Damodaram Sanjiyya National Law University

Family Law - I
Course Outline & Study Material
( For Private Circulation and academic purpose Only)
2019 - 2020
OBJECTIVES OF THE STUDY

The Course offers an interdisciplinary introduction of Family laws in India. The course
is designed with the following objectives:

1. A comparative study of personal Laws of Hindu, Muslim and Christian laws in

India.

2. Special care will be taken in the course to look at the status of women children
and parents in family relations, with a view to ensure greater protection of
constitutional rights of these groups in the family.

3. To introduce the students to the Statutes relating to adoption, Guardianship,

Maintenance and other related laws

4. This course offers students an opportunity to understand the historical, social

and constitutional bases of these laws, differences through inter-disciplinary
approach

5. To provide security and legal awareness to the Family life of the individuals.

At the end of the course introduces the student to new ways of looking at family law,
bringing issues of social justice, particularly as they relate to practices of infanticide,
dowry sati, and other customary practices in the the context of an understanding
family law .
Family Law - I Syllabus

Hindu Marriage, Adoption and Maintenance, Minority and Guardianship, Muslim Law of
Marriage, Divorce and Acknowledgment of Paternity and Christian Marriage divoceand
Parsi Laws

Acts to be Referred
The Hindu Marriage Act, 1955

The Hindu Adoptions and Maintenance Act, 1956

The Hindu Minority and Guardianship Act, 1956

The Dissolution of Muslim Marriage Act, 1939

The Muslim Women ( Protection of Rights on Divorce) Act 1986

The Family Couirts Act, 1984

The Divorce ( Amendment) Act of 2001

Parsi Marriage and Divorce Act 1936

The Indian Christian Marriage Act, 1872

The Special Marriage Act, 1954

Indian Divorce Act, 1869

The Muslim Women ( Protection of Rights on Divorce) Act 1986

Sec.125 .Cr.P.C 1973

The Protection of women from Domwestic ViolenceAct 2005

The Maintenance and welfare of Parents and Senior Citizens Act, 2007
Books For Reference:

Ranganath Mishra, ( Rev), Mayne’s Treatise on Hindu Law & Usage,2008, 16 th EdnM.

Hidayatulla and Arshad Hidayatulla, Mulla’s Principles of Mahomedan Law( 19th Edn.
2006

Tahir Mahmood, Fyzee’s Ourlines of Muhammedan Law ( 3rd edn, 2008)

Paras Diwan: Law of Marriage and Divorce (5th edn. 2008

Mulla., D.F., Hindu Law, 21 Edn. 2010

Flavia Agnes : Mirriage , Divorce and Matrimonial Ligtigation ( Oxford University

Publication, 2011

Mulla : Principles of Hindu law

J D M. Derrett, Essays in Classical and Modern Hindu Law,, 1st ed, 1977, 1st Ind.Rep.1955Vol.3,
PP..84-88

J D M Derrett: Relationship of a Married woman to her Husband’s Adopted son in Hindu Theory
and Practice: A correction, ZVR LXI, 1959, P. 1- 5
Unit - One 9 Hours
Nature , Origin of Personal Laws

Schools of Hindu Law, Differences Between Mitakshara and Dayabhaga schools

Hindu Law - Sources of law

Application , Concept and forms of Marriage,

Nature of Muslim law sources and Schools

Cases to be referred
1. Abraham Vs Abraham 1863, 9 MIA 195
2. Mr. “X” Vs . Hospital “Z: A I R 1999 SC 495
3. Mr. “X” Vs . Hospital “Z: A I R 2003 664
4. Collector of Madura Vs Mootto Ramalinga SeethuPathi 1868, 12 MIA 397
5. Shastri Yajna Purush dasji Vs Muldas Bhundardas Vsisya AIR 1966 Sc1119
6. Surajmani Stella Kajur Vs. Durga charanHansdah Air 2001 SC 938
7. Niranjani Roshan Rao Vs Roshan MarkPinto Bom on dec,24 2013

UNIT – Two 15 Hours

Marriage, Dower

Hindu Marriage, Types Marriage samakara or contract, Guardianship in marriage,

Sapinda and prohibited degrees of relationship in marriage, Ceremonies - Saptapadi,
Factum valet , Valid void and voidable marriages under Hindu Law

Muslim Marriage

Nikah: Valid, irregular and void marriages, Iddat, effects of Valid( Sahih), Void( Batil)
and Irregular (Fasid) Marriages, Mutamarriage, Marriage of Minors, Guardian ship in
marriage under Muslim law

Dower (Mahr) Definition Classification of Dower, Specified dower, deferred and prompt
Dower Remission of dower, Non- payment of prompt dower and restitution of Conjugal
rights, liability of heirs of dower, widow’s power to retain husband’s estate in lieu of dower

Essentials of a valid marriage under Christian and Parsi Laws

Cases to be referred

1. Lata Kamat Vs Vilas 11AIR 1989 SC 1477

2. Baldev Raj Miglani Vs Smt. Urmila Kumari AIR 1979 SC 879
3 Anil Kumar Jaim Vs Maya Jain AIR 2010 SC 229
4 Gullipalli Soowria Raj Vs Bandaru pavani AIR 2009 sc 1085
5 Ashok Hurra Vs Rupa Bipin Zaveri AIR 1997 SC 1266
6 Biswanath Mitra Vs Anjali Mitraz AIR 1975 Cal.45
7 P Venkataramana Vs State AIR 1978 A P 4
8 Dr. A N Mukherjee Vs State AIR 1969 All 489
9 Lily Thomas Vs U O I AIR 2000 SC 1650
10 Bharath Matha Vs R Vijaya Ranganath AIR 2010 sc 2685
11 Indra Sarma Vs V K V Sarma AIR 2014 SC 309

Articles to be referred

Concept of Marrriage Under Hindu Law: A Critic; Prof. Vijendra Kumar

Live-in relationships: Impact on Marriage and family Institution Vijender

Kumar Professor of Law NALSAR University Hyderabad

Unit - Three 18 Hours

Matrimonial Reliefs

Hindu Law

Nullity: annulment, restitution of conjugal rights, judicvial separation , adultery, cruelty

desertion, conversion, fraud bigamy Impotency , option of puberty, Customary divorce

Muslim Divorce

Types: Extra- Judicial - Talak, Khula, Mubarat

Judicial - The Dissolution of Muslim Marriage Act. 1939

Divorce Undeer Christian and Parsi laws

Cases to be referred
1. Sarita Vs Venkata subbaiah AIR 1983 AP356
2. A Yousuf Vs Sowramma AIR 1971 Ker 261
3. Bipin Chandra Vs Prabhavathi AIR 1957 SC 176
4 Manish Goel Vs Rohini goel AIR 2010 Sc 1099
 5 Dr. Abdul Rahim Undre Vs Smt Abdul Rahim Undre AIR 1982 Mah.243
6 Saroj Rani Vs SUdharssshanKunmar Air 1984 SC 1562
7 Dastane Vs Dastane AIR 1975 SC 1535
8 Lachman Vs Meena AIR 1964 SC 40
9 Bhagat Vs Bhagat AIR 1967 Bom 80
10 Suresta Devi Vs Om Prakash AIR 1992 Sc 1904
11 Yamnaji H Jadav Vs. Nirmala, AIR 2002 SC 971
12 A.C Motivanan Vs. B. Sathyabama 2016 SCC Mad. On Line

Law Commission Reports to be referred

71 St Report (1978) on “Irretrievable breakdown of marriage as a gfround for divorce

217 Report (2009) : Irretrievable breakdown of marriage: Another ground for divorce

224 Report ( 2009) : Amendment of Sec.2 of Sec.2 of Divorce Act, 1869

“ Enabling non-domiciled Estranged Christian wives to seek divorce”

Articles to be referred
Restitution of Conjugal Rights Under Hindu Law; A plea for abolition: By R K Agarwala
J I L I, Vol.12.No.2 April - June 1970

Women & Compulsory Registration of Marriage: Need for Unifor Civil Code: Prof.
Ranbir Singh

Unit- Four 10 hours

Adoption
Adoption; Evolution Who can adopt, Widow’s power to adopt
Who may give in adoption, who may be taken in adoption
Ceremonies of Adoption, Effects of adoption

Muslim Law of Waqf, Gifts, and wills

Cases to be referred

1. Chandan bilasini Vs Aftabuddin 1996 AIR SC 591

2. Sawan Ram KalA Wati AIR 1967 SC 1761
3. Sita bai Vs Ramachandran AIR 1970 SC 345
4. Phillips Alfred Vs Y J Gonsalvis AIR 1999 Ker. 187
5. Heeralal Vs Board of Revenue AIR 2001 Raj.318
6. Jai Singh Vs. Shakuntala AIR 2002 SC1428
7. Brijendra Vs State of M P AIR 2008 SC 1058
8. Shabnam Hashmi Vs Union of India AIR 2014 SC 128

Law Commission Report

228th Report (2009) Need for legislation to Regulate Assisted Reproductive Technology Clinics
as well as Rights and obligations of parties to Surrogacy”

Unit - Five 7 Hours

Maintenance of wife,, husband, children and parents and property under Hindu Muslim
Christian and Parsi laws,
Maintenance pendent lite and expenses of pro ceedings, Permanent Aliimony and
maintenance
Maintenance Under Cr P C
Protection of women from Domestic Violence Act, 2005
Maintenance and welfare of Parents and Senior Citizens Act, 2007

Cases to be Referred

1. Bai Tahira Vs Ali Hussain AIR 1979 SC 362

2. Rameswari Devi Vs State Of Bihar AIR 2000 SC 735
3. Savitaben Vs. State of Gujrat, AIR 2005 SC 1809
4. Md. Ahmed Khan Vs Shah Bano Begum 1985 SC 945
5. Noor Sabha khatoon Vs Quasim AIR 1997 SC3280
6. Daniel Latifi Vs Union of India AIR 2001 SC 3958
7. Badshah Vs Urmila Badshah Godse AIR 2014 SC 869
8. . Chand Patel Vs Bismillah Begum,, 1 (2008) DMC 588 S C
9. Ravindranath Sahu Vs Sushila Sahu , 2016 SCC online Ori.592

UNIT- Six 6 Hours

Minority and Guardian Ship and Custody
Minority custody : welfare interest and wishes of the child
Guardian ship : Nature, types, Appointment and removal
Acknowledgment of paternity under Muslim Law

Articles

Asha Bajpai : Custody and Guardianship of Children in India, 39(2) Family Law Quarterly
pp.441-447 (2005)
Vijender Kumar: “Custody of the child: A critical Appraisal” M D U. Law Journal. Vol.XI
Part-I, 2006, PP.62-78

Cases to be referred

1. Gita Hariharan Vs R B I AIR 1999, SC 1149

2. Mohd. Amin Vs Vakil Ahmed AIR 1952SC 358
3. VikramVir Vohra Vs Shalini Bhalla AIR 2010 SC 1675
4. Prateek Gupta Vs Silpi Gupta, 2017 SCC online S C 1421, , 06.12.17

Law Comission Reports

218 Report 2009 : Need to accede to the Hague Convention on the Civil Aspwects of International
Child Abduction 1980

219 Report 2009: Need for Family Law legislationnnns for Non- Resident Indians

GENERAL INTRODUCTION

Globally new technologies and Scientific developments are bringing vast changes in the family
relations. New areas of law are coming-up to adjust with these developments. These developments
are no doubt important in the present day changing society .

Today an area of law which has always been of undeniable importance for all alike is the family
relations. Laws relating to family and marriage relationships form an important content in law. The
complexity of modern life has a tremendous impact on marriage, rights and duties of the parties to the
marriage and towards their children and parents. Since law is nothing but social engineering, with
a view to change the old laws , many amendment to the statutes governing family relations laws
have been made to suit the modern conditions.

In matters of personal relations like marriage, divorce, and maintenance, there are various laws
belonging to Hindu Muslim Christina and Parsi religions.

This study material of Family Law- I, deals with Six Units.

UNIT –I

This unit enumerates:

Nature , Origin of Personal Laws-

Sources of law
Schools of Hindu Law,
Differences Between Mitakshara and Dayabhaga schools
Application , Concept and forms of Marriage,

Nature of Muslim law

Sources and Schools

Christian and Parsi Laws

Unit - II

Hindu Marriage, Types, Marriage samakara or contract, Guardianship in marriage,

Sapinda and prohibited degrees of relationship in marriage, Ceremonies - Saptapadi,
Factum valet , Valid void and voidable marriages under Hindu Law

Muslim Marriage & Dower

Nikah: Valid, irregular and void marriages, Iddat, effects of Valid( Sahih) , Void( Batil)
and Irregular (Fasid) Marriages, Mutamarriage, Marriage of Minors, Guardian ship in
marriage under Muslim law

Dower( Mahr) Definition Classification of Dower, Specified dower, deferred and prompt
Dower Remission of dower, Non- payment of prompt dower and restitution of Conjugal
rights, liability of heirs of dower, widow’s power to retain husband’s estate in lieu of dower

Essentials of a valid marriage under Christian and Parsi Laws

UNIT- III
Matrimonial Reliefs
Hindu Law Nullity: annulment, restitution of conjugal rights, judicvial separation , adultery,
cruelty desertion, conversion, fraud bigamy Impotency , option of puberty, Customary
divorce

Muslim Divorce
Types: Extra- Judicial - Talak, Khula, Mubarat
Judicial - The Dissolution of Muslim Marriage Act. 1939

Divorce Undeer Christian and Parsi laws

Unit- Four
Adoption
Adoption; Evolution Who can adopt, Widow’s power to adopt
Who may give in adoption, who may be taken in adoption
Ceremonies of Adoption, Effects of adoption

Law of Gifts, wills , waqfs under muslim lw

Unit Five

Divorce is not the end of matrimonial disputes. Some related issues connected with it are
Maintenance of wives( other then Muslims) , children and parents under Hindu Muslim
Christian and Parsi religions are dealt with under this unit

Unit - SIX

This deals with Minority ,Guardianship and Custody

Unit – ONE

Abraham v Abraham [1863] 9 Moore Indian Appeals 199, 19 ER 716

Report Date: 1863
[9-Moore Indian Appeals-199] CHARLOTTE ABRAHAM and DANIEL VINCENT ABRAHAM,
Appellants; FRANCIS ABRAHAM. Respondent * [Feb. 17, 18, 19, and 20, 1863]

On appeal from the Sudder, Dewanny Adawlut at Madras.

The status of Native Christians, known as " East Indians," and the law of inheritance and
succession, as administered in the Mofussil Court in respect to their rights and property,
considered.
Mad. Reg. II. of 1802, sec. XVII. provides, that in cases coming within the jurisdiction of the
Zillah Courts, for which no specific rule may exist, the Judges are to act according to justice,
equity and good conscience; and Mad. Reg. III. of 1802, sec. XVI. cl. 1, prescribes the in
suits before the Native Courts regarding succession, inheritance, caste, etc, the Hindoo law
with respect to Hindoos, and the Mahomedan law with regard to Mahomedans are to be
considered the general rules by which the Judges are to form their decision. Held, that the
latter Regulation applied to Hindoos and Mahomedans, not by birth only but by religion [9
Moo. Ind. App. 243].
Held, also, in a case of succession to the estate of a deceased of pure Hindoo blood, who had
married a European wife, professing, with his family, the Christian religion, and whose
ancestors for generations had embraced Christianity, that such case was within the provisions
of Mad. Reg. 11. Of 1802, sec. XVIL, and was to be decided by reference to the usages of the
class to which the deceased attached himself and the family to which he belonged.
Upon the conversion of a Hindoo to Christianity, the Hindoo law ceases to have any
continuing obligatory force upon the convert [9 Moo. Ind. A p. 241, 242].
The convert may renounce the old law by which he was bound, as be renounced his old
religion, or if he thinks fit, he may abide by the old law notwithstanding he has renounced the
old religion. For though the profession of Christianity releases the convert from the trammels
of the Hindoo law, yet it does not of necessity involve any change of the rights or relations of
the convert in matters with which Christianity has no concern, such as his rights and interest
in, and his power over, property.
The convert, though not bound as to such matters, either by the Hindoo law, or by any other
positive law, may by his course of conduct after his conversion, have shown by what law be
intended his rights to be governed. He may do so either by attaching himself to a class which
in this respect has adopted and acted upon soiree 9 Moore Indian Appeals 200, 19 ER p717
particular law, or by having himself observed some particular law, family usage, or custom [9
Moo. Ind. App. 243, 244].
The lex loci Act, No. XXI. of 1850, held not to apply where the parties have ceased to be
Hindoos in religion. The status of a member of an undivided Hindoo family who became a
convert to Christianity, in reference to parcenership, considered. Such circumstance held to
amount by the Hindoo law, to a severance of parcenership.
Whenever an opinion of the Pundits is required by the Court, and there are many special
circumstances which may bear upon the question to be submitted for their opinion, these
special circumstances ought to be set forth by the Court in the case submitted to the Pundits.
The principal question involved in this appeal was as to the law which governed the
succession to the property of the late Matthew Abraham, a Protestant native of India,

1
resident in the Madras Presidency, and who died intestate in the year 1842. The
ancestors of Matthew Abraham for several generations [9-Moore Indian Appeals-200] had
been Christians; and Matthew Abraham, who had been baptised in infancy in the Roman
Catholic faith, but afterwards became a convert to the Protestant religion, married a European
wife in the year 1820, and with her and the children of the marriage conformed in all respects
to the language, dress, manners, and habits of English persons up to the time of his death. The
Sudder Court at Madras: held that the property should be distributed in accordance with the
Hindoo law.

The circumstances of the case, were as follows:-

In the year 1812, Matthew Abraham, then a youth, [9-Moore Indian Appeals-201] was
residing at Bellary with his father; and was at that time receiving religious instruction from a
Protestant missionary, having become a convert from the Roman Catholic to the Protestant
religion. The Respondent, another son of Matthew Abraham's father was born in the year
1813. About the year 1815, Matthew Abraham was appointed to a situation in the Arsenal at
Bellary, upon a salary of Rs. 52- 1 a month. His father died some time prior to the year 1820:,
without leaving any property. In the lastmentioned year, Matthew Abraham married the
Appellant, Charlotte Abraham, whose father was an Englishman and her mother a
Portuguese. In the year 1823, he opened a shop on his own account at Bellary;-and in the year
1827, the Respondent, Francis Abraham, who was then of the age of fourteen, 2 was placed
by Matthew Abraham as a writer and attendant in his shop, and on the 2nd of April, 1832, he
and a Mr. Richardson were admitted as partners in the shop under a deed of partnership,
whereby the then partners were to be entitled equally to the profits. No capital was
contributed by the Respondent upon his admission to the partnership. Mr. Richardson retired
from the partnership in or about the year 1836, but upon his retirement no new arrangement
was made between Matthew Abraham and the Respondent, as to their shares in the shop.
Matthew Abraham, besides being a shopkeeper, held a contract from Government for the
supply of spirituous liquors to the troops in cantonment at Bellary, called " The Abkarry
contract "; and in order to enable him properly to carry out that contract, he erected a large
distillery in or near Bellary. The contract was first taken by Matthew Abraham in [9-Moore
Indian Appeals-202] the year 1827, and the contract was taken by him from year to year, with
the exception of the official year 1829-30, until his death in the year 1842, at which time the
contract was still subsisting. The distillery business so carried on by Matthew Abraham was
separate from the shop, and was carried on by him alone on his own account, and, as it
appeared and was insisted by the Appellants, without any partner; but for some time
previously to and at the time of the death of Matthew Abraham, the Respondent was
employed as a clerk or manager in the distillery business, and during the frequent periods of
absence of Matthew Abraham from Bellary, transacted the chief part of that business. On the
10th of July, 1842, Matthew Abraham died intestate, leaving his widow, the Appellant,
Charlotte Abraham, and two sons, Charles Henry Abraham, who is since deceased, and the
Appellant, Daniel Vincent Abraham, him surviving. At the time of the death of Matthew
Abraham, the other son, Charles Henry Abraham, was of the age of twenty years, and was in
England for purpose of his education, and the Appellant, Daniel Vincent Abraham, was of the
age of nineteen years, and was residing with his mother at Bellary. The pro- 9 Moore Indian
Appeals 203, 19 ER p718 perty of Matthew Abraham consisted of the benefit of the Abkarry
contract, which was still subsisting, and the sum held in deposit for the due fulfilment
thereof; and of the distillery business; of the capital employed in the shop at Bellary, and his
share of the profits thereof; of a business and property at Kurnoul; of certain houses and
property at Bellary; of a policy of assurance on his life for Rs. 6400 in the Madras Equitable

2
Assurance Society; and of ready money and outstanding debts, and money due to him on
securities.
[9-Moore Indian Appeals-203] At the request of the Respondent, the Appellant, Charlotte
Abraham, executed a power of attorney, appointing him her attorney to collect all the money,
debts, goods, and effects due, owing, payable, or belonging to her as the widow of Matthew
Abraham, and for all purposes therein mentioned; and she afterwards herself procured letters
of administration of the effects of Matthew Abraham, which were granted to her by the
Supreme Court at Madras, whereby she became the sole legal personal representative of
Matthew Abraham in the Madras Presidency.
The Respondent, under the authority of the above power of attorney, took possession of the
books, papers, money, and securities for money of Matthew Abraham, and collected and
received the debts, money, stock, and all other property belonging and due to his estate. The
Abkarry contract which was held by Matthew Abraham, and was subsisting at the time of his
death, as before stated, expired in the month of April, 1843.
Immediately upon the death of Matthew Abraham, the Respondent obtained permission from
the Commissary-General to carry on the business of the Abkarry contract, and accordingly he
entered into written engagement, dated the 22nd of July, 1842, to discharge the obligation of
the Abkarry contract bond executed by his brother, Matthew Abraham, in the year 1842.
Upon the expiration of the contract in 1843, the Respondent obtained a renewal of the
contract in his own name, and obtained further renewals thereof from year to year, up to the
date of the suit hereinafter mentioned. The deposit which had been made by Matthew
Abraham for the due fulfilment of his contract, and which remained lodged at the time of [9-
Moore Indian Appeals-204] his death, continued as the deposit upon the renewals of the
contract to the Respondent up to the year 1848, when he withdrew that deposit and lodged a
Bengal promissory note for Co.'s Rs. 5000. The distillery business for the purpose of the
Abkarry contract had, ever since the death of Matthew Abraham, been carried on upon the
premises built by Matthew Abraham.
The Respondent, after the death of Matthew Abraham, continued to carry on the business of
the shop in which he had been a partner with Matthew Abraham, employing the capital which
was invested therein at the time of the death of Matthew Abraham. The Appellant, Daniel
Vincent Abraham, was admitted for some time in the position of a partner, and drew some
small share of the profits, but the Respondent, in the year 1851, kept the Appellant, Daniel
Vincent Abraham, from the shop, and prevented him from receiving any share of the profits
thereof; and since that year the Respondent had carried on the business of the shop alone, and
possessed himself of all the profits arising there from.

From the correspondence between the Respondent and Charles Henry Abraham, and between
the Respondent and the Appellant Charlotte Abraham, which formed part of the evidence in
the case, it appeared, that the Respondent had assured the Appellant, Charlotte Abraham, and
Charles Henry Abraham, that his sole wish and object was to labour for his deceased brother's
family, and to further their interest to the utmost of his ability; and though the accounts of the
distillery, and of the shop, and generally of Matthew Abraham's estate, were constantly
demanded from the Respondent by the Appellant, [9-Moore Indian Appeals-205] Charlotte
Abraham, the Respondent succeeded from time to time in evading her demands, and quieted
the minds of the Appellants by supplying them with money as they required it, and by
remitting to England the sums required by Charles Henry Abraham.
At length, in the year 1852, the Respondent denied that he had any accounts to furnish, and
asserted that he was not liable to furnish any to the Appellant, Charlotte Abraham, or to her
sons. He also persisted in refusing to allow the Appellant, Daniel Vincent Abraham, to have
any share in the management of the distillery business and Abkarry contract, and claimed that

3
he alone was absolutely entitled to that business and contract; and upon the return of Charles
Henry Abraham from 9 Moore Indian Appeals 206, 19 ER p719 England to Madras, in June,
1853, the Respondent refused, to continue to make any further remittances to him.
In consequence, the Appellants, Charlotte Abraham and Daniel Vincent Abraham, together
with Charles Henry Abraham, since deceased, in May, 1854, filed a plaint in the Civil Court
of Bellary, against the Respondent, whereby, after stating the facts hereinbefore set forth, and
that the property to which they were, entitled exceeded the sum of Rs. 3,00,000, they prayed
that an account might be taken of what at the time of the death of Matthew Abraham was due
to him in respect of the capital of the shop, and of the profits thereof, and that the Respondent
might be decreed to pay what should be so found due; and that it might be ascertained what
part of the est ate of Matthew Abraham had since his death been employed in the shop, and
that an account might be taken of [9-Moore Indian Appeals- 206] the profits thereof since his
death; and that the Respondent might be decreed to pay the amount so ascertained and
appearing by the account. That an account might be taken of all the capital employed in the
distillery business, and of the profits thereof down to the death of Matthew Abraham,
received by the Respondent, or to his use, and also of the profits of the distillery since the
death of Matthew Abraham; and that the Respondent might be decreed to pay the amounts
found due upon the last-mentioned account. That an account might be taken of the estate of
Matthew Abraham, generally received by the Respondent, or to his use, and that the
Respondent might be decreed to deliver up, or account for the same; and that the Plaintiffs
might be put into possession of the distillery business, and the premises, and the benefit of the
Abkarry contract; and that the Respondent might be decreed to deliver up to them all deeds,
books, and writings, relating to the same respectively, the Plaintiffs offering to make a just
allowance to the Respondent for his services in managing the distillery and generally.
The Respondent by his answer, admitted the general statements as to the family contained in
the plaint, and for defence, in substance, insisted, that the Appellant, Charlotte Abraham, was
only entitled to maintenance, and could not claim as co-plaintiff jointly with her sons. That
the property claimed had not been specified in the plaint as required by sec. 3, Mad. Reg. III.
of 1802. That Matthew Abraham and the Respondent were the children of natives of Hindoo
origin, and members of an undivided family. That upon the death of their father, Matthew
Abraham took possession of [9-Moore Indian Appeals-207] his property. That in 1823,
Matthew Abraham and the Respondent jointly started the shop in Bellary, and that the
business of the shop was from time to time carried on by moneys jointly borrowed by them,
for which joint bonds were executed. That as Matthew Abraham and the Respondent were
undivided Hindoo brothers, labouring for their joint interest, they had each an equal right to
all the capital. That the deposit for the Abkarry contract was chiefly made up from sums
received from the petty Arrack vendors, and, so far as the deposit was supplied by Matthew
Abraham, the same was made out of family property, and that the distillery buildings were
built, or enlarged, out of joint funds. That the Respondent was not employed either as clerk or
manager of the distillery, but that though the distillery was a wholly separate concern from
the shop; he possessed equal rights therein with Matthew Abraham, and his joint interest had
been invariably recognized and admitted by Matthew Abraham. That the Abkarry contract for
the official year 1836-37, was entered into in the joint names of the Respondent and Matthew
Abraham. That the property which existed at Matthew Abraham's death, was the undivided
property of the family. That the realization and management of the estate of Matthew
Abraham was not entrusted to the Respondent by the Appellant, Charlotte Abraham, but that
he assumed the same, and was entitled so to do, as being the bead of the family. That the
letters of administration granted to the Appellant, Charlotte Abraham, were solely for the
purpose of procuring payment of the money due upon a policy of assurance, and could not
alter the law governing the case, which, he insisted, was the Hindoo law. That the

4
Respondent did not [9-Moore Indian Appeals-208] obtain successive renewals of the Abkarry
contract held by Matthew Abraham, but that he purchased anew the Abkarry contract at
public auction in 1843. That the Plaintiffs having no resources of their own had been
supported by the Respondent from motives of charity. That no demands for accounts were
made by the Appellant, Charlotte Abraham, of the Respondent as her agent. That the
Respondent was solely entitled to the Abkarry contract, and that the Plaintiffs had no
connection with or right to 9 Moore Indian Appeals 209, 19 ER p720 any share from the
profits of the contract. That a large portion of the property existing at the time of Matthew
Abraham's death was in the possession, of Plaintiffs; and finally submitted that, instead of the
Plaintiffs being entitled to property exceeding Rs. 3,00,000, they were not entitled to
anything from the Respondent.
The Plaintiffs in reply insisted, that the Plaintiffs were correctly joined together in the suit.
That it was only in the power of the Respondent to set forth a description and particulars of
the property claimed. That the Hindoo law could not apply to parties situated as the Plaintiffs
and the Respondent were, and that the course of conduct pursued by the Respondent was
inconsistent with the applicability of that law. That even if the case was to be governed by
Hindoo law, Matthew Abraham inherited no property from his father, and the position in
which the Respondent stood towards Matthew Abraham was such as to show that their
interests were separate and distinct. That the Respondent did not become the head of the
family on the death of Matthew' Abraham, but that the Respondent had actually
acknowledged in writing that the Appellant, Charlotte Abraham, was the head of the family.
That the Respondent, since the death of [9-Moore Indian Appeals-209] Matthew Abraham,
acted as the agent of the Plaintiffs, and that the Abkarry contract in 1843 was taken by the
Respondent after communication and with the consent and permission of the Appellant,
Charlotte Abraham. That the Plaintiffs were not Hindoos or subject to Hindoo law, and they
denied that they were regarded as Hindoos by law, That the Respondent had been in the habit
of honouring drafts drawn by the Appellant, Charlotte Abraham, upon him as manager of the
distillery, and had advanced moneys from the distillery to other persons at her request and
against his own inclination, and that such conduct was inconsistent with the assertion that the
Plaintiffs had been supported by him out of charity. That the Plaintiffs never opposed the
Respondent with respect to the Abkarry contract, because for several years after Matthew
Abraham's death they believed that the Respondent was acting and considered himself as
acting as their agent in obtaining the contract, and that the Plaintiff, Charles Henry Abraham,
was in total ignorance of the actual position of affairs until September, 1852, and he took
proceedings in the suit immediately upon his return to India in June, 1853. That the Plaintiffs
were not in possession of the property of Matthew Abraham, with the exception of a dwelling
house, bungalow, furniture, plate, etc', and that their possession of any of the property was
inconsistent with the Respondent's claim to be the sole head and representative of the family.
The rejoinder of the Respondent admitted that parties in his position had no status which fell
under any particular law, and adduced several reasons with a view to show that the law which
should govern the case was the Hindoo and not the English law.
[9-Moore Indian Appeals-210] On the 12th of March, 1855, the cause came on before Mr.
Story, the then Civil Judge of Bellary, and he proceeded to adjudicate upon the two
preliminary objections taken to the plaint by the Respondent in his answer; namely, that the
Appellant, Charlotte Abraham, had been improperly made a co-Plaintiff, and that the
property claimed had not been specified in the plaint in accordance with Mad. Reg. 111. of
1802; and upon both of theme objections the Civil Judge was in favour of the Respondent,
and made a decree non-suiting the) Plaintiffs, with costs.
From this decree the Plaintiffs appealed to the Sudder Adawlut, and that Court, by an Order,

5
dated the 20th of August, 1855, after stating, that the Civil Judge might have required the
Plaintiffs to amend their plaint by stating the particulars of the property, directed the Civil
Judge to proceed to dispose of the suit on its merits. The Sudder Court appended to the above
order the following instructions to the Civil Judge:-" The Court have to notice that the Civil
Judge has pronounced upon a point material to the issue of the suit, namely, the law of
inheritance, by which the parties are to be bound, without receiving any evidence whereby to
govern, his judgment on the subject. Such a question can only be rightly pronounced upon, on
consideration of the usage of persons situated as the parties who are described as Christians
whose ancestors are of Hindoo stock, and the usage in their particular family as indicated by
the acts of the parties and their predecessors, in respect of their property since they have
belonged to the Christian community. It will be necessary further to ascertain by whom and
under what circumstances the property in issue was acquired, so as to determine [9- Moore
Indian Appeals-211] whether it was the self-acquired estate of the 9 Moore Indian Appeals
212, 19 ER p721 deceased Matthew Abraham, or of ancestral origin, after which the rights of
the parties thereto whether under English or Hindoo law, should be declared."
The suit accordingly came again before the Civil Court, and by an Order of that Court dated
the 30th of November, 1855, the Plaintiffs were required to amend their plaint by stating the
particulars of the property. This order the Plaintiffs were unable to comply with, as they were
ignorant of the particulars, and the Civil Court dismissed the suit with costs by an Order
dated the 11th of January, 1856.
Upon appeal to the Sudder Adawlut this Order was set aside, upon the ground that in a suit
like the present, wherein the particulars of the property sued for were to be known only by
information to be furnished by the Defendant, the proper course for the officiating Civil
Judge to have taken would have been to seek this information at the Defendant's hands.
The suit was accordingly replaced on the file of the Civil Court, and the following points
were recorded for proof by Mr. Irvine, the Civil Judge: General point. First, each party should
prove the practice of families similarly situated to theirs, whether to adhere to the Hindoo law
of inheritance, or to be governed by the law of England in that respect. Secondly, each party
should also prove what has been the practice of their own family in this respect as shown by
their acts.
The Plaintiffs to prove, first, that Defendant's father died insolvent, and that Matthew
Abraham took charge of the Defendant then, a child, as stated in the [9-Moore Indian
Appeals-212] plaint.
Second, that a considerable sum of money was expended by Matthew Abraham on the
Abkarry buildings. Third, the nature and extent of the property left by Matthew Abraham.
Fourth, that the Defendant on Matthew Abraham's death was continued in the management of
all his estate on the terms mentioned in the plaint, and that he took the renewal of the Abkarry
contract for the remaining months of the year in which Matthew Abraham died and in
subsequent years, as stated by them. Fifth, that the first Plaintiff lent money from the
distillery funds against Defendant's inclination; and by a supplemental point, directed him to
prove that Matthew Abraham kept regular accounts of the distillery business.
The Defendant to prove, first, that his father died possessed of property and that Matthew
Abraham took possession of it. Second, that the shop was established as stated, and that he
and Matthew Abraham raised capital for it by borrowing money jointly for it. Third, that the
money deposited with the Government as security for the Abkarry rent was made up from the
sums received from the petty renters, and that that money was used as stated in the answer.
Fourth, that the first Plaintiff requested that the third Plaintiff should be admitted as a partner
in the Abkarry contract. Fifth, that on Matthew Abraham's death the Defendant became the
legal head of the family, and as such continued in possession of the estate. Sixth, that be
obtained after Matthew Abraham's death the Abkarry contract for his own exclusive benefit,

6
and that he was legally entitled so to do. Each party were to be at liberty to disprove the
points given to the other.
Both parts entered into voluminous evidence, [9-Moore Indian Appeals-213] and a great
many witnesses were examined on behalf both of the Plaintiff and the Defendant.
The documents adduced by the Plaintiffs consisted chiefly of correspondence between the
Respondent and Matthew Abraham, generally during the life of Matthew Abraham; and the
correspondence between the Respondent and others after the death of Matthew Abraham.
From the correspondence during the life of Matthew Abraham, it appeared that he and the
Respondent acted in
all respects like English persons, being wholly inconsistent with the allegations of the
Respondent, that there was a general unity of interest between him: and Matthew Abraham,
and that they were undivided Hindoo, brothers. The correspondence after the death of
Matthew Abraham included a long letter addressed by the Respondent to the late Charles
Henry Abraham, dated the 19th of August, 1842, shortly after the death of Matthew
Abraham, lamenting the great loss he had sustained, and the consequent alteration in his
situation, and in which he set forth a statement of the affairs and general assets of the
deceased, without making any claim, or allusion to a claim, on his own behalf to any interest
therein, except as the general manager of the property, and soliciting the aid and interest of
Charles Henry Abraham to procure from his mother (the Appellant) a continuance of his
agency or some provision for his future sup- 9 Moore Indian Appeals 214, 19 ER p722 port;
the remainder regarded the power of attorney and letters of administration before stated, and
the accounts between the Plaintiff and Respondent.
In addition to the correspondence, documentary evidence was adduced by the Plaintiff s,
showing the admission of the Respondent as a partner with [9-Moore Indian Appeals-214]
Matthew Abraham in the shop, on the 2nd of April, 1832, with entries from the distillery cash
book, showing drafts from the distillery funds according to the orders of the first Plaintiff,
both before and after the death of Matthew Abraham. They put in evidence, also, translation
of a bond executed by two persons to Matthew Abraham, therein described as " Contractor of
the entire Talook of Bellary," and an abstract of the distillery accounts, rendered to the first
Plaintiff by the Respondent, together with the letters of administration before mentioned, and
a receipt by the Appellant, the widow, as " Administratrix to the estate of the late Mr. M.
Abraham," and by the Respondent, as her attorney, in respect of debts due to Matthew
Abraham's estate. The Plaintiffs filed also a return of particulars respecting the Abkarry
contract, showing the continuance of the same deposit after Matthew Abraham's death, all
other matters as to the renewals by the Respondent; accounts of the distillery brought in by
Respondent upon being called upon to do so-such Accounts showing the payments made to
the Appellant, the widow, up to the institution of the suit. Two witnesses, Englishmen, and
two native Christians who had been well acquainted with Matthew Abraham's father, and
with Matthew Abraham when a youth, were examined by the Plaintiffs, who proved that
Matthew Abraham's father was in a state of poverty up to the time of his death, and that
Matthew Abraham had been appointed to a post in the Arsenal at Bellary, independently of
any exertions of his father on his behalf, and had not come into possession of any property
upon his father's death. Many other witnesses, who had been intimately acquainted with
Matthew Abraham and the Respondent, [9-Moore Indian Appeals-215] proved that the
Respondent was a dependent upon Matthew Abraham; that he had never been treated by him
or other members of the family as if be were in the position of an undivided brother, and
ultimately to become the head of the family; that his partnership with Matthew Abraham was
limited to the shop; that Matthew Abraham and the Respondent never adhered to a single
Hindoo custom or usage; that the usage and habits of Matthew Abraham and his family, and
of the Respondent, were entirely opposed to Hindoo law or customs; and that there was no

7
difference whatsoever between their mode of life and that of any English, or East Indian
family, but that, on the contrary, they were always looked upon as members, and even
leading members, of the East Indian community, and that they were associated with
Englishmen and East Indians in all matters of religious, public, social, and private interest. It
was further shown by the evidence of other witnesses, well acquainted with the religion and
customs of the different classes, that the only class of persons whose stand position presented
a clear analogy to that of Matthew Abraham, were the East Indians, who, strictly so called,
were the descendants of a European and a native, or half-caste, and who, when adhering to
English habits and customs, were governed by English law, and that that class had not
hesitated to admit and recognize both Matthew Abraham and the Respondent as members
thereof. It was also proved that, after the death of Matthew Abraham up to Christmas, 1853,
the Arrack vendors came to the house of the first Appellant, Charlotte Abraham, every
Christmas to pay their respects or do homage to her as the representative of Matthew
Abraham, and as such at the [9-Moore Indian Appeals-216] head of the distillery, and that the
Respondent was present on many such occasions. Four persons, who had been connected
with the distillery during the lifetime of Matthew Abraham, deposed to the fact of Matthew
Abraham having been solely entitled to the distillery-; that accounts were regularly made up
for and kept by him, and that the Respondent had no power at the distillery or over the
persons employed therein, save such as was delegated to him as manager by Matthew
Abraham.
The Respondent was called as a witness for the Plaintiffs, and examined at great length. He
stated, amongst other things, that he was admitted a partner in the shop in 1832, under a deed
of partnership, which he could not produce; that he was never admitted by Matthew Abraham
as partner in the distillery business by any deed, but he alleged that Matthew Abraham had
acknowledged that he and the Respondent were joint proprietors of the distillery business; he
admitted that he did not, upon Matthew Abraham's death, close accounts or pay over to the 9
Moore Indian Appeals 217, 19 ER p723 Plaintiffs Matthew Abraham's interest in the
distillery; that he made no valuation for the transfer to him of the distillery business; that he
continued to work the distillery business with the stock and funds that were invested in it at
the time of Matthew Abraham's death; that he did not on Matthew Abraham's death give the
Plaintiffs intimation that he would carry on the Abkarry contract business for his own
exclusive benefit; that Matthew Abraham and the Respondent had not an equal interest in the
distillery business as to shares; that Matthew Abraham was the sole contractor, and the
Respondent contributed his labour; that he kept no regular account of the property [9-Moore
Indian Appeals-217] which was in his possession at the death of Matthew Abraham; that he
considered that, during the life of Matthew Abraham, he had a proprietary interest in all his
property; that he laboured jointly with Matthew Abraham in the contracts for several years
previous to his death, and did nearly all the business for several years, and, therefore, claimed
a share in it; that the Appellant, the widow, had made several demands for accounts from the
Respondent in different years; that be did not furnish any capital for the Abkarry business
after Matthew Abraham's death; that he had removed the records of the distillery and had
destroyed some since June, 1853; that he had destroyed all the records of the distillery up to
May, 1854; and that he claimed the distillery as his own since Matthew Abraham's death, but
did not produce any account of the business from the period. The Appellant, Charlotte
Abraham, and the Appellant, Daniel Vincent Abraham, were examined as witnesses, and
their evidence was in the main corroborative of the facts and circumstances above stated.
The documentary evidence adduced by the Respondent consisted of correspondence and
other documents. The correspondence during the life of Matthew Abraham was relied on by
the Respondent as showing that there was a general unity of interest between him and
Matthew Abraham, and that such general unity was recognized by the family. Some of the

8
letters contained among other matters the following expressions in allusion to the Abkarry
contract:-" We have nothing else to depend upon," and " We shall have the benefit of it;" and
again " We asked for the renewal of it;" and " We have a legal right to it."
The correspondence after the death of Matthew [9-Moore Indian Appeals-218] Abraham,
consisted of letters from the deceased, Charles Henry Abraham, respecting his father's death
and other matters, and from the Appellant the widow to the Respondent, with respect to the
funds to meet the expenses of her son in England being supplied out of his father's estate. The
Respondents also put in evidence a decree of the Auxiliary Court at Guntoor in a suit for
maintenance; the translation of four awards of arbitrators upon divisions of ancestral
property; a translation of a power of attorney in Persian signed by the Respondent and the
Plaintiff, Daniel Vincent Abraham, authorizing a Vakeel to act for them in certain suits, in
which was contained a recital that the Respondent and the third Plaintiff" are the heirs " of
Matthew Abraham. Daniel Vincent Abraham, however, in reply to this stated in his
examination, that he was about nineteen years of age when the above document was signed,
and that he had but slight, if any, knowledge of the Persian language, and did not make
himself acquainted with the contents of the document, but having full confidence in the
Respondent, signed it. Various instruments dealing with the Abkarry and other property of
the late Matthew Abraham, executed both before and after his death by the Respondent,
together with the pleadings and decree in a suit instituted jointly by the late Daniel Vincent
Abraham, the son, and the Respondent, respecting the a lairs of his father, Matthew Abraham,
and testimonials, contract bonds, etc, in relation to the Abkarry contract, showing the
Respondent as holder of the Abkarry contract since the death of Matthew Abraham, were also
put in evidence.
The Respondent's witnesses were examined, chiefly [9-Moore Indian Appeals-219] with
reference to the law by which native Christians were governed. Several of the witnesses who
were East Indians, and considered themselves competent to give an opinion, gave it as their
opinion that native Christians, were such Christians as were born in the country, and who
have not changed their customs and habits, and that persons who like Matthew Abraham, did
not in any way differ from Englishmen, save in native origin, were to be classed with East
Indians, and ought, like that class, to be subject to English law. Mr. Ross, one of the
Respondent's witnesses, who had been well acquainted with the family, confirmed the fact of
Matthew Abraham and the Re- 9 Moore Indian Appeals 220, 19 ER p724 spondent having
been leading members of the East Indian community, and stated that none of the East Indians
ever made any distinction between themselves and Matthew Abraham on account of his birth,
and of the native dress he had once worn.
Mr. Irvine, the Civil Judge of Bellary, gave judgment in the suit on the 1st, of June, 1858,
and, as to the law of inheritance in respect of native Christians, rejected all the evidence of
East Indians, as not being similarly situated with the Abrahams; but he considered that the
documentary evidence of awards and deeds of division between native Christians and the
evidence, of the native Christians proved that the general state of native Christians was to
remain divided, and that the undivided state was the exception. He held that the Respondent
and his brother were not undivided in fact; that they were partners in the shop in equal shares;
that the Respondent was the agent of his brother, and of the Plaintiffs after his death as to the
Abkarry contract, and also agent under the administration and power of attorney; and he
decreed accounts to [9-Moore Indian Appeals-220] be taken in a certain manner (see Order
set out in the judgment, post [9 Moo. Ind. App.], 233) with an allowance, to the Respondent,
and directing him to pay the costs.
From this decree the Respondent appealed to the Sudder Dewanny Adawlut at Madras.
When the appeal came before the Sudder Court, questions (see these questions stated in the
judgment, post [9 Moo. Ind. App.], p. 235) were put to the Pundits of that Court, and answers

9
to the following effect given: that property not ancestral, but acquired by all brothers jointly,
by means of agriculture, trade, etc, was equally divisible among all of them; that the fact of
the elder brother acquiring some property before the younger attained the age of discretion
made no difference, especially where, during the latter years of the elder brother's life, the
labour fell chiefly upon the younger; that under these circumstances the property should be
divided into two shares, and one of them given to the sons of the elder brother and the other
to the younger one; that the ignorance of the brothers of their respective rights in law would
not affect such rights; and that the absence of intention on the part of the elder brother did not
affect the rights of the younger.
The Sudder Court (consisting of Messrs. H. Frere and LT Strange) made their decree in the
cause on the 5th of November, 1859, reversing the judgment of the Civil Court. This decree,
in its main features, was to the following effect: As to the law of inheritance, the Sudder
Court considered that the Civil Judge, whilst deciding on the fact of division or undivision,
had failed to pronounce any opinion upon the rule of law; the Court came to the conclusion
that there was in India no lex loci, but that the rule of law must be according to the customs
and usages of the class to [9-Moore Indian Appeals-221] which the parties belonged, and the
usage in each particular family, to be ascertained by evidence. The Court founded its
judgment on the report of the Indian law Commissioners, And the opinion of the Judges of
the Supreme Court at Calcutta, that the English law was not in force in India, except so far as
it was introduced by the Charters. The Court said that in seeking a law to apply to parties
circumstanced as those in the suit, they were cast upon the rule laid down in section XVIL,
Reg. II of 1802, that " in cases for which no specific rule may exist, the Judges are to act
according to justice, and equity, and good conscience." That the Sudder Court, in a case
similar to the present in regard to East Indians, who had no Code of law of their own, pointed
out, under date the 14th of July, 1828, that the rule of law must be according to the customs
and usages of the class to which the parties belonged, which was to be ascertained by
evidence; and that on the 25th January, 1836, and the 3rd September, 1844, they gave effect
to the same instructions. The Court agreed with the Civil Judge in rejecting the evidence of
East Indians, but considered that the change of dress and manners could not alter the law of
inheritance, or any local law or usage. The Court considered, that the evidence as to the
usages in law of Christian converts from Hindooism was universal; that the Hindoo law as to
rights in property, was the rule observed by the class in question, from generation to
generation. The Court held that the acts of the family were in accordance with Hindoo law,
referring to the suits in regard to the Kurnoul debts by Respondent and his nephew, as, joint
heirs of Matthew Abraham. In applying the Hindoo law, the Court adopted the opinion of the
Pundits, con- 9 Moore Indian Appeals 222, 19 ER p725 sidering that the dealings of the
brothers [9-Moore Indian Appeals-222] brought them within that law, and held that,
according to it, the Respondent was entitled to an equal share in the estate. The Court came
also, to the conclusion that the Respondent was not a salaried agent, or an agent at all, and
that the evidence of the first Plaintiff and her relatives, the first two witnesses in this respect,
was unworthy of credit, and that as the Plaintiffs were not justified in bringing the suit, the
Court condemned them in all the costs that had been incurred.
The present appeal was from this decree.
The Solicitor-General (Sir R. Palmer) and Mr. W. H. Melvill, for the Appellants. This decree
cannot be sustained. It is wrong in law in declaring that the rights of the parties in this appeal
are to be governed by the rules and principles of the Hindoo law. It is of the utmost
importance to ascertain the status of persons in the position of Matthew Abraham, and the
law by which the succession to their property is to be governed. In India the status of religion
as regards natives, is the status of law; the law is the religion both of Hindoos and
Mahomedans. The Hindoo law, therefore, being a law of religion, cannot be applicable to

10
persons who are not Hindoos, that are Christians, and as in this case, as well by descent, as
profession, and whose ancestors for several generations have in every respect repudiated the
tenets and principles of the Hindoo religion. Our contention is that the law applicable in this
case must be the) law appertaining to that class of which the parties become members, or so
much of it as is applicable to their peculiar Situation. The English law of descent and
succession, therefore, in the case of native East Indians, professing the Christian religion,
must be the governing law in regard to the rights and possession of their property. This is
apparent [9-Moore Indian Appeals-223] as well from all sound and legal principles as from
the laws enacted in India.
First, by Mad. Reg. 11. of 1802, sec. XV. it is provided, that the Court shall proceed to try
suits under the same rules and regulations as were prescribed for the trial of suits between
individuals; and by section XVII. of the same Regulation it is enacted, that " in cases coming
within the jurisdiction of the Zillah Courts, for which no specific rule may exist, the Judges
are to act according to justice, and equity, and good conscience." Section XVI. cl. 1, of Mad.
Reg. III. of 1802, further provides that, in suits regarding succession, inheritance, marriage,
and caste, etc, the Mahomedan laws with respect to Mahomedans, and the Hindoo law with
regard to Hindoos, are to be considered as the general rules by which the Judges are to form
their decisions. Mad. Reg. v of 1829, which was passed to modify the provisions of Reg. III.
of 1802, as regarding the testamentary dispositions of Hindoos, recognizes the validity of
Wills made by Hindoos, if made in conformity with the Hindoo law. Previous to the passing
of the Act, No. XXI. of 1850, the lex loci" Act, in the case of apostasy, the change of religion
on the part of a Hindoo, deprived him of his right of inheritance W. H. Macnaghten's " Hindu
Law," vol. II. p. 131; but by that Act it is declared, that notwithstanding a Hindoo becomes a
Christian, his rights of inheritance to property as a Hindoo shall not be thereby affected. But
the Act, No. XXI. of 1850, never had or can have any application to this case. The Abrahams
never were Hindoos in religion; they never professed or acknowledged the religious tenets
upon which alone the Hindoo law is founded and by which it is governed. They were,
therefore, not as Hindoos [9-Moore Indian Appeals-224] within the pale of that law. The
Sudder Court has held that there is no lex loci in India, and that the law to govern the case is
to be sought in the usage of the class to which the deceased, Matthew Abraham, belonged. As
to there being a lex loci or not in India, out of the jurisdiction of the Supreme Court Charters,
the Report of the Indian Law Commissioners of October 31st, 1840, shows clearly, first, that
the Commissioners considered that Hindoo law cannot apply to Christian converts; and,
secondly, they thought that the English law must in such cases apply, but they seem to have
given up that opinion in deference to the opinions of the Judges of the Supreme Court, who
laid it down, that the English law was only introduced by Supreme Court Charters, and was
coextensive only with their jurisdiction. The doctrine that there is no lex loci in India is
capable of a reductio ad absurdum. Persons who have ceased to be Hindoos have a law, or
they have not. If they have not, no Court of Justice can adjudicate. If they have a law, it must
be either the lex loci, or the law of usage. But a law of usage implies a continuance, and must
have had a beginning; therefore, if there is 9 Moore Indian Appeals 225, 19 ER p726 no class
similar to themselves, there can be no law of usage; and if there be a class, that class must for
some time have been without a law. The Sudder Court has dealt with the case as due to be
determined by usage of persons similarly situated with the deceased Matthew Abraham. The
persons similarly situated are Christian converts from Hindooism, and the Judges of the
Sudder Court have by their decree held that such native Christians are to be governed, as to
their property, by the usage of Hindoo law, and that from the evidence in this case such usage
is not inconsistent with the practice of the family. Now, both [9-Moore Indian Appeals-225]
Courts rejected the evidence of East Indians, persons of mixed European and native blood,
whose evidence we insist was strictly pertinent and ought to have been admitted. The class

11
called " East Indians " are generally illegitimate children of a native woman, the father being
European. But in such a case the application of Hindoo law depends, upon the coexistence
with the Hindoo status and that is the Hindoo religion, Myna Boyee v Ootarram, (8 Moore's
Ind. App. Cases, 400). The real question here is what was the usage of this family? The
evidence rejected shows that their usages were in every respect those of English East Indians.
They conducted themselves as Englishmen in dress, habits, manners, and customs, and,
moreover, field and conformed to the tenets of the Christian religion. Surely, this was
evidence of their not being Hindoos; and if they were not Hindoos, then the Hindoo law of
inheritance could not apply to them, for such law is part and parcel of the Hindoo religion,
and cannot be separated from it. The whole evidence, which is very voluminous, proves most
completely that there are, -four classes of persons belonging to the Christian community in
India, namely, first, European Protestants; second, European Roman Catholics; third, East
Indian Protestants, or Catholics, being either partially or wholly of native blood, and, as the
family of the Abrahams are in this case, Christians by birth and parentage; and, lastly, there
are native converts, either Protestants or Roman Catholics. Now, all these parties must have,
some status and some law to govern their rights, and if the Hindoo law is to apply to them,
then they can have no rights of property whatever. This appears from an opinion of the
Pundits, in a former suit, which was called for by the Appellants, and in which they stated
that in [9-Moore Indian Appeals-226] the case of East Indians, the law to be applied
depended upon the religion which they professed.
But, secondly, there was no ancestral property in this case, and, therefore, even if the Hindoo
law could be shown to be applicable as between the parties, the consequences which the
Sudder Court has deduced therefrom would not follow, and the decree on that ground cannot
be sustained. The facts are, wholly opposed to the conclusion that Matthew Abraham and the
Respondent were just and undivided in estate, or that the Respondent had any interest in any
part of the property in question, except that which belonged to him by contract, as the partner
of Matthew Abraham under the deed of April, 1832; and the fact of Matthew Abraham
having admitted the Respondent into partnership in the shop in 1832, under a deed of
partnership, is conclusive against the claim which the Respondent now sets up to a general
joint interest with Matthew Abraham, which, if it existed at all, must have existed prior to the
partnership in 1832. Now, in all cases, within the application of the Hindoo law, where there
has been property to start with, which property formed the nucleus of subsequently acquired
property, though such is self-acquired property, yet the presumption in law is that the whole
property is in coparcenary, Dhurm Dass Pandey v Mussumat Shama Soondri Dibiah (3
Moore's Ind. App. Cases, 240). The very theory of an undivided family is founded upon the
existence of paternal property. But our contention is that Matthew Abraham and the'
Respondent did not constitute what the Hindoo law regards as an undivided family, and that
the Respondent is not entitled to that special and peculiar right which the Hindoo law regards
as attaching to the accretion [9-Moore Indian Appeals-227] of property held in coparcenary.
One way of testing the Respondent's claim is to consider whether a claim by him for a
general partition during Matthew Abraham's life could have been maintained, which the
authorities clearly show could not, Strange's " Hindu Law," vol. 1. pp. 195, 198-9, 203, 208,
213, 219, 221, 226-7; Ib. vol. II, pp. 346 357 365, 370, 371, 375; Inst. of Menu (by
Haughten) Ch IX, sec. 204, p. 319; W. H.
Macnaghten's " Hindu: Law," pp. 43, 51. The Mitacshara, ch. 1. sec. 3. From the evidence in
the cause it is apparent that this claim of the Respondent was an after- 9 Moore Indian
Appeals 228, 19 ER p727 thought. At the time of Matthew Abraham's death, as well as for
some time after, he led the Appellants to believe that the Abkarry contract was held after
Matthew Abraham's death precisely as it was before.

12
Then, lastly, we submit, that the Sudder Court was not justified in refusing an account, and
that the decree proceeded on an erroneous basis in calculating the sums to be paid to the
Respondent, and, under no circumstances, could the case warrant the imposition of the whole
costs of the suit upon the Appellants, Sir Hugh Cairns, Q.C. and Mr. W. W. Mackeson, for
the Respondent. There is no lex loci in India. Among Christian native Hindoo families the
rule of property and inheritance is regulated by usage among the class. According to the
usage as proved in this case, the Hindoo law is followed by all classes of native Christians.
As to the rule of law by which native Christians are regulated, that question is elaborately
investigated in the Report of the Indian law Commissioners of the [9-Moore Indian Appeals-
228] 31st of October, 1840, and after a critical examination of all the decided cases, whether
they related to Armenian, Portuguese, French, or native Christians in India, the conclusion
arrived at by the Commissioners is that the English law is confined within the limits of the
Charters of Justice, and that there is no lex loco' there, but that each class must be regulated
by the customs and usage of the class, and each family thereof, and that this result must be
arrived at in each case by evidence. In Freeman v Fairlie (1 Moore's Ind. App. Cases, 324)
the Master reported, that the Supreme Court at Calcutta, created by the Statute, 21st Geo. III,
c. 70, decided cases according to Hindoo or Mahomedan law, which could not be applied to
the government of Christian people, and that there was no uniform lex loci to regulate
inheritance, succession, etc. Mad. Reg. II of 1802, secs. 3 and 4, applies to natives and other
persons not British subjects; so Mad. Reg. VIL of 1827. It is true that Ben. Reg. IV. of 1793,
section 15, applies only to Hindoos, or Mahomedans, but as the Mofussil Courts are Courts of
conscience, they determine questions respecting the law of Foreigners, that is not Hindoo or
Mahomedans but British subjects. Thus in Durand v Boilard (5 Ben. Sud. Dew. Rep. 176) the
succession was governed by French law. Joanna Fernandez v Domingo de Silva, (2 Ben. Sud.
Dew. Rep. 227) was a case of Portuguese law, and the cases of Avielick Ter Stafanoos v
Khaja, Michael Aratoon (3 Ben. Sud. Dew. Rep. 9) Humrus v Humrus (2 Borr. Bom. Rep.
496) Aratoon. v Aratoon, (7 Ben. Sud. Dew. Rep. 52). Gregory 7, Cockrane (8 Moore's Ind.
App. Cases, 275) related to Armenian Christians, So with [9-Moore Indian Appeals-229]
Parees, Mihirwanjee, Noushirwanjee v Awan Baee (2 Borr. Bom. Rep. 209) Modee
Kaikhooscrow Hormusjee v Cooverbhaee (6 Moore's Ind. App. Cases, 448); likewise Sheik
law, Doe d. Kissenchunder Shaw v Baidam Beebee (2 Morley Dig, 22); also among members
of the Sheeah sect of Mahomedans, Raja Deedar Hossein v Ranee Zohoor-oon- Nissa (2
Moore's Ind. App. Cases, 441) and by the English law, Hoo v Peter Marquis (4 Ben. Sud.
Dew. Rep. 243). This view of the law, that the Mofussil Courts adjudicate according to the
law of parties not being Hindoos or Mahomedans, is strengthened by the Act of the Indian
Legislature, No. XXI. of 1850, by which it is declared that, notwithstanding a Hindoo
becomes a Christian, his rights of inheritance or property as a Hindoo shall not be thereby
affected. We insist that with respect to the customs and usages applicable to native Christians,
the evidence here clearly establishes that the law of their ancestors, namely, the Hindoo law,
was the only guide; that birth and blood must decide, and the adoption of English dress and
manners does not and cannot alter the rule of law or change the status of the parties as to the
acquisition and transmission of property.
Secondly, according to Hindoo law, the Respondent was entitled to an equal share with his
brother, and, after his death, with his family, in all the property, which was joint property.
The Hindoo law applicable to the joint acquisition of property by two brothers, although not
undivided, is clear, Koshul Chukurwutty v Radhanath Chukurwutty (1 Ben. Sud. Dew. Rep.
335) F. Macnaghten's " Hindoo Law," pp. 15, 66; Strange's " Hindu Law," vol. I, p. 213, and
cases collected in [9-Moore Indian Appeals- 230] Morley's Dig tit. " Partition," vol. I, p. 480.
The legal result is that the brothers had an equal interest in the joint acquisitions, even
although ignorant of the law, and admitting no intention of creating a joint interest existed.

13
As to the joint acquisition of property by the Respondent and his brother, Matthew by their
joint labour, we submit that the evidence is sufficient, independently of Hindoo law, 9 Moore
Indian Appeals 231, 19 ER p728 to create a joint and equal interest between the brothers.
This is shown by the confidential and unreserved mode of dealing between them, their living
together, their joint purchases and mortgages, and the constant and invariable course of joint
and common interest for twelve years succeeding the death of Matthew, without account or
claim.
Then with respect to the accounts. If the interest of the brothers is held to be joint, which we
insist it was, then Rs. 3,00,000 is to be taken as a basis of calculation, and the amount
received by the Appellants added to it, and then the total of the two amounts should form the
valuation of the joint property, and this is the made of taking the account which was finally
agreed to by the several parties before the Sudder Court. This proposal was made to avoid the
expense and delay of taking accounts generally, and the Court acted upon it, and we contend,
that, assuming the interest is held to be joint, both parties are bound to have the account
settled on that footing, and have thereby waived general accounts.
Lastly, in case of there being no joint interest, the Respondent is entitled to the whole of the
Abkarry contract, and the profits thereof, from the 20th of April, 1843, as his exclusive
property, he being ready [9-Moore Indian Appeals-231] in such case to allow a fair sum for
the distillery, plant, and premises.
Their Lordships' judgment was postponed, and was now delivered by The Right Hon. Lord
Kingsdown (June 13, 1863). The Appellants in this case are Charlotte Abraham, the widow,
and Daniel Vincent Abraham, the only surviving child of Matthew Abraham. The
Respondent, Francis Abraham, was the only brother of the late Matthew Abraham. Matthew
Abraham and the Respondent were by birth Hindoos of pure native blood, being descended
from a family of Hindoos. Their ancestors for several generations had embraced Christianity,
and they were themselves Christians, originally it appears Roman Catholics, afterwards
Protestant Dissenters, and subsequently members of the Church of England. They were of the
class known in India as "native Christians."
Matthew Abraham was by far the elder of the two, brothers; for in early life, when the
Respondent was only about two or three years old, he was employed as a clerk in the arsenal
at Bellary. In the year 1820, he married the Appellant, Charlotte Abraham. This lady and her
father and mother were also Christians; the father an Englishman and the mother a
Portuguese. They were of the class known in India as East Indians. There was issue of this
marriage the Appellant, Daniel Vincent Abraham, and another son, Charles Henry Abraham,
who survived his father, Matthew Abraham, but died pending the proceedings brought before
us by this appeal. In the year 1823, Matthew Abraham established a shop at Bellary, the
business of which was continued to be carried on up to the [9-Moore Indian Appeals-232]
time of his decease. Throughout these proceedings it is called the shop-business. In the year
1827, Matthew Abraham entered into a contract with Government for the supply of liquors to
the troops at Bellary, and erected a distillery for the purposes of this contract. The contract
was renewable annually, and was annually renewed to. Matthew Abraham up to the time of
his decease, except in one year when it fell into other hands. Throughout these proceedings it
is called the Abkarry contract. In the year 1832, Matthew Abraham took Mr. Richardson and
the Respondent, his brother, into partnership with him in the shop business, each party taking
a third of the profits. This partnership was dissolved in the year 1837, and the business was
thenceforth, until the death of Matthew Abraham, continued by him and the Respondent, his
brother, without any new arrangement having been come to between them.
The Respondent, some time before the death of Matthew Abraham, also married a Christian
lady of the class known as " East Indians." In the year 1842, Matthew Abraham died, leaving
the Appellants and Charles Henry Abraham, his widow and children. After his death the

14
Respondent continued to carry on the shop-business, and he also procured the Abkarry
contract to be annually renewed in his name, and carried on the business of that contract, and
the distillery connected with it. In the year 1854, the Appellants and Charles Henry Abraham
instituted against the Respondent the suit out of which this appeal has arisen, estimating the
property to be recovered in the suit at Rs. 3,00,000.
By their plaint in the suit they alleged, that the whole of the capital in the shop business was
supplied [9-Moore Indian Appeals-233] by the late Matthew Abraham; that the distillery
Moore Indian Appeals 234, 19 ER p729 business was carried on by him alone and with his
own capital, and that the Respondent was his clerk, agent, or manager, in this business at a
salary; that on the death of Matthew Abraham, the duty of collecting his estate devolved on
the Appellant, Charlotte Abraham, and she intrusted the collection, realization, and
management of it to the Respondent, and gave him a power of attorney for that purpose, and
that the Respondent had carried on both the shop-business and the distillery business by
means of the late Matthew Abraham's capital; that he had made payments to and, on account
of the Plaintiffs, and for the debts of Matthew Abraham, but not nearly to the amount which
he had received; and the Plaintiffs accordingly by their plaint, prayed for an account of the
late Matthew Abraham's estate received by the Respondent, including the profits of the shop-
business and of the distillery, subsequently to his decease, offering to make the Respondent a
just and sufficient allowance for his services in managing the distillery business since the
death of Matthew Abraham.
The Respondent, by his answer to the plaint, insisted, that the Appellant, Charlotte Abraham,
being the widow of the late Matthew Abraham, could not claim jointly with her sons, the
other Plaintiffs; that she was entitled only to maintenance, and must seek it from her sons. He
said that Matthew Abraham's situation, in the arsenal was procured for him by his father; that
the father demised when he, the Defendant, was about two or three years of age, and that the
late Matthew Abraham took charge of him, the Defendant, as his guardian, and took charge
also of all the property left by their father; that the shop business [9-Moore Indian Appeals-
234] had been conducted by him both in the lifetime, and since the decease of Matthew
Abraham, but that as the deceased Matthew Abraham and he (the Defendant) were possessed
of very little property, they had jointly borrowed money at interest on their joint bonds to
carry on their business, and that it was by these means the capital of the business had been
raised; and he urged that the late, Matthew Abraham and he (the Defendant) were brothers of
an undivided native Hindoo family, jointly labouring together for their common welfare
borrowing money on interest for their business upon their joint bonds and security, and
mortgaging all their joint property of every description as security for, the same: and
consequently that the late Matthew Abraham and he, (the Defendant) had an equal right to all
the capital, and not the elder brother, Matthew Abraham, alone. He said that the Plaintiffs,
Charles Henry Abraham and Daniel Vincent Abraham, were merely junior members of an
undivided Hindoo family, and that he (the Defendant) by the death of Matthew Abraham had
become the head of the family, and he insisted that the fact of himself and his father and
family being Christians could not and did not make them subject to the English law. That
their religion was an accident, and that in fact they were Hindoos and undivided and must of
necessity, and according to all practice and precedent, be subject to the Hindoo law and no
other. He denied that the Abkarry contract was the property of Matthew Abraham alone, and
alleged that he (the Defendant) had purchased the contract after the death of the late Matthew
Abraham on his own responsibility.
The Plaintiff a by their replication submitted, that [9-Moore Indian Appeals-235] by whatever
law the case was to be decided, they had all a common interest against the Defendant, and
that no final decision could be come to in the absence of any of them. They relied upon the
family having been Christians for several generations as putting an end to the Defendant's

15
assertion that the case, ought to be decided according to the Hindoo law; and after referring to
the class of East Indiana having always been considered to be governed by the same laws as
Englishmen as to their rights of descent and inheritance, and to authorities by which, as they
contended, it was shown that in suits between parties who were neither Hindoos nor
Mahomedans in religion, the usages of the particular class to which they belonged formed the
guide of the Court, and that even in cases to which Hindoo law was applicable, the usages of
the family were to be the rule of guidance when they were opposed to the law, they submitted
that the Court, before coming to a decision in the case, ought to consult the usages of the
class to which the parties in the suit belonged, and ascertain what had been the usages of the
family in which they had been reared. They further insisted, that even if the case was to be
governed by the Hindoo law, the Defendant had no right to any portion of the late Matthew
Abraham's estate. They denied that Matthew Moore Indian Appeals 236, 19 ER p730
Abraham inherited any Property whatever from his father, and said that the father died an
insolvent and ruined man, and that Matthew Abraham had taken charge, of the Defendant and
reared him from generosity, and had begun the affair under litigation when the Defendant
was a boy at school, and unable, to assist him in them. They insisted that Matthew Abraham
and the Defendant were not members of an, undivided, family in the [9-Moore Indian
Appeals-236] light alleged by the Defendant, and that even if Matthew Abraham obtained his
original appointment, under Government through the instrumentality of his father, it would
confer no right on a younger brother, but the salary attached to the appointment would, even
under the Hindoo law, be considered a separate acquisition.
The Defendant, by his rejoinder, adopted the view insisted upon by the replication as to the
principles which ought to determine the law by which the case should be decided, submitting
that the Plaintiffs had laid down the correct principle, namely, that the customs and usages of
the class to which both parties belonged must be sought for and searched, and, further, that
the usages of the particular family to which the parties belonged must be looked to in order to
ascertain what law was to govern their relations to each other.
It appears from the record of proceedings before us that in this stage of the suit the Plaintiffs
were non-suited by a decree of the Civil Court of Bellary upon the grounds, first, that the
Plaintiff, Charlotte Abraham, the widow, could not take part in the suit, she having no right of
inheritance as the family stood; and secondly, that no sufficient description or specification of
the value of the property sued for had been given in the plaint: but upon an appeal to the
Sudder Adawlut, this non-suit was set aside, and the Civil Judge was directed to dispose of
the case on the merits, the Court observing, that the Civil Judge had pronounced upon a point
material to the issue of the suit, namely, the law of inheritance, by which the parties were to
be bound, without receiving any evidence whereby to govern his judgment on the [9-Moore
Indian Appeals-237] subject, and that such a judgment could only be rightly pronounced
upon a consideration of the usages of persons situated as the parties were, being Christians
whose ancestors were of Hindoo stock, and of the usages in their particular family, as
indicated by the acts of the parties and their predecessors in respect of their property since
they had belonged to the Christian community, and that it would be necessary further to
ascertain by whom and under what circumstances the property in issue was acquired, so as to
determine whether it was the estate of the deceased, 'Matthew Abraham, acquired by himself,
or of Ancestral origin, after which the rights of the parties thereto whether under the English
or Hindoo law, should be declared.
The case was accordingly remitted to the Civil Court of Bellary, and the points stated in the
pleadings (ante [9 Moo. Ind. App.], p. 207) were recorded for proof. A vast mass of evidence
upon the points recorded was adduced, both on the part of the Plaintiff s and on the part of the
Defendant. Their Lordships do not find it necessary to enter into the details, of this evidence.
It will be sufficient for them, in disposing of the several points of the case, to state the

16
conclusions at which they have arrived as to the result of the evidence bearing on these
points.
By the decree made upon the hearing of the cause by the Civil Court of Bellary, the Court
ordered as follows: That an account be taken of the capital employed in the shop-business
and of the profits thereof, both prior and subsequent to Matthew Abraham's death, and that
the [9-Moore Indian Appeals-238] Defendant do pay to the Plaintiffs one-half of the capital
and profits found due. That an account be taken of all the capital employed in the distillery
business and of the profits, down to the time of the death of Matthew Abraham, and also of
the profits of the distillery business arisen since his death, and that the Defendant do pay to
the Plaintiffs the amount of the capital and profits found due.
That an account be taken of all other the moneys, goods, debts and property of Matthew
Abraham which have been collected or received by, or come into the possession of, the
Defendant, or any person by his order or for his use, and that the Defendant do deliver up to
the Plaintiffs all such portions thereof as consist in kind or specie, and do pay to the Plaintiffs
all such portions thereof as consist of money, and do pay such portions thereof as have been
converted into money since the death of Matthew Abraham. That so long as the present
contract endures, and so long as the Defendant carries on the business in the Plaintiff's
distillery buildings, 9 Moore Indian Appeals 239, 19 ER p731 etc. and with their capital,
stock, etc, he must and shall be considered as their agent, and as-such accountable to them for
all the profits arising from the said business, and that he shall deliver up to the Plaintiffs all
deeds, books, Securities, documents, papers, and writings in his possession or power, relating
to the said contract or to the said distillery business, or otherwise relating to the property,
estate, or effects of Matthew Abraham, deceased; the Plaintiffs being bound, in taking the
aforesaid several accounts, to make to the Defendant a just and sufficient allowance for his
services in managing the said distillery business, and also for his services in collecting and
managing all other the property, estate, [9-Moore Indian Appeals-239] and effects of
Matthew Abraham, and that the Defendant do pay to the Plaintiffs the costs of the suit.
From this decree the Defendant appealed to the Sudder Court.
The Sudder Court, upon the case being brought before it, submitted a question to their
Pundits in these terms:-" Two brothers, governed by Hindoo law, inherit no ancestral
property. They live together. The elder acquires some property. The younger brother, as he
comes to years of discretion, is subsequently admitted by the elder to take part in the
administration of his business. They jointly borrow money for the uses of the business, and
both give their labour thereto. The elder of those brothers has demised. During the latter years
of the deceased brother the labour fell chiefly on the younger one.
Since the demise it has fallen exclusively on him. The elder brother has left two sons. Are the
said uncle and nephews to be considered co-sharers; and, if so, in what proportions? "
And the Court afterwards submitted this further question to the same Pundits:
Supposing the said two brothers and the sons of the deceased brother to be ignorant of their
respective rights in law over the said property, would this interfere with the title of one party
or the other to recover such right when disputes and consequent litigation occurred between
them?"
The opinion given by the Pundits upon these questions having been, that the property ought
to be divided into two, shares, and one, of them given to the sons of the elder brother and the
other to the younger one, and that the rights acquired by the sons [9-Moore Indian Appeals-
240] could not be affected by their ignorance of those rights, the Court as to the legal rights
of the parties held that they stood as representing two branches of a family governed, as to
rights in property, by Hindoo law, and with equal shares; and having arrived at this
conclusion, the Court adopted the estimate of the value, of the property made by the Plaintiffs
for the purposes of their suit, that it was of the value of Rs. 3,00,000, added to that amount

17
the sums which had been paid to the Plaintiffs and to creditors, and the value of some part of
the property in the Plaintiffs' possession, thus bringing up the entire value of the property to
Rs. 4,71,114 10a. 5p, and taking one-half of that amount as the Plaintiffs' share, and
deducting from it the sums: which had been paid to them, and one-half of the debts, found the
balance due to the Plaintiffs to be the sum of Rs. 71,492. 10a. 91p, which the Court ordered
the Defendant to pay to the Plaintiffs in discharge of all obligations due by him up to the date
of the suit. The Court was also of opinion that the Plaintiffs were not justified in having
recourse to the suit, and accordingly imposed upon them all the costs which had been
incurred by it.
It is from this decree of the Sudder Court that the present appeal has been brought.
The first and most important question raised by this appeal is by what law the rights of these
parties ought to be determined. In considering this question it is material in the first place to
observe what was the real point in issue in the cause. Laying out of considerations the
objection raised by the answer, that the Plaintiff, Charlotte Abraham, as widow, could not sue
jointly with the other Plaintiffs, her sons, an [9-Moore Indian Appeals-241] objection of
misjoinder of parties which, in their Lordships' opinion, was properly answered by the
replication, and properly disposed of by the Sudder Court when the case was first brought
before, it by appeal, the true question at issue in this case is not who was the heir of the late
Matthew Abraham, but whether he and the Respondent formed an undivided family in the
sense which those words bear in the Hindoo law with reference to the acquisition,
improvement, enjoyment, disposition, and devolution of property. It is a question of
parcenership, and not of heirship.
Heirship may be governed by the Hindoo law, or by any other law to which the ancestor may
be subject; but parcenership, understood in the sense in which their Lordships here use the
term, as expressing the rights and obligations 9 Moore Indian Appeals 242, 19 ER p732
growing out of the status of an undivided family, is the creature of, and must be governed by
the Hindoo law. Considering the case then with reference to parcenership, what is the
position of a member of a Hindoo family who has become a convert to Christianity? He
becomes, as their Lordships, apprehend, at once severed from the family, and regarded by
them as an outcast. The tie which bound the family together is so far as he is concerned, not
only loosened, but dissolved. The obligations consequent upon and connected with the tie
must, as it seems to their-Lordships, be dissolved with it. Parcenership may be put an end to
by a severance effected by partition; it must, as their Lordships think, equally be put an end to
by severance which the Hindoo law recognizes and creates. Their Lordships, therefore, are of
opinion, that upon the conversion of a Hindoo to Christianity the Hindoo law ceases to have
any [9-Moore Indian Appeals-242] continuing obligatory force upon the convert. He may
renounce the old law by which he was bound, as he has renounced his old religion, or, if he
thinks fit, he may abide by the old law, notwithstanding he, has renounced the old religion.
It appears, indeed, both from the pleadings and from the points before referred to that neither
side contended for the continuing obligatory force of Hindoo law on a convert to Christianity
from that persuasion. The custom and usages of families are alone appealed to with a
reference, also to the usages of this: particular family; a reference which implies that the
general custom of a class is not imperatively obligatory on new converts to Christianity. The
conclusion at which their Lordships have arrived on this point, appears also to be, supported
by authority; for the opinion expressed as to the Hindoo law by the Judge of the Civil Court
at Bellary seems to coincide entirely with the opinions of Pundits reported, in W. H.
Macnaghten's " Hindu Law," vol. II. pp. 131-2. It is there stated, that on the death of an
apostate from the Hindoo faith his heirs, according to Hindoo, law, will take all the property
which he had at the time of his conversion; and the marginal note, states, that his
subsequently acquired property would be governed as to its devolution by the law of his new

18
religion. The religion embraced in that case was the Mahomedan, which regulated the
devolution of property. The Pundits, therefore, in their reply, naturally connected religion
with the rules of descent of property as an adjunct, but the important point which they declare
is the separation of the convert from the binding force of Hindoo law, as to his subsequent
acquisitions.
[9-Moore Indian Appeals-243] Such, then, being the state of the case, so far as the Hindoo
law is concerned, we must next consider whether there, is any other law which determines the
lights over the property of a Hindoo becoming a convert to Christianity. The lex loci Act
clearly does not apply, the parties having ceased to be Hindoo, in religion; and looking to the
Regulations, their Lordships think that so far as they prescribe that the Hindoo law shall be
applied to Hindoos and the Mahomedan law to Mahomedans, they must be, understood to
refer to Hindoos and Mahomedans not by birth merely, but by religion also. They think,
therefore, that this case fell to be decided according to the Regulation which prescribes that
the decision shall be according to equity and good conscience. Applying, then, this rule to the
decision of the case, it seems to their Lordships that the course which appears to have been
pursued in India in these cases, and to have been adopted in the present case, of referring the
decision to the usages, of the class to which the convert, may have attached himself, and of
the family to which he may have belonged, has been most consonant both to equity and good
conscience. The profession of Christianity releases the convert from the trammels, of the
Hindoo law, but it does not of necessity involve any change of the rights or relations of the
convert in Matters With Which Christianity has no concern, such as his rights and interests
in, and his powers over, property. The convert, though not bound as to such matters, either by
the Hindoo law or by any other positive law, may by his course of conduct after his
conversion have shown by what law he intended to be governed as to these matters. He may
have done so either by [9-Moore Indian Appeals-244] attaching himself to a class which as to
the-se matters has adopted and acted upon some particular law, or by having himself
observed some family usage or custom; and nothing can surely be more just than that the
rights and interests in his property, and his powers over it, should be governed by the law
which he has adopted, or the rules which he has observed.
Their Lordships have thought it right thus to state their opinion on this point, Moore Indian
Appeals 245, 19 ER p733 as this is the first case in which the question has been brought
under their consideration. They consider the decision referred to in the judgment of the
Sudder Dewanny Adawlut in the case of a succession to one of the class of East Indians to be
an instance of a just and proper exercise of the discretion entrusted to these Courts. The
English law, as such, is not the law of those Courts. They have, properly speaking, no
obligatory law of the forum, as the Supreme Courts had. The East Indians could not claim the
English law as of right; but they were a class most nearly resembling the English, they
conformed to them in religion, manners, and customs, and the English law as to the
succession of movables was applied by the Courts in the Mofussil to the succession of the
property of this class.
Such, then being their Lordships' opinion as to the law by which they ought to be guided in
the decision of this case, it becomes necessary to see how the case stands upon the evidence.
Their Lordships collect from the evidence that the class known in India as native Christians,"
using that term in its wide and extended sense as embracing all natives converted to
Christianity, has subordinate [9-Moore Indian Appeals-245] divisions forming against
distinct classes, of which some adhere to the Hindoo customs and usages as to property;
others retain those customs and usages in a modified form; and others again have wholly
abandoned those customs and usages, and adopted different rules and laws as to their
property.
Of this latter class are the " East Indians," a class well defined in India, the members of which

19
follow in all things the usages and customs of the English resident there, and though they
cannot claim the exemption from jurisdiction, nor the privilege of a personal law, which the
British subjects, in the limited sense of the terms of the jurisdiction of the Charters of the
Supreme Courts, enjoy, in other respects, in the common bond of union in religion, customs,
and manners, approach the class of British subjects.
Reverting again to the evidence, their Lordships think that it is to be collected from it that the
family from which both the late Matthew Abraham and the Respondent descended was of
that class of native Christians which commonly retains native usages and customs, and they
consider it probable, therefore, that had the family possessed property they would, so long as
those usages and customs were retained, have enjoyed it in common according to Hindoo
custom; but their Lordships are perfectly satisfied upon the evidence that the late Matthew
Abraham and the Respondent had no ancestral property, and that the property which the late
Matthew Abraham had was acquired by him by his own sole unaided exertions, and without
any use whatever of any common stock. They fully concur in the finding of both the Courts
in India upon this point. They are also quite satisfied upon the evidence that [9-Moore Indian
Appeals-246] from the time of the late Matthew Abraham's marriage he and the Appellant,
Charlotte, his wife, and their children adhered in all respects to the religion, manners, and
habits of the East Indians, the class to which the Appellant, Charlotte Abraham, belonged.
Previously to the marriage some doubt appears to have been entertained whether the East
Indians, the class to which the lady belonged, would receive Matthew Abraham into their
society and treat him as one of themselves. The evidence on this point of the Appellant,
Charlotte Abraham, the first Plaintiff, is corroborated by that of a very respectable witness,
on whose veracity no doubt can rest.
Before this time Mr. Matthew Abraham had assumed the English dress, and had outwardly
conformed to all the habits of the English. Assurances were given that the East Indians of
Bellary would recognize her husband as one of their body, and the marriage took place. On
one important public occasion when a jury was summoned of East Indians, Matthew sat as
one of them, and acted as their foreman.
The evidence on this part of the case appears to their Lordships to be clear beyond all doubt.
They proceed, then, to consider its effect. That it is not competent to parties to create, as to
property, any new law to regulate the succession to it ab intestato their Lordships entertain no
doubt; but that is not the question on which this case depends. The question is whether, when
there are different laws as to property applying to different classes, parties ought not be
considered to have adopted the law as to property, whether in respect of succession ab
intestato or in Moore Indian Appeals 247, 19 ER p734 other respects, of the class to which
they [9-Moore Indian Appeals-247] belong. In this particular case the question is whether the
property was bound by the Hindoo law of parcenership. Now, Matthew Abraham acquired
the nucleus of his property himself. No law imposed any fetter upon him as to his mode of
dealing with it. It is not even shown, as a fact, how his ancestors after their conversion dealt
with such property, as to the use and enjoyment of it. It is plain that no, rule as to such use
and enjoyment, which the ancestors may voluntarily have, imposed on themselves, could be
of compulsory obligation on a descendant of theirs acquiring his own wealth. If a Hindoo in
an undivided family may keep his own sole acquisitions separate, as he undoubtedly may, a
fortiori, a Christian may do the same. Customs and usages as to dealing with property, unless
their continuance be enjoined by law, as they are adopted voluntarily, so they may be
changed, or lost by desuetude. It was well observed by Mr. Melvill, that custom implies
continuance. If a family of converts retain the customs in part of their unconverted
predecessors, is that election of theirs invariable and inflexible? Can neither they nor their
descendants change things in their very nature variable, as dependent an the changeful
inclinations, feelings, and obligations of successive generations of men? If the spirit of an

20
adopted religion improves those who become converts to it, and they reject, from conscience,
customs to which their first converted ancestors: adhered, must the abandoned usages be
treated by a sort of fictio juris as still the enduring customs of the family? If it be not so as to
things which belong to the jurisdiction of conscience, is it so, as to things of Convenience or
[9-Moore Indian Appeals-248] interest? Surely, in things indifferent in themselves the
Tribunals which have, a discretion and have no, positive lex fori imposed on them should
rather proceed on what actually exists than on what has existed, and in forming their own
presumptions have regard rather to a man's own way of life than to that of his predecessors.
Though race and blood are independent of volition, usage, is not.
The law has not, sol far as their Lordships can see, prohibited a Christian convert from
changing his class. The inconvenience resulting from a change of succession consequent on
a. change of class is no greater than that which often results from a change of domicile. The
argumentum inconvenieniti cannot, therefore, be used against the legality of such a change. If
such change takes place in fact, why should it be regarded as non-existing, in law? Their
Lordships, are of opinion, that it was competent to Matthew Abraham, though himself both
by origin and actually in his youth a " Native Christian," following the Hindoo laws and
customs on matters relating to property, to change his class of Christian, and become of the
Christian class to which his wife belonged. This was no light and inconsiderate step, taken up
on a whim, and to be as, lightly laid aside. We. find in the evidence that there was on one side
an exhibition of preliminary caution. The change was deliberate, it was, publicly acted upon,
and endured through his life for twenty years or more. His family was managed and lived in
all respects like an East Indian family. In such a family the undivided family union in the
sense beforementioned is unknown. How, then, can it be, imposed on that family of which
Matthew Abraham formed the head as [9-Moore Indian Appeals-249]father. Not by consent
for there was none; not by force of obligatory law, for there was none; not by adoption, for
they had not adopted any Hindoo customs, but, on the contrary, had rejected them all. It could
only be imposed, as it seems to their Lordships, by passing over the actual family springing
from the marriage, and by absorbing all its members, in the original family of which the two
brothers were members; by passing over all actual usages, customs and ways of living; and
by supposing, contrary to fact, the prevalence of Hindoo customs, which had been
deliberately abandoned. Their Lordships, therefore, are of opinion, that the undivided family
on which the Defendant relies in his answer did not exist in any sense, which is material to or
assists the decision of the case.
There being then, in their Lordships' opinion, no such undivided family, and the case not
being, in their judgment, governed by the Hindoo law, it is unnecessary to discuss the opinion
given by the Pundits upon the operation of that law, or to enter into the question, so much
discussed at the Bar, whether the late Matthew Abraham's acquisitions ought, or ought not,
according to that law, to have, been deemed to be his separate estate. It is sufficient, with
reference to the opinion of the Pundits, to say, that the case stated for their opinion proceeds
upon an assumption which, in their Lordships' judgment, was not warranted by the facts.

