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Case Number

Civ. Misc. Writ No. 1120 of 1956

Advocates

S.C. Khare
Brijlal Gupta

Judges

V.G Oak, J.

Acts

provisions of the 1955 Act with the Indian Divorce Act (Act IV of 1869). Sec. 4 of the Indian Divorce Act
HINDU MARRIAGE ACT 1955
Indian Divorce Act. Sec. 10 of the Indian Divorce Act
sub-sec. (1) of Sec. 9 of the Hindu Marriage Act, 1955
Sec. 4 of the Indian Divorce Act. But the 1955 Act
Sec. 32 of the Indian Divorce Act.
Sec. 32, Indian Divorce Act

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Smart Summary

Legal Opinion Summary — Oak, J.

Factual and Procedural Background

Ranjit Singh filed Suit No. 306 of 1955 in the Court of the Munsif, Dehra Dun, against Smt. Balwant Kunwar (his wife), Bakshish Singh (her brother) and Inder Kunwar (her mother). The plaint claimed two primary reliefs: (a) a decree directing the wife to live with the plaintiff and to allow him free exercise of his conjugal rights (restitution of conjugal rights); and (b) an injunction restraining defendants Nos. 2 and 3 from preventing the wife from coming to the plaintiff's house.

Various defences were raised, including a plea that the Munsif's Court had no jurisdiction to try the suit. The learned Munsif framed issue No. 1 as a preliminary question of law and on 18-4-1956 decided that issue in the plaintiff's favour, holding he had jurisdiction. The defendants, dissatisfied, challenged that decision by filing the present petition under Articles 226 and 227 of the Constitution, contending that after the enactment of the Hindu Marriage Act, 1955 (the 1955 Act), the suit was not maintainable in the Munsif's Court.

It was noted in the opinion that the parties are Sikhs, and that clause (b) of sub-section (1) of Section 2 of the Act brings Sikhs within the scope of the Hindu Marriage Act, 1955.

Legal Issues Presented

Whether, in view of the Hindu Marriage Act, 1955, a Munsif has jurisdiction to entertain a suit for restitution of conjugal rights where the parties are Hindus (including Sikhs under the Act).
Whether the jurisdiction previously exercisable by Munsifs to try suits for restitution of conjugal rights has been expressly or impliedly taken away by the 1955 Act (i.e., whether jurisdiction is now vested exclusively in the District Court under the Act).
Whether the particular relief claimed against third parties (an injunction restraining relatives from preventing the wife from returning) falls outside Section 9 of the 1955 Act, thus permitting a Munsif to grant that relief even if relief for restitution of conjugal rights is within the Act.

Arguments of the Parties

Plaintiff's Arguments (as presented by Mr. Brij Lal Gupta)

Section 11 of the 1955 Act mentions marriages solemnized after the commencement of the Act and does not mention marriages solemnized before the commencement, a point he drew attention to (as to the scope of certain provisions).
Section 9 of the 1955 Act provides a remedy by petition which, he contended, might be a summary remedy that is additional to the right to file a regular suit in a civil court (i.e., the remedy under the Act is not necessarily exclusive).
Section 21 makes proceedings under the Act to be regulated, so far as may be, by the Code of Civil Procedure; and Section 28 provides for appeals from decrees under the Act, indicating procedural parity with ordinary civil suits and suggesting the petition under Section 9 may not be purely summary or exclusive.
Sub-section (2) of Section 9 restricts the pleas that can be taken in answer to a petition; Mr. Gupta argued that in a regular suit a plaintiff might be able to raise pleas not permissible under Section 9(2), supporting an argument that a regular suit should remain available.

