Nihoto Sema vs Kanili Kimi Limi

P.C. Reddi, C.J.—This revision petition raises a question of law of general interest and considerable importance. The question is whether the Indian Divorce Act, 1869 (Act 4 of 1869) (hereinafter referred to as the Act) is operative in the State of Nagalaod.

The Respondent-Smt. Kanili Kini Limi and her husband-the Petitioner Nihoto Sema are Christians. They are Naga tribals. They are residents of the State of Nagaland. The Respondent-wife filed a suit seeking divorce u/s 10 of the Act before the Additional Deputy Commissioner (Judicial), Dimapur, Nagaland on the main ground, amongst others, adultery coupled with cruelty by her husband. The husband opposed the petition challenging the jurisdiction of the Court to try a divorce suit on the ground that the Act was inoperative in the State of Nagaland. The question had been raised both in the High Court and the Supreme Court, but the Supreme Court without expressing any opinion on the question of jurisdiction as the question arose out of and order passed in an interlocutory application, directed the Deputy Commissioner to dispose of the suit finally within four weeks from the date of receipt of the order. The Additional Deputy Commissioner heard the learned Counsel for the parties on the question of jurisdiction and held that the Act was applicable to the State of Nagaland. Aggrieved against the said decision of the Additional Deputy Commissioner, this revision has been filed under Rule 34 of the Rules for the Administration of Justice and Police in Naga Hills District.

The question is whether the Indian Divorce Act, 1869 is applicable to the State of Nugaland.

The State of Nagaland was coustituted comprising of the Naga Hills district under the State of Nagaland Act, 1962. The administration of the Naga Hills district at all relevant times was regulated by the Garo Hills Act, 1869 and the Scheduled Districts Act, 1874. u/s 4 of the Garo Hills Act, 1869 no Act passed by the Council of the Governor General for making laws and Regulations shall be deemed to extend to any parts of the Garo Hills, which included the Naga Hills district at the relevant time, unless the same is specially named therein. According to Mr. Choudhury, learned Counsel for the Petitioner, no notification u/s 4 of the Garo Hills Act was made specially naming the Divorce Act and extending the said Act to any part of the Naga Hills district.

The Indian Divorce Act, 1869 received the assent of the Governor General on 26th February, 1869 and the aforesaid Act came into operation on the first day of April, 1869. Section 2 of the Act provided that

This Act shall extend to the whole of British India and (so far only as regards British subjects within the dominions hereinafter mentioned) to the dominions of Princes and States in India in alliance with Her Majesty.

The Scheduled Districts Act, 1874 (Act XIV of 1874) was enacted and came into operation from 8th December, 1874. The Scheduled Districts Act has been declared to be applicable to Assam, which included the Naga Hills district. By the Scheduled District Act, 1874, the Garo Hills Act, 1869 was repealed. By Section 5 of the Scheduled Districts Act, 1874, the Local Government was enabled to extend to any of the Scheduled Districts, or to any part of any such district, any enactment which was in force in any part of British India at the date of such extension, by a notification in the local Gezette. Section 6 provided that the Local Government may from time to time appoint officers to administer civil and criminal justice and to superintend the settlement and collection of the public revenue and all matters relating to rent, and otherwise to conduct the administration within the scheduled districts. The section provided further that the Local Government may direct by what authority and jurisdiction, powers and duties incident to the operation of any enactment for the time being in force in such district shall be exercised or performed.

In the absence of any such notification u/s 3 and 5 of the Scheduled Districts Act, 1874 declaring that the Indian Divorce Act, 1869 was in force in the Naga Hills District, or extending the said Act to any parts of Naga Hills, the Indian Divorce Act, 1869 cannot be said to be in operation in Nsgaland, is the contention of the learned Counsel for the Petitioner.

The learned Counsel further submits that under the Naga Customary law, more particularly, under the Sema Customary law, there is no room for adjudication of matrimonial disputes by the Courts and in due deference to the custom prevailing in the State of Nagaland all matrimonial disputes should be referred only to the competent authority under the Naga Customary law for adjudication. He sought support for his submission the special provisions with respect to Nagaland contained in Article 371-A of the Constitution.