Their Lord- 9 Moore Indian Appeals 250, 19 ER p735 ships, however, think it right to add,
for the guidance of the Courts in India in future cases, that whenever the opinion of Pundits is
required, and there are any special-circumstances which may bear upon the question to be
submitted for their opinion, those [9-Moore Indian Appeals-250] special circumstances ought
to be set forth in the case submitted to them. Their Lordships make this observation with
reference, to the broad and general statements contained in the case which, in this instance,
was laid before the Pundits; " that the brothers lived together, and that the eldest acquired
some property," unaccompanied as those statements were by any specification of the mode in
which, and the circumstances under which, the brothers so lived, and the property was, so

21
acquired - circumstances which, to say the least, were important to be, considered in forming
an opinion upon the point submitted for consideration.
Having thus considered the case so far as respects the law to be applied in determining it,
their Lordships will now proceed to consider how the case stands upon the evidence with
reference to the point whether the Defendant was entitled to share in the property in question
by agreement, or consent amounting to agreement, between him and the late Matthew
Abraham; a point which, though not distinctly pleaded on the part of the Respondent, must,
as their Lordships, think, upon a fair view of all the pleadings in the case, be considered to be
open.
In considering the weight of the evidence upon this point, the first thing to be determined is
upon whom does the burthen of proof rest? Their Lordships are of opinion, that it lies on the
Defendant.
It must be so, even under the Hindoo law, as the nucleus of acquired property was in this case
separate, unaided acquisition, unaided either by funds or labour of the claimant. Their
Lordships do not propose to enter into a minute examination and consideration in detail of
every part of the evidence relied upon, nor [9-Moore Indian Appeals-251] of every
observation made and argument urged upon it by either side: that course would extend their
observations to an unnecessary and unprofitable length.
They propose to deal with the presumptions insisted on, on either side, as arising from the
conduct of the parties, and to contrast and weigh those presumptions. The case was rightly
stated by Mr. Mackeson to be, not a one sided one; on the contrary, it presents evidence
embarrassing to deal with, both in the conflict of positive testimony and of opposing
presumptions. For the Appellants, the presumptions from conduct principally relied on are
those which arise from what appears upon the evidence as to the following matters; first, the
habits of life of the families both of Matthew Abraham and the Respondent, as inconsistent
with the nature of the existence of an undivided Hindoo, family, Hindoos by origin, but not
Hindoos by religion. Secondly, the establishment by Matthew Abraham of a business under
his sole name; his introduction into it of his brother and Richardson as partners with himself;
his formal public notification of that fact to the world by a notice stating that he had
introduced them into his firm; the payment of rent for the shop, both during the continuance
of that firm and by the succeeding firm, which then consisted of himself and his brother only;
and the consistency of that payment with the joint property in the building and premises.
Thirdly, the signatures on several occasions of Francis Abraham as agent; his dissatisfaction
with the business at Kurnoul; and his language regarding it as inconsistent with a joint
ownership and-corresponding voice. Fourthly, after the death of Matthew Abraham, the
inconsistency of the Defendant's whole conduct [9-Moore Indian Appeals-252] for a time,
with any notion in his mind that he had a joint legal interest in the whole property of the
family. Much stress was laid on the inconsistency of the statements in the Respondent's letter
to Charles Henry Abraham, of the 19th of August, 1842, in which, giving an account of all
the property of Matthew Abraham, he states that, it was in the bracketed item or items alone
he had a half share, the item or items, So bracketed not including the distillery, which is
afterwards mentioned as a part of the property of Matthew Abraham; on the Respondent's
fears expressed in the same letter of being left to seek his fortune; on his expression that he
had hoped that his brother would have provided for him; and on the request to Charles Henry
Abraham, to intercede with his mother to carry out the presumed intentions of his father.
Fifthly, the treatment by the Defendant of Mrs. Charlotte Abraham, as the head of the family;
the inconsistency of that treatment with her condition of a widow in a family adopting or
retaining Hindoo customs and law in part and by choice; the administration taken out in her
name; and his taking a power of attorney from her.

22
9 Moore Indian Appeals 253, 19 ER p736 These were treated as inconsistent with the
Respondent's position in the family on his hypothesis.
On the other side, the nature of the original family to which the Defendant and his brother
belonged; the customs of the Christian class within which that family was included; and the
ordinary enjoyment of their property by such families according to the customs of their
Hindoo progenitors, were relied on to show that the family dealt with the property, as an
undivided one.
The dealings of the Defendant in the management [9-Moore Indian Appeals-253] of his
brother's affairs; the absence of any satisfactory proof that he had received any salary or
emolument as agent or clerk; the consistency of all that he did with the ordinary course of
dealing in an undivided Hindoo family; the presumed continuance of a state proved to have
existed ana not in terms proved to have been interrupted; the execution of the bonds and
conveyances referred to in the Respondent's case; and the inconsistency of those instruments
with the ordinary dealing of a mere clerk or agent,- were pressed with much force on the
attention of their Lordships. The statement of ownership in Francis Abraham contained in his
mortgage deed, and the admissions derived from the acts of the third Plaintiff, Daniel Vincent
Abraham, in the suits and proceedings relating to the Kurnoul affairs, also referred to in the
case of the Respondents, were urged as additional grounds in support of the case of the
Defendant, which it was, argued the language, of a large portion of the correspondences
strengthened.
Their Lordships will first consider the evidence on these points, and the presumptions to be
drawn from it with reference to the Hindoo, law. In this point of view much, if not the whole,
of what is urged on the part of the Respondent as to the nature of the original family to which
he and Matthew Abraham belonged, and as to the dealings of such families, is sufficiently
answered by what has been already said as to the right of Matthew Abraham to change, and
as to the fact of his having changed, the class of Christians to which he was attached. As to
the absence of proof that the Respondent received any salary or emolument as agent or clerk,
independently of the absence and destruction of books and accounts, which cannot [9-Moore
Indian Appeals-254] but weigh heavily against the Respondent, it is to be observed that there
is an equal absence of proof that the Respondent ever received any share of profits as,
parceners The arguments from the dealings of the brothers, so forcibly urged by Sir Hugh
Cairns, are certainly as forcible to prove an ordinary partnership as to prove that kind of
parcenary which obtains under the Hindoo law. These brothers, when they established a
partnership in the shop, established arid maintained it on the ordinary commercial basis in
shares, as well when they were the only partners as when Richardson was associated with
them. On what ground, then, should a. Court conclude, if it thought that a conjoint interest
existed in the Abkarry contract, that it was founded on Hindoo family union, rather than on
the model of the shop business? This presumption could only be made by assuming the
Hindoo law to govern the case.
As to the bonds and conveyances, it is to be observed, that these instrument, are wholly
unexplained by the evidence, and that the fact of the Appellant, Charlotte Abraham, having
been made a party to some on one of them, renders it very difficult to deduce from any of
them the inference for which the Respondent has contended; but, what is perhaps, of still
greater importance is this that there is no proof of the application of any of the moneys raised
by these instruments to any other purposes than the purposes of the shop, and that the
Respondent by his answer refers to these moneys having been raised for the purposes of the
shop business. With respect to the correspondence, their Lordships feel no doubt as to the
conclusion to be drawn from it. After carefully [9-Moore Indian Appeals-255]
perusing it, they have been unable to find anything at variance with the statement contained
in the letter of the 19th of August, 1842, to which they have above referred. They find much,

23
both in the correspondence and in the other documents, in proof in the cause which tends to
confirm what is stated in that letter.
The Respondent, by that letter insists on no right. He merely suggests a similar remuneration
to that which he had hoped to receive by way of testamentary gift from his deceased brother.
Their Lordships are totally unable to reconcile this letter with the existence of the right since
insisted on. After giving due weight 9 Moore Indian Appeals 256, 19 ER p737
to the arguments on both sides on its construction and meaning, they are unable to adopt that
reading of it on which the Counsel for the Respondent have insisted. That construction is not,
in their opinion, consistent with either the spirit of the composition, viewed as a whole, or
with its language.
Then as to the admission contended to have been made by the Appellant, Daniel Vincent
Abraham. Neither the Appellant, Charlotte Abraham, nor the late Plaintiff, Charles Henry
Abraham, is in any way proved to have been privy to or cognizant of, this admission; the late
Plaintiff, Charles Henry Abraham, was absent in England at the time, and he never in any
way adopted it. It is no doubt, evidence against all the Plaintiff s, but, in their Lordships'
opinion, undue weight has been ascribed to it in the judgment of the Sudder Court. Whence,
had this young man of nineteen his knowledge that the family was undivided? It is a mixed
and complex proposition of fact and law; and it supposes a status concerning which the
Respondent himself seems to have been [9-Moore Indian Appeals-256] long uncertain. Had
be so understood his position at the time when he wrote, the letter of the 19th of August,
1842; had he then considered that he was a half sharer in the whole property, he) could
scarcely have expressed himself as he did in that letter. Yet to this admission of a. youth,
ignorant alike of law and business, a binding effect is given against all the Plaintiffs on the
record.
Their Lordships are not prepared to follow the Sudder Court in the weight which they have
given to this admission. Looking at the whole case, with reference to the Hindoo, law, they
are of opinion, that the claim of the Respondent to a share of the property in dispute by virtue
of that law cannot be supported, and they are not less satisfied that if the case be looked at
with reference to the English law-a point of view, however, which, so fax as the Respondent
is concerned, seems to them to be excluded by the pleadings in the cause, the evidence on the
part of the Respondent is insufficient, when weighed against the evidence on the other side,
to establish a partnership according to that law.
Their Lordships, therefore, have come to the conclusion, that the decree of the Sudder Court
cannot be maintained; but, on the other hand, they are not prepared to go, to the full length to
which the Judge of the Civil Court of Bellary has gone, by his decree. The Respondent no
doubt stood in a fiduciary position; though he may have been unconscious of the duty arising
from his acts, he had, in effect, attorned to the Appellant, Charlotte Abraham, by accepting a
power of attorney from her. That character, and the acquisitions under it, should have, been
renounced before the Respondent asserted an interest adverse to that of his constituent; such
[9-Moore Indian Appeals-257] an assertion in one acting as agent is not prohibited on
grounds of policy alone. It is in itself an unconscientious breach of duty to a principal. The
Letters of administration were, indeed, taken out for a special object only; they were not
strictly necessary, a certificate, would have sufficed. But they were not of a limited character.
There were assets in the local jurisdiction, and all parties concerned in interest were either
consenting to or subsequently ratified, the authority delegated by the letters of administration.
The administration related back to the death of Matthew Abraham; the possession of the
whole property, therefore, from the time of his death must be ascribed to the first Plaintiff, as
the Defendant acting under his power could not claim adversely.
Their Lordships are by no means disposed to infringe upon the wise, and salutary rules which

24
have been laid down as to the conduct of persons standing in confidential positions; but, on
the other hand, they entirely agree with the Sudder Dewanny Adawlut in their estimate of the
value of the Respondent's services. The property in the Abkarry contract way, by reason of its
special character, be said to have been in a great degree preserved to the family by him. The
evidence shows that none of the Plaintiffs were competent to the management of the concern.
In all probability, but for the Respondent, the contract would have been lost to the family. It
is represented to have been the chief source of their income. It differs materially from an
ordinary trading partnership. The selection of the contractor is influenced by considerations
which might probably have caused the Respondent to be named as the successor to his
brother in the contract. The relationship of the [9-Moore Indian Appeals- 258] Respondent to
the family, the devotion of his time and labour to the augmentation of its wealth, the creation,
as it were, of the profits of the Abkarry business, establish a great difference between this and
the case of any ordinary agency.
9 Moore Indian Appeals 259, 19 ER p738
In ordinary cases and under ordinary circumstances these services on the part of the
Respondent would, no doubt, be sufficiently compensated by the provision in that behalf
contained in the decree of the Civil Court, but in this case, their Lordships find it proved by
the Plaintiff's first witness, that the Respondent on Matthew Abraham's death declared to him
that he had worked like a slave in the Abkarry business, and was merely paid for his labour;
but that for the future he would not do so unless he received an equal share with the others,
meaning his brother's widow and two sons; and the witness says that he soon afterwards
mentioned this conversation to the widow. If the widow dissented from this view, she ought,
as their Lordships think, to have communicated such dissent to the Respondent, but she never
did so. After her having so long availed herself of the Respondent's services, which she knew
to be rendered on the faith of his receiving one-half the profits as a remuneration for those
services, she and the other parties interested in the estate could not, in their Lordships'
opinion, be justly entitled to dispute the right of the Respondent to be remunerated to that
extent. Their Lordships, therefore, think, that it ought to have been declared by the decree
that the Respondent was entitled to an equal share of the profits of the Abkarry contract
accrued after the death of Matthew Abraham as a remuneration for his services in the
execution of that contract. Their Lordships [9-Moore Indian Appeals-259] think also that,
having regard to the evidence to which they have last alluded, and to the Respondent having
been permitted for so many years to carry on the Abkarry contracts without any dissent
having been expressed to the terms stipulated for by him, the decree of the Civil Court has
not dealt properly with the question of costs. They are of opinion that, under the
circumstances of the case, the costs, up to the hearing, ought not to have been given against
the Respondent by the decree, but ought to have been reserved until the accounts were taken.
The benefit which may result to the estate may form a material ingredient in considering what
ought ultimately to be done as to the costs, and the mode in which the Respondent may
account under the decree may also influence that question. The decree of the Civil Court
having thus, in their Lordships' opinion, gone too far, their Lordships think that there should
be no costs of the appeal to the Sudder Court or of this appeal.

Supreme Court of India

Mr. 'X' vs Hospital 'Z' on 21 September, 1998

Bench: S. Saghir Ahmad, B.N. Kirpal

25
 CASE NO.:
Appeal (civil) 4641 of 1998
PETITIONER:
MR. 'X'

RESPONDENT:
HOSPITAL 'Z'

DATE OF JUDGMENT: 21/09/1998

BENCH:
S. SAGHIR AHMAD & B.N. KIRPAL

JUDGMENT:

JUDGMENT 1998 Supp(1) SCR 723 The Judgment of the Court Was delivered by SAGHIR
AHMAD, J. Infringement of 'Suspended Right to marry' cannot be legally compensated by
damages either in Torts or common law, is our answer to the problem raised in this appeal
which is based on the peculiar facts of its own.

The appellant; after obtaining the Degree of MBBS in 1987 from Jawaharlal Institute of Post
Graduate Medical Education and Research. Chandigarh, completed his internship and junior
residence at the same college. In June, 1990 he joined the Nagaland State Medical and Health
Service as Assistant Surgeon Grade-I.

Thereafter, the appellant joined the MD Pharmacology Course though he continued in the
Nagaland State Service on .the condition that he would resume his duties after completing the
MD Course. In September, 1991 the appellant joined the further Course of Diploma in
Opthamalogy which completed in April, 1993, In August, 1993 he resumed his duties in the
Nagaland State Health Service as Assistant Surgeon Grade-I.

One Itokhu Yepthomi who was ailing from a disease which was provisionally diagnosed as
Aortic Anuerisrn was advised to go to the 'Z' Hospital at Madras and the appellant was
directed by the Government of Nagaland to accompany the said patient to Madras for
treatment. For the treatment of the above disease, Itokhu Yepthomi was posted for surgery on
May 31, 1995 which, however, was cancelled due to shortage of blood. On June 1, 1995 the
appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate
blood for the latter. Their blood samples Were taken and the result showed that the appellant's
blood group was A(+ve). On the next date, namely, on June 2, 1995, Itokhu Yepthomi was
operated for Aortic Anuerism and remained in the Hospital till 10th June, 1995 when he was
discharged.

In August, 1995 the appellant proposed marriage to one Ms, 'Y' which was accepted and the
marriage was proposed to be held on December 12, 1995. But the marriage was called off on
the ground of blood test conducted at the respondent's hospital in which the appellant was
found to be HIV(+). The appellant went again to the respondent's hospital at Madras where
several tests were conducted and he was found to be HIV (+), Since the marriage had been
settled but was subsequently called off, several people including members of the appellant's
family and persons belonging to his community became aware of the appellant's HlV(+)
status: This resulted in severe criticism of the appellant and he was, ostracized by the

26
community. The appellant left Kohima (Nagaland) around November 26, 1995 and started
working and residing at Madras.

The appellant then approached the National Consumer Disputes Redressal Commission for
damages against the respondent, on the ground that the information which was required to be
kept secret under Medical ethics was disclosed illegally and, therefore, the respondent was
liable to pay damages. The Commission dismissed the Petition as also the application for
interim relief summarily by order dated 3rd July, 1998 on the ground that the appellant may
seek his remedy in the. civil Court.

Learned counsel for the appellant has vehemently contended that the principle of" "duty of
care" as applicable to persons in medical profession. includes the duty to maintain
confidentiality and since this duty was violated by the respondents, they are liable in damages
to the appellant.

Duty to maintain confidentiality has its origin in the Hippocratic Oath, which is an ethical
code attributed to the ancient Greek physician Hippocrates, adopted as a guide to conduct by
the medical profession throughout the ages and still used in the graduation ceremonies of
many medical schools and colleges: Hippocrates lived and practised as a Physician between
third and first Century B.C. He has been referred to by Plato as a famous Ascleplad who had
philosophical approach to medicine. His manuscripts, the Hippocratic Collection (Corpus
Hippocracticum), contained the Hippocractie Oath which is reproduced below :

"I swear by Apollo the physician and Aesculapius and health and all-heal and all the gods and
goddesses that according to my ability arid judgment I will keep this path and this stipulation
- to reckon him who taught me this art equally dear to me as my parents, to Share my
substance with and relieve his necessities if required, to look upon his offspring in the same
footing as my own brothers and to teach them this art if they shall wish to learn it without fee
or stipulation and that by precept, lecture, and every other mode of instruction I will impart a
knowledge of the art to my own sons and those of my teachers and to disciples bound by a
stipulation and oath according to the law of medicine but to none others. 1 will follow that
system of regimen which, according to my ability and judgment, I consider for the benefit of
my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly
medicine to any one if asked nor suggest any such counsel, and in like manner I will not give
to a woman a pessary to produce abortion. With purity and with holiness I will pass my life
and practice my art, I will not cut persons laboring under the stone but will leave this to be
done by men who are practitioners of this work, Into whatever houses I enter, I will go into
them for the benefit of the sick and will abstain from every voluntary act of mischief and
corruption, and further, from the seduction of females or males, of freeman and slaves,
whatever in connection with rny professional practice, or not in connection with it, I see or
hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as
reckoning that all such should be kept secret. While I continue to keep this oath unviolated,
may it be granted to me to enjoy life and the practice of the art, respected by all men, in all
times, but should I trespass and violate this oath, may the reverse be my lot."

The Hippocractic Oath consists of two parts. The first, or covenant; is the solemn agreement
concerning the relationship of apprentice to" teacher and the obligations enjoined on the
pupil. The second part constitutes the ethical code.

27
It is on the basis of the above that International Code of Medical Ethics has laid down as
under :

"A physician shall preserve absolute confidentiality on all he knows about his patient even
after his patient has died."

Here, in this country, there is the Indian Medical Council Act, which controls the medical
education and regulates the professional conduct.

Section 20A which was inserted by the Indian Medical Council (Amendment) Act 1964
provides as under :

"Professional Conduct :

(1) The Council may prescribe the standards of professional con-duct and etiquette and a
code of ethics for medical practitioners, (2) Regulations made by the Council under sub-
section (1) may specify which violations thereof shall constitute infamous conduct in any
professional respect, that it is to say, professional misconduct, and such provision shall have
effect notwithstanding anything Contained in any law for the time being in' force."

At the same time, that is, by the same Amending Act; clause (m) was also introduced in
Section 33 and this clause provides as under :

"33. Power to make regulations -

The Council may, with the previous sanction of the Central Government, make regulations
generally to carry out the purposes of this Act, and, without prejudice to the generality of this
power, such regulations may provide for

(a) xxx xxx xxx

(m) the standards of professional conduct and etiquette and code of ethics to be observed by
medical practitioners,"

It is under these provisions that the Code of Medical Ethics has been made by the Indian
Medical Council which, inter alia, provides as under :

"Do not disclose the secrets of a patient that have been learnt in the exercise of your
profession. Those may be disclosed only in a Court of Law under orders of the presiding
judge,"

It is true that in the doctor-patient relationship, the most important aspect is the doctor's duty
of maintaining secrecy. A doctor cannot disclose to a person any information regarding his
patient which he has gathered in the course of treatment nor can the doctor disclose to anyone
else the mode of treatment or the advice given by him to the patient.

It is contended that the doctor's duty to maintain secrecy has a corelative right vested in the
patient that whatever has come to the knowledge of the Doctor would not be divulged and it
is this right which is being enforced through these proceedings.

28
It is the basic principle of Jurisprudence that every Right has a co- relative Duty and every
Duty has a co-relative Right. But the rule is not absolute. It is subject to certain exceptions in
the sense that a person may have a Right but there may not be co- relative Duty. The instant
case, as we shall presently see, falls within the exceptions.

'RIGHT is an interest recognised arid protected by moral or legal rules. It is an interest the
violation of which would be a legal wrong. Respect for such interest would be a legal duty.
That is how Salmond has defined the "Right". In order, therefore, that an interest becomes the
subject of a legal right, it has to have not merely legal protection but also legal recognition,
the elements of a "LEGAL RIGHT" are that the 'right' is vested in a person and is available
against a person who is under a corresponding obligation and duty to respect that right and
has to act or forbear from acting in a manner so as to prevent the violation of the right, If,
therefore, there is & legal right vested in a .person, the latter can seek its protection against a
person who is bound by a corresponding duty not to violate that right.

Hippocratic Oath as such is not enforceable in a court of law as it has no statutory force.

Medical information about a person is protected by the Code of Professional Conduct made
by the Medical Council of India under Section 33(m) read with Section 20A of the Act. The
relevant provisions of the Code of Medical Ethics have already been reproduced above which
contain an exception to the general rule of confidentiality, inasmuch as it provides that the
information may be disclosed in a court of law under the orders of the Presiding Judge. This
is also the law in England where it is provided that the exceptions; to this rule permit:
disclosure with the consent, or in the best interests, of the patient, in compliance with a court
order or other legally enforceable duty and, in very limited circumstances, where the public
interest so requires. Circumstances in which the public interest would override the duty of
confidentiality could, for example, be the investigation and prosecution of serious crime or
where there is an immediate or future (but not a past and remote) health risk to others.

The General Medical Council of Great Britain in its guidance on HIV infection and
AIDS has provided as under :

"When diagnosis has been made by a specialist and the patient after appropriate counselling,
still refuses permission for the General Practitioner to be informed of the result, that request
for privacy should be respected. The only exception would be when failure to disclose would
put the health of the health- care team at serious risk. All people receiving such information
much consider themselves to be under the same obligations of confidentiality as the doctor
principally responsible for the patient's care. Occasionally the doctor may wish to disclose a
diagnosis to a third party other than a health-care professional. The Council think that the
only grounds for this are when there is a serious and identifiable, risk to a specific person.
who, if not so informed would be exposed to infection..,.. A doctor may consider it a duty to
ensure that any sexual partner is informed regardless of the patient's own wishes.

(Emphasis supplied).

Thus, the Code of Medical Ethics also carves out an exception to the rule of confidentiality
and permits the disclosure. in the circumstances enumerated above under which public
interest, would override. the duty of confidentiality, particularly where there, is an immediate
or future health risk to others, The argument .of the learned counsel for the appellant,
therefore, that the respondents were under a duty to, maintain confidentiality on account, of

29
the Code of Medical Ethics. formulated by the Indian Medical Council cannot be accepted as
the proposed rnarriage carried with it the health risk to an identifiable person who had to be
protected from being infected with the communicable disease from which the appellant
suffered, The right to confidentiality, if any. vested in the appellant was not enforceable in the
present situation.

Learned counsel for the appellant then contended that the appellant's right of privacy has been
infringed by the respondents by disclosing the appellant was HIV(+) and, therefore, they are
liable in damages. Let us examine this contention..

Right to privacy has been culled out of the provisions of Article 21 arid other provisions of
the Constitution relating to Fundamental Rights read with Directive Principles of State
Policy. It was in this context that it was held by this Court in Kharuk Singh v.. Stale of Uttar
Pradesh, AIR ( 1963) SC 1295 that police surveillance of a person by domicilliary visits
would be violative of. Article 21 of the Constitution, This decision was considered by
Mathew, J. in his classic judgment in Gobind v. State of Madhya Pradesh & Anr., [1975] 2
SGC 148, in which the origin of "right to privacy" was traced and a number of American
decisions, including Munn v.. Illinois, (1877) 94 US 113; Wolf v. Colorado, (1949) 338 US
25 and various Articles were considered arid it was laid down ultimately, as under :

"Depending on the character and antecedents of the person subjected to surveillance as also
the objects and the limitation under which surveillance is made, it cannot be said surveillance
by domicilliary visits would always be unreasonable restriction upon the right of privacy.
Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones
and that the right to privacy is itself a fundamental right, that fundamental right must be
subject to restriction on the basis of compelling public interest."

Kharak Singh v. State of Punjab and Gobind v, State of Madhya Pradesh (supra) came to be
considered again by this Court in Malak Singh & Ors v. State of Punjab & Ors., [1981] 1
SCC 420 and the view taken earlier on the right of privacy was reiterated.

In another classic judgment rendered by Jeevan Reddy, J., in R. Rajagopal @ RR Gopal &
Anr. v. State of Tamil Nadu & Ors., [1994] 6 SCC 632, the right of privacy vis-a-vis the tight
of the Press under Article 19 of the Constitution were considered and in the research-oriented
judgment, it Was laid down, inter alia, as under :

"The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a "right to be let alone:" A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. None can publish anything concerning the above matters
without his consent - whether truthful of otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. Position may, however; be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy,"

In an American decision, Jane Roe v. Henry Wade, 410 US 113, the Supreme Court of
United States said that : "Although the Constitution of the U.S.A. does not explicitly men-
tion any right of privacy, the United States Supreme Court recognizes that a right of personal
privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution,
and that the roots of that right may be found in the First Amendment, in the Fourth and Fifth

30
Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, and in the
concept of liberty guaranteed by the first section of the Fourteenth Amendment and that the
"right to privacy is not absolute."

Reference may, at this stage, be made to Article 8 of the European Convention on Human
Right which defines this right us follows,:

"(1) Every one has the. right to respect for his private and family life, his home and his
correspondence. (2) There shall be no interference by a public authority With the exercise of
this right except such as is in accordance with the law and is necessary in democratic society
in the interests of national security, public safety or the economic well being of the country,
for the prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others."

(Emphasis supplied).

As one of the basic Human Rights, the right of privacy is not treated as absolute and is
subject to such action as may be lawfully taken for the prevention of Crime or disorder or
protection of health or morals or protection of rights and freedoms of others.

Right of Privacy may, apart from contract, also arise out of a particular specific relationship
which may be commercial, matrimonial, or even political. As already discussed above,
Doctor-patient relationship, though basically commercial, is, professionally, a matter of
confidence: and, there-fore, Doctors are morally and ethically bound to maintain
confidentiality. In such a situation, public disclosure of even true private facts may amount to
an invasion of the Right of Privacy which may sometimes lead to the clash of one person's
"right to be let alone" with another person's right to be informed. Disclosure of even true
private facts has the tenancy to disturb a person's tranquility. It may generate many
complexes in him and may even lead to psychological problems. He may, thereafter, have a
disturbed life all through. In the face of these potentialities and as already held by this Court
in its various decisions referred to above, the Right of Privacy is an essential component of
right to life envisaged by Article .21, The 'right, however, is not absolute and may be lawfully
restricted for the prevention of crime, disorder or protection of health or morals or protection
of rights and freedom of others.

Having regard to the fact that the appellant was found to be HIV(+); its disclosure would not
be violative of either the rule of confidentiality or the appellant's Right of Privacy as Ms. 'Y'
with whom the appellant was likely to be married was saved in time by such disclosure, or
else, she too would have been infected with the dreadful disease if marriage had taken place
and consummated.

We may now examine the right based on confidentiality in the context of marriage.

Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It
has to be mental, psychological and physical Union. When two souls thus unite, a new soul
comes into existence. That is how, the life goes on and on on this planet.

Mental and physical health is-of prime importance in a marriage, as one of the objects of the
marriage is the procreation of equally healthy children. That is why, in every system of
matrimonial law, it has been provided that if a person was found to be suffering from any,

31
including venereal disease, in a communicable form, it will be open to the other partner in the
marriage to seek divorce.

Reference, for instance, may be made to Section 13(i)(v) of the Hindu Marriage Act, 1955
which provides as under :

"13(1) Any marriage solemnized, whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party

(i) xxx xxx xxx

(v) HAS BEEN SUFFERING FROM VENEREAL DISEASE IN A COMMUNICABLE

FORM.

So also Section 2 of the Dissolution of Muslim Marriages Act, 1939 sets but that if the
husband is suffering: from a virulent venereal disease, a Woman marriage under Muslim Law
to such person shall be entitled to obtain a decree for dissolution of her marriage.

Under the Parsi Marriage and Divorce Act, 1936, one of the grounds for divorce set Out in
Section 32 is that the defendant has, since the marriage, infected the plaintiff with venereal
disease.

Under the Indian Divorce Act, 1869, the grounds for dissolution of a marriage have been set
out in Section 10 which provides that a wife may petition for dissolution if her husband was
guilty of incestuous adultery, bigamy with adultery or of rape, sodomy or bestiality,

Under Section 27 of the Special Marriage Act, the party to a marriage has been given the
right to obtain divorce if the other party to whom he or she was married was suffering front
venereal disease in a communicable form.

The emphasis, therefore, in practically all systems of marriage is on a healthy body with
moral ethics. Once the law provides the "venereal disease" as a ground for divorce to either
husband or wife, such a person who was suffering from that disease, even prior to the
marriage cannot be said to have any right to marry so long as he is not fully cured of the
disease. If the disease, with which he was suffering, would constitute a valid ground for
divorce, was concealed by him and he entered into marital ties with a woman who did not
know that the person with whom she was being married was suffering from a virulent
venereal disease, that person must be injuncted from entering into marital ties so as to prevent
him from spoiling the health and, consequently, the life of an innocent woman.

The contention of the learned counsel that every young man or, for that matter, a woman, has
a right to marry cannot be accepted in the absolute terms in Which it is being contended.
Having regard to the age and the biological needs, a person may have a right to marry but this
right is not without a duty, If that person is suffering from any communicable Venereal
disease or is impotent so that marriage would be a complete failure or that his wife would
seek divorce from him on that ground, that person is under a moral, as also legal duty, to
inform the woman with whom the marriage is proposed that he was not physically healthy
and that he was suffering from a disease which was likely to be communicated to her. In this
situation, the right to marry and duty to inform about his ailment are vested in the same

32
person. It is a right in respect of which a corresponding duty cannot be claimed as against
some other person. Such a right, for these reasons also, would be an exception to the general
rule that every "RIGHT" has a corelative "Duty". Moreover, so long as the person is not
Cured of the communicable venereal disease or impotency, the RIGHT to marry cannot be
enforced through a court of law and shall be treated to be a "SUSPENDED RIGHT".

There is yet another aspect of the matter.

Sections 269 and 270 of the Indian Penal Code provide as under :

"269. Negligent act likely to spread infection of disease dangerous to life

- Whoever unlawfully or negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be
punished with imprisonment of either description or a term which may extend to six months,
or with fine, or with both.

270. Malignant act likely to spread infection of disease dangerous to life

- Whoever malignantly does any act which is, and which he knows or has reason to believe to
be, likely to spread the infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both."

These two Sections spell out two separate and distinct offences by providing that if a person,
negligently or unlawfully, does an act which he knew was likely to spread the infection of a
disease, dangerous to life, :to another person, then the former would be guilty of an offence,
punishable with imprisonment for the term indicated therein. Therefore, if a person suffering
from the dreadful disease "AIDS", knowingly marries a woman and thereby transmits
infection to that woman, he would be guilty of offences indicated in Sections 269 and 270 of
the Indian Penal Code. The above statutory provisions thus impose a duty upon the appellant
not to marry as the marriage would have the effect of spreading the infection of his own
disease, which obviously is dangerous to life, to the woman whom he marries apart from
being an offence.

Can the appellant, in the face of these statutory provisions, contend that the respondents, in
this situation, should have maintained strict secrecy. We are afraid, respondent's silence
would have made them participient criminis.

Ms. 'Y', with whom the marriage of the appellant was settled, was saved in time by the
disclosure of the vital information that the appellant was HIV(+). The disease which is
communicable would have been positively communicated to her immediately on the
consummation of marriage. As a human being, Ms. 'Y' must also enjoy, as she, obviously, is
entitled to, all the Human Rights available to any other human being. This is apart from, and,
in addition to, the Fundamental Rights available to her under Article 21, which, as we have
seen, guarantees "Right to Life" to every citizen of this country. This right would positively
include the right to be told that a person, with whom she was proposed to be married, was the
victim of a deadly disease, which was sexually communicable. Since "Right to Life" includes
right to lead a healthy life so as to enjoy all faculties of the human body in their prime
condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said

33
to have, in any way, either violated the rule of confidentiality or the right of privacy.
Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely,
the appellant's right to privacy as part of right to life and Ms. 'Y's right to lead a healthy life
which is her Fundamental Right under Article 21, the RIGHT which would advance the
public morality or public interest, would alone be enforced through the process of Court, for
the reason that moral considerations cannot be kept at bay and the judges are not expected to
sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, "in
the sense that they must keep their fingers firmly upon the pulse of the accepted morality of
the day" (See : Legal Duties : Allen) "AIDS" is the product of indisciplined sexual impulse.
This impulse, being the notorious human failing if not disciplined, cart afflict and overtake
anyone how high soever or, for that matter, how low he may be in the social strata. The
patients suffering from the dreadful disease "AIDS'1 deserve full sympathy. They are entitled
to all respects as human beings. Their society cannot, and should not be avoided, which
otherwise, would have bad psychological impact upon them. They have to have their
avocation- Government jobs or service cannot be denied to them as has been laid down in
some American decisions. (See-.School Board of Nassau Country, Florida v. Airline, (1987)
107 S. Ct. 1123; Chalk v, USDC CD of Col., 9th Circuit (1988) 840 2 F. 2d 701;
Shuttleworth v, Broward Cty., SDA Fla. (1986) 639 F. Supp. 654; Raytheon v. Fair
Employment and Housing Commission, Estate of Chadbourne, (1989) 261 Cal. -Reporter
197. But, "sex" with them or possibility thereof has to be avoided as otherwise they would
infect and communicate the dreadful disease to others. The Court cannot assist that person to
achieve that object.

For the reasons stated above, the appeal is without merits and is, consequently, dismissed.

Supreme Court of India

Mr. "X" vs Hospital "Z" on 10 December, 2002

Author: R Babu
Bench: S. Rajendra Babu, P. Venkatarama Reddi, Arun Kumar.
CASE NO.:
Appeal (civil) 4641 of 1998

PETITIONER:
Mr. "X"

RESPONDENT:
Hospital "Z"

DATE OF JUDGMENT: 10/12/2002

BENCH:
S. RAJENDRA BABU, P. VENKATARAMA REDDI & ARUN KUMAR.

JUDGMENT:
J U D G M E N T RAJENDRA BABU, J. :
Civil Appeal No. 4641 of 1998 arose out of an order made by the National Consumer
Disputes Redressal Commission (for short 'the Commission') dismissing a petition and also

34
an application for interim relief summarily by an order made on 3.7.1998 on the ground that
the appellant should seek his remedy in a civil court.
The case that arose for consideration before this Court, in brief, is as follows.
The appellant completed his studies leading to Degree of MBBS from Jawaharlal Institute of
Post Graduate Medical Education and Research, Chandigarh in the year 1988. In June 1990
he joined the Nagaland State Medical and Health Service as Assistant Surgeon Grade-I and
thereafter he was selected for admission to MD Pharmacology. However, he was continued in
service on the condition that he would join his duties after completing his studies. Later on,
he was given admission in Diploma in Opthamalogy in September 1991 and he completed
that course in April 1993 and rejoined his service in the Nagaland State as Assistant Surgeon
Grade-I as Junior Specialist. He was deputed to accompany his uncle who was a Minister of
Transport and Communication to the respondent hospital at Chennai and who was diagnosed
as suffering from Aortic Anuerism. As the patient was anaemic, the surgery was postponed.
The appellant and his driver offered to donate blood and blood samples of the appellant were
sent for testing. In the meanwhile, the patient was operated upon for Aortic Anuerism and
was discharged from the hospital on 10.6.1995 and the appellant and his driver took him to
Dimapur. The appellant was engaged to be married which was scheduled to be held on
12.12.1995. The appellant, his fiancee and his mother-in-law left for Darjeeling and Kolkatta
to do some shopping and thereafter on 18.10.1995 they returned to Kohima. On 12.11.1995
the Minister of Transport and Communication called the appellant's brother-in-law and sister
to his residence and informed that the appellant's marriage was being called off; that the
appellant's blood was tested at hospital; that it was found to be HIV positive; that this
information had been furnished to him by a Doctor [who was impleaded as respondent No.
2]; that he had of his own accord re-confirmed the appellant's HIV status by personally
calling the respondent No. 2 and was informed by him of the same. Therefore, the marriage
of the appellant was called off on account of his HIV positive status by his brother-in-law.
Next day the appellant went to the hospital for further confirmation and it was confirmed that
he was HIV positive. The appellant tried to contact the Director of the Hospital to enquire
about the unauthorised disclosure by the hospital about his HIV status as he was unable to
obtain any information from the management regarding the said disclosure. As a result
thereof, he was forced to leave Kohima as several people including the appellant's own
family members and certain other members of the community were now aware of the
appellant's HIV positive status and he was socially ostracised. Aggrieved by the unauthorised
disclosure and on the basis that the hospital had a duty to maintain the confidentiality of
personal medical information of the appellant, he filed a petition before the Commission
seeking compensation from the respondents for breach of their duty to maintain
confidentiality and consequential discrimination, loss in earnings and social ostracism. For
interim relief an interlocutory application was also filed. In those circumstances, the
Commission dismissed the petition summarily and directed him to initiate civil proceeding
for an appropriate relief.
A Special Leave Petition was filed before this Court. This Court made an order on 21.9.1988
dismissing the said petition. However, in the course of the order several findings have been
given, particularly those relating to "suspended right to marry". In that proceeding, this court
heard only the appellant and there was no issue of notice to any other person nor this Court
had occasion to hear any of the persons representing the HIV or AIDS infected persons or
their rights, much less any of the Non Government Organisations which are doing work in the
field were heard. In those circumstances, a writ petition was filed under Article 32 of the
Constitution before this Court for setting aside the said judgment. However, in the
proceedings dated 7.2.2000 it was noted that prayer was deleted and the other prayer which
indirectly concerned the correctness of the judgment already passed was also deleted.

35
However, the petition was ordered to be treated as an application for clarification or
directions in the case already decided by this Court. In the course of the order it was observed
that :
"We direct the office shall not treat this as a writ petition filed under Article 32, but shall
register it separately as an IA for clarification/directions in C.A. No. 4641/1998.
Notice of this IA returnable within two weeks shall be issued to National Aids Control
Organisation, Union of India and Indian Medical Association which is already represented in
IA Nos. 2-3. Notice shall also go to Medical Council of India. Dasti service is permitted in
addition."
By an order dated 2.9.2001, it has been further directed that the I.As. should be listed before a
three Judge Bench.
In I.A. 2/1999 filed by the impleaded petitioner, the petitioner has raised the question whether
a person suffering from HIV (+) contracting marriage with a willing partner after disclosing
the factum of disease to that partner will be committing an offence within the meaning of
Section 269 and 270 IPC.
.
Sections 269 and 270 of the Indian Penal Code provide as under :
"269. Negligent act likely to spread infection of disease dangerous to life
- Whoever unlawfully or negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be
punished with imprisonment of either description or a term which may extend to six months,
or with fine, or with both.
270. Malignant act likely to spread infection of disease dangerous to life
- Whoever malignantly does any act which is, and which he knows or has reason to believe to
be, likely to spread the infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both."

The petitioner wants the Court to clarify that there is no bar for the marriage, if the healthy
spouse consents to marry in spite of being made aware of the fact that the other spouse is
suffering from the said disease. The various organisations to which the notice was issued
have also entered their appearance before this Court and filed plethora of material giving their
respective stands.. It is unnecessary to examine these matters in any detail, this Court had
rested its decision on the facts of the case that it was open to the hospital or the Doctor
concerned to reveal such information to persons related to the girl whom he intended to
marry and she had a right to know about the HIV positive status of the appellant.
In that view of the matter, we hold that the observations made by this Court, except to the
extent of holding as stated earlier that the appellant's right was not affected in any manner in
revealing his HIV positive status to the relatives of his fiancee, are uncalled for. We dispose
of these applications with these observations.

*389 The Collector of Madura v Moottoo Ramalinga Sathupathy

Anandai, alias Ranee Kunjara Nachear, and Mangalaswara Nachear v Ranee Parvata Vardani
Nachear, Moottoo Ramalinga Taver, and The Collector of Madura
Ranee Parvata Vardani Nachear v Anandai, alias Ranee Kunjara Nachear, and Mangalaswara
Nachear
Ct of Chancery
29 February 1868
(1868) XII Moore Indian Appeals 397

36
20 E.R. 389
1868
[397] [Feb. 26, 27, 28, 29, 1868.]
On Appeal from the High Court of Judicature at Madras.
According to the law prevalent in the Drávada Country, in the Madras Presidency, a
Hindoo Widow, not having her Husband's authority, may, if authorized by the consent of
his kinsmen, adopt a Son to him [12 Moo. Ind. App. 440].
What constitutes consent of the kinsmen must depend on the circumstances of the family.
In a joint family, where by the Hindoo law of the District the Widow has only a right to
maintenance, if she adopts a Son without her Husband's authority, it is necessary, if her
Husband's Father is alive, to obtain his permission, or if he is dead, the consent of all her
Husband's surviving Brothers; but where the Widow takes by inheritance the separate
estate of her Husband, then the consent of her Husband's nearest kinsmen is sufficient [12
Moo. Ind. App. 442].
Exposition of the effect of the doctrines of Hindoo Law contained in the Treatises, the
Mitàcsharà received in Southern India, the Mayucha and Koustubha in the Mahratta
Country, and the Daya-Bhaga in Bengal, as laid down by Commentators and received as
the governing law in India, regarding a Widow's right to adopt a Son to her Husband
without his express authority,[12 Moo. Ind. App. 435].
The ruling in the case of Veerapermall Pillay v. Narrain Pillay (1 Strange's Mad. Cases,
p. 121), that it is indispensable, that the Widow should have the authority of her Husband
to adopt, examined and questioned [12 Moo. Ind. App. 433].
The duty of a Judge administering Hindoo Law, is not so much to inquire, whether the
doctrine disputed is fairly deducible from the earliest authorities, as to ascertain whether it
is one that has been received by the particular School of Hindoo Law, which prevails in
the District in which the case arises with which he has to deal, and whether such doctrine
has been sanctioned by usage; as by the Hindoo system of law clear proof of usage will
outweigh the written opinion of text writers [12 Moo. Ind. App. 436].
The quantum of maintenance to be allowed a Widow is peculiarly within the province of
the Court below, and there must be strong grounds to justify any interference of the
appellate Court with the exercise of such discretion [12 Moo. Ind. App. 447].
In the Court below, sworn translations of Sanscrit works, little known, embodying *390
Hindoo Law, as to the custom in the different Schools in respect to the Law of adoption,
were admitted and acted on by the Courts in India. On special application, the Judicial
Committee ordered such translations to be sent by the Registrar of the High Court in
India, and to form part of the record, to be used on the hearing of the appeal [12 Moo.
Ind. App. 410].
These appeals were brought from a decree of the High Court, made in two suits, the one
brought by [398] the Appellants in the second of the above appeals, the Widow and
Daughter of Moottoo Vijaya Raganadha Sathupathy, a former Zemindar of Ramnad, to
establish their reversionary right to the zemindary of Ramnad against the first Respondent
in the same appeal, then in possession of the zemindary; to obtain an annual allowance of
Rs. 24,000 for maintenance, and to have declared null an adoption made by that
Respondent as unauthorized, and in prejudice of their reversionary rights. In which suit
the adopted Son, and the Collector of Madura were by order of the Provincial Court made
parties. The other suit was brought by the Respondent in the first of the above appeals, as
the adopted Son of Ranee Parvata Vardani Nachear, the first Respondent in the second
appeal, and the Collector of Madura, to establish [399] affirmatively the adoption made
by her, and to have declared illegal a declaration of the Collector, that on her death the
property would escheat to the Government.

37
In the former of these suits the Civil Judge made a decree declaring that the reversionary
right there claimed was not in the Plaintiffs, and ordered that the Zemindar in possession
should pay maintenance at the rate of Rs. 300 per month to the Widow, the first Plaintiff,
and Rs. 100 per month to her Daughter, the second Plaintiff; and in the latter suit the Civil
Judge decreed for the Respondent in the first appeal (the adopted Son), on the ground,
that the Zemindar, his adopted Mother, had a right to alienate during her life, and that the
Collector had no right to escheat the property of a person whom he admitted to have
heirs.
The Collector of Madura, a Defendant in both suits, and Ranee Kunjara Nachear and her
Daughter, the Plaintiffs in the first suit, both appealed to the High Court against the above
decrees of the Civil Judge. These appeals were heard together by the High Court, and on
the 17th of November, 1864, that Court passed decrees dismissing the two appeals,
subject to a modification, by granting a sum of Rs. 10,000 to Ranee Kunjara Nachear, the
first Plaintiff in the first of the suits above mentioned, for her maintenance. The appeals to
Her Majesty in Council were from these decrees, and were brought by various parties in
the suits, against [400] the decrees of the High Court. The Appellant in the first appeal
being the Collector of Madura, and Ranee Parvata Nachear, the adopted Mother, the
Appellant in the third appeal and Respondent in the second. The question raised and
contested was the validity of the adoption of the Respondent in the first appeal by the
Widow of the last Zemindar, without his authority, or, as it was alleged, the consent of his
kindred and relations.
The circumstances which gave rise to these suits were as follows:—
Prior to the year 1795, Mootoo Ramalinga Sathupathy was the owner of the zemindary of
Ramnad, in the Presidency of Madras. In that year he rebelled against the Government,
who, in consequence, declared his zemindary forfeited. At the time of such forfeiture he
had a Daughter, Sevagamy Nachear, and a Sister, Ranee Mangalswara Nachear, whose
Husband, Ramasamy Taver, was then alive. The Government by their proceedings, dated
the 3rd of July 1795, determined the succession to the zemindary in favour of Ranee
Mangalswara Nachear.
Ramasamy Taver, her Husband, died in the year 1797, but on the 14th of May in that
year, before his death, he and his Wife, Ranee Mangalswara Nachear, executed an
instrument of agreement to the effect, that upon some future occasion, if they had no child
born to them, they should adopt a Son.
On the 22nd of April, 1803, Lord Clive, by virtue of his authority as Governor of Fort St.
George, by a Sunnud-i-milkeut Istimrar, or deed of permanent tenure, conferred certain
rights, and imposed certain duties, on Ranee Mangalswara Nachear.

Among such rights was the following [401] power to transfer “without the previous
consent of Government, or of any other authority to whomever you may think proper,
either by sale, gift, or otherwise, your proprietary right in the whole or in any part *391
of your zemindary. Such transfers of your land shall be valid and recognized by the
Courts and Officers of Government, provided they shall not be repugnant in the
Mahomedan and Hindoo laws, or to the Regulations of the British Government.” The
Sunnud, after providing for the enjoyment and management of the zemindary by Ranee
Mangalswara Nachear, concluded in the following terms:—“Continuing to perform the
above stipulations, and to perform the duties of allegiance to the British Government, its
laws and Regulations, you are hereby authorized and empowered to hold in perpetuity to
your heirs, successors, and assigns, at the permanent assessment herein named, the
zemindary of Ramnad.”
Subsequently to the grant by such Sunnud, the Ranee, in 1803, adopted a Son, Moottoo

38
Vijaya Raghanada Sathupathy, alias Annasamy, hereafter called Annasamy, and by a
Will, dated the 11th of April, 1807, the Ranee made provisions, under the powers vested
in her by the Sunnud, entitling him to inherit her estates.
In 1804, one Chinnasawmy, a Nephew of Ramasawmy Taver, instituted a suit against
Ranee Mangalswara Nachear, claiming that the privileges of Annasamy should be
conferred on him, Chinnasamy, by reason of his having been brought up from infancy by
the Ranee's Husband, Ramasamy Taver, which suit appeared to have been eventually
dismissed.
In 1807, Ranee Mangalswara Nachear died, and was succeeded by Annasamy.
[402] Subsequently to the Ranee's death, and in or prior to the year 1812, disputes arose
about the succession to the Ranee's estate, and an investigation with respect to
Annasamy's adoption took place before the Collector. In the year 1813, Sevagamy
Nachear, the Daughter of the rebel Zemindar, who had forfeited his state in 1795,
instituted a suit against Annasamy in the Provincial Court for the Southern Division
claiming the zemindary of Ramnad; and that Court, by its decree, dated the 13th of
December, 1813, adjudged the zemindary to Sevagamy Nachear. Against such decree
Annasamy appealed, and the Sudder Dewanny Adawlut at Madras, by its decree, dated
the 10th of October, 1816, reversed the decree of the Provincial Court, and adjudged that
the late Ranee was legally competent to adopt Annasamy; that she did adopt him; and that
by such adoption she destroyed the presumptive right of inheritance which would appear
to have been possessed by Sevagamy Nachear at the time when the succession to the
zemindary was determined by the Government in favour of her Aunt, the late Ranee, in
1795. This decree was, in the year 1828, affirmed by His Majesty in Council. Annasamy
died in possession of the zemindary, in the month of February, 1820, during the pendency
of Sevagamy Nachear's appeal to the Privy Council, and the zemindary was thereupon
placed under attachment pending such appeal. He had seven Wives, one of whom was
Moottoo Veroyee Nachear, but had no issue. On the 26th of January, 1820, he adopted as
his Son, Ramasamy (who was the Brother of Moottoo Veroyee Nachear), [403] and, by
his Will of the same date, confirmed such adoption.
After the decision of the above appeal, the Southern Provincial Court, acting under the
Order of the Sudder Court, issued a precept to the Zillah Court of Madura, on the 10th of
April, 1829, directing the zemindary to be placed in possession of Ramasamy, which was
accordingly done. It appeared, that previously to that date, but after the decision of the
appeal in favour of Annasamy, and after his death, Sevagamy Nachear contested, in the
Sudder Court of Madras, the validity of Ramasamy's adoption, and that Court directed the
Provincial Court to determine the point. This was done, and the result was, that the
validity of the adoption was confirmed.
Ramasamy married Ranee Parvata Nachear (the first Respondent in the second appeal),
and had issue by her two Daughters only, viz., Mangalswara Nachear and Dorarajah
Nachear. Ramasamy died in the year 1830, having on the 19th of April in that year
addressed an arzi, or petition, to the Collector of Madura, stating his illness, and that he
had made an arrangement that his “Mother, Ranee Mootoo Veroyee Nachear, who is my
Guardian in every respect, and who holds chief right to this zemindary, should enjoy this
zemindary, maintain my royal Wife, my Daughter, Mangalswara Nachear, of five years
old, and a younger Sister—a small child; and when these children shall attain their proper
age, to make an arrangement with regard to their right to the zemindary, and continue the
same, that my natural *392 Brother, Moottoo Chella Taver, should manage the affairs of
the said zemindary until my children shall attain their proper age.”
[404] On the death of Ramasamy, in 1830, his adoptive Mother, Ranee Mootoo Veroyee,
took possession of the zemindary, which she held until the 6th of July, 1840.

39
Ramasamy's elder Daughter, Mangalswara Nachear, died in the early part of 1840, having
previously been married, leaving a Husband, but no issue.
It appeared that, in consequence of a report from the Collector, Ranee Mootoo Veroyee
was, on the 7th of July, 1840, removed by the Government from the guardianship of
Ramasamy's infant younger Daughter, and from the possession of the zemindary, and
Ramasamy's Widow, Ranee Parvata Nachear, was appointed Guardian to the infant.
Some litigation appeared to have taken place between Ranee Mootoo Veroyee and Ranee
Parvata Nachear after the removal of the former from the guardianship of Dorarajah
Nachear, Ramasamy's infant Daughter.
On the 24th of September, 1845, Ranee Parvata Nachear's younger Daughter, Dorarajah
Nachear, died. Before her death she and her Husband purported to adopt a Son,
Annasamy, and by her Will, dated the 23rd of September, 1845, she directed that after the
death of her Mother, the Zemindary should be held by her Husband, and subsequently by
such adopted Son; and she gave notice of such adoption to the Collector on the 24th of
September, 1845. It was subsequently alleged that, as the zemindary was then under the
management of the Court of Wards, and the approval of such Court had not been obtained
thereto, such adoption was invalid.
On the 31st of August, 1846, Ranee Parvata Nachear presented a petition to the Board of
Revenue, stating [405] her intention to adopt a Son, in pursuance of the authority given to
her by her Husband, Ramasawmy, and further stating, that Ranee Mootoo Veroyee had
purported to have adopted her Sister's Son, objecting to such adoption, and praying the
Board to declare such last-mentioned adoption invalid. The Board refused to interfere in
the matter referred to by such petition.
On the 26th of February, 1847, Ranee Mootoo Veroyee, Ranee Parvata Nachear, and the
two Widows of Annasamy, who were also parties to the litigation above mentioned,
entered into a Razenamah, whereby it was agreed that the allowances to the Widows
should be increased, and portions of the zemindary estate were to be settled on Ranee
Mootoo Veroyee and her alleged adopted Son, absolutely. The first clause in the
agreement stated, that Ranee Parvata Nachear should enjoy the zemindary, and might
“adopt a Son at her pleasure, as specified in the supplemental rejoinder.”
On the 19th of May, 1847, Ranee Parvata Nachear wrote to the Collector, stating that,
according to the Hindoo law, and at the consent of her Brother and relatives, she had
determined to adopt her younger Sister's Son, on the 24th instant, as her Son and heir to
her estate after her. The Collector, on the 21st of May, 1847, returned an answer, that
Ranee Parvata Nachear must satisfy him of her right to make the adoption according to
Hindoo law. Ranee Parvata Nachear, by a petition, dated the 23rd of May, 1847, stated
that, inasmuch as all the preparation for the adoption had been made, it could not be
postponed. In such petition she alleged, that she had the authority of her Husband and of
her own relatives to the adoption, and that Ranee Mootoo Veroyee, by her execution of
the Razenamah of the [406] 26th of February, 1847, was estopped from disputing her
right to make an adoption.
On the 24th of May, 1847, Ranee Parvata Nachear, by petition, informed the Collector,
that “With reference to the Razenamah, submitted by my Mother-in-law, the permission
previously obtained from my Husband, and the consent of my relatives, Brothers, and
others,” she had that day adopted Moottoo Ramalinga Sathupathy, the Respondent in the
first appeal, as a Son.
On the 21st of May, 1847, Ramasamy Taver, the Husband of Ramasamy's elder
Daughter, Ranee Mangalswara Nachear, presented a petition to the Collector, claiming to
be entitled to the zemindary, and praying that the adoption by Ranee Parvata Nachear
might be prevented. Moottoo Chella Taver, the natural Brother of Ramasamy, claiming to

40
be his undivided nearest Cousin in his adoptive family, presented a petition to the
Collector, also claiming to be entitled to the zemindary, and praying that the adoption by
Ranee Parvata Nachear might be prevented.
On the 10th of March, 1849, the Board of Revenue issued an Order, that after *393
Ranee Parvata Nachear's death the zemindary should be considered escheated by reason
of the adoption being invalid, and some correspondence thereon took place between
Ranee Parvata Nachear and the Collector.
On the 19th of September, 1853, Sevasamy Taver, the alleged adopted Son of Ranee
Mootoo Veroyee, instituted a suit against Ranee Parvata Nachear, claiming the immediate
right to the zemindary, as undivided co-parcener and heir of Ramasamy Taver, the
Husband of the Government donee, in 1795. On the 21st of December, 1853, Ranee
Parvata Nachear put in her [407] answer to the plaint, alleging that upon the adoption of
Annasamy into another family, all community of interest with his natural family ceased.
The suit of Sevasamy was dismissed by the Civil Judge, with costs. Sevasamy appealed to
the late Sudder Court by petition, dated the 17th of October, 1857, in which he stated the
grounds of his appeal, and to which he annexed a table of pedigree, purporting to show
his relationship to Ramasamy Taver. The Sudder Court, on the 29th of March, 1858,
rejected such appeal, as barred by limitation of time.
Against such last-mentioned decree, Sevasamy presented an appeal to Her Majesty in
Council; but while such appeal was pending, Sevasamy and Ranee Parvata Nachear
executed a Razenamah, dated the 8th of January, 1861, whereby it was agreed, that the
village of Idampadel, a part of the zemindary, should thenceforth be the property of
Sevasamy, that he should be allowed Rs. 700 per mensem, from the revenue of the
zemindary, and that he should be paid from its funds a sum of Rs. 50,000; and that the
zemindary should be held by Ranee Parvata Nachear and her adopted Son, the
Respondent, Ramalinga, or by those who might hold any authority from Ranee Parvata
Nachear, or by her heirs.
In a communication made by the Collector to Ranee Parvata Nachear on the 28th of July,
1855, he stated, “The Government wished me to inform you that they have suspended
their former Order to take the zemindary in their management after you; moreover, they
are unwilling to give any opinion in regard to the validity of the adoption you allege to
have made.”
[408] On the 15th of November, 1855, the Collector, by a Letter, informed Ranee Parvata
Nachear that on the 29th of October, 1855, the Board of Revenue had cancelled their last-
mentioned Order, and had confirmed their former Order of the 10th of March, 1849,
directing the escheat of the zemindary after her death.
On the 9th of February, 1858, the first of the two suits in appeal was brought by Ranee
Kunjara, as Widow of Annasamy, and Mangalswara, her Daughter, in the civil Court of
Madura, against Ranee Parvata Nachear, to establish the future right of Ranee Kunjara to
the zemindary, as next heiress, on the death of the Defendant, and for an annual
maintenance. Ranee Parvata Nachear, by her answer, insisted that the Plaintiff, Ranee
Kunjara, was only a Concubine, and not the Wife of Annasamy.
The second suit was brought on the 15th of February, 1860, by Moottoo Ramalinga
Sathupathy, the Respondent to the first appeal, against Ranee Parvata Nachear and the
Appellant, the Collector of Madura, claiming to be put into possession of the zemindary,
and praying that the Collector's Letter of the 15th of November, 1855, might be cancelled.
Ranee Parvata Nachear, on the 26th of June, 1860, in her answer admitted the adoption by
her of the Respondent, Mootoo Ramalinga Sathupathy, and expressed her willingness to
give over the zemindary to him.
On the 25th July, 1860, the Collector of Madura filed his answer, pleading, inter alia ,

41
that a Widow could not adopt without the authority of her Husband, or, failing that, of all
his relatives; and that the [409] adoption in question was invalid on both those grounds.
On the 22nd of February, 1861, the Judge of the Civil Court called upon the Appellant,
the Collector of Madura, to prove the illegality of the adoption; but the Court, on the 6th
of March in that year, on the ground that there being prima facie evidence that there were
collateral heirs in existence, which debarred the right of the Government to interfere in
the matter, refused to admit the documents produced by the Collector of Madura for that
purpose, and declared that the examination of the witnesses tendered by the Appellant
was unnecessary.
On the 12th of April, 1861, Mr. R. R. Cotton, the Judge of the Civil Court, decreed, *394
in Ranee Kunjara's suit, that she had no right to succeed to the zemindary after the death
of Ranse Parvata Nachear, she being only her stepmother and excluded from inheriting;
but the Court directed the Zemindar of Ramnad, for the time being, to pay her and her
Daughter Rs. 400 per mensem for maintenance. Ranee Kunjara and her Daughter
appealed from this decree to the High Court at Madras.
On the 18th of March, 1861, the same Judge of the Civil Court, in the suit by the
Collector of Madura (the second suit in these appeals), decreed that the Order of the
Collector, dated the 15th of November, 1855, should be cancelled; and held that Ranee
Parvata Nachear could, of her own authority, assign and transfer the zemindary to
whomsoever she might think proper, and prohibited the Collector of Madura from
summarily seizing the estates as an escheat to the Government, while it appeared that
there were heirs.
[410] Against this decree the Appellant, the Collector of Madura, appealed to the late
Sudder Dewanny Adawlut, and on the 26th of March, 1863, the Judges of the High Court
at Madras, which had been in the meantime substituted for the Sudder Court, by a
proceeding of that date, directed the Civil Judge to decide the following issue: Was the
adoption made with the authority of Ranee Mootoo Geroyee Nachear, Widow of
Annasamy, or with that of any others of the kindred of the late Zemindar, Ramasamy, in
whose behalf the adoption was made?
Evidence was taken upon this issue, and on the 4th of September, 1863, the Judge of the
Civil Court (Mr. R. R. Cotton) pronounced his judgment on the issue framed by the High
Court, to the effect, that the consent of all the then surviving kindred of Ramasamy had
been obtained to the adoption; that the adoption was made with the authority of Mootoo
Veroyee Nachear, and of many of the kindred of Ramasamy, but that all the kindred of
Ramasamy were not at the time consenting parties thereto; that it was clear, that
Sevasamy Taver, a relation of Ramasamy's, and adopted Son of Ranee Mootoo Veroyee
Nachear. was not a consenting party, nor apparently consulted, when the adoption was
made, as his consent was immaterial.
The two appeals were heard together, and twice argued. In the interval between the two
arguments a number of the original authorities relating to the law of adoption were
collected by Mr. Norton, Her Majesty's Advocate-General for Madras, the Counsel for the
Respondent, Ramalinga, and such of them as required translation were handed in, a
special Translator being sworn by the Court to trans- [411] -late such authorities, which
were made part of the record of the Court, and printed, and copies handed over to the
different parties to the appeal. This compilation was entitled “Authorities bearing on the
subject of the power of a Hindoo Widow in the Dravada Country to adopt a Son in the
absence of authority given to her by her Husband during his lifetime.” The authorities
were arranged under four heads. First, original Sanscrit works embodying the Hindoo
Law; second, authoritative declarations of Law made by Pundits or Hindoo Law Officer;
third, the publications of European Writers; fourth, decisions of the established judicial

42
Tribunals. This Book, called the “Green Book,” was, by an Order in Council dated the
16th of November, 1866, directed to be transmitted by the Registrar of the High Court at
Madras to England, and to form part of the record for reference at the hearing of the
appeals.
The works comprised under the first two heads, though extensively used and referred to,
as well in the arguments in the Court below as before the Judicial Committee, were not
considered by either Tribunal of such a satisfactory character as to enable the High Court
or the Judicial Committee to act upon them, and the suits below, and on appeal were
decided entirely upon the recognized Indian and European authorities, most of which
were included in the third and fourth heads of the above collection.
On the 17th of November, 1864, the High Court, in the suits comprising the first and
second appeals, confirmed the decree of the Civil Court of the 18th of March, 1861, and
dismissed the appeal of the Collector. On the same day the Court, in the case of the third
appeal, confirmed the decree of the Civil [412] Court of the 12th of April, 1861, subject
to the modification, that in lieu of the sum of Rs. 400 per mensem, the Zemindar of
Ramnad, for the time being, should pay to the Appellant, Ranee Kunjara Nachear, Rs.
10,000 per annum from the date of the *395 institution of the suit to that date, and further
to pay the Appellant, Ranee Kunjara Nachear, Rs. 833 5a. 4p. monthly, as maintenance.
In support of the decrees an elaborate judgment was pronounced by the High Court,
consisting of the Justices Frere and Holloway, which was, in substance, as follows:—
The Court first considered, whether a Widow without the authority of her Husband could
make an adoption; and stated that on the first argument the affirmative had been assumed,
on the authority of the note of Mr. Colebrooke to the Mitacshara, and that it had been
assumed, that Mr. Colebrooke in his note meant to include all the followers of the
Mitacshara, and consequently the whole of the inhabitants of Southern India, and the
Court had felt it impossible to overrule the opinion of a Jurist so eminent as Mr.
Colebrooke; but that, when the note was examined, it really only applied to Schools other
than those of Southern India: and this point of law was then re-argued. Secondly, that, as
to the decided cases, the case of Veerapermal Pillay v. Narrain Pillay (1 Strange's Mad.
Rep. p. 91) was commented on, and two dicta of Sir Thomas Strange contrasted—one,
“that the consent of the Husband was indispensable to adoption into his family;” and the
other, that, “according to the doctrine of the Benares and Maharashtra schools, prevailing
in the Peninsula, it (that is, the consent of the Husband) may be sup- [413] -plied by that
of his kindred, her natural Guardians.” The Court also referred to the preface of
Colebrooke, p. iv., and W. H. Macnaghten, Vol. I. pref. xxi., as to the existence of five
different Schools of law, of which the Benares School and the Mahratta were two; and
observed, that it was quite clear, that Sir Thomas Strange thought, and stated that
adoption by a Widow, with the assent of her Husband's male relations, would be valid,
and that such was the rule in Southern India. That in the Bombay Presidency it was clear,
that the Widow might, without the consent of the Husband, adopt a child. The Court then
referred to the case No. 161 of 1856 (Madras Sudder Decisions for 1858, pp. 5, 6), where
the Sudder Court held, that the authorization of the Husband was supplied by that of his
Nephew and nearest male relation. Two other cases of inferior Courts were also referred
to, one in 1850, before the Civil Court of Trichinopoly, and the other, in 1863, before the
Court of the Principal Sudder Ameen of Madura, which declared the assent of a male
relation sufficient to authorize the adoption of a Son to the deceased Husband. Three
French cases of the appellate Court at Pondicherry were also referred to, in one of which,
dated the 15th of June, 1844, that Court declared, that it was the recognized doctrine, that
in certain parts of India the consent of the Husband “ peut-etre remplaèe par
consentement des parents de sa famille, et qu'il paraît certain qu'il est d'usage

43
immémorial à Pondicherry de se contenter de cette derniére autorisation .” The case of
Raja Haimun Chull Sing v. Koomer Gunsheam Sing (2 Knapp's P.C. Cases, 203) was
relied on as an express decision, showing that there are places governed by the Benares
school of law in which no assent but that of the [414] Husband is sufficient to validate a
Widow's adoption. The Court then, after commenting on the above cases, came to the
conclusion, that there was not such a weight of judicial authority as could exonerate them
from scrutinizing the original authorities upon the subject, which the Court proceeded to
do in an elaborate manner. The Court considered the Dattaca Mimamsa of Nanda Pandita
as an authority, that the Widow could neither give nor receive a Son, and referred to the
fiction of law which renders the adoption a sort of symbolical begetting, and that the
giving and receiving lay under the same prohibition. The Court then referred to the Smriti
Chandrica and the Dattaca Chandrica, works of Devanda Bhatta, and his opinion, that a
Son might be given by a Mother, if the gift be authorized by an independent male, and
that the assent of the Husband stood upon precisely the same footing in the cases of
giving and of receiving. The works of Vidya Narainsamy were next referred to, as having
great weight in the Madras school of law, and particularly a work called Madhavyam, a
commentary upon Parasara Smriti of great authority in Southern India; and the Court
referred to the analogy derived from the power to the Widow to have a Son actually
begotten to her Husband, observing that as the woman in former ages might after her
Husband's death procure a natural Son, so with permission she might also procure a given
Son, citing the passage, “In the same way the adoption *396 of a Son by a Widow, with
the permission of the Father, etc., cannot be censurable in the Kali age,” and that the “et-
cetera” in these passages must not be neglected. That Sri Rama Pandita, an authority very
generally cited in Southern [415] India, showed historically, that the Widow was
permitted when childless, and her Husband dead, or absent on a pilgrimage, to procure
the begetting of a Son upon herself and on behalf of her Husband; that this original
permission had in the present age been repealed; but that as there was a paramount
necessity for a Son, she might, in circumstances formerly authorizing her to procure the
begetting of a Son, adopt one; and the result of his opinion unquestionably was, that she
was not only authorized, but morally bound, to adopt. The Court declined to attach any
weight to Pundits' opinions, and held, that there are material differences between the
several subordinate Schools, and that those differences had been always recognized,
remarking, that it had been forcibly said, that there was positive judicial authority
affirming the Widow's right to adopt without the consent of her deceased Husband, and
that for more than forty years that had been the understanding of the profession, and that
it would be very mischievous to disturb what had so long been supposed settled. The
Court then referred to Menu, ch. IX. secs. 64 to 68, and to the practice which had
prevailed before his time, for women of the twiceborn classes to have children raised by a
Brother or other near relation commissioned for the purpose, and to the Mitacshara, ch. I.
s. xi. pl. 5, in which the Wife's Son is defined as the “child begotten by another person,
namely by a kinsman (Sapinda) or by a Brother of the Husband,” and was prepared to
expect, as in other systems of law, that a doctrine, although in itself obsolete, had
fructified, and produced visible consequences upon existent law. That as the Brother of
the Husband, or Sapinda, was the person entitled so [416] to procreate, looking at the
analogies derivable from the ancient law, to admit the assent of a Sapinda to the adoption
by a Widow was a perfectly logical inference. The Court was of opinion, that in
confirmation of an express decision, it had had the authority of Devanda Bhatta, of Vidya
Naramasawmy, and of Sri Krishna, though opposed to that of Nanda Pandita, who,
however, in denying the power of the Widow to adopt at all, was opposed to the Writers
of all Schools, and whose reasoning showed, that he considered the giving and receiving

44
to rest upon the same footing, and held that the weight of mere authority was clearly in
favour of the capacity of the Widow to adopt. The Court considered, that the question of
the Sonship to the deceased could in no way depend upon the title or absence of title of
others to the reversion, as presumptive heirs were always disinherited by adoption. And
the Court referred to the necessity of the permission of an independent male, an account
of the woman's dependency, citing the Smriti Chandrica, sec. I. 31, 32, which speaks of
the need of an independent male, and does not seem to care who the male is; and also Mr.
Ellis's remark, that the genius of Hindoo law allows substitution in almost every
conceivable case. As to Authors of other Schools, although the Court denied to them the
title of authorities in Madras, yet it thought it important to see how these Authors had
developed and applied the rule, and referred to the Author of Datta Kaustubha, and his
reasons that, as the act of adoption is one plainly enjoined and obligatory, no dissent of
kinsmen could prevent the Widow from doing it, and that their assent was not needed. As
to the consent of all the relatives being necessary, the Court held, so far as the weight of
authority went, there was no [417] foundation for the doctrine that the assent of all the
Sapindas is necessary, and that, founded as the doctrine clearly was upon the old principle
of actual begetting by a Brother, or a Sapinda, it would be strange if it were so. The Court
further held, that the assent of any one of the Sapindas would suffice, and at all events the
will of the majority of individual members must be taken as the will of the whole body.
As to the nature of the assent given in this case, the Court held it clearly established, that
not only some of the Sapindas, but a majority of them had given their assent. The Court
did not dissent from the Civil Judge in finding that Ranee Moottoo Veroyee had assented,
but considered that a woman herself dependent could not supply the want of
independence upon the part of the Wife. Upon the pedigree, the Court thought that the
evidence for the Plaintiff as to pedigree was entitled to more weight than that for the
defence; and that a witness, named Ram Rajah, was present at the adoption, and assented
to it. That *397 as to Sevasamy Taver, it was clear that he gave a subsequent assent, if
such assent would avail, and referred to the maxim of law adopted in India, that the
absence of positive dissent should be taken as assent. The High Court finally held, that
the Widow intended to adopt to herself and her deceased Husband, and consequently the
conclusions of the Court were, first, that the Widow of the late Zemindar had made a
valid adoption. Second, that she made it with the consent of the majority of her Husband's
Sapindas. Third, that all the Sapindas then living had been proved to have assented.
Fourth, on the question of maintenance to the Widow, the Court thought Rs. 10,000 per
annum not excessive; and dismissed the appeals, [418] subject to the modification, as to
maintenance, before stated, but without costs 2 .
There were three appeals from the decrees founded on this judgment. The appeals were
consolidated and heard together.
Mr. Forsyth, Q.C., and Mr. Pontifex, appeared for the Collector of Madura.
Mr. Mellish, Q.C., and Mr. F. C. J. Millar, for Ranee Kunjara and Mangalaswara, the
Appellants in the second appeal, and Respondents in the third appeal.
Sir R. Palmer, Q.C., Mr. Coleridge, Q.C., Mr. Mundell, Q.C., and Mr. Mackeson, Q.C.,
for the Respondent, Ramalinga, in the first two appeals.
In support of the first appeal it was contended, on behalf of the Collector, that by the
evidence it was established, that at the date of the alleged adoption there was not any
person, who could be capable of inheriting the zemindary upon the decease of Ranee
Parvata Nachear, and that it must, therefore, fall by escheat to the Government, on the
happening of that event.
That according to the Hindoo law applicable to the District where the zemindary is
situate, a Widow was incapable of adopting a Son unless expressly authorized by her

45
Husband; and that it was proved, that Ranee Parvata Nachear had not any such authority
from her Husband, Ramasamy, and could not, therefore, adopt the Respondent,
Ramalinga. That the alleged adoption was originally intended to [419] take effect, and
was made so as not to interfere with the life interest of Ranee Parvata Nachear in the
zemindary, and that such adoption, even if she had the power to adopt, was insufficient to
create any right in the Respondent, Ramalinga, to inherit the zemindary at her death. That
Ranee Parvata Nachear had no power to alienate or affect the zemindary beyond her own
life estate; and that the conclusions of the Court below taken on the facts were not
warranted by the evidence in the suits.
The Appellants in the second appeal, Anandai and Mangalaswara, the Mother and
Daughter of the deceased Zemindar, Ramasamy, submitted, that the authority or
permission of the deceased Husband was indispensable to a valid adoption being made by
any Widow on his behalf, and that in the absence of any such authority or permission, the
adoption as alleged by Ranee Parvata Nachear, of the Respondent, Ramalinga, was
invalid and of no effect; that even if, in the absence of authority or permission from her
deceased Husband, the consent or authority of his relatives was sufficient to render valid
such adoption, all the relatives must concur in such consent, either at the time or
previously to the adoption being made, which had not been done in this case; and that the
whole proceeding by Ranee Parvata Nachear, called an adoption, was not in fact, nor was
it intended to be, a bona fide adoption of Ramalinga, but was a device and contrivance by
Ranee Parvata Nachear, to transfer the zemindary and property in perpetuity to herself
and her nominee; that if any adoption was really effected, such adoption was simply an
adoption to Ranee Parvata Nachear herself, which could have no influence or effect in the
devolution [420] of the property of her deceased Husband. That these Appellants, as the
next heirs in succession, were entitled to succeed to the zemindary and property upon the
death of Ranee Parvata Nachear, and to have their rights with reference thereto declared.
For the Respondent, Ramalinga, it was urged, that the adoption by Ranee Parvata Nachear
of him as Son to her late Husband, and heir to the zemindary, Ramasamy, was valid; that
even if the rule, as contended for by the Appellants, had *398 in the earliest stage of
Hindoo Law been, that no adoption by a Widow was valid, yet in later times an adoption
by the Widow was considered valid, if made by the authority of the Husband, as was the
law now received in Bengal; that in the Dravada Country, south of the Peninsula, where
Ramnad is situate, the adoption by a Widow, if made with the sanction of the relatives of
the Husband, was valid, according to the law prevailing in Southern India. That the
adoption of a Son by a Widow was derived from analogy to the obsolete doctrine of a Son
procreated to a Widow by a Sapinda as heir; that the Sanscrit authorities in force in the
Dravada Country for the last five hundred years were uniformly in favour of such
adoptions; that the Futwas of the Pundits of the Zillah and Sudder Courts throughout the
Dravada Country were also in favour of such adoptions; that the decided cases in the
Madras Courts had upheld such adoptions, the Text and other European Writers agreeing
in stating such to be the law and practice in Southern India, which for forty years had
been the received opinion of the profession at Madras.
As to the power of a Widow by the Hindoo Law and custom current in the Dravada
Country to [421] adopt a Son to her deceased Husband without his authority, either
express or implied, given to her in his lifetime, though with the consent of his kindred,
and the authorities received in Southern India, the Respondents cited Morley's Dig. Vol. I.
pp. clxxxix. cciii. Colebrooke on Inheritance, Intro. p. iv.; Datta Madharinga, or the
Dattaka Mimansa of Madhavacharya; Datta - Mimansa of Nanda Pandita ; Note by Mr.
Ellis in Strange's “Hindu Law,” Vol. II. p. 162 [2nd Ed.]; W. H. Macnaghten's “Hindu
Law,” Vol. I. Pref. xxii.; Elberling on Inheritance, ch. III. sees. 32, 3, 4, p. 16. They also

46
referred to the decrees transmitted with the record, of the French appellate Court at
Pondicherry, respectively dated the 15th of March, 1826; the 15th of June, 1844; the 2nd
of December, 1848. A decree of the Court at Trichinopoly, dated 21st of June, 1850; of
the Court at Pondicherry, dated the 7th of December, 1850. A decree of the Court at
Pondicherry, dated the 4th of November, 1856, and of the Court at Tanjore, dated the
19th of March, 1864, allowing a Widow to adopt a Son without the authority of her
Husband.
On the general law of adoption the following native authorities and Text writers were
cited and relied on by both sides:
—The Parasara Madhaviya; the Vyarahara Madhavya by Madhavacharya, referred to in
Strange's Manual of Hindoo Law, pars. 72, 73, 353; Mahabharata, ch. 103; the
Viramitrodaya, referred to in Sutherland on Adoption, Synopsis, note vi. p. 235;
Vyuvuharu Muyookhu, [Trans. by Borradaile,] ch. IV. sec. V. pl. 17; Vyarahara
Koustoobha, referred to in Morley's Dig., Vol. I. Intro. p. ccvii.; Strange's “Hindu Law,”
Vol. I. p. 79; ib. Vol. II., p. 92, 3, 9, 96, [422] 115, 168. The Mitacshara of Vijayaneswara
by Colebrooke, ch. I. sec. xi. pl. 9, note; ib. Stoke's “Hindu Law,” p. 415; Subodhini, a
Commentary on the Mitacshara, by Visvesvara Bhatta, Colebrooke, ch. I. sec. xi. pl. 9;
Morley's Dig., Vol. I. Intro. p. ccxvii.; Ward's “View of the History, etc., of the Hindoos,”
Vol. I. p. 447; Balam. Bhatta's Comm. on the Mitacshara of Vijayaneswara; Sutherland
on Adoption, Synopsis, note p. 236; Colebrooke on Inheritance, pref. p. ix.; W. H.
Macnaghten's “Hindo Law,” Vol. I. p. 66; Datta Mimansa, by Sri Rama Pahdita; ib. sec. I.
pl. 15, 18, sec. IV. pl. 10; Stoke's “Hindu Law,” pp. 415, 534, 5, 573; Dattaka-Chandrika
of Devanda Bhatta, sec. I. pl. 31, 32 [Trans. by Sutherland]; Dattaka-Mimansa of Nanda
Pandita, secs. 15, 16; ib. , Sutherland, Note x. p. 236; Vyavahara Durpanum; Datta
Mohodadhi; Datta Grahana Deepika by Narayana Choodamony Deetchita; Datta Pootra
Vidhi; Datta Ratnakara, by Dharma Raja Deekshita; Datta Chandrica, by Pattra Achariya;
(cited in Sudder Court, Dec., 1854, pp. 42-5); Daya-Krama Sangraha. And, in addition to
the above ancient authorities collected and used in the High Court, the following cases
and authorities from English and Indian reports were also cited:— Veerapermall Pillay v.
Narrain Pillay (1 Strange's Mad. Cases, 91); Raja. Haimum Chull Sing v. Koomer
Gunsheam Sing (2 Knapp's P.C. Cases, 203); Janki Dibeh v. Suda Sheo Rai (1 Sud. Dew.
Ad. Rep. 197); Raja. Shumshere Mull v. Ranee Dirlaj Konwur (2 Sud. Dew. Ad. Rep.
169); Atchema v. Rungama (4 Moore's Ind. App. Cases, 1); Sreenarain Rai v. Bhya Jha
(2 Sud. Dew. Ad. Rep. 27); Mussumat Bhoobun Moyee Debia v. Ram[423]Kishore
Acharj Chowdhry (10 Moore's Ind. App. Cases, 279); Sree Brijbhookunjee Muharaj v.
Sree Gokoolootsaojee (1 Borr. Bom. Rep. 193); Huebut Rao Mankur v. *399 Govind
Rao Balwunt Rao Mankuz (2 Borr. Bom. Rep. 75); Appaniengar v. Alemalvo Ammal
(Mad. Sud. Dec. 1858, pp. 5, 6); Virbudro Hurrybudru v. Baee Ranee (2 Morris, Bom.
Rep. 1).
As to the effect to be given to the Futwas of the Pundits, as authority where they are
apparently irreconcilable with the opinions of approved Text Writers on Hindoo law, the
cases of Myna Boyee v. Ootaram (8 Moore's Ind. App. Cases, 400) and The Collector of
Masulipatam v. Cavaly Vencata Narrainapah (8 Moore's Ind. App. Cases, 529) were
referred to.
With respect to discretion of the Court in awarding the quantum of maintenance to the
Widow, Exp. Janaky Ummah (2 Strange's Mad. Cases, 285, 288) was referred to.
Their Lordships reserved judgment, which was now pronounced by
The Right Hon. Sir James W. Colvile (May 21, 1868).—The principal question raised by
these appeals is the validity of an adoption made by the Widow of the last male Zemindar
of Ramnad.

