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Annapurna Dei v. Nabakishore Singh .

Orissa High Court

Sep 21, 1964

Judgment

CaseIQ

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Factual and Procedural Background

The appellant, wife of the respondent, faced an application filed by the respondent husband under Section 13(1)(iv) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage on the ground that the appellant had been suffering from a virulent and incurable form of leprosy for at least three years immediately preceding the petition. The appellant opposed the application. After evidence was recorded and the trial completed, the learned District Judge did not deliver a final judgment but passed an interlocutory order directing the appellant to undergo treatment for six months to determine if her leprosy was incurable. The Miscellaneous Appeal challenged this interlocutory order.

Legal Issues Presented

Whether the learned District Judge had jurisdiction and legal authority to pass the interlocutory order directing treatment before granting a decree of divorce under Section 13(1)(iv) of the Hindu Marriage Act.
Whether Section 151 of the Code of Civil Procedure (CPC) can justify such an interlocutory order in the context of the Hindu Marriage Act proceedings.
The maintainability of an appeal against an interlocutory order passed under Section 151 of the CPC in a proceeding under the Hindu Marriage Act.

Arguments of the Parties

Appellant's Arguments

The interlocutory order directing treatment is without jurisdiction and contrary to law.

Respondent's Arguments

Although no specific provision under the Hindu Marriage Act authorizes such an interlocutory order, it can be justified under Section 151 of the CPC, which is applicable through Section 21 of the Act.
Preliminary objection that no appeal lies against the interlocutory order as it was passed under Section 151 CPC, and only revision is maintainable.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court held that Section 13(1)(iv) of the Hindu Marriage Act clearly sets out the conditions under which a decree of divorce may be granted on the ground of virulent and incurable leprosy, placing the onus on the husband to prove both virulence and incurability. The Act contains no provision permitting the court to delay judgment by ordering treatment or observation to ascertain incurability. The court emphasized that it is not empowered to assist parties in procuring evidence or to act as a party itself.

Regarding the applicability of Section 151 of the CPC, the Court found that although this section confers inherent powers to make orders necessary for justice or to prevent abuse of process, it cannot be used to assist a party in establishing their case by creating evidence or delaying final adjudication. Hence, the interlocutory order contravened the express provisions and intent of Section 13(1)(iv) of the Act.

On the procedural question, the Court noted that Section 28 of the Hindu Marriage Act allows appeals from final orders but does not permit appeals against interlocutory orders. Since the impugned order was interlocutory and not a final order under the Act, no appeal lay. However, a revision under Section 115 of the CPC was maintainable. The appellant was permitted to convert the appeal into a civil revision, which was allowed.

The Court directed the learned District Judge to set aside the interlocutory order and to deliver a final judgment on the evidence already recorded, ensuring that both parties are given the opportunity to present their arguments.

Holding and Implications

The interlocutory order passed by the learned District Judge is set aside, and the Civil Revision is allowed.

The Court's decision mandates that the trial court deliver a final judgment based on the evidence without ordering further treatment or observation. This ruling enforces the strict statutory framework of Section 13(1)(iv) of the Hindu Marriage Act, emphasizing that courts cannot delay divorce proceedings by creating opportunities for evidence collection beyond what the law contemplates. No new precedent beyond the direct effect on the parties was established.

Show all summary ...

1. The appellant is the wife of the respondent who filed an application, under Section 13(1)(iv) of the Hindu Marriage Act (Act 23, of 1955) hereinafter referred to as the Act, asking for dissolution of the marriage by a decree of divorce on the ground that the appellant has been suffering from a virulent and incurable form of leprosy for a period not less than three years immediately preceding the presentation of the petition. The application was opposed by the appellant. Evidence was gone into the case and the trial was complete. Without delivering a final judgment, the learned District Judge passed the following interlocutory order, after discussion of some of the evidence, on 25-3-1963. The Miscellaneous Appeal has been filed against this order.

