Vijayalakshmi vs Seshadri

In this revision petition, the petitioner who is the wife, has challenged the order dated 2-3-1979 of the Principal Civil Judge, Bangalore City on I.A. No. II in M.C. No. 53 of 1978 filed by respondent/ husband.

On 12-6-1975 a marriage was solemnised between the petitioner and the respondent who are Hindus, in accordance with the Hindu sasthras and customs. Both the husband and the wife are educated and employed also. But, unfortunately, even before they celebrated their first wedding anniversary, differences arose between them and they failed to live together as husband and wife. On 27-2-1976 the husband filed M.C. No. 12 of 1976 in the Court of the Principal Civil Judge Bangalore City under S. 9 of the Hindu Marriage Act of 1955 (Central Act No. 25 of 1955) (hereinafter referred to as the Act) for restitution of conjugal rights which was contested by the wife. On 19-1-1978 the learned Civil Judge allowed the said petition and granted a decree for restitution of conjugal rights which was unsuccessfully executed by him in Execution No. 189 of 1978. Against the said decree, the wife has filed an appeal in MFA.No. 427 of 1979 before this Court and the same it still pending disposal.

On 21-3-1976, the husband filed M.C. No. 53 of 1978 in the Court of the Civil Judge, Bangalore City under S. 13(1) (ia) and (ib) of the Act, seeking a decree of divorce of the marriage which is opposed by the wife on diverse grounds. On 20-10-1978 the husband examined himself and for his cross-examination the case was adjourned from time to time and was ultimately posted to 13-2-1979 for the said purpose. But, on that day the wife instead of proceeding with the cross-examination, presented I. A. No. II purported to be under Order 14 Rule 2(2)(a) and (b) CPC read with S. 21 of the Act to dismiss the petition as not maintainable without recording evidence, though she had not pleaded in her objection statement that the petition was not maintainable on any ground.

In I A. No. II the wife urged that the petition claiming a decree of divorce under S. 13(1)(ia) and (ib) of the Act was act maintainable as her husband having elected the remedy for restitution of conjugal rights could only seek for a decree for divorce under S. 13(1A) of the Act and not under the former provisions and therefore, the petition should be rejected in limine. before the lower Court the wife appears to have urged a few more grounds to sustain her said plea, but they were not pressed before me and therefore they are not noticed.

I. A. No. II was opposed by the husband. He urged that his petition was maintainable and the same should be decided on merits.

On an examination of the contentious urged before him the learned Civil Judge, rejected I.A. No. II and posted the case for trial. But in view of the stay of further proceedings issued by this Court the case has act so far been decided by the leaned Civil Judge.

Sri L.S. Varadaraja Iyengar, learned counsel for the petitioner, has contended that the respondeat having elected the remedy of restitution of conjugal rights could seek for a decree for divorce under S. 13 (1 A) of the Act only and cannot maintain any application under 13(1) of the Act. Elaborating his contention Sri Iyengar maintained that on the failure of resumption of cohabitation as between the spouses in pursuance of a decree for restitution of conjugal rights, the husband could proceed only under S. 13(1A) of the Act and cannot proceed under any other provision. In support of his contention Sri Iyengar strongly relied on the ruling of the English Court of Appeal in S. Kaplow & Coy. Ltd. v.Macleland & Coy. Ltd, 1948(1) All ER. 264 and the ruling of Rajagopala Ayyangar, J. in R. Somudra Vijayam Chettiar v Srinivasa Alwar, AIR 1956 Mad, 101.

Sri P.R. Srinivasan, learned counsel for the respondent, while supporting the order of the learned Civil Judge, urged that the remedy provided by S. 13(1) could be independently resorted to and the petition filed by the respondent was, therefore, maintainable.