47
 His title to that zemindary, which is of great extent, and, like many of the large
zemindaries in the south of India, in the nature of a Raj, or Principality, descendible to a
single heir, was thus derived. In 1795 the then Zemindar, Moottoo Ramalinga Sathupathy,
having rebelled against the Government of the East India Company, was deprived of his
zemindary, [424] which in the month of July in that year was granted to his Sister, Ranee
Mangalaswara Nachear. Her title was confirmed by a formal Sunnud, executed on the
22nd of April, 1803, by Lord Clive, the then Governor of Madras, which granted the
zemindary to her, her heirs, successors, and assigns. She was married to Ramasamy
Taver, who died some time between 1797 and 1804; and in the latter year Ranee
Mangalaswara Nachear, then a Widow, and professing to act under a written agreement
between her and her late Husband, adopted one Annasamy, his Nephew, whose title she
afterwards confirmed by a Will executed on the 11th of April, 1807. She died in that year,
and was succeeded by Annasamy. He had seven Wives, of whom only his chief Wife,
Mootoo Veroyee Nachear, and the Appellant, Ranee Kunjara, need be mentioned, but had
no male issue by any of them. And on the 26th of January, 1820, he adopted a Son,
Ramasamy, who was the natural Brother of Mootoo Veroyee Nachear, and, by a
testamentary instrument of that date, confirmed that adoption, stating it to have been
made “by himself and his chief Wife, Mootoo Veroyee Nachear unanimously.” He died
in February, 1820, and was succeeded by Ramasamy, who died in 1830, without male
issue, but leaving a Widow, the Respondent, Ranee Parvata Nachear, and two infant
Daughters, Mangalaswara and Doraraja, surviving him. It is unnecessary to notice the
unsuccessful suits by which the titles of Annasamy and Ramasamy were impeached
during their lives, though some of the proceedings in them help to swell the voluminous
record before their Lordships. The title of Ramasamy to the zemindary, as stated above, is
the common ground of all the [425] parties to this litigation, and, on the consideration of
these appeals, must be taken to be incontestable.
On the death of Ramasamy, without male issue, his successor in the zemindary, according
to the course of succession ab intestato , was his Widow. He had, however, two days
before his death, addressed to the Collector, as the representative of Government, the arzi
of the 19th of April, 1830. In that document, after stating that he was suffering from
small-pox, and that the issue of his illness was uncertain, he expressed himself as follows:
“I have made an arrangement that my Mother, Ranee Mootoo Veroyee, who is my
Guardian in every respect, and who holds chief right to this zemindary, should enjoy this
zemindary and all other things; pay peishkist to the Cirkar; maintain my royal Wife, my
Daughter, Mangalaswara, of five years old, and her younger Sister, a small child; and
when these children shall attain their proper age, to make an arrangement with regard to
their right to the zemindary, and continue the same; that my natural Brother, Mootoo
Chella Taver, should manage the affairs of the zemindary until my childre shall attain
their proper age; and I have issued necessary orders for the strict observance of the above
arrangement.”
The affairs of the zemindary seem to have been managed under this arrangement *400
between 1830 and 1840. The Respondent, Ranee Parvata Nachear, is said to have been
herself very young at the date of her Husband's death; her children were infants; and the
Mother-in-law was probably the only member of the family with any capacity for
business. In 1840, Mangalaswara, the Daughter of Ramasamy, who had previously been
married, died after giving [426] birth to a male child, who did not survive her. About that
time differences arose between Ranee Parvata Nachear and her Mother-in-law, who
appears to have set up some claim to the zemindary in her own right. The Board of
Revenue, acting as Court of Wards, intervened; appointed, in April, 1840, Ranee Parvata
Nachear Guardian of Dorarajah, her infant Daughter, in the place of Mootoo Veroyee;

48
and assumed the management of the estate, treating apparently Dorarajah as de facto
Zemindar, either by virtue of the arzi executed by Ramasamy, or by reason of Ranee
Parvata Nachear's waiver of her rights in favour of her infant Daughter.
Dorarajah died on the 24th of September, 1845. She had previously been married, and
having no children, attempted, on the day before her death, to adopt as a Son a child
named Anandai. By the document, called her Will, she declared, however, that this person
would only be entitled to the zemindary in succession to her Mother, Ranee Parvata
Nachear, whom she calls “the chief heiress to the zemindary.” This adoption was
communicated to the Collector by a Letter of the 23rd of September, 1845, but was
treated by him as invalid under the 25th section of Mad. Reg. V. of 1804, because made
by a disqualified landholder without the consent of the Court of Wards. The right of
Ranee Parvata Nachear to the zemindary, as heiress either to her Husband or to her
Daughter, was, therefore, recognized by the Revenue authorities, who, in April, 1840, put
her in possession of it as a qualified proprietor, and relinquished the management of it to
her.
In the meantime, and ever since 1840, Mootoo Veroyee had been engaged in active
litigation with [427] Ranee Parvata Nachear and others for the enforcement of her alleged
rights to the zemindary. The proceedings in her last suit are set forth in the record. For the
most part they have no bearing upon any of the questions which their Lordships have now
to determine; and it is unnecessary to notice any of them, except the supplemental
rejoinder, which was filed by Ranee Parvata Nachear on the 6th of March, 1846; and the
Razenamah, or agreement of compromise, by which this litigation was terminated on the
26th of February, 1847. In the former Ranee Parvata Nachear asserted, apparently for the
first time, a right to adopt a Son to her Husband, either under an alleged authority from
him, in the event, which had happened, of both his Daughters dying without issue, or
under the more general power of adoption which is disputed on these appeals. By the
latter, Mootoo Veroyee, in consideration of the provision made for her and her Foster-
son, Sevasamy, declared that Ranee Parvata Nachear might thenceforward enjoy the
zemindary for ever; and, besides, might adopt a Son at her pleasure, as specified in the
supplemental rejoinder.
It is clear, therefore, that whatever obscurity and confusion there may be in the history of
the zemindary and its management between the death of Ramasamy in 1830, and the
month of May, 1847, Ranee Parvata Nachear was at the last-mentioned date in undisputed
possession as Zemindar of Ramnad.
In that state of things she made the adoption which is the subject of the present dispute.
On the 19th of May, 1847, she gave notice to the Collector of her intention to adopt her
Sister's younger Son, and invited him to be present at the ceremony. On [428] the 24th of
the same month she formally adopted the Respondent, Ramalinga. It is admitted that all
the requisite ceremonies were duly performed, and that the adoption cannot be
impeached, except on the ground of the insufficiency of her power to make one. The
Board of Revenue, by an Order, dated the 10th of March, 1849, declared that the adoption
was invalid, and that on the death of Ranee Parvata Nachear the zemindary would escheat
to Government. On the 23rd of July, 1855, the Madras Government set aside this Order,
and determined to recognize the adoption until it should be declared invalid by a decree
of a Civil Court. But on the 29th of October, 1855, the same Government cancelled its
former Order, and confirmed the Order of the Board of Revenue of the 10th of March,
1849; and caused this, its final determination, to be intimated to Ranee Parvata Nachear
through the Collector, by a Letter dated the 15th of November 1855.
*401 The first of the suits out of which these appeals arise (No. 3 of 1856) was instituted
in that year by Ranee Kunjara, claiming, as the last surviving Wife of Annasamy, and her

49
Daughter, Mangalaswara, against Ranee Parvata Nachear alone. They impeached the
validity of the adoption, insisted that on Ranee Parvata Nachear's death Ranee Kunjara, as
the next in succession, would be entitled to the zemindary, and claimed maintenance in
the meantime. Ranee Parvata Nachear, by her answer, alleged that Ranee Kunjara was not
the Wife but the Concubine of Annasamy and could have no title to the zemindary.
Various persons afterwards intervened under different titles, and were all, by
supplemental plaint, made parties Defendants to this suit. But none of them, [429] except
the Respondent, Ramalinga, and the Collector, are parties to these appeals, or have any
interest therein.
The second of the two suits (No. 1 of 1860) was brought, in February of that year, by the
Respondent, Ramalinga, who had then attained his majority, against Ranee Parvata
Nachear and the Collector. Against the latter it sought to have the before mentioned Order
of intimation of the 15th of November, 1855, set aside as illegal; and against the former it
prayed that immediate possession of the zemindary might be adjudged to the Respondent,
Ramalinga.
The second suit was the first heard, and by his decree, dated the 18th of March, 1861, the
Civil Judge ordered, that the Order of the Collector of the 15th of November, 1855, and
his Orders to certain subordinate Officers therein referred to, should be cancelled; and
that, as he had failed to establish any right to the estate, or to invalidate the acts of Ranee
Parvata Nachear in respect to it, he should abstain from all further interference; and that
Ranee Parvata Nachear, subject to the provisions of Hindoo law, and section 8 of Mad.
Reg. XXV. of 1802, might, without the previous consent of the Collector, or of any other
authority, assign and transfer to the Plaintiff (the Respondent, Ramalinga), or
whomsoever she might think proper, by sale, gift, or otherwise, her proprietary right in
the Ramnad zemindary. The decree further declared, that it was to be without prejudice to
the Collector's right to bring a regular suit for the estate, if he conceived that the
Government had a superior title to the party in possession, but it prohibited him from
summarily seizing it as an escheat whilst there were heirs.
[430] The decree made by the same Judge in the first suit bore date the 12th of April,
1861. It found that Ranee Kunjara Nachear was one of the Wives of Annasamy, but that
as such she had no right to succeed to the estate after Ranee Parvata Nachear, being only
her stepmother, and, therefore, excluded from inheriting; it further decreed, that the
Zemindar of Ramnad, for the time being, should pay to the Plaintiffs (the Appellants,
Ranee Kunjara Nachear and her Daughter) maintenance at the rate of Rs. 400 per
mensem, with the arrears of such maintenance from the date of the institution of the suit.
Against the first of these decrees the Collector, and against the second Ranee Kunjara and
her Daughter, appealed to the High Court of Madras; and on the 26th of March, 1863, that
Court made an Order on both appeals, whereby it directed the Civil Judge to try the
following issue: “was the adoption made with the authority of Mootoo Veroyee, Widow
of Annasamy, or with that of any others of the kindred of the late Zemindar, Ramasamy,
in whose behalf the said adoption was made?” It further gave certain directions as to the
evidence to be produced on trial of the issue.
This issue was accordingly tried on the 1st of September, 1863; and the findings of the
Civil Judge were in effect, that the consent of Mootoo Veroyee, and of all the then
surviving kindred of Ramasamy, had been obtained to the adoption. Against this finding
the Collector, as well as Ranee Kunjara and her Daughter, again appealed to the High
Court, which Court, on the 17th of November, 1864, after two hearings, pronounced an
elaborate judgment in favour of Ranee Parvata Nachear's right to adopt, and her [431]
exercise of it in the particular case, and in doing so the Court came to the following
conclusions:—

50
First, that the Widow of the late Zemindar had made a valid adoption; that there was no
doubt that it was made with the assent of the majority of her Husband's Sapindas; and that
though it might be doubtful, whether the Civil Judge was right, there were not sufficient
grounds for saying that he was wrong, in thinking that all the Sapindas then living had-
been proved to have assented.
Second, that, considering the extent of the property and the fact that she was the *402
last surviving Widow of the Zemindar Annasamy, Ranee Kunjara was entitled to a more
liberal maintenance than that awarded by the Civil Judge; and that such maintenance
should be at the rate of Rs. 10,000 per annum. Subject to that modification, the decrees
below were affirmed, and the appeals dismissed without costs.
From the decrees drawn up in conformity with this judgment, the following appeals have
been presented, viz.:—
First, an appeal by the Collector, impeaching the validity of the adoption, and also
objecting to so much of the decree of the 18th of March, 1861, as declared, or implied,
that Ranee Parvata Nachear had power to alienate or affect the zemindary beyond her life
interest.
Secondly, an appeal by Ranee Kunjara and her Daughter, also impeaching the adoption;
and further objecting to the decree of the 12th of April, 1861, in so far as it declared that
Ranee Kunjara had no right of succession to the zemindary.
Thirdly, a cross appeal by Ranee Parvata Nachear and Ramalinga, objecting to the
maintenance awarded [432] by the High Court as exorbitant; and insisting that the decree
of the Civil Judge ought not to have been varied in that respect.
All these appeals have been heard together; and their Lordships have now to dispose of
them.
The principal contest has been upon the broad and general question, whether by the
Hindoo law, as current in what is known as the Dràvada Country (wherein Ramnad is
situate), a Widow can adopt a Son to her Husband without his express authority? and if
so, by whose assent that defect of authority must be supplied.
Their Lordships think it will be convenient to consider in the first place how this question
really stands, upon the authority of Mr. Colebrooke and Sir Thomas Strange.
Mr. Colebrooke's note on the Mitacshara (chap. I. sec. XI., art. 9), which has been much
discussed, clearly involves three propositions:
First, that the Widow's power to receive a Son in adoption, subject to some conditions, is
now admitted by all the Schools of Hindoo law except that of Mithila.
Second, that the Bengal (or Gaura) School insists, that the Widow must have the formal
permission of her Husband in his lifetime.
Third, that some at least of the other Schools admit the adoption to be valid, if made by
the Widow with the assent of her Husband's kindred. The first two propositions are
admitted; but it has been argued for the Appellants, that on the true construction of this
note, Mr. Colebrooke's authority for the last proposition is limited to the Mahratta School,
in which the treatise called “The Muyookhu” is the predominant authority. Balam-Bhatta,
however, whom he cites as an authority for a power of adoption [433] in the Widow
wider even than that expressed in the third proposition, was a Commentator of the
Benares School. And the several notes of Mr. Colebrooke, at pp. 92, 96, and 115 of the
second volume of Strange's “Hindu Law,” seem to their Lordships to show conclusively,
that he considered the doctrine embodied in the third proposition to be common to the
followers of the Mitacshara in the Benares as well as in the Mahratta School, and as such
to be receivable as the law current in the Zillah Vizagapatam, which lies within the
northern, or Andra division of the Dravada Country.
Again, Sir Thomas Strange's statement of the law in his work, Vol. I. p. 79, is clear and

51
unambiguous. He says: “Equally loose is the reason alleged against adoption by a Widow,
since the assent of the Husband may be given, to take effect (like a Will) after his death;
and, according to the doctrine of the Benares and Maharashtra Schools, prevailing in the
Peninsula, it may be supplied by that of his kindred, her natural Guardians; but it is
otherwise by the law that governs the Bengal Provinces.”
Their Lordships entertain no doubt, that the term “the Peninsula,” as used here, and other
passages by the same Author, denotes that part of India which is south of the line drawn
from Ganjam to the Gulf of Cambay, and includes the whole of the Dravada District. The
learned Counsel for the Appellants, however, appeal from Sir Thomas Strange as a text
writer to Sir Thomas Strange as a Judge, and cite his dictum in Veerapermall Pillay v.
Narrain Pillay (1 Strange's Mad. Cases, pp. 103 and 121), as opposed to this passage. In
that case, Sir Thomas Strange, after citing the text of Vasishta, says: “Hence it [434] may
be inferred, what appears confirmed by opinions of living Hindoo Lawyers, and by every
case of the kind we are acquainted with, that the consent of *403 the Husband is
indispensable to adoption into his family.” But this passage does not alter the view which
their Lordships have already expressed as to the effect of the matured authority of Sir
Thomas Strange. The precise question which is now under consideration, was not in issue
in that case, where there was a written authority from the Husband, and where the real
issue was, whether the Widow could adopt a boy not designated in that written authority.
Again, the case was decided in 1801, at a time when the ancient authorities of Hindoo law
were far less accessible to an European Judge than they have since become. And Sir
Thomas Strange, in his work composed twenty years later, says of this very case of
Veerapermall Pillay v. Narrain Pillay , that it was discussed on comparatively imperfect
materials; that the public was not then possessed of the extensive information contained
in Mr. Colebrooke's translation on the law of inheritance, and the Treatises on adoption
since translated by Mr. Sutherland, to say nothing of the MSS. materials that came
subsequently to his own hands, and which had contributed largely to every chapter of his
work. There can, therefore, be no doubt but that the passage in his Book contains the
matured opinion of Sir Thomas Strange, and that it must be treated as an authoritative
declaration of that opinion controlling his dictum in Veerapermall Pillay v. Narrain
Pillay.
Having thus ascertained what was the opinion of two of the highest European authorities
upon this question of the Hindoo law current in the South of [435] India, their Lordships
have next to consider, whether any sufficient reason has been assigned for treating that
opinion as unfounded.
The remoter sources of the Hindoo Law are common to all the different Schools. The
process by which those Schools have been developed seems to have been of this kind.
Works universally or very generally received became the subject of subsequent
Commentaries. The Commentator put his own gloss on the ancient text; and his authority
having been received in one and rejected in another part of India; Schools with conflicting
doctrines arose. Thus the Mitacshara, which is universally accepted by all the Schools,
except that of Bengal, as of the highest authority, and which in Bengal is received also as
of high authority, yielding only to the Daya Bhaga in those points where they differ, was
a commentary on the Institutes of Yajnawalcya; and the Daya Bhaga, which, wherever it
differs from the Mitacshara, prevails in Bengal, and is the foundation of the principal
divergences between that and the other Schools, equally admits and relies on the authority
of Yajnawalcya. In like manner there are glosses and commentaries upon the Mitacshara
which are received by some of the Schools that acknowledge the supreme authority of
that Treatise, but are not received by all. This very point of the Widow's right to adopt is
an instance of the process in question. All the Schools accept as authoritative the text of

52
Vasishta, which says, “Nor let a woman give or accept a Son unless with the assent of her
Lord.” But the Mithila School apparently takes this to mean that the assent of the
Husband must be given at the time of the adoption, and, therefore, that a Widow [436]
cannot receive a Son in adoption, according to the Dattaca form, at all. The Bengal
School interprets the text as requiring an express permission given by the Husband in his
lifetime, but capable of taking effect after his death; whilst the Muyookhu, and
Koustubha, Treatises which govern the Mahratta School, explain the text away by saying,
that it applies only to an adoption made in the Husband's lifetime, and is not to be taken to
restrict the Widow's power to do that which the general law prescribes as beneficial to her
Husband's soul. Thus upon a careful review of all these Writers, it appears, that the
difference relates rather to what shall be taken to constitute, in cases of necessity,
evidence of authority from the Husband, than to the authority to adopt being independent
of the Husband.
The duty, therefore, of an European Judge who is under the obligation to administer
Hindoo Law, is not so much to inquire whether a disputed doctrine is fairly deducible
from the earliest authorities, as to ascertain whether it has been received by the particular
School which governs the District with which he has to deal, and has there been
sanctioned by usage. For, under the Hindoo system of law, clear proof of usage will
outweigh the written text of the law. The Respondent, Ramalinga, insists that, tried by
either test, the proposition for which he contends, will be found to be correct.
The industry and research of the Counsel in the Courts below have brought to- *404
gether a catena of texts, of which many have been taken from Works little known, and of
doubtful authority. Their Lordships concur with the Judges of the High Court in declining
to allow any weight to these. But the highest [437] European authorities, Mr. Colebrooke,
Sir Thomas Strange, and Sir William Macnaghten, all concur in treating as works of
unquestionable authority in the South of India the Mitacshara, the Smriti Chandrika, and
the Madhavyam, the two latter being, as it were, the peculiar Treatises of the Southern or
Dravada School. Again, of the Dattaca Mimansa of Nanda Pandita, and the Dattaca
Chandrika of Davanda Bhatta, two Treatises on the particular subject of adoption, Sir
William Macnaghten says, that they are respected all over India; but that when they differ
the doctrine of the latter is adhered to in Bengal and by the Southern Jurists, while the
former is held to be the infallible guide in the Provinces of Mithila and Benares. The
Dattaca Mitmansa, by the Author of the Madhavyam, is also recognized as of high
authority in the South of India by Mr. Ellis in his note at page 168 of the second volume
of Strange's “Hindu Law.”
Of these Treatises, the Mitacshara is silent on the point in question. The Dattaka Mimansa
of Nanda Pandita (sec. 1, Articles 15 to 18, and Articles 27 and 28) is opposed to the
Respondent's view of it; but it seems equally opposed to an adoption by a Widow, under
any circumstances. The Dattaca Chandrika (sec. 1, Articles 31 and 32) allows a Widow to
give a Son in adoption where her husband has not forbidden her to do so, implying his
assent from the absence of prohibition. The Smriti Chandrika also permits a Mother to
give her Son, if she be authorized to do so by an independent male. And it is argued, that
what these last two authorities lay down concerning a Widow's right to give, must, by
parity of reasoning, be taken to be laid down concerning her [438] right to receive a Son
in adoption. The Madhavyam (if that term is confined to the Parasara Madhaviya, and
does not embrace all the works of Vidya Narainsamy) seems also to contain no direct
determination of the point in question; but the Dattaca Mimansa of that Author clearly
and explicitly declares the right of the Widow to adopt with the authority of her Father-in-
law, and whatever other kinsmen of her husband may be comprehended under the et
caetera. It cannot, therefore, be said, that the proposition laid down by Mr. Colebrooke,

53
and adopted by Sir Thomas Strange, is not supported by at least one of the original
Treatises of undoubted authority in Dravada. The Dattaca Mimansa of Sir Sri Rama
Pandita, who is stated by the Judges of the High Court to be an authority very generally
cited in the South of India, also confirms the proposition.
Their Lordships have excluded from their consideration of what is the positive law of the
Dravada country the peculiarly Maharatta Treatises (the Muyookhu and Koustubha), and
also the Viromitrodaya, which is a Treatise of especial authority at Benares. It must,
however, be admitted, that the fact of the reception of the doctrine in question by Schools
so closely allied to that of Dravada is in favour of the hypothesis that it. also obtains in
the latter, and strengthens the authorities which directly support that hypothesis.
The evidence that the doctrine for which the Respondents contend has been sanctioned
by usage in the South of India consists partly of the opinions of Pundits, partly of decided
cases. Their Lordships cannot but think that the former have been too summarily dealt
with by the Judges of the High Court. These opinions, at one time enjoined to be
followed, [439] and long directed to be taken by the Courts, were official, and could not
be shaken without weakening the foundation of much that is now received as the Hindoo
law in various parts of British India. Upon such materials the earlier works of European
writers on the Hindoo law, and the earlier decisions of our Courts, were mainly founded.
The opinion of a Pundit which is found to be in conflict with the translated works of
authority may reasonably be rejected; but those which are consistent with such works
should be accepted as evidence that the doctrine which they embody has not become
obsolete, but is still received as part of the customary law of the Country. A considerable
body of these futwas , or opinions, is collected in the third part of what has been called
throughout the argument in this case the “Green Books.” It is not necessary to consider,
whether they can all of them be supported to the full extent of what they affirm. But they
show a considerable concurrence of opinion, to the effect that, where the *405 authority
of her Husband is wanting, a Widow may adopt a Son with the assent of his kindred in
the Dravada Country.
The decided cases, exclusive of those in the Bombay Presidency, which may be taken to
be governed by the Muyookhu, are certainly not many. But there is at least the case G. (
Appaniengar v. Alemaloo Ammal , Mad. Sud. Dec., for 1858, pp. 5, 6), decided by the
late Sudder Court of Madras, and there are the French cases, which ought not, their
Lordships think, to be wholly disregarded as recognitions of the law prevailing in the
South of India. They are to be relied on in this case as affording evidence of a long
continued series of opinions officially given, and judicially received, which [440] were
adopted as the grounds of decision, showing a continued and recognized existence of a
doctrine, which suffices to remove from the opinions of the Pundits in this case every
suspicion of being opinions given to support the interests or judgments of others. Against
these authorities the Appellants have invoked that of the case of Raja Haímun Chull Sing
v. Koomer Gunsheam Sing (2 Knapp's P.C. Cases, p. 203). But what was, in fact, decided
by the very guarded judgment delivered by the late Lord Wensleydale in that case? It was
that, according to the native text-writers—including probably Vasishta, certainly
including the Dattaca Mimansa of Nanda Pandita—the authority of the Husband was a
requisite to a valid adoption; that the strictness of the law had been in many districts, and
particularly in the Mahratta States, relaxed or modified by local usage, but that it had not
been established to their Lordships' satisfaction that that relaxation had extended to the
particular District of Etawah, in Upper India. Disclaiming, therefore, the intention to
decide what was the law in other parts of India, their Lordships held, that they could not
say that the law in that District did not require the direction of the Husband in order to the
validity of an adoption, which it was necessary for them to do in order to reverse the

54
judgment of the Court below. It is clear that that decision was not intended to govern, and
cannot be taken to govern, a case arising in the South of India.
Upon the whole, then, their Lordships are of opinion, that there is enough of positive
authority to warrant the proposition that, according to the law prevalent in the Dravada
Country, and particularly [441] in that part of it wherein the Ramnad zemindary is situate,
a Hindoo Widow, not having her Husband's permission, may, if duly authorized by his
kindred, adopt a Son to him. And they think that that positive authority affords a
foundation for the doctrine safer than any built upon speculations touching the natural
development of the Hindoo law, or upon analogies, real or supposed, between adoptions
according to the Dattaca form, and the obsolete practice, with which that form of adoption
co-existed, of raising up issue to the deceased Husband by carnal intercourse with the
Widow. It may be admitted that the arguments founded on this supposed analogy are in
some measure confirmed by passages in several of the ancient Treatises above referred to,
and in particular by the Dattaca Mimansa of Vidya Narainsamy, the Author of the
Madhavyam; but as a ground for judicial decision these speculations are admissible,
though as explanatory arguments to account for an actual practice they may be deserving
of attention.
It must, however, be admitted that the doctrine is stated in the old Treatises, and even by
Mr. Colebrooke, with a degree of vagueness that may occasion considerable difficulties
and inconveniences in its practical application. The question who are the kinsmen whose
assent will supply the want of positive authority from the deceased Husband, is the first to
suggest itself. Where the Husband's family is in the normal condition of a Hindoo
family— i.e. undivided—that question is of comparatively easy solution. In such a case
the Widow, under the law of all the Schools which admit this disputed power of adoption,
takes no interest in her Husband's share of the joint estate, except a right to maintenance.
And [442] though the Father of the Husband, if alive, might, as the head of the family and
the natural Guardian of the Widow, be competent by his sole assent to authorise an
adoption by her, yet, if there be no Father, the consent of all the Brothers, who, in default
of adoption, would take the Husband's share, would probably be required, since it would
be unjust to allow the Widow to defeat their interest by introducing a new co-parcener
against their will. Where, however, as in the present case, the Widow has taken by
inheritance the separate estate of her Husband, there is greater *406 difficulty in laying
down a rule. The power to adopt when not actually given by the Husband can only be
exercised when a foundation for it is laid in the otherwise neglected observance of
religious duty, as understood by Hindoos. Their Lordships do not think there is any
ground for saying, that the consent of every kinsman, however remote, is essential. The
assent of kinsmen seems to be required by reason of the presumed incapacity of women
for independence, rather than the necessity of procuring the consent of all those whose
possible and reversionary interest in the estate would be defeated by the adoption. In such
a case, therefore, their Lordships think, that the consent of the Father-in-law, to whom the
law points as the natural Guardian and “venerable protector” of the Widow, would be
sufficient. It is not easy to lay down an inflexible rule for the case in which no Father-in-
law is in existence. Every such case must depend upon the circumstances of the family.
All that can be said is, that there should be such evidence of the assent of kinsmen as
suffices to show, that the act is done by the Widow in the proper and bona fide
performance [443] of a religious duty, and neither capriciously nor from a corrupt motive.
In this case no issue raises the question, that the consents were purchased, and not bona
fide attained. The rights of an adopted Son are not prejudiced by any unauthorized
alienation by the Widow which precedes the adoption which she makes; and though gifts
improperly made to procure assent might be powerful evidence to show no adoption

55
needed, they do not in themselves go to the root of the legality of an adoption.
Again, it appears to their Lordships that, inasmuch as the authorities in favour of the
Widow's power to adopt with the assent of her Husband's kinsmen proceed in a great
measure upon the assumption that his assent to this meritorious act is to be implied
wherever he has not forbidden it, so the power cannot be inferred when a prohibition by
the Husband either has been directly expressed by him, or can be reasonably deduced
from his disposition of his property, or the existence of a direct line competent to the full
performance of religious duties, or from other circumstances of his family which afford
no plea for a supercession of heirs on the ground of religious obligation to adopt a Son in
order to complete or fulfil defective religious rites.
Their Lordships having thus stated the conclusions to which they have come upon the
general question of law involved in these appeals, will now consider whether the High
Court of Madras has correctly applied that law to the facts of the present case.
They are of opinion, that both the Courts below were right in holding that the collateral
kinsmen of Ramasamy were to be found in the Taver family, of which the printed
pedigree forms part of the record. [444] According to Hindoo law, Ramasamy was the
Son, though by adoption, of Annasamy; and he again was the Son, though by adoption, of
the first Ramasamy, who was a Taver; and the heirs of Ramasamy, in the absence of
descendants, were traceable upwards through these two persons, as if they had been his
natural Father and Grandfather. There is no ground for saying that this, the legal
consequence of the successive adoptions, was affected by the assumption of the name of
Sathupathy, the family name of the ancient Zemindars of Ramnad and of Mangalaswara,
the Grantee of the zemindary. It is to be observed, however, that this line affords none but
very remote kinsmen, if their relationship to Ramasamy be calculated on the principle just
stated. The nearest of them, Mootoosamy, would on that principle stand in a degree of
relationship to Ramasamy which, according to the rule of the Mitacshara (cap. 2, sec. v.,
art. 6), would exclude him from the category of Sapindas, and place him in that of
Samanodacas, or those connected only by a libation of water and a common family name.
He was, however, the natural Brother of Annasamy, and that circumstance might
strengthen his title to be considered, in the absence of nearer connections, the natural
male protector of Ramasamy's Widow. Again, the person who really filled the office of
Protector, and that by the express appointment of Ramasamy, was, up to the time of her
quarrel with her Daughter-in-law, Mootoo Veroyee. Nor is it by any means unusual in a
Hindoo family to find the Mother-in-law occupying a position of considerable power and
importance. Moreover, she was unquestionably the heir to the property next in succession
to Ranee Parvata Nachear, after the failure of Rama- [445] -samy's descendants. It,
therefore, appears to their Lord- *407 ships, that in this state of the family the assent of
Mootoo Veroyee, of Mootoosamy, and of the other persons who are proved beyond all
question to have assented, was sufficient to legitimate the adoption, even if the evidence
has failed to prove the consent of the yet remoter kinsman, Ramrajah Taver.
It has been argued, however, that even if this adoption would have been regular had
Ramasamy died childless and intestate, his arzi relating to the management and descent of
the zemindary contains an indication of his intention that his Daughters and their
descendants should be his successors and representatives, which ought to be taken to
imply a virtual prohibition of the act of adoption by his Widow. Their Lordships cannot
accede to this argument. Ramasamy, no doubt, intended to be represented by his
Daughter's line, should that line continue. But he made no express provision for its
failure, and the same reasons which justify a presumption of authority to adopt in the
absence of express permission are powerful to exclude a presumptive prohibition to
adopt, when on a new and unforeseen occasion the religious duty arises. His Widow has

56
 not claimed a power to adopt, except on the happening of the contingency for which her
Husband omitted to provide. And her power so limited, not having been qualified by his
disposition, must be determined by the general law.
Another argument for the Appellants was founded on the attempted adoption of a Son,
Annasamy, by Dorarajah. That person is not a party to either of these suits; he has not
impeached the adoption of the Respondent, Ramalinga; he has, on the contrary, [446]
supported it as a witness. Nothing decided by the decrees under appeal can prejudice his
rights, if he has any, under an adoption which the Revenue authorities at the date of it
seem to have treated as illegal. Their Lordships have not before them the necessary
materials for determining, whether that adoption was in fact valid or invalid; or whether,
if valid, it would have any, and what effect on the title of the Respondent, Ramalinga. In
that state of things neither of the present Appellants can be allowed to insist on this
supposed jus tertii as an objection to the decrees which they impeach.
Their Lordships have, therefore, come to the conclusion, that these decrees, and the
judgment on which they proceed, are substantially right, in so far as they affirm, as
between the parties to this litigation, the validity of the adoption by Ranee Parvata
Nachear of the Respondent, Ramalinga.
They also think that there is no foundation for the other and minor objection taken by the
Collector to the decree of the 18th of March, 1861, on the ground that it asserts a power in
Ranee Parvata Nachear to alienate or affect the zemindary beyond her life interest. Her
power of alienation is expressly stated to be “subject to the provisions of Hindoo law;”
and the only object of that part of the decree was to affirm her right to exercise that power
within the limits prescribed by the Hindoo law, free from the control of the Government
or its Revenue Officers.
Their Lordships are further of opinion, that there are no grounds for impeaching the
decree of the 12th of April, 1861, in so far as it found that the Appellant, Ranee Kunjara,
stood in the relation only of stepmother to Ramasamy, and, therefore, could have [447] no
right to inherit his estate. They think, that this conclusion is supported by the Will of
Ranee Mootoo Veroyee, dated the 20th of January, 1820, which expressly states that
Ramasamy was adopted by Annasamy and Ranee Mootoo Veroyee unanimously.
Upon the cross appeal their Lordships have only to observe, that the quantum of
maintenance is a question with which the Courts of India, having local knowledge, and
being conversant with the habits of native families, are peculiarly competent to deal with;
and that strong grounds should be shown to justify any interference by this Committee
with their discretion in that matter. And their Lordships see no reason for questioning the
soundness of the discretion exercised by the High Court of Madras in the present case.
Being, therefore, of opinion, that the decrees under appeal are correct, and ought to be
affirmed, their Lordships will humbly recommend to Her Majesty that the two appeals
and the cross appeal be each dismissed, with costs.
[See note to Raja Haimun Chull Sing v. Koomer Gunsheam Sing , 1834, 2 Knapp. 224;
and Girdhari Lall Roy v. Bengal Government , 1868. 12 Moo. Ind. App. *408 466; Sri
Raghunadha v. Sri Brozo Kishoro , 1876, L.R. 3 Ind. App.'154 ; Bhagwan Singh v.
Bhagwan Singh , 1899, L.R. 26 Ind. App. 164.]

Sastri Yagnapurushadji And ... vs Muldas Brudardas Vaishya And ... on 14 January, 1966
Equivalent citations: 1966 AIR 1119, 1966 SCR (3) 242
Author: P Gajendragadkar
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Ramaswami, V.,
Satyanarayanaraju, P.

57
 PETITIONER:
SASTRI YAGNAPURUSHADJI AND OTHERS

Vs.

RESPONDENT:
MULDAS BRUDARDAS VAISHYA AND ANOTHER

BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.
SATYANARAYANARAJU, P.

CITATION:
1966 AIR 1119 1966 SCR (3) 242

ACT:

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 517 of 1964. Appeal from the
judgment and decree, dated October 3, 1958 of the Bombay High Court in First Appeal No.
107 of 52. Vasant J. Desai, M. L. Bhalja and A. G. Ratnaparkhi, for the appellants.
C. K. Daphtary, Attorney-General, Atiqur Rehman and K. L. Hathi, for respondent No. 1.
C. K. Daphtary, Attorney-General, N. S. Bindra and B. R. G. K. Achar, for respondent No. 2.
S. V. Gupte, Solicitor-General, and B. R. G. K. Achar, for the intervener.
The Judgment of the Court was delivered by Gajendragadkar, C.J.

The principal question “whether the Bombay High Court was right in holding that the
Swaminarayan Sampradaya (sect) to which the appellants belong, is not a religion distinct
and separate from the Hindu religion, and that the temples belonging to the said sect do come
within the ambit of the provisions of the Bombay Hindu Places of Public Worship (Entry-
Authorisation) Act, 1956 (No. 31 of 1956) (hereinafter called 'the Act').
The suit from which the present appeal arises was instituted by the appellants on the 12th
January, 1948, in the Court of the Joint Civil Judge, Senior Division, Ahmedabad. Before the
suit was instituted, the Bombay Harijan Temple Entry Act, 1947 (No. 35 of 1947)
(Hereinafter called 'the former Act') had come into force on the 23rd November, 1947. The
appellants are the followers of the Swaminarayan sect, and are known as Satsangis. They
have filed the present suit on behalf of themselves and on behalf of the Satsangis of the
Northern Diocese of the sect at Ahmedabad. They apprehended that respondent No. 1,
Muldas Bhudardas Vaishya, who is the President of the Maha Gujarat Dalit Sangh at
Ahmedabad, intended to assert the rights of the non-Satsangi Harijans to enter the temples of
the Swaminarayan sect situated in the Northern Diocese at Ahmedabad in exercise of the
legal rights conferred on them by s. 3 of the former Act of 1947. Section 3 of the said Act had
provided, inter alia, that every temple to which the Act applied shall be open to Harijans for
worship in the same manner and to the same extent as other Hindus in general. To this suit
the appellants had impleaded five other respondents, amongst whom was included the

58
Province of Bombay as respondent No. 4, under the order of the Court at a later stage of the
proceedings on the 18th July, 1949. In their plaint, the appellants had alleged that the
Swaminarayan temple of Sree Nar Narayan Dev of Ahmedabad and all the temples
subordinate thereto are not temples within the meaning of the former Act. Their case, was
that the Swaminarayan sect represents a distinct and separate religious sect unconnected with
the Hindus and Hindu religion, and as such, their temples were outside the purview of the
said Act. On the basis of this main allegation, the appellants claimed a declaration to the
effect that the relevant provisions of the said Act did not apply to their temples. In the
alternative, it was urged that the said Act was ultra vires. As a consequence of these two
declarations, the appellants asked for an injunction restraining respondent No. 1 and other
non- Satsangi Harijans from entering the Swaminarayan temple of the Northern Diocese of
the Swaminarayan sect; and they prayed that an appropriate injunction should be issued
directing respondents 2 and 3 who are the Mahants of the said temples to take steps to
prevent respondent No. 1 and the other non-Satsangi Harijans from entering and worshipping
in the said temples.
Pending these proceedings between the parties, the former Act was amended by Bombay Act
No. 77 of 1948; and later, the Constitution of India came into force on the 26th January,
1950. As a result of these events, the appellants applied for an amendment of the plaint on the
30th November, 1950, and the said application was granted by the learned trial Judge. In
consequence of 24 6 this amendment, the appellants took the plea that their temples were not
temples within the meaning of the former Act as amended by Act No. 77 of 1948; and they
urged that the, former Act was ultra vires the powers of the State of Bombay inasmuch as it
was inconsistent with the Constitution and the fundamental rights guaranteed therein. It was
contended by them that the Swaminarayan sect was an institution distinct and different from
Hindu religion, and, therefore, the former Act as amended could not apply to or affect the
temples of the said sect. On this additional ground, the appellants supported the original claim
for declarations and injunctions made by them in their plaint as it was originally filed.
This suit was resisted by respondent No. 1
. It was urged on his behalf that the suit was not tenable at law, on the ground that the Court
had no jurisdiction to entertain the suit under s. 5 of the former Act. Respondent No. 1
disputed the appellants' right to represent the Satsangis of the Swaminarayan sect, and he
averred. that many Satsangis were in favour of the Harijans' entry into the Swaminarayan
temples, even though such Harijans were not the followers of the Swaminarayan sect.
According to him, the suit temples were temples within the meaning of the former Act as
amended and that non-Satsangi Harijans had a legal right of entry and worship in the said
temples. The appellants' case that the former Act was ultra vires, was also challenged by
respondent No. 1. Respondents 2 and 3, the Mahants of the temples, filed purshis that they
did not object to the appellants' claim, while respondent No. 4, the State of Bombay, and
respondents 5 and 6 filed no written statements. On these pleadings, the learned trial Judge
framed several issues, and parties led voluminous documentary and oral evidence in support
of their respective contentions. After considering this evidence, the learned trial Judge held
that the suit was maintainable and was not barred under s. 5 of the former Act. He found that
the former Act was intra vires the legislative powers of the Bombay State and did not infringe
any fundamental rights of the appellants. According to him, the Swaminarayan sect was not
distinct and different from Hindu religion and as such, the suit temples were temples which
were used as places of religious worship by the congregation of the Satsang which formed a
section of the Hindu community. The learned trial Judge, however, came to the conclusion
that it had not been established that the suit temples were used by non-Satsangi Hindus as
places of religious worship by custom, usage or otherwise, and consequently, they did not
come within the meaning of the word "temple" as defined by the former Act. Thus, the

59
conclusion of the learned trial Judge on this part of the appellants' case decided the fate of the
suit in their favour, though findings were recorded by the trial Judge in favour of respondent
No. 1 on the other issues. In the result, the trial court passed a decree in favour of the
appellants giving them declarations and injunctions as claimed by them. This judgment was
pronounced on the 24th September, 1951.
The proceedings in the trial court were protracted and lasted for nearly three years, because
interim proceedings which led to certain interlocutory orders, were contested between the
parties and were taken to the High Court on two occasions before the suit was finally
determined. The decision of the trial court on the merits was challenged by Respondent No. 4
and respondent No. 1 who joined in filing the appeal. The appeal thus presented by the two
respondents was heard by the High Court on the 8th March, 1957. At this hearing, two
preliminary objections were raised by the appellants against the competence and
maintainability of the appeal itself. It was urged that the appeal preferred by respondent No. 4
was not competent, inasmuch as respondent No. 4 had no locus standi to prefer the appeal in
view of the fact that the former Act in the validity of which respondent No. 4 was vitally
interested had been held to be valid. This objection was upheld and the appeal preferred by
respondent No. 4 was dismissed. In regard to the appeal preferred by respondent No. 1, the
appellants contended that the Vakalatnama filed on his behalf was invalid and as such, the
appeal purported to have been preferred on his behalf was incompetent. It appears that
respondent No. 1 had authorised the Government Pleader to file an appeal on his behalf,
whereas the appeal had actually been filed by Mr. Daundkar who was then the Assistant
Government Pleader. The High Court rejected this objection and held that the technical
Irregularity on which the objection was founded could be cured by allowing the Government
Pleader to sign the memorandum of appeal presented on behalf of respondent No. 1 and
endorse acceptance of his Vakalatnama.
Having thus held that the appeal preferred by respondent No. 1 was competent, the High
Court proceeded to consider the merits of the said appeal. It was urged before the High Court
by respondent No. 1 that the declarations and injunctions granted to the appellants could not
be allowed to stand in view of the Untouch 10Sup.CI/63--3 ability (Offences) Act, 1955
(Central Act 22 of 1955) which had come into force on the 8th May, 1955 and which had
repealed the former Act. This contention did not find favour with the High Court, because it
took the view that the declarations and injunctions granted by the trial court were not based
on the provisions of the former Act, but were based on the view that the rights of the
appellants were not affected by the said Act. The High Court observed that in dealing with
the objections raised by respondent No. 1, it was unnecessary to consider whether on the
merits, the view taken by the trial court was right or not. The only point which was relevant
for disposing of the said objection was to consider whether any relief had been granted to
the.appellants under the provisions of the former Act or not; and since the reliefs granted to
the appellants were not under any of the said provisions, but were in fact based on the view
that the provisions of the said Act did not apply to the temples in suit, it could not be said that
the said reliefs could not survive the passing of the Untouchability (Offences) Act, 1955. The
High Court, however, noticed that after the trial court pronounced its judgments, the Bombay
Legislature had passed the Act (No. 31 of 1956) and respondent No. 1 naturally relied upon
the material provisions of this Act contained in s. 3. Thus, though the substance of the
controversy between the parties remained the same, the field of the dispute was radically
altered. The former Act had given place to the Act and it now became necessary to consider
whether the Act was intra vires, and if yes, whether it applied to the temples in suit. Having
regard to this altered position, the High Court took the view that it was necessary to issue a
notice to the Advocate-General under O.27A of the Code of Civil Procedure. Accordingly, a
notice was issued to the Advocate General and the appeal was placed before the High Court

60
on the 25th March, 1957 again. At this hearing, the High Court sent the case back to the trial
court for recording a finding on the issue " whether the Swaminarayan temple at Ahmedabad
and the temples subordinate thereto are Hindu religious institutions within the meaning of
Art. 25 (2) (b) of the Constitution". Both parties were allowed liberty to lead additional
evidence on this issue.
After remand, the appellants did not lead any oral evidence, but respondent No. 1 examined
two witnesses Venibhai and Keshavlal. Keshavlal failed to appear for his final cross-
examination despite adjournments even though the trial court had appointed a Commission to
record his evidence. Nothing, however, turned upon this oral evidence. In the remand
proceedings, it was not disputed before the trial court that the temples in suit were public
religious institutions. The only question which was argued before the court was whether they
could be regarded as Hindu temples or not, The appellants contended that the suit temples
were meant exclusively for the followers of the Swaminarayan sect; and these followers, it
was urged, did not profess the Hindu religion. The learned trial Judge, however, adhered to
the view already expressed by his predecessor before remand that the congregation of
Satsang constituted a section of the Hindu community; and so he found that it was not open
to the appellants to contend before him that the followers of the Swaminarayan sect were not
a section of the Hindu community. In regard to the nature of the temples, the learned trial
Judge considered the evidence adduced on the record by both the parties and came to the
conclusion that the Swaminarayan temples at Ahmedabad and the temples subordinate
thereto were Hindu religious institutions within the meaning of Art. 25 (2) (b) of the
Constitution. This finding was recorded by the trial Judge on the 24th March 1958.
After this finding was submitted by the learned trial Judge to the High Court, the Appeal was
taken up for final disposal. On' this occasion, it was urged before the High Court on behalf of
the appellants that the members belonging to the Swaminarayan sect did not profess the
Hindu religion and, therefore, their temples could not be said to be Hindu temples. It was,
however, conceded on their behalf that in case the High Court came to the conclusion that the
Swaminarayan sect was not a different religion from Hinduism, the conclusion could not be
resisted that the temples in suit would be Hindu religious institutions and also places of
public worship within the meaning of s. 2 of the Act. That is how the main question which
was elaborately argued before the High Court was whether the followers of the
Swaminarayan sect could be said to profess Hindu religion and be regarded as Hindus or not.
It was urged by the appellants that the Satsangis who worship at the Swaminarayan temple
may be Hindus for cultural and social purposes, but they are not persons professing Hindu
religion, and as such they do not form a section, class or sect or denomination of Hindu
religion. Broadly stated, the case for the appellants was placed before the High Court on four
grounds. It was argued that Swaminarayan, the founder of the sect, considered himself as the
Supreme God, and as such. the sect that believes in the divinity of Swaminarayan cannot be
assimilated to the followers of Hindu religion. It was also urged that the temples in suit had
been established for the worship of Swaminarayan himself and not for the worship of the
traditional Hindu idols, and that again showed that the Satsangi sect was distinct and separate
from Hindu religion. It was further contended that the sect propagated the ideal that worship
of any God other than Swaminarayan would be a betrayal of his faith, and lastly , that the
Acharyas who had been appointed by Swaminarayan adopted a procedure of "Initiation"
(diksha) which showed that on initiation, the devotee became a Satsangi and assumed a
distinct and separate character as a follower of the sect. The High Court has carefully
examined these contentions in the light of the teachings of Swaminarayan, and has come to
the conclusion that it was impossible to hold that the followers of the Swaminarayan sect did
not profess Hindu religion and did not form a part of the Hindu community. In coming to this
conclusion, the High Court has also examined the oral evidence on which the parties relied.

61
While considering this aspect of the matter, the High Court took into account the fact that in
their plaint itself, the appellants had described themselves as Hindus and that on the occasion
of previous censuses prior to 1951 when religion and community used to be indicated in
distinct columns in, the treatment of census data, the followers of the sect raised no objection
to their being described as belonging to a sect professing Hindu religion. Having thus rejected
the main contention raised by the appellants in challenging their status as Hindus, the High
Court examined the alternative argument which was urged on their behalf in regard to the
constitutional validity of the Act. The argument was that the material provision of the Act
was inconsistent with the fundamental rights guaranteed by Articles 25 and 26 of the
Constitution and as such was invalid. The High Court did not feet impressed by this argument
and felt no difficulty in rejecting it. In the result, the finding recorded by the trial Judge in
favour of the appellants in regard to their status and character as followers of the
Swaminarayan sect was upheld; inevitably the decree passed by the trial Judge was vacated
and the suit instituted by the appellants was ordered to be dismissed. It is against this decree
that the present appeal has been brought to this Court on a certificate issued by the High
Court.
Before dealing with the principal point which has been posed at the commencement of this
Judgment, it is necessary to dispose of two minor contentions raised by Mr. V. J. Desai who
appeared for the appellants before us. 'Mr. Desai contends that the High Court Was in error in
treating as competent 'the appeal preferred by respondent No. 1. His case is that since the said
appeal had not been duly and validly filed by an Advocate authorised by respondent No. 1 in
that behalf, the High Court should have dismissed the said appeal as being incompetent. It
will be recalled that the appeal memo as well as the Vakalatnama filed along with it were
signed by Mr. Daundkar who was then the Asstt. Government Pleader; and the argument is
that since the Vakalatnama had been signed by respondent No. 1 in favour of the Government
Pleader, its acceptance by the Assistant Government Pleader was invalid and that rendered
the presentation of the appeal by the Assistant Government Pleader on behalf of respondent
No. 1 incompetent. O.41, r. 1 of the Code of Civil Procedure requires, inter alia, that every
appeal shall be preferred in the form of a memorandum signed by the appellant or his Pleader
and presented to the Court or to such officer as it appoints in that behalf. O. 3, r. 4 of the
Code relates to the appointment of a Pleader. Sub-r. (1) of the said Rule provides, inter alia
that no Pleader shall act for any person in any court unless he has been appointed for the
purpose by such person by a document in writing signed by such person. Sub-r. (2) adds that
every such appointment shall be filed in court and shall be deemed to be in force until
determined with the leave of the Court in the manner indicated by it. Technically, it may be
conceded that the memorandum of appeal presented by Mr. Daundkar suffered from the
infirmity that respondent No. 1 had signed his Vakalatnama in favour of the Government
Pleader and Mr. Daundkar could not have accepted It, though he was working in the
Government Pleader's office as an Assistant Government Pleader. Even so, the said memo
was accepted by the office of the Registrar of the Appellate Side of the High Court, because
the Registry regarded the presentation of the appeal to be proper, the appeal was in due
course admitted and it finally came up for hearing before the High Court. The failure of the
Registry to invite the attention of the Assistant Government Pleader to the irregularity
committed in the presentation of the said appeal cannot be said to be irrelevant in dealing
with the validity of the contention raised by the appellants. if the Registry had returned the
appeal to Mr. Daundkar as irregularly presented, the irregularity could have been
immediately corrected and the Government Pleader would have signed both the memo of
appeal and the Vakalatnama. It is an elementary rule of justice that no party should suffer for
the mistake of the court or its Office. Besides, one of the rules framed by the High Court on
its Appellate Side-Rule 95-seems to authorise an Advocate practising on the Appellate Side

62
of the High Court to appear even without initially filing a Vakalatnama in that behalf. If an
appeal is presented by an Advocate without a Vakalatnama duly signed by the appellant, he is
required to produce the Vakalatnama authorising him to present the appeal or to file a
statement signed by himself that such Vakalatnama has been duly signed by the appellant in
time. In this case, the Vakalatnama had evidently been signed by respondent No. 1 in favour
of the Government Pleader in time; and so, the High Court was plainly right in allowing the
Government Pleader to sign the memo of appeal and the Vakalatnama in order to remove the
irregularity committed in the presentation of the appeal. We do not think that Mr. Desai is
justified in contending that the High Court was in error in overruling the objection raised by
the appellants before it that the appeal preferred by respondent No. 1 was incompetent.
The next contention which Mr. Desai has urged before us is that s. 3 of the Act is ultra vires.
Before dealing with this contention, it is relevant to refer to the series of Acts which have
been passed by the Bombay Legislature with a view to remove the disabilities from which the
Harijans suffered. A brief resume of the legislative history on this topic would be of interest
not only in dealing with the contention raised by Mr. Desai about the invalidity of S. 3, but in
appreciating the sustained and deliberate efforts which the Legislature has been making to
meet the challenge of untouchability.
In 1958, the Bombay Harijans Temple Worship (Removal of Disabilities) Act (No. 11 of 193
8) was passed. This Act represented a somewhat cautious measure adopted by the Bombay
Legislature to deal with the problem of untouchability. It made an effort to feel the pulse of
the Hindu community in general and to watch its reactions to the efforts which the
Legislature may make, to break through the citadel of orthodoxy, and conquer traditional
prejudices against Harijans. This Act did not purport to create any statutory right which
Harijans could enforce by claiming an entry into Hindu temples; it only purported to make
some enabling provisions which would encourage the progressive elements in the Hindu
community to help the Legislature in combating the evil of untouchability. The basic scheme
of this Act was contained in sections 3, 4 & 5. The substance of the provisions contained in
these sections was that in regard to temples. the trustees could by a majority make a
declaration that their temples would be open to Harijans notwithstanding the terms of
instrument of trust, the terms of dedication or decree or order of any competent court or any
custom, usage or law for the time being in force to the contrary. Section 3 dealt with making
of these declarations. Section 4 required the publication of the said declarations in the manner
indicated by it, and section 5 authorised persons interested in the temple in respect of which a
declaration had been published under s. 4 to apply to the court to set aside the said
declaration. If. such an application is received, the jurisdiction has been conferred on the
court to deal with the said application. Section 5(5) provides that if the court is satisfied that
the applicant was a person interested in the temple and that the impugned declaration was
shown not to have been validly made, it shall set aside the declaration; if the court is not so
satisfied, it shall dismiss the application. Section 5(7) provides that the decision of the Court
under sub-s. (5) shall be final and conclusive for the purposes of this Act. The court specially
empowered to deal with these applications means the court of a District Judge and includes
the High Court in exercise of its ordinary Original Civil jurisdiction. The jurisdiction thus
conferred on the court is exclusive with the result that s. 6 bars any Civil Court to entertain
any complaint in respect of the matters decided by the court of exclusive jurisdiction
purporting to act under the provisions of this Act. This Act can be regarded as the first step
taken by the Bombay Legislature to remove the disability of untouchability from which
Harijans had been suffering. The object of this Act obviously was to invite cooperation from
the majority of trustees in the respective Hindu temples in making it possible for the Harijans
to enter the said temples and offer prayers in them.

63
Then followed Act No. 10 of 1947 which was passed by the, Bombay Legislature to provide
for the removal of social disabilities of Harijans. This Act was passed with the object of
removing the several disabilities from which Harijans suffered in regard to the enjoyment of
social, secular amenities of life. Section 3 of this Act declared that notwithstanding anything
contained in any instrument or any law, custom or usage to the contrary, no Harijan shall
merely on the ground that he is a Harijan, be ineligible for office under any authority
constituted under any law or be prevented from enjoying the amenities described by clauses
(b) (i) to (vii). The other sections of this Act made suitable provisions to enforce the statutory
right conferred on the Harijans by s. 3.
Next we come to the former Act-No. 35 of 1947. We haveA already seen that when the
present plaint was filed by the appellants, they challenged the right of the non-satsangi
Harijans to enter the temples under S. 3 of this Act, and alternatively, they challenged its
validity. This Act was passed to entitle the Harijans to enter and perform worship in the
temples in the Province of Bombay. Section 2(a) of this Act defines a "Harijan" as meaning a
member of a caste, race or tribe deemed to be a Scheduled caste under the Government of
India (Scheduled Castes) Order, 1936. Section 2(b) defines "Hindus" as including Jains; S.
2(c) defines "temples' as meaning a place by whatever designation known which is used as of
right by, dedicated to or for the benefit of the Hindus in general other than Harijans as a place
of public religious worship; and S. 2(b) defines "Worship" as including attendance at a
temple for the purpose of darshan' of a deity or deities installed in or within the precincts
thereof. Section 3 which contains the main operative provision of this Act reads thus :-
"Notwithstanding anything contained in the terms of any instruments of trust, the terms of
dedication, the terms of a sanad or a decree or order of a competent court or any custom,
usage or law, for the time, being in force to the contrary every temple shall be open to Hari
jans for worship in the same manner and to the same extent as to any member of the Hindu
community or any section thereof and the Harijans shall be entitled to bathe in, or use the
waters of any sacred tank, well, spring or water- course in the same manner and to the same
extent as any member of the Hindu Community or any section thereof."
Section 4 provides for penalties. Section 5 excludes the jurisdiction of Civil Courts to deal
with any suit or proceeding if it involves a claim which if granted would in any way be
inconsistent with the;provisions of this Act. Section 6 authorises the police officer not below
the rank of Sub-Inspector to arrest without warrant any person who ;is reasonably suspected
of having committed an offence punishable under this Act.
Section 2(c) of the former Act was later amended by Act 77 of 1948. The definition of the
word "temple" which was thus inserted by the amending Act -reads thus :- "Temple, means a
place by whatever name known and to whomsoever belonging, which is used as a place 2 5 5
of religious worship by custom, usage or otherwise by the members of the Hindu community
or any section thereof and includes all land appurtenant thereto and subsidiary shrines
attached to any such place."
It will be recalled that after this amended definition was introduced in the former Act, the
appellants asked for and obtained permission to amend their plaint, and it is the claim made
in the amended plaint by relation to the new definition of the word "temple" that parties led
evidence before the trial court. This act shows that the Bombay Legislature took the next step
in 1947 and made a positive contribution to the satisfactory solution of the problem of
untouchability. It conferred on the Harijans a right to enter temples to which the Act applied
and to offer worship in them; and we have already seen that worship includes attendance at
the temple for the purpose of darshan of a deity or deities in the precincts thereof. On the 26th
January, 1950 the Constitution of India came into force, and Art. 17 of the Constitution
categorically provided that untouchability is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of "Untouchability" shall be an

64
offence punishable in accordance with law. In a sense, the fundamental right declared by Art,
17 afforded full justification for the policy underlying the provisions of the former Act.
After the Constitution was thus adopted, the-Central Legislature passed the Untouchability
(Offences) Act, 1955 (No. 22 of 1955). This Act makes a comprehensive provision for giving
effect to the solemn declaration made by Art. 17 of the Constitution. It extends not -only to
places of public worship, but to hotels, places of public entertainment, and shops as defined
by s. 2 (a), (b), (c) and (e). Section 2 (d) of this Act defines a "place of public worship" as
meaning a place by whatever name known which is used as a place of public religious
worship or which is dedicated generally to, or is used generally by, persons professing any
religion-or belonging to any religious denomination or any section thereof, for 'the
performance of any religious service, or for offering prayers therein; and includes all lands
and subsidiary shrines appurtenant or attached to any such place. The sweep of 'the
definitions prescribed by section 2 indicates the very broad field of socio-religious activities
over which the mandatory provisions of this Act are intended to operate. It is not necessary
for our purpose to refer to the provisions of this Act in detail. 'It is enough to state that ss. 3 to
7 of this Act provide 25 6 different punishments for contravention of the constitutional
guarantee for the removal of untouchability in any shape or form. Having thus prescribed a
comprehensive statutory code for the removal of untouchability, s. 17 of this Act repealed
twenty one State Acts which had been passed by the several State Legislatures with the same
object. Amongst the Acts thus repealed are Bombay Acts 10 of 1947 and 35 of 1947.
That takes us to the Act No. 31 of 1956-with which we are directly concerned in the present
appeal. After the Central Act 22 of 1955 was passed 'and the relevant Bombay statutes of
1947 had been repealed by S. 17 of that Act, the Bombay Legislature passed the Act. The Act
is intended to make better provision for the throwing open of places of public worship to all
classes and sections of Hindus. It is a short Act contain 8 sections. Section 2 which is the
definition section is very important; it reads thus :-
"2. In this Act, unless the context otherwise requir es,-
(a)"place of public worship' means a place, whether a temple or by any other name called, to
whomsoever belonging which is dedicated to, or for the benefit of, or is used generally by,
Hindus, Jains, Sikhs or Buddhists or any section or class thereof, for the performance of any
religious service or for offering prayers therein; and includes all lands and subsidiary shrines
appurtenant or attached to any such place, and also any sacred tanks, walls, springs, and
water courses the waters of which are worshipped, or are used for bathing or for worship;
(b)"section" or "class" of Hindus includes any division, sub-division, caste, sub-caste, sect or
denomination whatsoever of Hindus." Section 3 is the operative provision of the Act and it is
necessary to read it also : "3. Notwithstanding any custom, usage or law for the time being in
force, or the decree or order of a court, or anything contained in any instrument, to the
contrary, every place of public worship which is open to Hindus generally, or to any section
or class thereof, shall be open to all sections and classes or Hindus; and no Hindu of
whatsoever section or class, shall in any manner be prevented, obstructed or discouraged
from entering such place of public worship, or from worship-
ping or offering prayers threat, or performing any religious service therein, in the like manner
and to the like extent as any other Hindu of whatsoever section or class may so enter,
worship, pray or perform."
Section 4(1) provides for penalties for the contravention of the provisions of the Act and s.
4(2) lays down that nothing in this section shall be taken to relate to offences relating to the
practice of "untouchability". Section 5 deals with the abetment of offences prescribed by s.
4(1). Section 6 provides, inter alia, that no Civil Court shall pass any decree or order which in
substance would in any way be contrary to the provisions of this Act. Section 7 makes
offences prescribed by s. 4(1) cognisable, and compoundable with the permission of the

65
Court; and s. 8 provides that the provisions of this Act shall not be taken to be in derogation
of any of the provisions of the Untouchability (Offences) Act-22 of 1955-or any other law for
the time being in force relating to any of the matters dealt with in this Act. That in brief is the
outline of the history of the Legislative efforts to combat and meet the problem of
untouchability and to help Harijans to secure the full enjoyment of all rights guaranteed to
them by Art. 17 of the Constitution.
Let us now revert to Mr. Desai's argument that s. 3 of the Act is invalid inasmuch as it
contravenes the appellants' fundamental rights guaranteed by Art. 26 of the Constitution.
Section 3 throws open the Hindu temples to all classes and sections of Hindus and it puts an
end to any effort to prevent or obstruct or discourage Harijans from entering a place of public
worship or from worshipping or offering prayers threat, or performing any religious service
therein, in the like manner and to the like extent as any other Hindu of whatsoever section or
class may so enter, worship, pray or perform. The object of the section and its meaning are
absolutely clear. In the matter of entering the Hindu temple or worshipping, praying or
performing any religious service therein, there shall be no discrimination between any classes
or sections of Hindus, and others. In other words, no Hindu temple shall obstruct a Harijan
for entering the temple or worshipping in the temple or praying in it or performing any
religious service therein in the same manner and to the same extent as any other Hindu would
be permitted to do.
Mr. Desai contends that in the temples, in suit, even the Satsangi Hindus are not permitted to
enter the innermost sacred part of the temple where the idols are installed. It is only the
Poojaris who are authorised to enter the said sacred portion of the temples and do the actual
worship of the idols by touching the idols for the purpose of giving a bath to the idols,
dressing the idols, offering garlands to the idols and doing all other ceremonial rites
prescribed by the Swaminarayan tradition and convention; and his grievance is that the words
used in S. 3 are so wide that even this part of actual worship of the idols which is reserved for
the Poojaris and specially authorised class of worshippers, may be claimed by respondent No.
1 and his followers; and in so far as such a claim appears to be justified by s. 3 of the Act, it
con- travenes the provisions of Art. 26(b) of the Constitution. Art. 26(b) provides that subject
to public order, morality and health, every religious denomination or any section thereof shall
have the right to manage its own affairs in matters of religion, and so, the contention is that
the traditional conventional manner of performing the actual worship of the idols would be
invaded if the broad words of S. 3 are construed to confer on non-Satsangi Harijans a right to
enter the innermost sanctuary of the temples and seek to perform that part of worship which
even Satsangi Hindus are not permitted to do.
In our opinion, this contention is misconceived. In the first place it is significant that no such
plea was made or could have been made in the plaint, because s. 3 of the former Act which
was initially challenged by the appellants had expressly defined " worship" as including a
right to attend a temple for the purpose of darshan of a deity or deities in or within the
precincts thereof, and the cause of action set out by the appellants in their plaint was 'hat they
apprehended that respondent No. 1 and his followers would enter the temple and seek to
obtain darshan of the deity installed in it. Therefore, it would not be legitimate for the
appellants to raise this new contention for the first time when they find that the words used in
s. 3 of the Act are somewhat wider than the words used in the corresponding section of the
former Act.
Besides, on the merits, we do not think that by enacting s. 3, the Bombay Legislature
intended to invade the traditional and conventional manner in which the act of actual worship
of the -deity is allowed to be performed only by the authorised Poojaris of the temple and by
no other devotee entering the temple for darshan. In many Hindu temples, the act of actual
worship is entrusted to the authorised Poojaris and all the devotees are allowed to enter the

66
temple up to a limit beyond which entry is barred :to them, the innermost portion of the
temple being reserved only for the authorised Poojaris of the temple. If that is so, then all that
s. 3 purports to do is to give the Harijans the same right to enter the temple for 'darshan' of the
deity as can be claimed by the other Hindus. It would be noticed that the right to enter the
temple, to worship in the temple, to pray in it or to perform any religious service therein
which has been conferred by s. 3, is specifically qualified by the clause that the said right will
be enjoyed in the like manner and to the like extent as any other Hindu of whatsoever section
or class may do. The main object of the section is to establish complete social equality
between all sections of the Hindus in the matter of worship specified by s. 3; and so, the
apprehension on which Mr. Desai's argument is based must be held to be misconceived. We
are, therefore, satisfied that there is no substance in the contention that s. 3 of the Act is ultra
vires.
That takes us to the main controversy between the parties. Are the appellants justified in
contending that the Swaminarayan sect is a religion distinct and separate from the Hindu
religion, and consequently, the temples belonging to the said sect do not fall within the ambit
of s. 3 of the Act ? In attempting to answer this question, we must inevitably enquire what are
the distinctive features of Hindu -religion? The consideration of this question, prima facie,
appears to be somewhat inappropriate within the limits of judicial enquiry in a court of law. It
is true that the appellants seek for reliefs in the present litigation on the ground that their civil
rights to manage their temples according to the religious tenets are contravened; and so, the
Court is bound to deal with the controversy as best as it can. The issue raised between the
parties is undoubtedly justiciable and has to be considered as such; but in doing so, we cannot
ignore the fact that the problem posed by the issue, though secular in character, is very
complex to determine; its decision would depend on social, sociological, historical, religious
and philosophical considerations; and when it is remembered that the development and
growth of Hindu religion spreads over a large period nearly 4,000 years, the complexity of
the problem would at once become patent.
Who are Hindus and what are the broad features of Hindu religion, that must be the first part
of our enquiry in dealing with the present controversy between the parties. The historical and
etymological genesis of the word "Hindu,' has given rise to a controversy amongst
indologists; but the view generally accepted by scholars appears to be that the word "Hindu"
is derived from the river Sindhu otherwise known as Indus which flows from the Punjab.
"That part of the great Aryan race", says Monier Williams, "which immigrated from Central
Asia, through the mountain passes into India, settled first in the districts near the river Sindhu
(now called the Indus). The Persians pronounced this word Hindu and named their Aryan
brethren Hindus. The Greeks, who probably gained their first ideas of India from the
Persians, dropped the hard aspirate, and called the Hindus "Indoi". (1)."
The Encyclopaedia of Religion and Ethics, Vol. VI, has described "Hinduism" as the title
applied to that form of religion which prevails among the vast majority of the present
population of the Indian Empire (p. 686). As Dr. Radhakrishnan has observed; "The Hindu
civilization is so called, since its original founders or earliest followers occupied the territory
drained by the Sindhu (the Indus) river system corresponding to the North West Frontier
Province and the Punjab. This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu
scriptures which give their name to this period Indian history. The people on the Indian side
of the Sindhu were called Hindu by the Persian and the later western invaders".(2) That is the
genesis of the word "Hindu".
When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu
religion or even adequately describe it. Unlike other religions in the world, the Hindu religion
does not claim any one prophet; it does not worship any one God; it does not subscribe to any
one dogma; it does not believe in any one philosophic concept; it does not follow any one set

67
of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional
features of any religion or creed. It may broadly be described as a way of life and nothing
more. Confronted by this difficulty, Dr. Radhakrishnan realised that "to many Hinduism
seems to be a name without any content. Is it a museum of beliefs, a medley of rites, or a
mere map, a geographical expression?"(3) Having posed these questions which disturbed
foreigners when they think of Hinduism, Dr. Radhakrishnan has explained how Hinduism has
steadily absorbed the customs and ideas of peoples with whom it has come into contact and
has thus been able to maintain its supremacy and its youth. The term 'Hindu', according to Dr.
Radhakrishnan, had originally a territorial and not a credal significance. It implied residence
in a well-defined geographical area. Aboriginal tribes, (1) "Hinduism" by Monier Williams,
p. 1.
(2) "The Hindu View of Life" by Dr. Radhakrishnan, p. 12. (3) Ibid p. 11.
savage and half-civilized people, the cultured Dravidians and the Vedic Aryans were all
Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the
striking fact that the men and women dwelling in India belonged to different communities,
worshipped different gods, and practised different rites (Kurma Purana)(1). Monier Williams
has observed that "it must be borne in mind that Hinduism is far more than a mere form of
theism resting on Brahmanism. It presents for our investigation a complex congeries of
creeds and doctrines which in its gradual accumulation may be compared to the gathering
together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers
and rivulets, spreading itself over an ever-increasing area of country and finally resolving
itself into an intricate Delta of tortuous steams and jungly marshes........ The Hindu religion is
a reflection of the composite character of the Hindus, who are not one people but many. It is
based on the idea of universal receptivity. It has ever aimed at accommodating itself to
circumstances, and has carried on the process of adaptation through more than three thousand
years. It has first borne with and then, so to speak, swallowed, digested, and assimilated
something from all creeds."(2) We have already indicated that the usual tests which can be
applied in relation to any recognised religion or religious creed in the world turn out to be
inadequate in dealing with the problem of Hindu religion. Normally, any recognised religion
or religious creed subscribes to a body of set philosophic concepts and theological beliefs.
Does this test apply to the Hindu religion ? In answering this question, we would base
ourselves mainly on the exposition of the problem by Dr. Radhakrishnan in his work on
Indian Philosophy. (3) Unlike other countries, India can claim that philosophy in ancient
India was not an auxiliary to any other science or art, but always held a prominent position of
independence. The Mundaka Upanisad speaks of Brahma- vidya or the science of the eternal
as the basis of all sciences, 'sarva-vidyapratishtha'. According to Kautilya, "Philosophy" is the
lamp of all the sciences, the means of performing all the works, and the support of all the
duties. "In all the fleeting centuries of history", says Dr. Radhakrishnan, "in all the
vicissitudes through which India has passed, a certain marked identity is visible. It has held
fast to certain psychological traits which constitute its special (1) lbid p. 12.
(2) "Religious Thought & Life In India" by Monier Williams, p. 57.
(3) "Indian Philosophy" by Dr. Radhakrishrian, Vol. 1, pp. 22-23.
heritage, and they will be the characteristic marks of the Indian people so long as they are
privileged to have a separate existence". The history of Indian thought emphatically brings
out the fact that the development of Hindu religion has always been inspired by an endless
quest of the mind for truth based on the consciousness that truth has many facets. Truth is
one, but wise men describe it differently.(1) The Indian mind has, consistently through the
ages, been exercised over the problem of the nature of godhead the problem that faces the
spirit at the end of life, and, the interrelation between the individual and the universal soul. "If
we can abstract from the variety of opinion", says Dr. Radhakrishnan, "and observe the

68
general spirit of Indian thought, we shall find that it has a disposition to interpret life and
nature in the way of monistic idealism, though this tendency is so plastic, living and manifold
that it takes many forms and expresses itself in even mutually hostile teachings".(2) The
monistic idealism which can be said to be the general distinguishing feature of Hindu
Philosophy has been expressed in four different forms : (1) Non-dualism or Advitism; (2)
Pure monism: (3) Modified monism; and (4) Implicit monism. It is remarkable that these
different forms of monistic idealism purport to derive support from the same vedic and
Upanishadic texts. Shankar, Ramanuja, Vallabha and Madhva all based their philosophic
concepts on what they regarded to be the synthesis between the Upanishads, the
Brahmasutras and the Bhagavad Gita. Though philosophic concepts and principles evolved
by different Hindu thinkers and philosophers varied in many ways and even appeared to
conflict with each other in some particulars, they all had reverence for the past and accepted
the Vedas as the sole foundation of the Hindu philosophy. Naturally enough, it was realised
by Hindu religion from the very beginning of its career that truth was many-sided and
different views contained different aspects of truth which no one could fully express. This
knowledge inevitably bred a spirit of tolerance and willingness to understand and appreciate
the opponents point of view. That is how "the several views set forth in India in regard to the
vital philosophic concepts are considered to be the branches of the self-same tree. The short
cuts and blind alleys are somehow reconciled with the main road of advance to the truth."(3)
When we consider this broad sweep of the Hindu philosophic concepts, it would be realised
that under Hindu philosophy, there is no scope for ex-
(2) lbid, p. 32. (3) lbid P. 48.
communicating any notion or principle as heretical and rejecting it as such.
Max Muller who was a great oriental scholar of his time was impressed by this
comprehensive and all-pervasive aspect of the s`weep of Hindu philosophy. Referring to the
six systems known to Hindu philosophy, Max Muller observed: "The longer I have studied
the various systems, the more have I become impressed with the truth of the view taken by
Vijnanabhiksu and others that there is behind the variety of the six systems a common fund of
what may be called national or popular philosophy, a large manasa (lake) of philosophical
thought and language far away in the distant North and in the distant past, from which each
thinker was allowed to draw for his own purposes".(1) Beneath the diversity of philosophic
thoughts, concepts and ideas expressed by Hindu philosophers who started different
philosophic schools, lie certain broad concepts which can be treated as basic. The first
amongst these basic concepts is the acceptance of the Veda as the highest authority in
religious and philosophic matters. This concept necessarily implies that all the systems claim
to have drawn their principles from a common. reservoir of thought enshrined in the Veda.
The Hindu teachers were thus obliged to use the heritage they received from the past in order
to make their views readily understood. The other basic concept which is common to the six
systems of Hindu philosophy is that "all of them accept the view of the great world rhythm.
Vast periods of creation, maintenance and dissolution follow each other in endless
succession. This theory is not inconsistent with, belief in progress; for it is not a question of
the movement of the world reaching its goal times without number, and being again forced
back to its starting point...... It means that the race of man enters upon and retravels its
ascending path of realisation. This interminable succession of world ages has no beginning(2)
It may also be said that all the systems of Hindu philosophy believe in rebirth and pre-
existence. "Our life is a step on a road, the direction and goal of which are lost in the infinite.
On this road, death is never an end of an obstacle but at most the beginning of new steps".(8)
Thus, it is clear that unlike other religions and religious creeds, Hindu religion is not tied to
any definite set of philosophic concepts as such.

69
Do the Hindus worship at their temples the same set or number of gods ? That is another
question which can be asked in this (1) "Six Systems of Indian Philosophy" by Max Muller p.
xvii.
(2) In Philosophy" by Dr. Radhakrishnan, Vol. IT., V.
(3)idib.
L10 Sup. C.I./6"
2 64 connection; and the answer to this question again has to be in the negative. Indeed, there
are certain sections of the Hindu community which do not believe in the worship of idols; and
as regards those sections of the Hindu community which believe in the worship of idols, their
idols differ from community to community and it cannot be said that one definite idol or a
definite number of idols are worshipped by all the Hindus in general. In the Hindu Pantheon
the first gods that were worshipped in Vedic times were mainly Indra, Varuna, Vayu and
Agni. Later, Brahma, Vishnu and Mahesh came to be worshipped. In course ,of time, Rama
and Krishna secured a place of pride in the Hindu Pantheon, and gradually as different
philosophic concepts held sway in different sects and in different sections of the Hindu
,community, a large number of gods were added, with the result that today, the Hindu
Pantheon presents the spectacle of a very large number of gods who are worshipped by
different sections ,of the Hindus.
The development of Hindu religion and philosophy shows that from time to time saints and
religious reformers attempted to remove from the Hindu thought and practices elements of
corruption and superstition and that led to the formation of different sects. Buddha started
Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion,
Dnyaneshwar and Tuk-aram initiated the Varakari cult; Guru Nank inspired Sikhism;
Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and as a result of the
teachings of Ramakrishna and Viveka-nanda, Hindu religion flowered into its most attractive,
progressive and dynamic form. If we study the teachings of these saints and religious
reformers, we would notice an amount of divergence in their respective views; but
underneath that divergence, there is a kind of subtle indescribable unity which keeps them
within the sweep of the broad and progressive Hindu religion.
There are some remarkable features of the teachings of these saints and religious reformers.
All of them revolted against the dominance of rituals and the power of the priestly class with
which it came to be associated; and all of them proclaimed their teachings not in Sanskrit
which was the monopoly of the priestly class, but in the languages spoken by the ordinary
mass of people in their respective regions.
Whilst we are dealing with this broad and comprehensive ,aspect of Hindu religion, it may be
permissible to enquire what, :according to this religion, is the ultimate goal of humanity? It is
the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana,
which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute
absorption and assimilation of the individual soul with the infinite. What are the means to
attain this end ? On this vital issue, there is great divergence of views; some emphasise the
importance of Gyan or knowledge, while others extol the virtues of Bhakti or devotion; and
yet others insist upon the paramount importance of the performance of duties with a heart full
of devotion and mind inspired by true knowledge. In this sphere again, there is diversity of
opinion, though all are agreed about the ultimate goal. Therefore, it would be inappropriate to
apply the traditional tests in determining the extent of the jurisdiction of Hindu religion. It
can be safely described as a way of life based on certain basic concepts to which we have
already referred. Tilak faced this complex and difficult problem of defining or at least
describing adequately Hindu religion and he evolved a working formula which may be
regarded as fairly adequate and satisfactory. Said Tilak : "Acceptance of the Vedas with
reverence; recognition of the fact that the means or ways to salvation are diverse and

70
realisation of the truth that the number of gods to be worshipped is large, that indeed is the
distinguishing feature of Hindu religion"(1). This definition brings out succinctly the broad
distinctive features of Hindu religion. It is somewhat remarkable that this broad sweep of
Hindu religion has been eloquently described by Toynbee. Says Toynbee : "When we pass
from the plane of social practice to the plane of intellectual outlook, Hinduism too comes out
well by comparison with the religions and ideologies of the South- West Asian group. In
contrast to these Hinduism has the same outlook as the pre-Christian and pre-Muslim
religions and philosophies of the Western half of the old world. Like them, Hinduism takes it
for granted that there is more than one valid approach to truth and to salvation and that these
different approaches are not only compatible with each other, but are complementary"(2).
The Constitution-makers were fully conscious of this broad and comprehensive character of
Hindu religion; and so, while guaranteeing the fundamental right to freedom of religion,
Explanation II to Art. 25 has made it clear that in sub- clause (b) of clause (2), the reference
to Hindus shall be construed as (B.G.Tilak's"Gitarahasya") (2) "The Present-Day Experiment
in Western Civilisation" by Toynbee, pp. 48-49.
including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly. Consistently with this
constitutional provision, the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the
Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and Maintenance Act,
1956 have extended the application of these Acts to all persons who can be regarded as
Hindus in this broad and comprehensive sense. Section 2 of the, Hindu Marriage Act, for
instance, provides that this Act applies-
(a)to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b)to any person who is a Buddhist, Jaina, or Sikh by religion, and
(c)to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would
not have been governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.
The same provision is made in the other three Acts to which we have just referred.
It is in the light of this position that we must now proceed to consider whether the philosophy
and theology of Swaminarayan show that the school of Swaminarayan constitutes a distinct
and separate -religion which is not a part of Hindu religion. Do the followers of the said sect
fall outside the Hindu brotherhood, that is the crux of the problem which we have to face in
the present appeal. In deciding this question, it is necessary to consider broadly the
philosophic and theological tenets of Swaminarayan and the characteristics which marked the
followers of Swami narayan who are otherwise known as Satsangis. In dealing with this
aspect of the problem, it would be safe to rely upon the data furnished by Monier Williams in
his book "Religious thought and life in India" (1883). It is hardly necessary to emphasise that
Monier Williams played a very important role in explaining the religious thought and life in
India to the English-speaking world outside India. "Having been a 2 67 student of Indian
sacred literature for more than forty years," observed Monier Williams "and having twice
travelled over every part of India, from Bombay to Calcutta, from Cashmere to Ceylon, I may
possibly hope to make a dry subject fairly attractive without any serious sacrifice of scientific
accuracy, while at the same time it will be my earnest endeavour to hold the scales
impartially between antagonistic religious systems and as far as possible to do justice to the
amount of truth that each may contain" (P.
1). It is remarkable tribute to the scholarship of Monier Williams and of his devotion to the
mission which he had undertaken that though his book was written as early as 1883, it is still

71
regarded as a valuable source of information in dealing with problems connected with the
religious thought and life in India.
Let us then refer briefly to the life story of Swaminarayan for that would help us to
understand and appreciate the significance of his philosophic and religious teachings. The
original name of Swaminarayan was Sahajananda. By birth, he was a high-caste Brahaman.
He was born at Chapai, a village 120 miles to the North-west of Lucknow, about the year
1780. He was born to Vaishnava parents, but early in his career he was "disgusted with the
manner of life of the so-called followers of Vallabhacharya, whose precepts and practice
were utterly at variance, and especially with the licentious habits of the Bombay Maharajas."
He was then determined to denounce these irregularities and expose the vices that had crept
into the lives of the Bombay Maharajas. Swaminarayan was a celibate and he "lived an
ascetical, yet withal a large-hearted and philanthropic, life" and the showed a great aptitude
for learning. In 1800, he left his home and placed himself under the protection of the chief
Guru, named Ramananda Swami at a village within the jurisdiction of the Junagarh Nawab.
When Ramananda Swami removed to Ahmedabad in 1804, Sahajananda followed him. Soon
Sahajananda collected around him a little band of disciples, which rapidly grew "into an army
of devoted adherents". That naturally provoked the wrath of the orthodox Brahmans and
magnates of Ahmedabad who began to persecute him. That drove Sahajananda to Jetalpur, 12
miles south of Ahmedabad, which became the, focus of a great religious gathering.
Thousands of people were attracted by this young religious teacher who now took the name
of Swaminarayan. Swaminarayan then retired to the secluded village of Wartal, where he
erected a temple to Narayana (otherwise Krishna, or Vishnu, as the Supreme Being)
associated with the goddess Lakshmi. From this Central scene of his religious activities,
Swaminarayan mounted a strong crusade 2 68 against the licentious habits of the gurus of the
Vallabhacharya sect. His watchword was "devotion to Krishna with observance of, duty and
purity of life". The two principal temples of the Swaminarayan sect are at Wartal, which is
about four miles to the west of the Baroda railway station, and at Ahmedabad.
In about 1826-27, a formal constitution of the sect appears to have been prepared; it is known
as the 'Iekh' or the document for the apportionment of territory (Deshvibhaga Lekh). By this
document, Swaminarayan divided India into two parts by a national line running from
Calcutta to Navangar and established dioceses, the northern one with the temple of Nar
Narayan at Ahmedabad, and the southern one which included the temple of Lakshminarayan
at Wartal. To preside over these two dioceses Swaminarayan adopted his two nephews
Ayodhyaprasad and Raghuvir respectively. Subordinate to these Gadis and the principal
temples, two score large temples and over a thousand smaller temples scattered all over the
country came to be built in due course.
The Constitution of the Swaminarayan sect and its tenets and practices are collected in four
different scriptures of the faith viz., (1) the "Lekh" to which we have just referred; (2) the
"Shikahapatri" which was originally written by Swaminarayan himself in about 1826 A.D.;
the original manuscript does not appear to be available, but the Shikshapatri was
subsequently rendered into Sanskrit verses by Shatanandswami under the directions of
Swaminarayan himself. This Sanskrit translation is treated by the followers of Swaminarayan
as authentic. This book was later translated into Gujarati by another disciple named
Nityanand. This Shikshapatri is held in high reverence by the followers of the faith as a
prayer book and it contains summary of Swaminarayan's instructions and principles which
have to be followed by his disciples in their lives; (3) the "Satsangijiwan" which consists of
five parts and is written in Sanskrit by Shathnand during the lifetime of Swaminarayan. This
work gives an account of the life and teachings of Swaminarayan. It appears to have been
completed in about 1829. Shikshapatri has been bodily in- corporated in this work; (4) the

72
"Vachanamrit" which is a collection of Swaminarayan's sermons in Gujarati. This appears to
have been prepared between 1828 and 1830. Swaminarayan died in 1830.
It is necessary at this stage to indicate broadly the principles which Swaminarayan preached
and which he wanted his followers to adopt in life. These principles have been suscinctly
sum-
marised by Monier Williams. It is interesting to recall that before Monier Williams wrote his
Chapter on Swaminarayan sect he visited the Wartal temple in company with the Collector of
Kaira on the day of the Purnima, or full moon of the month of Karttik which is regarded as
the most popular festival of the whole year by the Swaminarayan sect. On the occasion of this
visit, Monier Williams had long discussions with the followers of Swaminarayan and he did
his best to ascertain the way Swaminarayan's principles were preached and taught and the
way they were, practised by the followers of the sect. We will now briefly reproduce some of
the principles enunciated by Swaminarayan. "The killing of any animal for the purpose of
sacrifice to the gods is forbidden by me. Abstaining from injury is the highest of all duties.
No flesh meat must ever be eaten, no spirituous or vinous liquor must ever be drunk, not even
as medicine. My male followers should make the vertical mark (emblematical of the footprint
of Vishnu or Krishna) with the round spot inside it (symbolical of Lakshmi) on their
foreheads. Their wives should only make the circular mark with red powder or saffron. Those
who are initiated into the proper worship of Krishna should always wear on their necks two
rosaries made of `Tulsi wood, one for Krishna and the other for Radha. After engaging in
mental worship, let them reverently bow down before the pictures of Radha and Krishna, and
repeat the eight-syllabled prayer to Krishna (Sri Krishnan saranam mama, 'Great Krishna is
my soul's refuge') as many times as possible. Then let them apply themselves to secular
affairs. Duty (Dharma) is that good practice which is enjoined both by the Veda (Sruti) and
by the law (Smriti) founded on the Veda. Devotion (Bhakti) is intense love for Krishna
accompanied with a due sense of his glory. Every day all my followers should go to the
Temple of God, and there repeat the names of Krishna. The story of his life should be
listened to with the great reverence, and hymns in his praise should be sung on festive days.
Vishnu, Siva, Ganapati (or Ganesa), Parvati, and the Sun; these five deities should be
honoured with worship. Narayana and Siva should be equally regarded as part of one and
same Supreme Spirit, since both have been declared in the Vedas to be forms of Brahma. On
no account let it be supposed that difference in forms (or names) makes any difference in the
identity of the deity. That Being, known by various names
-such as the glorious Krishna, Param Brahma, Bhagavan, Puru- shottama-the cause of all
manifestations, is to be adored by us as our one chosen deity. The philosophical doctrine
approved by me is the Visishtadvaita (of Ramanuja), and the desired heavenly abode is
Goloka. there to worship Krishna and be united with him as the Supreme Soul is to be
considered salvation. The twice born should perform at the proper seasons, and according to
their means, he twelve purification rites (sankara), the (Six) daily duties, and the Sradha
offerings to the spirits of departed ancestors. A pilgrimage to the Tirthas, or holy places, of
which Dwarika (Krishna's city in Gujarat) is the chief, should be performed according to rule.
Almsgiving and kind acts towards the poor ,Should always be performed by all. A tithe of
one's income should be assigned to Krishna; the poor should give a twentieth part. Those
males and females of my followers who will act according to these directions shall certainly
obtain the four great objects of all human desires-religious merit, wealth, pleasure, and
beatitude"(1).
The Gazetteer of the Bombay Presidency has summarised the teachings embodied in the
Shikshapatri in this way :-

73
"The book of precepts strictly prohibits the destruction of animal life; promiscuous
intercourse with the other sex; use of animal food and intoxicant liquors and drugs on any
occasion, suicide, theft and robbery; false accusation against a fello-wman, blasphemy;
partaking of food with low caste people; caste pollution; company of atheists and heretics and
other practices which might counteract the effect of the founder's teachings".(2) It is
interesting to notice how a person is initiated into the sect of Satsangis. The ceremony of
initiation is thus described in the Gazetteer of the Bombay Presidency :-
"The ceremony of initiation begins with the novice offering a palmful of water which he
throws on the ground at the feet of the Acharya saying : I give over to Swami Sahajanand my
mind, body, wealth, and sins of (all) births, 'Man', tan, dhan, and janmana pap. He is then
given the sacred formula 'Sri Krishnastwam gatirmama, Shri Krishna thou art my refuge. The
novice then pays at least half a rupee to the Acharya. Sometimes the Acharya delegates his
authority to admit followers as candidates for regular discipleship, giving them the Panch
Vartaman, formula forbiding lying, theft, adultery, intoxication and animal food. But a (1)
"Religious thought and life in India"' By Monier Williams pp. 155-58.
(2) Gazetteer of the Bombay Presidency, Vol. IX, Part 1, Gujarat Population, 1901, p. 537.
2 7 1 .lm15 perfect disciple can be made only after receiving the final formula from one of
the two Acharyas. The distinguishing mark, which the disciple is then allowed to make on his
forehead, is a vertical streak of Gopichandan clay or sandal with a round redpowder mark in
the middle and a necklet of sweet basil beads".(1) Now that we have seen the main events in
the life and career of Swaminarayan and have examined the broad features of his teachings, it
becomes very easy to, decide the question as to whether the Swammarayan sect constitutes a
distinct and separate religion and cannot be regarded as a part of Hindu religion. In our
opinion, the plea raised by the appellants that the Satsangis who follow the Swaminarayan
sect form a separate and distinct community different from the Hindu community and their
religion is a distinct and separate religion different from Hindu religion, is entirely
misconceived. Philosophically, Swaminarayan is a follower of Ramanuja, and the essence of
his teachings is that every individual should follow the main Vedic injunctions of a good,
pious and religious life and should attempt to attain salvation by the path of devotion to Lord
Krishna. The essence of the initiation lies in giving the person initiated the secret 'Mantra'
which is : "Lord Krishna, thou art my refuge : Lord Krishna, I dedicate myself to thee'.
Acceptance of the Vedas with reverence recognition of the fact that the path of Bhakti or
devotion leads to Moksha, and insistence on devotion to Lord Krishna unambiguously and
unequivocally proclaim that Swaminarayan was a Hindu saint who was determined to remove
the corrupt practices which had crept into the lives of the preachers and followers of
Vallabhacharya, and who wanted to restore the Hindu religion to its original glory and purity.
Considering the work done by Swaminarayan, history will not hesitate to accord him the
place of honour in the galaxy of Hindu saints and religious reformers who by their teachings,
have contributed to make Hindu religion ever alive, youthful and vigorous. It is, however,
urged that there are certain features of the Satsangi followers of Swaminarayan which
indicate that the sect is a different community by itself and its religion is not a part of Hindu
religion. It is argued that no person becomes a Satsangi by birth and it is only by initiation
that the status of Satsangi is conferred on a person. Persons of other religions and Harijans
can join the Satsangi sect by initiation. Swaminarayan himself is (1) Gazetteer of the Bombay
Presidency, Vol. IX Part 1, Gujarat Population, pp. 538-39.
2 72 .
treated as a God and in the main temple, worship is offered to Swaminarayan pre-eminently;
and that, it is argued, is not consistent with the accepted notions of Hindu religion. Women
can take Diksha and become followers of Swaminarayan though Diksha to women is given
by the wife of the Acharya. Five vows have to be taken by the followers of the Satsang, such

74
as abstinence from drinking, from non-vegetarian diet, from illegal sexual relationship, from
theft and from inter- pollution. Separate arrangements are made for Darshan for women,
special scriptures are honoured and special teachers are appointed to worship in the temples.
Mr. Desai contends that having regard to all these distinctive features of the Swaminarayan
sect, it would be difficult to hold that they are members of the Hindu community and their
temples are places of public worship within the meaning of s. 2 of the Act.
We are not impressed by this argument. Even a cursory study of the growth and development
of Hindu religion through the ages shows that whenever a saint or a religious reformer
attempted the task of reforming Hindu religion and fighting irrational or corrupt practices
which had crept into it, a sect was born which was governed by its own tenets, but which
basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy. It
has never been suggested that these sects are outside the Hindu brotherhood and the temples
which they honour are not Hindu temples, such as are contemplated by s. 3 of the Act. The
fact that Swaminarayan himself is worshipped in these temples is not inconsistent with the
belief which the teachings of Bhagvad- Gita have traditionally created in all Hindu minds.
According to the Bhagvad-Gita, whenever religion is on the decline and irreligion is in the
ascendance, God is born to restore the balance of religion and guide the destiny of the human
race towards salvation.(1) The birth of every saint and religious reformer is taken as an
illustration of the principle thus enunciated by Bhagvad-Gita; and so, in course of time, these
saints themselves are honoured, because the presence of divinity in their lives inevitably
places them on the high pedestal of divinity itself. Therefore, we are satisfied that none of the
reasons on which Mr. Desai relies, justifies his contention that the view taken by the High
Court is not right.
It is true that the Swaminarayan sect gives Diksha to the followers of other religions and as a
result of such initiation, they Gita 4 .7.
become Satsangis without losing their character as the followers of their own individual
religions. This fact, however, merely shows that the Satsang philosophy preached by
Swaminarayan allows followers of other religions to receive the blessings of his teachings
without insisting upon their forsaking their own religions. The fact that outsiders are willing
to accept Diksha or initiation is taken as an indication of their sincere desire to absorb and
practice the philosophy of Swaminarayan and that alone is held to be enough to confer on
them the benefit of Swaminarayan's teachings. The fact that the sect does not insist upon the
actual process of proselytising on such occasions has really no relevance in deciding the
question as to whether the sect itself is a Hindu sect or not. In a sense, this attitude of the
Satsang sect is consistent with the basic Hindu religious and philosophic theory that many
roads lead to God. Didn't the Bhagavad-Gita say: "even those who profess other religions and
worship their gods in the manner prescribed by their religion, ultimately worship me and
reach me."(1) Therefore, we have no hesitation in holding that the High Court was right in
coming to the conclusion that the Swaminarayan sect to which the appellants belong is not a
religion distinct and separate from Hindu religion, and consequently, the temples belonging
to the said sect do fall within the ambit of s. 2 of the Act.
The present suit began its career in 1948 and it was the result of the appellants' apprehension
that the proclaimed and publicised entry of the non-Satsangi Harijans would constitute a
violent trespass on the religious tenets and beliefs of the Swaminarayan sect. The appellants
must no doubt, have realised that if non-Satsangi Hindus including Harijans enter the temple
quietly without making any public announcement in advance, it would be difficult, if not
impossible, to bar their entry; but since respondent No. 1 publicly proclaimed that he and his
followers would assert their right of entering the temples, the appellants thought occasion had
arisen to bolt the doors of the temples against them; and so, they came to the Court in the
present proceedings to ask for the Court's command to prevent the entry of respondent No. 1

75
and his followers. It may be conceded that the genesis of the suit is the genuine apprehension
entertained by the appellants; but as often happens in these matters, the said apprehension is
founded on superstition, ignorance and complete misunderstanding of the true teachings Gita
9.23.
27 4 of Hindu religion and of the real significance of the tenets and philosophy taught by
Swaminarayan himself. While this litigation was slowly moving from Court to Court, mighty
events of a revolutionary character took place on the national scene. The Constitution came
into force on the 26th January, 1950 and since then, the whole social and religious outlook of
the Hindu community has undergone a fundamental change as a result of the message of
social equality and justice proclaimed by the Indian Constitution. We have seen how the
solemn promise enshrined in Art. 17 has been gradually, -but irresistibly, enforced by the
process of law assisted by enlightened public conscience. As a consequence, the controversy
raised before us in the present appeal has today become a matter of mere academic interest.
We feel confident that the view which we are taking on the merits of the dispute between the
parties in the present appeal not only accords with the true legal position in the matter, but it
will receive the spontaneous approval and response even from the traditionally conservative
elements of the Satsang community .Whom the appellants represent in the present litigation.
In conclusion, we would like to emphasise that the right to enter temples which has been
vouchsafed to the Harijans by the impugned Act in substance symbolises the right of Harijans
to enjoy all social amenities and rights, for, let it always be remembered that social justice is
the main foundation of the democratic way of life ,,enshrined in the provisions of the Indian
Constitution.
The result is, the appeal fails and is dismissed with costs. Appeal dismissed.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 124 of 2013
Decided On: 24.12.2013
Appellants: Niranjani Roshan Rao

Vs.