Defendants' Arguments

The defendants maintained that, in view of the Hindu Marriage Act, 1955, the suit was not maintainable in the Munsif's Court and that the plaintiff's exclusive remedy (where applicable) is to present a petition under Section 9 to the District Court.
They sought relief by petition under Articles 226 and 227 of the Constitution challenging the Munsif's jurisdiction and the earlier order of 18-4-1956 which held that the Munsif had jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gurdwara Prabandhak Committee v. Shiv Rattan Dev, A.I.R. 1955 S.C. 576	The exclusion of the jurisdiction of Civil Courts in respect of matters normally within their competence can be effected only by clear and unambiguous language or by necessary implication.	The court cited this precedent to state the proper test for determining whether the 1955 Act had ousted the jurisdiction of Munsifs. Applying that test, the court examined the language and scheme of the Act and concluded that, although there were no express words ousting Munsif jurisdiction, the scheme of the Act implied exclusive jurisdiction in the District Court for matters such as restitution of conjugal rights.

Court's Reasoning and Analysis

The court proceeded in a step-by-step analysis confined to the materials and submissions in the record:

Statutory starting points. The court quoted Section 9 of the Hindu Marriage Act, 1955 (restitution of conjugal rights) and Section 19 (which prescribes that every petition under the Act shall be presented to the District Court within whose ordinary original civil jurisdiction the marriage was solemnized or the parties reside or last resided together). The court also cited Section 4(b) (overriding effect) and Section 29(3) (savings) of the Act.
Presumption about prior jurisdiction. It noted that prior to 1955 Munsifs had jurisdiction to try suits for restitution of conjugal rights and recognized the established principle (citing Gurdwara Prabandhak Committee v. Shiv Rattan Dev) that jurisdiction of civil courts is not ousted except by clear and unambiguous language or necessary implication.
Secondary authorities. The court referred to commentary (Chitaley and Rao) emphasizing that the mere provision of an alternative or summary remedy does not normally bar a civil suit, and that courts should, where doubt exists, lean to an interpretation that preserves existing jurisdiction.
Examination of the Act's scheme. The court analyzed the general scheme and objects of the 1955 Act: its preamble, the explicit placing of petitions under the Act before the District Court (Sections 9 and 19), and Part III (restitution and judicial separation) and Part IV (nullity and divorce). It observed that judicial separation was newly recognized by the 1955 Act and that the Act provides District Court fora for serious matrimonial matters.
Savings and timing. The court noted Section 29(3) saves pending proceedings but does not permit fresh suits post-enactment to proceed in subordinate civil courts; since the present suit was filed after commencement of the Act (filed in August 1955), Section 29(3) did not save it.
Comparison with prior statute. The opinion compared the 1955 Act with the Indian Divorce Act, 1869 (which expressly vested matrimonial jurisdiction in High Courts and District Courts by language that included “and not otherwise”), and observed that the 1955 Act broadly follows the pattern of centralizing matrimonial jurisdiction in higher fora even though the exact words differ.
Analysis of the supposed coexistence of remedies. The court considered the plaintiff's contention that Section 9 provides a summary remedy in addition to civil suit remedies. It accepted that Section 21 renders proceedings under the Act to be regulated by the Code of Civil Procedure and that appeals under Section 28 are available, but judged that allowing both remedies in parallel could lead to conflicting findings between District Courts and Munsifs — a situation Parliament likely did not intend.
Implication from the Act's scheme. Although the court acknowledged there are no express words in the Act ousting Munsifs' jurisdiction, the court concluded that the scheme and purpose of the Act — to codify and make District Courts the forum for serious matrimonial reliefs including restitution, judicial separation, nullity and divorce — impliedly vested exclusive jurisdiction in the District Court for these matters. On that basis, the court held by necessary implication that a Munsif has no jurisdiction to try a suit for restitution of conjugal rights brought after the commencement of the Act.
Application to the plaint's reliefs. The court held that relief (a) (decree for restitution of conjugal rights) is plainly within Section 9 and so beyond the Munsif's jurisdiction. As to relief (b) (injunction against defendants Nos. 2 and 3), the court treated that relief as incidental to relief (a): the plaintiff could (and should) have combined both remedies in a petition under Section 9 to the District Court, which would be competent to grant both forms of relief. Therefore relief (b) also fell within the ambit of the Act and the District Court's exclusive jurisdiction.

