Upendra Kumar vs Harpriya Kumar

Prakash Narain, J.

(1) This appeal raises several questions of law .In order, however, to appreciate the contentions raised it is first necessary to notice facts.

(2) The parties hereto are Hindus. They were married on 11/03/1974 at Ram Nagar in Uttar Pradesh in accordance with Hindu rites .After marriage the couple went to and resided at Buxar, the place of the husband. They lived together as husband and wife only for two days for in the forenoon of 14/03/1974 the respondent left for her parental home. The parties have never resided together at any place thereafter. On 18/09/1975 the appellant filed a petition u/s 9 of the Hindu Marriage Act against the respondent praying for the grant of a decree for restitution of conjugal rights. This petition was filed in the court of the District Judge ,Delhi. The respondent was served with the notice of THE petition. Appearance was put in on her behalf and on 13/11/1975 a request was made to grant time to file the written state mentor reply to the petition u/s 9 of the said Act. Time was granted to the respondent and the hearing was adjourned to 5/01/1976. On 15/12/1975 an application was filed on behalf of the respondent for holding the proceedings in camera. On 5/01/1976 the respondent filed her written statement. The trial Court thereafter fixed 30/04/1976 as the date for appearance of the parties in order to investigate the possibilities of reconciliation between the couple. Instead of appearing in person the respondent, however ,moved the trial Court to fix a preliminary issue on the point of territorial jurisdiction of the District Judge, Delhi, to try THE petition u/s 9 of the Act. The point of jurisdiction, it maybe noticed, was not taken up at any time prior to this stage. The trial Court, thereafter framed the following issue:-"Whether this court has jurisdiction to try this petition ?"

(3) The appellant''s case before the trial Court was that the District Judge ,Delhi, had jurisdiction to try the petition because the appellant/petitioner was a permanent'' resident of Delhi and was still residing in Delhi where the wife was bound in law to discharge her marital obligations qua the husband. The respondent however, relied on Section 19 of the said Act and took up the plea that as neither the marriage was solemnised at Delhi nor the husband and wife ever resided or last'' resided at Delhi, the Courts a.t Delhi had no jurisdiction to entertain the petition.

(4) The trial Court came to the conclusion that it did not have territorial jurisdiction to entertain the petition. It repelled the contention that it had jurisdiction u/s 20 of the CPC read with Section 21 of the Hindu Marriage Act. According to the trial Court Section 19 clearly covered the point of territorial jurisdiction .It, Therefore, returned the petition to the appellant for being presented to the proper court. Aggrieved by the said order the appellant has preferred the present appeal. Section 3(b) defines "District Court" as under :-

"''district court'' means, in any area for which there is a city civil court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act "

This definition is somewhat different from the definition of'' District Court "in Indian Divorce Act, 1869. There the "District Court" is defined as under :-

"''District Court'' means, in the case of any petition under this Act ,the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act the husband and wife reside or last am referring to these two sections because some argument was made at the bar in considering which reference to the different provisions in the two Acts would be necessary .It shall deal with the matter a little later because first I will notice the other relevant provisions which arise for consideration in this case."

Section 19 of the Hindu Marriage Act reads as under :-

"19.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 the husband and wife reside or last resided together."

Section 19 of the Hindu Marriage Act, 1955 has been amended by the Marriage Laws (Amendment) Act 68 of 1976 and the section now reads as under :-

"19.Court to which petition shall be presented :-Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction:-(i) the marriage was solemnised, or(ii) the respondent at the time of the presentation of THE petition resides, or(iii) the parties to the marriage last resided together, or(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time ,residing outside the territories to which "this Act extends ,or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."

Section 21 of the Hindu Marriage Act reads as under :-

"21.Subject to the other provisions contained in 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."

Since reference has been made to the CPC some of the provisions of the Code which are relied upon may also be read. Section 4 reads as under :-

"4.(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2)In particular and without prejudice to the generality of the proposition contained in Sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."

Section 9 of the Code reads as under :--

"9.The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.Explanation.A suit in which the right to property or to an office is contested is a suit or a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."

Section 20 of the Code reads as under :-"20. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction -

(A)the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; or

(B)any of the defendants, where there are more than one, at the time of commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution;

(C)the cause of action, wholly or in part arises. Explanation 1.-Where a person has a permanent dwelling atone place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation II.-A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."

