Balwant Singh vs Sardarni Balwant Kaur

Mehar Singh, J.—The Plaintiff, Col. Sardar Balwant Singh, who is the Petitioner in this revision petition, instituted a suit against his wife Sardarni Balwant Kaur Defendant who is the Respondent in this case, for restitution of conjugal rights on 23.12.1953. The suit was pending, when on 18.5.1955, the Hindu Marriage Act, 1955 (25 of 1955) hereinafter to be referred as the Act, came into force.

On behalf of the Defendant an objection was raised in the Court of the learned trial Judge (Subordinate Judge II Class of Patiala (c)) that he had ceased to have jurisdiction in the suit in view of Section 4, 9 and 19 of the Act. The objection prevailed and by his order of 25.8.1955, the learned trial Judge directed the return of the plaint to the Plaintiff for presentation in the District Court. This revision petition is directed against that order of the learned trial Judge.

The case first came up for hearing before my learned brother Gurmam Singh J. Two arguments were urged before him. On behalf of the Defendant a preliminary objection was taken that the revision was not competent. The other matter argued was the correctness of the order of the learned trial Judge.

After pointing out that under the Act a petition may be presented to the District Court to seek relief for restitution of conjugal rights and previously a suit was competent for the same relief in an ordinary civil Court, he observed that so far as the question of jurisdiction was concerned undoubtedly there was difference between the previous law and the present law and that he was not sure if that amounted to inconsistency referred to in Section 4 of the Act.

Since he was of the opinion that this raised a very important question of law and no decision of any High Court upon it was available, he referred the matter to a larger Bench. The question as to the competency of the revision petition was also referred to the same'' Bench. This is how the case comes before us.

A question of jurisdiction is a matter of consideration in the case and that is probably the reasons why before this Bench the learned Counsel for, the Defendant has not again raised the objection that the revision is not competent. The objection not having been raised, obviously there is nothing to suggest that the revision petition is not competent.

The only question for consideration in the case is whether the provisions of the Act apply to a pending case, as the present case? The sections of the Act that are relevant for consideration of this question are

Overriding effect, of Act�Save as otherwise expressly provided in this Act,�

(a) any text, rule of interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.

(b) 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.

Restitution of conjugal rights.

(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.

Court to which petition should be made.

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.

Contents and verification of petitions.

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the Petitioner and the other party to the marriage.

(2) The statement contained in every petition under this Act shall be verified by the Petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

Application of Act v. of 1908.-

Subject to the other provisions contained to 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 (Act 5 of 1908).

(3) 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.

It is clear from Section 4(b) of the Act that the law under which the Subordinate Judge had jurisdiction in the suit ceased to have effect on the date of the enforcement of the Act, because by Sections 9 and 19 the same jurisdiction vests in the District Court under the Act. Obviously, the provision in the previous law that in such cases the jurisdiction is with the Court of a Subordinate Judge is inconsistent with the provisions of the said two sections.

Section 4 (b) enacts that the laws in force immediately before the commencement of the Act cease to have effect in so far as they are inconsistent with any provision in the Act, in other words the section enacts a provision of repeal. Of course the provisions of the Act apply from the date of its commencement and apparently enough will apply to all future cases. Here the question is whether they apply to pending cases?

It is well settled that a statute relating to matters of procedure operates retrospectively, unless otherwise provided, but that one effecting vested rights or the question of jurisdiction of a Court does not operate retrospectively, and its operation is prospective, unless the contrary is by express provision or by necessary intendment. This begs another question, whether the change of a Court to which relief for restitution of conjugal rights can be obtained is a matter of procedure or that involving matters of vested right and jurisdiction?

If there were any doubts on the question before, the same have now been resolved by a decision of their Lordships of the Privy Council in the Colonial Sugar Refining Co., Ltd. v. Irving 1905 AC 369 (A) in which at page 372, Lord Macnaghten observed:

As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the Appellants would be entitled to succeed.

The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the Appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from the regulating procedure.