In her objection statement, the wife did not urge that the petition filed by her husband was not maintainable on the grounds urged in I.A. No. II or on the ground now urged before this Court. From time to time the case had been posted for trial and the husband had been examined in chief and the same was adjourned for his cross-examination on more than one occasion. But very surprisingly at a very late stage the wife filed I.A. No II without even seeking for amendment of her objection statement, contending that the petition should be rejected as not maintainable. Assuming that the plea urged by the wife touched on the very jurisdiction of the Court, even then it was open to her to urge the same at the conclusion of the trial without impeding the trial. On this ground alone the learned Civil Judge should have proceeded with the trial instead of passing an independent order on I.A. No. II impeding the trial and conclusion of the petition. But, as the learned Civil Judge did not do so and decided I.A. No. II and the matter has been fully argued before me, I now proceed to examine the contentions urged before me.

before the Act was enacted, the sacrament law of Hindu marriage did not prohibit polygamy and did not permit a divorce among Hindus. The marriage was considered to be an indissoluble union for life. The Act that came into force from 18th May, 1955, prohibited polygamy, introduced monogamy and made provision for divorce of a marriage solemnised before or after the Act came into force. The Act inter alia, dealing with marriages, restitution of conjugal rights, judicial separation, divorce and alimony of Hindu spouses is a complete code in itself.

S. 9 of the Act deals with restitution of conjugal rights where any one of the spouses has withdrawn from the society of the other without reasonable excuse. S. 10 of the Act deals with judicial separation on any one of the grounds provided by sub-sec. (1) of that section. Sections 11 and 12 which deal with nullity and voidable marriages are not material for our purpose. S. 13 (1) as originally enacted also deals with divorce of a marriage solemnised before or after the commencement of the Act on any one or all the grounds mentioned therein, which could be availed by either of the spouses. But, sub section (2) of the same section deals with the limited grounds on which a wife alone can seek for a dissolution of her marriage with her husband on any of the grounds provided in sub-clauses (i) and (ii) of that provision.

The Hindu Marriage (Amendment) Act of 1964 (Central Act No. 44 of 1964) (hereinafter referred to as the 1964 Amendment Act) that came into force on 20-12-64 introduced S. 13 (1A) conferring a right on any one of the spouses to presort a petition for dissolution of marriage on the grounds referred to in clauses (i) and (ii) of that provision.

S. 14(1) as originally enacted prohibited a petition for divorce being entertained within 3 years of the marriage. But, with the leave of the Court to be granted under the proviso to sub-section (1) of that section, a party could seek for dissolution earlier also. For this case it is not accessary to notice the other provisions of the Act.

The Marriage Laws (Amendment) Act of 1976 (Central Act No. 68 of 1976) (hereinafter referred to as the 1976 Amendment Act) amended several provisions of the Act and the amendments made thereto further liberalised the provisions relating to divorce and reduced the period during which an application could not be made.

By the 1976 Amendment Act, subclause (i) of sub-section (1) of S. 13 of the Act which read as "is living in adultery" was substituted to read as "has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse". After subclause (i), two new sub-clauses providing two new grounds which were not provided in the original Act, were introduced by the 1976 Amendment Act. Those two new sub-clauses read thus:

"(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty: or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition."

The period of two years provided in S. 13 (1A)(i) was reduced to one year. A new section namely, S. 13B was introduced providing for a decree for divorce by mutual consent of the spouses. S. 14 also was amended reducing the period for which the parties had to wait before presenting a petition from three years to one year.

As noticed earlier, the petitioner of tie husband for divorce is made under S. 13 (1) (ia) and (ib) of the Act. As on the day his petition for restitution of conjugal rights was filed, the 1976 Amendment Act had not been passed but as on the day that petition was allowed, the 1976 Amendment Act had come into force.

An elementary or settled rule of construction of statutes is that the statute must be read as a whole and that elect must be given to every part of the statute. The Act is in derogation of the remedies available to Hindus under their personal law as given by its famous law givers like Manu, Yagaavalkya and Vignaneswara to mention a few, and a host of others, has provided new remedies and procedures relating to marriage, judicial separation and divorce. What then should be the rale of construction, in such a situation, is very well set out by Craw ford in his treatise on the Construction of statutes in these words:

"Statutes which relate to remedies and procedure, perhaps because they are remedial in character, should also receive a liberal construction in order to promote justice and to carry out their respective purposes, and especially so as to secure a more effective, a speedier, a simpler and a less expensive administration of the law".

The Act as amended from time to time has conferred new rights and new remedies for spouses. For a sanathaaist or a conservative or a traditional Hindu, divorce is an anathema and obnoxious, but to the modern law giver and the fast moving Hindu society, it is not so and is considered necessary to provide on certain grounds. When the Act has provided a remedy a Court cannot defeat the same by reading a restriction which the Act itself has not placed. On the other hand, the construction should be to make it effective and achieve the purposes and object of the Act. With this background, it is now necessary to examine whether a person who has filed a petition for restitution of conjugal rights and obtained a decree therefor is compelled to file a petition for divorce only under S. 13 (1A) of the Act as suggested by Sri Iyengar.