(5) The first contention that has been made on behalf of the appellant is that by virtue of the provisions of Section 21 of the Hindu Marriage Act the CPC is made applicable to proceedings under the said Act and so, even if the petition was not maintainable u/s 19 of the Act it should have been held that the District Court in Delhi had jurisdiction to entertain the petition by virtue of the provisions of Section 20 of the CPC The contention is since the cause of action or a part of the cause of action ,viz. the failure of the wife to discharge her marital obligations to the husband at the place where the husband resides, arises at Delhi, the appellant being a permanent resident of Delhi, it should have been held that the Courts at Delhi have jurisdiction to entertain THE petition. Of this contention there were two facets. First, that by virtue of Section 21 of the Hindu Marriage Act Section 20 of the CPC stands incorporated in the said Act, and secondly ,the petition u/s 9 of the Act was a composite petition or suit and could be treated either as a petition under the Hindu Marriage Act implicate or a suit u/s 9 of the Code of Civil Procedure.

(6) In my opinion, neither of the two facets of the contention put forward can be accepted. Section 21 of the Act, no doubt, provides that all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, all the same the meaning of this provision is that the conduct of proceedings would be, asfar as possible, in accordance with the procedure prescribed by the Code .This section cannot be read to incorporate every provision of the CPC in the Hindu Marriage Act. The legislature advisedly used the phrase "all proceedings under this Act shall be regulated". A reading of this phrase makes it amply clear that IT is only the procedural aspect which would be controlled by the CPC and not the substantive aspect of things like jurisdiction. To take an example. Section 9 of the CPC lays down that the Courts shall have jurisdiction to try all suits of civil nature. Which courts is not specified in the Code. In Delhi, the Punjab Courts Act lays down which courts will try matters of civil nature .Furthermore, the Delhi High Court Act also lays down which matters according to pecuniary jurisdiction would be tried on the original side of the High Court. Now "District Court" under the Hindu Marriage Act means, as far as Delhi is concerned, the principal civil court of original jurisdiction or any other civil court which may be specified by the State Government by notification in the Official Gazette. These other courts which may be notified may not be the ce court of the District Judge. For example, a Sub Judge may be notified as District Court within the meaning of Section 3(b) of the said Act. This would be different from the court postulated by Section 9 of the Code or under the Punjab Courts Act or the Delhi High Court Act .As another example I may notice Section 28 of the Hindu Marriage Act. This makes a specific provision among other things for appeal. It cannot be said that the. appeal postulated by Section 28 of the Act is the same kind of appeal as is postulated by Section 96 of the Code or Section 104 of the Code. It is one of the settled canone of interpretation that a special law overrides a general law. The CPC is a general law. The Hindu Marriage Act is a special law. Therefore, it would be stretching one''s imagination to say that the general law has been incorporated in the special law in its entirety. I cannot persuade myself to give Section 21 of the interpretation canvassed that by virtue of it the provisions of Section 20 of the Code can be incorporated in it. If that was so, there was no need to enact Section 19 in the Hindu Marriage Act.

