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Case Number

M.F.A No. 165 of 1963, against order of Civil J., Bangalore, D/- 24-9-1962

Judges

A.R Somnath Iyer
D.M Chandrasekhar, JJ.

Acts

Ss. 21 and 99 C.P.C and S. 11 of the Suits Valuation Act
Section 13(i)(viii) of the Hindu Marriage Act.
SECTION 21 CIVIL PROCEDURE CODE
S. 13(1)(viii) of the Hindu Marriage Act
SECTION 19 HINDU MARRIAGE ACT
provisions of the Indian Divorce Act,

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Smart Summary

Structured Summary of the Opinion (Somnath Iyer, J.)

Factual and Procedural Background

The spouses were married in 1939 at Gujaranwala (now in Pakistan) and lived for some time in Rawalpindi (also now in Pakistan). After the partition of the country they took up permanent residence in India, with the husband residing in Bangalore and the wife in Delhi.

On July 23, 1959, the husband filed Miscellaneous No. 200/1959 before the Principal District Judge, Bangalore, seeking a decree for judicial separation on the ground of desertion. That decree for judicial separation was granted on September 28, 1959. On March 9, 1962, the husband applied under Section 13(1)(viii) of the Hindu Marriage Act for a decree of divorce on the ground that there had been no resumption of cohabitation for two years or more since the decree for judicial separation.

The wife did not appear in either the proceeding for judicial separation or in the initial divorce application. The husband's later application for divorce was made to the Court of the Principal Civil Judge, Bangalore. The Principal Civil Judge dismissed the divorce application for want of jurisdiction, relying on Section 19 of the Hindu Marriage Act and concluding that the marriage was not solemnised within his territorial jurisdiction and that the spouses did not reside or last reside together within his jurisdiction. The husband appealed this dismissal to the Court which produced the present opinion. The wife first entered appearance before this Court and opposed the appeal.

Legal Issues Presented

Whether the Principal Civil Judge, Bangalore, had jurisdiction to hear and decide the husband's application for a decree of divorce under Section 13(1)(viii) of the Hindu Marriage Act, given the territorial jurisdictional limits stated in Section 19 of the Act.
Whether the earlier decree for judicial separation (made by the District Judge) could be impugned on the basis of territorial jurisdictional objections so as to prevent the continuation of proceedings (under Section 13(1)(viii)) founded on that decree.

Arguments of the Parties

Appellant (Husband)'s Arguments

The Civil Judge should have made a decree of divorce under Section 13(1)(viii) because if he declined jurisdiction the husband would be left without a remedy expressly conferred by the Act.
Reliance on Neelakantan v. Neelakantan (AIR 1959 Raj 133) — where the Rajasthan High Court (Modi, J.) held that the Court of the husband's domicile could exercise jurisdiction in matrimonial disputes on principles of private international law; the decision was influenced by the view that otherwise the husband would be without a remedy.

Respondent (Wife)'s Arguments

The wife contended that the Court should not follow the reasoning in Neelakantan and suggested that the husband would in any event have remedies available under the Indian Divorce Act (insofar as that Act would apply to a Christian husband), thereby undermining the premise that the husband would be left without any remedy.
The wife advanced an objection that the earlier decree for judicial separation was a nullity because, in her view, the marriage was not solemnised within the jurisdiction of the Court which granted it and the spouses had not resided or last resided together in that jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Neelakantan v. Neelakantan, AIR 1959 Raj 133	Principle that the courts of the husband's domicile could exercise jurisdiction in matrimonial disputes (Modi, J. held that wife's domicile became husband's domicile after marriage), applied under Special Marriage Act facts; influenced by concern that husband would be left without a remedy.	The Court described this decision and noted it was relied upon by the husband's counsel, but declined to embark on that private-international-law/domicile question because the appeal could be disposed on a shorter ground.
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340	Authoritative explanation of the distinction between absence of territorial jurisdiction and absence of inherent jurisdiction; Section 21 CPC (and related policy in Ss.21 and 99 CPC and S.11 Suits Valuation Act) means objections to place of suing are technical and not open in appellate/revisional courts unless there is consequent failure of justice.	The Court relied upon this explanation to hold that the objection to jurisdiction in relation to the earlier decree for judicial separation was a technical, territorial objection and could not be entertained collaterally; this supported refusal to treat the earlier decree as a nullity.
Kunja Mohan v. Monindra Chandra, AIR 1923 Cal 619	Held that a sale held by an executing Court within whose jurisdiction the properties sold were not situate was void in a collateral proceeding.	The Court said the authoritative elucidation in Kiran Singh weakened the decision in Kunja Mohan; the Court relied on Kiran Singh to decline the collateral attack permitted by Kunja Mohan.
Nalinakhya v. Shyam Sunder, AIR 1953 SC 148	Explained that a court cannot supply a casus omissus.	The Court noted this precedent had been relied upon by the wife but stated it was not necessary to discuss that decision to dispose of the appeal.