Respondent: Roshan Mark Pinto

Hon'ble Judges/Coram:
V.K. Tahilramani and V.L. Achliya, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. Rahul Nerlekar, Advocate
For Respondents/Defendant: Mr. Ananth Iyengar, Advocate

JUDGMENT

V.K. Tahilramani, J.
1. The appellant/original petitioner-wife has preferred this appeal against the order dated
18.4.2013 passed in Family Court Petition No. 2877 of 2011. In brief the facts leading to
filing of the appeal are summarized as under:
(i) The appellant/original petitioner-wife had filed the petition seeking decree of nullity of
marriage and alternatively claimed the decree of divorce. In nutshell, the appellant had
approached with the case that on 13.1.1999, she was married to respondent as per Hindu rites

76
and rituals. At the time of marriage the appellant was Hindu and respondent was Christian.
After the marriage they continued to profess their respective religion. At the time of filing of
the petition also they continue to practice and follow their respective religion.
(ii) The appellant had filed petition under Section 11 of Hindu Marriage Act, 1955, seeking
decree of nullity on the ground that their marriage was null and void as same being in
contravention of essential condition of valid marriage provided under Section 5 of Hindu
Marriage Act. By way of alternate relief, the appellant had claimed decree of divorce under
Section 13(1)(i-a) of Hindu Marriage Act, on the ground of cruelty. Since the learned Judge
of Family Court has rejected the petition of the appellant in exercise of powers under Order 7
Rule 11 of Civil Procedure Code, it is not necessary for us to state in detail the facts pleaded
in the petition as well as the case of the respondent.
(iii) In view of the fact that respondent i.e. the husband has admitted the fact that at the time
of the marriage and since thereafter he continued to be Christian though their marriage was
performed as per Hindu rights and rituals the appellant had taken out the application under
Order XII Rule 6 of CPC seeking decree of nullity of marriage on the ground of admission
given by the respondent. The learned Judge of the Family Court on consideration of the
application taken out by the petitioner-appellant and the pleading on 27-05-2019 (Page 1 of
6) www.manupatra.com Damodaram Sanjivayya National Law University record, reached to
prima facie conclusion that the petition discloses no cause of action which needs to be
adjudicated by the Court and issued notice to appellant to show cause as to why the petition
shall not be rejected under Order 7 Rule 11(a) and (d) of CPC.
(iv) Although the petitioner-appellant has not filed say to the notice issued by the learned
Judge of the Family Court, but filed written arguments. The learned Judge of the Family
Court, after hearing the parties and considering the facts pleaded in the petition that at the
time of marriage the petitioner- wife was Hindu by religion and respondent-husband was
Christian and continued to practice and profess their respective religion, rejected the petition
in exercise of powers under Order 7 Rule 11 of C.P.C., as the petition discloses no triable
cause of action. Being aggrieved by the order of rejection of petition, the appellant has
preferred this appeal.
2. We have heard the learned Advocates appearing for the appellant as well as the
respondent. After carefully scrutinizing the impugned order in the light of the pleadings of
the parties and the relevant provisions of the Hindu Marriage Act, 1955, for the reasons
mentioned herein above, we are of the view that the order impugned by way of this appeal is
perfectly legal and calls for no interference in exercise of appellate jurisdiction, by this Court.
3 . The appellant is seeking decree of nullity of marriage under Section 11 of the Hindu
Marriage Act. Section 11 of the Hindu Marriage Act reads thus:
11. Void marriages: Any marriage solemnized after the commencement of this Act shall be
null and void and may, on a petition presented by either party thereto [against the other
party], be so declared by a decree of nullity if it contravenes any one of the conditions
specified in Clauses (i), (iv) and (v) of Section 5. Section 2 of the Hindu Marriage Act clearly
states that the petition can be filed by the parties who are both Hindus. Section 5 of the Hindu
Mariage Act provides the conditions for a Hindu marriage. In the beginning itself, it is
provided that the marriage must be solemnized between any two Hindus. As mentioned
above, the appellant herself has seated that the respondent was not a Hindu at the time of
marriage or even thereafter. If this condition is not fulfilled and there was no contravention of
provisions laid down under Section 5 of the Hindu Marriage Act, the Family Court was right
in observing that the appellant has no right to file such a petition.
4. In the present case, there is no contravention of the Clauses (i), (iv) and (v) of Section 5.
Clauses (i), (iv) and (v) of Section 5 reads thus:

77
5. Conditions for a Hindu marriage--A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely--
(i) neither party has a spouse living at the time of the marriage;
(ii)........................
(iii)........................
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or
usage governing each of them permits of a marriage between the two; 27-05-2019 (Page 2 of
6) www.manupatra.com Damodaram Sanjivayya National Law University

(v) the parties are not Sapindas of each other, unless the custom or usage governing each of
them permits of marriage between the two.
It is not the case of the appellant that she or the respondent were earlier married and hence,
had a spouse living at the time of the marriage. It is not even her case that they were within
the degrees of prohibited relationship or were Sapindas of each other. In such case, the
marriage cannot be held to be null and void under Section 11 of the Hindu Marriage Act.
5. If, we consider the undisputed facts then fact is not in dispute that at the time of marriage
the appellant was Hindu by religion and respondent was Christian. They performed marriage
as per Hindu rites and rituals. It is also not in dispute that after their marriage, they continue
to practice and profess their respective religion.
Therefore, the first and foremost question falls for our consideration is whether at all the
provisions of Marriage Act, 1955 can be invoked by petitioner to claim any relief.
In this context it is useful to refer the provision of Section 2 of Hindu Marriage Act, 1955,
which provides for applicability of the provisions of the said Act. Section 2 of the Hindu
Marriage Act, reads as follows:
2. Application of Act (1)--This Act applies--
(a) to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would
not have been governed by the Hindu Law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.

(Emphasis supplied)
Explanation--The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the
case may be--
(b).................; and
(c)..................
(2)..................
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion is, nevertheless, a person to whom this Act
applies by virtue of the provisions contained in this Section.
Thus the plain reading of Section 2 explicitly provides that the provisions of Hindu Marriage
Act 1955 can be availed and applicable when both the spouses are Hindus and their marriage
is performed as per Hindu rites and rituals and the marriage is a valid marriage within the
meaning of Section 5 of Hindu Marriage Act. It is also necessary that at the time of filing
petition, both the spouses are Hindus by religion except for seeking remedy of divorce under
Section 13(1)(c) of the Hindu Marriage Act i.e. on the ground of 27-05-2019 (Page 3 of 6)
www.manupatra.com Damodaram Sanjivayya National Law University
person ceases to be Hindu due to conversion to another religion.

78
6 . In the present case, according to the appellant, at the time of performing the marriage with
the respondent, the appellant was Hindu by religion and the respondent was Christian. They
performed the marriage as per the Hindu rites and rituals. After their marriage in the year
1999, they continued to profess their respective religion till filing of this petition. The
petitioner is professing Hindu religion whereas the respondent continued to practice and
profess Christian religion.
Thus at the time of their marriage as well as at the time of filing of petition, both petitioner
and respondent were not Hindus by religion and same position is continued till filing of
petition. In view of this admitted position, the learned Judge of the Family Court has held that
petition discloses no cause of action and so also the jurisdiction of the Court is barred under
law to entertain and prosecute such petition under the provisions of Hindu Marriage Act. On
reaching to such conclusion, the learned Judge has invoked powers under Order VII Rule 11
of CPC and rejected the petition. Therefore, in our view the reasons recorded by the learned
Judge in rejecting the petition is legal and calls for no interference in exercise of appellate
jurisdiction.
7. The issue raised in this petition remains no more res Integra as the Division Bench of this
Court in the case of Smt. Neeta Kirti Desai v. Bino Samuel George, MANU/MH/0033/1998 :
II (1998) DMC 134 (DB) : 1998 (1) Bom. C.R. 263, has laid down that when both the
spouses are Hindus, they are regulated under the Hindu Marriage Act. If one of the party to
such marriage is not Hindu the provisions of Hindu Marriage Act, 1955 cannot be invoked to
seek the remedy under the said Act.
The Court has held as under:
The Family Court Act creates a forum. The Family Court Act has not settled the rights and
obligations between the parties viz. restitution of conjugal rights, judicial separation, nullity
of marriage and divorce. When both the spouses are Hindus, they are regulated under the
Hindu Marriage Act, 1955.
Undisputedly, petition was presented on the ground that at the time of marriage, petitioner's
husband was a Christian. If that be so, having regard to the revisions of Section 2, the Hindu
Marriage Act, 1955 has no application for seeking any of the reliefs including the nullity of
the marriage.
Petition, as present, was, therefore, untenable.
8. Learned Advocate for the appellant submitted that the consent to the marriage was
obtained by fraud and hence, Section 12(c) of the Hindu Marriage Act would come into play.
He submitted that the petition ought to have been preferred under Section 12(c) of the Hindu
Marriage Act. Section 12(c) reads as under:
12. Voidable marriages: (1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on
any of the following grounds, namely--
(a)................
(b)................
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner [was, required under Section
5, as it stood immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or
by fraud as to the nature of the ceremony or as to any material fact or circumstance

27-05-2019 (Page 4 of 6) www.manupatra.com Damodaram Sanjivayya National Law

University

concerning the respondent]; or

79
(d).........................
9 . Though, this stand has been taken belatedly, we have examined the same. As observed in
foregoing paras, the appellant has stated in her petition that her father and the respondent's
father were close friends. The appellant and the respondent were acquainted with each other
since their childhood. Their marriage was love marriage. In the petition itself, she has stated
that she was a Hindu by religion and the respondent was a Christian by religion and he did
not convert himself into Hindu religion. It is not the case of the appellant anywhere in the
petition that she came to know just before filing of the petition that the respondent was a
Christian.
10. The surname of the respondent is 'Pinto' which is distinctly a Christian surname and can
never be a Hindu surname. Not only has the appellant not averred in the petition that she did
not know at the time of the marriage that the respondent was not a Hindu but from the fact
that surname of the respondent is 'Pinto' and other facts, it was clearly to the knowledge of
the appellant that the respondent was a Christian at the time of the marriage. Thus, it is too
late in the day to contend that her consent to the marriage was obtained by fraud and that the
respondent had concealed from her the fact that he was a Christian. It is pertinent to note that
in the petition, the appellant has stated that her parents in fact opposed the marriage as she
and the respondent were from different religions. Thus, now the appellant cannot contend that
the respondent had concealed the fact from her that he was a Christian and therefore she is
entitled to a decree of nullity on the ground that her consent was obtained by fraud by
concealing the fact that the respondent was a Christian.
11. Thus, in this view of the matter, as far as the prayer for nullity of marriage is concerned,
the petition does not disclose any cause of action. The Family Court was right in holding that
the petition does not disclose the cause of action and the same is barred by law under Order 7
Rule 11(a) and (d) of CPC.
12. Learned Advocate for the appellant submitted that under the Hindu Marriage Act, the
marriage can be performed only between two Hindus and if any one of the partis or both are
not Hindus, the marriage would be a nullity. In support of his contention, he has placed
reliance on a decision in the case of Gullipilli Sowria Raj v. Bandaru Pawani @ Gullipilli
Pawani, MANU/SC/8368/2008 : I (2009) DMC 164 (SC) : 1 (2009) 1 SCC 714. We had
carefully gone through the said decision. We find that in the said case, the respondent-wife
had filed a petition before the Family Court under Section 12(1)(c) of the Hindu Marriage
Act for a decree of nullity of the marriage.
The main ground taken therein was misrepresentation by the husband that he was a Hindu by
religion. In the said case, the wife was a Hindu and the husband was a Christian and the
marriage was performed under Hindu Marriage Act and was also registered under Section 8
thereof. However, the main distinction between the decision relied on and the present case is
that the respondent-husband therein had suppressed the fact that he was a Christian at the
time of the marriage and hence, the wife married him thinking him to be a Hindu. Later on,
when she came to know that the husband was a Christian, she filed the petition under Section
12(1)(c) for a decree of nullity of marriage on the ground that she had been beguiled into the
marriage by the husband on fraudulent considerations, one of which was that he was a Hindu
at the time of marriage. Such are not the facts in the present case. In the present case, the
appellant knew since the beginning that the respondent was a Christian, hence, there is no
case of force or fraud in the present case. No averments to that effect have also been made in
the petition before the Family Court. Thus, this decision cannot be made applicable to the
facts of the present case.

27-05-2019 (Page 5 of 6) www.manupatra.com Damodaram Sanjivayya National Law

University

80
13. In view of the conclusion to which we have reached, we are of the view that order passed
by the learned Judge of the Family Court is perfectly legal and calls for no interference in
exercise of appellate jurisdiction. In the result, the appeal

Surajmani Stella Kujur v. Durga Charan Hansdah

AIR 2001 SC 938 : (2001) 3 SCC 13

R.P. SETHI, J. - 2. Who is a ―Hindu‖ for the purposes of the applicability of the Hindu
Marriage Act, 1955 (―the Act‖) is a question of law to be determined in this appeal.

3. Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses
(a), (b) and (c) of sub-section (1) of Section 2 make the Act applicable to a person who
is a Hindu by religion in any of its forms or developments including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to a person who is
a Buddhist, Jain or Sikh by religion. It is also applicable to any other person domiciled
in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The
applicability of the Act is, therefore, comprehensive and applicable to all persons
domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by
religion.

4. The term ―Hindu‖ has not been defined either under the Act or the Indian
Succession Act or any other enactment of the legislature. As far back as in 1903 the
Privy Council in Bhagwan Koer v. J.C. Bose [ILR (1902) 31 Cal 11, 15] observed:

We shall not attempt here to lay down a general definition of what is meant by
the term ‗Hindu‘. To make it accurate and at the same time sufficiently
comprehensive as well as distinctive is extremely difficult. The Hindu religion
is marvellously catholic and elastic. Its theology is marked by eclecticism and
tolerance and almost unlimited freedom of private worship. Its social code is
much more stringent, but amongst its different castes and sections exhibits wide
diversity of practice. No trait is more marked of Hindu society in general than
its horror of using the meat of the cow. Yet the Chamars who profess Hinduism,
but who eat beef and the flesh of dead animals, are however low in the scale
included within its pale. It is easier to say who are not Hindus, and practically
the separation of Hindus from non-Hindus is not a matter of so much difficulty.
The people know the differences well and can easily tell who are Hindus and
who are not.

5. The Act, is, therefore, applicable to: (1) All Hindus including a Virashaiva, a
Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist, (2) Buddhists; (3) Jains;
(4) Sikhs.

6. In this appeal the parties are admittedly tribals, the appellant being an Oraon and
the respondent a Santhal. In the absence of a notification or order under Article 342 of
the Constitution they are deemed to be Hindus. Even if a notification is issued under the
Constitution, the Act can be applied to Scheduled Tribes as well by a further
notification in terms of sub-section (2) of Section 2 of the Act. It is not disputed before
us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled
Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of

81
1987 and 15 of 1990, both the tribes to which the parties belong are specified in Part
XII. It is conceded even by the appellant that ―the parties to the petition are two
tribals, who otherwise profess Hinduism, but their marriage being out of the purview of
the Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed
only by their Santhal customs and usage‖.

7. The appellant has, however, relied upon an alleged custom in the tribe which
mandates monogamy as a rule. It is submitted that as the respondent has solemnised a
second marriage during the subsistence of the first marriage with the appellant, the
second marriage being void, the respondent is liable to be prosecuted for the offence
punishable under Section 494 of the Indian Penal Code.

8. No custom can create an offence as it essentially deals with the civil rights of the
parties and no person can be convicted of any offence except for violation of law in
force at the time of commission of the act charged. Custom may be proved for the
determination of the civil rights of the parties including their status, the establishment
of which may be used for the purposes of proving the ingredients of an offence which,
under Section 3(37) of the General Clauses Act, would mean an act or omission
punishable by any law by way of fine or imprisonment. Article 20 of the Constitution,
guaranteeing protection in respect of conviction of offence, provides that no person
shall be convicted of any offence except for violation of law in force at the time of
commission of the act charged as an offence. Law under Article 13 clause (3) of the
Constitution means the law made by the legislature including intra vires statutory
orders and orders made in exercise of powers conferred by the statutory rules.

9. The expression ―custom and usage‖ has been defined under Section 3(a) of the Act
as:

3. (a) the expression ‗custom‘ and ‗usage‘ signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of
law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public
policy; and Provided further that in the case of a rule applicable only to a
family it has not been
discontinued by the family;

10. For custom to have the colour of a rule or law, it is necessary for the party
claiming it, to plead and thereafter prove that such custom is ancient, certain and
reasonable. Custom being in derogation of the general rule is required to be construed
strictly. The party relying upon a custom is obliged to establish it by clear and
unambiguous evidence. In Ramalakshmi Ammal

v. Sivanantha Perumal Sethurayar [(1871-72) 14 Moo IA 570, 585-86] it was held:

It is of the essence of special usages, modifying the ordinary law of succession

that they should be ancient and invariable; and it is further essential that they
should be established to be so by clear and unambiguous evidence. It is only by
means of such evidence that the courts can be assured of their existence, and

82
 that they possess the conditions of antiquity and certainty on which alone their
legal title to recognition depends.

12. The importance of the custom in relation to the applicability of the Act has been
acknowledged by the legislature by incorporating Section 29 saving the validity of a
marriage solemnised prior to the commencement of the Act which may otherwise be
invalid after passing of the Act. Nothing in the Act can affect any right, recognised by
custom or conferred by any said enactment to obtain the dissolution of a Hindu
marriage whether solemnised before or after the commencement of the Act even
without the proof of the conditions precedent for declaring the marriage invalid as
incorporated in Sections 10 to 13 of the Act.

13. In this case the appellant filed a complaint in the Court of Chief Metropolitan
Magistrate, New Delhi stating therein that her marriage was solemnised with the
respondent in Delhi ―according to Hindu rites and customs. Alleging that the
respondent has solemnised another marriage with Accused 2, the complainant pleaded:

That Accused 1 has not obtained any divorce through the court of law up to
this date and hence the action of Accused 1 is illegal and contravenes the
provision of law as laid down under Section 494 IPC.

14. Nowhere in the complaint the appellant has referred to any alleged custom
having the force of law which prohibits the solemnisation of second marriage by the
respondent and the consequences thereof. It may be emphasised that mere pleading of
a custom stressing for monogamy by itself was not sufficient unless it was further
pleaded that second marriage was void by reason of its taking place during the life of
such husband or wife. In order to prove the second marriage void, the appellant was under
an obligation to show the existence of a custom which made such marriage null, ineffectual,
having no force of law or binding effect, incapable of being enforced in law or non est. The
fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC.
It is settled position of law that for fastening the criminal liability, the prosecution or the
complainant is obliged to prove the existence of all the ingredients constituting the crime
which are normally and usually defined by a statute. The appellant herself appears to be not
clear in her stand inasmuch as in her statement in the court recorded on 24-10-1992 she has
stated that ―I am a Hindu by religion‖. The complaint was dismissed by the trial court
holding, ―there is no mention of any such custom in the complaint nor is there evidence of
such custom. In the absence of pleadings and evidence reference to book alone is not
sufficient‖. The High Court vide the judgment impugned in this appeal held that in the
absence of notification in terms of sub-section (2) of Section 2 of the Act no case for
prosecution for the offence of bigamy was made out against the respondent because the
alleged second marriage cannot be termed to be void either under the Act or any alleged
custom having the force of law.

15. In view of the fact that parties admittedly belong to the Scheduled Tribes within the
meaning of clause (25) of Article 366 of the Constitution as notified by the Constitution
(Scheduled Tribes) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes
Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 passed in terms
of Article 342 and in the absence of specific pleadings, evidence and proof of the alleged
custom making the second marriage void, no offence under Section 494 of the Indian Penal
Code can possibly be made out against the respondent. The trial Magistrate and the High Court
have rightly dismissed the complaint of the appellant.
16. There is no merit in this appeal which is accordingly dismissed.

83
UNIT - II

Supreme Court of India

Smt. Lata Kamat vs Vilas on 29 March, 1989

Equivalent citations: 1989 AIR 1477, 1989 SCR (2) 137
PETITIONER:
SMT. LATA KAMAT

Vs.

RESPONDENT:
VILAS

)
BENCH:
OZA, G.L. (J)
PANDIAN, S.R. (J)

judgment:

Anr., [1967] 1 SCR 864; Tejinder Kaur v. Gurmit Singh, A IR [1988] SC 839; Vathsala
v. N. Manoharan, AIR (1969) Madr as 405, referred to.

Mohanmurari v. Srnt. Kusumkumari, AIR (1965) M.P. 19 4;

Jamboo Prasad Jain v. Smt. Malti Prabha, AIR 1979 Allahab ad 260; Pramod Sharma v. Smt.
Radha, AIR (1976) Punjab 35 5, overruled.

(5) So far as clause (3) of Section 29 of the Limitati on Act is concerned, the impact of it will
be that the provisions of the Limitation Act will not apply so far as a su it or an original
proceeding under the Hindu Marriage Act is concerned, but clause (3) will not govern an
appeal. [149E] (6) To an appeal under section 28 of the Hindu Marria ge Act, provisions
contained in section 12 clause (2) of t he Limitation Act will be applicable, and therefore, the
ti me required for obtaining copies of the judgment will have to be excluded for computing
the period of limitation f or appeal. [149G-H] Chander Dev Chadha v. Smt. Rani Bala, AIR
(1979) Del hi 22; Smt. Sipra Dey v. Ajit Kumar Dey, AIR (1988) Cal 28 a nd Kantibai v.
Kamal Singh Thakur, AIR (1978) M.P. 245, referred to.

& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 708 of 1988.

84
From the Judgment and Order dated 20.2. 1987 of t he Bombay High Court in S.A. No. 282
of 1985. Mrs. Shyamla Pappu, K.K. Rai and Mrs. Indira Sawhney f or the Appellant.

G.L. Sanghi and A.K. Sanghi for the Respondent. The Judgment of the Court was delivered
by OZA, J. This appeal after leave has been filed by the appe l-

lant wife arising out of a decree under Section 12(1)(d) of t he Hindu Marriage Act
(hereinafter referred to as the 'Act'), a decree declaring the marriage a nullity. The respondent
husband instituted a petition on 7 th March, 1984 for a declaration that the marriage of t he
respondent with the appellant wife was a nullity under subsection (1) sub-clause (d) of
section 12 of the Act on t he ground that appellant, the wife at the time of marriage wi th the
respondent was pregnant by some one other than t he respondent. The appellant wife
contested the allegations a nd ultimately the IIIrd Joint Civil Judge, Senior Divisi on Nagput
granted a decree in favour of the respondent by h is judgment dated 3rd May, 1985 declaring
the marriage to be a nullity.

The appellant wife filed a regular civil appeal No. 4 of 1985 on 19.7.1985 before the IInd
Additional Distri ct Judge, Nagput. Before this appeal could be filed, the respondent husband
married one Miss Sarita daughter of Laxmanrao Modak on 27.6.1985, and in the appeal filed
by the appellant, the respondent raised a preliminary objecti on contending that after passing
of the judgment and decr ee dated 3.5.1985 by the trial court he has married Sari ta daughter
of Laxmanrao Modak on 27.6.1985. It was furth er alleged in the application that this
marriage was solemnis ed on 27.6.1985 when there was no impediment against the
respondent husband which could come in his way for contracti ng this marriage as the parties
were relegated to the positi on as if they were not married and therefore this marriage
performed on 27.6.1985 of respondent with Sarita was leg al and valid and the consequence
of this is that the appe al filed by the appellant was not tenable having been render ed
infructuous. The IInd Additional District Judge, Nagpur vi de his order dated 17.8.1985
allowed the objection of t he respondent and dismissed the appeal as infructuous with a
direction to the parties to bear their own respective costs.

Against this the appellant preferred a second appe al before the High Court. The High Court
by its judgment dat ed 20.2.1987 dismissed the appeal holding that as the appe al was filed by
the appellant after the re-marriage of t he respondent it has become infructuous. The learned
Judge also dismissed the application for maintenance pendent elite and aggrieved by this
judgment of the High Court after obtaini ng leave this appeal is filed in this Court. It was
contended by learned counsel for the appella nt that the language of Sec. 15 clearly goes to
show that it refers to a marriage which has been dissolved and it also talks of fight of appeal
against the decree. In view of this language used in Sec. 15 it is not possible to distinguish
between a decr ee of nullity under Section 11 or 12 and decree of divor ce under Section 13.
It was contended that the word 'divorc e' has been used in this provision in a broader sense
indicating that where the marriage is dissolved or the relationsh ip is brought to an end by
decree of court whether it is by declaring the marriage invalid or dissolving it by a decr ee but
result is the same and it was contended that it is because of this that in this Act there is neither
any specific definition provided for the term 'divorce' or a decr ee of divorce. It was also
contended that when language of Section 15 refers to a fight of appeal will have to look to the
provision providing for an appeal and Sec. 28 of the A ct which provides for appeals against
all decrees made by t he court in proceedings under this Act. It was therefore contended that
the interpretation put by the lower court on t he basis of judgments of some of the High
Courts that Sec. will not apply to a decree under Sec. 12 but would on ly apply when there is

85
a decree under Sec. 13 does not appe ar to be the correct view and on this basis it was
contended by learned counsel for the appellant that the courts below we re wrong in coming
to the conclusion that the appeal had beco me infructuous because the respondent has married
a second time.

Learned counsel also referred to meaning of the wo rd 'divorce' in Webster's Third New
International Dictiona ry and Shorter Oxford English Dictionary. Learned counsel in support
of her contentions referred to the two decisions of this Court in Chandra Mohini Srivastava v.
Avinash Pras ad Srivastava & another, [1967] 1 SCR 864 and Tejinder Kaur v.

Gurmit Singh, AIR 1988 SC 839 Although on the basis of the se decisions what was
contended was that the provisions of t he Act have to be interpreted broadly. Learned counsel
al so placed reliance on the decision in Vathsala v. N. Manohara n, AIR 1969 Madras 405.
Learned counsel however, conceded th at there are decisions in Mohanmurari v. Smt.
Kusumkumari, A IR 1965 M.P. 194;. Jamboo Prasad Jain v. Smt. Malti Prabha a nd Anr.,
AIR 1979 Allahabad 260 and Pramod Sharma v. Sm t.

Radha, AIR 1976 Punjab 355 where the question of Section in relation to a decree under Sec.
12 has been specifical ly considered and decided against the appellant, but learn ed counsel
contended that the scope and language of Sec. coupled with the language of Sec. 28 has not
been consider ed by any one of these courts. Learned counsel for the respondent on the other
hand contended that the language of Sec. refers to "marriage dissolved by decree for divorce"
where as in the present case, the marriage was not dissolved by decree of divorce. The marria
ge was declared as nullity under Sections 11 and 12 of the Ac t.

Sections 11 and 12 of the Act, according to the learn ed counsel, talk of annulment of
marriage "by decree of nullity" and it was contended that it is because of this that t he various
High Courts have taken a view that Sec. 15 will n ot apply to cases where a marriage is
annulled by a decree of nullity in accordance with Sections 11 or 12 of the Act.

Learned counsel however frankly conceded that so far as Sec.

28 is concerned, the language is so wide that an appeal wi ll lie even against a decree under
Section 11 or 12 and if an appeal lies under Sec. 28 even against the order or a decr ee passed
under Sections 11 or 12, the phrase 'if there is su ch a right of appeal, the time for filing has
expired witho ut an appeal having been presented' are to be given its meaning, it would be
clear that Sec. 15 also will apply to decrees by which the marriage is either dissolved or a
nnulled i.e. decrees which are passed under Sec. 12 or und er Sec. 13. Learned counsel in face
of this raised anoth er contention pertaining to the application of the Limitati on Act which
we will examine later. In order to understand the meaning of Sec. 15 of the A ct it would be
better if we first notice that the words 'decr ee for divorce' or 'decree for nullity' has not been
defined in any one of the provisions of this Act. Sec. 12 clause (1) of the Act reads:

"Any marriage solemnized, whether before or after the commencement of this Act, shall be
voidable and may be annull ed by a decree of nullity on any of the following groun ds
namely,--

Similarly Sec. 13 clause (1) of the Act reads: (1) Any marriage solemnized, whether before or
after t he commencement of this Act may, on a petition presented by either the husband or
wife, be dissolved by a decree of divorce on the ground that the other party,--

86
It is no doubt true that these two sections have differe nt phraseology. In section 12 it is said
that the marriage be annulled by a decree of nullity whereas in Section 13, t he phraseology
used is "dissolved by decree of divorce" but in substance the meaning of the two may be
different under t he circumstances and on the facts of each case but the leg al meaning or the
effect is that by intervention of the cou rt the relationship between two spouses has been
severed eith er in accordance with the provisions of Section 12 or in a ccordance with the
provisions of Section 13. Probably it is because of this reason that the phrase 'decree of nullit
y' and 'decree of divorce' have not been defined. Sec. 28 of the Act reads:

"28. Appeal from decrees and orders (1) All decrees made by the court in any proceeding
under this Act shall, subject to the provisions of sub-section (3), be applicable as decre es of
the court made in the exercise of its original civ il jurisdiction, and every such appeal shall lie
to the Court to which appeals ordinarily lie from the decisions of t he court given in the
exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under th is Act, under Section 25 or Section
26 shall, subject to t he provisions of sub-section (3), be appealable if they are n ot interim
orders, and every such appeal shall lie to the cou rt to which appeals ordinarily lie from the
decision of t he Court given in exercise of its original civil jurisdiction ;

(3) There shall be no appeal under this section on t he subject of costs only.

(4) Every appeal under this section shall be preferr ed within a period of thirty days from the
date of the decr ee or order. ' ' Under this provision all decrees made by the Court in a ny
proceeding under this Act are appealable. Apparently a ny proceeding under this Act will
refer to a proceeding instituted under Section 13 or a proceeding instituted und er Sections 11
or 12 as Sections 11 or 12 talks of 'decree f or nullity' and Section 13 talks of 'decree for
divorce' but in order to provide an appeal against all decrees Section has used a very wide
terminology which include decrees und er Sections 11, 12 and 13 and so far as this is
concerned it could hardly be contested as the language of Section itself is so clear. It is in this
context that we analyse the language of Section 15. It reads: "Divorced persons when may
marry again-When a marriage h as been dissolved by a decree of divorce and either there is
no fight of appeal against the decree or, if there is such a fight of appeal, the time for
appealing has expired witho ut an appeal having been presented or an appeal has been pr e-

sented but has been dismissed, it shall be lawful for either party to the marriage to marry
again." Before we examine the phraseology 'dissolved by decree of divorce' it would be
worthwhile to examine the remaini ng part of this provision, especially 'if there is such a fig
ht of appeal, the time for appealing has expired without an appeal having been presented or
an appeal has been present ed but has been dismissed'. If we give narrow meaning to t he
term 'dissolved by decree of divorce' as contended by t he learned counsel for the respondent,
it will mean that if it is a decree under Sec. 13 then either party to the proceeding have to wait
till the period of appeal has expired or if the appeal is filed within limitation till the appeal is
disposed of and before that it will not be lawful for eith er party to the marriage to marry
again. The phrase 'eith er party to the marriage' if is co-related with the first pa rt of the
Section, marriage which has been dissolved by decr ee of divorce will indicate that what was
provided in th is Section was that when a relationship of marriage is dissolved by decree of
court and either no appeal is filed or if filed, is dismissed then either party to the marria ge
which has been dissolved by the process of law by a decr ee are free to marry again. The only
words on the basis of which the narrow meaning has been given to this Section by some of

87
the High Courts is on the basis of the Words 'decr ee of divorce', it could not be doubted that
where the marria ge is dissolved under Sections 11, 12 or 13 by grant of a decree of nullity or
divorce, the relationship is dissolv ed or in any way is brought to an end and it would be
significant that if the language of Section 15 is interpreted in the light of Section 28 which
provides for appeal and confers a right of appeal on either party to proceedings whi ch
culminate into a decree bringing an end to the relationsh ip of marriage then we will have to
infer that the Legislatu re so far as decrees under Section 13 are concerned wanted t he right
of appeal to survive but in decrees under Section or 12 the Legislature wanted the right of
appeal to be subject to the will of the other party. As it is appare nt that if what is contended
by the learned counsel for t he respondent and held by some of the High Courts is accept ed
that Sec. 15 will not apply to cases when a decree is pass ed under Sec. 11 or 12 it will mean
that as soon as a decree is passed the party aggrieved may appe al but the other. party by
remarriage would make the appe al infructuous and therefore the right of appeal of one of t he
parties to the decree under Sec. 28 will be subject to t he act of the other party in cases where
decree is passed und er Sections 11 or 12 but if it were so, the Legislature wou ld have
provided a separate provision for appeal when there is a decree under Section 13 and a
different provision f or appeal when there is a decree under Sections 11 or 12 as t he right of
appeal against a decree under Sec. 11 or 12 cou ld only be a limited right subject to the desire
of the oth er party. The Legislature in its wisdom has enacted Sec. conferring a right of
appeal which is unqualified, unrestrictive and not depending on the mercy or desire of a party
against all decrees in any proceeding under this A ct which will include a decree under
Sections 11, 12 or 13 a nd therefore the only interpretation which could be put on t he
language of Sec. 15 should be which will be consistent wi th Section 28. This phrase
'marriage has been dissolved by decree of divorce' will only mean where the relationship of
marriage has been brought to an end by the process of court by a decree.

It is plain that the word 'divorce' or 'decree of divorce' have not been defined in this Act. The
meaning of t he word 'divorce' indicated in Shorter Oxford English Dictionary reads:

"Divorce--1. Legal dissolution of marriage by a court or other competent body, or according

to forms locally recognized. 2. Complete separation; disunion of things close ly united ME. 3.
That which causes divorce 1607." Similarly the meaning of the word 'divorce' as indicated in
Webster's Third New International Dictionary reads: "Divorce--1: a legal dissolution in whole
or in part of a marriage relation by a court or other body having compete nt authority.

In Vathsala's case the Court had occasion to consider t he effect of an application for setting
aside an exparte decr ee which was granted under Sec. 12 and it was contended th at while
the application by the husband for setting aside t he exparte decree was pending the wife
contracted remarriage.

Will not remarriage have the effect of making the application to set aside exparte decree
infructuous? More or less a similar question is in the present case where it has be en held that
by marrying the second time the respondent ma de the appeal filed by the appellant
infructuous, and the learned Judge placing reliance on the observations made in Chandra
Mohini's case held:

"That is the principle of Smt. Chandra Mohini v. Avina sh Prasad, AIR 1967 SC 581. The
principle laid down in th at decision has general application. The Supreme Court point ed out
that on dissolution of marriage, a spouse can lawful ly marry only when there is no right of
appeal against t he decree dissolving the marriage or if there is a right of appeal, the time for

88
filing of an appeal has expired or t he appeal presented has been dismissed." The question
about an appeal to the Supreme Court has also been considered in a recent decision of this
Court in Tejinder Kaur's case wherein the observations made in Chand ra Mohini's case have
been quoted and it is held that: "In view of this, it was incumbent on the respondent to ha ve
enquired about the fate of the appeal. At any rate, the Hi gh Court having dismissed the
appeal on 16th July, 1986 t he petitioner could have presented a special leave petiti on within
ninety days therefrom under Art. 133(c) of the Limitation Act, 1963 i.e. till 14th September,
1986. Till th at period was over, it was not lawful for either party to mar ry again as provided
by S. 15. It was incumbent on the respondent, as observed in Lila Gupta's case (ILR 1969) 1
All. 9 2) to have apprised himself as to whether the appeal in t he High Court was still
pending; and if not, whether the peri od for filing a special leave petition to this Court had
expired. We must accordingly overrule the views expressed in Chandra Mohini's, AIR 1967
SC 581 and Lila Gupta, cases (I LR 1969(1) All 92). We wish to add that in the subseque nt
decision in Lila Gupta the Court while dealing with t he effect of deletion of the proviso
observed: The net result is that now since the amendme nt parties whose marriage is
dissolved by a decree of divor ce can contract marriage soon thereafter provided of course t
he period of appeal has expired.

The Court adverted to the word of caution administered by Wanchoo, J. in Chandra Mohini's
case and reiterated:

"Even though it may not have been unlawful for t he husband to have marriage immediately
after the High Court 's decree for no appeal as of right lies from the decree of t he High Court
to this Court, still it was for the respondent to make sure whether an application for special
leave had be en filed in this Court and he could not, by marrying immediately after the High
Court's decree, deprive the wife of t he chance of presenting a special leave petition to this
Court.

If a person does so, he takes a risk and could not ask t he Court to revoke the special leave on
that ground," It is no doubt true that in these two decisions, this Cou rt was considering the
impact of an appeal against a decr ee under Section 13 itself and not a decree under Section
11 or 12 but as indicated earlier if the impact of the phraseolo gy 'fight of appeal' occurring in
Sec. 15 is to be examined in the light of language of Sec. 28 as discussed earlier the re will be
no difference in respect of the fight of appe al whether the decree is under Sections 11, 12 or
13. The decisions of the High Court on which reliance is placed by courts below and the
learned counsel for t he respondent are: i) Mohanmurari ii) Jam boo Prasad Jain, a nd Pramod
Sharrna. In none of these decisions the impact of t he fight of appeal occurring in Sec. 15 in
view of the langua ge of Section 28 where the right of appeal is conferred, h as been
considered. In our opinion, therefore the view taken by the High Court is not correct. What
Section 15 means when it uses the phrase 'has been dissolved by decree of divorce '?

It only means where the relationship of marriage has be en brought to an end by intervention
of court by a decree, th is decree will include a decree under Sections 11, 12 or 13 a nd
therefore the view taken by all the courts below is n ot sustainable. The contention of the
learned counsel for t he appellant has to be accepted so far as this question is concerned.

Learned counsel for the respondent contended that as Section 28 sub-clause (4) of the Act
provides for the limitation for preferring an appeal in view of Sec. 29 clau se (3). Provisions
of Limitation Act will not apply and if th ey do not apply as the trial court disposed of 'the
matter by a decree dated 3.5.1985 the period of limitation for appe al could only be upto

89
3.6.1985 as the period for obtaini ng copies as contemplated under Section 12 clause (2) of t
he Limitation Act will not be applicable and therefore even if it is held that under Sec. 15 the
respondent had to wa it till the period of limitation for appeal expires as he entered into a
marriage on 27.6.1985 it was clear ly after the period of limitation has expired and therefo re
this marriage apparently made the appeal filed by the appel- lant infructuous. It is not in
dispute that if the peri od for obtaining copy of the judgment and decree is computed as
contemplated in Section 12 clause (2) of the Limitation Ac t, the appeal filed by the appellant
before the first appella te court was within the time and if Section 12 clause 2 is he ld
applicable then this marriage which the respondent perform ed on 27.6.1985 could not be said
to be a marriage which he w as entitled to perform in view of language of Section 15 a nd
therefore it could not be said that this marriage render ed the appeal filed by the appellant
infructuous. Learn ed counsel for the respondent mainly placed reliance on t he language of
Sec. 29 clause 3 of the Limitation Act where as learned counsel appearing for the appellant
contended th at Sec. 29 clause 3 talks of suit or proceedings and therefo re the phrase
'proceedings' used in clause 3 of Sec. 29 cou ld only refer to suits or other original
proceedings and it will not apply to appeals as is very clear from the defini- tion of 'suit' as
defined in Section 2(L) of the Limitati on Act. It was therefore contended that the provisions
of t he Limitation Act will be applicable to appeals under Sec. of the Act.

Learned counsel for the appellant placed reliance on the decisions in Chander Dev Chadha v.
Smt. Ra ni Bala, AIR 1979 Delhi 22; Smt. Sipra Dey v. Ajit Kumar De y, AIR 1988 Calcutta
28 and Kanti-bai v. Karnal Singh Thaku r, AIR 1978 M.P. 245.

Section 2(L) of the Limitation Act defines the 'suit'. It reads:

"suit" does not include an appeal or an application". It clearly enacts that suit does not include
an appeal or an application. Sec. 29 of the Limitation Act reads: "29. Savings (1) Nothing in
this Act shall affect Section of the Indian Contract Act, 1872. (2) Where any special or local
law prescribes for any sui t, appeal or application a period of limitation different fr om the
period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period
were the peri od prescribed by the Schedule and for the purpose of determining any period of
limitation prescribed for any suit, appe al or application by any special or local law, the
provisio ns contained in Sections 4 to 24 (inclusive) shall apply on ly insofar as, and to the
extent to which, they are not expressly excluded by such special or local law. (3) Save as
otherwise provided in any law for the time bei ng in force with respect to marriage and
divorce, nothing in this Act shall apply to any suit or other proceeding und er any such law.

(4) Sections 25 and 26 and the definition of 'easement' in Section 2 shall not apply to cases
arising in the territories to which the Indian Easement Act, 1882, may for t he time being
extend."

Clause (2) of this Section provides that where the limit a-

tion provided by the special or local law is different fr om the period prescribed by the
Schedule, the provisions of Section 3 will apply. In the Hindu Marriage Act, the peri od of
appeal is prescribed. In the schedule under the Limitation Act, there is no provision providing
for an appe al under the Hindu Marriage Act. Thus the limitation prescrib ed under the Hindu
Marriage Act is different and is not prescribed in the Schedule. Thus the provisions of
Section shall apply and therefore it is clear that to an appeal or application the provisions
contained in Sections 4 to shall apply, so far and to the extent to which they are n ot expressly

90
excluded by the special or local law and clau se (3) of this Section provides that the
provisions of this A ct shall not apply to any suit or other proceedings under a ny marriage
law. It is therefore clear that so far as clau se (3) is concerned, the impact of it will be that the
provisions of the Limitation Act will not apply so far as a su it or an original proceeding
under the Act is concerned b ut clause (3) will not govern an appeal. The Schedule in the
Limitation Act do not provide for an appeal, under the Hindu Marriage Act but it is only
provid ed in clause (4) of Sec. 28 of the Hindu Marriage Act. Thus t he limitation provided in
clause (4) of Sec. 28 is differe nt from the Schedule of the Limitation Act. Accordingly to
clause (2) of Sec. 29, provisions contained in Sections 4 to 24 will be applicable unless they
are not expressly exclud-ed.

It is clear that the provisions of the Act do not exclude operation of provisions of Sections 4
to 24 of t he Limitation Act and therefore it could not be said that the se provisions will not
be applicable. It is therefore cle ar that to an appeal under Section 28 of the Hindu Marria ge
Act, provisions contained in Section 12 clause (2) will be applicable, therefore the time
required for obtaining copi es of the judgment will have to be excluded for computing t he
period of limitation for appeal. A Division Bench of Delhi High Court in Chandra Dev
Chadha's case held as under: "The Hindu Marriage Act is a special law. That this "speci al
law" prescribes" for an appeal a period of limitation is also evident. The period of limitation
is 30 days. It is a period different from that prescribed in the First Schedu le to the Limitation
Act, 1963. But when we turn to the Fir st Schedule we find there is no provision in the First
Schedu le for an appeal against the decree or order passed under t he Hindu Marriage Act.
Now it has been held that the test of a "prescription of a period of limitation different from t
he period prescribed by the First Schedule" as laid down in S. 29(2), Limitation Act, 1963 is
satisfied even in a ca se where a difference between the special law and Limitati on Act arose
by omissions to provide for a limitation to a particular proceeding under the Limitation Act,
see, Cana ra Bank, Bombay v. Warden Insurance Co. Ltd. Bombay, AIR 19 Bom 35 (supra)
approved by the Supreme Court in Vidyachar an Shukla v. Khubchand, AIR 1964 SC 1099
(1102). Once the test is satisfied the provisions of Ss, 3, 4 to 24, Limitation Act, 1963 would
at once apply to t he special law. The result is that the court hearing the appe al from the
decree or order passed under the Hindu Marriage A ct would under S. 3 of the Limitation Act
have power to dismi ss the appeal if made after the period of limitation of 30 da ys prescribed
thereof by the special law. Similarly under S. for sufficient cause it will have the power to
condo ne delay. Likewise under S. 12(2) the time spent in obtaining a certified copy of the
decree or order appealed from will be excluded. If it is so, S. 12(2) of the Limitation Act is
attracted, and the appellants in all the three appeals wi ll be entitled to exclude the time taken
by them for obtaini ng certified copy of the decree and order. The appeals ar e, therefore,
within time." Similar is the view taken by the Calcutta High Court in Smt. Sipra Dey's case
and also the M.P. High Court in Kantibai 's case. It is therefore clear that the contention
advanced by the learned counsel for the respondent on the basis of t he Limitation Act also is
of no substance.

Consequently the appeal is allowed. The judgment pass ed by the High Court as well as by
the first appellate court is set aside. We remand the matter back to the first appella te court as
that court had disposed of the appeal treating it to have been rendered infructuous. We
therefore direct th at the learned lind Additional District Judge, Nagpur befo re whom the
appeal was filed, will hear the appeal on meri ts and dispose it of in accordance with law. A
suggestion was made by the counsel for the appella nt about some tests and willingness of the
appellant for getting those tests performed which could be used as addition al evidence in
respect of the paternity of the child born to the appellant which has been made a ground for

91
declarati on of marriage as nullity. Without expressing any opinion, it would be appropriate
for the lower appellate court to con- sider the matter if parties approach about additional ev i-
dence. The appallant shall be entitled to costs of th is appeal. Costs quantified at Rs.2500.
R.S.S. Appeal allowed.

Supreme Court of India

Baldev Raj Miglani vs Smt. Urmila Kumari W/O Baldev Raj on

15 December, 1978
Equivalent citations: AIR 1979 SC 879, (1979) 3 SCC 782, 1979
(11) UJ 188 SC
Author: V Tulzapurkar

Bench: R Sarkaria, V Tulzapurkar

JUDGMENT V.D. Tulzapurkar, J.

1. The appellant's petition under Section 12 of the Hindu Marriage Act, 1955 for the
annulment of his marriage with the respondent on the ground that at the date of the marriage
(October 8, 1962) the respondent was already pregnant by some other man, of which he was
ignorant then, was decreed by the trial Court on August 26, 1963 but on appeal the decree
was reversed and his petition was dismissed by a learned single Judge of the Punjab and
Haryana High Court on February 20, 1968; a Letters Patent appeal by the appellant was
summarily dismissed by the Division Bench of that Court on August 23, 1968. Hence this
appeal by special leave.

2. Few admitted facts in the case may be stated: The appellant was married to the respondent
on October 8, 1962 at Patiala. After the marriage he co-habited with the respondent on few
occasions but on October 30, 1962 he came to know that the respondent was already
pregnant. After that revelation he had no co-habitation with her but immediately on the
following day i.e. November 1, 1962 he filed the petition praying annulment of his marriage
on the aforesaid ground. The respondent contended that she became pregnant from the
Appellant and that she never had sexual intercourse with any other person. Admittedly, the
respondent delivered a male child on May 20, 1963, which, according to the appellant, was a
full term and mature delivery. The question that arose before the lower Court was whether the
respondent at the time of her marriage with the appellant was pregnant by some person other
than the appellant or whether the pregnancy, which ultimately resulted in the delivery of a
male child on May, 20, 1963, was a result of marital relations between the parties between
October, 8, 1962 (the date of marriage) and October 30, 1962 (when the respondent's
pregnancy got revealed for the first time) Besides the oral evidence furnished by the parties
themselves, medical evidence of experts was also furnished on either side. On an appreciation
of the evidence that was led before it the trial Court came to the conclusion that the
respondent at the time of her marriage with the appellant was pregnant by some person other
than the appellant, that the appellant at the time of the marriage was ignorant of that fact and
that since the discovery by the appellant of the existence of such pregnancy of the respondent
the appellant had no sexual intercourse with her and, therefore, the appellant was entitled to a
decree of nullity of the marriage. In appeal preferred by the respondent the learned Single

92
Judge of the High Court took the view that the child delivered by the respondent on May 20,
1963 had not been conclusively established by the appellant to be an illegitimate one and,
therefore, he allowed the allowed the appeal. The question before us in this appeal is whether
the appellant could be said to have discharged the burden that lay upon him to prove that the
respondent was at the date of the marriage pregnant by some person other than himself After
going through the entire material on record we are clearly of the view that the appellant has
satisfactorily discharged the burden which lay upon him and the trial Court's decree deserves
to be restored.

3. In order to appreciate the evidence on record two crucial dates must be kept in mind,
namely, October 8, 1962, being the date of the marriage between the parties and the May 20,
1963, the date on which the respondent delivered a son. It was nobody's case that the
appellant had access to the respondent before the date of the marriage and even according to
the respondent's case the sexual relations between the two commenced on October 9, 1962
and did not last beyond October 30, 1962. In other words, according to the respondent, the
pregnancy if it was as a result of sexual relations with the appellant could commence not
earlier than October 9, 1962. The question is whether that case of the respondent is true or the
appellant's case that the respondent was pregnant since before the date of marriage is true?

4. On the aforesaid question in our view, the evidence of some of the Doctors examined in
the case is very material. Dr., Daljit Dillon (AW 1), Women Assistant Surgeon, Hendley
Female Dispensary, Sanauri Gate, Patiala had examined the respondent on October 30, 1962
and after examination had issued a certificate at Ex. A 1 (Incidentally it may be stated that it
was as the result of examination of respondent by this witness that the appellant discovered
the fact about the respondent's pregnancy). According to her on October 30, 1962, the
respondent's pregnancy was of 2 1/2 months and in the certificate Ex, Al she further stated
that "the uterus was two fingers above the symphysis pubis per abdomen". According to her
evidence, therefore, the pregnancy in the case of the respondent had started between August
11 and 16,1962. It appears that she again examined the respondent on December 8, 1962 and
issued another certificate (Ex. R 1) where she stated that the pregnancy was 16 weeks
advanced. This evidence was accepted by the trial Court but rejected by the High Court and,
in our view, on flimsy grounds. The High Court rejected the evidence of this witness on the
ground that she had admitted in her evidence that she had not specialised in gynaecology. In
our view this reason was not sufficient to reject her testimony; in the first place, in the
certificate Ex A-1 the finding has been noted that "the uterus was two fingers above
sumphysis pubis per abdomen" as a result whereof 21/2 month's pregnancy was determined
by her; secondly, the witness may not have specialised in gynaecology which after all is that
branch of medical science which treats of the functions and dismases peculiar to women but
here knowledge of midwifery as an obstetrician was proved to be of high order in the case
itself, for, in her cross examination done on 4th April, 1963 she clearly stated that
respondent's delivery might take place in May 1963 which fact ultimately turned out to be
true for the respondent did deliver on May 20, 1963. There is one more aspect of her
evidence which requires to be noted If the respondent's version were true that conception had
commenced subsequent to the wedding then by October 30, 1962 her pregnancy at the
highest would have been of 21 or 22 days and it is well-known that it is not possible to
positively confirm such pregnancy except by performing some special biological tests and
admittedly in the instant case it was without performing any special biological test this
Doctor had confirmed positively respondent's pregnancy. This aspect also lends corroboration
to her evidence that respondent's pregnancy must have been in advanced stage such as 21/2
months as deposed to by her. Having regard to this aspect, therefore, it seems to us clear that

93
the High Court was in error rejecting the testimony of this witness. The evidence of this
witness clearly establishes the fact that the respondent was pregnant since long before the
date of the wedding and if that be so, an admitted facts, it must be the result of sexual
relations not with the appellant but with some person other than the appellant.

5. Apart from the evidence of Dr., Daljit Dhillon, Dr., (Mrs.,) S. Ganda Singh (AW 2),
Assistant Professor Obstetics and Gynaecology, Govt. Medical College, Patiala, had
medically examined the respondent on March 6, 1963 and she found that on that day the size
of the uterus of the respondent was 34 weeks and according to her also the respondent's
pregnancy might have started round about second week of July, 1962. It appears that the
respondent was got medically examined on January 4, 1963 by Dr., Surinder Kaur (AW 4)
under the orders of the Court and according to her evidence the duration of the pregnancy of
the respondent was on that day about 16 to 18 weeks which means that the pregnancy must
have started latest on September 14, 1962. Lastly, there was evidence of the respondent's own
witness Dr., Mrs., P. Kanta, who actually attended the delivery of the respondent on May 20,
1963. This witness clearly admitted that it was a case of nearly full term delivery. She
described the condition of the child at the time of the birth in the following terms:-

When the child was born he was blue in colour and he did not cry for 4 and 5 minutes. After
that the child cried and became pink in colour. There was good crop of hair over his head.
The child was covered with vernix caseosa. The lanigo was not present except on shoulders.
The nails of the fingers were just beyond the tip of the fingers, nails of the toes were just
behind the tip of the toes. Both testicals were descended.

The Trial Judge noted that Dr., R.W. Johnstone in his text book on Midwifery at Page 132
has stated that the aforesaid signs (mentioned by Dr., P. Kanta) are the signs of full term and
mature delivery and relying upon the evidence of Dr., P. Kanta supported as it was by expert
opinion of Dr., Johnstone, came to the conclusion that the child that was born to the
respondent on May 20, 1963 was a case of full-term delivery and, therefore, it could not be
the child of the appellant.

6. It is surprising that the aforesaid evidence was brushed aside by the High Court by relying
upon certain passages occurring in Dr., Johnstone's treatise as also in Modi's Medical
Jurisprudence dealing with exceptional or freak cases. For instance, the High Court referred
10 the following passage in Dr. Johnstone's text boak on Midwifery at page 90:-

Fully developed children have been recovered as being born after gestation as short as 210
days and as long as 313, 320 and even 331 days from the commencement of the last period.

The High Court also referred to a case mentioned in Modi's Medical Jurisprudence and
Texicology (15th Edn) at page 323 where a women aged 30 years gave birth to a girl after
gestation of 210 days ten times three weeks which was here normal intermenstrual period; the
child cried justly at birth, had a good crop of hair, was well coated with vernix cassosa,
measured twenty inches in length, and weighted seven pounds: the finger and the nails were
fully developed and the child sucked vigorously on being put to breast. The High Court felt
that the respondent's child answered almost all the description mentioned by Modi's in the
aforesaid case and further observed that it would not be correct to presume from the physical
appearance of the child at the time of the birth that it was born 280 days after gestation. It is
obvious that the case in point referred to in Mod's book is an exceptional case and not a
normal case, but what is more the High Court has failed to notice that the instance mentioned

94
by Modi's in his book the menstrual cycle of the woman concerned was a three-week cycle,
whereas in the instant case, according to the respondent' evidence, her's was a four week
menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon
passages occur-ing in text books of Medical experts dealing with exceptional cases and
rejecting the positive and clear evidence that was led by the appellant in regard to the
pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of
the positive and clear evidence that was led by the appellant in the case we are of the view
that the High Court's findings were based on conjunctures and surmises and the trial court
was right in coming to the conclusion that the appellant had satisfactorily discharged the
burden which lay upon him.

7. In the result the appeal suceeds; the decree passed by the learned single judge of the
High Court as confirmed by the Division Bench, is set aside and that passed by the
trial Court is restored. The appellant's marriage with the respondent is declared to be a
nullity. In the circumstances there will be no order as to costs.

Supreme Court of India

Anil Kumar Jain vs Maya Jain on 1 September, 2009

Author: A Kabir

Bench: Altamas Kabir, Cyriac Joseph

Anil Kumar Jain ... Appellant

Vs.

Maya Jain ... Respondent

JUDGMENT

ALTAMAS KABIR, J.

1. Leave granted.

2. The short point for decision in this appeal is whether a decree can be passed on a petition
for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, when one of the
petitioners withdraws consent to such decree prior to the passing of such decree.

3. In the instant case, the appellant husband was married to the respondent wife on 22nd June,
1985, according to Hindu rites. On account of differences between them, they took a decision
to obtain a decree of mutual divorce, which resulted in the filing of a joint petition for divorce
under Section 13-B of the Hindu Marriage Act, 1955, (hereinafter referred to as `the Act') on
4th September, 2004, in the District Court at Chhindwara. The same was registered as Civil

95
Suit No.167-A of 2004. As required under the provisions of Section 13-B of the aforesaid
Act, the learned Second Additional District Judge, Chhindwara, fixed the date for
consideration of the petition after six months so as to give the parties time to reconsider their
decision. On 7th March, 2005, after the expiry of six months, the learned Second Additional
District Judge, Chhindwara, took up the matter in the presence of both the parties who were
present in the Court. While the appellant husband reiterated his earlier stand that a decree of
mutual divorce should be passed on account of the fact that it was not possible for the parties
to live together, on behalf of the respondent wife it was submitted that despite serious
differences which had arisen between them, she did not want the marriage ties to be
dissolved. On account of withdrawal of consent by the respondent wife, the learned Judge
dismissed the joint petition under Section 13-B of the Act.

4. Aggrieved by the order dated 17th March, 2005, passed by the learned Second Additional
District Judge, Chhindwara, the appellant filed an appeal under Section 28 of the Act in the
High Court of Madhya Pradesh at Jabalpur on 4th April, 2005, and the same was registered as
First Appeal no.323 of 2005. Even before the High Court, on 12th March, 2007, the
respondent wife expressed her desire to live separately from the appellant, but she did not
want that a decree of dissolution of marriage be passed. In that view of the matter, by his
order dated 21st March, 2007, the learned Single Judge dismissed the First Appeal. While
dismissing the appeal, the learned Single Judge took note of the decision of this Court in
similar circumstances in the case of Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226],
wherein this Court granted a decree of mutual divorce by exercising its extra-ordinary powers
under Article 142 of the Constitution of India. It was indicated that the High Court did not
have such powers and Section 13-B required that the consent of the spouses on the basis of
which the petition under Section 13-B was presented, had to continue till a decree of divorce
was passed by mutual consent. On that basis, the learned Single Judge of the High Court,
while dismissing the appeal, observed that the appellant would be free to file a petition of
divorce in accordance with law, which would be decided on its own merits by keeping in
mind the special fact that the parties were living separately for about five years and the
respondent wife was adamant about living apart from her husband.

5. It is against the said order passed by the High Court rejecting the appellant's prayer for
grant of mutual divorce that the present appeal has been filed.

6. Appearing on behalf of the appellant husband, Mr. Rohit Arya, learned Senior Advocate,
contended that prior to the filing of the petition for mutual divorce, the parties had entered
into a settlement which had been fully acted upon by the appellant and that under the said
agreement valuable property rights had been transferred to the respondent wife, which she
was and is still enjoying. Mr. Arya submitted that apart from the above, the attitude of the
respondent wife in openly declaring that she had no intention to remain with the appellant,
was sufficient to indicate that the marriage had broken down irretrievably and in similar
circumstances this Court had invoked its extra-ordinary powers under Article 142 of the
Constitution to grant a decree of divorce under Section 13-B of the Hindu Marriage Act, even
though one of the parties had withdrawn consent before the passing of the final decree.
Reference was made to the decision in Ashok Hurra's case(supra), which also involved a
petition under Section 13-B of the Act.

7. However, the facts of the said case were a little different from those in the instant case. In
the said case, after six months from the date of filing of the petition under Section 13-B, an
application was filed by the husband alone for a decree of divorce on the petition under

96
Section 13-B of the Act. Not only did the wife not join in the said application, she made a
separate application for withdrawal of consent given by her for mutual divorce after the
expiry of 18 months from the date of presentation of the divorce petition. At this juncture,
reference may be made to the provisions of Section 13-B of the above Act and the same is
extracted hereinbelow :-

"13B. Divorce by mutual consent. -

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce
may be presented to the district Court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act,
1976, on the ground that they have been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually agreed that the marriage should be
dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-

section (1) and not later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and
after making such inquiry as it thinks fit, that a marriage has been solemnized and that the
averments in the petition are true, pass a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree."

As will be clear from the above, sub-Section (1) of Section 13-B is the enabling Section for
presenting a petition for dissolution of a marriage by a decree of divorce by mutual consent.
One of the grounds provided is that the parties have been living separately for a period of one
year or more and that they have not been able to live together, which is also the factual reality
in the instant case. Sub-Section (2) of Section 13-B, however, provides the procedural steps
that are required to be taken once the petition for mutual divorce has been filed and six
months have expired from the date of presentation of the petition before the Court. The
language is very specific in that it intends that on a motion of both the parties made not
earlier than six months after the date of presentation of the petition referred to in sub-Section
(1) and not later than 18 months after the said date, if the petition is not withdrawn in the
meantime, the Court shall, on being satisfied, after hearing the parties and after making such
inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved with
effect from the date of the decree.

8. The question whether the consent of both the parties given at the time of presentation of
the petition for mutual divorce under Section 13-B of the Act must continue till the decree is
finally passed, has been the subject matter of several decisions of this Court. The issue was
raised in the case of Smt. Sureshta Devi vs. Om Prakash [(1991) 2 SCC 25], wherein this
Court held that the consent given by the parties to the filing of a petition for mutual divorce
had to subsist till a decree was passed on the petition and that in the event, either of the
parties withdrew the consent before passing of the final decree, the petition under Section 13-
B of the Hindu Marriage Act would not survive and would have to be dismissed.

9. Subsequently, however, in Ashok Hurra's case (supra), doubts were expressed by this
Court with regard to certain observations made in Sureshta Devi's case (supra) and it was felt
that the same might require re-consideration in an appropriate case. Basing its decision on the

97
doctrine of irretrievable break-down of marriage, the Hon'ble Judges were of the view that no
useful purpose would be served in prolonging the agony of the parties to a marriage which
had broken down irretrievably and that the curtain had to be rung down at some stage. It was
further observed that the court had to take a total and broad view of the ground realities of the
situation while dealing with adjustment of human relationships. Their Lordships placed
reliance on the decision of this Court in Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon
(Capt.) & Anr. [(1993) 2 SCC 6], in arriving at such a conclusion. In the said case, although,
indisputably consent for the petition under Section 13-B of the Act was withdrawn within a
week from the date of the filing of the joint petition, the Court, in exercise of its powers under
Article 142 of the Constitution, granted a decree of divorce by mutual consent under Section
13-B of the Act and dissolved the marriage between the parties in order to meet the ends of
justice, subject to certain conditions. It was also made clear that the decree would take effect
only upon satisfaction of the conditions indicated therein.

10. The decision in Ashok Hurra's case (supra) to invoke the power under Article 142 of the
Constitution was, thereafter, followed in several cases based upon the doctrine of irretrievable
break-down of marriage.

11. In keeping with the trend of thought which found expression in Ashok Hurra's case
(supra) another question arose before this Court in the case of Sandhya M. Khandelwal vs.
Manoj K. Khandelwal [(1998) 8 SCC 369], which had come up before this Court by way of a
transfer petition seeking transfer of a matrimonial suit. During the pendency of the transfer
petition before this Court, the parties settled their disputes, and, although, the petition
involved a proceeding under Section 13 of the Hindu Marriage Act, 1955, keeping in mind
the settlement arrived at between the parties and also the interest of the parties, this Court
granted a decree of divorce by treating the pending application as one under Section 13-B of
the said Act.

12. The views expressed in Ashok Hurra's case (supra) were echoed in Anita Sabharwal vs.
Anil Sabharwal [(1997) 1 SCC 490] and in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC
243]. In the former case decree for mutual divorce was granted without waiting for the
statutory period of six months. In the latter case, after living separately for many years and
after 11 years of litigation involving proceedings under Section 13 of the Hindu Marriage
Act, 1955, the parties filed a joint application before this Court for amending the divorce
petition. Treating the said divorce petition as one under Section 13-B of the Act, this Court,
by invoking its powers under Article 142 of the Constitution, granted a decree of mutual
divorce at the SLP stage.

13. Without referring to the decisions rendered by this Court in Ashok Hurra's case (supra)
and in Kiran's case (supra), a three Judge Bench of this Court in the case of Anjana Kishore
vs. Puneet Kishore [(2002) 10 SCC 194], while hearing a transfer petition, invoked its
jurisdiction under Article 142 of the Constitution, and directed the parties to file a joint
petition before the Family Court at Bandra, Mumbai, under Section 13-B of the Hindu
Marriage Act, 1955, for grant of a decree of divorce by mutual consent, along with a copy of
the terms of compromise arrived at between the parties. This Court also directed that on such
application being made, the Family Court could dispense with the need of waiting for six
months as required by Sub-Section (2) of Section 13-B of the Act and pass final orders on the
petition within such time as it deemed fit. This Court directed the Presiding Judge to take
appropriate steps looking to the facts and circumstances of the case emerging from the
pleadings of the parties and to do complete justice in the case.

98
14. Again in the case of Swati Verma (Smt.) vs. Rajan Verma & Ors. [(2004) 1 SCC 123],
which was a transfer petition, the doctrine of irretrievable break-down of marriage was
invoked. Pursuant to a compromise arrived at between the parties and leave granted by this
Court, an application was filed under Section 13-B of the Hindu Marriage Act read with
Article 142 of the Constitution and having regard to the aforesaid doctrine, this Court, in
exercise of its powers vested under Article 142 of the Constitution, allowed the application
for divorce by mutual consent filed in the said proceedings, in order to give a quietus to all
litigation pending between the parties. The same procedure was adopted by this Court in the
case of Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit [(2005) 13 SCC 410], where
upon a settlement arrived at between the parties, a joint petition was filed under Section 13-B
of the Hindu Marriage Act and the same was allowed in exercise of powers under Article 142
of the Constitution.

15. The various decisions referred to above were considered in some detail in the case of
Sanghamitra Ghosh vs. Kajal Kumar Ghosh [(2007) 2 SCC 220], and the view taken in the
various cases was reiterated based on the doctrine of irretrievable break-down of marriage.

16. Although, the decision rendered in Sureshta Devi (supra) was referred to in the decision
rendered in Ashok Hurra's case (supra) and it was observed therein that the said decision
possibly required reconsideration in an appropriate case, none of the other cases has dealt
with the question which arose in Sureshta Devi's case (supra), namely, whether in a
proceeding under Section 13-B of the Hindu Marriage Act, consent of the parties was
required to subsist till a final decree was passed on the petition. In all the subsequent cases,
the Supreme Court invoked its extraordinary powers under Article 142 of the Constitution of
India in order to do complete justice to the parties when faced with a situation where the
marriage-ties had completely broken and there was no possibility whatsoever of the spouses
coming together again. In such a situation, this Court felt that it would be a travesty of justice
to continue with the marriage ties. It may, however, be indicated that in some of the High
Courts, which do not possess the powers vested in the Supreme Court under Article 142 of
the Constitution, this question had arisen and it was held in most of the cases that despite the
fact that the marriage had broken down irretrievably, the same was not a ground for granting
a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955.

17. In the ultimate analysis the aforesaid discussion throws up two propositions. The first
proposition is that although irretrievable break-down of marriage is not one of the grounds
indicated whether under Sections 13 or 13- B of the Hindu Marriage Act, 1955, for grant of
divorce, the said doctrine can be applied to a proceeding under either of the said two
provisions only where the proceedings are before the Supreme Court. In exercise of its
extraordinary powers under Article 142 of the Constitution the Supreme Court can grant
relief to the parties without even waiting for the statutory period of six months stipulated in
Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is
not available even to the High Courts which do not have powers similar to those exercised by
the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the
High Courts can, therefore, pass orders before the periods prescribed under the relevant
provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu
Marriage Act, 1955.

18. The second proposition is that although the Supreme Court can, in exercise of its
extraordinary powers under Article 142 of the Constitution, convert a proceeding under
Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree

99
for mutual divorce, without waiting for the statutory period of six months, none of the other
Courts can exercise such powers. The other Courts are not competent to pass a decree for
mutual divorce if one of the consenting parties withdraws his/her consent before the decree is
passed. Under the existing laws, the consent given by the parties at the time of filing of the
joint petition for divorce by mutual consent has to subsist till the second stage when the
petition comes up for orders and a decree for divorce is finally passed and it is only the
Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the
Constitution, can pass orders to do complete justice to the parties.

19. The various decisions referred to above merely indicate that the Supreme Court can in
special circumstances pass appropriate orders to do justice to the parties in a given fact
situation by invoking its powers under Article 142 of the Constitution, but in normal
circumstances the provisions of the statute have to be given effect to. The law as explained in
Smt. Sureshta Devi's case (supra) still holds good, though with certain variations as far as the
Supreme Court is concerned and that too in the light of Article 142 of the Constitution.

20. In the instant case, the respondent wife has made it very clear that she will not live with
the petitioner, but, on the other hand, she is also not agreeable to a mutual divorce. In
ordinary circumstances, the petitioner's remedy would lie in filing a separate petition before
the Family Court under Section 13 of the Hindu Marriage Act, 1955, on the grounds
available, but in the present case there are certain admitted facts which attract the provisions
of Section 13-B thereof. One of the grounds available under Section 13-B is that the couple
have been living separately for one year or more and that they have not been able to live
together, which is, in fact, the case as far as the parties to these proceedings are concerned. In
this case, the parties are living separately for more than seven years. As part of the agreement
between the parties the appellant had transferred valuable property rights in favour of the
respondent and it was after registration of such transfer of property that she withdrew her
consent for divorce. She still continues to enjoy the property and insists on living separately
from the husband.

21. While, therefore, following the decision in Smt. Sureshta Devi's case we are of the view
that this is a fit case where we may exercise the powers vested in us under Article 142 of the
Constitution. The stand of the respondent wife that she wants to live separately from her
husband but is not agreeable to a mutual divorce is not acceptable, since living separately is
one of the grounds for grant of a mutual divorce and admittedly the parties are living
separately for more than seven years.

22. The appeal is, therefore, allowed. The impugned judgment and order of the High Court is
set aside and the petition for grant of mutual divorce under Section 13-B of the Hindu
Marriage Act, 1955, is accepted. There will be a decree of divorce on the basis of the joint
petition filed by the parties before the Second Additional District Judge, Chhindwara, under
Section 13-B of the Hindu Marriage Act, 1955, in respect of the marriage solemnized
between the parties on 22nd June, 1985, according to Hindu rites and customs and the said
marriage shall stand dissolved from the date of this judgment.

23. There will be no order as to costs.

....(ALTAMAS KABIR) ...................................................J.

(CYRIAC JOSEPH)

100
Supreme Court of India

Gullipilli Sowria Raj vs Bandaru Pavani @ Gullipili Pavani on 4 December, 2008

Author: A Kabir

Bench: Altamas Kabir, Aftab Alam

JUDGMENT

ALTAMAS KABIR,J.

1. The only question which falls for determination in this Civil Appeal by way of Special
Leave is whether a marriage entered into by a Hindu with a Christian is valid under the
provisions of the Hindu Marriage Act, 1955.

2. The appellant, who is a Roman Catholic Christian allegedly married the respondent, who is
a Hindu, on 24.10.1996, in a temple only by exchange of `Thali' and in the absence of any
representative from either side. Subsequently, the marriage was registered on 2.11.1996
under Section 8 of the Hindu Marriage Act, 1955, hereinafter referred to as the "1955 Act".

3. Soon thereafter, on 13.3.1997, the respondent-

wife filed a petition before the Family Court at Vishakapatnam, being O.P. No.84 of 1997, under
Section 12(1)(c) of 1955 Act, for a decree of nullity of the marriage entered into between the parties
on 24.10.1996 on the grounds mentioned in the said petition.

4. The main ground for declaring the marriage to be a nullity was mainly misrepresentation
by the appellant regarding his social status and that he was a Hindu by religion, although it
transpired after the marriage that the appellant and his family members all professed the
Christian faith. The Family Court dismissed the said petition against which an appeal was
preferred by the respondent before the High Court, which allowed the appeal by its judgment
and order dated 12.9.2002 upon holding that the marriage between a Hindu and a Christian
under the 1955 Act is void ab initio and that the marriage was, therefore, a nullity.

5. A few months thereafter on 23.1.2003 the respondent married one Dr. Praveen. Thereafter,
on 23.4.2003 the appellant filed a Special Leave Petition out of which the present appeal
arises.

6. There is no dispute that at the time of the purported marriage between the appellant and the
respondent the appellant was a Christian and continues to be so whereas the respondent was a
Hindu and continues to be so. There is also no dispute that the marriage was alleged to have
been performed under the Hindu Marriage Act, 1955, and was also registered under Section 8
thereof. As against the above, a novel argument has been advanced on behalf of the appellant,
the substance whereof is that the Hindu Marriage Act, 1955 does not preclude a Hindu from
marrying a person of some other faith. In order to assist the Court in regard to such a
submission, the Court had requested Mr. U.U. Lalit, learned Senior Advocate, to assist the
Court in the matter.

101
7. Mr. Lalit firstly took us through the provisions of Section 5 of the 1955 Act which
prescribes the conditions for a Hindu marriage. The opening words of Section 5 are as
follows:

"A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled,
namely :..."

8. Mr. Lalit submitted that the use of the word `may' in the opening words of Section 5 seems
to indicate that the conditions were not mandatory and that as a result, the said conditions
would not be binding on the marriage performed between the appellant and the respondent.

9. Mr. Lalit then took us through the provisions of Section 11 of the 1955 Act, which deals
with void marriages and indicates as follows :

"11. Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto, against the other party be so declared by
a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v),
Section 5."

10. Mr. Lalit submitted that none of the conditions, as indicated in Section 11, apply to the
facts of this case and as such the marriage between the appellant and the respondent could not
be said to be a void marriage. According to Mr. Lalit, at best the marriage could be said to be
a voidable marriage and the High Court appears to have proceeded on an erroneous footing
that the marriage was ab initio void.

11. Adopting the line of submission advanced by Mr. Lalit, Mr. C. Mukund, learned counsel
for the appellant, submitted that the Heading of Section 5 - `Conditions for a Hindu marriage'
was a misnomer, having regard to the use of the expression `may' in the opening lines of the
Section. Mr. Mukund submitted that the conditions indicated in Section 5 must be held to be
optional and that Section 7 of the said Act where also the expression `may' has been used in
Sub-section (1) must be understood to refer to a marriage and not the parties to the marriage.
Mr. Mukund submitted that Section 11 of the Hindu Marriage Act, 1955, would, therefore,
have an overriding effect over the provisions of Section 5 which, according to him, were
optional. Mr. Mukund reiterated that the Hindu Marriage Act, 1955, does not contemplate a
valid marriage only between two Hindus, and urged that the High Court had erred in allowing
the respondent's application under Section 12(1)(c) of the above Act on such misconception
of the provisions thereof.

12. Mr. Y. Rajagopala Rao, learned advocate appearing for the respondent wife, submitted
that it will first have to be decided whether the marriage performed between the parties was a
valid Hindu marriage or not. According to Mr. Rao, the other questions would arise only
thereafter. In this regard, Mr. Rao submitted that the Preamble to the Hindu Marriage Act,
1955, in unambiguous terms makes it clear that the Act was promulgated to amend and
codify law relating to marriage amongst Hindus. He urged that the language of the Preamble
leaves no room for doubt that the Act and its provisions would apply to Hindus only, as
defined in Section 2, Sub-section (1)(c) whereof specifically excludes a person professing the
Christian faith from the its ambit. Mr. Rao urged that each religious community in India had
their own form of marriages which excluded members of other religious communities, though
the Indian Marriage Act did recognize a marriage between a Christian and non-Christian to
be valid, though under the provisions of the Special Marriage Act.

102
13. Mr. Rao also referred to Section 2 of the above Act which reads as follows:

2.-Application of Act- (1) This Act applies,-

(a) to any person who is a Hindu by religion in any of of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim,
Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as
the case may be,-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas
or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or
Sikh by religion and who is brought up as a member of tribe, community, group or family to
which such parents belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindus, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1),nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article
366 of the Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.

(3) The expression "Hindus" in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion is, nevertheless, a person whom this Act applies
by virtue of the provisions contained in this section."

14. Reference was then made to Section 4 of the Act which, inter alia, provides that save as
otherwise expressly provided in the Act any text Rule or interpretation of Hindu Law or any
customs or usage as part of that law in force immediately before the commencement of the
Act would cease to have effect with respect to any matter for which provision had been made
in that Act. Mr. Rao pointed out that the said Section also provided that the Hindu Marriage
Act, 1955, would override other laws in force immediately before the commencement of the
Hindu Marriage Act, 1955, in so far it was inconsistent with any of the provisions of the 1955
Act.

15. With regard to the provisions of Section 5 of the Hindu Marriage Act, 1955, Mr. Rao
submitted that it was clear from the wording thereof that the conditions indicated in the
Section were to apply only in respect of a marriage between two Hindus and that a Hindu
marriage could be solemnized between two Hindus only when the conditions set out in the
provisions contained therein had been fulfilled. According to Mr. Rao, the marriage between
the parties would have to be categorised within the scope and ambit of Section 12 relating to

103
voidable marriage since a void marriage under Section 11 of the Act had been defined to
mean any marriage solemnized after the commencement of the Act if it contravenes any one
of the conditions specified in clauses (i)(iv) and (v) of Section 5. Since the marriage of the
parties did not fall within the said categories, the respondent had no option but to make an
application under Section 12 (1)(c) that the marriage was a nullity on the ground that the
appellant had been beguiled into the marriage by the appellant on fraudulent considerations,
one of which was that he was a Hindu at the time of marriage. Mr. Rao submitted that since a
valid marriage under the Hindu Marriage Act, 1955, could only be performed between two
Hindus the marriage had been rightly declared to be a nullity by the High Court and its
decision did not warrant any interference in this appeal.

16. Apart from the aforesaid question, another submission was advanced on behalf of the
respondent to the effect that, after the decree passed in her favour declaring the marriage to
be a nullity, she had remarried on 23.1.2003 i.e about 4 months after the decree declaring her
marriage with the appellant to be nullity had been passed.

17. Various decisions were cited on behalf of both the parties with regard to this aspect of the
matter which, in our view, is not really important for a decision on the legal question that has
been raised in the appeal.

18. Although, an attempt has been made to establish that the Hindu Marriage Act, 1955, did
not prohibit a valid Hindu marriage of a Hindu and another professing a different faith, we
are unable to agree with such submission in view of the definite scheme of the 1955 Act.

19.In order to appreciate the same, we may first refer to the Preamble to the Hindu Marriage
Act, 1955 , which reads as follows:

"An Act to amend and codify the law relating to marriage among Hindus". (Emphasis added)

20.As submitted by Mr. Rao, the Preamble itself indicates that the Act was enacted to codify
the law relating to marriage amongst Hindus. Section 2 of the Act which deals with
application of the Act, and has been reproduced hereinabove, reinforces the said proposition.

21.Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized
between any two Hindus if the conditions contained in the said Section were fulfilled. The
usage of the expression `may' in the opening line of the Section, in our view, does not make
the provision of Section 5 optional. On the other hand, it in positive terms, indicates that a
marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In
other words, in the event the conditions remain unfulfilled, a marriage between two Hindus
could not be solemnized. The expression `may' used in the opening words of Section 5 is not
directory, as has been sought to be argued, but mandatory and non-fulfilment thereof would
not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be
read along with Section 5 in that a Hindu marriage, as understood under Section 5, could be
solemnized according to the ceremonies indicated therein.

22.In the facts pleaded by the respondent in her application under Section 12(1)(c) of the
1955 Act and the admission of the appellant that he was and still is a Christian belonging to
the Roman Catholic denomination, the marriage solemnized in accordance with Hindu
customs was a nullity and its registration under Section 8 of the Act could not and/or did not
validate the same. In our view, the High Court rightly allowed the appeal preferred by the

104
respondent herein and the judgment and order of the High Court does not warrant any
interference.

23.The other question raised regarding the subsequent marriage of the respondent is of little
relevance once we have held that the marriage purported to have been performed between the
appellant and the respondent on 24.10.1996 was a nullity. Hence, no decision is called for in
that regard and we also make no observation in respect thereof.

24.The appeal is accordingly dismissed.

25.There will, however, be no order as to costs.

26.We place on record our appreciation of the assistance provided by Mr. Lalit to help us to
arrive at a decision in this appeal.

____________________J.

(ALTAMAS KABIR) ____________________J.

(AFTAB ALAM) New Delhi Dated: 4.12.2008

Supreme Court of India

PETITIONER:
ASHOK HURRA

Vs.

RESPONDENT:
RUPA ASHOK HURRARUPA BIPIN ZAVERI

DATE OF JUDGMENT: 10/03/1997

BENCH:
M.M. PUNCHHI, K.S. PARIPOORNAN

JUDGMENT:

W I T H CIVIL APPEAL NO. ....1835......... OF 1997 (Arising out of SLP (C) No.6443 of
1995) J U D G M E N T PARIPOORNAN. J.

Special Leave granted in both cases. The main appeal is the one arising out of Special Leave
Petition (C) No.20097 of 1996. The said appeal is filed against the judgment and order of the
Gujarat High Court rendered in L.P.A. No.373 of 1996. The appellant in both the appeals is
Sri Ashok G. Hurra (the husband) and the respondent in both the appeals is Rupa Ashok
Hurra (the wife). We will deal with the facts in the main appeal which is covered by Special
Leave Petition No.20097 of 1996.

2. The marriage between the appellant (husband) and the respondent (wife) was solemnized
on 3.12.1970 according to the Hindu rites and custom at Ahmedabad. The couple have on
issue. It seems difference of opinion cropped up between the parties. Presumably it persisted

105
and so they could not stay together. On 30.6.1983, the wife left the matrimonial home.
Thereafter, the couple started residing separately. On 21.8.1984, a joint petition for divorce
was filed under Section 13B of the Hindu Marriage Act. It was signed by both the parties and
both of them appeared before Court. Both of them are highly educated and intelligent and
managing their own affairs and business. In the joint petition, it was averred that all the
matters regarding ornaments, clothes and other movables were settled between them and the
wife and renounced her right to claim maintenance. The parties simply sought a decree of
dissolution of the marriage by mutual consent.

3. Under Section 13B(2) of the Hindu Marriage Act (hereinafter referred to as `the Act'), on a
motion by both the parties, six months after the date of presentation of the petition under sub-
section (1) of the Act, and not later than eighteen months, the Court, shall, after enquiry, pass
a decree of divorce by mutual consent. On 4.4.1985, the husband alone moved an application
praying for passing a decree of divorce. On this motion, the Court issued notice to the wife. It
is seen than the hearing of the petition commenced on 15.4.1985. On that day, on the joint
application of the advocates of both the parties, the case was adjourned. Subsequently, the
case stood posted to various dates and for one reason or other, it got itself adjourned. In the
meanwhile, attempts were made by the trial Judge to bring about reconciliation between the
husband and the wife. But, it was not successful. Such attempts were made on 30.9.1985,
10.10.1985, 30.10.1985, 9.12.1985, 16.12.1985, 10.1.1986 etc. Most of the requests for
adjournments were made jointly by the advocates appearing for the parties. In all such
requests, mention was made that talks of compromise/settlement between the parties were
going on.

4. On 27.3.1986, the wife filed an application withdrawing her consent for divorce. She
prayed that petition for divorce by mutual consent may be dismissed. this submission was
objected to by the appellant, denying the averments made in the application and also stating
further that the wife has no right to revoke the consent which she has legally granted. The
husband filed an affidavit-in-reply on 9.4.1986 and contended that the wife has no right to
withdraw or revoke the consent after the period of 18 months. He also prayed that consistent
with the prayer made in the joint Hindu Marriage Petition filed on 21.8.1984 a decree for
divorce by mutual consent may be passed. The wife seems to have filed an objection thereto.

5. After hearing the parties, the learned City Civil Judge (the trial court) held that since
consent to be accepted and, in this view, dismissed the petition for divorce by mutual consent.
In the appeal filed by the husband, a learned single Judge of the Gujarat High Court in First
Appeal No.1070 of 1987, by judgment dated 15.3.1996, after a review of the entire facts and
the relevant law on the subject, came to the following conclusions:-

(1) that all the ingredients of section 13B(1) of the Act were satisfied when the petition was filed;

(2) that for a period six months thereafter the parties have continued to live separate and have not
cohabited or stayed together as husband and wife;

(3) that the wife withdrew here consent after the expiry of period of 18 months from the date of the
institution of the petition; (4) that the revocation of consent after the prescribed period under section
13B(2), (18 months) by the wife was not based on true or correct ground but a false pretext, ruse, or
non-existent ground put forward by her to justify revocation of her consent; (5) that under section
13B(2), once the period of interregnum or transitional period starting from six months from the date
of presentation of the petition till the expiry of the period of 18 months from the date of the petition

106
was over, and if the petition is not withdrawn or consent is not revoked in the meantime, the Court
shall pass a decree and the limited enquiry t be made under section 13B(2) is to the effect that :

(i) the marriage has been

solemnised;
(ii) the averments made in the
petition, namely,
(a) that the parties have
separated for a period of one year or more, and

(b) they have not been able to live together; and

(c) that they have mutually agreed that the marriage should be dissolved."

6. On the basis of the above and in view of the fact that the marriage between the husband
and wife has irretrievably broken down and reunion is not at all possible, the learned single
Judge set aside the order passed in Hindu Marriage Petition No. 248 of 1984 dated
17.10.1986 by the trial court and passed the decree of dissolution of marriage from the date of
the petition.

7. In the Letters Patent Appeal No. 373/96, filed by the respondent herein (the wife), a
Division Bench of the Gujarat High Court, by judgment dated 9.9.1996, set aside the order of
the learned single Judge and concluded thus:

"......the wife withdrew her consent even before the trial court could make an inquiry. The trial court
was, therefore, right in dismissing the application submitted under section 13B of the Act. There is no
requirement in law that the party withdrawing consent must give reasons or the withdrawal must be
based on reasonable grounds. Irretrievable breakdown of marriage by itself is nota sufficient ground
for dissolution of a marriage, as held by the Apex Court. In the result, we quash and set aside the
order passed by learned single Judge granting decree of dissolution of marriage solemnized between
the parties herein and the order passed by the trial court is restored. We direct the Principal Judge,
City Civil Court, Ahmedabad to forthwith assign HMP No.328 of 1994 filed by husband to a learned
Judge of that court, with a request to dispose of the petition within a period of two months from the
receipt of the writ."

It is against the judgment of the Division Bench rendered in the Letters Patent Appeal No.373
of 1996, the husband, as appellant, filed this appeal after obtaining special leave.

8. Certain facts which are discernible from the records and have some impact in the decision
to be rendered, deserve to be noticed, at this stage:

The learned single Judge in his judgment rendered in First Appeal No.1070 of 1987 has
stated that the appellant/husband remarried with one Sonia on 18.8.1985 and a male child
named Prasad was born out of the said wedlock. The respondent/wife filed a suit on 1.8.1994
in the City Civil Court for a declaration that the judgment and decree of the City Civil Court
dated 17.10.1986 in Hindu Marriage Petition was still subsisting and that relation of
appellant-husband with Sonia was illegal and that the child out of such marriage was
illegitimate and that the appellant-husband should be restrained from describing Sonia as his
wife. It also appears that on 15.9.1994 the appellant/husband filed another petition for
dissolution of marriage against respondent/wife (HMP No. 328 of 1994) on the ground of
unchastity of the respondent/wife alleging large number of pornographic relations which she

107
is alleged to have with her father and other persons and also under Sec.13(1) alleging that the
wife has for a continuous period of not less than two years immediately preceding the
presentation of the petition deserted the husband. (See- paragraphs 54 and 55 in F.A. No.1070
of 1987). Regarding the subsequent petition filed by the wife, the learned single Judge, in
paragraph 56, has stated thus:

".........The allegations made therein by each against the other are so vulgar and centering round the
science of pornography that this Court feels that detailed reference to such facts would even pollute
the present matrimonial proceeding. This Court has, therefore, refrained itself from making reference
to such allegation made in the subsequent petition by the husband against wife and the allegations
made by the wife against the husband in her reply. Undoubtedly, a very strong feeling and impression
is created in the mind of this Court that not only on re-union or reconciliation between the spouses
was possible at any stage after the institution of petition for divorce by mutual consent under sec.13B
on 21.8.1984, the parties were convinced that the marriage was irretrievably broken. This Court also
finds that no useful purpose would be served by prolonging and/or procrastinating the miseries of two
spouses when the very purpose of happy married life was lost."

(emphasis supplied) On 15th September, 1994, the appellant/husband also filed a criminal
complaint under Section 497 and 498 read with Section 347 of the Indian Penal Code. The
respondent- wife filed a criminal complaint on 14th November, 1994 against the
appellant/husband and Sonia under Section 494 of the Indian Penal Code on the ground that
the second marriage of the husband with Sonia was bigamous marriage and was prohibited
under Section 17 of the Act.

9. We heard counsel.

10. Mr. R.K. Jain, Senior Counsel, for the appellant submitted thus:

(1) The Trial Court erred in dismissing the joint application filed by the parties under Section
13B of the Act. The respondent/wife has no locus or competency to withdraw her consent
after the period of 18 months specified in Section 13B(2) of the Act.