(7) My attention has been invited to a decision of the Madras High Court in M. Gomathi Vs. S. Natarajan, . In this case the wife filed a petition under the Hindu Marriage Act for judicial separation on the ground of cruelty indiscretion in the Court of City Civil Court, Madras. Pending disposal of that petition the wife also prayed, for interim maintenance which was ordered. The respondent raised an objection that the City Civil Court had no jurisdiction to entertain the petition as neither was the marriage solemnised nor the husband and wife reside nor last resided together within the jurisdiction of that Court. This objection was pressed by the husband in an appeal from the order granting interim maintenance .The lower Appellate Court held that the question of territorial jurisdiction had necessarily to be decided first and the trial Court could not proceed to order interim maintenance till that issue was decided. From that order the wife went up in revision to the High Court. This was heard by a learned Single Judge of that Court. It was urged before the High Court that Sections 19 and 21 of the Hindu Marriage Act cannot be construed as excluding the operation of the Code of Civil Procedure. Referring to Section 4 of the CPC the High Court held :-"The effect of the savings clause will be that the provisions of the Civil P. C. shall be deemed not to limit or otherwise affect any provision relating to jurisdiction provided undera special enactment. In other words, by application of the Civil P.C. the provisions of the special law as to jurisdiction shall not be limited or otherwise affected. In this case, if the Civil P. C. is found to be applicable the provisions of the special enactment will not in any way be limited or otherwise affected; on the other hand, the jurisdiction of the Court extended. Now the question will be whether Section 21 of the Hindu Marriage Act will have the effect of excluding the jurisdiction that is conferred under Civil P. C. As already stated the words used are ''subject to the other provistons contained in this Act''. Neither Section 19 nor Section 21 limit the jurisdiction to that which is provided u/s 19. Therefore Sections 19 and 21 cannot be construed as excluding the operation of the Civil P. C.I am fortified in this view by the wording of the Code which prohibits the limiting or otherwise affecting the jurisdiction conferred by the special enactment and doesn''t bar conferment of an extended jurisdiction by the application of the Civil P. C. "The language of Sec. 19 or Sec. 21 of the Hindu Marriage Act docs not exclude the application of the Civil P. C."The learned Judge further went on to observe rejecting the contention on behalf of the respondent that Section 19 alone has to be read to find out territorial jurisdiction :-". ....Though the wording might lend some support to the contention raised on behalf of the husband, it would rather be in keeping with the spirit of the section to confine the mandatory provision ''shall be presented to the District Court'' and read the later part as to jurisdictions not mandatory but a provision conferring jurisdiction. Thus construed, the jurisdiction that is conferred by the Civil P. C. will not be excluded. A comparison of the provisions of the Hindu Marriage Act with that of the Indian Divorce Act will show that under the Indian Divorce Act, because of the definition of ''District Court'', the jurisdiction of Civil Courts as conferred by the Civil .P C. is barred. Section 3(3) of the Indian Divorce Act defines ''District Court'' as meaning in the case of any petition under the Act, the Court of the District Judge within the local limits of whose ordinary jurisdictioa under the Act, the husband and wife resided together. By the definition, if the husband and wife reside or have ''not resided together'' it will not be District Court under the Act and under Sections 10 and 11 the husband or wife may present a petition to the District Court or to the High Court, the District Court being necessarily one that comes within the jurisdiction of the Act. Because of the definition which excludes District Court within whose jurisdiction the husband wife do not reside or have last resided together and as the application is subject to the provisions of the Indian Divorce Act, the provisions of the Civil P. C. conferring jurisdiction on the District Court where the defendant is residing cannot be mane applicable ."It was finally held that reading Sections 19 and 21 of the Hindu Marriage Act and Sections 4 and 20 of the CPC the Court would be justified in holding that the provisions of the Code are also applicable and the court within whose jurisdiction the defendant is residing will have jurisdiction.

(8) With respect I am unable to subscribe to the view expressed in the decision of the Madras High Court. First of all, the Court seems to have missed the last line of Section 3(b) of the Hindu Marriage Act while comparing it with Section 3(3) of the Indian Divorce Act. We have already read Section 3(b) of the Hindu Marriage Act. The last line, " . . . as having jurisdiction in respect of the matters dealt with in this Act" would place Section 3(b) of the Act as par with Section 3(3) of the Indian Divorce Act Secondly ,Section 19 of the Act is a special law while Section 20 of the Code is a general law and special law always overrides the general law. To bring to aid Sec. 21 of the Act will not be justified because, as I have pointed out earlier, in terms reference in it is to proceedings under the Act being regulated by the procedure prescribed by the Code. The word "regulated" has a different connotation from the word "governed". In any case, if it was the intention of the legislature that Section 20 of the CPC would also be attracted to petitions under the Act it would have incorporated those provisions in Section 19 of the Act and not left it to the courts to indulge in guesswork or by construction to enact a provision which does not exist. Indeed, the amended Section 19 of the Act justifies that conclusion.

(9) Learned counsel has submitted that Sections 19 and 21 of the Act supplement Sections 4 and 20 of the Code and not supplant them .I cannot accept it for reasons already stated. Another error which I find in the judgement of the Madras High Court, and I say so with respect, is that that court divided Section 19 of the Act into two portions, the mandatory and non-mandatory. When Section 19 refers to "District Court" it is obvious that it is referring to the definition of the term "District Court" as given in Section 3(b) of the Act.