Holding and Implications

Holding:

The petition is allowed. The court issued a writ in the nature of prohibition quashing the proceedings in Suit No. 306 of 1955 pending before the learned Additional Munsif, Dehra Dun, on the ground that the Munsif had no jurisdiction to entertain the suit (both reliefs a and b being covered by Section 9 of the Hindu Marriage Act, 1955 and the scheme of the Act vesting jurisdiction in the District Court).

Direct consequences and implications:

The proceedings in the Munsif's Court (Suit No. 306 of 1955) were quashed.
Parties were directed to bear their own costs.
The opinion does not purport to lay down that Parliament used express language ousting Munsifs' jurisdiction; rather, it concludes by necessary implication from the Act's scheme that the District Court has exclusive jurisdiction for the matrimonial reliefs considered. The court did not state any broader rule beyond its application to the facts before it; accordingly, the decision operates to remove the Munsif's jurisdiction in this type of post-Act suit and to send such petitions to the District Court. The opinion does not state that it is setting a novel binding precedent beyond deciding the present petition.

Order: Petition allowed; proceedings in Suit No. 306 of 1955 quashed; parties to bear their own costs.

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Balwant Kunwar v. Additional Munsif

Oak, J.:— The question raised in this petition under Arts. 226 and 227 of the Constitution is whether, in view of the enactment of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, or the 1955 Act), a Munsif has jurisdiction to entertain a suit for restitution of conjugal rights where the parties are Hindus.

2. Ranjit Singh filed suit No. 306 of 1955 in the Court of Munsif, Dehra Dun against Smt. Balwant Kunwar, Bakshish Singh and Inder Kunwar. Defendant No. 1 is plaintiff's wife. Defendant No. 2 and defendant No. 3 are her brother and mother respectively. The reliefs claimed by the plaintiff are:

(a) a decree against the defendant No. 1 directing her to live with the plaintiff and to allow him a free exercise of his conjugal rights:

(b) an injunction restraining the defendants Nos. 2 and 3 from preventing the defendant No. 1 from coming to the plaintiff's house.

3. Various pleas were raised in defence. One of the pleas was that the Court has no jurisdiction to try the suit. The learned Munsif took up issue No. 1 as a preliminary issue on a question of law. On 18-4-1956 he passed an order deciding the issue in plaintiff's favour. The learned Munsif held that he had jurisdiction to try a suit for restitution of conjugal rights. The defendants are not satisfied with this decision dated 18-4-1956. They maintain that in view of the Hindu Marriage Act, 1955, the suit is not maintainable. Hence the present application under Arts. 226 and 227 of the Constitution. It appears that the parties are Sikhs. According to clause (b) of sub-sec. (1) of Sec. 2 of the Act, the Act applies to Sikhs also. So the present parties are governed by the Hindu Marriage Act, 1955.

4. Sec. 9 of the Act deals with restitution of conjugal rights. Sec. 9 states:—

“(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”.

5. The petitioners' contention is that the plaintiffs only remedy was to file a petition under Sec. 9 of the Act, and a suit was not maintainable in the Munsif's Court.

6. Sec. 9 of the Code of Civil Procedure deals with the general jurisdiction of Civil Courts. Sec. 9, Civil Procedure Code states:

“The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”.

7. Before 1955 Munsifs had jurisdiction to try suits for restitution of conjugal rights. The question for consideration is whether that jurisdiction has been expressly or by implication taken away by the 1955 Act.

8. In “Gurdwara Prabandhak Committee v. Shiv Rattan Dev A.I.R 1955 S.C 576.” their Lordships of the Supreme Court laid down that, the exclusion of jurisdiction of the Civil Court in respect of a suit which is normally within its competence can be brought about only by clear and unambiguous language or by the necessary implication thereof.

9. In the commentary on the Code of Civil Procedure by Chitaley and Rao, 6th edition, the learned authors observe on pages 212 and 213 as follows:

“The mere fact that the enactment provides another remedy or a summary remedy will not constitute a bar to a suit in a Civil Court. Nor will the jurisdiction of a Civil Court be ousted unless the entire suit, as brought, is barred. The mere fact that a portion of the claim is excluded from the jurisdiction of Civil Court is no bar to the trial, by them, of another portion of the same suit which is not so excluded…….If there is any doubt about the ousting of the jurisdiction of an existing Court, the Court will lean to such an interpretation which would maintain the existing jurisdiction”.