“I would order that she should undergo treatment under any specialist for six months and if at the end of that she is not free from the disease, hers is a bad case coming under 20 per cent that are incurable and thereafter the husband would be free to bring it to the notice of the Court for passing a decree of divorce. In the meantime the petitioner would pay Rs. 60/- as a lump sum to the respondent for her treatment besides Rs. 10/- he is paying for her maintenance. I realise such an order may not be strictly legal, but in the circumstances of the case for the benefit of both the parties and in consonance with the spirit of law as contemplated under section 23 of the Hindu Marriage Act, this order is passed and the result of the suit would abide the report the respondent gets after her treatment and in case of failure of any report, it would automatically operate against her.”

2. Mr. Sahu contends that the aforesaid order is without jurisdiction and contrary to law.

3. Mr. Mukherji concedes that there is no section under the Act under which such an interlocutory order can be passed. He, however, contends that the order can be justified under section 151 of the CPC, as the Code of Civil Procedure has been made applicable under Section 21 of the Act. I am unable to accept such a contention. That the order of the learned District Judge is illegal would be manifest from section 13(1)(iv) of the Act which enacts—

13. Divorce— (1) Any marriage solemnised,: 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 011 the ground that the other party—

(iv) has, for a period of not less than three years immediately preceding the presentation of the petition been suffering from a virulent and incurable form of leprosy;

4. In this case the onus is on the husband to establish the ingredients of the section for obtaining a decree for divorce. It is not disputed that the wife has been suffering from leprosy for a period of not less than three years immediately preceding the presentation of the petition.

5. The onus is on the hubsand to further establish that the leprosy is virulent and incurable. There is absolutely no provision in the Act for the court to keep the patient under obseivation or to give opportunity to the patient for a cure before granting a decree of divorce. The court is not to step into the shoes of a party and assist in procuring further evidence.

6. Section 151 of the CPC prescribes that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice-or to prevent abuse of the process of the Court. This section, however widely couched, has never been resorted to for the purpose of assisting parties-to establish their case by creation of evidence. Section 151 of the CPC has absolutely no application. The order passed by the learned District Judge militates against the very object of S. 13(1)(iv) of the Act. Even if the husband-petitioner succeeds in proving that the wife suffers from a virulent form of leprosy, the petitioner cannot succeed unless it is further proved that it is an incurable type. Very stringent conditions have been imposed by the Legislature to prevent dissolution of marriage on frivolous grounds or without responsibility being taken by one of the partners for the cure of a curable disease. The order of the learned District Judge cannot, therefore, be supported either under the Act or under Section 151 of the CPC.

7. A preliminary objection was raised by Mr. Mukherjee that as the impugned order is not in any proceeding under the Act and is one under Section 151 of the CPC, no appeal lies and only a revision is maintainable. Section 28 of the Act says that all decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force. Whether a final order under Section 24 of the Act is appealable or not came up for consideration in Misc. Appeal. No. 66 of 1962, (Orissa), Snehalata v. Jagadish, where it was held, after review of conflicting authorities, that an appeal lay. Section 28 of the Act applies to all decrees and final orders passed by a court in any proceeding under the Act. The impugned order is, however, not a final order passed by the learned District Judge in any proceeding under the Act or under any particular section. -No appeal lies against an interlocutory order. Whether the learned District Judge acted u/s. 151 of the CPC or otherwise, a revision under Section 115 of the CPC is maintainable. The preliminary objection has force. The appellant has, however, been permitted to convert the Miscellaneous appeal into a Civil Revision by filing; a formal application and’ on payment of balance court-fees. The Miscellaneous appeal is thus converted into a Civil Revision.

8. In the result, the impugned order of the learned District Judge is set aside and he is directed to deliver a final judgment on the evidence on record in accordance with law as soon as possible after giving opportunities to the parties to present their arguments.

9. The Civil Revision is allowed, but there will be no order as to costs.

KH/CWM/D.V.C

10. Revision allowed.