(10) I may here also notice a decision of the Bombay High Court which was relied upon in the above judgment of the Madras High Court .That case is Hariram Dhalumal Karamchandani Vs. Jasoti, . The Bombay High Court had observed that Section 20 of the Code can be resorted to if a particular case does not fall within the ambit of Section 19 of the Act. In my opinion, the observations cannot be considered as good law and must be restricted to the facts of that particular cane. In that case the couple had got married at Karachi prior to 1947 when Karachi was one of the towns in undivided India. The parties separated in Karachi. After partition they both came to India separately and lived separately. The husband was employed at Delhi and wife at Nagpur. The husband filed a petition u/s 19 of the Act for divorce in the Nagpur Court .Now, the Nagpur Court was one under whose jurisdiction neither was the marriage solemnised nor did the husband and wife reside nor did they last reside together. In these circumstances and because there was no place in India where a petition under the Act could be filed, the Bombay High Court observed as under :--

"......where the provision as to jurisdiction specifically contained in Section 19 of the Hindu Marriage Act viz., the place of solemnisation of marriage or place of residence of husband and wife, either separately or together, within the jurisdiction of the Court is impossible of satisfaction, in my opinion, the provisions of Section 20, Civil P. C.are sufficient to create jurisdiction in the ordinary Civil Court at a place where either the defendant resides or the cause of action is said to arise."

(11) I must respectfully say that the Bombay High Court was rather swayed with the peculiar situation in which the parties were placed to make the observations that it did. Merely because there was hardship caused to a particular couple and there was no provision in the legislation to meet with a contingency in which that couple found itself cannot justify incorporating the provisions of Section 20 of the Code in the Act.

(12) Dr. Singhvi, learned counsel for the appellant, rightly says that the trial Court has erred in relying on the observations of the Bombay High Court in the case referred to earlier. The trial Court could not rely on the case decided by the Bombay High Court and yet hold that the appellant''s petition was not filed in a competent court .As I have noticed earlier, the legislative lacuna may, perhaps cause hardship in some case like the case of the parties, referred in the judgment of the Bombay High Court, which is .not covered bya legislation but that would not justify giving an extended meaning to a provision when it is not warranted.

(13) Kailasam, J. in the Madras case. referred to Section 4 of the Code and observed that the effect of the savings clause will be that the provisions of the CPC shall be deemed not to limit or otherwise affect any provision relating to jurisdiction provided under a special enactment. Thereafter he observed that the question to be determined was whether Section 21 of the Hindu Marriage Act had the effect of excluding the jurisdiction that is conferred under the Code of Civil Procedure. He came to the conclusion that neither Section 19 nor Section 21 limit the jurisdiction to that which is provided u/s 19. As I have said earlier, I am in respectful disagreement with these observations. Section 21 of the Hindu Marriage Act in terms makes the applicability of the provisions of the CPC applicable subject to the other provisions of the Hindu Marriage Act and any rules that the High Court may make in this behalf. in other words, the provisions of the Code would-be attracted so far as they are not In conflict with the provisions of the Hindu Marriage Act. Section 19 which sets out in clear terms that a petition under the Act can only be presented to the courts specified in that section would thus make Section 20 of the Code wholly inapplicable. Section 4 of the Code would support this interpretation because it speaks of special jurisdiction to be provided for or special powers conferred by any special law. The provision in Section 19 of the Act that a petition under the Act shall be presented to the District Court within the limits of whose ordinary original jurisdiction the marriage was solemnised or the husband and wife reside or last resided together are really in the nature of conditions precedent to invoking the jurisdiction. Merely because the conditions cannot be fulfilled in a given case or are inconvenient to be fulfilled is no ground for holding that those conditions may not be fulfilled and a beneficial construction be given to enlarge the jurisdiction by reading Section 21 of the Act so as to incorporate the provisions of Section 20 of the Code. The Bombay decision which looked to the convenience of the parties who were unfortunately placed in a helpless situation cannot be regarded as correct. This may be well-illustrated by R. v. Armitage(1872) L.R. 7 Q.B. 773. In that case there was a statutory provision that justices, at the hearing of a bastardy summons, "shall hear the evidence" of the mother and such other evidence as she might adduce ,, which authorised them to make an affiliation order "If the mother''s evidence be corroborated in some material particular by other testimony." The evidence of the mother was made essential ora condition precedent to the exercise of jurisdiction and it was held that no order could .be made without it. even though the woman died before the hearing. It is not for us to supply .a legislative lacuna and so ,1. must hold that Section 20 of the Code cannot be read as supplementing Section 19 of the Act.