Court's Reasoning and Analysis

The Court framed a concise path of analysis and disposed of broader international-domicile issues as unnecessary to the decision. The key steps in the Court's reasoning were:

The Court first reviewed the procedural history: the husband's earlier application for judicial separation (filed July 23, 1959) had proceeded without opposition by the wife and the District Judge had considered and affirmed his jurisdiction before granting the decree on September 28, 1959.
Section 13(1)(viii) of the Hindu Marriage Act creates a statutory right to a decree of divorce where there has been non-resumption of cohabitation for two years or more after a decree for judicial separation. The husband asserted that statutory right based on the earlier decree.
The Court rejected the wife's contention that the earlier decree for judicial separation should be treated as a nullity on the basis that the marriage was not solemnised or the spouses had not resided within the District Judge's territorial jurisdiction. The Court emphasized the distinction between absence of territorial jurisdiction (a technical objection) and absence of inherent jurisdiction (a fundamental defect), referring to the authoritative exposition in Kiran Singh v. Chaman Paswan.
Relying on the Kiran Singh principle that objections to territorial jurisdiction are technical and are not to be entertained by appellate or revisional courts unless there has been a consequent failure of justice, the Court held that the wife's jurisdictional objection to the earlier decree was merely territorial and technical and therefore could not be used to invalidate the decree collaterally at this stage.
Because the earlier decree for judicial separation stood, the application under Section 13(1)(viii) was properly viewed as a continuation of the earlier proceedings (the Court described an application under S.13(1)(viii) as the continuation of an application under Section 10 for judicial separation). The right to a divorce flowed from the disobedience of the decree for judicial separation.
Consequently, it would be incongruous for a Court which had the jurisdiction to make the earlier decree (or to which that jurisdiction had devolved) to decline to make the consequent decree of divorce. The Civil Judge was therefore incorrect in declining jurisdiction to entertain the husband's Section 13(1)(viii) application.
The Court found it unnecessary to resolve the domicile/private international law issues raised by reliance on Neelakantan or to engage with the Nalinakhya principle regarding casus omissus; disposal on the territorial-jurisdiction/continuation-of-proceedings ground sufficed.

Holding and Implications

Core Ruling: The appeal was allowed and the Court reversed the decision of the Principal Civil Judge. The Court granted the husband's prayer and dissolved the marriage by decree of divorce under Section 13(1)(viii) of the Hindu Marriage Act.

Direct consequences for the parties (as explicitly stated in the opinion):

The marriage of the appellant (husband) and the respondent (wife) is dissolved by decree of divorce made by this Court pursuant to Section 13(1)(viii).
The Court made no order as to costs.

Broader legal implications noted by the Court (as reflected in the opinion):

The Court emphasised that a technical objection to territorial jurisdiction in relation to an earlier decree for judicial separation cannot be used collaterally to defeat a subsequent statutory right to divorce flowing from that decree. The Court relied on the Supreme Court's elucidation in Kiran Singh for this principle.
The Court declined to resolve complex private international law (domicile) questions and stated the appeal could be decided on the narrower ground of territorial-jurisdiction objections being technical; it therefore did not adopt or reject the wider reasoning in Neelakantan apart from noting it had been relied on by counsel.