(2) The trial court as will as the Division Bench of the Gujarat High Court which heard the
Letters Patent Appeal overlooked the crucial words occurring in Section 13B(1) and 13B(2)
of the Act. Under Section 13B(1) of the Act, a petition for dissolution of marriage by a decree
of divorce should be presented by both the parties together. But, under Section 13B(2), for
making the motion for passing a decree, after the period of six months, both the parties need
not be present. In this case, the joint petition for dissolution of marriage by a decree of
divorce was presented by the husband and wife together in compliance with Section 13B(1)
of the Act. All the three ingredients were satisfied when the joint petition was filed by the
parties, namely, (a) that they have separated for a period of one year or more; (b) that they
have not been able to live together and (c) that they have mutually agreed to dissolve the
marriage. The motion for passing a decree was made after six months of the date of
presentation of the petition by the husband for which the wife had notice and this is sufficient
compliance of Section 13B(2) of the Act. Since the wife has not withdrawn her consent
within the period of 18 months after the date of presentation of the petition, the trail court was
obliged to pass a decree of divorce after hearing the parties.

108
(3) In any view of the matter, from the strained relationship between the parties for over 13
years, and the "Kilkenny fight" between the parties, who are educated persons, it is evident,
that the marriage has irretrievably broken down with no chance of re-union and so this Court
by taking into account, the totality of the facts and circumstances in this exceptional case,
should pass a decree of divorce, with appropriate directions, in order to do complete justice in
the matter.

11. On the other hand, Mr. Jaitley, senior Counsel for the respondent stated thus:

(1) It is true, that a joint petition for dissolution of marriage by the decree of divorce was
made by both the parties together and the requirements of Section 13B(1) are satisfied. Under
Section 13B(2) of the Act, in order to pass a decree after the period of six months, a motion
should be made by both the parties. It is not so in this case. The motion was made only by the
husband. It is incompetent.

(2) The respondent/wife had withdrawn the consent before the enquiry, at any rate, before the
decree under Section 13B(2) could be passed. Consent for dissolution should be present at the
time of filing the joint application as also on the date when the decree has to be passed. The
expiry of 18 months from the date of filing of the petition is irrelevant.

(3) Notwithstanding the strained relationship between the parties and other factors urged to
show that the marriage has broken down irretrievably, the conduct of the appellant/husband
disentitles him to any relief. Indeed, when the proceedings were still pending in the trial court
the appellant married a second time and got a male child. Thereby, he committed a wrong. He
cannot take advantage of his own wrong, and cannot invoke the jurisdiction of this Court by
urging it as a ground for passing a decree of divorce in order to do complete justice in the
matter.

12. Counsel on both sides placed their respective interpretation of Section 13B of the Hindu
Marriage Act. Section 13B of the Act reads as follows:

"13B. (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement of the Marriage Laws (Amendment )
Act, 1976 on the ground that they have bee living separately for a period of one year of more, that
they have not been able to live together and that they have mutually agreed that the marriage should
be dissolved. (2) On the motion of both the parties made not earlier than months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after the
said date, if the petition is the said date, if the petition is not withdrawn in the meantime, the court
shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the decree."

(emphasis supplied)

13. Mr. Jaitley, counsel for the respondent, heavily relied o the decision of this court in
Sureshta Devi v. Om Prakash [1991(1) SCR 274 = AIR 1992 SC 1904] and contended that it
is open to one of the parties at any time till the decree of divorce is passed to withdraw the
consent given to the petition, and mutual consent to the divorce is a sine qua non for passing
a decree for divorce under Section 13B of the Act. Mutual consent should continue till the

109
divorce decree is passed. It is positive requirement for the Court to pass a decree of divorce.
Since this crucial or vital aspect is absent in this case, counsel argued that the matter is
concluded and that it is unnecessary to consider the other aspects urged regarding Section
13B of the Act or to focus attention on the totality of the circumstance to consider whether
any other appropriate order should be passed by this Court at this juncture.

14. On the other hand, counsel for the appellant Mr. Jain, contended that the actual issue
involved in Sureshtra Devi's case (supra ) was in a narrow compass, namely, whether the
consent given can be unilaterally withdrawn. In that case, the consent was withdrawn within
the period of 18 months and no question arose as to whether the consent can be withdrawn 18
months after the filing of the joint petition and so the decision is distinguishable. But the
court considered the larger question as to whether it is open to one of the parties till the
decree of divorce is passed, to withdraw the consent given to the position. The decision on
the larger question is only obiter and the decision requires reconsideration. That apart, this
Court has got the power to consider the totality of the circumstances, including the
subsequent events, in order to do complete justice in the matter, which are the following :

The pendency of the proceedings for a long period of over 12 years, the acrimonious battle
between the parties, the allegation and counter-allegations made by the parties, the fact that
the marriage is dead or has broken down irretrievably without any chance or re-union
between the parties, that continuance of the stalemate is only a futility leading to a tortious
life for both and continued agony and that the parties are living separately for more than 13
years -- these should weigh with the Court to grant a decree for divorce by mutual consent
under Section 13B of the Act and dissolve the marriage between them and give appropriate
directions including provision of reasonable/adequate funds for the wife to have a decent
living and it was indicated that a lump sum payment of Rs. 4/5 lakhs may be reasonable.
Counsel also stressed the fact that in the joint petition filed for divorce, it is stated that all
matters regarding ornaments, clothes, moveables, etc. were settled between the parties and
the wife has renounced her right to claim maintenance and this should be taken into
consideration. Counsel on both sides brought to out notice few decisions of the different High
Courts and of this Court to substantiate their pleas.

15. We are of opinion that in the light of the fat situation present in this case, the conduct of
the parties, the admissions made by the parties in the joint petition filed in Court, and the
offer made by appellant's counsel for settlement, which appears to be bonafide, and the
conclusion reached by us on an overall view of the matter, it may not be necessary to deal
with the rival pleas urged by the parties regarding the scope of Section 13B of the Act and the
correctness or otherwise of the earlier decision of this Court in Sureshta Devi's case (supra) or
the various High Court decisions brought to our notice, in detail. However, with great respect
to the learned Judges who rendered the decision in Sureshta Devi's case (supra), certain
observations therein seem to be very wide and may require reconsideration in an appropriate
case. In the said case, the facts were :-

The appellant (wife) before this Court married the respondent therein on 21.11.1968. They
did not stay together from 9.12.1984 onwards. On 9.1.1985, the husband and wife together
moved a petition under Section 13B of the Act for divorce by mutual consent. The Court
recorded statements of the parties. On 15.1.1985, the wife filed an application in the Court
stating that her statement dated 9.1.1985 was obtained under pressure and threat. She prayed
for withdrawal of her consent for the petition filed under Section 13B and also prayed for
dismissal of the petition. The District Judge dismissed the petition filed under Section 13B of

110
the Act. In appeal, the High Court observed that the spouse who has given consent to a
petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however,
would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent,
if the consent was other wise free. It was found that the appellant (wife) gave her consent to
the petition without any force, fraud or undue influence and so she was bound by that
consent. The issue that came up for consideration before this Court was, whether a party to a
petition for divorce by mutual consent under Section 13B of the Act, can unilaterally
withdraw the consent and whether the consent once given is irrevocable. It was undisputed
that the consent was withdrawn within a week from the date of filing of the joint petition
under Section 13B. It was within the time limit prescribed under Section 13B(2) of the Act.
On the above premises, the crucial question was whether the consent given could be
unilaterally withdrawn. The question as to whether a party to a joint application filed under
Section 13B of the Act can withdraw the consent beyond the time limit provided under
Section 13B(2) of the Act did not arise for consideration. It was not in issue at all. Even so,
the Court considered the larger question as to whether it is open to one of the parties at any
time till a decree of divorce is passed to withdraw the consent given to the petition. In
considering the larger issue, conflicting views of the High Courts were adverted to and finally
the Court held that the mutual consent should continue till the divorce decree is passed. In the
light of the clear import of the language employed in Section 13B(2) of the Act, it appears
that in a joint petition duly filed under Section 13B(1) of the Act, motion of both parties
should be made six months after the date of filing of the petition and not later than 18
months, if the petition is not withdrawn in the meantime. In other words, the period of
interregnum of 6 to 18 months was intended to give time and opportunity to the parties to
have a second thought and change the mind. If it is not so done within the outer limit of 18
months, the petition duly filed under Section 13B(1) and still pending shall be adjudicated by
the Court as provided in Section 13B(2) of the Act. It appears to us, the observations of this
Court to the effect that mutual consent should continue till the divorce decree is passed, even
if the petition is not withdrawn by one of the parties within the period of 18 months, appears
to be too wide and does not logically accord with Section 13B(2) of the Act. However, it is
unnecessary to decided this vexed issue in this case, since we have reached the conclusion on
the fact situation herein. The decision in Sureshta Devi's case (supra) may require
reconsideration in an appropriate case. We leave it there.

16. Now we shall advert to the findings arrived at by the learned single Judge and the
Division Bench in the letter Patent Appeal. In paragraph 56 of the judgment, the learned
single Judge has found thus :

"Undoubtedly, a very strong feeling and impression is created in the mind of this Court that not only
no re-union or reconciliation between the spouses was possible at any stage after the institution of
petition for divorce by mutual consent under Section 13B on 21.8.1984, the parties were convinced
that the marriage was irretrievably broken. This Court also finds that no useful purpose would be
served by prolonging and/or procrastinating the miseries of two spouses when the very purpose of
happy married life was lost.

.................................. Parties have now resorted to various civil and criminal proceeding against each
other."

(emphasis supplied) Again in paragraph 59 of the judgment, the Court found thus:

111
"The fact situation which prevails before this Court though not fully comparable to the facts can be
said to be identical, the rupture in the marital tie is created much earlier and admittedly the parties
have started residing separately since 1983 and after full understanding and consideration of facts they
had filed petition for divorce by mutual consent in the year 1984.

The husband has thereafter remarried Sonia and had a child out of such wedlock. The wife has
thereafter filed Civil suit for declaration about the status of second wife and child born out of such
marriage and also criminal complaint. The husband has also in his turn filed petition of dissolution of
marriage and also a criminal complaint. The fact that there is no possibility of reunion is clearly
established and is in no uncertain terms admitted by the wife before the Court. The obvious
conclusion is that she has resolved not only to live in agony but to make life of her husband miserable
too. .... ..... .... ..... .... .... In the fact situation obtaining before this Court it can safely conclude that the
marriage between the parties has been irretrievably broken and that there is no chance of their coming
together or living together."

(emphasis supplied) Again in paragraph 72 of the judgment, the learned single Judge stated
thus :

"However, in my opinion, in view of the decisions of the Apex Court, in the subsequent decisions,
namely in the case Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6; in the case of V. Bhagat v.
D. Bhagat (1994) 1 SCC 337; in the case of Chandrakala Trivedi v. Dr. S.P. Trivedi (1993) 4 SCC
232; and in the case of Romesh Chander v. Smt. Savitri (JT 1995 (1) SC 362) when the Court come to
the conclusion that the marriage is irretrievably broken and that there was no possibility of reunion or
reconciliation between the parties and that ingredient of Sec.23(1)(bb) were non-existent; i.e. there
was free consent to a joint petition for divorce by mutual consent by both the parties, the Court can
and shall have to pass a decree for dissolution of marriage by mutual consent as the very legislative
intent behind enacting such a provision would be rendered meaningless if it would render the
provision to lead to position of perpetuation or procrastination of agonies and miseries of the
separated spouses despite the realisation that no reconciliation was possible."

(emphasis supplied)

17. In the Letters Patent Appeal, the Division Bench entered the following findings :-

(i) Irretrievable break down or marriage is not a ground by itself to grant a decree of dissolution of
marriage;

(ii) Even if a decree of dissolution could have been granted, it could not have been granted from the
date of the petition, but it could have been granted only from the date of the decree;

(iii) In the facts and circumstances of the case, even if discretion is vested in this Court, this Court
would not like to exercise the discretion looking to the conduct of the husband, i.e. (1) remarriage
during the subsistence of the first marriage and during the pendency of the petition, (2) participating
in reconciliation proceedings knowing fully will that he cannot accept appellant as his wife any more
as he has remarried, and (3) unnecessarily prolonging the matter;

(iv) We would just say that this Court has no power similar to Article 142 of the Constitution and
even if similar powers are conferred, in the peculiar facts and circumstances of the instant case, it
would not be proper on our part to exercise such powers;

112
(v) Summing up, we must say that there is not a singly case where the consent was withdrawn before
the stage of inquiry and yet the Court passed a decree of divorce with effect from the date of the
application; there is not a single case where either the husband or wife marriage and yet the Court has
passed a decree of dissolution of the first marriage which would benefit a party who has committed a
wrong. On the contrary, the Apex Court has refused to grant a decree on the ground of irretrievable
break down of marriage as during the pendency of the appeal, husband remarried. The paramount
consideration should be that a party who come to the Court with clean hands should be assisted.
Power may be exercised in favour of the party who comes to the Court with clean hands.

18. After considering the matter in detail, we find that the appellate Court has not disputed
the following:

(a) the marriage between the parties is dead and has irretrievably broken down;

(b) there are allegations and counter-allegations between the parties and also litigations in various
courts an no love is lost between them;

(c) there is delay in the disposal of the matter;

(d) the husband has married again and has got a child; and

(e) the wife has not withdrawn her consent lawfully given for a period of 18 months and it is not a
case where the consent given is revoked on the ground that it is vitiated by fraud or undue influence or
mistake etc.

(f) That the joint petition filed in court by the parties stated

(a) that the parties have settled all the matters and the wife has renounced her right to claim
maintenance and

(b) what the parties prayed for, was only a decree of desolution of the marriage by mutual consent.

19. It appears to us that the appellate Court was swayed by the fact that the appellant/husband
has not come to court with clean hands; in that he married during the pendency of the
proceeding. It may be, as expressed by the appellate Court that factors such as the marriage is
dead and has broken down irretrievably, that there was no chance of re- union, that there were
allegations and counter-allegations made by the parties, that the parties were residing
separately for nearly 13 years -- each one of the above factors by itself (individually) may not
afford a ground for divorce by mutual consent.

20. When the matter was pending in this Court, there were attempts to settle the matter. But,
finally consel on both sides reported that there is no scope for settlement between the parties.

21. We are of the view that the cumulative effect of the various aspects in the case
indisputably point out that the marriage is dead, both emotionally and practically, and there is
no chance at all of the same being revived and continuation of such relationship is only for
name-sake and that no love is lost between the parties, who have been fighting like "Kilkenny
cats" and there is long lapse of years since the filing of the petition and existence of such a
state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the
Constitution and grant a decree of divorce by mutual consent under Section 13B of the Act
and dissolve the marriage between the parties, in order to meet the ends of justice, in all the

113
circumstances of the case subject to certain safeguards. Appropriate safeguard or provision
for the respondent/wife to enable her to have a decent living should be made. The appellant is
a well to do person and is a Doctor. He seems to be affluent being a member of the medical
fraternity. But his conduct during litigation is not above board. The suggestion or offer of a
lump sum payment of rupees four to five lakhs, towards provision for wife, is totally
insufficient, in modern days of high cost of living and particularly for a women of the status
of the respondent. At least, a sum of about Rs.10,000/- p.m. will be necessary for a
reasonable living. Taking into account all aspect appearing in the case, more so the conduct
of the parties and the admissions contained in the joint petition filed in court, we hold that the
respondent (wife) should be paid, a lump sum of rupees ten lakhs (Rs.10 lakhs) (and her costs
in this litigation as estimated by us) on or before 10.12.1997 as mentioned hereinbelow, as a
condition precedent for the decree passed by this Court to take effect.

22. There is no useful purpose served in prolonging the agony any further and the curtain
should be rung at some stage. In coming to the above conclusion, we have not lost sight of
the fact that the conduct of the husband is blame- worthy in that he married a second time and
got a child during the pendency of the proceedings. But that factor cannot be blown out of
proportion or viewed in isolation, nor can deter this Court to take a total and broad view of
the ground realities of the situation when we deal with adjustment of human relationship. We
are fortified in reaching the conclusion aforesaid by a decision of this Court reported in
Chandrakala Menon v. Vipin Menon [(1993) 2 SCC 6]. Earlier decisions of this Court in
Chandrakala Trivedi v. Dr. S.P. Trivedi [(1993) (4) SCC 232]; V. Bhagat v. D. Bhagat
[(1994) 1 SCC 337] and Romesh Chander v. Smt. Savitri [JT 1995 (1) SC 362] also afford
useful guidelines in the matter.

23. A few excerpts from the Seventy-first Report of the Law Commission of India on the
Hindu Marriage Act, 1955 -- "Irretrievable breakdown of marriage" -- dated April 7, 1978
throw much light on the matter:

"Irretrievable breakdown of marriage is now considered, in the law of a number of countries,

a good ground of dissolving the marriage by granting a decree of divorce. ..... .......

.......... ...............

Proof of such a breakdown would be that the husband and wife have separated and have been
living apart for, say, a period of five or ten years and it has become impossible to resurrect
the marriage or to re-unite the parties. It is stated that one it is known that there are no
prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse
and gives rise to crime and even abuse of religion to obtain annulment of marriage. ... .... .....

The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one
with which, by now, lawyers and others have become familiar. Restricting the ground of
divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those
cases where the situation is such that although none of the parties is at fault, or the fault is of
such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a
situation in which the marriage cannot be worked. The marriage has all the external
appearance of marriage, but none of the reality. As is often put pithily, the marriage is merely
a shell out of which the substance is gone. In such circumstance, it is stated, there is hardly
any utility in maintaining the marriage as a facade, when are of the essence of marriage have
disappeared.

114
After the marriage has ceased to exist in substance and in reality, there is no reason for
denying divorce. The parties alone can decide whether their mutual relationship provides the
fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a
difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned
with bringing the parties and the children to terms with the new situation and developments
by working out the most satisfactory basis upon which they may regulate their relationship in
the changed circumstances.............

Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness
that life has to offer and all the misery that has to be faced in life, an experience of the joy
that comes from enjoying, in common, things of the matter and of the spirit and from
showering love and affection n one's offspring. Living together is a symbol of such sharing in
all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative
of a disruption of the essence of marriage -- "breaking" -

- and if it continues for a fairly long period, it would indicate destruction of the essence of
marriage -- "irretrievable breakdown."

24. S.L.P. No.6443 of 1995 was filed earlier by the appellant herein praying that this Hon'ble
Court may be pleased to invoke Article 142 of the Constitution of India and pass appropriate
orders granting a decree of divorce. The Special Leave Petition was filed against the order of
a single Judge of the Judge of the Gujarat High Court in Civil Application No.949 of 1995
dated 17.2.1995 dismissing the application of the appellant for granting a decree of divorce in
respect of the marriage between the appellant and the respondent. It is unnecessary to advert
to the facts stated therein and other matter since consideration of the appeal arising out of
S.L.P. No.6443 of 1995 has become academic and unnecessary in view of the final order
passed in the main appeal.

hold accordingly. No separated orders are necessary the Civil Appeal arising out of S.L.P.
No.6443/95.

25. The appeal (filed from S.L.P.20097/96) is allowed. Subject to the fulfilment of the
following conditions, a decree of divorce for dissolution of marriage by mutual consent
solemnized between the appellant and the respondent is passed under Section 13B of the Act.
It is made clear that the decree is conditional and shall take effect only on payment or deposit
in this Court of the entire sum of rupees ten lakhs by the appellant to the respondent, as
ordered herein and also the cost as assessed below on or before 10.12.1997. The appellant
shall pay or remit the amounts ordered before the said date, in two instalments - a sum of
Rs.5 lakhs + Rs.50,000/- (the assessed cost) as ordered hereinbelow, on or before 10.8.1997
and the balance of Rs. 5 lakhs (rupees five lakhs) on or before 10.12.1997. The assessed costs
required to be paid by the appellant shall be Rs.50,000/- towards the entire proceeding to the
respondent. If default is made in the payment of the instalment due on 10.8.1997 together
with cost, then also, this decree shall not take effect and the appeal shall stand dismissed. If
the amounts ordered herein are duly deposited in this Court by the appellant, the respondent
can withdraw the said amounts, without further orders. We further declare and hold that all
pending proceedings, more particularly referred to in para 8 of this judgment, including the
proceeding under Section 494 IPC read with Section 17 of Hindu Marriage Act, 1955
between the parties shall stand terminated, but only on payment or deposit of the amounts
ordered by us in this judgment. This is made clear.

115
The appeal are disposed of in the above terms.

Calcutta High Court

Biswanath Mitra vs Sm. Anjali Mitra on 22 March, 1974

Equivalent citations: AIR 1975 Cal 45

Author: Banerjee

Bench: P Banerjee, R Bhattacharya

JUDGMENT Banerjee, J.

1. This appeal is at the instance of the husband who is a respondent in an application by the
wife under Section 10(1)(b) of the Hindu Marriage Act for judicial separation. The case of
the applicant wife is that on the 17th February, 1959. the petitioner-wife, respondent herein,
went through a form of marriage with the respondent-appellant herein, in accordance with the
Hindu rites and rituals at "Suruchi Kutir", Jublee Part, Tollygunge, Calcutta. In or about the
year 1955. the petitioner was introduced to the respondent by a common acquaintance and in
course of four years following the said introduction, a mutual love and affection developed in
between the petitioner and the respondent which ultimatly culminated in the aforesaid
marriage of the petitioner with the respondent. Just after the marriage, the petitioner started
living with the respondent at 4/A, Benode Saha Lane, Calcutta and resided there upto 15th
August, 1961. On the 3rd August, 1960. a male child named Sudev, was born of the aforesaid
wedlock to the petitioner by the respondent. On 19th June, 1962, a female child, named
Sonali, was born of the said wedlock. The petitioner is a working girl and has been earning
since her marriage in various capacities and in different places and is at present in the employ
of a private firm and has to work hard absolutely to maintain the family. The respondent, it is
alleged, is Free Lance Artist (Painter) and Bohemain in character and bears no positive
responsibility of the family and does not duly discharge the duty and obligation to the
children expected from the father. The respondent for the last few years started ridiculing the
petitioner in respect of her concept of morality and her way of looking at things and the way
of leading her life. The petitioner during the time was in Government service for more than
ten years. The respondent on account of his mental delinquency began suspecting the
petitioner in respect of her morality and chastity and made accusation against the petitioner of
being immoral as a result whereof, the petitioner suffered in mind and tendered resignation
and left the permanent Government service of ten years in the month of July, 1963. Because
of financial stringency the petitioner was forced again to seek employment and joined the
service in the month of December, 1967. On the joining of the present service by the
petitioner, the respondent has again started treating the petitioner with such mental cruelty as
to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or
injurious to the petitioner to live with the other party. The respondent almost regularly began
to make reckless and unbridled allegations of un-chastity against the petitioner which are
absolutely false causing untold mental pain and psychological injury. It is alleged that the
respondent further charged the petitioner in presence of the children with gross immorality
and adultery which has no basis at all. The respondent stated that the appellant-husband did
not show any consideration in respect of the mental and physical requirements, feelings and
sentiments of the petitioner especially against the background of her hard and onerous duty in

116
the office. It is further stated that the appellant's brother at the instance of the appellant-
husband abused the petitioner and threatened the petitioner in presence of the children and
also insulted the petitioner in respect of her moral character. these pleadings, the petitioner
prayed for a judicial separation and other reliefs.

2. The respondent-appellant denied all the allegations made against by the wife. It is further
stated that the application for judicial separation is not maintainable in view of Section 30 of
the Special Marriage Act. 1954 as there was no marriage between the petitioner and the
respondent in the eye of law as the same was solemnised within the prohibited period of one
year from the date of decree of divorce obtained on 19th December. 1958, from the Hon'ble
High, Court at Calcutta in Matrimonial Suit No. 1 of 1957. It is stated that the said fact was
not within the knowledge of the respondent at the time of the marriage as stated hereinbefore.
It is further stated that the petitioner became so much intimated with Sri Amal Chakraborty
that she even did not care the advice of her mother and that she neglected her duty towards
the family and the children or to the respondent. The money which she actually earned was
spent for her illicit love affairs with the said Amal Chakraborty. It is also stated that the
children did not like their mother's intimacy with Amal Chakraborty. On these allegations,
the parties came to trial. The learned District Judge held in favour of the wife and passed the
decree for judicial separation whereupon the appellant-husband preferred this present appeal.
Before the appeal was heard, we asked the parties to be present in Court and asked both the
wife and the husband whether it is possible even now to continue in a matrimonial home but
the wife particularly did not agree and in that view, nothing could be done.

3. At the hearing, the appellant contended that as the respondent-wife was married to another
person and got a decree for divorce under the Special Marriage Act on the 19th December.
1958, the respondent-wife's marriage with the appellant was a nullity, inasmuch as, the
petitioner-wife was not free to marry before the lapse of one year under Sec. 30 of the Special
Marriage Act.

4. On behalf of the respondent-wife, Mr. Banerjee did not contest and stated that it is so and
the marriage could not have been solemnised legally on the 17th February, 1959 after the
wife got a decree for divorce on the 19th December, 1958. Under Section 5(1) of the Hindu
Marriage Act, it has been provided that a marriage may be solemnised between any two
Hindus, if neither party has a spouse living at the time of marriage. In this case, under Section
30 of the Special Marriage Act, the marriage was dissolved by mutual consent. Under Section
30 of the Special Marriage Act, after the dissolution of the marriage, the spouse cannot marry
within a year from the date of such dissolution or in the other words, neither party can marry
within a year. It is found that though the marriage has been dissolved but one year has not
expired then neither of the parties to the marriage is competent to remarry, and it must be
deemed to have a spouse living at the time of the marriage within the meaning of Section 5(1)
of the Act. It is conceded by both the parties that such marriage will be a nullity.

5. In that view of the matter, in our opinion, the marriage being a nullity, the application for
judicial separation is not maintainable and must be dismissed. The appeal must, therefore, be
allowed on the ground that the marriage being a nullity as it is conceded by both the parties
and as we feel so. the application for judicial separation is not maintainable: though we allow
the appeal, we hold that the marriage between the appellant and the respondent is a nullity.
Then the question arises regarding the fate of the spouse's child born to the appellant and the
respondent. Both parties concede that they will be legitimate children in view of Section 16
of the Hindu Marriage Act.

117
6. In the result, the appeal is allowed with costs in favour of the appellant. [(24-7-1974) By
the Court: The said cost is assessed at a consolidated sum of Rupees One Hundred Seventy.
Let this order form part of decree in our judgment dated March 22, 1974.] R. Bhattacharya. J.

7. I agree with My Lord that the appeal shall be allowed with costs and the original
proceedings started by the respondent before the District Judge, 24 Parganas for judicial
separation and other reliefs under the provisions of the Hindu Marriage Act, 1955, shall be
dismissed on the declaration that the marriage between her and the appellant before us is null
and void. I shall, however, make some addition besides the findings of My Lord.

8. The allegations of the petitioner in the petition before the original court are verv simple.
They were acquainted with each other for a considerable period and for mutual love and
affection they were married according to Hindu rites and ceremonies on 17-2-1909. Out of
the wedlock two children, one son Sudhir and the other a daughter Sonalee by name, were
born to them. It is alleged that the appellant Biswanath Mitra developed suspicion about the
moral character and chastity of the petitioner An-jali Mitra without any valid reason or basis.
The allegation further is that Biswanath went so far as to make false allegations of adultery
against Anjali. The prayer for judicial separation is on the ground that Biswanath had been
treating the petitioner with such mental cruelty as to cause reasonable apprehension in the
mind of the petitioner that it will be harmful or injurious for her to live with her husband.

9. The husband Biswanth contested the proceedings by filing a written statement. He has
denied the material allegations about mental cruelty. It has been alleged that Anajli used to
treat him with inhuman conduct and threats. Biswanath was introduced to Anjali only about 3
or 4 months before their marriage. He was not informed that a divorce ca.se was pending
between Anjari and another man with whom she was married before and that she had
obtained a divorce against that first husband. It is also stated that Anjali had been mixing with
one Amal Chakraborty, a fiance of hers and that there is illicit relation between her and Amal.
The husband has taken the plea that in view of Section 30 of the Special Marriage Act 1954,
the marriage between him and Anjali was a nullity as it was solemnised within a year "from
the date of the decree of divorce obtained by Anjali against her former husband.

10. In this case, besides the wife and the husband, there is no other witness. In matrimonial
proceedings court must decide the issues on sufficient and proper evidence and it should be
seen that before the ties of marriage are interfered with, convincing, reliable and sufficient
materials are to be relied upon for proof of allegations made by the petitioner in particular on
whom lies the onus of proof of allegations for the relief sought for. In the instant case the
petitioner-wife wanted to say that the husband openly called her unchaste and imputed false
allegation of immorality in presence of children and servants or other persons. The husband
denied the allegations during evidence and stated that the association of Anjali with Amal
Chakraborty was nasty and their intimacy was not desirable. In cross-examination Anjali
admitted that she had occasions to go out with Amal Chakraborty to Kal-yani and to Zoo but
she added that her children were in their company. The husband's allegation about wife's
close and illicit intimacy with Amal Chakraborty cannot be thrown out altogether. The wife
being the petitioner must prove her case of mental cruelty on the basis of abuses and loud
imputation about her character in presence of third parties to get the relief. On the reading of
the evidence on record, I should hold that the petitioner has failed to prove her case. No
reason has been given why she did not examine any witness to support her allegation
regarding the conduct of Biswanath. The learned Judge below appears to have been carried
away by sentiments. He should have scrutinised the evidence and the circumstances. Aniali

118
wanted to say that she had to give up a job as her husband cast reflection against her character
being a worker outside. From the evidence it appears that she was ill and that her husband
took the prescription of the doctor and arranged for her treatment. The story of giving up of
the job for ill-treatment by the husband cannot be accepted. In my view the petitioner has
completely failed to prove the allegation of mental cruelty by her husband.

11. With regard to the husband's plea about the nullity of the marriage, the admitted position
is that the petitioner obtained a decree for divorce under the provisions of the Special
Marriage Act, 1954 against her former husband and that within a period of one year, the
marriage between Anjali and Biswanath was solemnised according to Hindu rites and
ceremonies. Section 30 of the Special Marriage Act. 1954, runs as follows:--

"When a marriage has been dissolved by a decree and either there is no right of appeal
against the decree or if there is such a right of appeal, the time for appealing has expired
without an appeal having been presented, or an appeal has been presented but has been
dismissed, and one year has elapsed thereafter but not sooner, either party to the marriage
may marry again."

From the above provision of law there can be no doubt that a party to a decree of divorce or
dissolution of marriage is prohibited by law on the basis of which the marriage is dissolved,
to marry again until after the expiry of one year following the passing of the decree. Clearly,
therefore, the decree does not become absolute and effective unless a year has elapsed since
the passing of the decree and until the decree is effective, that is to say during the year
subsequent to the date of decree, it would be deemed that a marriage in question is in force
and the parties to the proceedings for divorce have their spouse living. A matter like this has
been considered in the case of Battie v. Brown, (1913) ILR 38 Mad 452, Turner v. Turner,
ILK 48 Cal 636 - (AIR 1921 Cal 5171 and Jackson v. Jackson, reported in (1912) ILR 34 All
203.

12. Section 5 of the Hindu Marriage Act 1955 lays down the conditions of a valid Hindu
marriage. One of the conditions for such marriage is that at the time of marriage neither party
must have a spouse living. In the case before us. at the time of the marriage, though Anjali.
the petitioner had obtained the decree for divorce under the Special Mar-riage Act 1054, yet
one year had not elapsed from the date of the decree and therefore she had a spouse still
living in view of my above discussion and therefore the marriage with Biswanath was not a
valid marriage. It was void ab initio. Moreover, due to the prohibition in Section 30 of the
Special Marriage Act, as quoted above, Anjali could not have married within one year of the
decree obtained by her and as such the marriage of Anjali with Biswanath was against the law
and void. In view of the discussion we cannot but hold that the marriage of Anjali with
Biswanath was void and therefore the petitioner's application for judicial separation under the
Hindu Marriage Act was not maintainable and the same is liable to be rejected.

13. One point I shall lastly mention, as it cropped up during the argument. A question arose
as to status of the children of the parties. The appellant, the father of the children showed
some anxiety on this question. Section 16 of the Hindu Marriage Act, 1955, is relevant on the
issue and according to this provision the children of the void marriage between Anjali and
Biswanath would be deemed to be their legitimate children as the said marriage has been
declared in this appeal null and void mentioned in Section 11 due to the contravention of the
condition specified in Clause (i) of Section 5 of the Hindu Marriage Act, 1955.

119
Pinninti Venkataramana & Anr. v. State of Andhra Pradesh (1977):

AIR 1977 AP 43
Court Before Andhra Pradesh High Court
Bench B Divan, C.J., A Kuppuswami, Muktadar, JJ.
Relevant Hindu Marriage Act, 1955, Indian Penal Code, 1860, Child Marriage Restraint
Laws Act, 1929.
Decided
09.08.1976
on
Keywords Hindu Marriage Act, Child Marriage, Indian Penal Code,

Facts: –

(1) In the present case, the full bench of the Andhra Pradesh High Court was constituted to
decide the following question of law: –

(a) “Whether a Hindu Marriage governed by the provisions of the Hindu Marriage Act, 1955
(hereinafter referred to as “the Act”) to which the parties are below the ages set out in Section
5(iii) of the Act i.e. where the bridegroom is below the age of twenty-one years and the bride
is below the age of eighteen years at the time of marriage, is void ab initio and no marriage in
the eyes of law”?

(2) In Criminal Revision Case No. 190 of 1975, the petitioners were convicted by the Judicial
Magistrate First Class, Rajam under Sections 494 read with Section 109 of the Indian Penal
Code (IPC). They filed appeals and the appellate court confirmed their convictions, however,
the appellate court modified their sentences to the payment of Rs.200 and in default of
payment of the fine, the petitioners were sentenced to undergo rigorous imprisonment for one
month. Aggrieved by the convictions, the petitioners filed a revision application before the
High Court. The application was heard by Muktadar, J. and here, the petitioners placed
reliance on the division bench judgment of the Andhra Pradesh High Court in P.A. Saramma
v. G. Ganapatulu where it was held that a marriage where the parties are below the age set
out in Section 5(iii) of the Act is void ab initio and no marriage in eyes of law. However, it
was felt that the decision in Saramma was incorrect, and therefore the matter was referred to
a division bench. The division Bench by an order dated 22.03.1976 referred the matter to the
present full bench.

(3) In Criminal Miscellaneous Petition No. 809 of 1976, the Petitioner No. 1 was the husband
in the case originally filed by the Respondent No.1 wife. The wife had filed a criminal
complaint in the Court of Judicial Magistrate First Class, Siddipet against her husband and
ten others alleging that her husband had committed an offence under Section 494 IPC for two
marriages and the others had committed an offence under Section 494 read with Section 109
IPC. However, the petitioner- husband contended that since he was 13 years old at the time of
marriage with the respondent-wife who was 9 years old then, the marriage was void ab initio
and no marriage in the eyes of law by relying upon the decision in P.A. Saramma v. G.
Ganapatulu. Therefore, it was contended that the petitioner could not be convicted of an
offence under Section 494 IPC and prayed that the prosecution is quashed. Since the question
involved here was similar to the one in the revision application, this petition was posted to be
heard along with the revision application.

120
Petitioners Contentions: –

The Petitioners contended that the decision in P.A. Saramma was correct and since child
marriages were void ab initio and not recognized in the eyes of law, their convictions and
prosecutions under Section 494 IPC for two marriages were liable to be set aside.

Respondents Contention: –

The Respondents raised doubts about the correctness of the decision in P.A.Saramma and
contended that the decision was contrary to the provisions of the Hindu Marriage Act, 1955.
They contended that the conviction of the petitioners was under Section 494 IPC was
justified.

Decision of the Court: – Authored by B. Divan, C.J.

(1) The Court held that the decision in P.A. Saramma v. G. Ganapatulu did not lay down the
correct law and that any marriage solemnized in contravention of Section 5(iii) of the Act is
neither void nor voidable, however, the only consequence would be that the parties would be
liable for punishment under Section 18 of the Act which prescribed simple imprisonment
which could extend to fifteen days or fine which could extend to one thousand rupees or both.

(2) The Court held that the matter in Criminal Revision Case No.190 of 1975 would go back
to the single judge for decision according to the law in this case.

(3) In Criminal Miscellaneous Petition No. 809 of 1976, the petitioners had prayed for
quashing of prosecution. However, the court refused to grant such relief and dismissed the
petition.

(4) The Court also held that if the requirements of Section 13 (2) (iv) of the Act i.e. if the
marriage of was solemnised before the bride attained the age of fifteen years and if she
repudiated the marriage before attaining the age of eighteen years, the wife could present a
petition for the dissolution of her marriage by a decree of divorce.

(5) The Court referred to Section 11 of the Act which provided that a marriage solemnized in
contravention of Sections 5 (i), (iv) and (v) of the Act would be void ab initio, however,
Section 11 did not include Section 5 (iii) of the Act. The Court referred to the intention of the
legislature which only included clauses (i), (iv) and (v) but did not include clause (iii) of
Section 5 and therefore a marriage in contravention of the age set out in Section 5 (iii) could
not be regarded as void ab initio and to buttress this, the Court referred to the decision in Mst.
Premi v. Daya Ram (1964).

(6) The Court also referred to Section 12 of the Act which provided that a marriage
solemnised in contravention of Section 5 (ii) of the Act would be voidable, Section 12 did not
again include Section 5 (iii) and therefore a marriage solemnised in contravention of Section
5 (iii) of the Act could not be regarded as voidable.

(7) The Court also looked at the position prior to the commencement of the Hindu Marriage
Act, 1955. Prior to the Act, Child Marriages were governed by the Child Marriage Restraint
Act of 1929 where the parties responsible for solemnisation of marriage in contravention to

121
the 1929 Act could be held liable for punishment, however, the marriage was not itself
rendered void.

(8) The Court held that Section 5 (iii) could not be regarded as a condition precedent for
solemnisation, the violation of which would render such marriage void ab initio since had the
Legislature intended such an effect, the Legislature would have explicitly provided for the
same.

(9) The Court referred to the decision of the Punjab and Haryana High Court in Mohinder
Kaur v. Major Singh (1971) in which the court had observed that a marriage in contravention
of Clause (iii) of Section 5 did not affect the marriage itself and the marriage was neither void
nor voidable. The Court also referred to the decision in Mt.Kalawati v. Devi Ram (1960)
where it was held that the minority of the wife is by itself, not a ground for getting the
marriage declared null and void under Section 11 of the Act or for its annulment under
Section12.

(10) Since the settled position of law with regard to child marriages by a violation of Section
5(iii) of the Act was clear, the Court overruled the decision in P.A. Saramma v. G.
Ganapatulu.

Ratio: – Child Marriages which are solemnized in contravention to Section 5 (iii) of the
Hindu Marriage Act, 1955 are neither void ab initio nor voidable, however, the parties to the
marriage are liable to punishment under Section 18 of the Act.

Dr. A.N. Mukerji vs State on 5 January, 1968

Equivalent citations: AIR 1969 All 489, 1969 CriLJ 1203

Author: Tripathi

Bench: H Tripathi, J Trivedi

JUDGMENT Tripathi, J.

1. Criminal Appeal No. 471 of 1966 by Dr. Amar Nath Mukerji against his conviction and
sentence of one year's rigorous imprisonment and a fine of Rs. 75,000/- under Section 417 I.
P. C. and Criminal Appeal No. 944 of 1966 by Smt. Harbans Kaur the prosecutrix, against his
acquittal of charges under Sections 493 and 376 I. P. C., arise out of the same judgment of the
learned Sessions Judge, Varanasi and they are being disposed of together.

2. On 11th of August 1958. Smt. Harbans Kaur filed her petition of complaint against Dr.
Mukerji in the court of a Magistrate First Class at Calcutta praying that he be tried for
offences under Sections 493, 496 and 417 of the Indian Penal Code. After undergoing many
vicissitudes her complaint resulted in the commitment of Dr. Mukerji to the court of sessions
at Calcutta to stand his trial under Section 493 I. P. C. On an application by the prosecutrix
the case was, however, transferred from West Bengal to the Court of the Sessions Judge,
Varanasi, for trial. The learned Sessions Judge, Varanasi, amended the charge under Section
493 I. P. C. and added charges under Sections 376 and 417 I. P. C. and the trial proceeded
against the accused in respect of those charges, He was acquitted on the first two counts but
was convicted under Section 417 I. P. C. The trial Judge has ordered "that out of the fine
realised two-third (Rs. 50,000/-) shall be paid" to the complainant as compensation.

122
3. On the 5th of August, 1957, Smt. Harbans Kaur had instituted suit No. 1381 of 1957
(Exhibit Ka 390) against Dr. A. N. Mukerji for recovery of a sum of Rs. 7,59,469/- and
another suit (Exhibit Kha 65) on the 12th day of September, 1957, for the recovery of a sum
of Rs. 2,00,000/- as damages by reason of the wrongful breach of his promise to marry her.
Km. Sureila Mukerji alias Neena, daughter of the prosecutrix, had also instituted suit No.
1163 of 1957 (Exhibit Kha 68) of July, 1957, through her mother against Dr. Mukerji
claiming a sum of Rs. 18,000/- as arrears of maintenance and future maintenance @ Rs. 600/-
per month. In May, 1958. Dr. Mukerji had also instituted suit No. 778 of 1958 (Exhibit Kha
66) for the recovery of Rs. 48,988.37 P. from the prosecutrix. on account of loan advanced to
her from time to time.

These civil suits between the parties are pending disposal on the original side of the Calcutta
High Court.

4. The story unfolded by the prosecutrix may be summarised as follows:--

5. Smt. Harbans Kaur (prosecutrix) was born in a Sikh family at Sialkot. Her father late
Sardar Khazan Singh was once the President of the Regency Council of Maharaja of Faridkot
and later on the Deputy Commissioner of Lyallpur. In the year 1921 at the age of 11 or 12
years she was married to Sujan Singh (P. W. 4) a Sikh by faith in the Anand form which is an
approved form of marriage amongst the Sikhs. About an year after Sujan Singh went abroad
for higher studies and returned to India by the end of 1925 after having qualified himself as a
Bachelor of Science in Engineering from the University of London. He was appointed as an
Assistant Engineer in the Assam Bengal Railway in 1926 and retired in 1959 as Deputy Chief
Engineer on a salary of Rs. 2000/- per month.

6. In 1927 after his first appointment Sujan Singh brought his wife who was a shy and
innocent girl observing Pardah to live with him. During the period 1927 to 1939 Sujan Singh
was posted at various stations in Assam where the husband and wife lived happily and had
four children. In 1939 Smt. Harbans Kaur started getting pain in her abdomen and on the
suggestion of a lady friend she went to Calcutta to get treatment from the accused who had
recently returned from England after obtaining double F. R. C. S. from two British
Universities. Sujan Singh could not accompany her. She met the accused who treated her and
when her pain had subsided she came back to Mymensingh where her husband was posted
and told him that the doctor had advised her to come to Calcutta for further treatment. Sujan
Singh accordingly took six month's leave and went with his wife and children to Calcutta in
the first week of December, 1939, and stayed there at 3 Store Road. On their arrival their
daughter Sheela got typhoid and was treated by the accused. When Sheela was better he
started the treatment of the complainant.

During the period between December 1939 and February 1940 the accused became very
friendly with Sujan Singh and 'his wife. He used to come not only for professional visits but
also for friendly and social contacts and often took his lunch, tea and dinner with them. The
complainant and her husband began to repose confidence in him. Sometimes he used to take
the complainant and her husband to various aristocratic clubs and hotels in Calcutta which
were frequented by the high echelons of the Calcutta society and were attended by dinners
and dancing parties. The frequent visits to such social gatherings in hotels and clubs had a
tremendous effect on the unsophisticated mind of the prosecutrix who began to take a wide
interest in them. The accused evinced unusual interest in the complainant and started
admiring her on frequent occasions and thus became friendly with her. One day in January

123
1940 when the accused went to give her injections he found the loosened hairs of the
complainant lying on the dressing table and put them in his purse despite her objections.
After this incident the complainant also developed a liking for the accused who expressed to
her on some occasions that he was madly in love with her. In fact the accused started taking
liberties with her but she did not allow him to go beyond certain limits.

7. About the second fortnight of February, 1940, on the Poornamashi night Sujan Singh left
for Jamshedpur. The accused took him and the complainant in his car to Howrah Rly. Station.
When the train had left with Sujan Singh at about 9 p. m. the accused and the complainant
returned. She was sitting by the side "of the accused who was himself driving the car. In the
car the accused told her that he wanted to marry her. She took it as a joke and asked as to how
he could marry her when she was already married. The accused narrated to her the stories of
Draupadi and Shakuntala from the Hindu epics and told her that a Hindu woman can marry
more than one husband. He explained to her that he wanted to marry her in the Gandharva
form as King Dushyant had married Shakuntala. The complainant believed the
representations of the accused and agreed to such marriage without understanding its
significance. The accused then drove to Dhakuria Lakes in South Calcutta and after parking
the car both of them came out and faced the moon. The accused recited some Sanskrit
Shlokas wbich she could not understand, embraced her and exclaimed "Moon you are my
witness. I am marrying Harbans and she is my wife and I am her husband." He added further
"God who is everywhere is also our witness". Both of them bowed to the moon.

The accused asked the complainant to touch his feet as a Hindu wife does to her husband and
she obeyed. Both of them then went back to the rear seat of the car and remained there for
about half an hour and the complainant did not object to cohabitation as she was induced to
believe that it was a valid marriage and the accused, who had become her husband, had every
right on her. Thereafter the accused dropped the complainant at her residence at 3 Store Road
and went away. After a few days the accused took the complainant to his house at 77 Hazra
Road and introduced her to his mother, sister, brother and other family members.

8. In March 1940 Sujan Singh was recalled to duty in Assam. The children, also went back to
Shillong where they were prosecuting their studies. The complainant, however, remained at
Calcutta with servants and a governess. During this period the accused tried to be all the time
with her. The complainant did not disclose her marriage to her husband Sujan Singh as the
accused had taken a promise from her that she would not do so as one day he himself would
inform Sujan. Singh. In May, 1940, the complainant went back to Sujan Singh who was then,
posted at Haflong but used to come almost every month to Calcutta on the pretext of
shopping and treatment but actually to meet the accused. The complainant frequently stayed
for considerable periods in Calcutta at various places between February 1940 and 1955 and
the accused from time to time lived and cohabited with her as her husband. During the
aforesaid, period the complainant's former husband used to remain most of the time outside
on duty and even when the complainant went and lived with him or he came and lived with
her at Calcutta she used to have a separate bed and did not allow him to have marital relations
with her.

9. Since his marriage in 1940 the accused was insisting that the complainant should bear a
child through him. After some hesitation she agreed and underwent a special medical
treatment including a surgical operation in 1947. By the end of April or beginning of May,
1948, she conceived from the accused. In order to cover up the pregnancy, she called Sujan
Singh from Assam in June, 1948, on the advice of the accused and cohabited with him in the

124
night although they had not been on good terms and had shunned each other during the last
several years.

10. Whenever the complainant entertained any doubts about the validity of her moon
marriage either because of the culpable intimacy of the accused with other women or his
subsequent cold behaviour towards her he always represented to her that she was his lawfully
wedded wife by citing examples of Gandharva marriages from Hindu epics and by observing
various performances meant for a husband. He also wrote numerous letters to the
complainant on various occasions showing that he treated her as his wife.

11. In June. 1948, the accused in order to assure the complainant that he was her husband
took her to the kali temple at kalighat and underwent there a form of marriage with her which
he represented to be an approved form of marriage amongst the Hindus. Garlands were
exchanged in front of the deity and the accused put Tilak on the forehead of the complainant
and walked seven steps with her to satisfy the requirements of a valid marriage. On the next
day a similar performance was again gone through by them before Guru Granth Sahib in the
house of the complainant. In this way the accused inspired complete confidence in the mind
of the complainant that she was his legally wedded wife and thus succeeded in cohabiting
with her as her husband during the period. On the 19th January, 1949, a daughter was born to
the complainant as a result of her conception by the accused.

12. According to the prosecutrix she was possessed of considerable amount of cash and
precious jewelleries which she had received from her parents and the accused by various false
pretences of love cheated her of her money and jewelleries. He used to look after her
household affairs inasmuch as he arranged for her residence and conveyance, looked after her
bank accounts, deposited and withdrew money from the banks on her behalf and cashed her
cheques. As the complainant reposed implicit confidence in the accused whom she took as
her husband she deposited a large amount of money on his advice with the Calcutta
Commercial Bank Ltd., and with M/s. H. Datta & Sons Ltd., who were the managing agents
of the aforesaid Bank. The accused had assured her when the money was given to H. Datta &
Sons Ltd. for deposit, that he was responsible for the safety of the money. With the failure of
Calcutta Commercial Bank Ltd., in September, 1948, and the collapse of its managing agents
H. Datta & Sons Ltd. soon thereafter, the complainant lost a sum of about Rs. 7,00,000/-
which she had kept with them. Even after that, the accused kept on promising the
complainant that he would get back her money. On various occasions, the accused, on one
pretext or the other, took away the jewelleries of the complainant and returned only a part of
it after several demands and reminders. Having deprived the complainant of her riches the
accused began to show indifference to her since 1950. Between 1950 and 1955 the accused
treated the complainant with cruelty and occasionally tortured her. But whenever she went
out of Calcutta to Mussoorie and other stations he entreated her to return. But on her return,
she was subjected to the same cycle of ill-treatment and then cajolery.

13. In 1955 when the complainant was completely disgusted with the behaviour of the
accused she addressed a letter dated 3-5-1955 (Exhibit Ka 37) from Lucknow to her daughter
Sheela who was in Calcutta disclosing to her the incidents of her past life and her alleged
marriage with the accused. This letter fell into the hands of Sujan Singh who then came to
know that his wife was living in adultery with the accused since 1940.

14. Sujan Singh filed a petition in the High Court of Calcutta for the dissolution of his
marriage with the complainant (Suit No. 2244 of 1956) and obtained an ex parte decree

125
against her on the ground of her adultery with the accused. After the dissolution of her
marriage with Sujan Singh the accused refused, to marry her and cut off his connections
completely in 1956. When the complainant received a copy of the written statement (Exhibit
Ka 391) of the accused in her suit for the recovery of the money she became convinced that
the accused knowing well that the alleged marriage performed with her were bogus and
invalid in the eye of law deceitfully caused her to believe that she was his legally married
wife and induced her to cohabit with him and after the dissolution of her marriage with her
former husband instead of marrying her in an approved form left and forsook her.
Accordingly she filed the present complaint. According to the complainant she would never
have parted with her money and jewelleries but for the deception practised on her by the
accused.

15. The accused pleaded not guilty and denied the charges. He admitted to have been on
terms of intimacy with Sujan Singh and the members of his family for a long time but denied
to have gone through any form of marriage with the complainant anywhere as alleged or to
have had sexual relations with her at any place. He also denied the paternity of the girl
Sureila alias Neena. According to him the complainant has taken advantage of his long and
intimate association with her and her husband to allege sexual relationship with him. He
denied to have caused her to believe that she was his lawfully married wife or to have cheated
her of her money and jewelleries. He asserted that he had been paid some amounts from time
to time by the complainant for her husband on account of the medical services rendered by
him and short term loans which had been taken from him from time to time.

He admitted to have written a number of letters to the complainant during the period 1940 to
1956 which are on the record in some of which he has addressed her as "Her Highness",
"Maharani" "Huzur". "Maharani Cooch Parwahni", and as "Dear" and "Dear one", "Darling",
"A-1", and "My Dear", but explained that they were innocent terms of endearment which are
usually addressed to denote affection to any likeable person. According to him there used to
crop up differences between the complainant and her husband Sujan Singh on frequent
occasions and as a friend of the family he always advised her to straighten them and live
smoothly and happily with her husband. He stated that the complainant who is an imaginative
and hysteric woman used to resent his such advices and got frequently irritated and in order
to pacify her he used to ask her forgiveness which had a soothing effect on her.

He denied to be in any way responsible for the money which the complainant and her
husband lost with H. Datta & Sons Ltd., and asserted that a sum of Rs. 55,000 was due to him
from the complainant and when he refused to give further loans to her and when she and her
husband could not realise the money from H. Datta and Sons Ltd., as the firm had collapsed,
they brought in collusion with one another, several suits against him which are pending in the
Calcutta High Court, and the present complaint to blackmail him in order to get money, if
possible. He admitted the material exhibits photos 1 to 4 and 11 to 15 and also to have
received some cheques from the complainant in payment of his dues. He, however, denied
that the pay-in-slips of the Banks or the cheques and the counterfoils were in his writing or
that he had either deposited or withdrawn money on them from the Banks. He admitted to
have received one big sealed jewellery box from the complainant as security and to have
returned the same subsequently to her in January, 1955. He, however, denied that jewellery in
a biscuit tin was kept with him as security which he had failed to return to the complainant.

16. Nineteen witnesses were examined in support of the prosecution story. The prosecution
also brought on record 424 documents consisting mainly of letters addressed by the accused

126
to the prosecutrix, counterfoils of her self-cheques and pay-in-slips of the Banks, money
receipts issued by M/s. H. Datta & Sons Ltd. etc., some photographs, a manicure Exhibit 5, a
curio Exhibit 6 and some pictures Exhibits 7 to 10. One witness, Smt. Sarat Kumari Devi, 85
years old mother of the accused, was examined under Section 540 Cr. P. C. The accused did
not examine any oral evidence in defence but tendered in evidence before the committing
Magistrate 70 documents (Exhibits Kha 1 to Kha 70) some of which were proved by the
prosecution as their evidence at the trial.

17. Smt. Harbans Kaur, the prosecutrix (P. W. 17) has narrated in great detail almost the daily
incidents of her life with the accused during the period 1940 to 1955 as to how she first came
in contact with him as a patient at Calcutta and how the accused started admiring her and
ultimately succeeded in inducing her to believe by the performance of repeated mock
marriages that she was his legally wedded wife and thus seduced her to cohabit with him at
various places and on numerous occasions. She has added that as a dutiful wife she obeyed
him blindly during this period and never questioned his judgment and it was in pursuance of
his desire and advice that she deposited1 about Rs. 7,00,000/- with the Calcutta Commercial
Bank and H. Datta & Sons Ltd. Which were never returned to her.

18. Sujan Singh (P. W. 4) the former husband of the prosecutrix has testified in corroboration
of all the material parts of her story.

19. Surjit Singh (P. W. 5) is the witness of the alleged moon marriage at the Lakes and Ganda
Singh (P. W. 9) claims to have seen the complainant and the accused going round and round
Guru Granth-Sahib at the complainant's house. Munshi Hari Chand (P. W. 7) has stated to
have seen the complainant and the accused going round the temple at Kalighat and
exchanging garlands.

20. Preetam Singh (P. W, 6) has testified to have seen the accused and the prosecutrix
worshipping the photos of Guru Nanak and Shanker Bhagwan in her bed room. He also says
that once he sat in the car of the accused and saw a biscuit tin lying on the seat. Out of
curiosity he opened it and found it full of ornaments. On enquiry the accused told him that
they belonged to his wife and he was taking them to be kept in the safe deposit with the Bank.

21. P. W. 10 Shankar Lal Sharma, P. W. 11 Ram Bali and P. W. 12 Munshi Ram are the
domestic servants of the prosecutrix and have supported her story of the accused visiting her
almost daily in the evening and sometimes remaining exclusively with her throughout the
night at her residence.

22. Sohon Singh (P. W. 8) says to have worked as a carpenter at the residence of the
prosecutrix at the instance of the accused for 10 or 12 days and to have seen the accused
coming there daily in the evening, sitting with her and feeding her with his own hands. The
witness took them as husband and wife.

23. Surendra Nath Datta (P. W. 14) is the partner of the dissolved firm of H. Datta & Sons
Ltd., and the former Managing Director of the Calcutta Commercial Bank Ltd. which had
failed in 1948.

24. Mrs. Dorothy Roy (P. W. 18) is the wife of Sheo Kumar Roy nephew of late Dr. B.C.
Roy, Ex. Chief Minister of West Bengal, who was examined as a hostile witness and Sureila
(P. W. 19) is the daughter of the prosecutrix.

127
25. The other evidence in the case is more or less of a formal character.

26. On a detailed appraisal of the oral and documentary evidence adduced by the parties, the
learned trial Judge reached a conclusion that "the accused seduced the complainant who also
fell in love with him and they had adulterous relations . . without any lawful marriage for 15
years from 1940 to 1955" but he was not prepared to believe that the prosecutrix had
consented to such cohabitation with the accused because she had been deceitfully induced by
him to believe that she was his lawfully wedded wife. Accordingly the learned Judge
acquitted the accused of the charges under Sections 493 and 376 I. P.C.

27. In respect of the third charge, however, the learned Judge was of the opinion that "the
accused and H. Datta & Sons were in collusion and the result of their conspiracy was that the
complainant was cheated by the accused of Rs. 5,58,000 deposited with H. Datta & Sons"
and she was also cheated of her jewelleries worth Rs. 32,500 and other sums and the
prosecution has brought the charge under Section 417 I.P.C. home to the accused.
Accordingly he convicted the accused under Section 417 I.P.C. and sentenced him to one
year's rigorous imprisonment and to a fine of Rs. 75,000 out of which two-third was to be
paid to the prosecutrix as compensation. In default of payment of fine the accused was
directed to undergo three months' further rigorous imprisonment.

28. Mr. P.C. Chaturvedi, learned counsel for Dr. Mukerji, has vehemently urged that the trial
Judge has not kept in view the salutary principles of Law of Evidence and Criminal
Procedure while holding the trial; that he was not justified in bringing on record irrelevant
and inadmissible evidence; and that he should not have allowed the prosecutrix to make
scurrilous allegations on the basis of hearsay against important persons in the public life of
Bengal. Mr. Chaturvedi contended that although the complaint instituted by the prosecutrix
envisaged an offence under Section 417 I.P.C. also, as the enquiry had proceeded only in
respect of the offences relating to sex and not to property, and as the commitment of the
accused was only in respect of an offence under Section 493 I.P.C. it was not open to the trial
Judge to add a charge under Section 417 I.P.C. and then to try and convict the accused on that
charge.

It is contended that the accused was discharged by the Magistrate on 3rd May, 1962, and on a
revision the Magistrate was directed by the Sessions Judge at Calcutta to hold further enquiry
with respect to offences under Sections 493 and 496 I.P.C. only. The accused was again
discharged on the 13th December, 1963, and the prosecutrix had come up in revision before
the Sessions Judge praying that further enquiry for offences under Sections 493 and 496 only
be held and it was allowed and the Sessions Judge had directed the accused to be committed
for trial under Section 493 I.P.C. and the accused was so committed on 21st November, 1964,
and his trial has proceeded on that charge before the Additional Sessions Judge, Alipore, for
three days whereafter the case was transferred to Varanasi. It is argued that as the group of
facts required to constitute an offence under Section 417 are wholly independent of those
constituting offences under Sections 493 and 496, which are of a different character it was
not open to the trial Judge to change the ambit of the offence at the stage of the trial for which
there has been neither any enquiry nor a commitment. It is urged that in view of the
provisions of Section 193 of the Code, the Sessions Judge was not entitled to take cognizance
of the offence under Section 417 I.P.C. as there had been no commitment for the same.

29. Mr. Chaturvedi has argued further that in framing the charge under Section 417 the trial
Judge overlooked the provisions of the Code of Criminal Procedure and framed it in such a

128
manner as to cover numerous transactions spread over a period of 15 years. It is urged that
having framed a charge in which the ingredient of deception was that the prosecutrix was
deceived into the belief of that she was the lawfully wedded wife of the accused and under
that deception parted with her money and jewelleries it was not open to the trial Judge, after
giving a finding that such a deception had not been established, to convict the accused for
having committed entirely different kinds of deception for which he had not been charged at
all.

30. Mr. Chaturvedi also challenged the veracity of the prosecution story on merits and
contended that on the evidence and circumstances appearing on the record the conviction of
the appellant under Section 417 I.P.C. or under other charges is wholly unsustainable. He also
placed before us Exhibit Ka 301 and Kha 22 letters alleged to have been addressed by the
prosecutrix which have been put to her during her examination and commented that the
prosecutrix has admitted in these letters that her husband Sujan Singh suspected that she had
"a boy friend in every town and anywhere" and that she herself had written in one of these
letters that she had boy friends.

31. Mr. Mulla, learned special counsel for the State fairly conceded, that, if the deception
practised on the prosecutrix is held to be different than that alleged in the charge namely that
she had been induced to part with her money and jewelleries in favour of the accused under
the belief that she was his lawfully wedded wife, then the charge as it stands is no doubt
defective as it envisages more than three transactions extending over a period of more than
one year. Learned counsel contends that if the defect in the charge is held to have caused
prejudice to the accused the case may be sent to the trial court with a direction to frame a
proper charge under Section 417 and then to hold a fresh trial. It is urged that the acquittal of
the accused in respect of charges under Sections 493 and 376 I.P.C. are not justified and the
Sessions Judge has given contradictory findings inasmuch as he has held in respect of those
charges the alleged deception not to be established although he has convicted the accused on
the third charge of which the same deception was alleged to be the necessary ingredient.

32. In order to determine the questions of law raised at the Bar, it is necessary to quote the
charges as framed by the Sessions Judge and to read the relevant provisions of the Code.

33. The charges read as under:--"Firstly, that about the second fortnight of February, 1940, on
full moon night, near the Dhakuria Lakes, police station Tolleygunge, Calcutta (lakes in
South Calcutta), you, by deceit, caused Smt. Harbans Kaur, who was not lawfully married to
you, to believe that she was lawfully married to you and, in that belief, she cohabited or had
sexual intercourse with you; and that you thereby committed an offence punishable under
Section 493 I.P.C. and within the cognizance of this Court.

Secondly, that in between February 1940 and the year 1955, near the Dhakuria lakes Police
Station Tolleygunge, 3 Store Road, Police Station Karaya, 77 Hazra Road, Police Station,
Bhawanipore, at the Grand Hotel Calcutta, 3 and 6 Belvedre Park Police Station Alipore 2-B
Outram Street. Calcutta, Police Station Hastings, Karnani Mansion, Police Station
Beniapukur, Railway Quarters Alipore, 12 Godfrey Mansion, Police Station Garden Reach
and other places in Calcutta, you committed rape on Smt. Harbans Kaur, with her consent,
knowing that yon were not her husband, and that her consent was given because she believed
that you were another man to whom she was or believed herself to be lawfully married, and
thereby committed an offence punishable under Section 376, I.P.C. and within the cognizance
of this Court.

129
Thirdly, that in Calcutta, in between February 1940 and the year 1955, you intentionally
induced Smt. Harbans Kaur, by making false and fraudulent representations, to have sexual
intercourse with you and to live and act as your lawfully married wife, knowing that she was
not lawfully married to you, and she lived and acted as your wife and also gave money and
jewellery to you from time to time, which acts she would not have done if she were not so
deceived by you and which caused her damage or harm in body, mind, reputation and
property, "and that thereby you cheated her and committed an offence punishable under
Section 417 I.P.C. and within the cognizance of this Court."

34. It will be noticed that the charge under Section 417 I.P.C. envisages a period of about 15
years and the element of deception alleged therein is the same as in the first two charges
namely that the accused deceived the complainant into the belief that she was his lawfully
wedded wife knowing that she was not lawfully married to him and it was under that belief
that she lived and acted as his wife and gave him money and jewelleries from time to time
which act she would not have done if she were not so deceived by him.

35. Sections 221 and 222 of the Code inter alia require the charge to state the offence and to
contain particulars as to the time and place of the alleged offence and the person against
whom it was committed.

36. Section 223 reads:

"When the nature of the case is such that the particulars mentioned in Sections 221 and 222
do not give the accused sufficient notice of the matter with which he is charged, the charge
shall also contain such particulars of the manner in which the alleged offence was committed
as will be sufficient for that purpose."

36-a. Illustration (b) of Section 223 indicates that when a person is accused of cheating
another person the charge must set out the manner in which he has cheated him.

37. Section 233 lays down the general rule that for every distinct offence of which any person
is accused there shall be a separate charge.

38. Section 234(1) reads:--

"When a person is accused of more offences than one of the same kind committed within the
space of 12 months from the first to the last of such offences, he may be charged with, and
tried at one trial for, any number of them not exceeding three."

39. Section 235(1) which provides an exception to the aforesaid rule reads:--

"If, in one series of act so connected together as to form the same transaction, more offences
than one are committed by the same person, he may be charged with, and tried at one trial
for, every such offence."

40. It is, therefore, obvious that the accused could not have been charged for more than three
items of cheating and for a period beyond one year unless it is held that various acts of
deception alleged against him had a continuous thread of a common purpose running through
them and were so connected together as to form the same transaction.

130
41. A "transaction" is denned by Sir James Stephen as "a group of facts so connected together
as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of
enquiry which may be in issue."

42. The question, therefore, which arises for consideration is, whether the deception being the
same, namely the inducement to believe that the prosecutrix was the legally wedded wife of
the accused throughout the period, the various acts spread over that period by which she is
alleged to have parted with her money and jewellery can form the same transaction so as to
attract the exception provided under Section 235 to the general rule. In our opinion the
answer must be in the negative.

43. In order to constitute an offence of cheating there must be (a) a deception and (b) the
delivery of the property. In this case it may be that the first ingredient of the section namely
the deception as alleged was the same but the second ingredient namely the delivery of the
property being numerous and on different occasions had nothing in common with one another
either in sequence of time or in unity of purpose to be a series of acts forming the same
transaction as envisaged under Section 235 Cr. P. C. We are, therefore, clearly of opinion,
that in the absence of a charge of conspiracy, it was not open to the trial Judge to frame a
composite charge involving such a length of time and so many transactions under Section 417
I. P.C.

44. In our opinion, however, the contention of Mr. Chaturvedi that the Sessions Judge was
debarred in law from framing a charge under Section 417 against the accused who was
committed to stand his trial for an offence under Section 493 I.P.C. only is not tenable in
view of the facts and circumstances of this case. The complaint filed by the prosecutrix
disclosed allegations of cheating against the accused and a prayer was made therein for his
trial for that offence. If on reading the evidence adduced in the committing Magistrate's Court
the Sessions Judge was of opinion that a charge of cheating was also called for he could have
added a charge for that offence as is envisaged by Sections 226 and 227 of the Code. The
combined effect of the aforesaid sections, in our opinion, is to invest the Court with a
comprehensive power to remedy the defects in the framing or non-framing of the charge
whether discovered at the inception of a trial or at any subsequent stage prior to judgment,

45. There is force in the contention of the learned counsel for the defence that the element of
deception being the same in the three charges under Sections 493, 376 and 417 I.P.C.
respectively it was not open to the trial Judge, after having negatived the same in respect of
the first two charges, to convict the accused on the third charge by holding that he had
practised different kinds of deception on the prosecutrix without amending the charge and
without giving him sufficient notice of that deception.

46. The story of the prosecutrix that she came in contact with the accused as a patient and
was seduced by him to develop intimacy and sexual connections with him which had
continued for a period of about 15 years appears to contain a substratum of truth. It is difficult
to believe that the prosecutrix who had described with precision the daily incidents of her life
with the accused, extending over such a long period, could have done so on the basis of pure
imagination unless the story was basically true. It is also difficult to believe that a woman of
her status and intelligence having a well placed husband and four grown up children from
him would have invented such a story casting serious aspersions on her own moral character
and thereby endangering her relations with her kinsmen.

131
47. The allegation of the prosecutrix that she had stayed alone at Calcutta at different places
for a considerable period during these 15 years away from her husband and children finds
support from the evidence of Sujan Singh (P. W. 4) and her domestic servants Shanker Lal
Sharma, Ram Ball and Munshi Ram (P. Ws. 10, 11 and 12).

48. Sujan Singh says that his wife used to come frequently to Calcutta sometimes on the
pretext of treatment and sometimes for shopping, during this long period and used to stay
there alone for considerable time. There was a change in her attitude towards him since she
came in contact with the accused as a patient in 1940 and the accused used to take unusual
interest in her. When the prosecutrix was at Mussoorie or Simla the accused used to come
and stay there with her as their guest and in the year 1942 when he came to see his wife at
Calcutta he found her staying with the accused at his residence at 77 Hazra Road. The
accused has admitted to have asked the prosecutrix to stay with him at his house by way of
courtesy. He has also admitted that although he never passed all the tune with her but
whenever the prosecutrix came to Calcutta he did visit her.

49. Shanker Lal. Ram Ball and Munshi Ram (P. Ws. 10 to 12) have stated that during the stay
of the prosecutrix at Calcutta the accused used to visit her almost daily usually in the night
and sometimes spent the whole night with her exclusively in her room. Similar is the
statement of Mrs. Lal Banu who was the Aya of the prosecutrix and Sohan Singh (P. W. 8)
on this point. She was examined before the Court of the committing Magistrate. As she had
died before the commencement of the trial her statement was tendered in evidence by the
prosecution.

50. Thus the version of the prosecutrix in this regard finds corroboration from the testimony
of the aforesaid witnesses and rings true.

51. The prosecutrix has stated that whenever she heard that the accused was fraternising with
some other women ehe used to write to him raising a protest and the accused after repudiating
the allegation tried to explain his conduct and asked her forgiveness. The accused has
admitted that the prosecutrix used to make wild, imaginary and untrue allegations with regard
to his association with other women. Why should the prosecutrix feel jealous of his
association with the other women and make repeated allegations in that regard? If the accused
was only a friend of the family why should this lady be so punctilious and persistent in
watching his behaviour and conduct with other women? In our opinion it clearly points out
that the relations between the accused and the prosecutrix were deeper relating to sex which
alone could kindle a five of jealousy in her heart.

52. During these years the accused has addressed legions of letters to the prosecutrix although
they were living mostly In the same city. Why should a busy medical practitioner spend his
precious time in writing so many and such long letters to young lady if his interest in her was
only that of a family friend? These letters are deliberately couched in an equivocal language
but the current of tender thoughts underlying them throws a lurid light on the nature of the
relationship between the parties. The learned trial Judge has noticed the contents and
significance of the letters in his judgment in great detail and we agree with the conclusions
which he has arrived on their basis.

53. The accused used to address and refer the complainant ki his letters as "My dear one",
"May it please your Highness," "Hellow My dear Harbans", "Darling", "Maharani Cooch
Parwahni", "A-1". and "Pagli" and used to close them sometimes with the words "with every

132
love, good wishes and hopes", "Ever Yours", "Always Yours" and "Your always". No one
addresses a young wife of the friend as "My Darling", "A-1" and subscribes himself to be
always 'hers'. Such terms of endearments are not used while addressing letters to the wife of a
friend. Such expressions generally find place in letters addressed by lovers to their beloved.

54. Some of these letters also indicate that the accused was a regular visitor to her house and
used to take his evening meals frequently with her. He sometimes went to her even so late as
11 in the night as will appear from his letter Exhibit Ka 267. A bunch of these letters
(Exhibits 117, 144, 147, 149, 154 etc.) which relate to the period from 1950 to 1955 indicates
that whenever the complainant was staying in Calcutta they used to quarrel In the evening
and the next morning the accused used to regret and ask for her forgiveness,

55. The evidence on the record discloses that the accused made arrangements for the
residence of the prosecutrix, sent letters, issued and obtained receipts, collected mails, paid
electric bills and rent on her behalf, employed servants and Darbans for her and engaged
lawyers to fight out her cases. Sometimes he even collected her clothes from washermen,
purchased hair oil and toilet for her and arranged for the safety of her house. In addition, he
managed all other household affairs of the prosecutrix.

56. In the suit filed by Sujan Singh for the dissolution of his marriage, the accused was a co-
respondent with the prosecutrix, but did not enter appearance to repudiate the allegation of
adultery made against him.

57. All this evidence direct and circumstantial can lead to no other conclusion but that the
story of the prosecutrix that the accused had sexual connections with her for such a long
period is absolutely true.

58. We have not been impressed, however, by the assertion of the prosecutrix that the
accused had performed mock marriages with her on three occasions and had thereby induced
her to believe that she was his legally wedded wife and duty bound to cohabit with him.

59. The prosecutrix was about 30 years of age in 1940 and a mother of four children. Her
husband was an officer in the Railway and she had been living with him since the last several
years. She had mixed in society of Railway Officers and was able to come alone to Calcutta
and make arrangements for her stay. She is educated and had stayed In first class hotels at
Calcutta and other places. She along with her husband attended dancing and drinking parties
in hotels frequented by the aristrocratic sections of Calcutta society before she alleges to have
come under the evil influence at the accused.

She was not an illiterate, rustic, unsophisticated village damsel ignorant of the ways of the
world. It is, therefore, incredible that she could have been persuaded by the accused to
believe that she could be the wife of another person during the subsistence of her marriage
with Sujan Singh even if some mock performances were held with her.

60. There are certain inherent contradictions in her story in this regard. She has stated that
after the accused had picked up her loosened hairs from the table she had started liking him
and had fallen in love with him. That being so where was the question of her being induced to
believe that she was his lawfully married wife? This statement of the prosecutrix indicates as
to which way the wind was blowing and at least in thought she had become unfaithful to her
husband.

133
61. The story of the prosecutrix that the accused had first married her before moon in
February. 1940, and then again In June, 1948, in the Kalf temple according to Hindu rites and
before Guru Granth Sahib according to Sikh faith has not been corroborated by any reliable
evidence on the record. Surjit Singh (P. W. 5) who has corroborated her about the moon
marriage and Genda Singh (P. W, 8) who has spoken about the marriage before Guru Granth
Sahib have not been relied upon by the learned trial Judge for good reasons. The trial Judge
has also held the testimony of Munshi Hari Chand (P. W. 7) about the alleged performance at
Kali temple as unreliable. Ram Nath Sharma who was examined under Section 202 Cr. P. C.
before the committing Magistrate in respect of the marriage alleged to have been performed
at Kali temple could not have been cross-examined on behalf of the accused at that stage of
the proceedings. His statement, therefore, should not have been admitted in evidence under
Section 33 of the Evidence Act. It has, therefore, to be ignored. The learned trial Judge has,
however, held on the basis of the evidence furnished by the prosecutrix herself that some
such performances were held by the parties although they were not marriages in the legal
sense of the term, but mock performances evidencing amorous relations subsisting between
them. On the basis of the uncorroborated testimony of the prosecutrix alone who is in the
nature of an accomplice we are unable to hold that some such performances were enacted by
the parties.

62. The conduct of the prosecutrix militates against her assertion that she believed herself to
be the legally wedded wife of the accused. If so why did she keep it concealed from her
previous husband for such a long number of years till she got completely disillusioned by the
unbecoming conduct of the accused in 1956? Draupadi whose instance is said to have been
cited by the accused to convince her that a Hindu lady could be the wife of more than one
person had not concealed this fact from any of her husbands. When Shakuntala was married
in a Gandharva form with Dushyanta she was a virgin and not the wife of living person. The
Gandharva marriage of a married woman is not only unknown to law but also to Hindu
mythology. How could the prosecutrix, within less than half an hour of her bidding good-bye
to her husband, be persuaded to marry the accused unless her moral and intellectual vision
was completely blurred by lust? If the parties had married before the moon where was the
hurry to consummate It immediately thereafter in a clandestine manner in the rear seat of the
car? If there was a marriage before the moon in 1940 where was the necessity of having it
performed again and again on two subsequent occasions? If the prosecutrix believed herself
to be the legally wedded wife of the accused what was the necessity of her calling Sujan
Singh from Assam in June 1948 to cover her pregnancy?

63. Some of the envelopes in which letters were sent to the prosecutrix by the accused she has
been described as Mrs. Sujan Singh, Exhibits Kha 44 to Kha 54 are the T. M. O.
acknowledgments for the period 1952 to 1954 of the various amounts sent by the accused to
the prosecutrix when she was living away from Calcutta in which the prosecutrix has signed
herself as Mrs. Sujan Singh. Exhibit Kha 50 is the acknowledgment receipt of the registered
insured cover for Rs. 1000 on which the sender's name is mentioned as Dr. Amar Nath and
the addressee as Mrs. Sujan Singh and the same has been signed by her as such in token of
receipt of the amount on 21-5-54. There are several other documents on the record which
show that eyen after the performances of the aforesaid mock marriages the prosecutrix signed
herself as Mrs. Sujan Singh. If she was the wife of1 the accused why did she not raise a
protest to such description of her specially when she had been continuously protesting against
his fraternisation with other society women?

134
64. Exhibit Ka 328 Is the notice dated January 17, 1957, which was sent on her behalf by her
lawyer Sri B.K. Dhawan Bar-at-law, Lucknow to the accused. In this notice It has been inter
alia stated that he knew from the very beginning that Mrs. Harbans Kaur had been married to
Mr. Sujan Singh who was already holding a high position in the Railway but his intimacy
grew to this extent that for the most part of the year she remained in Calcutta with him away
from her husband and that his relations with her had been such that he completely captivated
her and won her confidence and a child was born to her by him in the year 1949. There is no
allegation in this notice anywhere that the accused had performed mock marriages with the
prosecutrix and had thus induced her to believe that she was his legally wedded wife. In fact
there is no mention of any marriage or such inducement except that there had been sexual
intimacy between them.

65. A question, therefore, arises as to why the prosecutrix had allowed her chastity to be
violated by the accused and why she had clung to him for such a long period of time in spite
of the various pinpricks and tortures to which she was subjected by him. There is enough
indication in her lengthy statement that she was infatuated with the accused till she got
completely disillusioned on account of his waning interest in her by the lapse of time.

66. We, therefore, agree with the finding of the trial Judge that the accused was the paramour
and the prosecutrix his concubine and her allegation that she was induced to cohabit with him
in the belief that she was lawfully married to him is wholly incredible. That being so, the first
two charges which are inter-connected must fail and Criminal Appeal No. 944 of 1966 by the
prosecutrix must be dismissed.

67. The learned trial Judge has devoted about 20 pages of his lengthy judgment in arriving at
the finding that the accused and not Sujan Singh is the father of the girl Sureila. The question
of paternity of Sureila, in our opinion, is not strictly relevant for the determination of the
charges levelled against the accused. Therefore, the trial Judge was not required to give a
finding on this question. According to the prosecutrix herself the sexual relationship between
the parties began in 1940 and the girl was born on 19-1-1949. It is also admitted that she had
not obtained a divorce till then from her husband Sujan Singh and that he had been
occasionally visiting her even though the relations between them were not very cordial. The
question is directly in issue between the parties before the High Court at Calcutta on its civil
side in Suit No. 1163 of 1957 which was instituted by the prosecutrix earlier than the present
complaint and we refrain to express any opinion or give a finding on this question.

68. It will be noticed that the element of deception which formed an ingredient of all the three
charges is the same namely that the prosecutrix was deceived into the belief that she was the
lawfully wedded wife of the accused. In the charge under Section 417 I. P. C. It has been
inter alia mentioned that being so deceived by the accused she lived and acted as his wife and
gave him from time to time money about 7 lacs and jewellery worth Rs. 50,000/- which she
would not have done if she were not so deceived by him. It is, therefore, obvious that in terms
of this charge the prosecutrix willingly gave the various amounts and her jewelleries to the
accused because she had been induced to believe that she was his lawfully married wife. We
have already held, in agreement with the trial Judge, while discussing the prosecution case in
respect of the first two charges under Sections 493 and 376 I.P.C. respectively that there was
no such deception on the part of the accused and that the prosecutrix never believed herself to
be the lawfully married wife of him. That being so and the element of deception being
common to all the three charges, the charge under Section 417 as it stands, also, must fail
along with the other two charges.

135
69. If there was some other type of deception practised by the accused for depriving the
prosecutrix of her cash and jewelleries as has been held by the trial Judge, it should have been
specifically mentioned in the charge with sufficient particulars to give the accused a
reasonable notice of the matter for which he was being charged and tried. The charge is as it
stands is devoid of the necessary particulars as to the time, place and the manner of cheating
held established by the Judge. In order to meet this difficulty Mr. Mulla has argued that the
case should be remanded for a fresh trial after framing a proper charge for an offence under
Section 417 I.P.C. We are unable to agree with him. The case has been pending since the year
1958. The trial before the Sessions Judge was a protracted one and has continued for a period
of about one year. The parties are already litigating before the Calcutta High Court for the
determination of their inter se financial liabilities. In the circumstances we do not consider it
expedient in the interest of justice to remand the case for a fresh trial on this charge.

70. We are also satisfied that the evidence adduced by the prosecution in respect of this
charge is too slender to form basis for a judgment of conviction and we propose to consider
that evidence in the following paragraphs:

71. The learned trial Judge has held that the accused had cheated the prosecutrix of the
following amounts:

(a) Rs. 10,000/- which was given by Sujan Singh on her persuasion to the accused as a loan in
1942.

(b) Rs. 5,58,000/- deposited by her with H. Datta & Sons Ltd. which could not be realised as
the firm failed.

(c) Rs. 23,500/- out of the withdrawn amount of Rs. 34,935/- from the Lloyds Bank,

(d) Rs. 3000/- out of a sum of Rs. 15,000 which the prosecutrix paid to the accused for
purchasing a car for her.

(e) The jewellery worth Rg. 32,500/-which she had kept with the accused in a biscuit tin
which he had failed to return.

72. Sujan Singh says that his wife told him that the accused wanted a loan of Rs. 10,000. The
accused also asked him for that amount and he "agreed to give him loan and gave him a
cheque for Rs. 10,000 ......on 19-12-1942" and told him that whenever he had money he could
repay the loan but the amount was never paid back to him. The defence of the accused is that
Sujan Singh and his wife had taken cash advances from time to time during the period 1940
to 1942 and the amount of Rs. 10,000/- was given to him by cheque in repayment of those
advances. This defence may or may not be true. There is no evidence to show that when the
accused took the alleged loan from Sujan Singh he intentionally deceived him into a belief
that he meant to repay the same although he had no intention to do so. The statement of Sujan
Singh that the loan was to be refunded at the discretion of the accused militates against the
idea of any deception having been played on him.

It is in the evidence of Sujan Singh that during the period 1942 to 1954 he had taken various
amounts from the accused by way of short term loans (Rs. 4000/- in September 1954, Rs.
8000/- in 1948 etc.) but had returned the same without asking for the adjustment of his dues
(Exhibits Ka 14 and Ka 34). Sujan Singh did not state before the committing Magistrate that

136
the amount of Rs. 10,000 was paid as loan to the accused. It was for the first time in July
1958 (Exhibit Ka 5) that he cared to find out from the Bank that the cheque of Rs. 10,000/-
issued by him had been cashed by the accused. This conduct on his part indicates that either it
was a gratuitous payment to Dr. Mukherji or in adjustment of their inter se financial accounts.
In any case the money had not been obtained by Dr. Mukerji on any false representation and
there is no question of any deception involved in the transaction.

73. According to the prosecutrix the accused induced the prosecutrix to give money to him to
deposit with the Calcutta Commercial Bank Ltd. and H. Datta & Sons Ltd. and she did so
because she was living and acting as his wife and also because the accused had assured her
that he was an intimate friend of Sudhin Datta the Managing Director of the Calcutta
Commercial Bank Ltd., a business associate of their firm and shall be personally responsible
for the money given by her for the deposit. It is alleged further that even after the collapse of
the firm the accused went on assuring the prosecutrix that he will pay the amount if Datta &
Sons failed to refund the same. This allegation has been denied by the accused.

74. Firm H. Datta & Sons were the Managing Agents of the Calcutta Commercial Bank. It is
not the case of the prosecution that the amounts alleged to have been given by the prosecutrix
to the accused for being deposited in the Calcutta Commercial Bank Ltd. were not so
deposited in her favour. In fact the finding of the trial Judge is that the amounts were actually
deposited with them. Similarly there is no allegation or finding that the accused had
withdrawn any item of those deposits from the aforesaid Bank or the firm for himself. There
is no evidence except that of the prosecutrix that the cheques for self were cashed by the
accused. If her statement that she gave the money to the accused through the cheques drawn
on the Bank is accepted to be true even then it will not amount to any deception on her
because she willingly gave the amount.

75. There is no evidence to show that the accused was in any way intimately connected with
the administration of the affairs of the Calcutta Commercial Bank Ltd. or with their managing
agents H. Datta & Sons Ltd. when the amounts were deposited with them by the prosecutrix.
The evidence, if any, is to the contrary. Sudhin Datta (P. W. 14) who had been the Managing
Director of the Bank and a partner of its managing agency says that Dr. Mukherji had no
connection with the Bank but he had an account with it, that he had no concern with H. Datta
& Sons, that Sujan Singh and his wife Mrs. Harbans Kaur were personally known to him and
they used to come to the Calcutta Commercial Bank Ltd. for deposits and withdrawals and
that Sujan Singh used to deposit money with H. Datta & Sons in different names.

He has admitted that at the time of the opening of an account a person has to be introduced by
another constituent of the Bank and in that way Dr. Mukherji had introduced Sujan Singh and
Ms wife to the Bank and its managing agents. He has categorically stated that Dr. Mukherji
was never a Director of the Calcutta Commercial Bank Ltd. and he was not a business
associate of H. Datta & Sons and that the various amounts with the Bank or the firm had been
deposited either by Sujan Singh or by Smt. Harbans Kaur.

93. [His Lordship after discussing the evidence in paras 76 to 92 observed:) Thus the
evidence on the record both direct and circumstantial, in our opinion, is too insufficient to
make out a case of conspiracy between the accused and H. Datta & Sons for depriving the
prosecutrix of her money.

137
94. The prosecutrix has stated that she had Riven from time to time during the course of these
long years considerable amount of money to the accused either in cash or by permitting him
to encash the self-drawn cheques by her and appropriate the money (reliance is placed on the
counterfoils of the cheques). The accused has denied to have encashed her self-drawn
cheques or to have received any amount from her except by way of remuneration for medical
services rendered or in repayment of loans advanced by him on several occasions. There is no
evidence from the respective banks that the self-drawn cheques were encashed by the
accused. Even if we believe the uncorroborated testimony of the prosecutrix on this point it
does not amount to deception on the part of the accused. The prosecutrix has nowhere stated
that she parted with those amounts in favour of the accused on the basis of fraudulent re*
presentations made by him except that she took him to be bis validly married husband.

104. [His Lordship after discussing the evidence in paras 95 to 103 observed:] We are not
called upon to determine the genuine or fictitious nature of these transactions nor it is within
our province to determine the inter se liabilities of the parties. We must, however, observe
that the evidence indicates that there have been numerous monetary transactions between the
parties during these long years and they have received from and paid to one another various
amounts from time to time. The dispute if any, between them in respect of those transactions
is of a civil nature which is being agitated in the High Court at Calcutta. The evidence,
however, falls short of bringing out any case of cheating against the accused.

105. Jewellery:-- The prosecutrix says that "when the accused gave Rs. 30,000/-to her he said
that I should keep some security with him so that Mr. Singh may know that he had actually
taken a loan from him. In one empty biscuit tin I gave him some of my jewelleries. It was
given to him in 1951." According to her another jewellery box was taken away by the
accused when she was living at 2-B Out-ram Road in 1955. That box was returned to her
through her nephew Jogendra. The accused has denied to have received jewelleries in any
biscuit tin. According to him only one jewellery box was kept with him in security against his
loan which he returned through Jogendra and the return of which was acknowledged by the
prosecutrix in her letter Exhibit Ka. 283. The parties are litigating on the civil side of the
Calcutta High Court about this matter. We, therefore, do not consider it expedient to give any
categorical finding as to whether only one box of jewellery was kept with the accused as,
two.

It, however, appears very Incongruous that the prosecutiix was very insistent for the return of
the jewellery box which had been given to the accused in 1954-55 as is evident from her
letter Exhibit Kha 61 and was repeatedly asking him to send the box through Jogendra but not
about that which is said to have been kept with him in 1951. It also seems strange that
without receiving the biscuit tin jewellery box she made a statement in her letter Exhibit Ka.
283 that she had received back from him the box of jewellery. Even if the statement of the
prosecutrix in this regard is implicitly believed it will not make out a case of cheating against
the accused because he kept the biscuit tin jewellery box as a security for his loan and not on
any false representation. If he failed to return the same, a fact about which we entertain grave
doubts, it will amount to a criminal breach of trust for which he has not been charged,

106. The complainant says that in the year 1947 she paid Rs. 15,000/- to the accused for
purchasing a new car for her but the accused took the new car for himself and gave her his
old Cheverlet for which he again took Rs. 12,000/- from her as its price. The accused has
denied this allegation. According to him he had purchased a new Oldsmobile car for himself
and given his old car to the complainant for which he was paid Rs. 12,000/- and there was no

138
payment of Rs. 15,000/- by the prosecutrix for purchasing a new car for herself. In the
committing Magistrate's Court the complainant had stated that she asked the accused to order
for a car for her and she gave him Rs. 15,000/-and he gave her his old Cheverlet car for Rs.
12,000/- and kept the balance with him (Exhibit Kha. 32). When confronted the complainant
denied to have made such a statement.