(14) I am further persuaded to come to this conclusion because itI was to hold otherwise one may say that a party may either invoke Section 19 of the Act or if it so suits that party invoke Section 20 of the Code .Such an unsettled state of law pertaining to Jurisdiction could not have been contemplated by Parliament

(15) It was urged that restitution of conjugal right is .a civil right and could be enforced by a civil suit filed u/s 9 of the Code .Reliance was placed on (1867) 11 M.I.A. 551. It was also said that as it was the duty of a Hindu wife to live with her husband it gave rise to a corresponding right in the husband to enforce the obligation or discharge of the duty from the wife at the place where he resided. Therefore, the husband could bring an action at the place of his residence because it was at that place that the wife is obliged to discharge her obligations.

(16) My attention was invited to a number of decisions. I need not deal with this respect of the case. The petitioner may have a civil right which he may be able to enforce by filing a civil suit but then he has chosen his remedy and filed a petition under the Hindu Marriage Act which is a remedy different from a civil suit. Inasmuch as he has filed a petition under the Hindu Marriage Act the jurisdictional aspect has to be considered from the point of view of the provisions of that Act and not by reference to any other statute.

(17) This brings me to the consideration of the other fact of the contention that the petition presented by the appellant was a. composite petition .It could be treated either as a petition under the Hindu Marriage Act or & civil suit. I am afraid that is not possible. There are several reasons why I cannot accept this argument made at the bar. First ,this was not the case of the appellant before the trial Court and indeed is not even the case pleaded in the grounds of appeal before me. Secondly, the two remedies, namely, that of a suit and a petition under the Act are entirely different remedies and have different connotations and results. A petition under the Hindu Marriage Act may be drafted like a plaint in a civil suit but the question really is which jurisdiction is invoked. The contention that all the necessary ingredients of a plaint are there and the court which would have been moved in either case has been moved and so, the court may treat it either as a suit or a'' petition is based on a fallacy. The" District Court "or the principal civil court of original jurisdiction may be the same but- may also not be the same. As a matter of law it cannot be laid dawn that whenever a petition under the Hindu Marriage Actis moved the court dealing with it may either treat .it as a civil suit or as a petition under the Hindu Marriage Act. Not every civil court would be empowered to entertain a petition under the Hindu Marriage Act. It is only the designated courts which can do so and the designated courts would be the District Court within the meaning of Section 3(b) of the Hindu Marriage Act. A civil suit, on the other hand ,can be entertained by any civil court depending on the pecuniary and territorial jurisdictions provided by the various laws in this behalf. That in the present case the principal civil court and the "District Court" within the meaning of Section 3(b) of the Act happen to be the same does not justify laying down a wrong principle of law. Divorce judicial separation or even restitution of conjugal rights were not known to Hindu law as such. These rights, at least those of divorce and judicial separation have been specially created in case of Hindu marriages by the Hindu Marriage Act. Special rights call for special remedies .The legislature has provided for the same. The legislature could well have left these special rights to be enforced by civil courts but in the context of benevolent legislation speedier remedy and special remedies have been provided. It is. therefore, not possible to mix up special jurisdiction with ordinary jurisdiction. Indeed, a reading of Section 4 of the Hindu Marriage Act would tend to suggest an overriding effect both in matters of substantive law and procedure. It is, however, not necessary for the purpose of this case to lay down as a firm rule whether the special law or providing for a special remedy ousts a general law and general remedy. At the moment all we are only concerned with is whether these two remedies could be claimed alternatively in the same petition. In my Opinion ,these could not be so claimed and, indeed, have not been so claimed. The arguments at the bar cannot cure the defect that no foundation in facts has to be laid in the petition itself.

(18) As I have noticed earlier, civil suits in Delhi can be either filed in the court of the District Judge or in the court of the Senior Sub Judge or in the High Court depending upon pecuniary jurisdiction of a particular suit. It is necessary to state these facts clearly in THE petition of plaint before a suit can be entertained, this not having been so stated, the foundation in facts has not been laid. Indeed, as far as the territorial jurisdiction is concerned, what is stated is as follows :-

"THAT the petitioner and respondent have never cohabited, and the petitioner is an (a) permanent resident of Delhi and still resides within the jurisdiction of this Hon''ble Court, couple with the fact that the petitioner has apprehension, if he will institute at Varanasi, there is threat to his life, thus this Hon''ble Court has the jurisdiction to entertain in this suit."

