Ram Pal vs Ajit Kaur

C. J.

This appeal is preferred by Ram Pal under section 28 of the Jammu and Kashmir Hindu Marriage Act and arises out of an application filed by him

under section 9 of the said Act for restitution of conjugal rights against Mst. Ajit Kaur alleged to be his legally wedded wife. The petitioner in his

application stated that he had married Mst. Ajit Kaur by Chadarandazi and that she resided with him for some days and then went to the house of

her cousin Jai Ram It was further alleged that he implored her to come back to his house but she refused to do so ; hence the petition. Mst. Ajit

Kaur denied her marriage with the petitioner and stated that she had married Bhagwan Das and was living with him as his wife. The petition was

presented before the District Judge, Jammu who transferred it to the Additional District Judge, Poonch, for disposal according to law. After

examining the pleadings of the parties the Additional District Judge raised various issues and one of the important issues was:

Whether the applicant was married to nonapplicant at Poonch on 28th Sawan 2016 by performance of the ceremony of Chadarandazi and

whether after that date the nonapplicant resided in the house of the applicant as his wife ? O. P. on applicant.

On examining the evidence adduced by the parties the trial Court came to the conclusion that the applicant had failed to prove his marriage with

Mst. Ajit Kaur. His petition was therefore dismissed. Against that order Ram Pal has filed the present appeal.

Mr. Isher Singh appearing on behalf of the appellant has argued that the application under the Hindu Marriage Act could not be heard by any

Court other than the District Court which under section 3 (b) of that Act, meant the principal civil Court of original jurisdiction. It is submitted that

as the application was heard by the Additional District Judge who had no jurisdiction to hear that application his order being without jurisdiction is

liable to be set aside. In support of his contention reliance was placed by him on a ruling of the Supreme Court reported as Kuldip Singh versus the

State of Punjab and another, A. I R. 1956 Supreme Court 391 and also on a decision of the Punjab High Court Janak Dulari versus Narain Das,

A. I. R. 1959 Punjab 50. In the Punjab case it has been laid down that the Court of an Additional District Judge in the Punjab cannot be

considered to be the principal civil Court of original civil jurisdiction within S. 19 of the Hindu Marriage Act and since by the Act the petitions

under it lie only to the principal civil Court of original jurisdiction, a District Judge to whom a petition under the Act is presented cannot transfer it

to an Additional District Judge, and on such transfer the latter would have no jurisdiction to hear and decide the case. In that case reliance was

placed on A. I. R. 1956 Supreme Court 391. We have gone through the decision of the Supreme Court in Kuldip Singh's case and in our opinion

that case does not lay down any such proposition that the District Judge cannot transfer a petition presented before him under the Hindu Marriage

Act for disposal to the Additional District Judge who is competent to discharge any of the functions of a District Judge which the District Judge

may assign to him under section 16 of the Civil Courts Act. In Kuldip Singh's appeal in the Supreme Court it was held that the Court of the

Additional District Judge was not a divisional Court of the Court of the District Judge but a separate and distinct Court of its own and that when an

offence under Section 193 of the Indian Penal Code was committed in, or in relation to, a proceeding in a Court of a Subordinate Judge of the

firstclass in the Punjab, the complaint could not have been made either by the Senior Subordinate Judge or by the Additional District Judge. In the

circumstances it was held that what the High Court ought to have done was to send the case to the District Judge and it was for him to decide it as

an application by the plaintiff for the prosecution of the defendant, and the Supreme Court ordered that this should be done. It may be mentioned

here that in the instant case the application was presented before the District Judge and it was transferred by him to the Additional District Judge

for hearing and disposal according to law. The case before the Supreme Court was quite different. It was not one of transfer by the District Judge

to the Additional District Judge but a case of direct presentation of the appeal to the Additional District Judge who was not competent to receive

the appeal.

Under section 19 of the Hindu Marriage Act, which reads as under :

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 solemnized or the husband and wife reside or last resided together.