The opinion does not purport to lay down a novel broader precedent beyond its application of existing authority (notably Kiran Singh) to the facts before it; its direct and dispositive effect is the grant of the divorce decree and the dissolution of the marriage, with no order as to costs.

Appeal allowed. No order as to costs.

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Omprakash Dhawan, v. Santosh Kumari, .

Somnath Iyer, J.:— This is a husband's appeal from an order made by the Principal Civil Judge, Bangalore, refusing a decree for divorce under Section 13(i)(viii) of the Hindu Marriage Act. It was in the year 1939 that the two spouses were married in Gujaranwala which is now in Pakistan. They resided together for some time in Rawalpindi which is also now in Pakistan. When there was a partition of the country, the two spouses began to live in India permanently. The husband is in Bangalore and the wife is in Delhi.

2. On July 23, 1959, the husband made an application to the principal District Judge, Bangalore, in Miscellaneous No. 200/1959, for a decree for judicial separation on the ground of desertion on the part of the wife. That decree was made in his favour on September 28, 1959. On March 9, 1962, the husband made an application under Section 13(i)(viii) of the Hindu Marriage Act for a decree of divorce on the ground that the decree for judicial separation had not been followed by any subsequent resumption of co-habitation for a space of two years or upwards after the decree was made. Both on the occasion when the husband sought a decree for judicial separation and also when he sought a decree of divorce, the wife did not appear. The application for a decree of divorce was made by the husband to the Court of the Principal Civil Judge, Bangalore, since when that application was made, he had been invested with jurisdiction to decide applications presented under the Act. The principal Civil Judge dismissed the husband's application on the ground that he had no jurisdiction to, hear and decide it. He depended in support of his conclusion on Section 19 of the Act which provides that every application under the 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. The words ‘District Court’ occurring in this Section as defined by Section 3(b) of the Act includes other Civil Courts specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters deal with by the Act and since the Principal Civil Judge's Court was one of the Courts so specified the husband's application was made to that Court. But the Civil Judge, taking the view that since the marriage was not solemnised within his jurisdiction and since the spouses neither reside nor last resided together within his jurisdiction at any relevant point of time, he had no jurisdiction to hear the application, dismissed it. It is from this order that the husband appeals.

3. For the first time in this litigation, the wife has entered appearance before this Court and Mr. Nazereth appearing for her, opposes the appeal.

4. The argument maintained by Mr. Suri appearing for the husband was that we should say that the Civil Judge should have made a decree of divorce in this case since, if he declined Jurisdiction to make that decree, the husband would have no remedy whatsoever for the enforcement of a right expressly conferred by the Act on him.

5. In support of that submission, he depended upon a decision of the Rajasthan High Court in Neelakantan v. Neelakantan, AIR 1959 Raj 133. That was a case in which the marriage was solemnised in England, but, when the husband returned to India, the wife refused to join him. When there was an application under the Special Marriage Act for a divorce, the question arose whether under Section 31 of that Act which corresponds to Section 19 of the Hindu Marriage Act, the District Judge of Jodhpur to whom the application was presented, had jurisdiction to give the divorce. That question arose since the marriage had been solemnised in England and the spouses had never resided together in India. Modi, J. was of the view that the wife's domicile became her husband's domicile after the marriage, that the Courts of the husband's domicile had jurisdiction to decide a matrimonial dispute between the spouses and that the District Judge of Jodhpur who was presiding over a Court within the husband's domicile, could grant the divorce on principles of Private International Law. That view expressed by Modi, J. as can be seen from the discussion was principally influenced by the fact that in his opinion, any other view would leave the husband without a remedy.

6. Mr. Nazereth appearing for the wife has asked us to say that we should not concur in the view-expressed by Modi, J. and has pointed out that the impression in the mind of the learned Judge that the husband would have been without a remedy if the divorce sought by him was not granted, overlooks the provisions of the Indian Divorce Act, under which the husband who was a Christian would have sought a divorce under that law.