On the other band, the submission of the learned Counsel for the Respondent is as follows:

The Indian Divorce Act was amended in the year 1951 and by the said amendment, the Act was made applicable to the whole of India except the State of Jammu and Kashmir. Therefore, Nagaland being a part of India, the Indian Divorce Act is applicable to Nagaland also.

The Scheduled Districts Act, 1874, which repealed the Garo Hills Act of 1869, expressly confers power on the Local Government u/s 5 to extend to any of the Scheduled Districts, or to any part of any such district, any enactment which is in force in any part of British India at the time of such extension. Section 6(a) of the Act provides for appointment of officers by the Local Government to administer civil and criminal justice within the scheduled districts. By Section 6(c) power is specifically conferred for the issue of directions by the Local Government as to the authority who should exercise or perform any jurisdiction, powers or duties incident to the operation of any enactment for the time being in force in such district. A Notification No. 2922-J dated 23rd July, 1898 issued u/s 6(a) of the Scheduled Districts Act, 1898 by the Chief Commissioner directs that the jurisdiction, powers and duties of District Judge under Act IV of 1869, which is in force in the District of Naga Hill, shall be exercised and performed within the said district by the Deputy Commissioner. The notification clearly recites that the Indian Divorce Act, 1869 was in force by that date in the district of Naga Hills.

It is further submitted that Section 26 of the State of Nagaland Act, 1962 (Act 27 of 1962) clearly provides that all laws in force in the Naga Hills-Tuensang Area, shall continue to be in force in the State of Nagaland until altered, repealed or amended by a competent Legislature or other competent authority. The Legislature has not repealed or amended the applicability of the Indian Divorce Act, 1869 to the State of Nagaland.

Under the Sema Customary law, there is no specific provision relating to divorce.

To begin with, let us examine whether the Act was in operation in the District of Naga Hills before the State of Nagaland was formed in 1962.

The preamble to the Scheduled Districts Act, 1874 clearly provides that the Act is intended to ascertain the enactments in force in various parts of British India since various parts of British India have never been brought within, or have from time to time been removed from, the operation of the general Acts and Regulations and the jurisdiction of the ordinary Courts of judicature and because doubts have arisen in some cases as to which Acts or Regulations are in force, in such parts.

The Garo Hills Act, 1869 clearly provides that the ordinary laws in force in British India were not applicable to Garo Hills and it stood removed from the jurisdiction of civil, criminal and revenue Courts established under the general Regulations and Acts. It is not necessary to refer to any other provision of the Garo Hills Act, 1869 in view of the repeal of the said Act by the Scheduled Districts Act, 1874. Section 5 of the Scheduled Districts Act, 1874 provides that

The Local Government may, from time to time, by notification, in the local Gazette (if any), extend to any of the Scheduled Districts, or to any part of any such district; any enactment which is in force in any part of British India at the date of such extension.

Therefore, in order to extend any enactment to any of the Scheduled Districts a notification u/s 6 of the same Act is essential.