We are not satisfied that the complainant made double payment for the car once of Rs.
15,000/- and then again of Rs. 12,000/- as has been asserted by her before the trial Judge. It
may be that in view of his intimate relations with the prosecutrix and because the parties have
been receiving from and giving money to one another the accused missed to refund the
balance of Rs. 3000/- and the prosecutrix never made any grievance of the same for the last
so many years which shows that there was no criminal Intent on the part of the accused in
retaining that money.

107. It is true that this unfortunate woman, by a combination of circumstances, first lost her
soul and then her riches in Calcutta. But it is also true that she herself is primarily responsible
for bringing her calamity.

108. The trial Judge has observed that "much unnecessary, irrelevant, and inadmissible
evidence was also taken down on record in the peculiar circumstances of this case ....." We
must observe that whatever may have been the peculiar circumstances, the trial Judge was not
justified in bringing on record such irrelevant and inadmissible evidence as it was his duty to
have kept the proceedings within the bounds of law. If the prosecutrix could not be prevented
from making scurrilous allegations on hearsay against men and women who were not parties
to the case, the trial Judge should have at least, refrained from noticing them in his judgment
and making them basis for some of his conclusions. He should not have overlooked the
relevant provisions of the Code of Criminal Procedure while framing the charge against the
accused for the alleged offence under Section 417 I.P.C.

109. The accused who is reputed to be an eminent surgeon came in contact with the
prosecutrix in his capacity of a physician. Betraying the confidence of her husband with
whom he was on intimate terms, he chartered this unfortunate woman on a long and dreary
path of immorality and in the end renounced her. Whether a person of such depraved morals
should be allowed to continue in the noble profession of medicine is a matter, however, for
the consideration of Indian Medical Council and not by the Court. The direction of the
Sessions Judge that the appellant be debarred from practice as a medical practitioner for a
period of three years must, therefore, be quashed.

110. In the result Criminal Appeal No. 471 of 1966 is allowed. The conviction and sentences
of appellant Dr. Amar Nath Mukerji as recorded by the trial Judge are set aside. His bail
bonds are discharged and fine if paid, shall be refunded to him.

111. Criminal Appeal No. 944 of t966 filed by Smt. Harbans Kaur under Section 417(3) of
the Code of Criminal Procedure and her Misc. Applications No. 1037 of 1966 dated 20th
April, 1966, and another dated 22nd December, 1967, are dismissed.

Lily Thomas v. Union of India

139
AIR 2000 SC 1650 : (2000) 6 SCC 224

S. SAGHIR AHMAD, J. - I respectfully agree with the views expressed by my esteemed

brother, Sethi, J., in the erudite judgment prepared by him, by which the writ petitions and the
review petition are being disposed of finally. I, however, wish to add a few words of my own.

2. Smt Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a
writ petition [Writ Petition (C) No. 509 of 1992] in this Court stating that she was married to
Shri G.C. Ghosh in accordance with Hindu rites on 10-5-1984 and since then both of them
were happily living at Delhi. The following paragraphs of the writ petition, which are
relevant for this case, are quoted below:

15. That around 1-4-1992, Respondent 3 told the petitioner that she should in her
own interest agree to a divorce by mutual consent as he had anyway taken to Islam so
that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta,
resident of D-152, Preet Vihar, Delhi, a divorcee with two children in the second
week of July 1992. Respondent 3 also showed a certificate issued by the office of the
Maulana Qari Mohammad Idris, Shahi Qazi dated 17-6-1992 certifying that
Respondent 3 had embraced Islam. True copy of the certificate is annexed to the
present petition and marked as Annexure II.

16. That the petitioner contacted her father and aunt and told them about her
husband‘s conversion and intention to remarry. They all tried to convince
Respondent 3 and talk him out of the marriage but to no avail and he insisted that
Sushmita must agree to a divorce otherwise she will have to put up with the second
wife.

17. That it may be stated that Respondent 3 has converted to Islam solely for the
purpose of remarrying and has no real faith in Islam. He does not practise the Muslim
rites as prescribed nor has he changed his name or religion and other official
documents.

18. That the petitioner asserts her fundamental rights guaranteed by Article 15(1)
not to be discriminated against on the ground of religion and sex alone. She avers that
she has been discriminated against by that part of the Muslim personal law which is
enforced by the State action by virtue of the Muslim Personal Law (Shariat) Act,
1937. It is submitted that such action is contrary to Article 15(1) and is
unconstitutional.

19. That the truth of the matter is that Respondent 3 has adopted the Muslim
religion and become a convert to that religion for the sole purpose of having a second
wife which is forbidden strictly under the Hindu law. It need hardly be said that the
said conversion was not a matter of Respondent 3 having faith in the Muslim
religion.

20. The petitioner is undergoing great mental trauma. She is 34 years of age and is
not employed anywhere.

140
 21. That in the past several years, it has become very common amongst the Hindu
males who cannot get a divorce from their first wife, they convert to Muslim religio
solely for the purpose of marriage. This practice is invariably adopted by those erring
husbands who embrace Islam for the purpose of second marriage but again become
reconverts so as to retain their rights in the properties etc. and continue their service
and all other business in their old name and religion.

22. That a woman‘s organisation ‗Kalyani‘ terribly perturbed over this growing
menace and increase in a number of desertions of the lawfully married wives under
the Hindu law and splitting up and ruining of the families even where there are
children and when no grounds of obtaining a divorce successfully on any of the
grounds enumerated in Section 13 of the Hindu Marriage Act are available, to resort
to conversion as a method to get rid of such lawful marriages, has filed a petition in
this Hon‘ble Court being Civil Writ Petition No. 1079 of 1989 in which this Hon‘ble
Court has been pleased to admit the same. True copy of the order dated 23-4-1990
and the order admitting the petition is annexed to the present petition and marked as
Annexure III (collectively).‖

3. She ultimately prayed for the following reliefs:

(a) by an appropriate writ, order or direction, declare polygamous marriages by

Hindus and non-Hindus after conversion to Islam religion as illegal and void;

(b) issue appropriate directions to Respondents 1 and 2 to carry out suitable

amendments in the Hindu Marriage Act so as to curtail and forbid the practice of
polygamy;

(c) issue appropriate direction to declare that where a non-Muslim male gets
converted to the ‗Muslim‘ faith without any real change of belief and merely with a
view to avoid an earlier marriage or enter into a second marriage, any marriage
entered into by him after conversion would be void;

(d) issue appropriate direction to Respondent 3 restraining him from entering into
any marriage with Miss Vanita Gupta or any other woman during the subsistence of
his marriage with the petitioner; and

(e) pass such other and further order or orders as this Hon‘ble Court may deem fit
and proper in the facts and circumstances of the case.

4. This petition was filed during the summer vacation in 1992. Mr Justice M.N.
Venkatachaliah (as he then was), sitting as Vacation Judge, passed the following order on 9-

7-1992:

The writ petition is taken on board.

141
 Heard Mr Mahajan, learned Senior Counsel for the petitioner. Issue notice. Learned
counsel says that the respondent who was a Hindu by religion and who has been
duly and legally married to the petitioner purports to have changed his religion and
embraced Islam and that he has done only with a view to take another wife, which
would otherwise be an illegal bigamy. Petitioner prays that there should be
interdiction of the proposed second marriage which is scheduled to take place
tomorrow, i.e. 10th July, 1992. It is urged that the respondent, whose marriage with
the petitioner is legal and subsisting cannot take advantage of the feigned
conversion so as to be able to take a second wife. All that needs to be said at this
stage is that if during the pendency of this writ petition, the respondent proceeds to
contract a second marriage and if it is ultimately held that respondent did not have
the legal capacity for the second marriage, the purported marriage would be void.

8. Thus, in view of the pleadings in Sushmita Ghosh case and in view of the order passed
by this Court in the writ petitions filed separately by Smt Sarla Mudgal and Ms Lily Thomas,
the principal question which was required to be answered by this Court was that where a non-

Muslim gets converted to the ―Muslim‖ faith without any real change of belief and merely
with a view to avoid an earlier marriage or to enter into a second marriage, whether the
marriage entered into by him after conversion would be void.

9. Smt Sushmita Ghosh, in her writ petition, had clearly spelt out that her husband, Shri

G.C. Ghosh, had not really converted to the ―Muslim‖ faith, but had only feigned conversion
to solemnise a second marriage. She also stated that though freedom of religion is a matter of
faith, the said freedom cannot be used as a garb for evading other laws where the spouse
becomes a convert to ―Islam‖ for the purpose of avoiding the first marriage. She pleaded in
clear terms that it may be stated that respondent 3 has converted to islam solely for the
purpose of remarrying and has no real faith in islam. he does not practise the muslim rites as
prescribed nor has he changed his name or religion and other official documents.

10. She further stated that the truth of the matter is that Respondent 3 has adopted the

―Muslim‖ religion and become a convert to that religion for the sole purpose of having a
second wife, which is forbidden strictly under the Hindu law. It need hardly be said that the
said conversion was not a matter of Respondent 3 having faith in the Muslim religion.

11. This statement of fact was supported by the further statement made by her in para 15
of the writ petition in which she stated that her husband, Shri G.C. Ghosh, told her that he had
taken to ―Islam‖ ―so that he may remarry and in fact he had already fixed to marry one
Miss Vanita Gupta, resident of D-152, Preet Vihar, Delhi, a divorcee with two children in the
second week of July 1992‖.

12. At the time of hearing of these petitions, counsel appearing for Smt Sushmita Ghosh
filed certain additional documents, namely, the birth certificate issued by the Government of
the Union Territory of Delhi in respect of a son born to Shri G.C. Ghosh from the second
wife on 27-5-1993. In the birth certificate, the name of the child‘s father is mentioned as
―G.C. Ghosh‖ and his religion is indicated as ―Hindu‖. The mother‘s name is described as
―Vanita Ghosh‖ and her religion is also described as ―Hindu‖. In 1994, Smt Sushmita
Ghosh obtained the copies of the relevant entries in the electoral list of Polling Station 71 of
Assembly Constituency 44 (Shahdara), in which the name of Shri G.C. Ghosh appeared at Sl.

142
No. 182 while the names of his father and mother appeared at Sl. Nos. 183 and 184
respectively and the name of his wife at Sl. No. 185.

13. In 1995, Shri G.C. Ghosh had also applied for Bangladeshi visa. A photostat copy of
that application has also been filed in this Court. It indicates that in the year 1995 Shri G.C.

Ghosh described himself as ―Gyan Chand Ghosh‖ and the religion which he professed to
follow was described as ―Hindu‖. The marriage of Shri G.C. Ghosh with Vanita Gupta had
taken place on 3-9-1992. The certificate issued by Mufti Mohd. Tayyeb Qasmi described the
husband as ―Mohd. Karim Ghazi‖, s/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite of
his having become ―Mohd. Karim Ghazi‖, he signed the certificate as ―G.C. Ghosh‖. The bride
is described as ―Henna Begum‖, D-152, Preet Vihar, Delhi. Her brother, Kapil Gupta, is the
witness mentioned in the certificate and Kapil Gupta has signed the certificate in English.

14. From the additional documents referred to above, it would be seen that though the
marriage took place on 3-9-1992, Shri G.C. Ghosh continued to profess ―Hindu‖ religion as
described in the birth certificate of his child born out of the second wedlock and also in the
application for Bangladeshi visa. In the birth certificate as also in the application for

Bangladeshi visa, he described himself as ―G.C. Ghosh‖ and his wife as ―Vanita Ghosh‖ and
both were said to profess ―Hindu‖ religion. In the electoral roll also, he has been described as

―Gyan Chand Ghosh‖ and the wife has been described as ―Vanita Ghosh‖.

15. It, therefore, appears that conversion to ―Islam‖ was not the result of exercise of the
right to freedom of conscience, but was feigned, subject to what is ultimately held by the trial
court where G.C. Ghosh is facing criminal trial, to get rid of his first wife, Smt Sushmita
Ghosh and to marry a second time. In order to avoid the clutches of Section 17 of the Act, if a
person renounces his ―Hindu‖ religion and converts to another religion and marries a second
time, what would be the effect on his criminal liability is the question which may now be
considered.

23. We have already seen above that under the Hindu Marriage Act, one of the essential
ingredients of a valid Hindu marriage is that neither party should have a spouse living at the
time of marriage. If the marriage takes place in spite of the fact that a party to that marriage
had a spouse living, such marriage would be void under Section 11 of the Hindu Marriage
Act. Such a marriage is also described as void under Section 17 of the Hindu Marriage Act
under which an offence of bigamy has been created. This offence has been created by
reference. By providing in Section 17 that provisions of Sections 494 and 495 would be
applicable to such a marriage, the legislature has bodily lifted the provisions of Sections 494
and 495 IPC and placed them in Section 17 of the Hindu Marriage Act. This is a well-known
legislative device. The important words used in Section 494 are ―marries in any case in
which such marriage is void by reason of its taking place during the life of such husband or
wife‖. These words indicate that before an offence under Section 494 can be said to have been
constituted, the second marriage should be shown to be void in a case where such a marriage
would be void by reason of its taking place in the lifetime of such husband or wife. The
words ―husband or wife‖ are also important in the sense that they indicate the personal law
applicable to them which would continue to be applicable to them so long as the marriage
subsists and they remain ―husband and wife‖.

24. Chapter XX of the Indian Penal Code deals with offences relating to marriage.
Section 494 which deals with the offence of bigamy is a part of Chapter XX of the Code.

143
Relevant portion of Section 198 of the Code of Criminal Procedure which deals with the
prosecution for offences against marriage provides as under:

198. Prosecution for offences against marriage.—(1) No court shall take cognizance
of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860)

except upon a complaint made by some person aggrieved by the offence:

Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic,
or is from sickness or infirmity unable to make a complaint, or is a woman who,
according to the local customs and manners, ought not to be compelled to appear in
public, some other person may, with the leave of the court, make a complaint on his
or her behalf;

(b) where such person is the husband and he is serving in any of the armed forces
of the Union under conditions which are certified by his Commanding Officer as
precluding him from obtaining leave of absence to enable him to make a complaint in
person, some other person authorised by the husband in accordance with the
provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under Section 494 or
Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be
made on her behalf by her father, mother, brother, sister, son or daughter or by her
father‘s or mother‘s brother or sister, or, with the leave of the court, by any other
person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than the husband of the
woman shall be deemed to be aggrieved by any offence punishable under Section 497
or Section 498 of the said Code: Provided that in the absence of the husband, some
person who had care of the woman on his behalf at the time when such offence was
committed may, with the leave of the court, make a complaint on his behalf.

25. It would thus be seen that the court would take cognizance of an offence punishable
under Chapter XX of the Code only upon a complaint made by any of the persons specified in
this section. According to clause (c) of the proviso to sub-section (1), a complaint for the
offence under Section 494 or 495 can be made by the wife or on her behalf by her father,
mother, brother, sister, son or daughter or by her father‘s or mother‘s brother or sister. Such
complaint may also be filed, with the leave of the court, by any other person related to the
wife by blood, marriage or adoption. If a Hindu wife files a complaint for the offence under
Section 494 on the ground that during the subsistence of the marriage, her husband had
married a second wife under some other religion after converting to that religion, the offence
of bigamy pleaded by her would have to be investigated and tried in accordance with the
provisions of the Hindu Marriage Act. It is under this Act that it has to be seen whether the
husband, who has married a second time, has committed the offence of bigamy or not. Since
under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as
an offence under Section 17 of the Act, any marriage solemnised by the husband during the
subsistence of that marriage, in spite of his conversion to another religion, would be an
offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC. Since
taking of cognizance of the offence under Section 494 is limited to the complaints made by
the persons specified in Section 198 of the Code of Criminal Procedure, it is obvious that the

144
person making the complaint would have to be decided in terms of the personal law
applicable to the complainant and the respondent (accused) as mere conversion does not
dissolve the marriage automatically and they continue to be ―husband and wife‖.

26. It may be pointed out that Section 17 of the Hindu Marriage Act corresponds to
Sections 43 and 44 of the Special Marriage Act. It also corresponds to Sections 4 and 5 of the
PaRsi Marriage & Divorce Act, Section 61 of the Indian Divorce Act and Section 12 of the
Matrimonial Causes Act which is an English Act.

28. In Gopal Lal v. State of Rajasthan [AIR 1979 SC 713] Murtaza Fazal Ali, J.,
speaking for the Court, observed as under:

Where a spouse contracts a second marriage while the first marriage is still
subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that
the second marriage was a valid one in the sense that the necessary ceremonies
required by law or by custom have been actually performed. The voidness of the
marriage under Section 17 of the Hindu Marriage Act is in fact one of the essential
ingredients of Section 494 because the second marriage will become void only
because of the provisions of Section 17 of the Hindu Marriage Act.

29. In view of the above, if a person marries a second time during the lifetime of his wife,
such marriage apart from being void under Sections 11 and 17 of the Hindu Marriage Act,
would also constitute an offence and that person would be liable to be prosecuted under

Section 494 IPC. While Section 17 speaks of marriage between two ―Hindus‖, Section 494
does not refer to any religious denomination.

30. Now, conversion or apostasy does not automatically dissolve a marriage already
solemnised under the Hindu Marriage Act. It only provides a ground for divorce under
Section 13.

31. Under Section 10 which provides for judicial separation, conversion to another
religion is now a ground for a decree for judicial separation after the Act was amended by the
Marriage Laws (Amendment) Act, 1976. The first marriage, therefore, is not affected and it
continues to subsist. If the ―marital‖ status is not affected on account of the marriage still
subsisting, his second marriage qua the existing marriage would be void and in spite of
conversion he would be liable to be prosecuted for the offence of bigamy under Section 494.

32. Change of religion does not dissolve the marriage performed under the Hindu
Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or
the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground
for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not
recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for

―monogamy‖. A second marriage, during the lifetime of the spouse, would be void under

Sections 11 and 17, besides being an offence.

33. In Govt. of Bombay v. Ganga [ILR (1880) 4 Bom. 330] which obviously is a case
decided prior to the coming into force of the Hindu Marriage Act, it was held by the Bombay
High Court that where a Hindu married woman having a Hindu husband living marries a
Mohammedan after conversion to ―Islam‖, she commits the offence of polyandry as, by

145
mere conversion, the previous marriage does not come to an end. In Sayeda Khatoon v. M.
Obadiah [(1944-45) 49 CWN 745] it was held that a marriage solemnised in India according
to one personal law cannot be dissolved according to another personal law simply because
one of the parties has changed his or her religion. In Amar Nath v. Amar Nath [AIR 1948
Lah. 129] it was held that the nature and incidence of a Vedic marriage bond, between the
parties are not in any way affected by the conversion to Christianity of one of them and the
bond will retain all the characteristics of a Hindu marriage notwithstanding such conversion
unless there shall follow upon the conversion of one party, repudiation or desertion by the
other, and unless consequential legal proceedings are taken and a decree is made as provided
by the Native Converts Marriage Dissolution Act.

34. In the case of Gul Mohd. v. Emperor [AIR 1947 Nag. 121] the High Court held that
the conversion of a Hindu wife to Mohammedanism does not, ipso facto, dissolve the
marriage with her Hindu husband. It was further held that she cannot, during his lifetime,
enter into a valid contract of marriage with another person. Such person having sexual
relations with a Hindu wife converted to Islam, would be guilty of adultery under Section 497
IPC as the woman before her conversion was already married and her husband was alive.

35. From the above, it would be seen that mere conversion does not bring to an end the
marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree
is passed, the marriage subsists. Any other marriage, during the subsistence of the first
marriage would constitute an offence under Section 494 read with Section 17 of the Hindu
Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would
be liable to be prosecuted for the offence of bigamy. It also follows that if the first marriage
was solemnised under the Hindu Marriage Act, the ―husband‖ or the ―wife‖, by mere
conversion to another religion, cannot bring to an end the marital ties already established on
account of a valid marriage having been performed between them. So long as that marriage
subsists, another marriage cannot be performed, not even under any other personal law, and
on such marriage being performed, the person would be liable to be prosecuted for the
offence under Section 494 IPC.

36. The position under the Mohammedan law would be different as, in spite of the first
marriage, a second marriage can be contracted by the husband, subject to such religious
restrictions as have been spelled out by brother Sethi, J. in his separate judgment, with which
I concur on this point also. This is the vital difference between Mohammedan law and other
personal laws. Prosecution under Section 494 in respect of a second marriage under
Mohammedan law can be avoided only if the first marriage was also under the Mohammedan
law and not if the first marriage was under any other personal law where there was a
prohibition on contracting a second marriage in the lifetime of the spouse.

37. In any case, as pointed out earlier in the instant case, the conversion is only feigned,
subject to what may be found out at the trial.

38. Religion is a matter of faith stemming from the depth of the heart and mind. Religion
is a belief which binds the spiritual nature of man to a supernatural being; it is an object of
conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and

39. denotes an act of worship. Faith in the strict sense constitutes firm reliance on the
truth of religious doctrines in every system of religion. Religion, faith or devotion are not
easily interchangeable. If the person feigns to have adopted another religion just for some
worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person
who mockingly adopts another religion where plurality of marriage is permitted so as to
renounce

146
the previous marriage and desert the wife, cannot be permitted to take advantage of his
exploitation as religion is not a commodity to be exploited. The institution of marriage under
every personal law is a sacred institution. Under Hindu law, marriage is a sacrament. Both have
to be preserved.

39. I also respectfully agree with brother Sethi, J. that in the present case, we are not
concerned with the status of the second wife or the children born out of that wedlock as in the
instant case we are considering the effect of the second marriage qua the first subsisting
marriage in spite of the husband having converted to ―Islam‖.

40. I have already reproduced the order of this Court passed in Sarla Mudgal case on 23-
4-1990 in which it was clearly set out that the learned counsel appearing in that case had,
after taking instructions, stated that the prayers were limited to a single relief, namely, a
declaration that where a non-Muslim male gets converted to the Muslim faith without any
real change of belief and merely with a view to avoid any earlier marriage or to enter into a
second marriage, any marriage entered into by him after conversion would be void.

42. It may also be pointed out that in the counter-affidavit filed on 30-8-1996 and in the
supplementary affidavit filed on 5-12-1996 on behalf of the Government of India in the case
of Sarla Mudgal it has been stated that the Government would take steps to make a uniform
code only if the communities which desire such a code approach the Government and take the
initiative themselves in the matter.

R.P. SETHI, J. - IA No. 2 of 1995 in Writ Petition (C) No. 588 of 1995 is allowed.

47. Interpreting the scope and extent of Section 494 of the Indian Penal Code this Court
in Sarla Mudgal, President, Kalyani v. Union of India [AIR 1995 SC 1531] held:

[T]hat the second marriage of a Hindu husband after conversion to Islam, without
having his first marriage dissolved under law, would be invalid. The second marriage
would be void in terms of the provisions of Section 494 IPC and the apostate husband
would be guilty of the offence under Section 494 IPC.

The findings were returned answering the questions formulated by the Court in para 2 of its
judgment.

48. The judgment in Sarla Mudgal case is sought to be reviewed, set aside, modified and
quashed by way of the present review and writ petitions filed by various persons and Jamat-e-
Ulema Hind and another. It is contended that the aforesaid judgment is contrary to the
fundamental rights as enshrined in Articles 20, 21, 25 and 26 of the Constitution of India.

59. We are not impressed by the arguments to accept the contention that the law declared
in Sarla Mudgal case cannot be applied to persons who have solemnised marriages in
violation of the mandate of law prior to the date of judgment. This Court had not laid down
any new law but only interpreted the existing law which was in force. It is a settled principle
that the interpretation of a provision of law relates back to the date of the law itself and
cannot be prospective from the date of the judgment because concededly the court does not
legislate but only gives an interpretation to an existing law. We do not agree with the
arguments that the second marriage by a convert male Muslim has been made an offence only

147
by judicial pronouncement. The judgment has only interpreted the existing law after taking into
consideration various aspects argued at length before the Bench which pronounced the judgment.
The review petition alleging violation of Article 20(1) of the Constitution is without any
substance and is liable to be dismissed on this ground alone.

60. Even otherwise we do not find any substance in the submissions made on behalf of
the petitioners regarding the judgment being violative of any of the fundamental rights
guaranteed to the citizens of this country. The mere possibility of taking a different view has
not persuaded us to accept any of the petitions as we do not find the violation of any of the
fundamental rights to be real or prima facie substantiated.

61. The alleged violation of Article 21 is misconceived. What is guaranteed under Article
21 is that no person shall be deprived of his life and personal liberty except according to the
procedure established by law. It is conceded before us that actually and factually none of the
petitioners has been deprived of any right of his life and personal liberty so far. The aggrieved
persons are apprehended to be prosecuted for the commission of offence punishable under
Section 494 IPC. It is premature, at this stage, to canvass that they would be deprived of their
life and liberty without following the procedure established by law. The procedure
established by law, as mentioned in Article 21 of the Constitution, means the law prescribed
by the legislature. The judgment in Sarla Mudgal has neither changed the procedure nor
created any law for the prosecution of the persons sought to be proceeded against for the
alleged commission of the offence under Section 494 IPC.

62. The grievance that the judgment of the Court amounts to violation of the freedom of
conscience and free profession, practice and propagation of religion is also far-fetched and
apparently artificially carved out by such persons who are alleged to have violated the law by
attempting to cloak themselves under the protective fundamental right guaranteed under Article
25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of
conscience and propagation of religion. The rule of monogamous marriage amongst Hindus was
introduced with the proclamation of the Hindu Marriage Act. Section 17 of the said Act provided
that any marriage between two Hindus solemnised after the commencement of the Act shall be
void if at the date of such marriage either party had a husband or wife living and the provisions of
Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly. The second
marriage solemnised by a Hindu during the subsistence of a first marriage is an offence
punishable under the penal law. Freedom guaranteed under Article 25 of the Constitution is such
freedom which does not encroach upon a similar freedom of other persons. Under the
constitutional scheme every person has a fundamental right not merely to entertain the religious
belief of his choice but also to exhibit this belief and ideas in a manner which does not infringe
the religious right and personal freedom of others It was contended in Sarla Mudgal that making
a convert Hindu liable for prosecution under the Penal Code would be against Islam, the religion
adopted by such person upon conversion. Such a plea raised demonstrates the ignorance of the
petitioners about the tenets of Islam and its teachings. The word ―Islam‖ means ―peace and
submission‖. In its religious connotation it is understood as ―submission to the will of God‖;
according to

Fyzee (Outlines of Mohammedan Law, 2nd Edn.), in its secular sense, the establishment of
peace. The word ―Muslim‖ in Arabic is the active principle of Islam, which means
acceptance of faith, the noun of which is Islam. Muslim law is admitted to be based upon a
well-recognised system of jurisprudence providing many rational and revolutionary concepts,
which could not be conceived of by the other systems of law in force at the time of its
inception. Sir Ameer Ali in his book Mohammedan Law, Tagore Law Lectures, 4th Edn.,
Vol. 1 has observed that the Islamic system, from a historical point of view was the most
interesting phenomenon of growth. The small beginnings from which it grew up and the
comparatively short space of time within which it attained its wonderful development marked

148
its position as one of the most important judicial systems of the civilised world. The concept
of Muslim law is based upon the edifice of the Shariat. Muslim law as traditionally
interpreted and applied in India permits more than one marriage during the subsistence of one
and another though capacity to do justice between co-wives in law is a condition precedent.
Even under the Muslim law plurality of marriages is not unconditionally conferred upon the
husband. It would, therefore, be doing injustice to Islamic law to urge that the convert is
entitled to practise bigamy notwithstanding the continuance of his marriage under the law to
which he belonged before conversion. The violators of law who have contracted a second
marriage cannot be permitted to urge that such marriage should not be made the subject-
matter of prosecution under the general penal law prevalent in the country. The progressive
outlook and wider approach of Islamic law cannot be permitted to be squeezed and narrowed
by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by
illegal means, who apparently are found to be guilty of the commission of the offence under
the law to which they belonged before their alleged conversion. It is nobody‘s case that any
such convertee has been deprived of practising any other religious right for the attainment of
spiritual goals. Islam which is a pious, progressive and respected religion with a rational
outlook cannot be given a narrow concept as has been tried to be done by the alleged
violatoRs of law.

63. Learned counsel appearing for the petitioners have alleged that in view of the
judgment in Sarla Mudgal their clients are liable to be convicted without any further proof.
Such an apprehension is without any substance inasmuch as the person seeking conviction of
the accused for a commission of offence under Section 494 is under a legal obligation to
prove all the ingredients of the offence charged and conviction cannot be based upon mere
admission made outside the court. To attract the provisions of Section 494 IPC the second
marriage has to be proved besides proving the previous marriage. Such marriage is further
required to be proved to have been performed or celebrated with proper ceremonies. This
Court in Kanwal Ram v. H.P. Admn. [AIR 1966 SC 614] held that in a bigamy case the
second marriage as a fact, that is to say the essential ceremonies constituting it, must be
proved. Admission of marriage by the accused by itself was not sufficient for the purpose of
holding him guilty even for adultery or for bigamy. In Bhaurao Shankar Lokhande v. State
of Maharashtra [AIR 1965 SC 1564] this Court held that a marriage is not proved unless the
essential ceremonies required for its solemnisation are proved to have been performed.

65. Besides deciding the question of law regarding the interpretation of Section 494 IPC,
one of the Hon‘ble Judges (Kuldip Singh, J.) after referring to the observations made by this

Court in Mohd. Ahmed Khan v. Shah Bano Begum [AIR 1985 SC 945] requested the
Government of India through the Prime Minister of the country to have a fresh look at Article

44 of the Constitution of India and ―endeavour to secure for the citizens a uniform civil code
throughout the territory of India‖. In that behalf direction was issued to the Government of
India, Secretary, Ministry of Law & Justice to file an affidavit of a responsible officer
indicating therein the steps taken and efforts made towards securing a uniform civil code for
the citizens of India. On the question of a uniform civil code R.M. Sahai, J. the other Hon‘ble
Judge constituting the Bench suggested some measures which could be undertaken by the
Government to check the abuse of religion by unscrupulous persons, who under the cloak of
conversion were found to be otherwise guilty of polygamy. It was observed that:

Freedom of religion is the core of our culture. Even the slightest deviation shakes the
social fibre.

149
 It was further remarked that:

The Government would be well advised to entrust the responsibility to the Law
Commission which may in consultation with Minorities Commission examine the
matter and bring about a comprehensive legislation in keeping with modern-day
concept of human rights for women.

66. In Maharshi Avadhesh v. Union of India [1994 Supp (1) SCC 713] this Court had
specifically declined to issue a writ directing the respondents to consider the question of
enacting a common civil code for all citizens of India holding that the issue raised being a
matter of policy, it was for the legislature to take effective steps as the Court cannot legislate.

70. In the circumstances the review petition as also the writ petitions having no substance
are hereby disposed of finally with a clarification regarding the applicability of Article 44 of
the Constitution. All interim orders passed in these proceedings including the stay of criminal
cases in subordinate courts, shall stand vacated. No costs.

ORDER OF THE COURT

71. In view of the concurring, but separate judgments the review petition and the writ
petitions are disposed of finally with the clarifications and interpretation set out therein. All
interim orders passed in these petitions shall stand vacated.

*****

NOTE: The Supreme Court in John Vallamattom v. Union of India [ (2003) 6

SCC 611] has observed: ―It is a matter of regret that Article 44 of the Constitution
has not been given effect to. Parliament is still to step in for framing a common civil
code in the country. A common civil code will help the cause of national integration
by removing the contradictions based on ideologies.‖

*****

150
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7108 of 2003

Bharatha Matha & Anr. .......Appellants

Versus

R. Vijaya Renganathan & Ors. .........Respondents

ORDER

Dr. B. S. CHAUHAN, J

1. This appeal has been preferred against the Judgment and Order of the High Court of
Judicature at Madras dated 10th July, 2001 allowing the appeal filed by the respondent No.1
against the judgment and decree of the Ist Appellate Court dated 17.9.1986 affirming the
judgment and decree of the Trial Court dated 7.3.1977 in O.S. No.269/1975 instituted by the
predecessor-in-interest of the present appellants for claiming the property in dispute and denying
the share to the respondent Nos. 2 to 5 or their predecessor-in-interest.

2. The facts and circumstances giving rise to the present case are that the predecessor-in-interest
of the present appellants, Peria Mariammal instituted a suit, being O.S. No. 269 of 1975 against
the respondents and their predecessor-in- interest claiming the share of her brother Muthu
Reddiar, on the ground that he died unmarried and intestate and that Smt. Rengammal, the
defendant No. 1 in the suit was a legally wedded wife of one Alagarsami Reddiar, who was still
alive, therefore, her claim that she had live-in-relationship with plaintiff's brother Muthu Reddiar
and had two children from him, had to be ignored. The defendants/respondents contested the suit
denying the marriage between defendant No. 1 and the said Alagarsami Reddiar. The Trial Court
decreed the suit vide Judgment and decree dated 7th March, 1977 recording the finding that
Rengammal, defendant No.1 in the suit was wife of Alagarsami Reddiar who was alive at the
time of filing the suit. There had been no legal separation between them. Therefore, the question
of live-in-relationship of Smt. Rengammal with Muthu Reddiar could not arise.

3. Being aggrieved, the defendants therein filed the First Appeal. The respondent No. 1 herein,
Vijaya Renganathan, purchased the suit property in 1978 i.e. during the pendency of the First
Appeal for a sum of about Rs. 10,000/- and got himself impleaded in the appeal as a party. The
First Appeal was dismissed by the Appellate Court vide judgment and decree dated 17th
September, 1986. The said purchaser, respondent No.1, alone filed the Second Appeal under

151
Section 100 of Code of Civil Procedure, 1908 (hereinafter called as `CPC') before the High
Court which has been allowed. Hence, this appeal.

4. Learned counsel for the appellants has submitted that Smt. Rengammal, original defendant
No.1 was legally wedded wife of Alagarsami and he was still alive. Therefore, the question of
presumption of marriage for having live-in- relationship with Muthu Reddiar could not arise. In
such eventuality, Muthu Reddiar could be liable for offence of Adultery under Section 497 of
Indian Penal Code, 1860 (hereinafter called as `IPC'). More so, even if live-in-relationship is
admitted and it is further admitted that the two children were born due to that live-in-
relationship, the said children could not inherit the coparcenery property and in absence of any
finding recorded by any Court below that the suit land was self-acquired property of Muthu
Reddiar, the judgment of the High Court is liable to be set aside. At the most, the respondent No.
1 herein can claim recovery of the sale consideration from his vendors as the possession is still
with the present appellants.

5. On the contrary, learned counsel for the respondent No.1 has vehemently opposed the
submission of the learned counsel for the appellants, contending that the High Court after re-
appreciating the evidence on record came to the conclusion that the factum of marriage of Smt.
Rengammal with Alagarsami Reddiar could not be proved by the appellants herein and because
of their live-in-relationship, a presumption of marriage between Muthu Reddiar and Smt.
Rengammal could be drawn and, therefore, in view of the provisions of Section 16 of the Hindu
Marriage Act, 1955 (hereinafter called as, "the Act"), the two children born out of that live-in-
relationship were entitled to inherit the property of Muthu Reddiar and thus, the appeal is liable
to be dismissed.

6. We have considered the rival submissions of the learned counsel for the parties and perused
the record.

7. The Trial Court as well as the First Appellate Court have recorded a categorical finding of fact
that Smt. Rengammal, defendant No.1 had been married to Alagarsami Reddiar who was alive
on the date of institution of the suit and, therefore, the question of marriage by presumption
between Smt. Rengammal and Muthu Reddiar would not arise and for determining the same all
the material on record had been taken into consideration including the statement of Seethammal,
DW1 along with all other defence witnesses and the documents, particularly, Exts.B14, B18,
B19 and B2.

8. However, the High Court framed two substantial questions of law, namely:

(a) Whether on the admitted long cohabitation of the First defendant and Muthu Reddiar, a legal
presumption of a lawful wedlock is not established;

and

(b) Whether the specific case of prior and subsisting marriage between defendant and Alagarsami Reddiar
set up by Plaintiff is established as required by law and she could have a preferential claim over
defendants 1 to 3?

9. While determining the substantial question (b) the High Court only considered the statement
of Seethammal, DW1, the step mother of Muthu Reddiar and did not take into consideration the
evidence of plaintiff's witnesses which had been relied upon by the courts below, particularly,
152
Kumarasamy PW2 and Kandasamy PW5 and re-appreciated the documentary evidence.
Therefore, the question does arise as to whether such a course is permissible while deciding the
Second Appeal under Section 100 CPC.

10. In Sheel Chand Vs. Prakash Chand, AIR 1998 SC 3063, this Court held that question of re-
appreciation of evidence and framing the substantial question as to whether the findings relating
to factual matrix by the court below could vitiate due to irrelevant consideration and not under
law, being question of fact cannot be framed.

11. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa & Ors. AIR 2000 SC 2108,
this Court held that it is not permissible for the High Court to decide the Second Appeal by re-
appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion
that the findings recorded by the court below were perverse.

12. In Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by L.Rs. AIR 2001 SC 1273, this
Court held that the question whether Lower Court's finding is perverse may come within the
ambit of substantial question of law. However, there must be a clear finding in the judgment of
the High Court as to perversity in order to show compliance with provisions of Section 100 CPC.
Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in Second
Appeal.

13. Thus, it is evident that High Court can interfere with the finding of fact while deciding the
Second Appeal provided the findings recorded by the Courts below are perverse.

14. In H.B. Gandhi, Excise & Taxation Officer-cum- Assessing Authority, Karnal & Ors. Vs.
M/s. Gopi Nath & Sons & Ors. 1992 Supp.(2) SCC 312, this Court held that if a finding of fact is
arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant
material or if the finding so outrageously defies logic as to suffer from the vice of irrationality
incurring the blame of being perverse, then the finding is rendered infirm in law. In M/s. Triveni
Rubber & Plastics Vs. Collector of Central Excise, Cochin AIR 1994 SC 1341, this Court held
that the order suffers from perversity in case some relevant evidence has not been considered or
that certain inadmissible material has been taken into consideration or where it can be said that
the findings of the authorities are based on no evidence or that they are so perverse that no
reasonable person would have arrived at those findings. In Kuldeep Singh Vs. Commissioner of
Police & Ors. (1999) 2 SCC 10, this Court held that if a decision is arrived at on no evidence or
evidence which is thoroughly unreliable and no reasonable person would act upon it, the order
would be perverse. But if there is some evidence on record which is acceptable and which cannot
be relied upon, howsoever compendious it may be, the conclusions would not be treated as
perverse and the findings would not be interfered with. In Gaya Din (dead) thr. Lrs. & Ors. Vs.
Hanuman Prasad (dead) thr. Lrs. & Ors. AIR 2001 SC 386, it has been held that order of an
authority is perverse in the sense that the order is not supported by the evidence brought on
record or it is against the law or it suffers from the vice of procedural irregularity. In Rajinder
Kumar Kindra Vs. Delhi Administration, thr. Secretary (Labour) & Ors. AIR 1984 SC 1805, this
Court while dealing with a case of disciplinary proceedings against an employee considered the
issue and held as under:

"17. It is equally well-settled that where a quasi- judicial tribunal or arbitrator records findings based on
no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the
enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. ....The High
Court, in our opinion, was clearly in error in declining to examine the contention that the findings were
153
perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of
evidence."

15. In the instant case, the Courts below had appreciated the entire evidence and came to the
conclusion that Smt. Rengammal, defendant no.1 was legally wedded wife of Alagarsami
Reddiar and thus did not presume her marriage with Muthu Reddiar. The High Court without
making any reference to the evidence of the plaintiff's witnesses, particularly, Kumarasamy-
P.W.2 and Kandasamy-PW.5 reversed the finding of fact and reached the conclusion that merely
live-in-relationship between the said two parties would lead the presumption of marriage
between them. The High Court erred in not appreciating that the judgments of the Courts below
could be based on another presumption provided under Section 112 of the Evidence Act, 1872
(hereinafter called as the `Evidence Act').

16. Section 112 of the Evidence Act provides for a presumption of a child being legitimate and
such a presumption can only be displaced by a strong preponderance of evidence and not merely
by a balance of probabilities as the law has to live in favour of innocent child from being
bastardised. In the instant case, as the proof of non-access between Rengammal and Alagarsami
had never been pleaded what to talk of proving the same, the matter has not been examined by
the High Court in correct perspective. It is settled legal proposition that proof of non-access
between the to marriage during the relevant period is the only way to rebut that presumption.
[vide Mohabbat Ali Khan Vs. Muhammad Ibrahim Khan & Ors. AIR 1929 PC 135; Chilukuri
Venkateswarlu Vs. Chilukuri Venkatanarayana AIR 1954 SC 176; Mahendra Manilal Nanavati
Vs. Sushila Mahendra Nanavati AIR 1965 SC 364; Perumal Nadar (Dead) by Lrs. Vs.
Ponnuswami Nadar (minor) AIR 1971 SC 2352; Amarjit Kaur Vs. Harbhajan Singh and Anr.
(2003) 10 SCC 228; Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Ors. AIR 2005
SC 800; and Shri Banarsi Dass Vs. Teeku Dutta (Mrs.) and Anr. (2005) 4 SCC 449]

17. The High Court has decided the issue regarding the factum of marriage between Alagarsami
and Rengammal only placing reliance upon the statement of Smt. Seethammal, DW1, step
mother of Muthu Reddiar who had been disbelieved by the Courts below by giving cogent
reasons and taking note of the fact that she had arranged their marriage spending a sum of Rs.10
only. The High Court has also reappreciated the documentary evidence and took a view contrary
to the view taken by the court's below. It was not appropriate for the High Court to re-appreciate
the evidence in Second Appeal as no substantial question of law involved therein. Both the
Courts below found that Rengammal was legally wedded wife of Alagarsami. The Courts below
had placed very heavy reliance upon the witnesses examined by the appellant/plaintiff
particularly, Kumarasamy- PW 2 and Kandasamy- PW 5.

18. In view of the fact that the High Court did not even take note of the deposition of the
plaintiff's witnesses, findings recorded by the High Court itself become perverse and thus liable
to be set aside.

19. Be that as it may, Section 5(1) of the Act lays down conditions for a Hindu marriage. It
provides that marriage may be solemnized between any two Hindus if neither of them is a spouse
living at the time of marriage. Section 11 provides that any marriage which is in contravention of
Section 5(1) of the Act, would be void. Section 16 of the Act stood amended vide Amendment
Act of 1976 and the amended provisions read as under:-

154
"Legitimacy of children of void and voidable marriages - (1) Notwithstanding that a marriage is null and
void under section 11, any child of such marriage who would have been legitimate if the marriage had
been valid, shall be legitimate........

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child
begotten or conceived before the decree is made, who would have been the legitimate child of the parties
to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be
deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferring upon any
child of a marriage which is null and void or which is annulled by a decree of nullity under section 12,
any rights in or to the property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or acquiring any such rights by
reason of his not being the legitimate child of his parents." (Emphasis added)

20. Thus, it is evident that Section 16 of the Act intends to bring about social reforms,
conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate,
as its prime object.

21. In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & Ors. AIR 1992 SC 756,
this Court held that if man and woman are living under the same roof and cohabiting for a
number of years, there will be a presumption under Section 114 of the Evidence Act that they
live as husband and wife and the children born to them will not be illegitimate.

22. In S. Khushboo Vs. Kanniammal & Anr. JT 2010 (4) SC 478, this Court, placing reliance
upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. AIR 2006 SC 2522, held that
live-in-relationship is permissible only in unmarried major persons of heterogeneous sex. In case,
one of the said persons is married, man may be guilty of offence of adultery and it would amount
to an offence under Section 497 IPC.

23. In Smt. P.E.K. Kalliani Amma & Ors. Vs. K. Devi & Ors. AIR 1996 SC 1963, this Court
held that Section 16 of the Act is not ultra vires of the Constitution of India. In view of the legal
fiction contained in Section 16, the illegitimate children, for all practical purposes, including
succession to the properties of their parents, have to be treated as legitimate. They cannot,
however, succeed to the properties of any other relation on the basis of this rule, which in its
operation, is limited to the properties of the parents.

24. In Rameshwari Devi Vs. State of Bihar & Ors. AIR 2000 SC 735, this Court dealt with a case
wherein after the death of a Government employee, children born illegitimately by the woman,
who had been living with the said employee, claimed the share in pension/gratuity and other
death-cum-retiral benefits along with children born out of a legal wedlock. This Court held that
under Section 16 of the Act, children of void marriage are legitimate. As the employee, a Hindu,
died intestate, the children of the deceased employee born out of void marriage were entitled to
share in the family pension, death-cum-retiral benefits and gratuity.

25. In Jinia Keotin & Ors. Vs. Kumar Sitaram Manjhi & Ors. (2003) 1 SCC 730, this Court held
that while engrafting a rule of fiction in Section 16 of the Act, the illegitimate children have
become entitled to get share only in self-acquired properties of their parents. The Court held as
under :-

155
"4...........Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If
the marriage itself is void on account of contravention of the statutory prescriptions, any child born of
such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of
bastardising the children born of the parties to such marriage. Polygamy, which was permissible and
widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be
put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate
status of the children which depended very much upon the marriage between their parents being valid or
void, thus turned on the act of parents over which the innocent child had no hold or control. But for no
fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being
treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an
end to a great social evil.

At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the
children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was
void or voidable chose also to confine its application, so far as succession or by such children
are concerned to the properties of the parents only.

5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who
would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-
section (3) by engrafting a provision with a non-obstante clause stipulating specifically that
nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any
child of a marriage, which is null and void or which is annulled by a decree of nullity under
Section 12, `any rights in or to the property of any person, other than the parents, in any case
where, but for the passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of this not being the legitimate child of his parents'. In the
light of such an express mandate of the legislature itself there is no room for according upon
such children who but for Section 16 would have been branded as illegitimate any further rights
than envisaged therein by resorting to any presumptive or inferential process of reasoning,
having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to
do so would amount to doing not only violence to the provision specifically engrafted in Sub-
section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject
under the guise of interpretation, against even the will expressed in the enactment itself.
Consequently, we are unable to countenance the submissions on behalf of the appellants......."

26. This view has been approved and followed by this Court in Neelamma and others Vs.
Sarojamma and others (2006) 9 SCC 612.

27. Thus, it is evident that in such a fact-situation, a child born of void or voidable marriage is
not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim
share in self acquired properties, if any.

28. In the instant case, respondents had not pleaded at any stage that the Suit land was a self
acquired property of Muthu Reddiar. It is evident from the record that Muthu Reddiar did not
partition his joint family properties and died issueless and intestate in 1974. Therefore, the
question of inheritance of coparcenery property by the illegitimate children, who were born out
of the live-in-relationship, could not arise. Thus, the judgment of the High Court is liable to be
set aside only on this sole ground.

156
29. In view of the above, the appeal succeeds and is allowed. The judgment and order of the
High Court dated 10th July, 2001 is hereby set aside. No order as to cost.

30. However, it shall be open to R.5 to resort to legal proceedings, permissible in law for
recovery of the sale consideration from his vendors as he has purchased the property in lis pendis
and the appellants are still in possession of the suit property.

J. (Dr. B.S. CHAUHAN) .........................................J. (SWATANTER KUMAR) New Delhi,

May 17, 2010

Supreme Court of India

Indra Sarma … Appellant

Versus
V.K.V. Sarma … Respondent
JUDGMENT

K.S. Radhakrishnan, J.

Leave granted.

2. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable
in this country. The decision to marry or not to marry or to have a heterosexual relationship is
intensely personal.

3. We are, in this case, concerned with the question whether a “live-in relationship” would
amount to a “relationship in the nature of marriage” falling within the definition of “domestic
relationship” under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005
(for short “the DV Act”) and the disruption of such a relationship by failure to maintain a women
involved in such a relationship amounts to “domestic violence” within the meaning of Section 3
of the DV Act.

FACTS:

4. Appellant and respondent were working together in a private company. The Respondent, who
was working as a Personal Officer of the Company, was a married person having two children
and the appellant, aged 33 years, was unmarried. Constant contacts between them developed
intimacy and in the year 1992, appellant left the job from the above-mentioned Company and
started living with the respondent in a shared household. Appellant’s family members, including
her father, brother and sister, and also the wife of the respondent, opposed that live-in-
relationship. She has also maintained the stand that the respondent, in fact, started a business in
her name and that they were earning from that business. After some time, the respondent shifted
the business to his residence and continued the business with the help of his son, thereby
depriving her right of working and earning. Appellant has also stated that both of them lived
together in a shared household and, due to their relationship, appellant became pregnant on three
157
occasions, though all resulted in abortion. Respondent, it was alleged, used to force the appellant
to take contraceptive methods to avoid pregnancy. Further, it was also stated that the respondent
took a sum of Rs.1,00,000/- from the appellant stating that he would buy a land in her name, but
the same was not done. Respondent also took money from the appellant to start a beauty parlour
for his wife. Appellant also alleged that, during the year 2006, respondent took a loan of
Rs.2,50,000/- from her and had not returned. Further, it was also stated that the respondent, all
along, was harassing the appellant by not exposing her as his wife publicly, or permitting to
suffix his name after the name of the appellant. Appellant also alleged that the respondent never
used to take her anywhere, either to the houses of relatives or friends or functions. Appellant also
alleged that the respondent never used to accompany her to the hospital or make joint Bank
account, execute documents, etc. Respondent’s family constantly opposed their live-in
relationship and ultimately forced him to leave the company of the appellant and it was alleged
that he left the company of the appellant without maintaining her.

5. Appellant then preferred Criminal Misc. No. 692 of 2007 under Section 12 of the DV Act
before the III Additional Chief Metropolitan Magistrate, Bangalore, seeking the following
reliefs:

1) Pass a Protection Order under Section 18 of the DV Act prohibiting the respondent from
committing any act of domestic violence against the appellant and her relatives, and further
prohibiting the respondent from alienating the assets both moveable and immoveable properties
owned by the respondent;

2) Pass a residence order under Section 19 of the DV Act and direct the respondent to provide for
an independent residence as being provided by the respondent or in the alternative a joint
residence along with the respondent where he is residing presently and for the maintenance of
Rs.25,000/- per month regularly as being provided earlier or in the alternative to pay the
permanent maintenance charges at the rate of Rs.25,000/- per month for the rest of the life;

3) Pass a monetary order under Section 20 of the DV Act directing the respondent to pay a sum
of Rs.75,000/- towards the operation, pre and post operative medication, tests etc and follow up
treatments;

4) Pass a compensation order under Section 22 of the DV Act to a sum of Rs.3,50,000/- towards
damages for misusing the funds of the sister of the appellant, mental torture and emotional
feelings; and

5) Pass an ex-parte interim order under Section 23 of the DV Act directing the respondent to pay
Rs.75,000/- towards the medical expenses and pay the maintenance charges @ Rs.25,000/- per
month as being paid by the respondent earlier.

6. Respondent filed detailed objections to the application stating that it was on sympathetical
grounds that he gave shelter to her in a separate house after noticing the fact that she was
abandoned by her parents and relatives, especially after the demise of her father. She had also
few litigations against her sister for her father’s property and she had approached the respondent
for moral as well as monetary support since they were working together in a Company. The
respondent has admitted that he had cohabited with the appellant since 1993. The fact that he
was married and had two children was known to the appellant. Pregnancy of the appellant was
terminated with her as well as her brother’s consent since she was not maintaining good health.
The respondent had also spent large amounts for her medical treatment and the allegation that he
158
had taken money from the appellant was denied. During the month of April, 2007, the
respondent had sent a cheque for Rs.2,50,000/- towards her medical expenses, drawn in the name
of her sister which was encashed. Further, it was stated, it was for getting further amounts and to
tarnish the image of the respondent, the application was preferred under the DV Act. Before the
learned Magistrate, appellant examined herself as P.W.1 and gave evidence according to the
averments made in the petition. Respondent examined himself as R.W.1. Child Development
Project Officer was examined as R.W.2. The learned Magistrate found proof that the parties had
lived together for a considerable period of time, for about 18 years, and then the respondent left
the company of the appellant without maintaining her. Learned Magistrate took the view that the
plea of “domestic violence” had been established, due to the non-maintenance of the appellant
and passed the order dated 21.7.2009 directing the respondent to pay an amount of Rs.18,000/-
per month towards maintenance from the date of the petition.

7. Respondent, aggrieved by the said order of the learned Magistrate, filed an appeal before the
Sessions Court under Section 29 of the DV Act. The Appellate Court, after having noticed that
the respondent had admitted the relationship with appellant for over a period of 14 years, took
the view that, due to their live-in relationship for a considerable long period, non-maintenance of
the appellant would amount to domestic violence within the meaning of Section 3 of the DV Act.
The appellate Court also concluded that the appellant has no source of income and that the
respondent is legally obliged to maintain her and confirmed the order passed by the learned
Magistrate.

8. The respondent took up the matter in appeal before the High Court. It was contended before
the High Court that the appellant was aware of the fact that the respondent was a married person
having two children, yet she developed a relationship, in spite of the opposition raised by the
wife of the respondent and also by the appellant’s parents. Reliance was also placed on the
judgment of this Court in D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 and submitted
that the tests laid down in Velusamy case (supra) had not been satisfied. The High Court held
that the relationship between the parties would not fall within the ambit of “relationship in the
nature of marriage” and the tests laid down in Velusamy case (supra) have not been satisfied.
Consequently, the High Court allowed the appeal and set aside the order passed by the Courts
below. Aggrieved by the same, this appeal has been preferred.

9. Shri Anish Kumar Gupta, learned counsel appearing for the appellant, submitted that the
relationship between the parties continued from 1992 to 2006 and since then, the respondent
started avoiding the appellant without maintaining her. Learned counsel submitted that the
relationship between them constituted a “relationship in the nature of marriage” within the
meaning of Section 2(f) of the DV Act, which takes in every relationship by a man with a
woman, sharing household, irrespective of the fact whether the respondent is a married person or
not. Learned counsel also submitted that the tests laid down in Velusamy case (supra) have also
been satisfied.

10. Ms. Jyotika Kalra, learned amicus curiae, took us elaborately through the provisions of the
DV Act as well as the objects and reasons for enacting such a legislation. Learned amicus curiae
submitted that the Act is intended to provide for protection of rights of women who are victims
of violence of any type occurring in the family. Learned amicus curiae also submitted that the
various provisions of the DV Act are intended to achieve the constitutional principles laid down
in Article 15(3), reinforced vide Article 39 of the Constitution of India. Learned amicus curiae
also made reference to the Malimath Committee report and submitted that a man who marries a
second wife, during the subsistence of the first wife, should not escape his liability to maintain
159
his second wife, even under Section 125 CrPC. Learned amicus curiae also referred to a recent
judgment of this Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another
(2013) 2 SCC 137 in support of her contention.

11. Mr. Nikhil Majithia, learned counsel appearing for the respondent, made extensive research
on the subject and made available valuable materials. Learned counsel referred to several
judgments of the Constitutional Courts of South Africa, Australia, New Zealand, Canada, etc.
and also referred to parallel legislations on the subject in other countries. Learned counsel
submitted that the principle laid down in Velusamy case (supra) has been correctly applied by
the High Court and, on facts, appellant could not establish that their relationship is a
“relationship in the nature of marriage” so as to fall within Section 2(f) of the DV Act. Learned
counsel also submitted that the parties were not qualified to enter into a legal marriage and the
appellant knew that the respondent was a married person. Further, the appellant was not a victim
of any fraudulent or bigamous marriage and it was a live-in relationship for mutual benefits,
consequently, the High Court was right in holding that there has not been any domestic violence,
within the scope of Section 3 of the DV Act entitling the appellant to claim maintenance.

12. We have to examine whether the non maintenance of the appellant in a broken live-in-
relationship, which is stated to be a relationship not in the nature of a marriage, will amount to
“domestic violence” within the definition of Section 3 of the DV Act, enabling the appellant to
seek one or more reliefs provided under Section 12 of the DV Act.

13. Before examining the various issues raised in this appeal, which have far reaching
consequences with regard to the rights and liabilities of parties indulging in live-in relationship,
let us examine the relevant provisions of the DV Act and the impact of those provisions on such
relationships.

D.V. ACT

14. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women
from being victims of domestic violence and to prevent occurrence of domestic violence in the
society. The DV Act has been enacted also to provide an effective protection of the rights of
women guaranteed under the Constitution, who are victims of violence of any kind occurring
within the family.

15. “Domestic Violence” is undoubtedly a human rights issue, which was not properly taken care
of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform
for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights
issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against
Women in its general recommendations had also exhorted the member countries to take steps to
protect women against violence of any kind, especially that occurring within the family, a
phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by
husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it
was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to
provide more effective protection of rights of women guaranteed under the Constitution under
Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted
the DV Act.

16. Chapter IV is the heart and soul of the DV Act, which provides various reliefs to a woman
who has or has been in domestic relationship with any adult male person and seeks one or more
160
reliefs provided under the Act. The Magistrate, while entertaining an application from an
aggrieved person under Section 12 of the DV Act, can grant the following reliefs:

1) Payment of compensation or damages without prejudice to the right of such person to institute
a suit for compensation or damages for injuries caused by the acts of domestic violence
committed by the adult male member, with a prayer for set off against the amount payable under
a decree obtained in Court;

2) The Magistrate, under Section 18 of the DV Act, can pass a “protection order” in favour of the
aggrieved person and prohibit the respondent from:

a) committing any act of domestic violence;

b) aiding or abetting in the commission of acts of domestic violence;

c) entering the place of employment of the aggrieved person or, if the person aggrieved is a
child, its school or any other place frequented by the aggrieved person;

d) attempting to communicate in any form, whatsoever, with the aggrieved person, including
personal, oral or written or electronic or telephonic contact;

e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both
the parties, jointly by the aggrieved person and the respondent or singly by the respondent,
including her stridhan or any other property held either jointly by the parties or separately by
them without the leave of the Magistrate;

f) causing violence to the dependants, other relatives or any person who give the aggrieved
person assistance from domestic violence;

g) committing any other act as specified in the protection order.

3) The Magistrate, while disposing of an application under Section 12(1) of the DV Act, can pass
a “residence order” under Section 19 of the DV Act, in the following manner:

“19. Residence orders.- (1) While disposing of an application under sub- section (1) of section
12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a
residence order-

a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the
aggrieved person from the shared household, whether or not the respondent has a legal or equitable
interest in the shared household;

b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in
which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the
same;

161
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of
the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as
enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

xxx xxx xxx

xxx xxx xxx”

(4) An aggrieved person, while filing an application under Section 12(1) of the DV Act, is also
entitled, under Section 20 of the DV Act, to get “monetary reliefs” to meet the expenses incurred
and losses suffered by the aggrieved person and any child of the aggrieved person as a result of
the domestic violence and such relief may include, but is not limited to,-

“20. Monetary reliefs.- (1) While disposing of an application under sub- section (1) of section 12,
the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred
and losses suffered by the aggrieved person and any child of the aggrieved person as a result of
the domestic violence and such relief may include, but not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of
the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order
under or in addition to an order of maintenance under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974 ) or any other law for the time being in force.

xxx xxx xxx

xxx xxx xxx”

The monetary reliefs granted under the above mentioned section shall be adequate, fair,
reasonable and consistent with the standard of living to which an aggrieved person is accustomed
and the Magistrate has the power to order an appropriate lump sum payment or monthly
payments of maintenance.

(5) The Magistrate, under Section 21 of the DV Act, has the power to grant temporary custody of
any child or children to the aggrieved person or the person making an application on her behalf
and specify, if necessary, the arrangements for visit of such child or children by the respondent.

(6) The Magistrate, in addition to other reliefs, under Section 22 of the DV Act, can pass an
order directing the respondent to pay compensation and damages for the injuries, including
mental torture and emotional distress, caused by the acts of domestic violence committed by the
respondent.

162
17. Section 26 of the DV Act provides that any relief available under Sections 18, 19, 20, 21 and
22 may also be sought in any legal proceeding, before a Civil Court, family court or a criminal
court, affecting the aggrieved person and the respondent whether such proceeding was initiated
before or after the commencement of this Act. Further, any relief referred to above may be
sought for in addition to and along with any other reliefs that the aggrieved person may seek in
such suit or legal proceeding before a civil or criminal court. Further, if any relief has been
obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she
shall be bound to inform the Magistrate of the grant of such relief.

18. Section 3 of the DV Act deals with “domestic violence” and reads as under:

“3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or
conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical,
of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other
person related to her to meet any unlawful demand for any dowry or other property or valuable security;
or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.- For the purposes of this section,-

(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or
danger to life, limb, or health or impair the health or development of the aggrieved person and includes
assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise
violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a
child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled
under any law or custom whether payable under an order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not limited to, household necessities for the aggrieved
person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person,
payment of rental related to the shared household and maintenance;

163
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables,
shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is
entitled to use by virtue of the domestic relationship or which may be reasonably required by the
aggrieved person or her children or her stridhan or any other property jointly or separately held by the
aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the
respondent constitutes" domestic violence" under this section, the overall facts and circumstances of the
case shall be taken into consideration.”

19. In order to examine as to whether there has been any act, omission, or commission or conduct so as to
constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2 of
the DV Act. Section 2(a) of the DV Act defines the expression “aggrieved person” as follows:

“2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the
respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”
Section 2(f) defines the expression “domestic relationship” as follows:

“2(f). “Domestic relationship” means a relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family members living together as a joint family.”
Section 2(q) defines the expression “respondent” as follows:

“2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file
a complaint against a relative of the husband or the male partner.” Section 2(s) defines the expression
“shared household” and reads as follows:

“2(s). “shared household” means a household where the person aggrieved lives or at any stage has lived in
a domestic relationship either singly or along with the respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved person or the respondent or both jointly or singly
have any right, title, interest or equity and includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of whether the respondent or the aggrieved
person has any right, title or interest in the shared household.”

20. We are, in this case, concerned with a “live-in relationship” which, according to the aggrieved person,
is a “relationship in the nature of marriage” and it is that relationship which has been disrupted in the
sense that the respondent failed to maintain the aggrieved person, which, according to the appellant,
amounts to “domestic violence”. The respondent maintained the stand that the relationship between the
appellant and the respondent was not a relationship in the nature of marriage but a live-in-relationship
simplicitor and the alleged act, omission, commission or conduct of the respondent would not constitute
“domestic violence” so as to claim any protection orders under Section 18, 19 or 20 of the DV Act.

164
21. We have to first examine whether the appellant was involved in a domestic relationship with
the respondent. Section 2(f) refers to five categories of relationship, such as, related by
consanguinity, marriage, relationship in the nature of marriage, adoption, family members living
together as a joint family, of which we are, in this case, concerned with an alleged relationship in
the nature of marriage.

22. Before we examine whether the respondent has committed any act of domestic violence, we
have to first examine whether the relationship between them was a “relationship in the nature of
marriage” within the definition of Section 3 read with Section 2(f) of the DV Act. Before
examining the term “relationship in the nature of marriage”, we have to first examine what is
“marriage”, as understood in law.

MARRIAGE AND MARITAL RELATIONSHIP:

23. Marriage is often described as one of the basic civil rights of man/woman, which is
voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes
the parties as husband and wife. Three elements of common law marriage are (1) agreement to
be married (2) living together as husband and wife, (3) holding out to the public that they are
married. Sharing a common household and duty to live together form part of the ‘Consortium
Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital
privileges and rights and be honest and faithful to each other. One of the most important
invariable consequences of marriage is the reciprocal support and the responsibility of
maintenance of the common household, jointly and severally. Marriage as an institution has great
legal significance and various obligations and duties flow out of marital relationship, as per law,
in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal
requirements of formality, publicity, exclusivity and all the legal consequences flow out of that
relationship.

24. Marriages in India take place either following the personal Law of the Religion to which a
party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the
Common Law, constitutes a contract between a man and a woman, in which the parties
undertake to live together and support each other. Marriage, as a concept, is also nationally and
internationally recognized. O’Regan, J., in Dawood and Another v. Minister of Home Affairs
and Others 2000 (3) SA 936 (CC) noted as follows:

“Marriage and the family are social institutions of vital importance. Entering into and sustaining a
marriage is a matter of intense private significance to the parties to that marriage for they make a promise
to one another to establish and maintain an intimate relationship for the rest of their lives which they
acknowledge obliges them to support one another, to live together and to be faithful to one another. Such
relationships are of profound significance to the individuals concerned. But such relationships have more
than personal significance at least in part because human beings are social beings whose humanity is
expressed through their relationships with others. Entering into marriage therefore is to enter into a
relationship that has public significance as well.

The institutions of marriage and the family are important social institutions that provide for the security,
support and companionship of members of our society and bear an important role in the rearing of
children. The celebration of a marriage gives rise to moral and legal obligations, particularly the
reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising
children born of the marriage. These legal obligations perform an important social function. This

165
importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a
public ceremony, often before family and close friends....”

25. South African Constitutional Court in various judgments recognized the above mentioned
principle. In Satchwell v. President of the Republic of South Africa and Another 2002 (6) SA 1
(CC), Du Toit and Another v. Minister of Welfare and Population Development and Others
(Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional
Court of South Africa recognized the right “free to marry and to raise family”. Section
15(3)(a)(i) of the Constitution of South Africa, in substance makes provision for the recognition
of “marriages concluded under the tradition, or a system of religious, personal or family law.”
Section 9(3) of the Constitution of South Africa reads as follows:

“The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth.”

26. Article 23 of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
provides that:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society
and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of any children.”

27. Article 16 of the Universal Declaration of Human Rights, 1948 provides that:

“1. Men and women of full age, without any limitation due to race, nationality or religion, have the right
to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at it
dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society
and the State.”

28. Parties in the present case are Hindus by religion and are governed by the Hindu Marriage
Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act,
but the “conditions for a Hindu marriage” are dealt with in Section 5 of the Hindu Marriage Act
and which reads as under:

“5. Conditions for a Hindu marriage - A marriage may be solemnized between any two hindus, if the
following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage

166
(ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at
the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing
each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits
of a marriage between the two.”

29. Section 7 of the Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage” and
reads as follows:

“7. Ceremonies for a Hindu marriage. -

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either
party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding
when the seventh step is taken.”

30. Entering into a marriage, therefore, either through the Hindu Marriage Act or the Special
Marriage Act or any other Personal Law, applicable to the parties, is entering into a relationship
of “public significance”, since marriage being a social institution, many rights and liabilities flow
out of that legal relationship. The concept of marriage as a “civil right” has been recognised by
various courts all over the world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v.
Lippold 198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).

31. We have referred to, in extenso, about the concept of “marriage and marital relationship” to
indicate that the law has distinguished between married and unmarried people, which cannot be
said to be unfair when we look at the rights and obligations which flow out of the legally wedded
marriage. A married couple has to discharge legally various rights and obligations, unlike the
case of persons having live-in relationship or, marriage-like relationship or defacto relationship.

32. Married couples who choose to marry are fully cognizant of the legal obligation which arises
by the operation of law on solemnization of the marriage and the rights and duties they owe to
their children and the family as a whole, unlike the case of persons entering into live-in
relationship. This Court in Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198
held that marital relationship means the legally protected marital interest of one spouse to
another which include marital obligation to another like companionship, living under the same
roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing,
services in the home, support, affection, love, liking and so on.
167
RELATIONSHIP IN THE NATURE OF MARRIAGE:

33. Modern Indian society through the DV Act recognizes in reality, various other forms of
familial relations, shedding the idea that such relationship can only be through some acceptable
modes hitherto understood. Section 2(f), as already indicated, deals with a relationship between
two persons (of the opposite sex) who live or have lived together in a shared household when
they are related by:

a) Consanguinity

b) Marriage

c) Through a relationship in the nature of marriage

d) Adoption

e) Family members living together as joint family.

34. The definition clause mentions only five categories of relationships which exhausts itself
since the expression “means”, has been used. When a definition clause is defined to “mean” such
and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the
expression “include” so as to make the definition exhaustive. It is in that context we have to
examine the meaning of the expression “relationship in the nature of marriage”.

35. We have already dealt with what is “marriage”, “marital relationship” and “marital
obligations”. Let us now examine the meaning and scope of the expression “relationship in the
nature of marriage” which falls within the definition of Section 2(f) of the DV Act. Our concern
in this case is of the third enumerated category that is “relationship in the nature of marriage”
which means a relationship which has some inherent or essential characteristics of a marriage
though not a marriage legally recognized, and, hence, a comparison of both will have to be
resorted, to determine whether the relationship in a given case constitutes the characteristics of a
regular marriage.

36. Distinction between the relationship in the nature of marriage and marital relationship has to
be noted first. Relationship of marriage continues, notwithstanding the fact that there are
differences of opinions, marital unrest etc., even if they are not sharing a shared household, being
based on law. But live-in-relationship is purely an arrangement between the parties unlike, a
legal marriage. Once a party to a live-in- relationship determines that he/she does not wish to live
in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of
marriage, the party asserting the existence of the relationship, at any stage or at any point of time,
must positively prove the existence of the identifying characteristics of that relationship, since
the legislature has used the expression “in the nature of”.

37. Reference to certain situations, in which the relationship between an aggrieved person
referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or
would not amount to a relationship in the nature of marriage, would be apposite. Following are
some of the categories of cases which are only illustrative:

a) Domestic relationship between an unmarried adult woman and an unmarried adult male:
Relationship between an unmarried adult woman and an unmarried adult male who lived or, at
168
any point of time lived together in a shared household, will fall under the definition of Section
2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3
of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of
the DV Act.

b) Domestic relationship between an unmarried woman and a married adult male: Situations may
arise when an unmarried adult women knowingly enters into a relationship with a married adult
male. The question is whether such a relationship is a relationship “in the nature of marriage” so
as to fall within the definition of Section 2(f) of the DV Act.

c) Domestic relationship between a married adult woman and an unmarried adult male:
Situations may also arise where an adult married woman, knowingly enters into a relationship
with an unmarried adult male, the question is whether such a relationship would fall within the
expression relationship “in the nature of marriage”.

d) Domestic relationship between an unmarried woman unknowingly enters into a relationship

with a married adult male: An unmarried woman unknowingly enters into a relationship with a
married adult male, may, in a given situation, fall within the definition of Section 2(f) of the DV
Act and such a relationship may be a relationship in the “nature of marriage”, so far as the
aggrieved person is concerned.

e) Domestic relationship between same sex partners (Gay and Lesbians): DV Act does not
recognize such a relationship and that relationship cannot be termed as a relationship in the
nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act,
1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence
Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have
recognized the relationship between the same sex couples and have brought these relationships
into the definition of Domestic relationship.

38. Section 2(f) of the DV Act though uses the expression “two persons”, the expression
“aggrieved person” under Section 2(a) takes in only “woman”, hence, the Act does not recognize
the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or
conduct of any of the parties, would not lead to domestic violence, entitling any relief under the
DV Act.

39. We should, therefore, while determining whether any act, omission, commission or conduct
of the respondent constitutes “domestic violence”, have a common sense/balanced approach,
after weighing up the various factors which exist in a particular relationship and then reach a
conclusion as to whether a particular relationship is a relationship in the “nature of marriage”.
Many a times, it is the common intention of the parties to that relationship as to what their
relationship is to be, and to involve and as to their respective roles and responsibilities, that
primarily governs that relationship. Intention may be expressed or implied and what is relevant is
their intention as to matters that are characteristic of a marriage. The expression “relationship in
the nature of marriage”, of course, cannot be construed in the abstract, we must take it in the
context in which it appears and apply the same bearing in mind the purpose and object of the Act
as well as the meaning of the expression “in the nature of marriage”. Plight of a vulnerable
section of women in that relationship needs attention. Many a times, the women are taken
advantage of and essential contribution of women in a joint household through labour and
emotional support have been lost sight of especially by the women who fall in the categories
mentioned in (a) and (d) supra. Women, who fall under categories (b) and (c), stand on a
169
different footing, which we will deal with later. In the present case, the appellant falls under
category (b), referred to in paragraph 37(b) of the Judgment.

40. We have, therefore, come across various permutations and combinations, in such
relationships, and to test whether a particular relationship would fall within the expression
“relationship in the nature of marriage”, certain guiding principles have to be evolved since the
expression has not been defined in the Act.

41. Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a relationship
between two persons who live or have lived together at such point of time in a shared household,
through a relationship in the nature of marriage. The expression “relationship in the nature of
marriage” is also described as defacto relationship, marriage – like relationship, cohabitation,
couple relationship, meretricious relationship (now known as committed intimate relationship)
etc.

42. Courts and legislatures of various countries now began to think that denying certain benefits
to a certain class of persons on the basis of their marital status is unjust where the need of those
benefits is felt by both unmarried and married cohabitants. Courts in various countries have
extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late,
through legislations started giving benefits to heterosexual cohabitants.

43. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have
been recognized. Family Law Act, 1996, through the Chapter IV, titled ‘Family Homes and
Domestic Violence’, cohabitants can seek reliefs if there is domestic violence. Canada has also
enacted the Domestic Violence Intervention Act, 2001. In USA, the violence against woman is a
crime with far-reaching consequences under the Violence Against Women Act, 1994 (now
Violence Against Women Reauthorization Act, 2013).

44. The Interpretation Act, 1984 (Australia) has laid down certain indicators to determine the
meaning of “de facto relationship”, which are as follows:

“13A . De facto relationship and de facto partner, references to (1) A reference in a written law to a de
facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between
2 persons who live together in a marriage-like relationship.

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons,
but are not essential —

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(c) the nature and extent of common residence;

(d) whether there is, or has been, a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support,
between them;

(f) the ownership, use and acquisition of their property (including property they own individually);

170
(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

xxx xxx xxx

xxx xxx xxx”

45. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression
“couple relationship” to mean as follows”:

“18. Meaning of couple relationship

1) xxx xxx xxx

2) In deciding whether a couple relationship exists, a court may have regard to the following –

a) the circumstances of the relationship between the persons, including, for example–

(i) the degree of trust between the persons; and

(ii) the level of each person’s dependence on, and commitment to, the other person;

b) the length of time for which the relationship has existed or did exist;

c) the frequency of contact between the persons;

d) the degree of intimacy between the persons.

3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a
couple relationship exists-

a) Whether the trust, dependence or commitment is or was of the same level;

b) Whether one of the persons is or was financially dependent on the other;

c) Whether the persons jointly own or owned any property;

d) Whether the persons have or had joint bank accounts;

e) Whether the relationship involves or involved a relationship of a sexual nature;

f) Whether the relationship is or was exclusive.

4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of
the factors mentioned in subsection (3).

5) A couple relationship may exist between two persons whether the persons are of the same or a different
gender.

6) A couple relationship does not exist merely because two persons date or dated each other on a number
of occasions.”

171
46. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some
guidelines with regard to the meaning and content of the expression “de facto relationship”, which reads
as follows:

1 “4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a
relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family. (2) In determining whether two
persons are in a de facto relationship, all the circumstances of the relationship are to be taken into
account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support,
between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of
any combination of them, is to be regarded as necessary for the existence of a de facto
relationship, and a court determining whether such a relationship exists is entitled to have regard
to such matters, and to attach such weight to any matter, as may seem appropriate to the court in
the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship
includes a reference to a person who, whether before or after the commencement of this
subsection, was a party to such a relationship.”

47. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550
(1976), Pennington 93 Wash.App. at 917, the Courts in United States took the view that the
relevant factors establishing a meretricious relationship include continuous cohabitation, duration
of the relationship, purpose of the relationship, and the pooling of resources and services for joint
projects. The Courts also ruled that a relationship need not be “long term” to be characterized as
meretricious relationship. While a long term relationship is not a threshold requirement, duration
is a significant factor. Further, the Court also noticed that a short term relationship may be
characterized as a meretricious, but a number of other important factors must be present.

172
48. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious
relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived
and childless. But most people these days cohabit before marriage….. So many couples are cohabiting
with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey
found that 75% of current cohabitants expected to marry, although only a third had firm plans: John
Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of
Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation
than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages
which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and
their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding
themselves ‘as good as married’ anyway: Law Commission, Consultation Paper No 179, Part 2, para
2.45.”

49. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the
following observations:

“Finn J was correct to stress the difference between living together and living together ‘as a couple in a
relationship in the nature of marriage or civil union’. The relationship between two people who live
together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of
marriage or civil union. One consequence of relationships of the former kind becoming commonplace is
that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil
union, at least where the care and upbringing of children are not involved.”

50. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court
considered whether a man and a woman living together ‘as husband and wife on a bona fide
domestic basis’ and Fitzgerald, J. said:

“Each element of a relationship draws its colour and its significance from the other elements, some of
which may point in one direction and some in the other. What must be looked at is the composite picture.
Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or
importance involves a denial of common experience and will almost inevitably be productive of error.
The endless scope for differences in human attitudes and activities means that there will be an almost
infinite variety of combinations of circumstances which may fall for consideration. In any particular case,
it will be a question of fact and degree, a jury question, whether a relationship between two unrelated
persons of the opposite sex meets the statutory test.”

51. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), listed
few characteristics which are relevant to determine relationship in the nature of marriage as
follows:

“(1) Whether and how frequently the parties live in the same house. (2) Whether the parties have a sexual
relationship. (3) Whether the parties give each other emotional support and companionship.

(4) Whether the parties socialize together or attend activities together as a couple.

(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any
relevant children. (6) Whether the parties share household and other domestic tasks. (7) Whether the
173
parties share costs and other financial responsibilities by the pooling of resources or otherwise. (8)
Whether the parties run a common household, even if one or other partner is absent for periods of time.

(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and
are treated by friends, relations and others as if they were a married couple.”

52. Live-in relationship, as such, as already indicated, is a relationship which has not been
socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006
SC 2522] it was observed that a live-in relationship between two consenting adults of
heterosexual sex does not amount to any offence even though it may be perceived as immoral.
However, in order to provide a remedy in Civil Law for protection of women, from being victims
of such relationship, and to prevent the occurrence of domestic violence in the society, first time
in India, the DV Act has been enacted to cover the couple having relationship in the nature of
marriage, persons related by consanguinity, marriages etc. We have few other legislations also
where reliefs have been provided to woman placed in certain vulnerable situations.

53. Section 125 Cr.P.C., of course, provides for maintenance of a destitute wife and Section
498A IPC is related to mental cruelty inflicted on women by her husband and in-laws. Section
304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was
enacted to deal with the cases of dowry demands by the husband and family members. The
Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally
wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers
to the provisions dealing with solemnization of marriage also deals with the provisions for
divorce. For the first time, through, the DV Act, the Parliament has recognized a “relationship in
the nature of marriage” and not a live-in relationship simplicitor.

54. We have already stated, when we examine whether a relationship will fall within the
expression “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV
Act, we should have a close analysis of the entire relationship, in other words, all facets of the
interpersonal relationship need to be taken into account. We cannot isolate individual factors,
because there may be endless scope for differences in human attitudes and activities and a
variety of combinations of circumstances which may fall for consideration. Invariably, it may be
a question of fact and degree, whether a relationship between two unrelated persons of the
opposite sex meets the tests judicially evolved.

55. We may, on the basis of above discussion cull out some guidelines for testing under what
circumstances, a live-in relationship will fall within the expression “relationship in the nature of
marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but
will definitely give some insight to such relationships.

1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any
point of time”, which means a reasonable period of time to maintain and continue a relationship
which may vary from case to case, depending upon the fact situation.

(2) Shared household The expression has been defined under Section 2(s) of the DV Act and,
hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them,
financially, sharing bank accounts, acquiring immovable properties in joint names or in the name

174
of the woman, long term investments in business, shares in separate and joint names, so as to
have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the
home, do the household activities like cleaning, cooking, maintaining or upkeeping the house,
etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for
pleasure, but for emotional and intimate relationship, for procreation of children, so as to give
emotional support, companionship and also material affection, caring etc. (6) Children Having
children is a strong indication of a relationship in the nature of marriage. Parties, therefore,
intend to have a long standing relationship. Sharing the responsibility for bringing up and
supporting them is also a strong indication.

(7) Socialization in Public Holding out to the public and socializing with friends, relations and
others, as if they are husband and wife is a strong circumstance to hold the relationship is in the
nature of marriage.

(8) Intention and conduct of the parties Common intention of parties as to what their relationship
is to be and to involve, and as to their respective roles and responsibilities, primarily determines
the nature of that relationship.

STATUS OF THE APPELLANT

56. Appellant, admittedly, entered into a live-in-relationship with the respondent knowing that he
was married person, with wife and two children, hence, the generic proposition laid down by the
Privy Council in Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR
1927 PC 185, that where a man and a woman are proved to have lived together as husband and
wife, the law presumes that they are living together in consequence of a valid marriage will not
apply and, hence, the relationship between the appellant and the respondent was not a
relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A
concubine cannot maintain a relationship in the nature of marriage because such a relationship
will not have exclusivity and will not be monogamous in character. Reference may also be made
to the judgments of this Court in Badri Prasad v. Director of Consolidation 1978 (3) SCC 527
and Tulsa v. Durghatiya 2008 (4) SCC 520. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231
this Court held that the continuous cohabitation of man and woman as husband and wife may
raise the presumption of marriage, but the presumption which may be drawn from long
cohabition is a rebuttable one and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having
more than one wife or husband at the same time, or a relationship by way of a bigamous
marriage that is marrying someone while already married to another and/or maintaining an
adulterous relationship that is having voluntary sexual intercourse between a married person who
is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.

57. We may note, in the instant case, there is no necessity to rebut the presumption, since the
appellant was aware that the respondent was a married person even before the commencement of
their relationship, hence the status of the appellant is that of a concubine or a mistress, who
cannot enter into relationship in the nature of a marriage. Long standing relationship as a
concubine, though not a relationship in the nature of a marriage, of course, may at times,
deserves protection because that woman might not be financially independent, but we are afraid
175
that DV Act does not take care of such relationships which may perhaps call for an amendment
of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.

58. Velusamy case (supra) stated that instances are many where married person maintain and
support such types of women, either for sexual pleasure or sometimes for emotional support.
Woman, a party to that relationship does suffer social disadvantages and prejudices, and
historically, such a person has been regarded as less worthy than the married woman. Concubine
suffers social ostracism through the denial of status and benefits, who cannot, of course, enter
into a relationship in the nature of marriage.

59. We cannot, however, lose sight of the fact that inequities do exist in such relationships and
on breaking down such relationship, the woman invariably is the sufferer. Law of Constructive
Trust developed as a means of recognizing the contributions, both pecuniary and non-pecuniary,
perhaps comes to their aid in such situations, which may remain as a recourse for such a woman
who find herself unfairly disadvantaged. Unfortunately, there is no express statutory provision to
regulate such types of live-in relationships upon termination or disruption since those
relationships are not in the nature of marriage. We can also come across situations where the
parties entering into live-in-relationship and due to their joint efforts or otherwise acquiring
properties, rearing children, etc. and disputes may also arise when one of the parties dies
intestate.

60. American Jurisprudence, Second Edition, Vol. 24 (2008) speaks of Rights and Remedies of
property accumulated by man and woman living together in illicit relations or under void
marriage, which reads as under:

“Although the courts have recognized the property rights of persons cohabiting without benefit of
marriage, these rights are not based on the equitable distribution provisions of the marriage and divorce
laws because the judicial recognition of mutual property rights between unmarried cohabitants would
violate the policy of the state to strengthen and preserve the integrity of marriage, as demonstrated by its
abolition of common-law marriage.”

61. Such relationship, it may be noted, may endure for a long time and can result pattern of
dependency and vulnerability, and increasing number of such relationships, calls for adequate
and effective protection, especially to the woman and children born out of that live-in-
relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such
relationships are intensively personal and people may express their opinion, for and against. See
S. Khushboo v. Kanniammal and another (2010) 5 SCC 600.

62. Parliament has to ponder over these issues, bring in proper legislation or make a proper
amendment of the Act, so that women and the children, born out of such kinds of relationships
be protected, though those types of relationship might not be a relationship in the nature of a
marriage.

63. We may now consider whether the tests, we have laid down, have been satisfied in the instant
case. We have found that the appellant was not ignorant of the fact that the respondent was a
married person with wife and two children, hence, was party to an adulterous and bigamous
relationship. Admittedly, the relationship between the appellant and respondent was opposed by
the wife of the respondent, so also by the parents of the appellant and her brother and sister and
they knew that they could not have entered into a legal marriage or maintained a relationship in

176
the nature of marriage. Parties never entertained any intention to rear children and on three
occasions the pregnancy was terminated. Having children is a strong circumstance to indicate a
relationship in the nature of marriage. No evidence has been adduced to show that the parties
gave each other mutual support and companionship. No material has been produced to show that
the parties have ever projected or conducted themselves as husband and wife and treated by
friends, relatives and others, as if they are a married couple. On the other hand, it is the specific
case of the appellant that the respondent had never held out to the public that she was his wife.
No evidence of socialization in public has been produced. There is nothing to show that there
was pooling of resources or financial arrangements between them. On the other hand, it is the
specific case of the appellant that the respondent had never opened any joint account or executed
any document in the joint name. Further, it was also submitted that the respondent never
permitted to suffix his name after the name of the appellant. No evidence is forthcoming, in this
case, to show that the respondent had caused any harm or injuries or endangered the health,
safely, life, limb or well- being, or caused any physical or sexual abuse on the appellant, except
that he did not maintain her or continued with the relationship.

ALIENATION OF AFFECTION

64. Appellant had entered into this relationship knowing well that the respondent was a married
person and encouraged bigamous relationship. By entering into such a relationship, the appellant
has committed an intentional tort, i.e. interference in the marital relationship with intentionally
alienating respondent from his family, i.e. his wife and children. If the case set up by the
appellant is accepted, we have to conclude that there has been an attempt on the part of the
appellant to alienate respondent from his family, resulting in loss of marital relationship,
companionship, assistance, loss of consortium etc., so far as the legally wedded wife and
children of the respondent are concerned, who resisted the relationship from the very inception.
Marriage and family are social institutions of vital importance. Alienation of affection, in that
context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra),
which gives a cause of action to the wife and children of the respondent to sue the appellant for
alienating the husband/father from the company of his wife/children, knowing fully well they are
legally wedded wife/children of the respondent..

65. We are, therefore, of the view that the appellant, having been fully aware of the fact that the
respondent was a married person, could not have entered into a live-in relationship in the nature
of marriage. All live-in- relationships are not relationships in the nature of marriage. Appellant’s
and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage”
because it has no inherent or essential characteristic of a marriage, but a relationship other than
“in the nature of marriage” and the appellant’s status is lower than the status of a wife and that
relationship would not fall within the definition of “domestic relationship” under Section 2(f) of
the DV Act. If we hold that the relationship between the appellant and the respondent is a
relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife
and children who opposed that relationship. Consequently, any act, omission or commission or
conduct of the respondent in connection with that type of relationship, would not amount to
“domestic violence” under Section 3 of the DV Act.

66. We have, on facts, found that the appellant’s status was that of a mistress, who is in distress,
a survivor of a live-in relationship which is of serious concern, especially when such persons are
poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal
reality. Children born out of such relationship also suffer most which calls for bringing in
remedial measures by the Parliament, through proper legislation.
177
67. We are conscious of the fact that if any direction is given to the respondent to pay
maintenance or monetary consideration to the appellant, that would be at the cost of the legally
wedded wife and children of the respondent, especially when they had opposed that relationship
and have a cause of action against the appellant for alienating the companionship and affection
of the husband/parent which is an intentional tort.

68. We, therefore, find no reason to interfere with the judgment of the High Court and the appeal
is accordingly dismissed.

………………………….……J.

(K.S. Radhakrishnan) ………………………………J.

(Pinaki Chandra Ghose) New Delhi November 26, 2013.

178
UNIT -III

Andhra High Court

T. Sareetha vs T. Venkata Subbaiah on 1 July, 1983
Equivalent citations: AIR 1983 AP 356
Bench: P Choudary

ORDER

1. This civil revision petition is filed by sareetha, a well- known film actress of the south Indian
screeen agianst an order passed by the learned subordinate Judge , cuddapah ,overruling her
objection raised to the enter taining of an application filed by one venkata subbaiah, under
section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act) for restitution of
conjugal rights with her.