An application for restitution of conjugal rights has to be presented to the district Court and under section 3 (bi of the said Act ""district Court'

means, the principal civil Court of original jurisdiction, in any area and includes any other civil Court which may be specified by the Government of

Jammu and Kashmir, by notification on in the Govt. Gazette, as having jurisdiction in respect of the matters dealt with in this Act. It is, therefore,

necessary to initiate or institute such applications before the. District Judge alone and not before the Additional District Judge. There is no provision

contained in section 19 of the Hindu Marriage Act prohibiting the District Judge from transferring the application to the Additional District Judge.

Even the Supreme Court's decision lays down no such prohibition. Section 16 of the Civil Courts Act reads as follows:

''16 (1) When the business pending before any District Judge requires the aid of an additional Judge or Judges for its speedy disposal, the

Government may on the recommendation of the High Court appoint such Additional Judge or Judges as may be necessary.

(2) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the

discharge of those functions he shall exercise the same powers as the District Judge.

As pointed out above, the presentation of the applications under the Hindu Marriage Act are to be made before the District Judge but on proper

assignment of the same under section 16 (2) of the Civil Courts Act they can be heard and disposed of by the Additional District Judge. The

Additional District Judge will have jurisdiction to dispose of those applications as he will be fully competent under the aforesaid section to

discharge any of the functions of the District Judge which the District Judge may assign to him. Although the Punjab High Court relying on Kuldip

Singh's case decided by the Supreme Court has held that the District Judge could not transfer the application to an Additional District Judge as the

latter would have no jurisdiction to hear and decide the case yet with due respects to the learned Judges, we are unable to agree with them in their

view that under the Hindu Marriage Act applications presented before the District Judge cannot be dealt with by the Additional District Judge

when they are properly transferred to him by the District Judge under section 16 (2) of the Civil Courts Act. In this view we are fortified by a

decision of the Calcutta High Court in case Ajit Kumar Bhunia versus Sm. Kanan Eala, A. I. R. 1960 Calcutta 565 in which it has been held that

where an application under section 13, Hindu Marriage Act, 1955, for dissolution of a marriage is duly filed before the District Judge as required

by Section 19 read with Section 3 (2) of that Act and the District Judge transfers it for disposal to the Additional District Judge, under section 8

(2) of the Bengal, Agra and Assam Civil Courts Act, the latter has jurisdiction in the matter and can dispose of the same. The appellant's objection

to jurisdiction in the instant case is without any force and is, therefore, overruled.

On merits it has been argued by counsel for the appellant that the trial Court has not properly appreciated the evidence and has erred in holding

that the marriage of the appellant with Mst. Ajit Kaur by Chadarandazi has not been established. The appellant's own witness Amar Nath, who is

alleged to have acted as Prohit, stated that Hawan and Saftpada ceremony was not performed at the time Chadarandazi took place. We have it

from the evidence adduced by the defendant that there is a custom by which it is essential that Hawan and Saftpada ceremony should be

performed when marriage by Chadarandazi takes place. It is admitted by the appellant's witnesses that Amar Nath was not his Prohit and no

explanation is forthcoming as to why he was specially engaged to conduct the marriage ceremony of the appellant. Moreover, there are material

discrepancies in the statements of the witnesses produced by the appellant. Some of them have stated that Ladoos were distributed at the time of

Chadarandazi marriage whereas others have deposed that Halwa was distributed among the people who were present at the time of the marriage.

Nonapplicant has produced respectable witnesses who are her next door neighbours. One of them is Dr. Kirpa Ram, a medical practitioner and

the other is Sardar Dhanna Sing. Both of them have deposed that Mst. Ajit Kaur resided in the house of her cousin Jai Ram during the months

from Jeth to"" 8th Poh 2016 when she was married to one respondent Bhagwan Das. According to these witnesses the nonapplicant was never

married to the applicant in the month of Sawan 2016 as has been alleged by him. The burden of proving his marriage with the nonapplicant was on

the appellant and he has failed to discharge that burden. His evidence is full of discrepancies and by no means convincing. The trial Court has.

therefore, rightly held that the alleged marriage of the appellant with the respondent is not proved. Under these circumstances we do not find any

force in this appeal which is dismissed. But we make no order as to costs.