7. It does not appear to us that we need embark upon an investigation into the correctness of the postulates placed before us by Mr. Suri on behalf of the husband or by Mr. Nazereth on behalf of the wife. It seems to us that this appeal should succeed on a much shorter ground.

8. When the husband made an application for a decree for judicial separation on July 23, 1959, that application was not opposed by the wife. The District Judge did investigate the question at one stage in those proceedings whether he had jurisdiction to make the decree and reached the conclusion that he had. So it was that he made a decree foil judicial separation on September 28, 1959.

9. Now, Section 13(i)(viii) of the Hindu Marriage Act creates a right to a decree of divorce in cases where there has been non-resumption of cohabitation for a space of two years and more after the passing of a decree for judicial separation. We cannot accede to the view suggested by Mr. Nazereth that we should regard the earlier decree for judicial separation as a nullity, since, in according to him, there was neither the solemnisation of the marriage nor the required residence of the spouses within the Jurisdiction of the District Judge. The argument overlooks the essential distinction between absence of territorial Jurisdiction and absence of inherent jurisdiction which was explained by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, thus:

“……With reference to objections relating to territorial jurisdiction. Section 21 of the Civil Procedure Code, enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice.

…The policy underlying Ss. 21 and 99 C.P.C and S. 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits…” (page 342).

10. Although Mr. Nazarath maintained an argument to the contrary, it seems to us that the objection to Jurisdiction now advanced on behalf of the wife in the context of the earlier application for judicial separation is an objection of a technical nature amounting as it plainly does to an objection to territorial Jurisdiction. If in appellate Court could not have listened to that objection after an appeal had been preferred from a decree for judicial separation made by the District Court on the earlier occasion, it should follow that we should not listen to that objection in these proceedings in which the application was for a decree of divorce on the foundation of the earlier decree for judicial separation.

11. The authoritative elucidation of the position by the Supreme Court in the above case weakens the decision in Kunja Mohan v. Monindra Chandra, AIR 1923 Cal 619 on which Mr. Nazareth depended. That was a case in which the sale held by an executing Court within whose jurisdiction the properties sold were not situate, was pronounced to be void in collateral proceeding.

12. If therefore, it is not open to the wife to call in question the decree for judicial separation made by the District Judge, it is not, in our opinion open to her to say that the application for a decree of divorce which the husband subsequently sought should not be made by the Court of the Civil Judge on whom devolved the jurisdiction which the District Judge originally possessed. In effect, an application under S. 13(1)(viii) of the Hindu Marriage Act is the continuation of an application presented under Section 10 for a decree for judicial separation. The right to a decree of divorce is what flows from a disobeyed decree for judicial separation anti it would be incongruous in our opinion for anyone to suggest that although a decree for judicial separation was properly made a decree of divorce which is what should necessarily follow a disobedience of the decree for Judicial separation should not be made by the same Court which made the earlier decree or by another Court which inherits its Jurisdiction. In our opinion, the Civil Judge was not, therefore, right in declining jurisdiction.

13. In the view that we take, it is not necessary to discuss the decision in Nalinakhya v. Shyam Sunder, AIR 1953 SC 148 on which Mr. Nazareth depended in which it was explained that the Court cannot supply a casus omissus. It is not disputed before us that there had been no resumption of cohabitation by the spouses for two years and more after the passing of the decree for judicial separation. That being so, this is a case in which in reversal of the decision of the Civil Judge, we should make in favour of the husband, a decree of divorce as prayed for by him. That decree we hereby make and we hereby dissolve the marriage of the appellant and the respondent by that decree.

14. in the circumstances, we make no order as to costs.

AI/JHS/V.B.B

Appeal allowed.

Omprakash Dhawan, v. Santosh Kumari, .

Structured Summary of the Opinion (Somnath Iyer, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Husband)'s Arguments

Respondent (Wife)'s Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Omprakash Dhawan, v. Santosh Kumari, .

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