2. Sareetha while studying in a highschool and then hardly aged about sixteen-years and staying
with her parents at Madras was alleged to have been given in marriage to the said venkata
subbaiah, at Tirupathi on 13-12-1975. Almost immediately thereafter they were separated from
each other and have been continuously living apart fromeach othe for these five-years and more.
Venkata subbaish had, therefore, filed under section 9 of the Act O.P. No. 1 of 1981 on the file
of the subcourt, cuddapah for restitution of conjugal rights with sareetha. Sareetha had taken a
preliminary objection to the jurisdiction of the cuddapah sub-court to the entertaining of that
application the contention of sareetha was that the petition filed by venkata subbaiah itself
showed lack of jurisdiction on the part of cuddapah Court to try the petition and that the sub-
court cuddapah ought to have declined jurisdiction. The basis for this objection was an allegation
"that the marriage took place at Tirupathi and that the petitioner and respondent last resided
together at madras". Sareetha relied upon this statement of venkata subbaiah to say that the
cuddapah Court had no jurisdiction to entertain the petition of venkata su bbaiah. It was this
preliminary objection taken by sareetha that had been overruled by the cuddapah sub-court,
leading sareetha to the filing of this civil Revision petition.

3. Venkata subbaiah hails from cuddapah where he owns a house and agricultural lands. Venkata
subbaiah stated in his petition for restitution of conjugal rights that after his marriage with
sareetha at Tirupathi in December 1975, he and sareetha went to cuddapah and lived there
together for six months and that thereafter they went to Madras and stayed at Madras with the
parents of sareetha for some time. According to venkata subbaiah, their stay a cuddapah for six
months was immediately after their marriage at Tirupathi and that was the place where they last
resided together within the meaning of the Act. The subsequent stay at madras according to
venkata subbaiah, should not be regarded as the place where they last resided together. On the
other hand, sareetha contended that as she and venkata subbaiah had on the statement of venkata
subbaiah himself last lived to gether at madras the cuddapah Court would have no jurisdiction to
try the application of venkata subbaiah.

4. By the date of her marriage sareetha was studying in High school and was living with her
parents at Madras. Venkata subbaiah hails from cuddapah. The petition of venkata subbaiah
disclosed that after their marriage at Tirupathi they lived at cuddapah for six months and that
thereafter they went to the parents of sareetha at madras and lived there for some time. There can
be no doubt that Madras was thier last place of living together because thereafter they parted
company with each other. Those were the days when sareetha was attempting to gain access to
179
the south Indian cinefield of which she is today one of the most talented top actresses. According
to venkata subbaiah's allegations, these attempts of sareetha led to misunderstanding between
him and sareetha on the one hand and also between him and the parents of sareetha on the other,
and forced venkata subbaiah to return to cuddapah leaving sareetha at Madras. Thereafter
venkata subbaiah and sareetha never met each other.

5. Now the plea of sareetha objecting tot he jurisdiction of cuddapah Court raised two
questions. Firstly did the parties live at cuddapah immediately after their marriage?
Secondly, If they did the madras residence supersede the cuddapah residence? Sareetha in
her petition did not specifically deny the allegation made by venkata subbaiah that after
marriage they had lived at cuddapah. All that she had stated in her petition was:

"The respondent admitted in para 3 of his petition that the marriage took place at Tirupathi
and the petitioner and respondent last resided together at Madras Hence the main petition
does not lie in this Court for the reason that the cause of action is raising outside the
territorial jurisdiction of this Court. As per section 19 of the Hindu Marriage Act 1955 the
Court at Tirupathi when the marriage took place or at madras where the petitioner and
respondent last resided together alone have jurisdiction to try this petition. Hence the
petition is liable to be dismissed for want of jurisdiction".

The learned subordinate judge construed the above pleadings of sareetha as not
amounting to a specific denial of venkata subbaiah's allegation that the husband and wife
lived at cuddapah for six months immediately after thier marriage at Tirupathi and
before going to Madras. The learned subordinate judge found the pleadings of sareetha to
mean to say that the Madras residence amounted in law to have superseded the cuddapah
residence. The learned subordinate Judge found,as a fact, that the cuddapah residence was
not denied by sareetha. He accordingly examined the second question and found that the
Madras stay was not sufficient to displace the cuddapah residence. In the result he found
that the cuddapah Court had jurisdiction to try the application filed by venkata subbaiah.

6. In this C.R.P. these findings are assailed by sareetha.

7. As already noted, venkata subbaiah had specifically pleaded that they had lived together
at cuddapah immediately after their marriage sareetha failed to specifically deny this
averment made by Venkata subbaiah. I therefore think that the learned subordinate
Judge was right in holding believing venkata subbaiah, that the parties lived at the
house of venkata subbaiah at cuddapah. Even otherwise it would not be easy to believe that
a newly married couple as the parties are alleged to be first went to the parents of the
wife at Madras without going to the husband's place at cuddapah certainly this is not
common among the agricultural communities who are more firmly bound tied to their
place of residence and agriculture. Further the very plea of sareetha that madras was the
place where they last resided together amounts to an admission on her part that there was

At least one another place where they resided together prior to their residing at madras.
That place of residence could only be cuddapah. For all these reasons I hold that venkata
subbaiah and sareetha lived at cuddapah for some time immediately after thier marriage as
alleged by venkata subbaiah.
180
8. But the next question whether cuddapah or Madras should be counted as the place where
the parties had last lived together for the purpose of section 19 of the Act still requires to be
considered and answered. For its answer this question depends upon the meaning to be
given to the statutory provision of section 19 of the Act, we should therefore read section 19
of the Act.

9. Section 19: "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 solemnized 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 presentation of the petition in a case where the
respondent is, at that time, residing outside the territories to which the 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 was alive'.

Of its four clauses of section 19 of the Act, we are concerned in this case, with its clause (iii)
which speaks of a place where the parties to the marriage last reised together the words parties to
the marriage" in that clause present no difficulty and they obviously refer to the wife and
husband. It is the use of the word "resided" that causes a degree of uncertainly in the
ascertainment of the meaning of this clause. The word is not defined by the Act. In its dictionary
sense of the word, "to reside" means, "to dwell permanently or for a length of time". (See
webster's dictionary) temporary place of residence or a casual place of stay is thus excluded from
being called a residence. Further in the third clause of section 19 of the Act, the "residence"
spoken of is the joint residence. Combinedly read, the third clause of section 19 refers to a place
where the husband and wife lived together permanently or at least for sufficinetly long period of
time. Such a place can only be a place of permanent dwelling taken up by the husband and wife
jointly for their matrimonial purposes. That place must be one to which the parties are bound by
the solemn ties of their matrimony. That can only be the place chosen by them jointly as suitable
for fulfilling their matrimonial vous of Dharma, Artha, kama and Moksha. In other words the
third clause of section 19 of the Act refers to the matrimonial home of the parties to the marriage.
10. The secular description given by Ridley J., to the place of residence of a person as 'the
place where he eats, drinks and sleeps indicates the connection of the place to the carrying
on of the activities by the resident. (See stoke-on-Trent Borough council v. Cheshire
country council (1913) 3 KB 699, 704, 705). In a matrimonial matter, Lord Merriman
said (in Lowry v. Lowry (1952) 2 All ER 61).

"..........I suppose the words "last ordinarily resided together as man and wife in England"
could be paraphrased by saying that the matrimonial home at which the parties last
cohabited was in england".

181
 These ordinarily accepted descriptions of the word reside in matrimonial cases would
have the effect of excluding the places where the husband and the wife stayed temporarily
on shor t sojourns pursuing temporary purposes such as seeking pleasure or visiting a
friend or a temple or attending a function from the category of residence. The places
where the wife and husband stop to eat or drink or stay for the night during such short
fojourns could never be taken to have been intended by section 19 (iii) of the Act to be
called "the place they last resided together Such places do not reverberate with the sounds of
marriage destiny. Giving such a meaning to the words "last resided together in section 19
(iii) of the Act would make that clause disfunctional. Stay in Elliot's one-night cheap
hotels could not have been intended by the Act to be treated as the place of last residence
of the husband and wife. In particular in the case of those who have a place of permanent
dwelling a matrimonial home can only refer to their permanent dwelling place. But where
the parties to a marriage have no permanent place of dwelling to start with and move from
place to place like the wandering Gypsies, it would legally be difficult to choose one place
more than another place as their place of permanent residence In such a case acting out of
necessity created by the statute we may have to ascribe even to a temporary place of stay
the exalted status of the last place of residence. In such a case, we may have to call a stay
even in a one-night cheap hotel as the last place of thier residence, because there are no
competing claims made by other place. More depends on the particular facts of each case and
less on the meaning of the words. Fixation of the place where the parties last resided together
thus requires the courts to take an over-all view of the particular facts in a particular case.
But venkata subbaiah had a permanent house at cuddapah where he eats, drinks and sleeps
carrying on his agricultural operations presumably his ancestors lived there and worked
there with the mother-earth ther he forged sacred bonds of intimacy. It is that place to which
venkata subbaiah and sareetha went immediately after their marriage at Tirupathi and lived
for six months that was the place chosen by them for fulfilling their matrimonial vows.
They thus made cuddapah their matrimonial home. Thus, within the meaning of clause
(iii) of section 19 of the Act, it is cuddapah alone that can be called thier matrimonial
home and their place of residence in this case. Such a residence cannot be displaced by their
Madras residence. The nature and duration of their stay at madras was temporary and
casual and had no enduring claims to make that place a place of residence. There they were
visiting the father and mother of sareetha but without breaking their bonds of association
with cuddapah. Such a temporary or casual residence at madras occasioned by the
customary necessity of visiting relatives, cannot displace the place of their permanent
dwelling at cuddapah. It follows that resided together at cuddapah and cuddapah Court has
jurisdiction to entertain the application filed by venkata subbaiah for restitution of conjugal
rights under section 19 (iii) of the Act.

11. The petitioner's learned counsel cited several decisions of the various High Court and
also of the Supreme Court. It does not appear to me to be necessary to refer to htese cases in
detail, because I find that in those cases the Judgments merely turned upon the facts of
each case. The answer to a question where the wife and husband last resided together
must, in the nature of things, depend upon on the particular facts of each case.

The question therefore whether the wife and husband last resided together in a particular place,
can only be decided on the particular evaluation of these changing and differing factors and not
by folllowing any mechanical rule of thumb. The various decisions cited by the learned counsel

182
cannot, therefore be taken as alying down any proposition of law. They can only be taken at best
as laying down propositions of good sense.
In several cases scrutton L.J. said that"if a person rides in the dark he must ride at such a pace
that he can pull up within the limits of "his vision" (Baker v. E. Longhurst & sons ltd. (1933) 2
KB 461, 468. That was treated as aproposition of law until the Court of appeal firmly ruled that it
was not (Tidy v. Battman (1934) 1 KB 319). Morris v. Luton corporation - (1946) KB 114). So
also with accidents in factories. I myself once said that an employer must, by his foreman, "do
his best to "keep (the men) up to the mark" (Clifford v. Charies H. Challen & son Ltd) (1951) 1
KB 495 Someone shortly afterwards sought to treat me as having laid down a new proposition of
law, but the Court of Appeal I am glad to say, corrected the error (Woods v. Durable suites Ltd.
(1953) 1 WLR 857). Such cases all serve to bear out the warning which has been given in this
House before ......"We sought "to beware of allowing tests or guides which have been suggested"
by the Court in one set of circumstances, or in one class of "cases, to be applied to other
surroundings " and thus by degrees to turn that which is at bottom a question of fact into a
proposition of law that is what happened in the cases under the workmen's compensation Act,
and it led to a wagon load of "cases", See harris v. Associated portland cement Manufacturers
LTd. (1939) AC 71 by Lord Atkin. Let not the same thing happen to the common law, lest we be
crushed under the weight of our own reports".

The question which is the place where the husband and wife last resided together is, in
my opinion not being capable of being treated as a question of law, I consider the matter
from an overall view of the facts.

16. In this case, the finding of fact is that the parties had lived for six months at cuddapah
immediately after their marriage at Tirupathi. The place of the permanent residence of
venkata subbaiah is cuddapah, Venkata subbaiah has agricultural lands there. Presumably
he conducts agricultural operations from there which would require his constant presence
and attention Unless sareetha suceeds in showing that she never lived with venkata subbaiah at
cuddapah, the claim of cuddapah to be the place of last residence in this case, cannot be rejected.
It is true that sareetha say that she never lived with venkata subbaiah at cuddapah, but this
point was never made good by her. She never argued this point before the Court below
nor is that plea proved to its satisfaction. The question whether she lived with venkata
subbaiah at cuddapah or not is a pure question of fact. The finding of the lower Court on
such a question of fact cannot be distribed by a revisional Court. I am thus left with no
option except to accept that finding Accepting the finding of the ocurt below that sareetha
and venkata subbaiah lived together at cuddapah for about a period of six months after their
marriage at Tirupathi I hold that cuddapah was the place where the parties had last resided
together and the Madras residence is ineffectual to displace that cuddapah residence and
that accordingly the Court of the subordinate Judge. Cuddapah, has jurisdiction to try the
petition filed by venkata subbaiah for restitution of conjugal rights.

PART II.

17. Sareetha in her petition raised for the first time a question of constitutional validity of
section 9 of the Hindu Marriage Act. Through that petition, sareetha claimed that section 9
of the Act, "is liable to be struck down as violative of the fundamental rights in part III of the
Constitution of India, more particularly articles 14, 19 and 21 inasmuch as the statutory relief
under the said provision, namely restitution of conjugal rights offends the guarantee to life,
personal liberty and human dignity and decency'.

183
Section 9: Restitution of conjugal rights:

"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 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.

Explanation: Where a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society".

Order 21 Rule 32 of C.P.c. Decree for specific performance for restitution of conjugal
rights,or for an injunction:

"(1) where the party against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree may be enforced (in the case of a
decree for restitution of conjugal rights by the attachment of his property, or in the case of a
decree for the specific perofrmance of a contract, or for an injunction) by his detention in the
civil prison, or by the attachment of his property, or by both. (2)...................................................
(3) Where any attachment under subrule (1) or sub-rule (2) has remained in force for (six
Months) if the Judgment-debtor has not obeyed the decree and the decree-holder has applied to
have the attached property sold, such property may be sold; and out of proceeds the Court may
award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any)
to the judgment-debtor on his application.

(4) Where the Judgment-debtor has obeyed the decree, and paid all costs of executing the same
which he is bound to pay, or where, at the end of (six months) from the date of the attachment on
application to have the property sold has been made or if made has been refused, the attachment
shall cease.

Rule 33. Discretion of ocurt in executing decrees for restitution of conjugal rights:

(1) Notwithstanding anything in R. 32, the Court either at the time of passing a decree (against a
husband) for the restitution of conjugal rights or at any time afterwards may order that the decree
(shall be executed in the manner provided in this rule).

(2) Where the Court has made an order under sub-rule (1), it may order that in the event of
the decree not being obeyed within such period as may be fixed in this behalf, the
judgment-debtor shall make to the decree-holder such periodical payment as may be just and
if it thinks fit, require that the judgment -debtor shall, to its satisfaction secure to the
decree-holder such periodical payment.

(3) The Court may from time to time vary or modify any order made under sub-rule (2) for
the periodical payment of money, either by altering the times of payment or by increasing
or diminishing the amount, or may temporarily suspend the same as to the whole or any

184
part of the money so ordered to be paid and again revive the same, either wholly or in part as
it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were
payable under a decree for the payment of money".

A combined residing of the above substantive and procedural provisions relating to the
grant of relief of destitution of conjugal rights by Court makes it clear that the decree for
restitution of conjugal rights contemplated to the granted under section 9 of the Act is
intended by hte statutory law to be enforced in species under O. 21 Rr. 32 and 33 by
applying financial sanctions against the disobeying party. Additionally always a Court can
enforce its decree through its contempt powers.

The Judicial committee of the privy council in Moonshed Buzloo Rhueem v. Shumsoon
Nissa Begum, (1867) 11 Moo Ind App 551, held that a suit for restitution of conjugal rights
filed by a Muslim husband was rightly filed as a suit for specific persormance it is on the
same lines that order 21 Rule 32 of the code of civil procedure speaks of a decree granted
for restriction of conjugal rights as a decree of specific performance of restitution of
conjugal rights.

Conjugal rights connote two ideas. (A) "the right which husband and wife have to
each other's society and (b) "marital intercourse". (See the dictionary of English Law by
Earl Jowitt P. 453) In Wily v. Wily (1918) P. 1 "an offer by the husband to live under
the same proof with his wife, each party being free from molestation by the other was
held not an offer to matrimonial cohabitation". (See N. R. Raghavachariar's Hindu Law, 7th
Edn. Vol II p. 980. Gupt's Hindu Law of Marriage P. 181 and derrett's Introduction to
Modern Hindu Law para 308).

In other words, sexual cohabitation is an inseparable ingredient of a decree for restitution of

conjugal rights. It follows, therefore that a decree for restitution of conjugal rights passed
by a civil Court extends not only to the grant of relief to the decree holder to the company
of the other spouse, but also embraces the right to have marital intercourse of the
enforcement of such a decree are firstly to transfer the choice to have or not to have marital
intercourse to the state from the concerned individual and secondly to surrender the choice
of the individual to allow or not to allow one's body to be used as a vehicle for another
human being's creation to the state. Relief of restitution of conjugal rights fraught with
such serious consequences to the concerned, individual were granted under section 9 of the
Act enables the decreeholder through application of financial sanctions provided by order
21 Rules 32 and 33 of C.P.C. to have sexual cohabitation with an unwilling party even
by imprisonment in a civil prison. Now compliance of the unwilling party to such a decree
is sought to be procured, by applying financial sanctions by attachment and sale of the
property of the recalcitrant party. But the purpose of a decree for restitution of conjugal
rights in the past as it is in the present remains the saem which is to coerce through judicial
process the unwilling party to have sex against that person's consent and freewill with the
decree-holder. There can be no doubt that a decree of restitution of conjugal rights thus
enforced offends the inviolability of the body and the mind subjected to hte decree and
offends the integrity of such a person and invades the marital privacy and domestic
intimacies of such a person The uninhibited tragedy involved in granting a decree for
restitution of conjugal rights is well illustrated by Anna saheb v. Tara Bai . In that case,
185
Division Bench of the madhya pradesh High Court decreed the husband's suit for restitution
of conjugal rights observing ":but if the husband is not guilty of misconduct, a petition cannot
be dismissed merely because the wife does not like her husband or does not want to live
with him............." What could have happened to Tarabai thereafter may well be left to the
eader's imagination . According to law, anna saheb against her will.

18. Sexual expression is so integral to one's personality that it is impossible to conceive of

sexuality on any basis except on the basis of consensual participation of the opposite
sexes. No relationship between man and woman is more rested on mutual consent and
freewill and is more intimately and personally forged than sexual relationship.

The famous legal definition of marriage given by Lord penzance in Hyde v. Hyde (1866)
LR IP & D 130 (Divorce Court), as a voluntary union between man and woman only
highlights this aspect of free association.

Bertrand Russell who ought to know declared that:

"I have sought love, first because it brings ecstasy-ecstasy so great that I would often have
sacrificied all the rest of life for a few hours of this Joy'.

Forced sex, like all forced things is a denial of all joy yet in conceivable cases sex and
statutorily be denied . Sex Act therefore, can never be treated as a mere Act of body that can
be ordered to obey by the state. The coercive Act of the state compelling sexual
cohabitation therefore, must be regarded as a great constraint and torture imposed on the
mind of the unwilling party.

In Russel v. Russel (1897) AC 395 Lord herschell long-ago noted the barbarity of this
judicial remedy. He observed, I think the law of restitution of conjugal rights as
administered in the courts did sometimes lead to results which I can only call bardarous".

British Law commission presided over by Mr. Justice scarman, (as he then was) recommended
recently on-1969 the abolition of this uncivilized remedy of restitution of conjugal rights

the British parliament through section 20 of the Matrimonial proceedings and property Act, 1970
abolished the right to claim restitution of conjugal rights in the English courts.

Section 20 of that Act reads thus:

"No person shall after the commencement of this Act be entitled to petition the High Court or
any country Court for restitution of conjugal rights".

But our ancient Hindu system of Matrimonial law never recognised this institution of conjugal
rights althought it fully upheld the duty of the wife to surrender to her husband. In other words,
the ancient Hindu law treated the duty of the Hindu wife to abide by her husband only as an
imperfectobligation incapable of being enforced against her will . It left the choice entirely to the
free will of the wife.

186
 In Bai Jiva v. Narsingh Lalbhai (ILR 1927 Bom 264 at p. 268) a division Bench of the Bombay
High Court judicially noticed this fact in the following words:

"Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to
her husband, has laid down no such sanction or procedure as compulsion by the courts to force
her to return against her will".

21. This could have been only because of its realisation that in a matter so intimately concerned
the wife or the husband the parties are better left alone without state interference. What could
happen to the fate of a person in the position of Tara Bai (the respondent in the abovementioned
madhya pradesh Appeal) who was forced to go back to her husband even after declaration of
dislike and abhorrence towards her husband could have been well considered by the ancient
Hindu Law. With the Brithish occupation of this country the whole legal position was drastically
altered. The British indian courts wrongly equating the Ecclesiastical rule of this matrimonial
remedy with equity good conscience and justice, thoughtlessly imported that rule into our
country and blindly enforced it among the Hindus and the Muslims. Thus, the origin of this
uncivilised remedy in our ancient country is only recent and is wholly illegitimate. Section 9 of
the Act had merely aped the british and mechanically reenacted that legal provision of the British
Ecclesiastical origin. The plain question that arises is whether our parliament now functioning
under the constitutional constraints of the fundamental rights conceived and enacted for the
preservations of human dignity and promotion of personal liberty, can legally impose sexual
cohabitation between unwilling opposite sexual partners even if it be during the matrimony of
the parties.

22. The Hindu marriage Act was enacted by our parliament in the year 1955 and the legislative
competence of the parliament to enact section 9 of the Act under item 5 of the List III of the VII
schedule to the Constitution is undoubted. But the question is whether that provision runs foul of
part III of the Constitution. The petitioner attacks section 9 of the Act on the ground that granting
of restitution of conjugal rights violates the petitioner's rights guaranteed under articles 14, 19
and 21 of part III of our constitioner .

Let us, therefore, first examine the content of Article 21 of the Constitution guarantees right to
life and personal liberty against the state action. Formulated in simple negative terms, its range
of operation positively any person of his life or personal liberty except according to the
procedure established by law is of far reaching dimensions and of overwhelming constitutional
significance.

Article 21 prevents the state from treting the human life as that of any other animal. It is now
well established by the decisions of the Supreme Court that the word 'life' occuring in the above
Article 21 has spiritual significance as the word life occuring in the famous 5th and 14th
Amendments to the American Constitution does

In those constitutional provisions of the American Constitution the life is interpreted by Mr.
Justice field in this dissenting judgment in Munn v. Illinois, (1877) 24 L Ed p. 17 to mean and
signify "more than a person's right to lead animal or vegetative existence.

Field J., said in the above munn's case "by the term life as here used something more is meant
than mere animal existence".

187
 The contrast drawn by field J., emphasising the difference between existence of a free willing
human and that of an unfree animal was accepted by our Supreme Court first in kharak singh v.
State of U.P. and next in Govind v. State of M.P. transforming Article 21 of our Constitution into
a charter for civilization

In Kharak singh v. State of U.P. (supra) Rajagopala Ayyangar J., for the majority and subba
Rao, J., for the concurring miniority accepted the above meaning and significance given to the
word 'life' by observing that the expression life' used in that Article cannot be confined only to
the taking away of life, that is causing death." Subbarao J., in the same case gave greater
importance to the words "personal liberty", occuring in Article 21 of the Constitution. But both
held that Art. 21 of our Constitution to be the source for the protection of our personal liberty
and life in the elevated sense. Subbarao J., perceptively observed that right to privacy forms a
part of the guaranteed right of personal liberty in Art. 21 of the constitution. In a scientific age,
psychological fears and restraints generated by the use of scientific methods, he feared, may
constitute even greater denial of personal liberty then mere crude physical restrainsts of a bygone
age.

23. In a later decision of the Supreme Court in Govind v. State of M.P. , (supra) Mathew J.,
taking the lead given by the minority Judgment of subbarao j.,in the abovementioned Kharak
singh's case and adverting to the american legal and philosophical literature on right to privacy
and to the american cases reported in Griswold v. Connecticut, (1965) 14 L Ed 2 d 510 and Jane
Roe v. Henry wade, (1973) 35 L Ed 2d p. 147 ruled that Article 21 of our Constitution embraces
the right to privacy and human dignity. The centrepiece of the judgment in Govind's case is to
hold that right to privacy is part of art. 21 of our Constitution and to stress its constitutional
importance and to call for its protection. The learned Judge then examined the content of the
right to privacy and observed that "any right to privacy must encompass and protect the personal
intimacies of the home, the family, marriage motherhood, procreation and child rearing." The
learned Judge stressed the primordial importance of the right to privacy for human happiness and
directed the ocurts not to reject the privacy-dignity claims brought before them except where the
countervailing state interests are shown to have overweighing importance. He observed that
"there can be no doubt that the makers of our Constitution wanted to ensure conditions
favourable to the pursuit of happiness. They certainly realised as Brandies J., said in his dissent
in Olmstead v. United states of America, (1927-277 US 438, 471) the significance of man's
spiritual nature of his feelings and of hisintellect and that only a part of the pain, pleasure
satisfaction of life can be found in material things and therefore they must be deemed to have
conferred upon the individual as against the Government a sphere where he should be left alone".
The learned Judge also stated "there can be no doubt that privacy-dignity claims deserve to be
examined with care and to be denied only when an important countervailing interest is shown to
be superior". Govind's case (Supra) thus firmly laid it down that Article 21 protects the right to
privacy and promotes the individual dignity mentioned in the preamble to our Constitution .
Govind's case also lays it down that the ocurts should protect and up-hold those important
constitutional rights except where the claims of those rights for protection are required to be
subordinated to superior state interests.

24. However it must be admitted that the concept of right to privacy does not lend itself to easy
logical definition This is so partly because as Tom Gaiety said in his Article "Redefining
privacy" (12 Harv civ Rts. - Civ. Lib rev p. 233,) the concept was thrown up in great haste from
a miscellany of legal rock and staone and partly because of the inherent difficulties in defining
such an elusive concept. The difficulty arises out of the fact that this concept is not unitary
concept but is multidimensional susceptiable more for enumeration than definition. But it can be
188
confidently asserted that any plausible definition of right to privacy is boudn to take human body
as its first and most basic reference for control over personal identity. Such a definition is bound
to include body's inviolability and integrity and intimacy of personal identity including marital
privacy A few representative samples would bear this out. Gaiety defined privacy as "an
autonomy or control over the intimacies of personal identity." Richard B. Panker in his " A
definition of privacy", quoted in "philosophy and public Affairs" (1975 Vol 4 No. 4 p. 295-314
wrote:

"...............Privacy is control over when and by whom the various parts of us can be sensed by
tohers. By "sensed" is meant simply seen, heard touched smelled or tasted

"Of all decisions a person makes about his or her body the most profound and intimate
relates to two sets of questions first, whether when and how one's body is to become the
vehicle for another human beings cration".

25.Applying these definitional aids to our discussion it cannot but be admitted that a decree
for restitution of conjugal rights constitutes the grossest from of violation of an individual's
right to privacy applying Prof. Tribe's definition of right to privacy, it must be said that the
decree for restitution of conjugal rights denies the woman her free choice whether when
and how her body is to become the vehicle for the procreation of another human being
applying parker's defintion, it must be said that a decree for restitution of conjugal rights
deprives a woman of control over her choice as to when and by whom the various parts of
her body should be allowed to be sensed. Applying the tests of gaiety and Bostwick, it must
be said, that the woman loses her control over her most intimate decisions clearly, therefore,
the right to privacy guaranteed by Art. 21 of our Constitution is flagrantly violated by a
decree of restitution of conjugal rights.

26. A few decided American cases have also taken the same view of the constitutional right
to privacy in that country.

27. The observations of Justice Mc reynolds in Meyer v. Nebraska, (1923) 67 L Ed 1042

highlight certain facets of this right to privacy. There the learned Judge observed:

"Without doubt, it denotes not merely freedom from bodily restraint but also the right
of any individual to contract, to engage in any of the common occupations of life, to acquire
useful knowledge to marry establish a home and bring up children to worship God
according to the dictates of his own conscience, and generally to enjoy those privileges long
recognised at common law as essential to the orderly pursuit of happiness by free
men............. .............. .............. The established doctrine is that this liberty may not be
interfered with under the guise of protecting the public interest, by legislative action
which is arbitrary or without reasonable relation to some purpose within the competency of
the state to effect".

In Griswold v. Connecticut, (1965) 14 L Ed 2d 510 Mr. Justice Douglas, while

invalidating a connecticut statute which made the use of contraceptives a criminal offence,
wrote for the Court that "this law, however operates directly on an intimate relation of
husband and wife and their physician's role in one aspect ot that relation......", implying that
the right to privacy encompasses within itself intimate relationships such as those
189
between husband and wife about the use of contraceptives. Of course, the question from
where this right to privacy should be derived gave rise to different answers in that case.
Mr. Justice Douglas in Griswold v. Connecticut, (1965-14 L ed 2d 510) has found
penumbral areas of specific guarantees in the bill of Rights as providing the basis for the
right of privacy . But Mr. Justice Goldberg wrote, in that case highlighting in the process
the theoretical confusions in the stitution that the right of marital privacy falls within the
category right to privacy Griswold's case is in authority for the proposition that the
reproductive choice to beget and bear a child does not belong to the state and that belongs
to an individual. In jane Roe. V. Henry wade, (1973) 35 L Ed 2d 147 Mr. Justice
Blackmun for hte Court observed that the earlier decisions of the american Supreme Court
held that only personal rights that can be deemed fundamental" or implicit in the concept
of ordered liberty"......... are included in this guarantee of personal privacy they also make
it clear that the right has some extension to activities relating to marriage.........procreation,
contraception, family relationships, and child rearing and education........."

"Yet the marital couple is not an independent entity with a mind and heart of its own
but an association of two inviduduals each with a separate intellectual and emotional make
up. If the right of privacy means anything, it is the right of the INDIVIDUAL , married
or single, to be free from unwanted Government intructing a person as the decision
whether to bear or beget a child".

This is a clear recognition of the legal position that right to privacy belongs to a person
as an individual and is not lost by marital association. In planned parenthood of Missouri
v. Danforth, (1976-49 L ed 2d 788) the Court reiterated the position taken by the
American Supreme Court in Eisenstadt v. Barid (1972) 405 US 438) (supra) that the right
to privacy belongs to each one of the married couple separately and is not lost by reason of
their marriage. The Court observed, invalidating a statutory condition, that the husband's
consent is necessary for termination of pregnancy, "We cannot hold that the state has
constitutional authority to give a spouse unilaterally the ability to prohibit a wife from
terminating her pregnancy'. The Court further observed that "Inasmuch as it is the woman
who physically bears the child and who is the more directly and immediately affected by
the pregnancy, as between the two, the balance weight in her favour". Earlier in skinner v.
Oklahoma, (1941-86 L Ed 1655) the American Supreme Court characterised the right to
reproduce as one of the basic civil rights of man. In the same case Justice Jakson spoke of
the state interference with reproductive decisions as involving dignity and personality. See
aslo the decisions in Loving v. Virginia, (1967-18 L Ed 2d 1010) and Zablocki v. Redhall,
(1978) 54 L ed 2d 618).

28. The above cases of the American Supreme Court clearly establish the proposition that the
reproductive choice is fundamental to an individual's right to privacy. They uphold the
individual's reproductive autonomy against the state intrusion and forbid the state from
usurping that right without overwhelming social justification. That this right belongs even
to a married woman is clear from justice Brennan's opinion quoted above. A wife who is
keeping away from her husband, because of permanent or even temporary estrangement
cannot be forced, without violating her right to privacy to bear a child by her husband.
During a time when she is probably contemplating an action for divorce, the use and
enforcement of section 9 of the Act against the estranged wife can irretrievably alter her
position by bringing about forcible conception permanently ruining her mind body and
life and everything connected with it. During a moment's duration the entire life-style
190
would be altered and would even be destroyed without her consent. If that situation made
possible by this matrimonial remedy is not to be a violation of individual dignity and right
to privacy guaranteed by our Constitution and more particularly Art 21, it is not conceivable
what else could be a violation of Article 21 of our Constitution.

29. Examining the validity of S. 9 of the Act in the light of the above discussion, it should be
held, that a Court decree enforcing restitution of conjugal right constitutes the starkest form
of Government invasion of personal identity and individual's zone of intimate decisions.
The victim is stripped of its control over the various parts of its body subjected to the
humiliating sexual molestation accompanied by a forcible loss of the precious right to decide
when if at all her body should be allowed to be used to give birth to another human being.
Clearly the victim loses its autonomy of control over intimacies of personal identity. Above
all, the decree for restitution of conjugal rights makes the unwilling victim's body a soulless
and a joyless vehicle for bringing into existence another human being. In other words,
pregnancy would be foisted on her by the state and against her will. There can therefore be
little doubt that such a law violates the right to privacy and human dignity guaranteed by
and contained in Article 21 of our Constitution. It is of constitutional significance to note
that the ancient Hindu society and its culture never approved such a forcible marital
intercourse. Our ancient law-givers refused to recognize any state interests in forcing
unwilling sexual cohabitationbetween the husband and wife although they held the duty of
the wife to surrender to the husband almost absolute. Recently the British law commission
headed by Mr. Justice scarman also found no superior state interests implicated in retaining
this remedy on the British statute Book. It is wholly with out any social purpose. State
coercion of this nature can neither prolong nor preserve the voluntary union of husband and
wife in matrimony. Neither state coercion cna soften the ruffled fellings nor clear the
misunderstandings between the parties. Force can only bebet force as action can only
produce counter-actions the only usefulness in obtaining a decree for restitution of conjugal
rights consists in providing evidence for subsequent action for divorce. But this
usefulness of the remedy which can be obtained only at enormous expense to human dignity
cannot be counted as outweighing the interests in upholding the right to privacy It is only
after considering the various factors that hte scarman commission recommended for the
abolition of this matrimonial remedy in england and the British parliament enacted a
law abolishing it. It is therefore legitimate to conclude that there are no overwhelming state
interests that would justify the sacrificing of the individual's precious constitutional right to
privacy.

30. Duncan Derrett in his "modern Hindu Law" para 306 however, while approving the
abolition of this remedy in England advocated for somewhat strange reasons the
continuance of this remedy in India. He wrote that"............... The practical utility of the
remedy is little in contemporary England". He however says, that:

"In India, where spouses separate at times due to misunderstandings, failure of mutual
communication, or the intrigues of relatives, the remedy of restitution is still of of
considerable value especially when coupled with the right under section 491 of hte criminal
procedure code to recover (under certain circumstances0 custody of a minor bride, and in
the light of the rule that where restitution has been ordered a decree for separate maintenance
cannot without proof of new facts, issue in favour of the respondent".

With respect I am unable to agree with this recommendation Firstly Derrett did not
examine the matter from the constitutional point of view of right to privacy guaranteed by
191
Art. 21 of the Constitution. Restitution of conjugal rights is an instance of punishing a
criminal without a victim. Secondly his remedy of restitution of conjugal rights is not
only execussive but is also inappropriate. As Telugu proverb says, it is like setting fire
to a house to burn it so is not the appropriate way to bring about reconciliation between the
estranged wife and husband . the observations of Justice Blackmun in the above planned
parenthood's case, (1976-49 L Ed 2d 788) are worthy of note in this connection. He
observed:

"But it is difficult to believe that the goal of fostering mutuality and trust in a
marriage and of strengthening the marital relationship and the marriage institution, will be
acheived by giving the husband a veto power exercisable for any reason whatsoever or for
no reason at all. Even if the state had the ability to delegate to the husband a power it itself
could not exercise, it is not at all likely could not exercise, it is not at all likely that such
action would further as the district Court majority phrased it the interest of the state in
protecting the mutuality of decisions vital to the marriage reltionship.

I therfore hold that there are no overwhelming state interests to justify the subordination
of the valuable right to privacy to any state interests.

31. On the basis of my findings that section 9 of the Hindu Marriage Act providing for the
remedy of restitution of conjugal rights violates the right to privacy guaranteed by art.
21 of the Constitution, I wil have to hold that section 9 of the Hindu Marriage Act is
constitutionally void. Any statutory provision that abridges any of the rights guaranteed by
part III of the contitution will have to be declared void in terms of Article 13 of the
Constitution. But the earlier decisions of the Supreme Court, particularly the earliest in
Gopalan's case , had narrowly interpreted the language of Article 21 of the Constitution as
merely requiring a statutory procedure to be provided or established . if the validity of
section 9 of the Act were to be considered on that basis, I would have been left no option
except to uphold its validity.

32. The protection to life and personal liberty contained in Art. 21 of our Constitution is
confined by Gopalan's interpretation only to the executive action taken without the
backing of a supporting statutory law providing for procedure. In other words the
efficacy of that Article as a fundamental right is almost denuded becaus e taking of life
or personal liberty according to the procedure established by a legislative enactment is
rendered by that interpretation constitutionally unobjection-able under that Article. Thus
interpreted, Article 21 offers no protection against legislative action. The cook of Bishop of
Rochester could still be boiled to death, because the parliament ordained that Given that
meaning, Article 21 would have been left with no constitutional mission to subserve,
because a constitutional limitation imposed in the form of a fundamental is needed not
against the arbitrary exercise of legislative power. Under our system of jurisprudence,
where the executive would be ineffective to deprive any person of his life or personal
liberty except under the authority of legislative sanction even in the absence of a
fundamental right. A fundamental right which mainly operates against an executive action
would be purposeless. Yet this is clearly the interpretation of Art. 21 that commended itself
to Gopalan's case . Added to that is the rule laid down by Gopalan's case to the effect
that each fundamental right in Part III of the Constitution is a constitutional island to itself.
192
According to this interpretation, the state action, in order to be valid, need not pass the test
of cumulative prohibition contained in the relevant fundamental rights.

33. In both these aspects the rule in Gopalan's case was found to be unsatisfactory almost
from its inception. These rules are therefore considerably modified by the later decisions
of hte Supreme Court in such as those rendered in the Banks Nationalisation case, and
maneka Gandhi's case, . In sunil Batra v. Delhi Administration, while dealing with the
question as to whether a person awaiting death sentence can be kept in solitary confinement,
Krishna Iyer J., said:

"That though our Constitution did not have a "due process" clause as in the American
Constitution, the same consequence ensued after the decisions in the Bank nationalisation
case and Maneka Gandhi case. For what is punitively outrageous, Scandalizingly unusual
or cruel and rehabilitatively counter-productive is unarguably unsual or cruel and
rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot
down by articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21."

In the same case Desai J., observed that:

The word 'law in the expression procedure established by law' in Article 21 has been
interpreted to mean in maneka Gandhi's case that the law must be right just and fair and
not arbitrary fanciful or oppressive otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. If it is arbitrary, it would be violative
of Article 14".

The above quotations are taken from Mithu v. State of Punjab which referred to those
observations with approval.

34. In Mithu v. State of Punjab (supra) the Supreme Court went even farthest where it
struck down S. 303 I.P.c. on the ground that that section violated not only Article 14 but
even Article 21. The Supreme Court while approvingly referring to the above quotations
observed in Mithu's case that:

"These decisions have expanded the scope of Article 21 in a significant way and it is now
too late in the day to contend that it is for the legislature to prescribe the procedure and
for the legislature to provide the punishment and for the courts to impose it".

Explaining the scope of expansion which Article 21 has undergone by reason of Bank
Nationalisation case and Maneka Gandhis case the Supreme Court in Mithu's case
declared:

"If a law were to provide that the offence of theft will be punishable with the penalty of the
cutting of hands, the law will be bad as violating Article 21. A savage sentence is
anathema tothe civilized jurisprudence of Article 21".

In Mithu's case the Supreme Court implied that imposition of death sentence even under
section 302 I.P. C. Would have been held in Bachan singh's case invalid and ultra vires of
the protection guaranteed by Article 21 if the parliament had not provided for alternative
sentences of life imprisonment and death sentence but provided for only a mandatory death
193
sentence. A mandatory death sentence would then have been shot down by the civilized
jurisprudence of Article 21. Now savagery of a death sentence is more an attribute of
substantive law. In Mithu's case , Chinnappa Reddi, J., ascribed the whole of his
concurrence to Article 21. The reasoning of our Supreme Court in Mithu's case comes very
close to the reasoning adopted by the American Supreme Court in cases like Lambert v.
California (1957)2 L Ed 2d 228 decided, upon the basis of substantive due process clause.
In Lambert v. California (supra) the American Supreme Court invalidating a state criminal
law held that:

"Where a person did not knwo of the duly to register and where there was no proof of the
probability of such knowledge, he may not be convicted consistently with due process".

After Mithu's case, it is not easy to assert that Article 21 is confined any longer to
procedural protection only. Procedure and substance of law now comingle and overlap each
other, to such a degree rendering that a finding of any law that can competently establish a
valid procedure for the enforcement of a savage punishment impossible.

35. In a imperfect word where the clash of competing interests is the only certainly
where issues are therefore inherently complex, where judges are falliable, and where man-
made institutions have limits solutions to problems will inevitably be less than optimum
(see- preface to chase and Ducat's "constitutional Interpretation" (second edition). In its
search to recognize the true boundaries between the individual and the community
constitutional theory should therefore be open- ended without its categories being
permanently closed. (See paul A. Freund "on Law and Justice" page 163).

"Each new claim to constitutional protection must be cnsidered against a background of

constitutional purposes, as they have been rationally perceived and historically developed.
Though we exercise limited and sharply restrained Judgment yet thereis no "mechanical
Yardstick", to mechanical answer". The decision of an apparently novel claim must
depend on grounds which follow closely on well-accepted principles and criteria. The
new decision must take its place in relation to what went before and further (cut) a channel
for (1953) 347 US 128, 147 98 L. Ed 561 578 74 S ct 381 9dissenting opinion) the
matter was well put in Rochin v. California, (1951) 342 US 165, 170 171 96 L. Ed 183,
188, 189:72 s. Ct205 :25 ALR 2d 1396".

(Justice Harlan, in, poe v. Ullman, (1916) 6 Led 2d p. 989 at 1020).

The constitutional doctrine of privacy is not only life giving but also is lifesaving. It gives
spiritual meaning to life which sankara described as emanation of Brahman and saves such a
life from "inhuman and degrading treatment" of forcible sexual cohabitation. (Art 5 of the
Universal Declaration of Human Rights) (see also the Right to be let alone by K.K.
Mathew, ( Journal section) and also "torture and the right to human Dignity" by paras
diwan , (1981) 4 SCC p. 31 (journal section). Nothing much that is reasonable in my
opinion can be urged in support of this barbarous remedy that forces sex at least upon
one of the unwilling parties.

36. Following the reasonaing adopted in the above mithu's case, section 9 of the Hindu
marriage Act, should be declared as unconstitutional for the reason that the remedy of
restitution of conjugal rights provided for by that section is a savage and barbarous remedy,

194
violating the right to privacy and human dignity guaranteed by Article 21 of our
Constitution.

37. The constitutional validity of section 9 of hte Act when examined on the touch-stone of
equal protection of laws also leads to a conclusion of its invldity. This is so because of two
reasons. Firstly, section 9 of the Act does not satisfy the traditional classification test.
Secondly it fails to pass the test of minimum rationality required of any state Law.

38. Of course section 9 of the Act does not in form offend the classification test. It
makes no discrimination between a husband and wife. On the other hand, by making the
remedy of restitution of conjugal rights equally available both to wife and husband, it
apparently satisfies the equality test. But th requirements of equal protection of laws
contained in Article 14 of the Constitution are not met with that apparent though majestic
equality at which anatole France mocked. Our Supreme Court declared that:

"Bare equality of treatment regardless of the inequality of realities is neither justice nor
homage to the constitutional principle".

(See M. Match works v. Asst. Collector ).

The question is how this remedy works in life terms In our social reality, this matrimonial
remedy is found used almost exclusively by the husband and is rarely resorted to by the
wife. A passage in Gupte's Hindu law in Brilish India' page 929 (second edition) attests to this
fact. The learned author recorded that although the rights and duties which marriage
creates may be enforced by either spouse against the other and not exclusively by the
husband agianst the wife; a suit for restitution by the wife is rare".

The reason for this mainly lies in the fact of hte differences beween the man and the
woman . by enforcing a decree for restitution of conjugal rights the life pattern of the wife
is likely to be altered irretrievable whereas the husband's can remain almost as it was before
this is so because it is the wife who has to beget and bear a child. This practical but the
inevitable consequence of the enforcement of this remedy cripples the wife's future plans of
life and prevents her from using that self-destructive remedy. Thus the use of remedy of
restitution of conjugal rights in reality becomes partial and one-sided and available only
to the husband. The pledge of equal protection of laws is thus inherently incapable of
being fulfilled by this matrimonial remedy in our Hindu society. As a result this remedy
words in practice only as an engine of oppression to be operated by the husband for the
benefit of the husband against the wife. By treating the wife and the husband who are
inherently unequal as equals, section 9 of the Act offends the rule of equal protection of laws.
For that reason the formal equality that section 9 of the Act ensures cannot be accepted
as constitutional. Section 9 of the Act should therefore be struck down as violative of Article
14 of the Constitution.

39. Section 9 of the Act has also to be examined fo rits constitutional validity from the point of
view of the test of minimum rationality. The American constitutional writes and Court decisions
on the equality clause of the American 14th Amendment recognize the inadequacies of the mere
classification theory of minimum rationality not merely as an additional test to the above theory
of classification but even as basic to the whole of the 14th Amendment. Writing for a division

195
Bench of this Court in A. Laxmana Murthy v. State (aIR 1980 Andh pra 293 at 298) I expressed
our view of inadequacies of the theory of classification in these words:-

'Hitler's classification of all jews into a separate category for purposes of butchering them and
Nazalities' classification of all landlords into a separate category for purpose of exterminating
them cannot, therefore be faulted on this theory of equal protection clause".

Our Supreme Court had accepted the theory of minimum rationality in E.P. Royappa v. Tamil
Nadu in the following words:-

"From a positivistic point of view equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies, one belongs to the rule of law in a republic while the other to
the whim and caprice of an absoulte monarch. Where an Act is arbitrary it is implicit in it that it
is enequal both according to political logic and constitutional law and is therefore violative of
Article 14". ........They require that state action must be based on valent relevant principles
applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant
considerations because that would be denial of equality".

But our Supreme Court called the test as test of arbitrariness and followed it in the subsequent
decisions in maneka Gandhi case and the International Air port case , and Ajay Hasia v. Khalid
Mujib and Air India v. Nergesh The theory of minimum rationality test which is heavily
criticised by seervai in his latest constitutional Law, 3rd Edition page 272 is described by prof.
Tribe as requiring all legislation to have "a legislative public purpose or set of purposes based on
some conception of general good". (See his American constitutional Law, page 995) Examined
from this point of view, it is clear that whether or not section 9 of the Hindu marriage Act suffers
from the vice of over-classification as suggested in the preceding paragraph it promotes no
legitimate public purpose based on any conception of the general good. It has already been
shown that section 9 must thereofe be held to be arbitrary and void as offending art. 14 of the
consitution.

40. In the view I have taken of the constitutional validity of section 9 of the Hindu Marriage Act,
I declare that section 9 is null and void. As a corollary to that declaration, I hold that O.P. No. 1
of 1981 on the file of subordinate Judge, cuddapah, filed by venkata subbaiah for the relief of
restitution of conjugal rights with sareetha is legally incompetent. Accordingly, I prohibit the
Court of the subordinate Judge, cuddapah from trying O.P. No. 1/81.

41. The civil Revision petition is allowed, but without costs.

42. Revision allowed.

Kerala High Court

A. Yousuf Rawther vs Sowramma on 24 June, 1970

Equivalent citations: AIR 1971 Ker 261

Author: V K Iyer

Bench: V K Iyer

196
JUDGMENT V.R. Krishna Iyer, J.

1. What deeply disturbs a judge in such case-situations is the conflict between doing justice by
promoting a rapprochement and enforcing the law heedless of consequence. Sowramma, a
Hanafi girl, around 15, married in 1962 Yusuf Rowthan, nearly twice her age, but the husband's
home hardly found them together for more than a few days and after a long spell of living apart,
an action for dissolution was instituted by the wife against the husband. The matrimonial court
should, and I did, suggest to counsel, in vain though, to persuade the parties to repair the broken
bond. Unhappily, irreversible changes in the conjugal chemistry baulked the effort, the husband
having taken another wife and the latter having wed again after dissolution was granted in
appeal. And thus their hearts are pledged to other partners. The prospect of bringing together the
sundered ends of the conjugal knot being absent a decision on the merits, according to the law of
the parties, has to be rendered now. Even so, the legal impact of such subsequent events on
granting or moulding the relief falls to be considered.

2. A brief narration of the facts will help to appreciate

The plaintiff had attained puberty even before her marriage and soon after the wedding, the
bridal pair moved on to the husband's house. The very next day the defendant left for Coimbatore
where he was running a radio dealer's business. A month's sojourn in the house of the husband
and then the girl went back to her parents, the reason for her return being blamed by each on the
other. This separation lasted for over two years during which span the defendant admittedly
failed to maintain the wife, the ground alleged by the defendant being that he was willing and
indeed, anxious to keep her with him but she wrongfully refused to return to the conjugal home -
- thanks to the objectional inhibition by the father of the girl. The husband, finding the young
wife recalcitrant, moved the mosque committee, through his brother (Ext. D2) but the effort
failed and so they reported that divorce was the only solution (Ext- D4). Anyway, after
preliminary skirmishes, in the shape of lawyer notices, a litigation for dissolution of marriage
erupted.

The trial court dismissed the suit but the Subordinate Judge's Court granted a decree for
dissolution of the marriage. The aggrieved husband has come up to this court challenging the
validity of the decree of the lower appellate court.

Appellant’s counsel, Shri Chandrasekhara Menon, has highlighted a seminal issue of Muslim
law -- the right of a female wrongfully leaving the matrimonial home to claim dissolution
through court for mere failure of the husband to maintain the erring wife for 2 years.

3. The concurrent findings are that the plaintiff was 15 years old, that she had attained puberty
and the marriage had been consummated. Again, while both the courts have held that the
defendant had failed to provide maintenance for the plaintiff for a period of two years, they have
also recorded a crucial finding "that it was through her own conduct that she led her husband
.................to stop maintenance for a period of 2 years".

4. The claim of a Muslim wife to divorce is now provided for and canalised by the Dissolution of
Muslim Marriages Act, Act 8 of 1939 (for short, referred to as the Act). Section 2 is the charter
of the wife and, in this case, the plaintiff has pressed into service Subsections (ii), (vii) and (ix)
thereof. I shall deal briefly with the second ground, which has been negatived by both the courts,
and then pass on to the first and the last which, in the circumstances of this case, require detailed
consideration. Section 2, Clause (vii) vests in the woman, who has been given in marriage by her
197
father or other guardian before she attains the age of 15 years, the right to repudiate the marriage
before attaining the age of 18 years, provided that the marriage has not been consummated. The
plaintiff and her father had no qualms in pleading, notwithstanding the Child Marriage Restraint
Act, 1935, that the girl was only 13 years old at the time of the marriage. Social legislation,
without the community's militant backing, is often a flop. However, the court held: "as there is
no evidence to show that the plaintiff was under the age of 15 years when her marriage was
solemnised and as the probabilities establish that the marriage had been consummated, it is
obvious that the second ground which the plaintiff relied upon for dissolution of her marriage
with the defendant has not been made out". On these findings, Section 2 (vii) is off altogether.
However, the assumption of the learned Subordinate Judge that if the marriage has been
consummated Section 2 (vii) is excluded irrespective of the tender age of the female partner, may
be open to question.

The Lahore High Court had occasion to consider the import of this provision in a ruling reported
in Mt. Ghulam Sakina v. Falak Sher Allah Baksh, (AIR 1950 Lah 45). The learned Judge
expatiated on the real significance of the option of puberty thus:

"The marriage under Muhammadan law is in the nature of a contract and as such requires the
free and unfettered consent of the parties to it. Normally speaking, a man and a woman should
conclude the contract between themselves but in the case of minors i.e., who have not attained
the age of puberty as recognised by Muhammadan law, the contract might be entered into by
their respective guardians.

Before the Act 8 of 1939 (The Dissolution of Muslim Marriages Act 1939) a minor girl given in
marriage by the father or the father's father, had no option to repudiate it on the attainment of her
puberty but this has now been changed. The contract of the father or the father's father stands on
no higher footing than that of any other guardian and the minor could repudiate or ratify the
contract made on his or her behalf during the minority, after the attainment of puberty. 'Puberty'
under Muhammadan law is presumed, in the absence of evidence, on completion of the age of 15
years. It would, therefore, necessarily follow that the minor should exercise the option after the
age of 15 years unless there was evidence to the contrary that the puberty had been attained
earlier and the burden of proving this shall lie upon the person so pleading. Anything done by the
minor during the minority would not destroy the right which could accrue only after puberty. The
co-habitation of a minor girl would not thus put an end to the 'option' to repudiate the marriage
after puberty."

There is persuasiveness in this reasoning but on the facts found in the present case, even the
Lahore view cannot sustain the plaintiff's claim, while another ruling reported in Rabia Khatoon
v. Mohd. Mukhtar Ahmad, (AIR 1966 All 548) goes against her stand.

5. Now, to the other grounds. Section 2 (ix) of the Act is of wide import and preserves the
woman's right to dissolution of her marriage on any ground recognised as good under Muslim
law. Thus, it is perfectly open to a female spouse to press into service not merely the ground set
out in Clauses (i) to (viii) but also any other which has enjoyed recognition under the Shariat.
Section 2 (ii) liberates a woman from her matrimonial poundage if her husband "has neglected or
has failed to provide for her maintenance for a period of two years". We have, therefore, to
examine whether the plaintiff has been able to make out any ground sanctioned by the Muslim
law or set out in Section 2 (ii) of the Act. There is a sharp cleavage of opinion in India on the
scope and meaning of this latter provision while the former clause has not been expressly
pronounced upon.
198
6. The interpretation of a legislation, obviously intended to protect a weaker section of the
community, like women, must be informed by the social perspective and purpose and, within its
grammatical flexibility, must further the beneficent object. And so we must appreciate the
Islamic ethos and the general sociological background which inspired the enactment of the law
before locating the precise connotation of the words used in the statute.

7. There has been considerable argument at the bar -- and precedents have been piled up by each
side -- as to the meaning to be given to the expression 'failed to provide for her maintenance' and
about the grounds recognised as valid for dissolution under Muslim law. Since infallibility is not
an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian
judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or
the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing
Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture -- law is
largely the formalised and enforceable expression of a community's cultural norms -- cannot be
fully understood by alien minds. The view that the Muslim husband enjoys an arbitrary,
unilateral power to inflict instant divorce does not accord with Islamic injunctions. The statement
that the wife can buy a divorce only with the consent of or as delegated by the husband is also
not wholly correct. Indeed, a deeper study of the subject discloses a surprisingly rational,
realistic and modern law of divorce and this is a relevant enquiry to apply Section 2 (ix) and to
construe correctly Section 2 (ii) of the Act.

"Marriage under Islam is but a civil contract, and not a sacrament, in the sense that those who are
once joined in wed-lock can never be separated. It may be controlled, and under certain
circumstances, dissolved by the will of the parties concerned. Public declaration is no doubt
necessary, but it is not a condition of the validity of the marriage. Nor is any religious ceremony
deemed absolutely essential." (The Religion of Islam by Ahmad A. Galwash, p. 104).

8. It is impossible to miss the touch of modernity about this provision; for, the features
emphasised are precisely what we find in the civil marriage laws of advanced countries and also
in the Special Marriage Act, Act 43 of 1954. Religious ceremonies occur even in Muslim
weddings although they are not absolutely essential. For that matter, many non-muslim
marriages, (e.g. Marumakkathayees) also do not insist, for their validity, on religious ceremonies
and registered marriages are innocent of priestly rituals. It is a popular fallacy that a Muslim
male enjoys, under the Quaranic law, unbridled authority to liquidate the marriage. "The whole
Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains
faithful and obedient to him, "if they (namely, women) obey you, then do not seek a way against
them"." (Quaran IV:34). The Islamic "law gives to the man primarily the faculty of dissolving
the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy;
but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or
the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the
divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife
capriciously."

As the learned author, Ahmad A. Galwash notices, the pagan Arab, before the time of the
Prophet, was absolutely free to repudiate his wife whenever it suited his whim, but when the
Prophet came He declared divorce to he "the most disliked of lawful things in the sight of God.
He was indeed never tired of expressing his abhorrence of divorce. Once he said: 'God created
not anything on the face of the earth which He loveth more than the act of manumission. (of
slaves) nor did He create anything on the face of the earth which he detesteth more than the act
of divorce".
199
 Commentators on the Quoran have rightly observed -- and this tallies with the law now
administered in some Muslim countries like Iraq -- that the husband must satisfy the court about
the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to
the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates
the law dealing with the wife's right to divorce. Dr. Galwash deduces.

"Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law
naturally recognises the right in both the parties, to dissolve the contract under certain given
circumstances. Divorce, then, is a natural corollary to the conception of marriage as a contract,
..............."

9. . "It is clear, then, that Islam discourages divorce in principle, and permits it only when it has
become altogether impossible for the parties, to live together in peace and harmony. It avoids,
therefore, greater evil by choosing the lesser one, and opens a way for the parties to seek
agreeable companions and, thus, to accommodate themselves more comfortably in their new
homes." We have to examine whether the Islamic law allows the wife to claim divorce when she
finds the yoke difficult to endure "for such is marriage without love ............... a hardship more
cruel than any divorce whatever". The learned author referred to above states, "Before the advent
of Islam, neither the Jews nor the Arabs recognised the right of divorce for women: and it was
the Holy Quoran that, for the first time in the history of Arabia, gave this great privilege to
women". After quoting from the Quoran and the Prophet, Dr. Galwash concludes that "divorce is
permissible in Islam only in cases of extreme emergency. When all efforts for effecting a
reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or
by 'Khola'. When the proposal of divorce proceeds from the husband, it is called 'Talaq', and
when it takes effect at the instance of the wife it is called 'Kholaa'" Consistently with the secular
concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay
off the settlement debt to the wife and at the time of Kholaa she has to surrender to the husband
her dower or abandon some of her rights, as compensation.

1o. Mulla, in his book on Mahomadan Law, commenting on the failure to maintain the wife as a
ground for divorce under the Act, says:

"Failure to maintain the wife need not be wilful. Even if the failure to provide for her
maintenance is due to poverty, failing health, loss of work, imprisonment or to any other cause,
the wife would be entitled to divorce .........unless, it is submitted, her conduct hag been such as
to disentitle her to main-tenance under the Mahomedan Law. In 1942 it was held by the Chief
Court of Sind that the Act was not intended to abrogate the general law applicable to
Mahomedans, and 'the husband cannot be said to have neglected or failed to provide
maintenance for his wife unless under the general Mahomedan Law he was under an obligation
to maintain her'. The wife's suit for divorce was dismissed as it was found that she was neither
faithful nor obedient to her husband. So also was the wife's suit dismissed, where the wife, who
lived separately, was not ready and willing to perform her part of marital duties."

The Nagpur High Court read Section 2 (ii) of the Act to mean that where the wife voluntarily
stayed away from her husband's house despite the husband's request to return to his house and
live with him, there was no neglect or failure to maintain the wife merely because he did not
send any money to her during this period and the wife was not entitled to claim divorce.
Mudholkar, J. was of the view that the words "to provide for her maintenance" occurring in
Clause (ii) would apply only when there was a duty to maintain under the general Mahomedan
law.
200
12. The learned Judge explained the need to answer the question with reference to the Muslim
law:

"It is true that Act 8 of 1939" observed his Lordship, "crystallises a portion of the Muslim law
............... but it is precisely for that reason that it must be taken in conjunction with the whole of
the Muslim law as it stands. Under the Muslim law, it is the duty of the wife to obey her husband
and to live with him unless he refuses to live with her or unless he makes it difficult for her to
live with him ............... When the law enjoins a duty on the husband to maintain his wife, it is
obvious that the wife can only be maintained at the place where she ought properly to be ............
If she wants for no reason to be maintained elsewhere, she can clearly claim no maintenance
from husband under the Mahomedan law. Since her right to claim maintenance is limited to this
extent by the Mahomedan law, it must necessarily follow that in Clause (ii) of Section 2 of Act 8
of 1939 the Legislature intended to refer only to this limited right and to no other ...............It
would be against all canons of judicial interpretation to hold that a wife's right of maintenance, in
so far as Act 8 of 1939 is concerned, is different from that contained in the rest of the
Mahomedan law".

13. A Division Bench of the Rajasthan High Court (AIR 1956 Raj 102 at p. 103) agreed with the
construction and observed:

"...............we are of opinion that the failure or neglect to provide maintenance in order to give
rise to claim for dissolution, must be without any justification. For if there is justification, there
cannot be said to be neglect. Neglect or failure implies non-performance of a duty. But if the
husband is released from the duty on account of the conduct of the lady herself, the husband
cannot be said to have neglected or failed to provide maintenance".

The Peshawar court also was of opinion that where the wife was entirely to blame, it could not
be said that the husband had failed or neglected to provide for her maintenance within the
meaning of Section 2 (ii) of the Act. Their Lordships harked back to and endorsed the opinion
expressed in AIR 1944 All 23 "that the word 'neglect' implies wilful failure and that the words
'has failed to provide' are not very happy, but even they imply an omission of duty." Allsop AG.
C. J., speaking on behalf of the Bench in AIR 1947 All 3, said:

"The Act does not mean that the husband is bound to follow his wife wherever
she may go and force money or food or clothes upon her...............If she refused to avail herself
of the shelter which was offered to her, she cannot complain and is certainly not entitled to a
decree."

14. Even here, I may mention that Section 2 (ii) does not speak of the wife's right of
maintenance but only of the fact of her being provided with maintenance and this is the ratio of
the ruling in AIR 1950 Sind 8. Tyabji, C. J., elaborately examined this branch of Muslim
jurisprudence as well as the precedents under Section 2 (ii) of the Act and wound up:

"Having very carefully considered the reasoning in all these cases this Lordship
adverts to the rulings pro and con) I can see no reason for taking a different view of the
question before us from that which I expressed in Hajra's case (Suit No. 288 of 1942). The
plain ordinary grammatical meaning of the words: 'Has failed to provide maintenance' in
Clause (ii) appears to me to be very clear. It is true that these words occur in an enactment

201
which deals with the dissolution of Muslim marriages, but the meaning of these words
cannot therefore be different from what it would be, for instance, if these words were used
with reference to a Hindu or a Christian or a Parsi husband ............... The question whether
there was a failure to maintain was a pure question of fact, which did not in any
manner depend upon the circumstances in which the failure had occurred ............... As
I pointed out in Hajra's case (Suit No. 288 of 1942), Muslim morals and ideas undoubtedly
expect every husband to maintain his wife as long as the marriage subsists, even when the wife
does not deserve to be maintained, and may not in law be able to enforce any claim for
maintenance. It is therefore no less correct to speak of a man's failure to maintain his wife even
when she is not entitled to claim maintenance, than it is to speak of a man's failure to pay his
debts of honour on bets or his debts which have become time barred............In the cases in
which it has been held that there could be no failure to maintain, unless the wife was entitled to
enforce a claim for maintenance, the plain ordinary meaning of the words, it seems to me, was
intentionally departed from, on the express ground that the ordinary meaning of the words was
not the one which could really have been intended, that the really intended meaning had
been sought to be expressed, rather unhappily, by the use of words which in fact had a
different meaning; and the supposed intended meaning which necessarily involved importing
into the enacted words something which was not there, was then preferred to the
ordinary meaning; on the supposition that unless that was done an abrogation of the general
Muhammadan law and a starting state of affairs would result..........."

The learned Chief Justice expatiated on the Muslim law and observed:

"The principles upon which maintenance is enforced during the subsistence of a

marriage, and those upon which a dissolution is allowed, are entirely different. A
dissolution of a marriage is allowed when a cessation of the state of marriage has in reality
taken place, or the continuance of the marriage has become injurious to the wife. The
continuance of a state of affairs in which a marriage had ceased to be a reality, when the husband
and the wife no longer lived 'within the limits of Allah' is abhorred in Islam, and the
prophet enjoined that such a state of affairs should be ended. The main object of enacting
the Dissolution of Muslim Marriages Act was to bring the law as administered in
this sub-continent into conformity with the authoritative texts.

15. Tyabji, C. J. relied on Beckett, J., (AIR 1943 Sind 65) who had made a like approach. In
AIR 1941 Lah 167, Abdul Rashid, J. stated:

"Where the words of the statute are unambiguous, effect must be given to them whatever the
consequences. It is laid down expressly in Clause (iv) of Section 2, that where the husband has
failed to perform without reasonable cause his marital obligations for a period of three years the
wife is entitled to a dissolution of her marriage. In Clause (ii), however, the words 'without
reasonable cause' do not occur. It must, therefore, be held that whatever the cause may be the
wife is entitled to a decree for the dissolution of her marriage, if the husband fails to maintain her
for a period of two years, even though the wife may have contributed towards the failure of the
maintenance by her husband."

This observation was extracted, with approval, in the Sind decision and the ancient texts,
traditions and fatwaas were adverted to for holding that the Indian Hanafis had all along allowed

202
divorce for simple failure by the husband to maintain his wife. The most compelling argument in
the Sind ruling runs thus:

"The Muslim marriage differs from the Hindu and from most Christian marriages in that it is not
a sacrament. This involves an essentially different attitude towards dissolutions. There is no
merit in preserving intact the connection of marriage when the parties are not able and fail 'to
live within the limits of Allah', that is to fulfil their mutual marital obligations, and there is no
desecration involved in dissolving a marriage which has failed. The entire emphasis is on making
the marital union a reality, and when this is not possible, and the marriage becomes injurious to
the parties, the Quran enjoins a dissolution. The husband is given an almost unfettered power of
divorce, the only restraints upon him being those imposed by the law relating to dower and by
his own conscience. He has to remember the Prophet's words: 'Of all things permitted by the law,
the worst is divorce.' The Quran enjoins a husband either to render to his wife all her rights as a
wife and to treat her with kindness in the approved manner, or to set her free by divorcing her,
and enjoins him not to retain a wife to her injury (Cf. verses II, 229 and 231). Any suspension of
the marriage is strongly condemned (Cf. e.g. Quran IV, 129). The attitude of the Prophet is
illustrated by the well-known instance of Jameela, the wife of Sabit Bin Kais, who hated her
husband intensely although her husband was extremely fond of her. According to the account
given in Bukhari (Bu. 68:11) Jameela appeared before the Prophet and admitted that she had no
complaint to make against Sabit either as regards his morals or as regards his religion. She
pleaded, however, that she could not be wholeheartedly loyal to her husband, as a Muslim wife
ought to be, because she hated him, and she did not desire to live disloyally ('in Kufr'). The
Prophet asked her whether she was willing to return the garden which her husband had given to
her, and on her agreeing to do so, the Prophet sent for Sabit, asked him to take back the garden,
and to divorce Jameela. From the earliest times Muslim wives have been held to be entitled to a
dissolution when it was clearly shown that the parties could not live 'within the limits of Allah',
when (1) instead of the marriage being a reality, a suspension of the marriage had in fact
occurred, or (2) when the continuance of the marriage involved injury to the wife. The grounds
upon which a dissolution can be claimed are based mainly on these two principles ...............
When a husband and a wife have been living apart, and the wife is not being maintained by the
husband, a dissolution is not permitted as a punishment for the husband who had failed to fulfil
one of the obligations of marriage, or allowed as a means of enforcing the wife's rights to
maintenance. In the Muslim law of dissolutions, the failure to maintain when it has continued for
a prolonged period in such circumstances, is regarded as an instance where a cessation or
suspension of the marriage had occurred. It will be seen therefore that the wife's disobedience or
refusal to live with her husband does not affect the principle on which the dissolution is
allowed."

16. I am impressed with the reasoning of Tyabji, C. J. which, in my humble view, accords with
the holy Islamic texts and the ethos of the Muslim community which together serve as a
backdrop for the proper understanding of the provisions of Act 8 of 1939.

17. I may also point out with satisfaction that this secular and pragmatic approach of the Muslim
law of divorce happily harmonises with contemporary concepts in advanced countries.

)One of the serious apprehensions judges have voiced, if the view accepted in AIR 1950 Sind 8
were to be adopted, is that the women may be tempted to claim divorce by their own delinquency
and family ties may become tenuous and snap. Such a fear is misplaced has been neatly
expressed by Bertrand Russel in his "Marriage and Morals".

203
"One of the most curious things about divorce is the difference which has often existed between
law and custom. The easiest divorce laws by no means always produce the greatest number of
divorces ............... I think this distinction between law and custom is important, for while I
favour a somewhat lenient law on the subject, there are to my mind, so long as the biparental
family persists as the norm, strong reasons why custom should be against divorce, except in
somewhat extreme cases. I take this view because I regard marriage not primarily as a sexual
partnership, but above all as an undertaking to co-operate in the procreation and rearing of
children."

The law of the Marumakkathayees provides a large licence for divorce but actual experience
allays the alarm. The law has to provide for possibilities; social opinion regulates the
probabilities. For all these reasons, I hold that a muslim woman, under Section 2 (ii) of the Act,
can sue for dissolution on the score that she has not as a fact been maintained even if there is
good cause for it--the voice of the law echoing public policy is often that of the realist, not of the
moralist.

18. The view I have accepted has one other great advantage in that the Muslim woman (like any
other woman) comes back into her own when the Prophet's words are fulfilled, when roughly
equal rights are enjoyed by both spouses, when the talaq technique of instant divorce is matched
somewhat by the Khulaa device of delayed dissolution operated under judicial supervision. The
social imbalance between the sexes will thus be removed and the inarticulate major premise of
equal justice realised,

19. Act 8 of 1939 does not abrogate the grounds already available to a woman and Section 2 (ix)
is clearly a statutory preservation of prior Islamic rights. I have dilated on the incidents of
Khulaa the last gateway for a Muslim woman out of an irreparably embittered co-existence.
Having affirmed the decree under Section 2 (ii) of the Act, the applicability of Section 2 (ix) is,
perhaps, supererogatory. I do not decide the plaintiff's claim to Khulaa under Section 2 (ix) of
the Act. Having succeeded on the ground set out in Section 2 (ii) of the Act the respondent is
entitled to a divorce.

22. The appeal fails and is dismissed but without costs at any tier.

Supreme Court of India

Equivalent citations: 1957 AIR 176, 1956 SCR 838

PETITIONER:
BIPIN CHANDER JAISINGHBHAI SHAH

Vs.

RESPONDENT:
PRABHAWATI.

BENCH:
SINHA, BHUVNESHWAR P.
JAGANNADHADAS, B.
204
AIYYAR, T.L. VENKATARAMA

CITATION:
1957 AIR 176 1956 SCR 838

JUDGMENT:

SINHA J.-This is an appeal by special leave against the judgment and decree of the High Court
of Judicature at Bombay dated August 22,1952, reversing those of a single Judge of that Court
on the Original Side, dated March 7,1952, by which he had granted a decree for dissolution of
marriage between the appellant and the respondent.

The facts and circumstances of this case may be stated as follows: The appellant and the
respondent were married at Patan on April 20, 1942, according to Hindu rites of the Jain
Community. The families of both the parties belong to Patan, which is a town in Gujarat, about a
night's rail journey from Bombay. They lived in Bombay in a two-room flat which was in
occupation of the appellant's family consisting of his parents and his two sisters, who occupied
the larger room called the hall, and the plaintiff and the defendant who occupied the smaller
room called the kitchen. The appellant's mother who is a patient of asthma lived mostly at Patan.
There is an issue of the marriage, a son named Kirit, born on September 10, 1945. The
defendant's parents lived mostly at Jaigaon in the East Khandesh district in Bombay. The parties
appear to have lived happily in Bombay until a third party named Mahendra, a friend of the
family came upon the scene and began to live with the family in their Bombay flat some time in
1946, after his discharge from the army. On January 8, 1947, the appellant left for England on
business. It was the plaintiff's case that during his absence from Bombay the defendant became
intimate with the said Mahendra and when she went to Patan after the plaintiff's departure for
England she carried on "amorous correspondence" with Mahendra who continued to stay with
the plaintiff's family in Bombay. One of the letters written by the defendant to Mahendra while
staying at the plaintiff's flat in Bombay, is Ex. E as officially translated in English, the original
being in Gujerati except a few words written in faulty English. This letter is dated April,1947,
written from the plaintiff's house at Patan, where the defendant bad been staying with her
mother-in-law. This letter had been annexed to the plaint with the official translation. It was
denied by the defendant in her written statement. But at the trial her counsel admitted it to have
been written by her to Mahendra. As this letter started all the trouble between the parties to this
litigation, it will have to be set out in extenso hereinafter. Continuing the plaintiff's narrative of
the events as alleged in the plaint and in his evidence, the plaintiff returned to Bombay from
abroadon May 2O, 1947. To receive him back from his foreign journey the whole family'
including the defendant was there in Bombay. According to the plaintiff, he found that on the
first night after his return his bed had been made in the hall occupied by his father and that night
he slept away from his wife. As this incident is said to have some significance in the narrative of
events leading up to the separation between the husband and the wife and about the reason for
which the parties differ, it will have to be examined in detail later. Next morning, that is to say,
on May 21, 1947, the plaintiff's father handed over the letter aforesaid to the plaintiff, who
recognised it as being in the familiar handwriting of his wife. He decided to tackle his wife with
reference to the letter. He handed it to a photographer to have photo copies made of the same.
That very day in the evening he asked his wife as to why she had addressed the letter to
Mahendra. She at first denied having written any letter and asked to see the letter upon which the
plaintiff informed her that it was with the photographer with a view to photo copies being made.
After receiving the letter and the photo copies from the photographer on May 23, the plaintiff
205
showed the defendant the photo copy of the letter in controversy between them at that stage and
then the defendant is alleged to have admitted having written the letter to Mahendra and to have
further told the plaintiff that Mahendra was a better man than him and that Mahendra loved her
and she loved him. The next important event in the narrative is what happened on May 24, 1947.
On the morning of that day, while the plaintiff was getting ready to go to his business office his
wife is alleged to have told him that she had packed her luggage and was ready to go to Jalgaon
on the ostensible ground that there was a marriage in her father's family. The plaintiff told her
that if she had made up her mind to go, he would send the car to take her to the station and
offered to pay her Rs. 100 for her expenses. But she refused the offer. She left Bombay
apparently in the plaintiff's absence for Jalgaon by the afternoon train. when the plaintiff came
back home from his office, he "discovered that she had taken away everything with her and had
left nothing behind". It may be added here that the plaintiff's mother had left for Patan with his
son some days previously. Plaintiff 's case further is that the defendant never came back to
Bombay to live with him, nor did she write any letters from Jalgaon, where she stayed most of
the time. It appears further that the plaintiff took a very hasty, 'if not also a foolish, step of
having a letter addressed to the defendant by his solicitor on July 15, 1947, charging her with
intimacy between herself and Mahendra and asking her to send back the little boy. ,The parties
violently differ on the intent and effect of this letter which will have to be set out in extenso at
the appropriate place. No answer to this letter was received by the plaintiff. In November, 1947,
the plaintiff's mother came from Patan to Bombay and informed the plaintiff that the defendant
might be expected in Bombay a few days later. Thereupon the plaintiff sent a telegram to his
father-in-law at Patan. The telegram is worded as follows:-

"Must not send Prabha. Letter posted.

Wishing happy new year".

The telegram stated that a letter bad been posted. The defendant denied that any such letter bad
been received by her or by her father. Hence the original, if any, is not on the record. But the
plaintiff produced what he alleged to be a carbon copy of that letter which purports to have been
written on November 13, 1947, the date on which the telegram was despatched.

" The plaintiff stated that be received no answer either to the telegram or to the letter. Two days
later, on, November 15, the plaintiff's father addressed a letter to the defendant's father, which is
Ex. D. This letter makes reference. to the defendant's mother having, talked to the plaintiffs
mother about sending the defendant I to Bombay and to the fact that the plaintiff bad sent a
telegram on November 13, and ends with the expression of opinion by the plaintiff's father that it
was "absolutely necessary" that the plaintiff's consent should be obtained before sending the
defendant to Bombay. This letter also remained unanswered. According to the plaintiff, nothing
happened until May, 1948, when he went to Patan and there met the defendant and told her "that
if she repented for her relations with Mahendra in the interests of the child as well as our own
interests she could come back and live with me". To that the defendant is said to have replied
that in November, 1947, as a result of pressure from her father and the community, she had-been
thinking of coming to live with the plaintiff) but that she had then decided not to do so. The
defendant has given quite a different version of this interview. The second interview between the
plaintiff and the defendant again took place at Patan some time later in 1948 when the plaintiff
went there to see her on coming to know that she had been suffering from typhoid,. At that time
also she evinced no desire to come back to the plaintiff. The third and the last interview between
the plaintiff and the defendant took place at Jalgaon in April-May, 1949. At that interview also
the defendant turned down the plaintiff's request that at least in the interests of the child she
206
should come back to him. According to the plaintiff, since May 24, 1947, when the defendant
left his home in Bombay of her own accord, she bad not come back to her marital home. The suit
was commenced by the plaintiff by filing the plaint dated July 4, 1951, substantially on the
ground that the defendant bad been in desertion ever since May 24, 1947, without reasonable
cause and without his consent and against his will for a period of over four years. He therefore
prayed for a decree for a dissolution of his marriage with the defendant and for the custody of the
minor child.

The suit was contested by the defendant by a written statement filed on February 4, 1952,
substantially on the ground that it was the plaintiff who by his treatment of her after his return
from England had made her life unbearable and compelled her to leave her marital home against
her wishes on or about May 24, 1.947. She denied any intimacy between herself and Mahendra
or that she was confronted by the plaintiff with a photostat copy of the letter., Ex. E, or that she
had confessed any such intimacy to the plaintiff. She admitted having received the Attorney's
letter, Ex. A, and also that she did not reply to that letter. She adduced her father's advice as the
reason for not sending any answer to that letter. She added that her paternal uncle Bhogilal (since
deceased) and his son Babubhai saw the plaintiff in Bombay at the instance of the defendant and
her father and that the plaintiff turned down their request for taking her back. She also made
reference to the negotiations between the defendant's mother and the plaintiff's mother to take the
defendant back to Bombay and that the defendant could not go to Bombay as a result of the
telegram of November 13, 1947, and the plaintiff's father's letter of November 15, 1947,
aforesaid. She also stated that the defendant and her son, Kirit, both lived with,the plaintiff's
family at Patan for over four months and off and on on several occasions. The defendant's
definite case is that she had always been ready and willing to go back to the plaintiff and that it
was the plaintiff who all along had been wailfully refusing to keep her and to cohabit with her.

On those allegations she resisted the plaintiff's claim for a decree for a dissolution of the
marriage.

On those pleadings a single issue was joined between the parties, namely,-

"Whether the defendant deserted the plaintiff for a continuous period of over four years prior to
the filing of the suit".

At the trial held by Tendolkar, J. of the Bombay High Court on the Original Side, the plaintiff
examined only himself in support of his case. The defendant examined herself, her father,
Popatlal, and her cousin, Bhogilal, in support of her case that she had been all along ready and
willing to go back to her marital home and that in spite of repeated efforts on her part through
her relations the plaintiff had been persistently refusing to take her back.

The learned trial Judge answered the only issue in the case in the affirmative and granted a
decree for divorce in favour of the plaintiff, but made DO order as to the costs of the suit.

In this appeal the learned Attorney-General appearing on behalf of the appellant and the
learned Solicitor-General appearing on behalf of the respondent have placed all relevant
considerations of fact and law before us, and we are beholden to them for the great assistance
they rendered to us in deciding this difficult case. The difficulty is enhanced by the fact that the
two courts below have taken diametrically opposite views of the facts of the case which depend
mostly upon oral testimony of the plaintiff-husband and the defendant-wife and not corroborated
in many respects on either side. It is a case of the husband's testimony alone on his side and the
207
wife's testimony aided by that of her father and her cousin. As already indicated, the learned trial
Judge was strongly in favour of preferring the husband's testimony to that of the wife whenever
there was any conflict. But he made no reference to the testimony of the defendant's father and
cousin which, if believed, would give an entirely different colour to the case.

Before we deal with the points in controversy, it is convenient here to make certain general of
observations on the history of the law on the subject and the well established general principles
on which such cases are determined. The suit giving rise to this appeal is based on section 3(1)
(d) of the Bombay Hindu Divorce Act', XXII of 1947, (which hereinafter will be referred to as
"The Act") which came into force on May 12, 1947, the date the Governor's assent was
published in the Bombay Government Gazette. This Act, so far as the Bombay Province, as it
then was, was concerned, was the first step in revolutionizing the law of matrimonial
relationship, and, as the Preamble shows, was meant "to provide for a right of divorce among all
communities of Hindus in certain circumstances". Before the enactment, dissolution of a Hindu
marriage particularly amongst what were called the regenerate classes was unknown to general
Hindu law and was wholly inconsistent with the basic conception of a Hindu marriage as a
sacrament, that is to say, a holy alliance for the performance of religious duties. According to the
Shastras, marriage amongst the Hindus was the last of the ten sacraments enjoined by the Hindu
religion for purification. Hence according to strict Hindu law as given by the Samhitas and as
developed by the commentators, a Hindu marriage could not be dissolved on any-ground
whatsoever, even on account of degradation in the hierarchy of castes or apostacy. But custom',
particularly amongst the tribal and what used to be called the lower castes recognised divorce on
rather easy terms. Such customs of divorce on easy terms have been in some instances held by
the courts to be against public policy. The Act in section 3 sets out the grounds of divorce. It is
noticeable that the Act does not recognise adultery simpliciter as one of the grounds of divorce,
though cl. (f) renders the fact that a husband "has any other woman as a concubine" and that a
wife "is a concubine of any other man or leads the life of a prostitute" a ground of divorce.

In the present case we are immediately concerned with the provisions of s. 3(1)(d), which are in
these terms:-

3. (1) A husband or wife may sue for divorce on any of the following grounds, namely:-

............................................

(d) that the defendant has deserted the plaintiff for a continuous period of four years".

"Desertion" has been defined in section 2(b) in these terms:-

'Desert' means to desert without reasonable cause and without the consent or against the will of
the spouse". It will be seen that the definition is tautological and not very helpful and leads us to
the Common Law of England where in spite of repeated legislation on the subject of matrimonial
law, no attempt has been made to define "desertion". Hence a large body of case law has
developed round the legal significance of "desertion". "Marriage" under the Act means "a
marriage between Hindus whether contracted before or after the coming into operation of this
Act". "Husband" means a Hindu husband and "wife" means a Hindu wife.

In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights.
But by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards
was made a ground for a suit for judicial separation. It was not till 1937 that by the Matrimonial
208
Causes Act, 1937, desertion without cause for a period of three years immediately preceding the
institution of proceedings was made a ground for divorce. The law has now been consolidated in
the Matrimonial Causes Act, 1950 (14 Geo. VI, c. 25 ). It would thus appear that desertion as
affording a cause of action for a suit for dissolution of marriage is a recent growth even in
England.

What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th
Edn.) has summarised the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the
deserting spouse of bringing cohabitation permanently to on end without reasonable cause and
without the consent of the other spouse; but the physical act of departure by one spouse does not
necessarily make that spouse the deserting party".

The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of
Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:-

"In its essence desertion means the intentional permanent forsaking and abandonment of one
spouse by the other without that other's consent, and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view of the large variety of circumstances and of
modes of life involved, the Court has discouraged attempts at defining desertion, there being no
general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to
enforce is the recognition and discharge of the common obligations of the married state; the state
of things may usually be termed, for short, 'the home'. There can be desertion without previous
cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party. ,
The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a
charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as
a ground for divorce it must exist for a period of at least three years immediately preceding the
presentation of the petition . Desertion is a continuing offence".

Thus the quality of permanence is one of the essential elements which differentiates desertion
from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for
example, anger or disgust, without intending permanently to cease cohabitation, it will not
amount to desertion.'

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions
must be there., namely,

(1) the factum of separation, and (2) the intention to bring cohabitation permanently to
an end (animus deserendi ).

Similarly two elements are essential so far as the deserted spouse is con- cerned:

(1) the absence of consent, and

209
 (2) absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The petitioner for
divorce bears the burden of proving those elements in the two spouses
respectively.

Here a difference between the English law and the law as enacted by the
Bombay Legislature may be pointed out.

under the English law those essential conditions must continue throughout the
course of the three years immediately preceding the institution of the suit for
divorce;

under the Act, the period is four years without specifying that it should
immediately precede the commencement of proceedings for divorce. Whether
the omission of the last clause has any practical result need not detain us, as it
does not call for decision in the present case. Desertion is a matter of inference
to be drawn from the facts and circumstances of each case.

. If, in fact, there has been a separation, the essential question always is whether
that act could be attributable to an animus deserendi. The offence of desertion
commences when the fact of separation and the animus deserendi co-exist. But it
is not necessary that they should commence at the same time. The de facto
separation may have commenced without the necessary animus or it may be that
the separation and the animus deserendi coincide in point of time; for example,
when the separating spouse abandons the marital home with the intention,
express or-implied, of bringing cohabitation permanently to a close. The law in
England has prescribed a three year period and the Bombay Act prescribes a
period of four years as a continuous period during which the two elements must
subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae
thus provided by law and decides to come back to the deserted spouse by a
bonafide offer of resuming the matrimonial home with all the implications of
marital life, before the statutory period is out or even after the lapse of that
period, unless proceedings for divorce have been commenced,, desertion comes
to an end and if the deserted spouse unreasonably refuses the offer, the latter
may be in desertion and not the former. Hence it is necessary that during all the
period that there has been a desertion the deserted spouse must affirm the
marriage and be ready and willing to resume married life on such conditions as
may be reasonable. It is also well settled that in proceedings for divorce' the
plaintiff must prove the offence of desertion, like any other matrimonial offence,
beyond all reasonable doubt. Hence, though corroboration is not required as an
absolute rule of law, the courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court.

In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v.
Lawson(1) may be referred to:-

"These cases are not cases in which corroboration is required as a matter of law. It is required as
a matter of precaution...............
210
With these preliminary observations we now proceed to examine the evidence led on behalf of
the parties to find out whether desertion has been proved in this case and, if so, whether there
was a bona fide offer by the wife to return to her matrimonial home with a view to discharging
marital duties and, if so, whether (1) [1955] 1 All E.R. 341, 342.

there was an unreasonable refusal on the part of the husband to take her back.

In this connection the plaintiff in the witness box deposed to the incident of the night of May 20,
1947. He stated that at night he found that his bed had been made in the hall in which his father
used to sleep, and on being questioned by him, the defendant told him that it was so done with a
view to giving him the opportunity after a long absence in England to talk to his father. The
plaintiff expressed his wish to the defendant that they should sleep in the same room as they used
to before his departure for England, to which the wife replied that as the bed had already been
made, "it would look indecent if they were removed". The plaintiff therefore slept in the hall that
night. This incident was relied upon by the plaintiff with a view to showing that the wife had
already made up her mind to stop cohabitation. This incident has not been admitted by the
defendant in her cross-examination. On the other hand she would make it out that it was at the
instance of the plaintiff that the bed had been made in the hall occu- pied by his father and that it
was the plaintiff and not she who was responsible for their sleeping apart that night. As the
learned trial Judge has preferred the plaintiff's testimony to that of the defendant on all matters
on which there was simply oath against oath, we would not go behind that finding. This incident
by itself is capable of an innocent explanation and therefore has to be viewed along with the
other incidents deposed to by the plaintiff in order to prove his case of desertion by the
defendant. There was no reason why the husband should have thought of sleeping apart from the
wife because there was no suggestion in the record that the husband was aware till then of the
alleged relationship between the defendant and Mahendra. But the wife may have been
apprehensive that the plaintiff had known of her relations with Mahendra. That apprehension
may have induced her to keep out of the plaintiff's way.

The most important event which led to the ulti- mate rupture between the parties took place on
May 21, 1947, when in the morning the plaintiff's father placed Mahendra's letter aforesaid in the
plaintiff's hands.

The letter which has rightly been pointed out in the courts below as the root case of the trouble is
in its relevant parts in these terms:-

"Mahendrababu, Your letter has been received. I have read the same and have noted the contents.
In the same way, I hope, you will take the trouble of writing me a letter now and then. I am
writing, this letter with fear in my mind, because if this reaches anybody's hands, that cannot be
said to be decent. What the mind feels has got to be constrained in the mind only. On the pretext
of lulling (my) son to sleep, I have been sitting here in this attic, writing this letter to you. All
others are chitchatting below. I am thinking now and then that I shall write this and shall write
that. Just now my brain cannot go in any way. I do not feel like writing on the main point. The
matters on which we were to remain anxious and you particularly were anxious, well we need
not now be. I very much repented later on in my mind. But after all love is such an affair. (Love
begets love).