S. 13 (1A) is part of S. 13 itself which provides a ground for dissolution of a marriage. Sub-section (1) sets out various grounds on which a marriage can be dissolved. When there is a decree for judicial separation or decree for restitution of conjugal rights and there has been no resumption of cohabitation as between the spouses for the specified period, S. 13 (1A) provides the remedy of a divorce on either of the grounds. In such a situation, the opening part of that section provides that a person may also present a petition for dissolution of marriage. The words "may also present a petition" can only mean that a spouse can also present a petition thereto, apart from any other petition he or she may file under S. 13 of the Act. The words "may also present a petition" cannot be read as "shall present a petition" under that provision only and on no other provision, in particular under S. 13(1) of the Act. While S. 13 (1A) provides for one more or an additional remedy, Sri Iyengar wants the Court to read that as the one and the only exclusive remedy available to a spouse who has obtained a decree for judicial separation or restitutim of conjugal rights. The plain language of S. 13 (1A) does not lead to any such conclusion, and if the same is read as suggested by Sri Iyengar, it would be really a case of the Court legislating and also defeating the remedy provided by the Act which is not permissible. When more than one remedy is provided by the Act it is open to a party to choose either all or any one of the remedies provided by the Act. For all these reasons, I cannot persuade myself to agree with the contention of Sri Iyengar.

Let me now examine, whether the principles stated in Kaprow''s, 1948(1) All ER. 264 and Somudra Vilayam Chettiar''s, AIR 1956 Mad, 101, cases support Sri Iyengar.

In Kaprow''s 1 case the English Court of Appeal had to consider the validity of an order of the Trial Judge granting leave to the plaintiff to withdraw the earlier acceptance of an offer made by the defendant in an action brought by it for recovery of damages for breach of contract and an alternative claim made thereto.

In upholding the leave granted, the Court of Appeal distinguished the principle of election of a remedy enunciated by Lord Blackburn in Scarf v. Jardine, 7 Appeal Cases 362 and stated thus:

"The whole point of an election is, of course, that a party chooses one of two roads, and having done so by some unequivocal act, cannot retrace his steps and pursue the other road. The alternatives may be between two parties or between two causes of action"

The said principle dealing with election of remedies in an ordinary suit, that too in relation to two causes of action, can have no application to a case of choosing more than one remedy provided by an Act of the legislature.

In Samudra Vijayam Chettiar''s 2 case one of the questions that arose was whether a mortgagor who had treated the tenant inducted by the mortgagee as his tenant and had instituted a proceeding on that basis, could institute a suit for recovery of mesne profits treating him as in unauthorised occupation. It is on those facts, Rajagopala Ayyangar, J., applying the law of estoppel by election, negatived the claim of plaintiff''s suit for recovery of mesne profits. The said principle has hardly any application to a remedy provided by an Act of the legislature. When an Act confers more than one remedy, it is open to a party to choose all or any one of the remedies and no question of estoppel would arise. In these circumstances, the principle stated in Samudra Vijayam Chettiar''s 2 case has no application.

From the foregoing, it follows that the order of the learned Civil Judge does not call for interference though not for the very reasons given by him.

Every petition under the Act is required to be decided with all such expedition as is possible in the circumstances of the case and in any event within a period of 6 months from the date of service of notice of the petition on the respondent (vide sub-section (2) of S. 21B). Subsection (1) of S. 21B declares that a trial of the petition should be proceeded with from day to-day, until its conclusion, unless there are compelling circumstances to adjourn the case beyond the following day for reasons to be recorded by the Court. A petition filed by the husband as early as on 28-3-1978 is still pending disposal defeating the very object of S. 21B of the Act. In this view it is necessary to direct the learned Civil Judge to proceed with the trial of the petition with all such expedition as is possible in conformity with S. 21B of the Act and conclude the same as directed by that provision.

In the result, I dismiss this revision petition with costs of Rs. 100/-. But, I direct the learned Civil Judge to proceed with the trial of the petition and conclude the same with all such expedition as is possible in the circumstances of the case and in any event within a period of three months from the date of receipt of the order of this Court.

Let a copy of this order be communicated to the Court below within a week from this day.