The averments as made cannot, Therefore, be regarded as sufficient even for the purposes of Section 20 of the Code to give the courts at Delhi territorial jurisdiction. I need not dilate on this aspect further and must reject the contention that the present petition be treated as a composite petition and if territorial jurisdiction u/s 19 of the Act is not available, THE petition may be treated as a civil suit and the petitioner be given the benefit of Section 20 of the Code.

(19) It was next contended that on a true construction Section 19 should be read to give jurisdiction to a Court where either the husband or the wife resides and not where both reside. This could bed one if "or" is read for "and" in the phrase, "the husband and wife reside". Support for this contention was sought from a passage in the Twelfth Edition of Maxwell on Interpretation of Statutes at page 232.This passage reads as under :-

"IN ordinary usage, ''and'' is conjunctive and ''or'' disjunctive. Butto carry out the intention of the legislature it may be necessary to read "and" in place of the conjunction "or" "or" and and vice versa."

The illustrations given by Maxwell of the Disabled Soldiers Act, 1601or Corruption Act, 1916 or the Mines and Quarries Act, 1954 etc. do not help in interpreting the provisions of Section 19 of the Hindu Marriage Act. In those acts the conjunctive was read as disjunctive and vice versa to give a meaning to the Act as otherwise the Act would not have any rationale behind its provisions. For example, "sick and maimed soldiers" postulated by the Disabled Soldiers Act obviously referred to soldiers who were either sick or maimed and not only to those who were both. In the present case there is no such difficulty in construing the provisions of Section 19 of the Act. The legislature advisedly gave the District Courts of the places where either the marriage was solemnised or where the husband and wife both reside or last resided together jurisdiction to entertain petitions under the Act the conjunctive used does not make the provision unenforceable or unintelligible .

(20) It was urged that in a reformatory law like the Hindu Marriage Act the reading of the provisions should have flexibility of approach so that disputes between husband and wife could be settled. To gain support reliance was placed on R. v. Oakes 1959 (2) A.E.R. 92. The decision of the Court of Appeal is really not of much help in furthering this contention. In the case relied upon unless the disjunctive was read for the conjunctive, it was held, Section 7 of the Official Secrets Act, 1920 could not be given an intelligible meaning. I find no such difficulty in the present case. The flexibility canvassed cannot mean disregard of the legislative intent if it is clear, and, in my opinion, in the present case it is absolutely clear. It is indeed with the idea of expeditious disposal of matrimonial disputes that only those District Courts have been given jurisdiction to hear petitions under the Act under whose jurisdiction either the marriage was solemnised or the husband and wife reside or last resided together. This was obviously with the intention of having evidence available expeditiously at places of marriage and subsequent residence of the couple during marriage.

(21) The phrase as used in Section 19 is not new. It has existed from 1869 since the enactment of Indian Divorce Act. The Parliament understood it well. Therefore, it must be held that Parliament deliberately enacted Section 19 as it was and did not intend to incorporate Section 20 of the Code or any other provision. Indeed, one may note that the beneficial nature of the legislation which modifies the ancient Hindu law is yet controlled by certain amount of conservatism which may be read in Section 23 of the Hindu Marriage Act. I, find myself unable to hold that in Section 19 of the Act any words other than those which have been enacted be read or substitute a disjunctive for a conjunctive, as contended.

(22) Lastly, it has been urged that the respondent waived the plea regarding territorial jurisdiction and must be deemed to have submitted to jurisdiction. It is submitted that in that view of the matter she cannot be heard to challenge the territorial jurisdiction of the Delhi Courts. I may recollect some of the facts. On 30/11/1975 the respondent took an adjournment to file written statement On 15/12/1975 she applied for holding the proceedings in camera. On 5/01/1976 she filed a written statement without taking an objection as to territorial jurisdiction. It is only after she was ordered to appear in person that an application was moved questioning the territorial jurisdiction of the trial Court. The question before us is whether this conduct would amount to acquiescence and submission to jurisdiction and whether that was possible.

(23) In Ledgard and another v. Bull, 13 Indian Appeals 134(5),relied upon by the learned counsel for the appellant, the plea'' as to jurisdiction was rejected. This case, however, is of Bo help to the appellant. What was said in this case was that there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. The principle of law is that if a patty takes the chance of winning on merits after joining issues it cannot later on plead want of jurisdiction. In the present case not even the issues have been settled and indeed the case was at the initial stage of pleadings .Had the parties joined the issue and the matter gone to trial, perhaps, the situation might have been different.