Section 3 of the Scheduled Districts Act, 1874 empowered the Local Government to declare what enactments were actually in force in any of the Scheduled Districts or in any part of any such district and what enactments were not actually in force in any of the Scheduled Districts. The main submission of the learned Counsel for the Petitioner is that either u/s 3 or u/s 5 of the Scheduled Districts Act, 1874, no notification was made either to declare that the Indian Divorce Act, 1869 was in force, or to extend the same Act to any part of the Naga Hills Districts, therefore continues the submission of the learned Counsel for the Petitioner, the Indian Divorce Act cannot be said to be in force in the Naga Hills District. But the notification No. 2922 3 dated 22.7.1898 issued u/s 6(c) of the Scheduled Districts Act, 1974, clearly stated that the Indian Divorce Act, 1869 was in force in Naga Hills District. No doubt, there is no such reference specifically to the notification by which the said Act was declared to be in force or extending the said Act to the Naga Hills District issued u/s 3 or Section 5 of the Scheduled Districts Act. But the mere absence of the reference to such notification does not give room for any doubt that the Iadian Divorce Act, 1869 is in force in the erstwhile Naga Hills District in view of the clear recital in the Notification No. 2922-3 dated 22.7.1898 itself that the Act IV of 1869 is in force. In the District of Naga Hills. If really, the Indian Divorce Act, 1869 was not in force in Naga Hills District, the question of issuing the notification u/s 6(c) of the Scheduled Districts Act, 1874 expressly empowering the Deputy Commissioner to exercise the jurisdiction, powers and duties of District Judge under the said Act, would not arise. There is absolutely no reason to depart from the Golden Rule of construction-that in construing statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. The learned Counsel for the Petitioner was not able to place before us any material to show that the words used in the notification do not mean what they say. Therefore, it is impermissible to hold on a true construction of the notification that the Indian Divorce Act, 1869 was not in force in the district of Naga Hills when the notification was issued in 1898.

Then the question arises whether after the repeal of the Scheduled Districts Act, 1874 by the Government of India (Adaptation of Indian Laws) Order, 1937, the notification issued u/s 6(c) of the said Act continued to be in force. Clause 3 of the Order reads as follows:

The Indian laws mentioned in the Schedules to this Order shall, until repealed or amended by a competent Legislature or other competent authority, have effect subject to the adaptations and modifications directed by those Schedules to be made therein or, if it is so directed, shall cease to have effect.

The first Schedule of the Order contains the various Central Acts, including the Scheduled Districts Act, 1874 (XIV of 1874); which reads as follows:

The Scheduled District Act, 1874. (XIV of 1874)

This Act shall cease to have effect, without prejudice to the continuing validity of any notification, appointment, regulation, direction or determination made thereunder and in force immediately before the commencement of Part III of the Government of India Act, 1935:

Provided that, where immediately before the first day of April, 1937, any enactment is, by virtue of any notification made under this Act, in force in any area in British India, either with or without restrictions or modilications. the Central Government, in relation to matters enumerated in List 1 of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six months from the said date, by notification in the Official Gazette, declare that the enactment in question shall have effect in that area subject to such modifications and adaptation specified in the notification as the Government is question may deem necessary or expedient to bring it into record with the Government of India Act, 1935.

It is clear from the saving clause that the notifications and regulations issued under the Scheduled Districts Act, 1874 and in force immediately before the commencement of Part III of the Government of India Act, 1935, shall continue to have effect unless the Central Government by notification in the Official Gazette declare that the enactment in question shall have effect in that area subject to such modifications and adaptations specified in the notification as the Government in question may deem necessary or expedient to bring it into accord with the Government of India Act, 1935. But no such notification modifying the Indian Divorce Act, 1869 has been issued. This conclusion of ours is further assured by the Nagaland Code (published by the Government of Nagaland which contains the enactments which are in force in Nagaland) by the inclusion of the Indian Divorce Act, 1869 in Part VII. If the Indian Divorce Act, 1869 was not in operation in Naga Hills District, it would not have been included in the list of Central Acts in force in erstwhile Naga Hills in the Nagaland Code published by the Government.

The Supreme Court in State of Nagaland Vs. Ratan Singh, etc., clearly held that the Rules for Administration of Justice and Police in the Naga Hills District made under Sections 6 and 7 of the Scheduled Districts Act, 1874 were validly enacted and continue to apply in Nagaland.

