S. Datta, J.
1. On the 19th day of September, 1958 the petitioner Monika Das Gupta falsely called Monika Roy filed this petition for declaration that the marriage between her and Promode Kumar Roy performed on 8-2-1958 is null and void.
2. On 8-2-1958 the petitioner who was then a spinster of about 26 years of age was married to Promode Kumar Roy then a bachelor of about 35 years of age at No. 54A Amherst Street in the town of Calcutta.
3. The petitioner and the respondent lived and cohabited from the said 8th day of February, 1958 until the 5th day of March, 1958 at 54A Amherst Street, Calcutta and 12/1A Hindustan Park, Calcutta. The respondent never consummated the marriage by carnal copulation, for according to the petitioner the respondent was, by reason of his impotency or malformation, legally incompetent to consummate the said marriage and to enter into the said marriage.
4. On or about 13-2-1958 the petitioner disclosed the fact of impotency of her husband to Shephali Das Gupta, wife of the petitioner's brother.
5. On or about 25-5-1959 an order for amendment of the petition was directed. The amended petition contains the following paragraph:
'That your petitioner comas of a respectable vaidya family and has suffered a good deal because of the facts hereinbefore stated.
That your petitioner states that the claim in this suit cannot be adequately valued but she values the relief in this suit for the purpose of jurisdiction only at Rs. 50,000/.
That this Hon'ble High Court and not the Calcutta City Civil Court has jurisdiction to hear and determine this suit.'
6. On 18-9-1959, this suit was heard as an undefended suit before me.
7. Monika Das Gupta said before me that her husband attempted to consummate the marriage on several occasions without success. This led her to guess that there was some malformation of the physical organ of her husband.
8. On 13-2-1958 in answer to queries made by her sister-in-law, she disclosed about her husband's impotency. Her Boudi, 'Shephali Das' Gupta then disclosed this unfortunate matter to her father-in-law, that is to say, father of the petitioner. Thereafter her father sent for Dr. Achudananda Sarkar who talked the matter over with the respondent and made a' appointment for examination of the respondent by a specialist.
9. Shephali Das Gupta, sister-in-law of the petitioner substantially corroborated the evidence of the petitioner before me,
10. Mr. Tamanash Chandra Das Gupta, father of the petitioner and Principal, Nabagram Hiralal College, Konnagar, said that on 19th February the deplorable information reached his ears through Shephali along with his daughter who was there. He thought over the matter and sent for Dr. Achudananda Sarkar.
11. Mr. Das Gupta further said that on the 20th February, 1959 Promode Kumar Roy agreed to be examined by a Specialist. On the next morning, however, Promode Kumar refused to be examined by a Specialist.
12. Dr. Achudananda Sarkar said that he was called on 20-2-1958 to examine Promode Roy.
13. On 20-2-1958, he agreed to be examinedby a. Specialist or to have some pathological examination. On the next day Promode refused tohave either pathological examination or consult aSpecialist.
14. Dr. Sarkar further said that he decided to have pathological examination first and thereafter, if necessary, he would consult Dr. Souren Ghose, F. R. C. S., Specialist in venereal diseases.
15. On the evidence before me I hold that the respondent Promode Kumar Roy was impotent and incapable of consummating the marriage.
16. This finding in favour of the petitioner,however, does not conclude the matter for thispetition gives rise to a question relating to thejurisdiction of the High Court in its Original Civil,jurisdiction to hear and determine such suits and/orproceedings under the Hindu Marriage Act.
17. In order to appreciate the point in issue St is necessary to advert to some of the sections of the C. P. C., City Civil Court Act and the Hindu Marriage Act.
18. The relevant sections of the C. P. C. are as follows:
'2. In this Act, unless there is anything repugnant in the subject or context, . .. District means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a District Court and includes the local limits of the ordinary original civil jurisdiction of a High Court.
xx xx xx xxxx xx xx xx 6. Save in so far as is otherwise expressly pro-vided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the: pecuniary limits, if any, of its ordinary jurisdiction.
xx xx xx xxxx xx xx xx 15. Every suit shall be instituted in the Courtof the lowest grade competent to try it.'
19. Section 5 of the City Civil Court Act is as follows:
The local limits of the jurisdiction of the City Civil Court shall be the City of Calcutta.
2. Subject to the provisions of Sub-sections (3) and (4) and of Section 9, the City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try suits and proceedings of a civil nature, not exceeding rupees ten thousand, in value.
3. The City Civil Court shall have jurisdictionand the High Court shall not have jurisdiction totry any proceeding under:(i) The Guardians and Wards Act, 1890 and(ii) Part X of the Indian Succession Act, 1925,in respect of succession certificates.
4. The City Civil Court shall not have jurisdiction to try suits and proceedings of the description specified in the First Schedule.