10. Again on page 255:

“It is also a general principle that where two proceedings or two remedies are available under the law, one of them must not be taken as operating in derogation of the other”.

11. In order to decide whether jurisdiction of Munsifs to try claims for restitution of conjugal rights has been taken away by the 1955 Act, it will be necessary to examine the general scheme of the Act. According to the preamble, this is an Act to amend and codify the law relating to marriage among Hindus. The preamble suggests that Parliament intended to codify the law relating to marriage among Hindus. Sec. 4 of the Act deals with the over-riding effect of the Act. According to clause (b) of Sec. 4—

“any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act”.

12. Part III of the Act deals with restitution of conjugal rights and judicial separation. Sec. 9 dealing with restitution of conjugal rights has already been quoted. Sec. 10 provides for petition for obtaining Judicial separation. Before 1955 the general Hindu law did not recognise judicial separation among Hindus. The 1955 Act recognizes the right of judicial separation among Hindus. Before 1955 a Hindu in general could not institute a suit in a Munsifs Court for judicial separation. There is nothing in the Act to suggest that, after 1955 a Munsif can try a suit for judicial separation. If a Munsif Cannot try a suit for judicial separation, there is no special reason why a Munsif must have power to try a suit for restitution of conjugal rights.

13. Part IV of the Act deals with nullity of marriage and divorce. Sec. 11 deals with void marriages. Mr. Brij Lal Gupta appearing for the plaintiff pointed out that, Sec. 11 mentions marriages solemnized after the commencement of the Act, and does not mention marriages solemnized before the commencement of the Act. Sec. 12 deals with voidable marriages. Sec. 12 deals with both types of marriages-solemnized before or after the commencement of the Act. Part V of the Act deals with jurisdiction and procedure. Sec. 19 states:

“Every petition presented 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 reside together”.

14. It may be noted that both Secs. 9 and 19 emphasize that, a petition for restitution of conjugal rights ought to be presented to the district court.

15. Sec. 29 deals with savings. Sec. 29(3) states:—

“Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed”.

16. Sec. 29(3) saves pending proceedings in certain cases. If a divorce suit was pending from before 1955, such a suit may be continued in spite of the passing of the Act. Sec. 29(3) suggests that it would not be possible to institute a fresh suit for divorce in a Munsif's Court after the commencement of the Act. Sec. 29(3) makes no reference to a suit for restitution of conjugal rights. The Act came into force in May 1955. The present suit was filed in August, 1955, i.e after the commencement of the Act. Since the present suit was filed after the commencement of the Act, Sec. 29(3) has no application to the present case.

17. It will be useful to compare the provisions of the 1955 Act with the Indian Divorce Act (Act IV of 1869). Sec. 4 of the Indian Divorce Act deals with matrimonial jurisdiction Sec. 4states:

“The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise:— …….”

18. The expression ‘not otherwise’ appearing in Sec. 4 suggests that, Civil Judges and Munsifs have no jurisdiction to try matters dealt with in the Indian Divorce Act. Sec. 10 of the Indian Divorce Act provides for a petition by a husband or a wife for dissolution of marriage. Sec. 18 provides for a petition by husband or a wife for declaration about nullity of marriage.

19. Sec. 23 deals with a petition for judicial separation. Sec. 32 deals with a petition for restitution of conjugal rights. Sec. 32, Indian Divorce Act states:—

“When either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High 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”.

20. The language of sub-sec. (1) of Sec. 9 of the Hindu Marriage Act, 1955 is similar to the language of Sec. 32 of the Indian Divorce Act. It is true that the language of Sec. 19 of the 1955 Act is different from the language of Sec. 4 of the Indian Divorce Act. But the 1955 Act follows the general pattern of the Indian Divorce Act.

21. Mr. Brij Lal Gupta contended that Sec. 9 of the 1955 Act merely provides for a summary remedy. This summary remedy is in addition to the rights of a party to file a regular suit. Sec. 21 of the Act deals with the application of the Code of Civil Procedure:

“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”.