(24) Learned counsel relied on Ramanlal and another v. Ramgopal AIR 1954 Raj 135 , V. Subramania Aiyar Vs. S.C. Annasami Iyer and Others, , Achut Anant Pai Vs. Governor General-in-Council, and Seth Hiralal Patni Vs. Sri Kali Nath, .

(25) In the Rajasthan case a bench of that court held that when the defendant appears not only to protest jurisdiction but he also pleads to the merits, such an appearance amounts to voluntary submission on his part and his protesting the jurisdiction in such a. case when he also pleads to the merits does not detract from the principle of submission in any way. These observations were made on the basis of the well-known principle that if a court has jurisdiction in an action over any person who has by his conduct precluded himself from objecting to the jurisdiction of the court, he cannot later be allowed to resile. Such a situation may occur when a person voluntarily submits to a jurisdiction. It may also occur where defendant takes a chance to succeed on merits and later on when he loses raises the plea of jurisdiction or presses the plea of jurisdiction taken earlier but not pressed. That is precisely what happened in the Rajasthan case and let their Lordships to hold in that particular case that the defendant was debarred from agitating want of jurisdiction. The observations in the Rajasthan case about estoppel by pleading were, however, held to be rather wide in a later decision of the same High Court in Premier Automobiles Ltd., Bombay Vs. Laxmi Motors Co., Jodhpur, .

(26) In the Madras case also the plea of jurisdiction was not allowed to be pressed after the defendant had submitted to the jurisdiction and gone to trial.

(27) In the Calcutta case the objection as to jurisdiction, was not raised till the final hearing and in those circumstances it was held that the defendant had waived his right to object to jurisdiction.

(28) In Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and others etc. Air 1969 SC 199 , the Supreme Court held that objection regarding territorial jurisdiction does not go to the root of jurisdiction and is not on the same footing as an objection to the competence of a court to try a case. Competence of a court to try, a case goes to the very root of the jurisdiction and where it is lacking it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by the enactment of Section 21 of the Code of Civil Procedure. This rule is not attracted to the facts of the present case. Here, there is no waiver as I see it. The proposition that there is a waiver by pleading as in Ledgard''s case 13 Ind. App. 134 cannot be accepted in view of provisions of Section 21 of the Code'' of Civil Procedure. The contention that moving of an application to hold the proceedings in camera amounts to waiver is untenable. Such an application could be moved at any stage of the hearing of the petition, even at the first hearing. The waiver pleaded really amounts to invoking a principle in equity. Unless detriment is proved there can, be no estopped .In case of ordinary estoppel, though detriment may not be necessary to prove yet the conduct of the parties is to be seen. I cannot agree with the contention that submission once made cannot be revoked or rescinded or that such a submission is to be gleaned from the filing of the written statement without any objection as to territorial jurisdiction. As I have said earlier, this objection can be raised at any stage .Furthermore, in my opinion, Section 19 does not refer only to territorial jurisdiction but to conditions precedent on which I have already dilated earlier.

(29) I may with advantage refer to M/s. Mazda Theatres Private Ltd. and another v. M/s. New Bank of India Ltd. and others I.L.R.1975 (1) Delhi . In that case a bench of this court was concerned With construing the provisions of Sections 2(ll)(a) and 10(1)(a) of the Companies Act as well as Sections 391 and 392 of that Act .It) was held that the concept of jurisdiction is divisible into two distinct parts, namely, the territorial and pecuniary jurisdiction on the one hand and jurisdiction over the subject-matter or the person on the other. The objection as to territorial and pecuniary jurisdiction can be waived by a party but not the other. On a construction of the sections it was held that it was the competence of the court which was attracted and not the territorial jurisdiction of the court in that case. In, my view. Section 19 not only enacts the rule as to territorial jurisdiction but also the competence of the court entitled to deal with a petition under the Act the contention, Therefore, that there is waiver or acquiesce has to be negatived because even, if the appellant''s contentions are accepted, the respondent could not give to the District Court at Delhi jurisdiction in the sense of competence to try the position contrary to the legislative intent of Section, 19 of the Act the result is that the appeal is dismissed with costs.