5. All suits and proceedings which are not triable by the City Civil Court shall continue to be triable by the High Court or the Small Cause-Court or any other Court, tribunal or authoity, as the case may be, as hereinbefore.'
20. The relevant sections of the Hindu Marriage Act is as follows:
'3 (b) In this Act, unless the context otherwise requires, .... (b) District Court means, in anyarea in which there is a City Civil Court, thatCourt and in any other area the principal CivilCourt of original jurisdiction and includes anyother civil Court which may be specified by theState Government, by notification in the officialgazette, as having jurisdiction in respect of thematters dealt with in this Act.'
'19. 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.'
21. Mr. Mukherji, learned counsel appearing for the petitioner, submitted that where relief is incapable of valuation, as in the ease of adoption, the plaintiff or the petitioner is entitled to value) his or her relief. Similarly, in the case of dissolution of marriage where relief is incapable 06 valuation, the petitioner is entitled to put her valuation of the relief.
22. Mr. Mukherji further pointed out that in this case the plaintiff has valued her relief at Rs. 50,000/.
23. Mr. Mukherji further submitted that when there are two Courts of different grades for the same area, as in Calcutta, the High Court, in its ordinary original civil jurisdiction and the City Civil Court, the question of jurisdiction as between the two Courts is determined by the pecuniary jurisdiction of the respective Courts. There is no upper limit as to the pecuniary jurisdiction of the High Court. There is, however, pecuniary limit to the jurisdiction of the City Civil Court for it is limited to Rs. 10,000/-. Therefore, proceedings; valuation of whose relief exceeds Rs. 10,000/, cannot be tried by the City Civil Court and must perforce be tried by the High Court in its ordinary original civil jurisdiction.
24. Mr. Mukherji further submitted that such a construction does not militate against the provision of the Hindu Marriage Act for the definition of the District Court in the Hindu Marriage Act is qualified by the opening words 'unless the context otherwise requires.' So the District Court may mean the High Court. It means the High Court as is evident, inter alia, from the substantive Section of the Hindu Marriage Act that is 19 of the Hindu Marriage Act. Moreover, such a construction is in consonance with the maxim that the Court should lean against the ousting of the jurisdiction of a Superior Court. Further, such a construction reconciles the provision of the Civil Procedure Code, the City' Civil Court and the Hindu Marriage Acts and consistent with the fact that the High Court has framed rules for proceedings under the Hindu Marriage Act, 1955.
25. Let us now consider the question of jurisdiction on the basis of the City Civil Court Act, the C. P. C. and Section 19 of the Hindu Marriage Act.
26. It is clear, that the relief is incapable of valuation in the ordinary way. Hence when there is no exaggeration and/or fraud the Court will proceed on the valuation of the relief given by the petitioner which is Rs. 50,000/.
27. Section 5 of the City Civil Court Act deals with the jurisdiction. This section by Clause 4 excludes certain matters specified in the first schedule to the said Act from the ambit of the City Civil Court altogether.
28. Section 5 (3) gives exclusive jurisdiction in unmistakable language to the City Civil Court in respect of matters arising out of the Guardians and Wards Act 1890 and the part of the Indian Succession Act relating to Succession Certificates.
29. Section 5 (2) limits the jurisdiction where pecuniary jurisdiction is material to Rs. 10,000/-
30. This suit does not fall within the ambit of Clause (3) of Section 5 of the City Civil Court Act. It cannot again attract clause (2) of Section 5 of the Act for the relief is valued at more than Rs. 10,000/.
31. Hence the City Civil Court Act indicates that the High Court will have jurisdiction.
32. The provisions of the City Civil Court Act and the C.P. C.. do not settle the matter.
33. The relevant provisions of the Hindu Marriage Act have to be examined in order to find out whether the Hindu Marriage Act itself has conferred exclusive jurisdiction to the City Civil Court irrespective of the question of pecuniary jurisdiction.
34. Section 19 of the Hindu Marriage Act makes it obligatory on the part of the petitioner to present a petition under the Hindu Marriage Act 1955 to the District Court within the local limits of whose ordinary civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together.
35. Therefore, Section 19 by itself would suggest that the petition should be presented to the High Court having ordinary original civil jurisdiction provided the other, three requirements or any or them are satisfied.
36. 'The District Court' has however been defined in Section 3 (b). The words in the definition clause 'in any other area the principal civil court of original jurisdiction' suggest again that the superior court to the exclusion of the Court of lower grade, irrespective of the question of valuation, shall have jurisdiction in an area where there is a High Court.
37. Therefore, ordinarily one would expect that the High Court will have jurisdiction in its original side where there is one.