In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested". In the present case the effect of the provisions of the new Act is of transferring jurisdiction from the Court of a Subordinate Judge to a District Court, but this is in an original proceeding. That the position is the same as to the rights of a party m a suit as in the case of a right of appeal is supported by the observation of Rankin C.J., at page 518 (of ILR Cal): (at pp. 641-642 of AIR) in Sadar Ali and Others Vs. Doliluddin Ostagar,

Now the reasoning of the Judicial Committee in (1905) AC 369 (A) is a conclusive authority to show that rights of appeal are not matters of procedure, and that the right to enter the superior Court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior Court. If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit.

In the AIR 1941 16 (Federal Court) Sulaiman J. observes:

Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pendings suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. It is a well recognised rule that statutes should, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated.

When a statute deprives a person of his right to sue or affects the power or jurisdiction of a court in enforcing the law as it stands, its retrospective character must clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability, it is a well established principle that such statutes must be construed strictly, and not given a liberal interpretation.

The dicta of the Privy Council in the Colonial Sugar Refining Co.Ltd.v. Irving (A) and of Rankin C.J. in Sadar Ali v. Doliluddin (B) has been approved by their Lordships of the Supreme Court in Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others,

The Calcutta High Court, previous to the enactment of the West Bengal Premises Rent Control Act (17 of 1950), had original jurisdiction to entertain and try a suit by a landlord against a tenant for recovery of possession, but by that Act that jurisdiction was limited to suits in which the rent payable for one month in respect of premises in suit exceeded Rs. 500/- and the jurisdiction in the remaining cases was vested in another Court. It was contended that the Act applied to cases pending on the date when it came into force, but in Amar Nath Misra Vs. Sreenarain Mansingka, it was held that

a right to have a suit entertained or tried in original jurisdiction of the High Court is more than a mere matter of procedure and it affects substantive and vested or existing rights.

So that a right to have a suit entertained and tried by the Court in which it is pending is not a matter of procedure but is that of a substantive or vested right. Also a statute which affects jurisdiction of a Court enforcing the law as it stands does not deal with matters of procedure and is not to operate retrospectively unless clearly so expressed or by necessary intendment.

The consequence is that the provisions in the Act, which enact that a petition for restitution of conjugal rights shall lie in a District Court, in so far as they affect jurisdiction of a subordinate Judge to try a pending suit for restitution of conjugal rights and in so far as they affect the rights of the Plaintiff in a pending suit of this type, do not concern matters of procedure. They concern the substantive and vested rights of the Plaintiff and affect the jurisdiction of the Court trying the pending suit.

It has been shown on authority that a statute which affects substantive or vested rights or jurisdiction of a Court in enforcing the law as it stands, is presumed not to have retrospective effect except by express enactment or by necessary intendment.

In the Act there is no express, provision that its provision apply to pending suits like the one under consideration. So what remains is to see whether there is necessary intendment on the part of the Legislature that the provisions of the Act should apply to such pending cases? The Act deals, with four types of cases that is, cases (1) of restitution of conjugal rights Section 9(2) of judicial separation. Section 3(3) of void or voidable marriages Section 11 and 12 and (4) of divorce Section 13.

Section 29(3) of the Act provides that the provisions of the Act shall not apply to pending cases in so far as the last three types of cases, as enumerated above are concerned, but the Act is silent about the first type of cases, that is, the cases relating to restitution of conjugal rights. In other words, the said Sub-section provides that the provisions of the Act shall not operate retrospective with regard to the three types of cases, other than the cases relating to restitution of conjugal rights butt as regards the fourth type of cases the Act is silent.