22. Sec. 9 lays down that, if the petitioner makes out a case, the District Court may decree restitution of conjugal rights. Sec. 28 provides for appeals from such decrees. Thus the procedure in a petition filed under Sec. 9 of the Act is practically the same as in a regular suit. There is no particular reason for treating a petition under Sec. 9 of the Act as a summary proceeding. Mr. Brij Lal Gupta urged that, according to sub-sec. (2) of Sec. 9 of the Act, only particular pleas can be raised in defence in such a petition. He contended that it would be possible to raise in a regular suit pleas, which are not allowed under Sec. 9(2) of the Act.

23. The consequence of treating petitions under the Act as summary proceedings would be this. A party would be entitled to file a regular suit in addition to a petition under the Act. A person who has lost in a petition under Sec. 9 of the Act, would be entitled to file a regular suit in the Munsif's Court. In such a situation a Munsif may have to record findings, which are in conflict with the finding of the District Court in a petition under Sec. 9 of the Act I do not think that Parliament envisaged such a situation.

24. It has been noted that, it was the intention of Parliament to codify the law relating to marriage among Hindus. It appears that Parliament intended to deal exhaustively with marriages and allied questions. It appears that Parliament concluded that, restitution of conjudical rights, nullity of marriages, judicial separation and divorce are serious matters. Junior officers should not be entrusted with such serious matters. It was, therefore decided that the District Court alone should deal with such important questions. It was, therefore, laid down in the Act that, such reliefs may be obtained by filing petitions before the District Court. I agree with Mr. Brij Lal Gupta that, there are in the Act no express words taking away the jurisdiction of civil Judges and Munsifs. At the same time the scheme of the Act suggests that, the District Court alone should deal with such matters. The District Court has been given exclusive jurisdiction with respect to restitution of conjugal rights, judicial separation, nullity of marriage and divorce. By implication, a Munsif has no jurisdiction to entertain a suit for restitution of conjugal rights.

25. There are two relief in the plaint. The first relief claimed by the plaintiff is for a decree against defendant No. 1 directing her to live with the plaintiff and to allow him a free exercise of his conjugal rights. In short, the plaintiff asks for a decree against defendant No. 1 for restitution of conjugal rights. Relief (a) is obviously covered by Sec. 9 of the Act. The learned Munsif has no jurisdiction to grant relief (a).

26. Relief (b) is:—

“An injunction restraining the defendants Nos. 2 and 3 from preventing the defendant No. 1 from coming to the plaintiff's house”.

27. Mr. Brij Lal Gupta urged that relief (b) does not fall under Sec. 9 of the Act; and so the Munsif has jurisdiction to grant relief (b) at least. The words used in Sec. 9 of the Act are:

“………. The husband…. may apply, by petition to the District Court, for restitution of conjugal rights…….”

28. Sec. 9 does not lay down that, a petition by the husband can be directed against the wife only. The plaintiff's case is that defendants Nos. 2 and 3 are preventing defendant No. 1 from returning to the plaintiff's house. Relief (b) mentioned in the plaint is incidental to the relief (a) in the plaint. It was open to the plaintiff to combine both these reliefs (a) and (b) in a petition under Sec. 9 of the Act. If such a petition is filed, the District Court would be competent to grant both the reliefs (a) and (b) to the plaintiff-petitioner. So, both reliefs (a) and (b) are covered by Sec. 9 of the Act. The learned Munsif has no jurisdiction to try the suit as regards relief (b) also.

29. Since the Munsif has no jurisdiction to try the suit at all, this is a fit case for issuing a writ in the nature of prohibition. The question of jurisdiction is not free from difficulty. Parties may, therefore, be directed to bear their own costs. The petition is allowed. Proceedings in suit No. 306 of 1955 pending before the learned Additional Munsif, Dehra Dun are quashed. Parties shall bear their own costs.

30. Petition allowed.

Balwant Kunwar v. Additional Munsif

Legal Opinion Summary — Oak, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments (as presented by Mr. Brij Lal Gupta)

Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Balwant Kunwar v. Additional Munsif

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