38. The words 'in any other area the principal civil court of original jurisdiction' in the-definition is preceded by the words 'in any area for which there is a City Civil Court that Court. These preceding words give a different complexion to the matter or interpretation of Section 19 of the Act. The words 'that court' have the effect of excluding the High Court where there is a City Civil Court. The words 'that Court' have not been qualified, that is to say, there are no such words, 'that Court' 'when the pecuniary jurisdiction is below Rs. 10,000/- or such other words.
39. Therefore the Court is obliged to importthe meaning of 'District Court' as given in the definition in Section 19 of the Act with the inevitableresult that the City Civil Court has exclusivejurisdiction irrespective of the question of pecuniary valuation.
40. In Sm. Himarani Roy v. Kalyan Kumar Roy, Matrimonial Suit No. 12 of 1957 (appeal No. 187 of 1958) D/- 19-5-1959 by K. C. Das Gupta, C. J. and H. K. Bose, J., (Cal), the question of jurisdiction under the Special Marriage Act 1954 was considered.
41. In Matrimonial Suit No. 12 of 1957 (App No. 187 of 1958) D/- 19-5-1959 (Cal) the question of jurisdiction of the High Court and the City Civil Court under the Special Marriage Act 1854 was considered by me.... It was observed, by me in that case having regard to the definition of 'District Court' in the Hindu Marriage Act 1955, the Hindu Marriage Act conferred exclusive jurisdiction in explicit and unambiguous language to the City Civil Court.
42. In the Appellate Court, His Lordship Mr. Justice Bose in Matrimonial Suit No. 12 of 1957 (App. No. 187 of 1958) D/-19-5-1959 (Cal), incidentally dealt with the question of jurisdiction in respect of the proceedings under the Hindu Marriage Act as follows:
'This definition of 'District Court' are given in the Hindu Marriage Act 1955 is no doubt more explicit than the definition given in the Special Marriage Act 1954 and the Legislature has now expressed itself more intelligibly in this Act, but this slight difference in language cannot be construed as indicating that the Legislature had a different intention when enacting Section 2(e) of the Special Marriage Act 1954 especially when it will not be at all unreasonable to impute to the legislature the same intention as expressed in Section 3(b) of the Hindu Marriage Act 1955 with-out doing any undue violence to the language of the definition in Section 2(e) of the Special Marriage Act. It is possible that the legislature has resorted to this change in language in Section 3(b) of the Hindu Marriage Act 1955, as it felt the necessity of expressing itself more clearly than it bad done in the definition as given in Section 2(e) of the Special Marriage Act.'
43. It must, however, be noted that the question of pecuniary jurisdiction was not raised and discussed in the said two judgments. Nonetheless, those observations cannot be lightly brushed aside.
44. Hence, on the above considerations the Hindu Marriage Act 1955 clearly conferred exclusive jurisdiction to the City Civil Court and there by widened the range of jurisdiction of the City Civil Court.
45. The legislature can, if it should so desire, confer additional or further jurisdiction expressly or by necessary implication to any Court superior or otherwise unless its powers are fettered by the 'Constitution'.
46. The Legislature could confer concurrent jurisdiction to both the High Court and the City Civil Court when both Courts exist for the same area or confer exclusive jurisdiction in either of them. The Legislature has however chosen to confer exclusive jurisdiction to the City Civil Court.
47. The Hindu Marriage Act is in many respects a departure from the ordinary Hindu Law. It is a Special Act creating a number of new rights and obligations, with corresponding remedies. It came into force in 1955. Therefore, the High Court could not have jurisdiction in respect of the proceedings under the Hindu Marriage Act before 1955.
48. Consequently there is no question of ouster of the jurisdiction of the superior Court by the Hindu Marriage Act.
49. The definition of District Court as given in Section 3 of the Act could have been bodily incorporated in Section 19 of the Act though it would have been cumbersome. If that had been done, no objection could have been raised on the ground that 'definition clause' cannot alter a substantive section. The mere fact that the Legislature has given the definition of 'District Court' in a different section for clarity cannot in my opinion affect the construction of the substantive section when the substantive section read with the definition section makes the intention of the Legislature clear. The position would have been different if the 'definition' had been inconsistent with the provision made in what has been termed the substantive section.
50. If the Act itself does not confer jurisdiction on the High Court, the framing of the Rules by the High Court on the erroneous basis that it has jurisdiction is immaterial.
51. It is with some regret that I come to the conclusion that this Court has no jurisdiction for the petitioner has already incurred considerable costs, but it is of great importance to the petitioner that the Court having jurisdiction gives her the reliefs sought for.
52. In these circumstances, I direct that the petition be returned for presentation to the City Civil Court and that the City Civil Court in levyingany Court fees payable by the petitioner shall givecredit for any Court fees already paid by the petitioner in the High Court.