It is contended that this leads to the inference that the intention of the Legislature was that the provisions of the Act shall apply retrospectively to pending suits for restitution of conjugal rights, for, so it is urged, otherwise the Legislature would have included that type of cases also in that Sub-section. Support is sought from Mt. Rewati v. Chiranji Lal AIR 1944 Lah 29(F), in which the learned Judges have held that

an Act cannot ordinarily be held to have retrospective effect unless it is either expressly stated in the Act itself or is found to have had that effect by way of necessary implication. If the Legislature expressly declared one particular section of the Act to be retrospective in its operation without saying anything'' in regard to the other sections of the Act, the conclusion is irresistible that the other sections, were not meant to have retrospective effect.

This, however, does not lend any support to the argument in the present case, because it is a converse case. The presumption is that a statute does not operate retrospectively. It follows logically that, when in a statute one section is given retrospective effect, and it is inferred that the other sections about which it is not so stated, of the statute are not meant to have retrospective effect, that only enforces the presumption that a statute ordinarily not operate retrospectively. This view is supported by the observation of Bowen L.J. in Reid v. Reid (1886) 31 Ch D 402 (G), which is

the particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well-known trite maxim omnis nova constitutio futuris forman imponere debet non praeteritis, that is, that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.

This case was approved by Varadachariar J. in 1940 2 FCR 110: (AIR 1941 FC 10)(C), and, it page 185 (of FOR): (at p. 47 of AIR), the learned Judge observed:

The Act now under consideration was clearly intended to be retrospective, in so far as it took away certain vested rights which had accrued before the date of its enactment. But the presumption against retrospective operation is said to be so strong that it has been recognised that even m construing an Act or a section which is to a certain extent retrospective, it ought not to be given a larger retrospective operation than the words clearly involve. See Reid v. Reid (G).

There are two recognised principles, (1) that vested rights should not be presumed to be affected and (2) that the rights of the parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used in an enactment may be sufficient to rebut the first presumption, but not the second. Where it is intended to make a new law applicable even to pending actions, it is common to find the Legislature using language expressly referring to pending actions.

Now, it is clear that no inference, because Section (3) of the Act says that the provisions of the Act shall not apply to pending cases with regard to the three types of cases mentioned in it and so will not operate retrospectively with regard to them, is available that the provisions of the Act apply to a pending case for restitution of conjugal rights, a case of the type to which no reference is made in that Sub-section.

The learned Counsel on either side have not cited any case directly bearing upon the facts of this case and I have not been able to trace any such case, but there is one case from which some assistance may be had in regard to the matter now under discussion. The case is James Gardner v. Edward A. Lucas III(1878) AC 582(H).

In the Act under consideration in that case there were some sections With regard to which there was a clear statement that they were to operate retrospectively, there were other sections with regard to which there was clear statement that they were to operate only prospectively, and there were other sections as regards which the Act contained no clear and explicit statement whether they were to '' be retrospective or merely to be prospective. As to-those provisions about which there was clear 1 statement that they were not to operate retrospectively Lord Hatherley observed.

I think Mr. Benjamin pointed out one clause which said that it should not have any effect upon any matter anterior to the passing of the Act. I can only say, in the language of conveyancing, it was ex majore cautela that that should be put in. I do not think we could found any inference upon that but that we should rather be led to expect the same phraseology employed in the particular clause in question were such meaning sought to be conveyed.

It is enough that you do not find any such retrospective effect given to the clause in question, and that the consequence of your attributing any such effect to it, instead of making the Act effective for the purpose for which it was designed, would be, in fact, creating new rights in parties who had no rights at all.

This opinion of the learned Lord clearly indicates .that when there is a statement about a provision in a statute that it will not operate retrospectively, that does not lead to the inference that a provision, about which there is an omission of a statement whether it will operate prospectively or retrospectively, is to operate retrospectively.

Consequently, merely because Section 29(3) of the Act says that in regard to three types of cases the provisions of the Act will not operate retrospectively, that does not mean that with regard to the fourth type of cases concerning relief for restitution of conjugal rights the provisions of the Act are to operate retrospectively.