One other submission of learned Counsel is that by virtue of Clause (1) of Article 372 of the Constitution the customary laws of Nagaland relating to marriage and divorce prior to the commencement of the Constitution continue to be in force after the commencement of the Constitution until altered or repealed and, therefore, the Indian Divorce Act is inapplicable in the State of Nagaland. But, Clause (2) of Article 372 of the Constitution of India empowered the President to make by order such adaptations of such law, whether by way of repeal or amendment, as may be necessary or expedient, for the purpose of bringing the provisions of such law into accord with the provisions of the Constitution and to provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made. In exercise of the said power, the President made the Adaptations of Laws Order, 1950, which came into force on the 26th day of January, 1950. After adaptation, Section 2 of the Indian Divorce Act read as follows:

This Act extends to the whole of India except part B States.

Section 2 of the Act was again amended by the Part B States (Laws) Act, 1951 (No. III of 1951), which came into force on 1.4.1951. By this Act, in Section 2 of the Act, for the words "except Part B States", "except the State of Jammu and Kashmir" bad been substituted. After the aforesaid amendment, Section 2 of the Act reads as follows:

This Act extends to the whole of India except the State of Jammu and Kashmir.

The State of Nagaland is a part of India. Therefore, there is no escape from the conclusion that the Act is also applicable to the State of Nagaland.

Then, there remains the submission of the learned Counsel for the Petitioner that as far as practicable the parties who are indigenous inhabitants of Naga Hills should be directed to settle the dispute consensusly without disturbing the Naga social fabric under the provisions of Rule 30 of the Rules for the Administiation of Justice and Police in the Naga Hills District. It is submitted that under the Sema Customary law, disputes are settled by the chiefs and their ''chochomi''. Reference is made to J.H. Hutton''s "The Sema Nagus", in p. 187 of which it has been observed:

A woman who objects to her husband can leave him at any time, but will not get her ornaments back if she does so against her husband''s consent, unless be has seriously ill-treated her, in which case she could claim the return of her ornaments as well as a fine for the ill-treatment. In any ease the marriage price would have to be repaid to him. Divorce is, however, probably less frequent among the Samas than among neighbouring tribes, of whom the Act are particularly bad in this respect, almost making it the rule rather than the exception to be divorced at least once during their lives, and usually for infidelity.

Therefore, there is nothing to show even in the texts that there is any customary form of divorce prevalent amongst the Sema Nagas.

The contention of the learned Counsel relying open the provisions of Article 371A of the Constitution providing that no Act of Parliament in respect of Naga customary law and procedure shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decided, need not detain us long in view of the express provisions of Section 26 of the State of Nagaland Act, 1962 (Act 27 of 1962) and the further fact that the Indian Divorce Act, 1869 is not an Act of Parliament to which the provisions of Article 371A of the Constitution are attracted. The Patna High Court in Jhaman Mian and Others Vs. The State, also expressed a similar view.

It is lastly urged that it is the duty of the Court when both the parties to the litigation are indigenous inhabitants of Naga Hills to make an endeavour in accordance with the letter and spirit of Rule 30 of Ihe Rules for Administration of Justice and Police in the Naga Hills District to induce them to submit their case to a panchayat. The learned Counsel invited our attention to the decisions of the Assam High Court in Monje Machik and Anr. v. Mechok Mechik and Anr. (AIR 1950 Gau 85) Mt. Barmani Kochni v. Mt. Panchati Kochni (AIR 1952 Gau 41) Badrinarayan Agarwalla Vs. Bhupendra Kumar Dhar and Another, and Singdon Marak v. Manel Mechik AIR 1954 Gau 61. In all these cases the learned Judges held that if the parties agree to go to a panchayat, then the procedure prescribed in Rule 30 should bo followed. In this Case, the Additional Deputy Commissioner in his order clearly held that when the parties are unwilling to go to the customary Courts, the Court cannot compel the parties to go to the panchayat. This is obviously a case where the wife has been complaining that her husband has been guilty of adultery coupled with cruelty and sought divorce and that the husband-Petitioner took the child (daughter, aged about 31 years) away from the Nursery School without the knowledge and consent of the Respondent (wife) and separated the child from the mother and prayed for the custody of the child. This appears to be a case where the marriage is irretrievably broken and persuasion is no proper remedy.

In the result, this revision petition fails and it is accordingly dismissed with costs.