidunissa Bibi (1891) I.L.R. 18 Calc. 378. In the first of these cases an appeal had been preferred to this Court against a decision of the Recorder of Rangoon in a suit for restitution of conjugal rights, which had been valued by the plaintiff at Rs. 5,000, so as to bring his case within Section 49 of the Burma Courts Act, which gave a right of appeal to the High Court in suits of which the value exceeded. Rs. 3,000 and was less than Rs. 10,000. This Court held that a suit for restitution of conjugal rights was not capable of money-valuation, and that consequently, the appeal did not lie, inasmuch as it was a condition precedent that the appeal should be capable of a money-valuation and that money-valuation should fall within certain limits. In the second of the two cases referred to, an application for leave to appeal to Her Majesty in Council was made against a decree of this Court in a suit for restitution of conjugal rights, of which the value had been estimated by the plaintiff at Rs. 25,000, and such valuation had been acquiesced in by the defendant. The application was refused on the ground that a suit for restitution of conjugal rights and possession of a wife was not one to which a special money-value could be attached for the purposes of jurisdiction, and that the action of the parties, that is of the plaintiff, in putting an arbitrary valuation on the plaint, and that of the defendant, in acquiescing in such valuation and preferring an appeal to this Court on that footing, could not in any manner affect the question of jurisdiction. We entirely agree with the view of the law taken in these cases, which appears to be in accordance with the decision of their Lordships of the Judicial Committee in the case of Shire v. Shire (1845) 5 Moo. P.C. 81. We are of opinion therefore that Section 19, Sub-section 1, of Act XII of 1887 applies only to suits the value of which is capable of being estimated in money, and the money valuation does not exceed a certain limit, and that a suit for restitution of conjugal rights is not one of which it can be predicated that its value does not exceed one thousand rupees. We hold accordingly that a suit for restitution of conjugal rights is not triable by a Munsif under Section 19, Sub-section 1, of Act XII of 1887, but is triable by a District Judge or a Subordinate Judge under Section 18 of that Act. The learned vakil for the respondents has invited our attention to the provisions of Section 31 of Act XII of 1887, and has suggested that the necessary corollary to this conclusion would be that an appeal against a decree of a Subordinate Judge in such a suit must always lie to this Court; we are unable to see that this should in any way affect our decision. We may add that under Section 9 of the Suits Valuation Act (VII of 1887) it appears to ta open to the High Court in a case of this description to direct, with the previous sanction of the Local Government, that the subject-matter is to be valued in a specified manner.

5. As we have held that the Munsif had no jurisdiction to try the suit, the question arises what the effect of this decision ought to be. The learned vakil for the respondent has contended that we ought not to dismiss the suit at this stage by giving effect to this objection even though it be well founded, and in support of his argument he has relied upon Section 11 of the Suits Valuation Act, which provides--we quote only so much of the section as is necessary for the present purpose--that, 'notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that by reason of the over-valuation or under-valuation of a suit, a Court of first instance, which had not jurisdiction with respect to the suit, exercised jurisdiction with respect thereto, shall not be entertained by an Appellate Court, unless the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded. The learned vakil for the appellant contends that this section has no application to the facts of the present case, inasmuch as here the Court of first instance exercised a jurisdiction it did not possess, not by reason of over-valuation or under-valuation, but by an act of valuation, where no valuation was possible. We are of opinion that the argument advanced by the learned vakil for the respondent is well founded and must prevail. It seems to us to be clear that by the phrase 'overvaluation or under-valuation' the Legislature intended to include all cases of erroneous valuation, and that the language of Section 11 is comprehensive enough to cover a case like the present, in which a Court has exercised jurisdiction by reason of an arbitrary valuation, when no valuation ought to have been made, because the suit was incapable of valuation. Besides, it appears that though the plaintiff paid the fixed fee prescribed by Schedule II, Clause 15 of Act VII of 1870 on his plaint, he valued the suit at Rs. 49, in order that the Munsif might have jurisdiction over the suit. It may accordingly be fairly contended that the Munsif exercised jurisdiction by reason of an erroneous valuation of the suit. We hold accordingly that, although the Munsif had no jurisdiction to try the suit, it ought not to be now dismissed on that ground, as the objection to jurisdiction was not taken in the manner provided in Section 11 of the Suits Valuation Act.

6. The second contention advanced on behalf of the appellant relates to the merits of the case, and we are of opinion that the appellant is entitled to succeed on this ground. The learned Subordinate Judge has found that the plaintiffs did marry the defendant No. 1 in the nika form, but he has not found whether the formal requirements of a Mahomedan marriage have been complied with; as pointed out in Wilson's Digest of Anglo-Mahomedan Law, 2nd Edition, page 133, although neither writing nor any religious ceremony is necessary to the validity of a marriage contract, 'words of proposal and acceptance must be uttered by the contracting parties or their agents in each other's presence and hearing and in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Moslems, and the whole transaction must be completed at one meeting:' see also-Amir Ali's Mahomedan Law, Vol. II, page 283; Badal Aurat v. Queen-Empress (1891) I.L.R. 19 Calc. 79, 81. As the learned Munsif points out, the evidence upon these points is extremely conflicting, and before it can he declared that the first defendant is the lawfully married wife of the plaintiff, we think it necessary that it should he determined upon the evidence, whether all the requirements of a valid marriage as required by Mahomedan Law have been complied with.

7. The result therefore is that this appeal must be allowed, the decree of the Subordinate Judge reversed and the case remitted to him, so that he may determine upon the evidence, whether all the requirements of a valid Mahomedan marriage have been established. The costs of this appeal will abide the result.


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