The defences that were available to a Defendant in a suit for restitution of conjugal rights previous to the passing of the Act are enumerated In Section 444, at page 533, of Mulla''s Hindu Law, Edn. 10. and the defences that are now available to a Defendant under the Act are provided for in sub-Section (2) of Section 9 of the Act. When the defences previously available and those now available under the Act are considered, it is apparent that a number of new defences to such a suit have been made available to a Defendant after the commencement of the Act.

The learned Counsel for the Plaintiff contends that if the suit of the Plaintiff is now to go before the District Court and is to be tried as a petition under the provisions of the Act, new defences will be available to the Defendant, and that would affect the vested right of the Plaintiff. On the other hand, the learned Counsel for the Defendant maintains that the rights of the parties have been altered and the Defendant is entitled to take advantage of the new defences. In Rama Krishna Chetty v. Subraya Iyer ILR 38 Mad 101: AIR 1916 mad 607 at p. 608 (I), the learned Judges observed:

it will be presumed that the Legislature did not intend to deprive any person of a right previously vested in him. The general rule that statutes relating to processual law have retrospective operation is as much subject to this important qualification as statutes dealing with substantive rights. The question whether a person is entitled to maintain a particular action or to do so in a particular form and what defences are open to the Defendant cannot be affected by any statute passed after its institution.

Similar observations of Suhrawardy J. are to be found at page 1149 (of Cal WN): (at p. 208 of AIR), in Gosta Behari Pramanik and Others Vs. Nawab Bahadur of Murshidabad, Thus the new defences under the Act are not available to the Defendant in the present case unless expressly so stated in the Act, which is not the case, or by necessary intendment inferable from the provisions of the Act, but no such intention is to be found in any provision.

A suit was competent for relief for restitution of conjugal rights in an ordinary Civil Court before the Act. Under the Act, according to Sections 9 and 19 a petition for such a relief is to be presented to a District Court. Section 20 makes provision for the contents and verification of such a petition. Section 21 then applies, subject to the rules made by the High Court, the provision of the CPC to proceedings under the Act.

It will be seen that previously the Plaintiff had to institute a plaint, with contents and verification, as provided in the Code of Civil Procedure, now the Petitioner has to make, a petition, with contents and verification as provided in the Act for the particular relief in question. It is obvious that the petition under the Act in this behalf is not the same thing as a plaint under the Code of Civil Procedure. Order 7 Rule 10(1), Code of Civil Procedure.says:

The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

It is clear that this sub-rule concerns a plaint and a suit and cannot be applied to a petition under the Act. It may be that such a petition has some similarity or resemblance to a plaint, but that will not attract the provisions of the sub-rule. There is no provision in the Act for transfer of a pending suit for restitution of conjugal rights from the Court of a subordinate Judge to the District Court to be entertained and tried as a petition under the Act.

The Subordinate Judge could not return the plaint under Order 7 Rule 10(1), Code of Civil Procedure.for presentation as a petition under the Act in the District Court. It means that, if there is any validity in the argument that the provisions of the Act apply retrospectively to a pending case like this, the suit must come to an end in the Court of the Subordinate Judge, and that would leave the Plaintiff to go or not to go before the District Court for the same relief by way of a new petition under the Act.

There is no justification for imputing any intention to the Legislature for having enacted such an unjust result ending pending cases in this way, for it must be presumed that the Legislature intends to further justice and not injustice. An interpretation which leads to such an unjust result cannot be said to flow from a necessary and compelling inference from the provisions of the Act, when there is nothing for such an inference in those provisions.

The consequence is that there is no ox-press provision in the Act that its provisions apply to a pending case like the present and neither from the language used in any section or the Act nor from the Act taken as a whole necessary intendment of the Legislature available for such as interpretation.

The order of the learned Subordinate Judge is wrong. He continues to have jurisdiction in the suit. The plaint could not be returned to the Plaintiff by him for presentation as a petition before the District Court under the Act. 1 would, therefore, set aside the order of the learned Subordinate Judge and remit the case to him for trial according to law, leaving the parties, in the circumstances of the case, to their own costs in this revision petition.

Gurnam Singh, J.

I agree.