........................................ "While yet busy doing services to my mother-in-law, the clock strikes
twelve. At this time, I think of you and you only, and your portrait shoots up before my eyes. I
am reminded of you every time. You write of coming, but just now there is nothing like a
211
necessity, why unnecessarily waste money? And again nobody gets salvation at my bands and
really nobody will. You know the natures of all. Many a time I get tired and keep on being
uneasy in my mind, and in the end I weep and pray God and say, 0 Lord, kindly take me away
soon: I am not obsessed by any kind of anxiety and so relieve me from this mundane existence. I
do not know how many times I must be thinking of you every day................"

This letter is not signed by the defendant and in place of the signature the word "namaste" finds
place. The contents of the letter were put to the defendant in cross-examination. At that time it
was no more a contested document, the defendant's counsel having admitted it during the cross-
examination" of the plaintiff. She stated that she had feelings for Mahendra as a brother and not
as a lover' When the mysterious parts of the letter beginning with the words "The matters on
which" and ending with the words "such an affair" were put to her, she could not give any
explanation as to what she meant. She denied the suggestion made on behalf of the plaintiff in
these words:-

"It is not true that the reference here is to our having had sexual intercourse and being afraid that
I might remain pregnant".

The sentence "I very much repented later on in my mind" was also put to her specifically and her
answer was "I do not know what I repented for. I wrote some thing foolishly". Pressed further
about the meaning of the next sentence after that, her answer was "I cannot now understand how
I came to write such a letter. I admit that this reads like a letter written by a girl to her lover.
Besides the fact that my brain was not working properly I bad no explanation to give as to how I
wrote such a letter". She also admitted that she took good care to see that the. other members of
the family, meaning the mother-in-law and the sisters-in-law, did not see her writing that letter
and that she wanted that the letter should remain a secret to them. Being further pressed to
explain the sentence "We need not be anxious now", her answer was " I did not intend to convey
that I had got my monthly period about which we were anxious. I cannot say what the normal
natural meaning of this letter would be". She bad admitted having received at least one letter
from Mahendra. Though it would appear from the trend of her cross-examination that she
received more letters than one, she stated that she did not preserve any of his letters. She has
further admitted in cross-examination "I have not signed this letter. It must have remained to be
signed by mistake. I admit that under the letter where the signature should be I have put the word
'Namaste' only. It is not true that I did not sign this letter because I was afraid, that if it got into
the hands of any one, it might compromise me and Mahendra. Mahendra would have known
from my handwriting that this was my letter. I had previously written one letter to him. That
letter also I had not signed. I had only said 'Namaste"'.

The tenor of the letter and the defendant's explanation or want of explanation in the witness box
of those portions of the letter which very much need explanation would leave no manner of
doubt in any person who read that letter that there was something between her and Mahendra
which she was interested to keep a secret from everybody. Even when given the opportunity to
explain, if she could, those portions of the letter, she was not able to put any innocent meaning to
her words except saying in a bland way that it was a letter from a sister to a brother. The trial
court rightly discredited her testimony relating to her answers with respect to the contents of the
letter. The letter shows a correspondence between her and Mahendra which was clearly
unworthy of a faithful wife and her pose of innocence by characterising it as between a sister and
a brother is manifestly disingenuous. Her explanation, if any, is wholly unacceptable. The
plaintiff naturally got suspicious of his wife and naturally taxed her with reference to the
contents of the letter. That she had a guilty mind in respect of the letter is shown by the fact that
212
she at first denied having written any such letter to Mahendra, a denial in which she persisted
even in her answer to the plaint. The plaintiff's evidence that he showed her a photostatic copy of
that letter on May 23, 1947, and that she then admitted having written that letter and that she bad
tender feelings for Mahendra can easily be believed. The learned trial Judge was therefore
justified in coming to the conclusion that the letter betrayed on the part of the writer "a
consciousness of guilt". But it is questionable how far the learned Judge was justified in
observing further that' the contents of the letter "are only capable of the interpretation that she
had misbehaved with Mahendra during the absence of the plaintiff". If he meant by the word
"misbehaved" that the defendant had sexual intercourse with Mahendra, he may be said to have
jumped to the conclusion which did not necessarily follow as the only conclusion from them.
The very fact that a married girl was writing amorous letters to a man other than her husband was
reprehensible and easily capable of furnishing good grounds to the husband for suspecting the
wife's fidelity. So far there can be no difficulty in assuming that the husband was fully justified
in losing temper with his wife and in insisting upon her repentance and assurance of good
conduct in future. But we are not prepared to say that the contents of the letter are capable of
only that interpretation and no other.

the learned Judges of the Appeal Court were inclined to view this letter as an evidence merely of
what is sometimes characterised as "platonic love" between two persons who by reasons of bond
of matrimony are compelled to restrain themselves and not to go further than merely showing
love and devotion for each other. We are not prepared to take such a lenient, almost indulgent,
view of the wife's conduct as betrayed in the letter in question. We cannot but sympathise with
the husband in taking a very serious view of the lapse on the wife's part. The learned Judges of
the Appeal Court have castigated the counsel for the plaintiff for putting those questions to the
defendant in cross-examination.

They observe in their judgment (speaking through the Chief Justice) that there was no
justification for the counsel for the plaintiff to put to the defendant those questions in cross-
examination suggesting that she had intercourse with Mahendra as a result of which they were
apprehending future trouble in the shape of pregnancy and illegitimate child birth. It is true that it
was not in terms the plaintiff's case that there had been an adulterous intercourse between the
defendant and Mahendra. That need not have been so, because the Act does not recognise
adultery as one of the grounds for divorce. But we do not agree with the appellate Court that
those questions to the defendant in cross-examination were not justified. The plaintiff proposed
to prove that the discovery of the incriminating letter containing those mysterious sentences was
the occasion for the defendant to make up her mind to desert,the plaintiff. We do not therefore
agree with the observations of the appellate Court in all that they have said in respect of the letter
in question.

There can be no doubt that the letter in question made the plaintiff strongly suspicious of his
wife's conduct (to put it rather mildly), and naturally he taxed his wife to know from her as to
what she bad to say about her relations with Mahendra. She is said to have confessed to him that
Mahendra was a better man than the plaintiff and that he loved her and she loved him. When
matters had come to such a head, the natural reaction of the parties would be that the husband
would get not only depressed, as the plaintiff admitted in the witness box, but would in the first
blush think of getting rid of such an unloving, if not a faithless, wife. The natural reaction of the
defendant would be not to face the husband in that frame of mind. She would naturally wish to
be out of the sight of her husband at least for some time, to gain time for trying, if she was so
minded, to reestablish herself in her husband's estimation and affection, if not love. The event of
the afternoon of May 24, 1947, must therefore be viewed in that light. There was going to be
213
performed the marriage of the defendant's cousin at her father's place of business in Jalgaon,
though it was about five to six weeks from then.

The plaintiff would make it out in his evidence that she left rather in a recalcitrant mood in the
afternoon during his absence in office with all her belongings and that she had refused his offer
of being sent in his car to station and Rs. 100 for' expenses. This conduct on the part of the wife
can easily be explained as that of a person who had found that her love letter had been
discovered by the husband. She would-naturally try to flee away from the husband for the time
being at least because she had not the moral courage to face him.

The question is whether her leaving her marital home on the afternoon of May 24, 1947, is only
consistent with her having deserted, her husband, in the sense that she had deliberately' decided
permanently to forsake all relationship with her husband with the intention of not returning to
consortium, without the consent of the husband and against his wishes. That is the plaintiff's
case. May that conduct be not consistent with the defendant's case that she had not any such
intention, i.e., being in desertion? The following observations of Pollock, M. R. in Thomas v.
Thomas(1) may usefully be quoted in this connection:-

"Desertion is not a single act complete in itself and revocable by a single act of repentance.

The act of departure from the other spouse draws its significance from the purpose with which it
is done, as revealed by conduct or other expressions of intention: see Charter v. Charter(2). A
mere temporary parting is equivocal, unless and until its purpose and object is made plain.

I agree with the observations of Day J. in Wilkinson v. Wilkinson(3) that desertion is not a
specific act, but a course of conduct. As Corell Barnes J. said in Sickert v. Sickert(4): 'The party
who intends bringing the cohabitation to an end, and whose conduct in reality causes its
termination, commits the act of desertion'. That conduct is not necessarily wiped out by a letter
of invitation to the wife to return".

The defendant's further case that she bad been turned out of the house by the husband under
duress cannot be accepted because it is not corroborated either by circumstances or by direct
testimony. Neither her father nor her cousin say a word about her speaking to them on her arrival
at Jalgaon that she had been turned out of her husband's home. If her case that she bad been
forcibly turned out of her marital home by the husband had been made out, certainly the husband
would have been guilty of "constructive desertion", because the test is not who left the
matrimonial home first. (See Lang v. Lang(1)). If one spouse by his words and conduct compel
the other spouse to leave the marital home. the former would be guilty of desertion, though it is
the latter who has physically separated from the other and has been made to leave the marital
home. It should be noted that the wife did not cross-petition for divorce or for any other relief.
Hence it is no more necessary for us to go into that question. It is enough to point out that we are
not prepared to rely upon the uncorroborated testimony 'of the defendant Chat she had been
compelled to leave her marital home by the threats of the plaintiff.

The happenings of May 24, 1947, as pointed out above, are consistent with the plaintiff's case of
desertion by the wife. But they are also consistent not with the defendant's case as actually
Pleaded in her written statement, but with the fact; and circumstances disclosed in the evidence,
namely, that the defendant having been discovered in her clandestine amorous correspondence
with her supposed paramour Mahendra, she could not face her husband or her husband's people
living in the same flat in Bombay and therefore shamefacedly withdrew herself and went to her
214
parent's place of business in Jalgaon on the pretext of the marriage of her cousin which was yet
far off. That she was not expected at Jalgaon on that day in connection with the marriage is
proved by her own admission in the witness box that "when I went to Jalgaon everyone was
surprised". As pointed out above, the burden is on the plaintiff to prove desertion without cause
for the statutory period of four years, that is. to say, that the deserting spouse must be in
desertion throughout the whole period. In this connection the following observations of Lord
Macmillan in his speech in the House of Lords in the case of Pratt v. Pratt(2 ) are apposite:-

"In my opinion what is required of a petitioner for divorce on the ground of desertion is proof
that throughout the whole course of the three years the respondent has without cause been in
desertion. ,The deserting spouse must be shown to have persisted in the intention to desert
throughout the whole period. In fulfilling its duty of determining whether on the evidence a case
of desertion without cause has been proved the court ought not, in my opinion, to leave out of
account the attitude of mind of the petitioner. If on the facts it appears that a petitioning husband
has made it plain to his deserting wife that he will not receive her back, or if he has repelled all
the advances which she may have made towards a resumption of married life, he cannot
complain that she has persisted without cause in her desertion".

The plaintiff must satisfy the court that the defendant had been in desertion for the continuous
period of four years as required by the Act. If we come to the conclusion that the happenings of
May 24, 1947, are consistent with both the conflicting theories, it is plain that the plaintiff has
not succeeded in bringing the offence of desertion home to the defendant beyond all reasonable
doubt.

We must therefore examine what other evidence there is in support of the plaintiff's case and in
corroboration of his evidence in court.

The next event of importance in this narrative is the plaintiff's solicitor's letter of July 15, 1947,
addressed to the defendant, care of her father at Jalgaon. The defendant's cousin's marriage was
performed towards the end of June and she could have come back to her husband's place, soon
thereafter' Her evidence is that after the marriage had been performed she was making
preparations to go back to Bombay but her father detained her and asked her to await a letter
from the plaintiff. The defendant instead of getting an invitation from the plaintiff to come back
to the marital home received the solicitor's letter aforesaid, which, to say the least, was not
calculated to bring the parties nearer.

". Thus if the solicitor's letter is any indication of the working of the mind of the plaintiff, it
makes it clear that at that time the plaintiff did not believe that the defendant had been in
desertion and that the plaintiff had positively come to the determination that he was no longer
prepared to affirm the marriage relationship. As already indicated, one of the essential conditions
for success in a suit for divorce grounded upon desertion is that the deserted spouse should have
been willing to fulfill his or her part of the marital duties. The statement of the law in para 457 at
p. 244 of Halsbury's Laws of England (3rd Edn. Vol 12) may be usefully quoted:

"The burden is on the petitioner to show that desertion without cause subsisted, throughout the
statutory period. The deserting spouse must be shown to have persisted in the intention to desert
throughout the whole of the three year period. It has been said that a petitioner should be able
honestly to say that he or she was all along willing to fulfill the duties of the marriage, and that
the desertion was against his or her will, and continued throughout the statutory period without
his or her consent; but in practice it is accepted that once desertion has been started by the fault
215
of the deserting spouse, it is no longer necessary for the deserted spouse to show that during the
three years preceding the petition be or she actually wanted the other spouse to come back, for
the intention to desert is presumed to continue. That presumption may, however, be rebutted".

Applying those observations to the facts of the present case, can the plaintiff honestly say that be
was all along willing to fulfill the duties of the marriage and that the defendant's desertion, if
any, continued throughout the statutory period without his consent. The letter, Ex. A) is an
emphatic no. In the first place, even the plaintiff in that letter did not allege any desertion and,
secondly, he was not prepared to receive her back to the matrimonial home. Realising his
difficulty when cross-examined as to the contents of that letter, he wished the court to believe
that at the time the letter was written in his presence he was "in a confused state of mind" and did
not remember exactly whether he noticed the sentence -that he did not desire to keep his wife
any longer. Pressed fur- ther in cross-examination, he was very emphatic in his answer and
stated:-

"It is not true that by the date of this letter I had made up my mind not to take her back. It was
my hope that the letter might induce her parents to find out what had happened, and they would
persuade her to come back. I am still in the confused state of mind that despite my repeated
attempts my wife puts me off".

In our opinion, the contents of the letter could not thus be explained away by the plaintiff in the
witness box. On the other hand, it shows that about seven weeks after the wife's departure for her
father's place the plaintiff had at least for the time being convinced himself that the defendant
was no more a suitable person to live with. That, as found by us, be was justified in this attitude
by the reprehensible conduct of his wife during his absence is beside the point. This letter has an
importance of its own only in so far as it does not corroborate the plaintiff's version that the
defendant was in desertion and that the plaintiff was all along anxious to induce her to come
back to him. This letter is more consistent with the supposition that the husband was very angry
with her on account of her conduct as betrayed by the letter, Ex. E and that the wife left her
husband's place in shame not having the courage to face him after that discovery. But that will
not render her in the eye of the law a deserter, as observed by Pollock, M. R. in Bowron v.
Bowron(1) partly quoting from Lord Gorell as follows:-

"In most cases of desertion the guilty party (1) [1925] P. 187, 192.

actually leaves the other, but it is not always or necessarily the guilty party who leaves the
matrimonial home. In my opinion, the party who intends bringing the cohabitation to an end, and
whose conduct in reality causes its termination, commits the act of desertion: See also Graves v.
Graves(1); Pulford v. Pulford(2); Jackson v. Jackson(2); where Sir Henry Duke P. explains the
same doctrine. You must look at the conduct of the spouses and ascertain their real intention".

It is true that once it is found that one of the spouses has been in desertion, the presumption is
that the desertion has continued and that it is not necessary for the deserted spouse actually to
take steps to bring the deserting spouse back to the matrimonial home. So far we do not.find any
convincing evidence in proof of the alleged desertion by the wife and naturally therefore the
presumption of continued desertion cannot arise.

But it is not necessary that at the time the wife left her husband's home, she should have at the
same time the animus deserendi. Let us therefore examine the question whether the defendant in
this case, even if she had no such intention at the time she left Bombay, subsequently decided to
216
put an end to the matrimonial tie. This is in consonance with the latest pronouncement of the
Judicial Committee of the Privy Council in the case of Lang v. Lang(1) in an appeal from the
decision of the High Court of Australia, to the following effect:-

"Both in England and in Australia, to establish desertion two things must be proved: first, certain
outward and visible conduct the 'factum' of desertion; secondly, the 'animus deserendi' the
intention underlying this conduct to bring the matrimonial union to an end.

In ordinary desertion the factum is simple: it is the act of the absconding party in leaving the
matrimonial home. The contest in such a case will be almost entirely as to the 'animus'. Was the
intention of the party leaving the home to break it up for good, or something short of, or
different from that?"

In this connection the episode of November, 1947, when the plaintiff's mother came from Patan
to Bombay is relevant. It appears to be common ground now that the defendant had agreed to
come back to Bombay along with the plaintiff's mother or after a few days. But on this
information being given to the plaintiff he countermanded any such steps on the wife's part by
sending the telegram, Ex. B,aforesaid and the plaintiff's father's letter dated November 15, 1947.
'We are keeping out of consideration for the present the letter, Ex. C, dated November 13, 1947,
which is not admitted to have been received either by the defendant or her father. The telegram is
in peremptory terms: "Must not send Prabha". The letter of November 15, 1947, by the plaintiff's
father to the defendant's father is equally peremptory. It says "It is absolutely necessary that you
should obtain the consent of Chi. Bipinchandra before sending Chi. Prabhavati". The telegram
and the letter which is a supplement to the telegram, as found by the courts below, completely
negative the plaintiff's statement in court that he was all along ready and willing to receive the
defendant back to his home. The letter of November 13, 1947, Ex. C, which the plaintiff claims
to have written to his father-in-law in explanation of the telegram and is a prelude to it is
altogether out of tune with the tenor of the letter and the telegram referred to above. The receipt
of this letter has been denied by the defendant and her father. In court this letter has been
described as a fake in the sense that it was an afterthought and was written with a. view to the
legal position and particularly with a view to getting rid of the effect of the solicitor's letter of
July 15, which the plaintiff found it hard to explain away in the witness box. Neither the trial
court, which was entirely in favour of the plaintiff and which had accepted the letter as genuine,
nor the appellate Court, which was entirely in favour of the defendant has placed implicit faith in
the bona fides of this letter. The lower appellate Court is rather ironical about it, observing "This
letter as it were stands in isolated glory. There is no other letter. There is no other conduct of the
plaintiff which is consistent with this letter". Without going into the controversy as to the
genuineness or bona fldes of this letter, it can be said that the plaintiff's attitude, as disclosed
therein, was that he was prepared to take her back into the matrimonial home provided she wrote
a letter to him expressing real repentance and confession of mistake. This attitude of the plaintiff
cannot be said to be unreasonable in the circumstances of the case. He was more sinned against
than sinning at the beginning of the controversy between the husband and the wife.

This brings us to a consideration of the three attempts alleged by the plaintiff to have been made
by him to induce his wife to return to the matrimonial home when he made two journeys to Patan
in 1948 and the third journey in April- May, 1949, to Jalgaon. These three visits are not denied
by the defendant. The only difference between the parties is as to the purpose of the visit and the
substance of the talk between them. That the plaintiff's attachment for the defendant had not
completely dried up is proved by the fact that when he came to know that she had been suffering
from typhoid he went to Patan to see her. On this occasion which was the second visit the
217
plaintiff does not say that he proposed to her to come back and that she refused to do so. He only
says that she did not express any desire to come back. That may be explained as being due to
diffidence on her part. But in respect of the first and the third visits the plaintiff states that on
both those occasions he wanted her to come back but she refused. On the other hand, the
defendant's version is that the purpose of his visit was only to take away the child and not to take
her back to his home. It is also the plaintiff's complaint that the defendant never wrote any letter
to him offering to come back. The wife's answer is that she did write a few letters before the
solicitor's letter was received by the father and that thereafter under her father's advice she did
not write any more to the plaintiff. In this connection it becomes necessary to examine the
evidence of her cousin Babulal and her father Popatlal. Her cousin, Babulal, who was a member
of her father's joint family, deposes that on receipt of the letter, Ex. A, a fortnight later he and his
father, since deceased, came to Bombay and saw the plaintiff. They expostulated with him and
pleaded the defendant's cause and asked the plaintiff to forgive and forget and to take her back.
The plaintiff's answer was that he did not wish to keep his wife. The defendant's father's
evidence is to the effect that after receipt of the letter, Ex. A, he came to Bombay and saw the
plaintiff's father at his residence and protested to him that "a false notice had been given to us".
The plaintiff's father is said to have replied that they "would settle the matters amicably" He also
deposes as to his brother and his brother's son having gone to the plaintiff. He further states that
he with his wife and the defendant went to Patan and saw the plaintiff's mother and in
consultation with her made arrangements to send her back to 'Bombay. But before that could be
done the telegram, Ex. B, and the letter, Ex. D, were received and consequently he gave up the
idea of sending the defendant to Bombay without straightening matters. Both these witnesses on
behalf of the defendant further deposed to the defendant having done several times and stayed
with the plaintiff's family, particularly his mother at Patan along with the boy. The evidence of
these two witnesses on behalf of the defendant is ample corroboration of the defendant's ,case
and the evidence in court that she has all along been ready and willing to go back to the
matrimonial home. The learned trial Judge has not noticed this evidence and we have not the
advantage of his comment on this corroborative evidence. This body of evidence is in
consonance with the natural course of events. The plaintiff himself stated in the witness box that
he had sent the solicitor's' letter by way of a shock treatment to the defendant's family so that
they might persuade his wife to come back to his matrimonial home. The subsequent telegram
and letters (assuming that both the letters of the 13th and 15th November had been posted in the
usual course and received by the addressees) would give a shock to the family. Naturally
thereafter the members of the family would be up and doing to see that a reconciliation is
brought about between the husband and the wife. Hence the visits of the defendant's uncle and
the father would be a natural conduct after they had been apprised of the rupture between them.
We therefore do not see any sufficient reasons for brushing aside all that oral evidence which has
been believed by the Lower Appellate Court and had not in terms been disbelieved by the trial
court. This part of the case on behalf of the defendant and her evidence is corroborated by the
evidence of the defendant's relatives aforesaid. It cannot be seriously argued that evidence should
be disbelieved, because the witnesses happened to be the defendant's relatives. They were
naturally the parties most interested in bringing about a reconciliation They were anxious not
only for the welfare of the defendant but were also interested in the good name of the family and
the community as is only natural in families like these which have not been so urbanised as to
completely ignore the feelings of the community. They would therefore be the persons most
anxious in the interests of all the parties concerned to make efforts to bring the husband and the
wife together and to put an end to a controversy which they con- sidered to be derogatory to the
good name and, prestige of the families concerned. The plaintiff's evidence, on the other hand,
on this part of the case is uncorroborated. Indeed his evidence stands uncorroborated in many
parts of his case and the letters already discussed run counter to the tenor of his evidence in
218
court. We therefore feel inclined to accept the defendant's case that after her leaving her
husband's home and after the performance of her cousin's marriage she was ready and willing to
go back to her husband. It, follows from what we have said so far that the wife was not in
desertion though she left her husband's home without any fault on the part of the plaintiff which
could justify her action in leaving him, and that after the lapse of a few months' stay at her
father's place she was willing to go back to her matrimonial home.

This conclusion is further supported by the fact that between 1948 and 1951 the defendant stayed
with her mother- in-law at Patan whenever she was there, sometimes for months, at other times
for weeks. This conduct is wholly inconsistent with the plaintiff's case that the defendant was in
desertion during the four years that she was out of her matrimonial home. It is more consistent
with the defen- dant's attempts to. get herself re-established in her husband's home after the
rupture in May 1947 as aforesaid. It is also in evidence that at the suggestion of her mother- in-
law the defendant sent her three year old son to Bombay so that be might induce his' ,father to
send for the mother, The boy stayed in Bombay for about twenty days and then was brought.
back to Patan by his father as he (the boy) was unwilling to stay there without the mother., This
was in August_September 1948 when the defendant deposes to having questioned her husband
why she bad not been called back and the husband's answer was evasive. Whether or not this
statement of the defendant is true, there can be no doubt that the defendant would not have
allowed her little boy of about three years of age to be sent alone to Bombay except in the hope
that he might be instrumental in bringing about a reconciliation between the father and the
mother. The defendant has deposed to the several efforts made by her mother-in-law and her
father-in-law to intercede on her behalf with the plaintiff but without any result. There is no
explanation why the plaintiff could not examine his father and mother in corroboration of his
case of continuous desertion for the statutory period by the defendant. Their evidence would
have been as valuable, if not more, as that of the defendant's father and cousin as discussed
above. Thus it is not a case where evidence was not available in corroboration of the plaintiff's
case. As the plaintiff's evidence on many important aspects of the case has remained
uncorroborated by evidence which could be available to him, we must hold that the evidence
given by the plaintiff falls short of proving his case of desertion by his wife.

In view of our finding that the plaintiff has failed to prove his case of desertion by the defendant.
The appeal is accordingly dismissed.

Supreme Court of India

Manish Goel vs Rohini Goel on 5 February, 2010

Bench: Aftab Alam, B.S. Chauhan

MANISH GOEL
v.
ROHINI GOEL
(
[Aftab Alam and Dr. B.S. Chauhan, JJ.]
2010 (2) SCR 414

219
 The Order of the Court was delivered by

ORDER

DR. B.S. CHAUHAN, J. 1. This case reveals a very sorry state of affairs that the parties, merely
being highly qualified, have claimed even to be higher and above the law, and have a vested
right to use, misuse and abuse the process of the Court. Petitioner, the husband, possesses the
qualifications of CA, CS and ICWA, while the proforma respondent-wife is a Doctor (M.D.,
Radio-Diagnosis) by profession. The parties got married on 23rd July, 2008 in Delhi. Their
marriage ran into rough weather and relations between them became strained immediately after
the marriage and they are living separately since 24.10.2008. Petitioner-husband filed a
Matrimonial Case under Section 12 of the Hindu Marriage Act, 1955 (hereinafter called as "the
Act") for annulment of marriage before a competent Court at Gurgaon. The respondent-wife,
Smt. Rohini Goel filed a petition under Section 12 r/w Section 23 of the Domestic Violence Act,
2005 before the competent Court at Delhi. An FIR was also lodged by her against petitioner-
husband and his family members under Sections 498-A, 406 and 34 of Indian Penal Code, 1860
at PS Janakpuri, New Delhi.

2. It is stated at the Bar that by persuasion of the family members and friends, the parties entered
into a compromise and prepared a Memorandum of Understanding dated 13.11.2009 in the
proceedings pending before the Mediation Centre, Delhi by which they agreed on terms and
conditions incorporated therein, to settle all their disputes and also for dissolution of their
marriage. The parties filed an application under Section 13-B(1) of the Act before the Family
Court, i.e. ADJ-04 (West) Delhi seeking divorce by mutual consent. The said HMA No.456 of
2009 came before the Court and it recorded the statement of parties on 16.11.2009. The parties
moved another HMA No. 457 of 2009 to waive the statutory period of six months in filing the
second petition. However, the Court rejected the said application vide order dated 1.12.2009
observing that the Court was not competent to waive the required statutory period of six months
under the Act and such a waiver was permissible only under the directions of this Court as held
by this Court in Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415. Hence, this petition.

3. The learned counsel for the petitioner submits that there is no prohibition in law in
entertaining the petition under Article 136 of the Constitution against the order of the Family
Court and in such an eventuality, there was no occasion for the petitioner to approach the High
Court as the relief sought herein cannot be granted by any court other than this Court. Thus, the
petitioner has a right to approach this Court against the order of the Family Court and the
petitioner cannot be non-suited on this ground alone.

4. Article 136 of the Constitution enables this Court, in its discretion to grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.

Undoubtedly, under Article 136 in the widest possible terms, a plenary jurisdiction exercisable
on assuming appellate jurisdiction has been conferred upon this Court. However, it is an extra-
ordinary jurisdiction vested by the Constitution in the Court with implicit trust and faith and thus,
extra ordinary care and caution has to be observed while exercising this jurisdiction. There is no
vested right of a party to approach this Court for the exercise of such a vast discretion, however,
such a course can be resorted to when this court feels that it is so warranted to eradicate injustice.
Such a jurisdiction is to be exercised by the consideration of justice and call of duty. The power
220
has to be exercised with great care and due consideration but while exercising the power, the
order should be passed taking into consideration all binding precedents otherwise such an order
would create problems in the future. The object of keeping such a wide power with this Court
has been to see that injustice is not perpetuated or perpetrated by decisions of courts below. More
so, there should be a question of law of general public importance or a decision which shocks the
conscience of the court are some of the prime requisites for grant of special leave. Thus, unless it
is shown that exceptional and special circumstances exist that substantial and grave injustice has
been done and that the case in question presents features of sufficient gravity warranting review
of the decision appealed against, such exercise should not be done. The power under Article 136
cannot be used to short circuit the legal procedure prescribed in overriding power. This Court
generally does not permit a party to by-pass the normal procedure of appeal or reference to the
High Court unless a question of principle of great importance arises. It has to be exercised
exceptionally and with caution and only in such an extra- ordinary situations. More so, such
power is to be exercised taking into consideration the well established principles which govern
the exercise of overriding constitutional powers (vide Dhakeswari Cotton Mills Ltd. v.
Commissioner of Income Tax, West Bengal AIR 1955 SC 65; The Union of India v. Kishorilal
Gupta & Bros. AIR 1959 SC 1362; Murtaza & Sons & Anr. v. Nazir Mohd. Khan & Ors. AIR
1970 SC 668; Sirpur Paper Mills Ltd. v. Commissioner of Wealth Tax, Hyderabad AIR 1970 SC
1520; The Municipal Corporation, Bhopal v. Misbahul Hasan & Ors. AIR 1972 SC 892; Delhi
Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors. AIR 1991 SC
2176; Tirupati Balaji Developers Pvt. Ltd. & Ors. v. State of Bihar & Ors. AIR 2004 SC 2351;
and F.G.P. Ltd. v. Saleh Hooseini Doctor (2009) 10 SCC 223).

5. In Union of India & Ors. v. Karnail Singh (1995) 2 SCC 728, this court while dealing with the
similar issue held as under:

"It is true that this Court when exercises its discretionary power under Article 136 or passes any
order under Article 142, it does so with great care and due circumspection. But, when we are
settling the law in exercise of this court's discretion, such law, so settled, should be clear and
become operational instead of being kept vague, so that it could become a binding precedent in
all similar cases to arise in future."

6. It has been canvassed before us that under Article 142 of the Constitution, this Court is
competent to pass any order to do complete justice between the parties and grant decree of
divorce even if the case may not meet the requirement of statutory provisions. The instant case
presents special features warranting exercise of such power.

We are fully alive of the fact that this court has been exercising the power under Article 142 of
the Constitution for dissolution of marriage where the Court finds that marriage is totally
unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the
facts of the case do not provide a ground in law on which the divorce could be granted. Decree of
divorce has been granted to put quietus to all litigations between the parties and to save them
from further agony, as it is evident from the judgments in Romesh Chander v. Savitri AIR 1995
SC 851; Kanchan Devi v. Promod Kumar Mittal AIR 1996 SC 3192; Anita Sabharwal v. Anil
Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri AIR 1997 SC 1266; Kiran v.
Sharad Dutt (2000) 10 SCC 243; Swati Verma v. Rajan Verma AIR 2004 SC 161; Harpit Singh
Anand v. State of West Bengal (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan
Sharad Purohit (2005) 13 SCC 410; Durga P. Tripathy v. Arundhati Tripathy AIR 2005 SC
3297;; Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675; Sanghamitra Ghosh v. Kajal Kumar

221
Ghosh (2007) 2 SCC 220; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh
v. Jaya Ghosh (2007) 4 SCC 511; and Satish Sitole v. Ganga AIR 2008 SC 3093.

However, these are the cases, where this Court came to rescue the parties on the ground for
divorce not provided for by the legislature in the statute.

7. In Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194, this Court while allowing a transfer
petition directed the court concerned to decide the case of divorce by mutual consent, ignoring
the statutory requirement of moving the motion after expiry of the period of six months under
Section 13- B(2) of the Act.

8. In Anil Kumar Jain (supra), this Court held that an order of waiving the statutory requirements
can be passed only by this Court in exercise of its powers under Article 142 of the Constitution.
The said power is not vested with any other court.

9. However, we have also noticed various judgments of this Court taking a contrary view to the
effect that in case the legal ground for grant of divorce is missing, exercising such power
tantamounts to legislation and thus transgression of the powers of the legislature, which is not
permissible in law (vide Chetan Dass v. Kamla Devi AIR 2001 SC 1709; and Vishnu Dutt
Sharma v. Manju Sharma (2009) 6 SCC 379).

10. Generally, no Court has competence to issue a direction contrary to law nor the Court can
direct an authority to act in contravention of the statutory provisions. The courts are meant to
enforce the rule of law and not to pass the orders or directions which are contrary to what has
been injected by law. (Vide State of Punjab & Ors. v. Renuka Singla & Ors (1994) 1 SCC 175;
State of U.P. & Ors. v. Harish Chandra & Ors. AIR 1996 SC 2173; Union of India & Anr. v.
Kirloskar Pneumatic Co. Ltd. AIR 1996 SC 3285; Vice Chancellor, University of Allahabad &
Ors. v. Dr. Anand Prakash Mishra & Ors. (1997) 10 SCC 264; and Karnataka State Road
Transport Corporation v. Ashrafulla Khan & Ors. AIR 2002 SC 629).

11. A Constitution Bench of this Court in Prem Chand Garg & Anr. v. Excise Commissioner,
U.P. & Ors. AIR 1963 SC 996 held as under:

"An order which this Court can make in order to do complete justice between the parties, must
not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot
even be inconsistent with the substantive provisions of the relevant statutory laws."

The Constitution Benches of this Court in Supreme Court Bar Association v. Union of India &
Anr. AIR 1998 SC 1895; and E.S.P. Rajaram & Ors. v. Union of India & Ors. AIR 2001 SC 581
held that under Article 142 of the Constitution, this Court cannot altogether ignore the
substantive provisions of a statute and pass orders concerning an issue which can be settled only
through a mechanism prescribed in another statute. It is not to be exercised in a case where there
is no basis in law which can form an edifice for building up a superstructure.

12. Similar view has been reiterated in A.R. Antulay v. R.S. Nayak & Anr. (1988) 2 SCC 602;
Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra (1995) 6 SCC 447; Common
Cause, a Registered Society v. Union of India & Ors. AIR 1999 SC 2979; M.S. Ahlawat v. State
of Haryana AIR 2000 SC 168; M.C. Mehta v. Kamal Nath & Ors. AIR 2000 SC 1997; State of
Punjab & Anr. v. Rajesh Syal (2002) 8 SCC 158; Government of West Bengal v. Tarun K. Roy
& Ors. (2004) 1 SCC 347; Textile Labour Association v. Official Liquidator AIR 2004 SC 2336;
222
State of Karnataka & Ors. v. Ameerbi & Ors. (2007) 11 SCC 681; Union of India & Anr. v.
Shardindu AIR 2007 SC 2204; and Bharat Sewa Sansthan v. U.P. Electronic Corporation Ltd.
AIR 2007 SC 2961.

13. In Teri Oat Estates (P) Ltd. v. UT. Chandigarh (2004) 2 SCC 130, this Court held as under:

"36..... sympathy or sentiment by itself cannot be a ground for passing an order in relation
whereto the appellants miserably fail to establish a legal right. ... despite an extraordinary
constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court
ordinarily would not pass an order which would be in contravention of a statutory provision."

14. In Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan (2009) 10 SCC 425, while
dealing with the provisions of Article 142 of the Constitution, this Court has held as under:

" ....The power under Article 142 of the Constitution is a constitutional power and hence, not
restricted by statutory enactments. Though the Supreme Court would not pass any order under
Article 142 of the Constitution which would amount to supplanting substantive law applicable or
ignoring express statutory provisions dealing with the subject, at the same time these
constitutional powers cannot in any way, be controlled by any statutory provisions. However, it
is to be made clear that this power cannot be used to supplant the law applicable to the case. This
means that acting under Article 142, the Supreme Court cannot pass an order or grant relief
which is totally inconsistent or goes against the substantive or statutory enactments pertaining to
the case. The power is to be used sparingly in cases which cannot be effectively and
appropriately tackled by the existing provisions of law or when the existing provisions of law
cannot bring about complete justice between the parties." (Emphasis added)

15. Therefore, the law in this regard can be summarised to the effect that in exercise of the power
under Article 142 of the Constitution, this Court generally does not pass an order in
contravention of or ignoring the statutory provisions nor the power is exercised merely on
sympathy.

16. The instant case requires to be examined in the light of aforesaid settled legal propositions.
Parties got married on 23.7.2008 and as they could not bear each other, started living separately
from 24.10.2008. There had been claims and counter claims, allegations and criminal
prosecution between them. Petitioner approached the Competent Court at Gurgaon for
dissolution of marriage. Admittedly, that case is still pending consideration. Parties filed the
petition for divorce by mutual consent only in November 2009 before the Family Court, Delhi.
Learned counsel for the petitioner could not explain as to how the case for divorce could be filed
before the Family Court, Delhi during the pendency of the case for divorce before the Gurgaon
Court. Such a procedure adopted by the petitioner amounts to abuse of process of the court.
Petitioner has approached the different forums for the same relief merely because he is very
much eager and keen to get the marriage dissolved immediately even by abusing the process of
the Court. In Jai Singh v. Union of India AIR 1977 SC 898, this Court while dealing with a
similar issue held that a litigant cannot pursue two parallel remedies in respect of the same matter
at the same time. This judgment has subsequently been approved by this Court in principle but
distinguished on facts in Awadh Bihari Yadav v. State of Bihar AIR 1996 SC 122; and Arunima
Baruah v. Union of India (2007) 6 SCC 120.

17. In Dr. Buddhi Kota Subbarao v. K. Parasaran & Ors. AIR 1996 SC 2687, this Court has
observed as under:-
223
"No litigant has a right to unlimited drought on the Court time and public money in order to get
his affairs settled in the manner he wishes. However, access to justice should not be misused as a
licence to file misconceived and frivolous petitions."

18. Even otherwise, the statutory period of six months for filing the second petition under
Section 13-B(2) of the Act has been prescribed for providing an opportunity to parties to
reconcile and withdraw petition for dissolution of marriage. Learned counsel for the petitioner is
not able to advance arguments on the issue as to whether, statutory period prescribed under
Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be
dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.

Thus, this is not a case where there has been any obstruction to the stream of justice or there has
been injustice to the parties, which is required to be eradicated, and this Court may grant
equitable relief. Petition does not raise any question of general public importance. None of
contingencies, which may require this Court to exercise its extraordinary jurisdiction under
Article 142 of the Constitution, has been brought to our notice in the case at hand.

19. Thus, in view of the above, we do not find any justification to entertain this petition. It is
accordingly dismissed.

Bombay High Court

Abdur Rahim Undre vs Padma Adbur Rahim Undre on 30 January, 1982

Equivalent citations: AIR 1982 Bom 341, 2 (1982) DMC 204

Bench: C Dharmadhikari, S Deshpande

JUDGMENT Dharmadhikari, J.

1. The appelant-plaintiff Dr. Abdur Rahim Undre married Smt. Padma, respondent-defendant in
the United Kingdom on 5th May 1966. At the time of marriage plaintiff Abdur Rahim was a
Mohainmedan where as respondent Padma was a Hindu. Both of them were Indian citizens.
Their domicile was India. Both of then held Indian passports. On 6th of May 1965 the plaintiff
and the defendant went to the office of Registrar of Marriages at Weymouth. Before that a
necessary notice of intention to marry was already given. There after on 6th May 1966 the
parties went through the marriage ceremony before the Registrar and the said marriage was duly
registered. The marriage certificate relating to this marriage duly authenticated and certified copy
is also on record. From this certificate it appears that the marriage Act, 1949. After this marriage
birth of Shabnam took place on 18th of May 1957. Of Shama on 19-11-68. Thereafter on 4th
Apr., 1969 the plaintiff and the defendant with their children returned to India. After their return
on 14th of Nove., 1969 Suhail, a boy was born. It is the case of the appellant-plaintiff that on
29th Dec., 1969 conversion of the defendant Padma took place and she was converted to Muslim
religion. On the same day a Nikah ceremony was also performed. Thereafter on 21st of Nov.,
1973 Sabir, a boy was born. Thereafter relations between the parties became strained and hence
the plaintiff further alleged that he gave tala to the defendatn Padma on 20-4-78. This talaq was
given in the absence of defendant Padma. However, an oral intimation about it was given to her
in paradise apartment on the same night. It is the case of the appellant that he was forced to give
224
divorce in view of the extreme cruelty meted out to him by Smt. Padma. She had been carrying
on a sustanined and deliberate campaign of defaming him which resulted in causing acute mental
tension as well as interference with his professional duties. He also alleged that due to the
illtreatment meted out by Smt. Padma and her indifferent attitude towards him and the members
of his family, the marriage relationship had broken down beyond the scope of reconcillation and
in these circumstances he dissolved the marriage by giving unilateral talaq on 20-4-1978. After
thid divorce he told the reepondent-defendant not to enter his realdential premises. However, the
respondent went to the said flat, broke it open and took away several things, articles, jewellery
etc. About which the appellant had to lodge a police complaint. It is the case of the plaintiff that
he was in exclusive possession and occupation of the flat at Nepean Sea Road. He also
contended that the four children were living with with him and were under his care and custody.
As according to plaintiff he became apprehensive that the defendant was likely to enter upon and
remain in the said flat with the help of hirelings and would also go to the extent of forcibly
removing the children from his custody, he was constrainted to file the present suit for a
permanent injunction against the defendant. The suit was filed on 24th of Apr., 1978. On the
same day an ex parts injunction was granted by the Court against the defendant. On 22nd of
June, 1979 the said ex parte injunction was confirmed. Therefore, the respondent filed an appeal
against the said order on 21st of July 1978 bearing A.O. No. 251 or 1978. Desai. J. Vide order
dated 29th Aug., 1976 confirmed the order passed by the trial Court on certain terms. After the
judgment in A.O. the plaint was amended and the plaintiff also sought a declaration from the
Court that the defendant was not his wife. While amending the plaint the plaintiff alleged that on
29-11-1969 the respondent-defendant had embraced Lslam and went through the Nikah
ceremony at 303. Abdul Rahman Street at his father's residence and that on 20th Apr., 1978 he
gave her talaq and thus dissolved marriage relationship. He alternatively contended that even
assuming that the defendant was not a Muslim and was a Hindu as contended by her, still
Muslim personal law was applicable to their relationship and the plaintiff was entitled to dissolve
the marriage by giving talaq as per Mohammedan Law. Thus the suit filed by the plaintiff was
one for declaration as well as for injunction.

2. The defendant denied various allegations made in the plaint and also filed a counter-claim.
According to her the court had no jurisdiction to entertain and try the suit and the suit filed was
misconceived and bad in law. She also contended that the plaintiff had not come to court with
clean hands. According to her the marriage in England was under civil law of England She also
contended that the flat in Paradise Apartment was secuted out of their joint contribution and the
said flat is also her matrimonial home. Therefore she is entitled to stay therein in her own right as
wife as well as joint owner. She denied the factum of conversion or Nikah, and contended that
the averments made in the behalf were wholly false. She also dented the factum of divorce of
talaq. She maintained that all through she was a Hindu and continues to be a Hindu even today.
According to her the marriage is not yet dissolved in accordance with law and, therefore, the
plaintiff is not entitled to any declaration in that behalf. She denied the alegation regarding
cruelty or that the children were under protection and custody of the plaintiff. She also denied
that she had any intention to forcibly remove the children with the help of hirelings. Whe also
dented that she had ever broken open the flat or had illegally entered in to the same. In the
counter-claim she claimed that the flat is of joint ownership. The plaintiff filed his say in reply to
the counter-claim denying the allegations made therein. In view of the pleadings of the parties,
the learned Judge of the Civil Court, Bomfay Iramed the following issues:

"1. Whether this Hon'ble Court has jurisdiction to try and entertain this uit in repect of prayer (b)
of the plaint as alleged in para 1 of written statement?

225
2. Which law will apply to the parties as regard marriage and divorce?

3,Does the plaintiff prove that the defendant embraced Lslam on 29-12-1969 and was a Muslim
thereafter?

4. Does the plaintiff prove that the defendant went through Nikah ceremony with him on 29-12-
1960?

5. Whether the plaintiff proves that the defendant has been duly divorced as alleged by the
plaintiff?

6. Is it proved that the premises of flat No. 12-A, Paradise Apartments is the Matrimonial home
of the parties?

7. If so, does the defendant further prove that she continues to be entitled to the user of the
aforesaid premises for her residence?

8. Whether the plaintiff is entitled to any reliefs as prayed for and if so, what?

9. Is the counter-claim correctly valued for the purpose of Jurisdiction and court-fee?

10. Does the defendant prove that the marriage between her and the plaintiff performed on 6-5-
1966 in England under the Civil Marriages Act, is still subsisting?

11. Does the defendant prove that the Talaknama is antedated and frabricated.

12. Is the defendant enutled to the deciarations or any of them as prayed in clauses (b) and (c) of
the prayers?

13.Is the defendant entitled to the orders of injunction as prayed in cls. (F). (G), (h), (I) and (j), of
prayers in the counter-claim?

14. Whether the defendant is entitled to any relief and if so what?

3. In support of his case the plaintiff examined as may as 11 witnesses including himself whereas
the defendant examined herself and two other witnesses. The parties also produced documentary
evidence before the trial court. After appreciating all the evidence on record both oral and
documentary the tiral court came to the conclusion that the Special Marriage Act read with
Foreign Mariage Act or English Law will apply to the parties as regards the marriage and
divorce. He also found that the plaintiff has failed to prove that the defendant embraced Islam on
29th Dec., 1969 or was a Muslim thereafter. He also held that the plaintiff failed to prove that the
defendant went through Nikah ceremony with him on 29-12-1969 as alleged. He also found that
the plaintiff has failed to prove that the detendant has been duly divorced as alleged by him. So
far as the flat in Paradise Apartment is concerned, the learned Judge came to the conslusion that
the said flat is a matrimonial home of the defendant and the defendant is entitled to the user of
the said premises for her residence, So far as the marriage in England is concerned, the learned
Judge came to the conclusion that the marriage between the parties on 6th of May, 1966 in
England was under the civil law of civil Marriage Act and is still subsisting. As a necessary
consequence of these findings he (we?) dismissed the suit filed by the plaintiff.

226
4. Being aggrieved by the findings as well as the judgment and the decree passed by the City
Civil Court, the plaintiff filed an appeal before this Court bearing First Appeal No. 307 of 1980.
The said appeal was heard by Mody. J. Disposed of the appeal on a pure question of law by
holding that the marriage in the present case was governed by the provisions of Foreign Marriage
Act, 1969, and therefore in case of such a marriage the divorce can be obtained by husband only
in accordance with the provisions of the said Act and not otherwise. He also came to the
conclusion that the plaintiff is also not entitled to equitable relief in the nature of injunction
having regard to the facts and circumstances of the case. Therefore, the learned single Judge
dismissed the appeal filed by the plaintiff.

5. Being aggrieved by this appellate judgment dated 9th July 1981, the plaintiff filed the present
Letters Patent Appeal. The said appeal was admitted on 22nd of July. 1981. But not stay was
granted. Against the interim order refusing the stay the appellant filed a special leave petition
before the Supreme Court. The Supreme Court refused to grant special leave vide order dated
31st of July, 1981 but asked this court to dispose of he appeal within on month. Thereafter on 4th
Aug., 1981 the defendant wife came to live in the Paradise Apartment. When the appeal came up
for hearing, a grievance was made before us that the learned single Judge committed an error in
not deciding all the issues involved in the appeal, including the controversy based on facts viz.
The alleged coversion, Nikah as well as talaq. Therefore, the parties filed before us on 3rd of
Nov., 1981, a joint purshis agreeing the all the questions and issues of facts and law, including
that of jurisdiction whether decided by the First appellate court or not should be decided by this
Court in the Leters Patent Appeal. In view of this joint purshis, we have permitted the learned
counsel appearing for both the sides to argue all the questions of law and facts. We have heard
the learned counsel on all the issues in detail.

6. Shri Mody, learned counsel appearing for the appellant contended before us that the learned
Judge of the first appellate court committed an error in coming to the conclusion that the
marriage between the parties is governed by the Foreign Marriage Act of 1969. According to
Shri Mody the said Act is not retrospective and, therefore, the provisions of S. 18(1) of the
Foreign Marriage Act are not applicable to the marriage which took place in the year 1955. He
contended that the law applicable to the said marriage is the personal law viz., Muslim Law and
according to the Muslim Law the plaintiff husband was authorised to give talaq ro hia wife
without intervention of court., He also contended that in any case S. 18 of the Foreign Marriage
the Mohemmedan Law Concurrently and, therefore, it was open to the plaintiff to give divorce to
his wife as per his personal law. He also contended that even if is is held that the marriage
between the parties which took place in the year 1966 in England was performed according to
the British Marriage Act still on their return to India, as the parties were Indian citizens, they
were governed by the law of domicile, which is the personal law of the husband viz.,
Mohammedan Law and, therefore, it was open to the plaintiff to give divorece to his wife
according to the provisions of Mohammedan Law.

7. Shri Mody, then, contended that the learned Judge of the City Civil Court committed an error
in coming to the conclusion that the plaintiff has failed to prove conversion of the defendant as
well as the subsequent Nikah. According to Shri Mody the said finding is wholly perverse and is
liable to be set aside. In Mody that the marriage which took place in England was Nikah Fasid
within the meaning of Mohammedan Law, From the evidence of the defendant itself it is quite
clear that two Mohammedan witnesses were present at the time of the said marriage and in this
view of the matter the said Nikah Fasid could have been dissolved by the plaintiff by giving talaq
to his wife in accordance with the provisions of Mohammedan Law. In any case according to
Shri Mody from the evidence placed on record it is quite obvious that the marriage between the
227
plaintiff and the defendant had already broken down beyond any scope of reconciliation, The
defendant had gone to the extent of making wild allegations against the plaintiff letter Exh. C.
Inm these circumstances their living together under the same and was wholly impossible and
therefore the plaintiff was entitled to an injunction as claimed by him qua the flat in the Paradise
Apartment.

8. On the other hand it is contended by Shir Parikh, learned counsel appearing for the
respondent-wife that the marriage in England was performed according to the British Marriage
Act, 1949, The said marriage was a monogamous one and secular in nature. To such a marriage
the Special Marriage Act 1954alone is applicable. Therefore, the marriage performed under the
secular law of England cannot be dissolved under the personal law of the parties. Accoriding to
Shri Parikh so far as secular marriages are concerned tex domicile in India is a Special Marriage
Act. And not personal law of the parties. He then contended that all through the defendant
continued to be Hindu and was never converted. According to him the evidence adduced by the
plaintiff to prove conversion is wholly false and the learned Judge of the trial court was quire
justified in coming to the conclusion that the plaintiff has failed to prove either conversion or
Nikah. Shri Parish then contended that provisions of Mohammedan Law which provide for a
unilateral talaq is no more good law as it is violative of Art. 14 of the Constitution of India. So
far as the provisiosn of Foreign Marriage Act are concerned, according to Shri Parikh the
marriage between the plaintiff and the defendant which took place in the year 1966 is also
convered by the provisions of S. 18(1) of the Foreign Marriage Act. The question of giving
retrospective effect to the provisions of Foreign Marriage Act does not arise as divorce is not a
part and parcel or incident of marriage. Nobody can claim any vested right in matters of divorce
etc. Even according to the plaintiff divorce in this case took place after coming into force of the
Foreign Marriage Act, 1965 and, therefore, the said marriage could have been dissolved as per
the procedure prescribed by the Foreign Marriage Act and not otherwise. Therefore according to
the learned counsel the marriage of the defendant with the plaintiff which took place in 1966 in
England is still subsisting.

9. So far as the flat in the Paradise Apartment is concerned. It is contended by shri Parikh that a
separate suit is pending between the parties in the High Court wherein the question of title qua
the said flat is involved. In the said suit the plaintiff has prayed for a declaration as well as
injunction, hence the plaintiff is not entitled to any relief in that behalf, in this suit, more so when
it is the case of the defendant that the flat was prchased out of the joint funds of the plaintiff and
the defendant and, the defendant has also claimed joint ownership in the said flat. In any case, as
long as relationship of husband and wife, is subsisting the defendant is entifled to five in her
matrimonial home and, therefore, no injunction can be granted which will resuit in throwing her
out of the said matrimonial being. Therefore, in substance it is contended by Shri Parikh that the
judgment and decree passed by the City Civil Court as well as the single Judge in First Appeal is
wholly justifled and the plaintiff is not entitled to any reliefs.

10. So far as the marriage dated 6th May, 1966. Soleminized in England is concerned parties are
not at issue. The detendant herself has given evidence that marriage was solemnized and plaintiff
also admitted in his evidence that required ceremony and formalities were completed and he
accepted the defendant as his wife in the presence of witnesses. Therefore, if must be held that
marriage dated 6th of May, 1966 was performed in England according to the British Marriage
Act, 1949, This posision is also clear from the entry of marriage made pursuant to the provisions
of Marriage Act, 1940. However, among the persons who attended the aforesaid marriage, there
were two adult Mohammedans, one Dr. Amin and the other Dr., Khan, who were also physically
present. At the time of solemnization of the said marriage defendant was admittedly a Hindu by
228
religion. Mr. Mody has contended that the said marriage should be treated as "Nikah Fasid'
irregular marriage according to Mohammedan Law, It is not possible for us to accept this
contention. No civil marriage validly performed and solemnized, according to any law in force
can be treated as a religious marriage, by introducing elements of formalities of personal law.
The presence of two witnesses of Mohammedan faith, cannot ipso facto convert any civil
marriage into any other form of marriage much less a 'Nikah Fasi' As held by the Privy Council
in AIR 1950 PC 31, Engene Berthinume v. Dame Anne Marie Uvonne Dastous:

"If a marriage is good by the law of the country where it is effected it is good all over the world
no matter whether the proceedings or the ceremony which constituted the marriage according to
the l;aw of place would not constitute marriage in the country of domicile of one or the other
spouses."

The character of marriage remains unaffected by such external factors. Because, a civil marriage
validly performed, has an overiding effect on all other religious forms of marriages.

11. When the parties have soleminixed a legal and valid marriag as per British Marriage Act, it is
difficult to hold that the said marriage should also be treated as Nikah Fasid, When the parties
with open eyes have chosen a specific form of marriage, if cannot be held that they concurrently
also intended to enter into another form of marriage. To impute such an intention is contrary to
well established principles of justice, equity and good conscience. This is more so, when the
plaintiff himself does not say in his evidence that it was an irregular marriage within the meaning
of Mohammedan Law of he intended to solemnize marriage according to the provisions of
Mohammedan Law. In the context Shri Parekh has placed reliance upon the Rules 32, 35, 36 and
37 of Dicey & Mories Conflict of Laws. Rule 32 deals with the formal validity of the marriage.
Rule 32 lays down that the capacity to marry is governed by the law of each party's antenuptial
domicile. As per Rul;e 35, the marriage celebrated in a form which is monogamous under the
law of the place of celebration is monogamous marriage. Whatever the personal law of the
parties at the time of marriage or at any subsequent time. As per Rule 36 even the marriage
celebrated in England in Muslim Mosques is also monogamous. Then comes Rule 3 which
declares that a man or woman whose personal law foes not permit plygamy has no capacity to
contract a valid polygamous marriage. Admittedly at the time of the said marriage the defendant
was a Hindu and therefore it is also doubtful whether a Nikah Fasid as per the Mohammedan
Law was really possible. It was not disputed by Shri Mody that the marriage in England was a
monogamous one. If this is so, how can a marriage be monogamous and polygamous at the same
time. Therefore, having regard to the facts and circumstances of the present case it is not possible
for us to accept the contetnionof Shri Mody that the marriage solemnized as per the procedure
laid down by the British marriage Act could concurrently be treated as Nikah Fasid within the
measning of Mohammedan law. If such a contention is accepted then even a secular and
monogamous marrage solemnised as per provisions of Special Marriage Act, 1954 could be
termed as "Naikh Fasid' and a secular and monogamous marriage between the two muslim or
between two muslim husband and non-muslim wife will become impossible even if they desire
to solemnise such a secular and monogamous marriage.

12. Shri Mody, learned counsel appearing for the appellant husband then contended that the view
taken by the learned single Judge that the present marriage is governed by the Foreign Marriage
Act is wholly illegal and unjustified. It is contened by Shri Mody that the Foreign Marriage Act.
1969 is not retrospective in its operation and therefore cannot govern the marriage which took
place prior to 1969. He also contended that under the Mohammedan Law husband had come
vested rights. The Foreign Marriage Act cannot be interpreted to mean that the said vested rights
229
have been taken away retrospectively. According to shri Mody under the Mohammedan Law a
husbant has a vested right to have four wives, he has a vested right to give a unilateral lalaq and
hence the provisions of the Foreign Marriage Act cannot be interpreted in such a way so as to
affect ehse vested rights. Shri Mody also contended that is the context of the subject matter
Mohammedan Law is a Special Act, whereas the Foreign Marriage Act is a general enactment.
Mohammedan Law does not apply to all foreign marriages but applies to those foreign marriages
only where the parties are Mohammedans. He also contended that if it is held that the provisions
of the Foreign Marriage Act apply retrospectively, then disastrous effect are likely to follow
because in that case the marriage already performed even before coming into force of the
Foreign marriage Act is likely to be subject to penalties prescribed by Chapter V of the said Act.
Therefore, according to the learned counsel the provisions of the Foreign Marriage Act will be
applicable only to those marriages which are solemnised after coming into force of the Foreign
Marriage Act. Shri Mody also contended that ever otherwise in view of the provisions of S. 18(2)
of the Act the provisions of S. 18(1) will not apply to the present case as the Mohammedan Law
provides for a grant of relief in respect of such marriage.

13. The special Marriage Act or Foreign Marriage Act do not require continuance of the original
religion as a condition for getting relief of divorce. Section 18(1) of the Foreign Marriage Act
provides for statutory rule. Sec 18 (4) is in the nature of proviso or exception and therefore will
have to be strictly construed. The very wording of sub-sec (4) of S. 18 clearly indicated that it
intends to take out something from Section 18(1). Therefore it can only takeout some thing
which is included in Section 18(1).

14. For property appreciating the controversy raised before us it will be worthwhile if a detailed
reference is made to various provisions of the Foreign Marriage Act, 1989, hereinafter referred to
as the said Act. It was enacted to make a provisions relating to the marriage of citizens of India
outside Inda. The expression "foreign country" is defined by S. 2(c) to mean a country or a place
outside India chapter II deals with solemnisation of foreign marriages, Chapter III deals with
registration of foreign marriages solemnised under other laws, They, by sub-sec (6) of S. 17 it is
laid down that the marriage registered under S. 17 shall as from the date of registration be
deemed to have been solemnised under deals with matrimonial reliefs in respect of foreign
marriages. Section 18 in the said Chapter reads as under:

'18 (1) Subject to the other provisions contained in this section the provisions of Chapters IV, V,
IV and VII of the Special Marriage Act, 1954 shall apply in relation to marriages solemnised
under this Act and to any other marriage solemnised in a foreign country between parties of
whom one at least is a citizen of India as they apply in relation to marriages solemnised under the
Act:

Explanation : In its application to the marriages referred to in this sub-section, S. 24 of the

Special Marriage Act, 1954 shall be subject to the following modifications, namely:

(I) the reference in sub-sec (1) thereof to clauses (a0, (b), (c) and (d) of S. 3 of that Act shall be
construed as a refer ence to clauses (a), (b), (b) and (d) respectively of S. 4 of this Act, and

(ii) nothing contained in S. 24 aforesaid shall apply to any marriage-

(a) which is not solemnized under this Act: or

230
(b) whixh is deemed to be solemnized under this Act by reason of the provisions contained in S.
17 Provided that the rgistration of any such marriage as is referred to in subclause (b) may be
declared to be of no effect if the registration was in contravention of sub-sec (2) of S. 17.

(2) Every petition for relief under Chapter V or Chapter VI of the Special Marriage Act, 1954, as
made applicable to the marriages referred to in sub-section (1), shall be presented to the district
court within the local limits of whose ordinary civil jurisdiction -

(a) the respondent is residing at the time of the presentation of the petition. Or

(b) the husband and wife last resided together. Or

(c) the petitioner is residing at the time of the prsentation of the petition, provided that the
respondent is at that time residing outside India.

Explanation - In this section. " district court" has the same meaning as in the Special Marriage
Act. 1954.

(3) Nothing contained in this section shall authorise any court -

(a) to make any decree of dissolution of marriage, except where:

(I) the parties to the marriage are domiciled in India at the time of the presentation of the
petition, or

(ii) the petitioner, being the wife, was domiciled in India immediately before the marrage and has
been residing in India for a period of not less than three years immediately preceding the
prsentation of the petition:

(b) to make any decree annulling avoidable marriage, except where -

(I) the parties to the marriage ar domiciled in India at the time of the presentation of the petition;
or

(ii) the marriage was solemnised under this Act and the petitioner, being the wife, has been
ordinartly residnt in India for a period of three years immediately preceding the presentation of
the petition:

(c) to make any decree of nullity of marriage in respect of a vold marriage, except where:

(I) either of the parties, to the marriage is domiciled in India at the time of the presentation of the
petition or

(ii) the marriage was solemnized under this Act and the petitioner is residing in India at the time
of the presentation of the petition:

(d) to grant any other relief under Chapter V or Chapter VI of the Special Marriage Act, 1954
except where the petitionr is residing in India at the time of the presentation of the petition.

231
(4) Nothing contained in usb-sec (1) shall authorise any court to grant any relief under this Act in
relation to any marriage in a foreign country not solemnized under it, if the agrant of relief in
respect of such marriage (whether on any of the grounds specified in the Special Marriage Act,
1954 or otherwise is provided for under other law for the time being in force."

Section 18(1) takes in its unport the marriage solemnized under the Act and any other marriage
solemnized in the foreign country between the parties of whom one at least is a citizen of Infia
thus, from the bare reading of S. 18(1) it is quite clear that it applies to all other marriages
solemnized in a foreign country between the parties of whom one at least is a citizen of India.
For properly appreciating the intention bhind the said tegislation it will be worthshile if a
reference is made to the 23rd report of the Law Commission which deals with the foreign
marriage. It appears from the said report that the object of the legislation was to regulate
marriages performed outside India when either of the parties thereto is a citizen of India, thereby
filling a gap in the Special Marriag Act, which is limited in its application to he marriages
between Indian citizens After analysing different types of marriages which could be enteted into
abroad by the parties, one or both of whom are Indian citizens. Para 3 of the report explains that
the object of the legislation is not only to provide for solemnization of the marriages but aso to
enable the parties thereto to obtain proper matrimonial relief, such as, dissolution of mariage and
so forth. The report also meks a reference to the rules of private international law on the subject
so as to ensure as far as possible that the validity of the marriage can be recognised in other
countries besides India. Then come paras 13 and 18 of the report which read as under:

"13. As already stated, we do not have in this country what may be called a lex loci dealing
generally with matrimontal jurisdiction and if suitable provisions are not made in this behalf in
respect of marriage solemnized under the proposed legislation, there will be a lacuna in the law.
We have, therefore to depart in this repect from the English and Australian acts.

In our opnion the proposed law should contain an express provision regarding matrimonial
causes. Further, it has has been brought to our notice that difficulties are experienced by citizens
of India who choose to marry abroad not under out laws not under foreigh laws. In obtaining the
appropriate matrimonial relief in our country in case the marriage unfortnnately turns out to be a
failure, In a recent case the Rajasthan High Court has held that where a person domicilzed in
India has contracted a marriage in England with an English Lawl he can obtain a divorce under
the Special Marriage Act, 1954 on the ground that Act is the general law of divorce in force in
this country. Without entering this any discussion as to its correctness we think that the decision
emphasises the need for making it clear by a statutory provision. We are, therefore, of the
opinion that the provision about matrimonial reliefs to be included in the proposed legistation
should also apply to a marriage performed in a foreign country under a foreign law where one of
the parties to the marriage is a citizen of India. At the same time, care has to he taken to ensure
that a marriage in a foreign country between parties, only one of whom is a citizen of India, my
solemnized under the provisions of the proposed law, is not held to be void on the ground that it
contravenes one of the other then the provisions in the new law. Subject to this resevation, any
other matrimonial relief available to a party who is married under this law should also b available
to a citizen of India marrying a foreigner abroad under a foreien law."

18. (A) Our recommendation being that we should on the several lopics metioned above draw
from the provisions of the Special Marriage Act, 1954, the question naturally arises as to how
that could best be done. The proposed legislation can be framed in any one of the following four
modes:

232
(I) We may draft a separate and self contained Act. This will deal both with marriage and with
matrimonial causes, not by referring to the Chapters in the Special Marriage Act and the
Christian Marriage Bill, by enacting the provisions therein full.

(II) We may draft a separate Act without making it self-contained and incorporate therein by
reference the provisions relating to marriage in Chapters IV, V, VI, and VII of the Special
Marriage Act, 1954 this will be shorter than No. (I) above

(iii) We may insert a new Chapter in the Special Marriage Act: the Chapter itself would not be
self contained , but would refer back to the provisions in other chapters relating to marriage as
well as matrimonial causes.

(Iv) A fourth course would be to amend S. 1(2) and S. 4(E) of the Special Marriage Act, so as to
allow marriage in the Special marriage from where one party is a citizen of India. This would be
shorter than No. (Iii) above . Consequential amendments may be required to other sections also .
After careful consideration, we have reached the conclusion that course No. (Ii) above is the best
. The usual objection to referential legislation - that it often leads to ambiguity - will not apply in
this case for the purposes of matrimonial relief, there is hardly any difference between a foreign
marriage solemnised under the proposed law and a marriage solemnised in India under the
Special Marriage Act , 1954 . This device has the additional advantage of avoiding unnecessary
repetition of a major portion of the Special Marriage Act, 1954, in the proposed law ."

The statement of Objects and Reasons attached to the bill also throws light upon the intention
behind this legislation . The statement of Objects and Reason reads as under :

" This bill seeks to implement the twenty -third report of the Law Commission on the law
relating to foreign marriages. There is, at present considerable uncertainty as to the law on the
subject , as the existing legislation touches only the fringes of the subject and the matter is
governed by the principles of private international law which are by no means well- settled , and
which cannot be readily applied to a country such as ours in which different marriage law applies
to different communities. The Special Marriage Act, 1954 sought to remove the uncertainty to
some extent by providing that marriages abroad between citizens of India who are domiciled in
India might be solemnised under it.

In the course of the debate in relation to that Act in Parliament , it was urged that a provision
should also be made for marriages abroad where one of the parties alone is a Indian Citizen . In
this context , an assurance was given that government would , after careful consideration
introdue comprehensive legislation on the subject of foreign marriages. The present bill is the out
come of that assurance.

2. The Bill is modelled on the Special Marriages Act, 1954 and existing English and Australian
Legislation on the subject of foreign marriages subject to certain important modifications
rendered necessary by the peculiar conditions obtaining in our country".

Then the statement of objects and reasons dealing with S. 18 of the Act reads as under " Clause
18 : sub-clause(1) applies the provisions of chapters IV to VII of the Special Marriage Act so as
to -

(I) Define the consequences of marriage under the proposed law ; and

233
(ii) provide for matrimonial relief, Read with sub-clause (4) , it covers also foreign marriages
under the other laws for which matrimonial relief is not available in India under any other law .
Sub-cl (2) is intended to define the district court which will have jurisdiction for granting relief
and sub-clause (3) embodies the recognised principles of private international law as to
jurisdiction of Indian Courts to grant matrimonial relief.

While providing for matrimonial relief in respect of foreign marriages under other laws , care has
to be taken to ensure that :-

(a) the validity of such marriages is not affected by the provisions of the proposed law ; and

(b) even where such marriage is registered under this law its validity is not affected by he said
provisions , the only relief available in such a case being cancellation of registration"

Therefore, from the Law Commissions report as well as the Statement of Objects and Reasons it
is quite clear that that the Foreign Marriage Act was intended as a piece of comprehensive
legislation on the subject relating to foreign marriages . Hence it is a complete code in itself. S.
18 was intended to cover all foreign marriages .. Expression used in S. 18(1) viz . " to any other
marriage solemnised in the foreign country" must take in its import all other marriages which are
not covered by the first part of S. 18(1) . The word 'solemised' indicates that it applies to the
marriages which are solemnised even prior to coming into force of the Act . This is further clear
from the provisions of S. 17 of the Act which deal with registration of foreign marriages
solemnised under other laws . S. 12(2) lays down that no marriage shall be registered under S. 17
unless at the time of registration it satisfies the conditions mentioned in S. 4 . Then by sub-
section (6) of S. 17 it is declared that the marriages registered under this section shall as from the
date of registration be deemed to have been solemnised under the Act. If the form prescribed
under the rule is read with section 17 of the Act , it is further clear that it takes in its import even
the marriages already solemnised .Form prescribed under the Rule can be used as an aid to
construction on the basis of principles of contemporea expositio which is a well settled rule of
interpretation of a statute . ( See K.P.Verghese v. I-T. Officer , Ernakulam , ). The expression "
any other marriage solemnised in a foreign country" therefore must take in its import all the
marraiges solemnised in a foreign country either before or after coming into force of the
enactment. Looking to the words of the section and giving them their plain and natural meaning
we find it impossible to hold that the foreign marriages solemnised prior to the coming into force
of Foreign Marriage Act ,1969 are not covered by S. 18(1) of the Act.To accept such a
contention one has to read into the section additional words "after the date of this act" after the
word solemnised.If such a construction is not put up,The intention of the legislature in enacting a
comprehensive legislation on the subject of foreign marriages will be frustrated.

15.It is also not possible for us to accept the contention of Shri Mody that in view of the
provisions of sub-sec .(4) of S. 18 nothing contained in sub-sect (1) of S. 18 will apply to this
case.In this context it was contented by Shri Mody that the Mohammedan law is a law for the
time being in force which provides for grant of relief in respect of marriages within the
contemplation of sub-sec (4) of S. 18 . According to Shri Mody , the learned judge committed an
error in contruing the said provision . The learned judge in para 10 of his judgement has held as
under :

" 10. To summarise , Section 18 of the Act applies to all marriages solemnized in a foreign
country whether under the Act or registered under the Act or otherwise and one of the party to
which is an Indian citizen . The consequences of such a marriage and reliefs respect thereof will
234
be governed by section 18(1) read with the relevant provision of the Special Marriage Act in all
cases except where any Indian Law , statutorily or otherwise provides for grant of relief . No law
which is non-statutory presently comes to my mind which provides for grant of relief , that is a
right to apply to some authority . There being no such provision in the Muslim law , so far as a
husband is concerned ., in case of a foreign marriage a divorce can be obtained by a husband
only in accordance of the provisions of the said Act not otherwise.

11. Mr. Bhatt' s contention that the Shariat Act is such an Act as is contemplated in S. 18(4)
cannot be accepted. The Shariat Act was enacted to provide for governance of Muslim by law as
laid down in Shariat Act in preference over customary law. The Shariat law therefore makes
personal law applicable uniformly to all muslims notwithstanding any custom or usage to the
contrary . The Shariat Act does not contain any rule of law governing muslims and less so
provides for the grant of any relief , in respect of a marriage. The Shariat Act or the Shariat Act
read with a Muslim personal law cannot be said to be the law in force contmplated in S. 18(4) of
the Foreign Marriage Act".

We are in general agreement with these observation of the learned single judge for more than one
reason . Chapter IV deals with the matrimonial reliefs which could be granted by the court . Sub-
sec (2) of section 18 deals with the procedure of filing of a petition for relief. Then in sub-sec (3)
read with sub-cl (d) it is laid down that nothing contained in this section shall authorise any court
to grant any other relief under Chapter IV or Chapter VI of the Special Marriage Act , 1954
except where the petitioner is residing in India at the time of the presentation of the petition . The
word "relief' is used in sub-sections (2) , (3) and (4) of S. 18 . Similarly expression 'grant relief' is
also used in sub-sections (3) and (4) of S. 18 . All these provisions of S. 18 , will have to be read
harmoniously , as every sub-section throws light on the another . The said expression will have
to be understood to have the same meaning in all the sub-sections . So understood in our opinion
the expression "grant of relief in respect of such marriage" must mean a relief which could be
granted by a court in respect of matrimonial matters. This expression cannot take in its import a
voluntary and unilateral act of a husband of giving talaq to his wife which does not require any
intervention of the court.

16. The provision of the Act as well as S. 18 will have to be construed harmoniously so as to
discover the true intention of the legislature and to make law effective an to frustrate legislative
intent in that behalf, While interpreting the words and expressions used in Section 18 it is
necessary to have regard to the subject matter of the statute and the object which it is intended to
achieve, While construing the words and expressions, the context in which the words occur, the
object of the statute in which the provisions is included and the policy underlying the statute
assume importance. The words and expressions whill have to be construed in the light of their
context rather than their etymological sense or their popular meaning apart from the context. It is
a sound and indeed a well known principle of construction that the meaning of words and
expression and in an Act must take their colour from the context in which they appear. If two
interpretations are reasonably possible any construction will have to be avoided which would
reduce the legislation to a futility because Parlisment is presumed to legislate only for the
purpose of bringing about effective result. When the material words are capable of bearing two
constructions the well setttled principle is to construe such words in tune with the rule laid down
in Haydon's case which has now attained the status of classic. The words will have to be
construed in the light as to what was the common law before the enactment of the Act, what was
the enactment of the Act, what was the mischief and defect for which the common law did not
provide and what remedy the Parliament has provided to cure the said defect. A construction will
have to be placed which will suppress the mischief and advance remedy. If the construction
235
suggested by Shri Mody is accepted it will reduce the legislaion to futillity. From the bare
reading of sub-section (4) it is clear that the said section is dealing with the authority of the Court
to grant relief under the Act in relation to any marriage in a foreign country not solemnized
under the Act, if grant of relief in respect of such marriage is provided for under any law for the
time being in force. Therefore, the relief contemplated is in relation to a marriage and not
regarding general relationship of husband and wife. The expression "whether on any of the
grounds specified in the Special Marriage Act, 1954, or otherwise" makes this intention further
clear. The words "or otherwise" are referable to grounds. Prohibition is imposed upon a court to
grant a relief under sub-sec (1) of Section 18 of grant of relief in respect of 1982 Bom./23 VIII G
- 12 such foreign marriage is provided for under any other law for the time being in force. Thus
the words grant of relief" as used in S. 18(4) obviously means grant of relief by an independent
court, tribunal or authority which is available qua a foreign marriage obviously to both the
parties. It cannot take in its import a unilateral voluntary act of husband of dissolving a marriage
by oral talaq. For such a unilateral act itis not necesary for husband to approach any court,
tribunal or authority, However, it was contended by Shri Mody that in a given case a declaratory
suit could be filed before a Civil Court claiming a declaration that the marriage stands dissolved
and such a suit is also covered by sub-section (4) of S. 18. It is not possible for us to accept this
contention. In a deciaratory suit only a declaration is sought for, regarding a thing which has
already become effective on its own force and such a declaratory relief cannot be equated with a
grant of relief in relation to any marriage which is provided for under a law for the time being in
force. Moreover such a unilateral right of divorce is only conferred upon a husband by
Mohammedan law and not on wife, Sub-sec (4) contemplates grant of relief at the instance of
both the parties. A relief contemplated is a relief which could be granted by a court of law or
independent tribunal or authority. Such a relief should be avanable qua particular marriage.
Relief must take in its import obviously the grounds on which such a relief could be granted by
an independent tribunal or authority. It cannot be forgotten that under the Mohammedan law
defendant-wife who is a Hindu was no remedy to seek matrimonial relief. If the wife wants to
seek a matrimonial relief qua foreign marriage which took place in the year 1966 as per the
provisions of British Marriage Act, she has no remedy available under the Mohammedan Law.
So far as she is concerned,. Law available is obviously Foreign Marriage Act. This position
becomes further clear from S. 29 of the Foreign Marriage Act by which the provisions of Special
Marriage Act, 1964 stand amended. This is further cler from the statements of Objects and
Reasons as well as the Law Commission's report. Therefore, it is not possble for us to accept the
contention of Shri Mody that in view of the provisions of sub-sec (4) of S. 18. S. 18(1) of the
Foreign Marriage Act. Is not applicable to the present case. Inour view the taken by the learned
single judge is the only view possible, and therefore, we agree with the findings recorded by the
learned single Judge in that behalf.

17. Chapter V which deals with the penalties is obviously prospective. It applies to any person
whose marriage is solemnized or deemed to be solemnized under the Act. S 17 deals with
registration of foreign marriages solemnized under other laws and sub-sec. (2) of S, 17 lays
down that no marriage shall be registered under this section unless at the time of registration it
fulfils the condition mentioned in Section 4. From the phraseology used in sub-sec 17 (2) it is
quite clear that conditions mentioned in S. 4 should be satisfied at the time of registration and not
at the time of marriage itself. Chapter IV which deals with matrimonial reliefs. In respect of
foreign marriages is in terms made retrospective, otherwise it was not necessary to use the words
or expression "any other marriage solemnized in a foreign country between the parties of whom
one at least is a citizen of India."

236
18.. In S. 18(1) the words used are "other marriage solemnized" which must mean solemnized at
any time. Whenever legislature wanted that certain provision of the Act should apply to the
marriage which are solemnized under the Act, the legislature has used the expression "may be
solemnized", "is solemnized", "to be soleminized" etc, Such an expression is not used in S. 18(1)
As already observed S. 17 takes in its import the marriages already solemnized in accordance
with the law of the country concerned. Therefore, in our opinion Chapter IV of the Foreign
Marriage Act will apply to the present marriage, which is admittedly a foreign marriage.

19.It is also not correct to say that a Mohammedan husband has a vested right to marry more
than one wife viz., to have four wives at a time. It cannot also be said that anybody has got a
vested right in the matter of divorce. To say the least dissolution of marriage is not a part and
parecel of the contract of marriage. Nobody has got any vested right in the matter of dissolution
of marriage. So far as the polygamy is concerned, the provision of Mohammedan law is only
permissibe or optional in nature and not obligatory. It only lays down a ceiling on obligatory. It
only lays down a ceiling on wives and does not lay down that every Mohammedan should have
four wives as a matter of right. It is in a form of an exception. Therefore it cannot be said that
Chapter IV or S. 19 which deals with matrimonial reliefs in respect of foreign marriages has
affected any vested right of the appellant retrospectively. The said chapter deals with the events
taking effect in future though based on an earlier incident viz,. Foreign marriage. Only because if
takes into consideration earlier event of marriage, it cannot be said that the provisions is
retrospective is well settled that vested right is a right which has come into operation and is not a
potential right, Mere right to take advantage of provision of law is not anaccrued right. A statute
cannot also be said to be retrospective "because a part of the requisites for its action is drawn
from a time antecedent to its passing" (see AIR 1984 SC 464. Sajjansingh v. State of Punjab and
Zohrabai v. Arjuna).

20. As already held in the present case the marriage took place in England on 5th of May 1966.
Therefore, it was a foreign marriage within the meaning of Foreign Marriage Act, 1969, The said
marriage was solemnized under the British Marriage Act, 1949 and there is no statutory law in
the field which provides for grant of matrimonial reliefs as contemplated by S. 18(4) of the Act.
Therefore in our opinion the learned single Judge was right in coming in the conclusion that the
marriage between the plaintiff and the defendant which took place on 5th of Mya, 1968 in
England is governed by Chapter IV of the Foreign Marriage Act, 1969.

21. Once it is held that the relationship of the parties flowing form the marriage solemnized in
England in 1966 is covered by the Foreign Marriage Act, 1969, in face it is not necessary to deal
with any other contention raised by Shri Mody. It is also not necessary to consider the decision
of this Court in Khambatta v. Khambatta . Even otherwise in our opinion even lex domicilli so
far as secular marriage of this type is concerned will be Special Marriage Act, 1954 and not
Mohammedan Law. It cannot be disputed that the marriage which was solemnized as per the
provisions of the British Marriage Act, in 1966 in England was secular in form and content. It
was a monogamous marriage. On the date of the marriage the defendant was a Hindu. Therefore,
the marriage which took place in England was inter-religious marriage. In support of his
contention Shri Perikh, learned counsel appearing for the defendant has placed reliance upon
certain observations in 'Muslim Law of India by Dr. Taher Mohammad, 1980 edition, at pages
59 S. 2(6) page 13, and S. 19 page 188 of Tyabji.s Muslim Law (1958 Edition) and has
contended that even the Muslim Law stands modified in view of the Special Marriage Act as
well as the Constitution of India.

237
22. The legal system prevailing prior to Special Marriage Act clearly indicates that the Special
Marriage Act clearly indicates that the Special Marriage Act of 1972 was not applicable to
Indian Muslims, nor Indian Divores Act was applicable if neither party was a Chiristian female
known as Kitabity. The Special Marriage Act 1954 applies to all citizens irrespective of religion.
Till 1969 it applied to all the Indian citizens marrying in foreign countries if they chose to marry
under the Act. To some extent there was a choice open and the parties could have married under
the secular system of marriage which provided for a monogamous form of marriage namely :
union for life to the exclusion of others, and dissoluable only by a judicial authority. Admittedly
the marriage which was solemnized in may 1966 in England under the British Marriage Act,
1949 was monogamous and secular in nature. Therefore it will have to be seen as to whether
there is any Indian law available in the field which can apply to such monogamous secular
mariage. No such law was available till the Special Marriage Act, 1954 was enacted. It appears
to be well-settled principle of law that in the absence of anything to the contrary the rights under
the marriage are to be governed by the law of domicilii. In the present case both the plaintiff and
the defendant are Indian citizens. They came to India in 1969 and are living in India thereafter.
Therefore it was contended by Shri Mody relying upon the decision of this Court in Khambatta
v. Khambatta that so far as lex domicilli is concerned, the present marriage will be governed by
the personal law of the husband viz. Mohammedan law. In our view this is not the correct
position today. Once it is held that the marriage which took place in England in 1966 was secular
in the form and content and also monogamous and such a secular law is also available in India in
the form of Special Marriage Act. 1954 then in our view even the lex domicilli in case of such
secular marriage will be the Special Marriage Act and not the Personal Law of the husband. This
is more so when one of the parties belonged to different religion and is not a muslim, After all
there should be harmony between different personal laws so that the parties can live together.

23. If can safely be said that Special Marriage Act is in reality an Indian Marriage Act, which
applies to all Indian Communities irrespective of caste, creed or religion. The concept of
marriage under the said Act, is monogamous, that is union for life, dissoluble by judicial
authorities, Under the said law all modern matrimonial reliefs are made available to both the
spouses in the event of break down of marriage on an application to the Court of competent
jurisdiction. Even the religious marriages can be registered under the said Act. On such
registration the retigious marriage can be converted into secular marriage. In this context it is
also pertinent to note that between 1954 to 1969 two Indian citizens domiciled in India could
have married under Special Marriage Act even outside India. A marriage which is mopnogamous
in form continues to be so, where as original religious marriage can be converted into a secular
marriage. However, a secular marriage cannot be converted into religious marriage. Therefore if
there is in the field an Indian enactment which is applicalbe to all the citizens of India
irrespective of their religion, then so far as secular marriages are concerned the said law will
become lex comicilli of India for the purposes of matrimonial reliefs. Such an interpretation will
be in tune with Article 44 as well as the preable of the Constritution. It cannot also be forgotten
that the establishment of a secular society is the aim and goal of Indian Constitution. Therefore
in the area and field which is secular or nonreligious laws will have to be common for all citizens
of India, and that is what has been done, though to limited extent by enacting Special Marriage
Act at least leaves a choice open which is available to all the citizens of India irrespective of their
caste, creed or rellgion. In Mohammedan Law Marriage is a Civil Contract. Hence so far as
relation ship flowing from contract of marriage is concerned, including its dissolution, the area
and field is secular in nature.

24. In this context it will have to be remembered that if two interpretations are reasonably
possible regarding the provisions of law, then the law will have to be interpreted and applied in
238
the perspective of Part IV of the Constitution, whihc deals with directive principles of the State
policy and enefit of reasonable doubt of law and fact, it there be such doubt must go to the
weaker section in the present case to women (See ). In the context a reference also could usefully
be made to the decision of Karnataka High Court in Air 1976 Kant 200, Raj Mohammad v.
Saheeda, wherein E. S, Vyankatatamayya J. (As he then was), has observed that our notions of
law will have to be altered in such a way as to bring then im conformity with modern social
conditions.

25. Shri Parikh learned counsel appearing for the respondent-wife has also raised a contention
that the provisions of the Mohammedan law read with Sheriyat Act are violative of Article 14 of
the Constitution. Such a Contention is specificaly raised by respondent in the memorandum of
cross-objection. Shri Parksh furhter contended that full equality between sexes is hardly possible
in a legal system whihc permits polygamy and unilateral talaq and the social system which
tolerates it. He contended that in some of the Muslim countries polygamy has been prohibited
and divorce is also regulated by statute. However denial of equality and social justice still
continues in India and that too in spite of the directive principles of the State policy. Which also
includes Article 44. Because of the system of unilateral talaq a muslim wife continues to be in a
position of legal inferiority and insecurity. He also contended that the trend in modern times is in
favour of territorial laws in preference to contractual laws and Art. 44 is in tune with the said
trend. In support of his contention he has placed reliance upon decisions of V. R. Krishan Lyer J.
( as he then was ) in 1970 Ket. LT 4. Shahulameedu v. Subaida Beevi, Yusuf Rawthan v.
Sowramma: 1972 Ker LT 512, Mohammad Haneefa v. Puthuman Beevi. Shri Parish also
contended that the continuance of various personal laws which discriminate between men and
women violates the fundamental rights and even the Preamble of the Constitution which
promises equality of status to all citizens. It is also against the spirit of national integration
secularism. He has placed strong rellance upon the following observations of V. Khalid J. In
Mohd. Haneefa v. Pathumal Beevi viz.

"Should Muslim wives suffer this tyranny for all times? Should their personal law remain so
cruel towards unfortunate wives? Can it not be amended suitably to allevlate their sufferings?
My Judicial conscience is disturbed at this monstrosity. The question is whether the conscience
of the leaders of public opinion of the community will also be distrubed. We respectfully share
the feelings expressed by Kahlid J. Shri Parikh has also drawn our attention to the observations
of the Supreme Court in AIR 1989 Sc 1930. Fuzlunbi v. K. Khader Vali, para 20 which reads as
under:

"20. Before we bid farewell to Fuzlunabi it is necessary to mention that Chief Justice Baharul
Islam. In an elaborate Judgment replete with quotes from the Holy Quoran, has exposed the error
of early English authors and judges who dealt with talaq in Muslim law as good even if
pronounced at whim or in tantrum, and argued against the diehard view of Batchlor. J. (1906)
ILR 30 Bom 537 (539) that this view is good in law, though bad in theology' May be, when the
point directly arises, the question will have to be considered by this court, but enough unto the
day the evil thereof and we do not express our opinion on this question as it does not call for a
decision in the present case."

However, in the view which we have taken It is not necessary to decide this challenge based on
Article 14 of the Constitution, and the same is kept open.

239
26. The next contention which requires consideration in this appeal is to find out as to whether
the plaintiff has proved that the defendant-wife was converted to Islam and thereafter a Nikah
ceremony took place.

27. It is a well known principle of civil law that a person born into or following one religion
continues to belong to such religion subject to conversion to another religion. Conversion to
another religion basically requires change of faith. To say the least it is a matter jof conviction.
According to Mulla's Principle of Mohammedan Law any person who professes Mohammedan
religion that is, he acknowleges that there is but one God and that Mohammad is his prophate is a
Mohammedan. Such a person may be a Mohammedan by birth or he may be a Mohammedan by
conversion. It is not necessary that he should observe any particular rites or ceremony to be an
orthodox believer in the religion, no Court can test or gauge sincerity of religious belief. It is
sufficient if he profeases Mohammedan religion in the sense that he accepts prophetic grant of
Mohammedan (section 19, Chapter 2, page 19 of Mulla's Principles of Mohammedan Law).
Thus the real test is of professing Mohammedan religion. As to when is the true import of the
term profess fell for consideration of the Supreme Court in Punjabrao V. D. P. Meshram, of the
said decision the Supreme Court has observed as under:

"13. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a
person to be treated as one belonging to a Scheduled Caste within the meaning of that Order he
must be one who professes either Hindu or Sikh religion. The High Court, following its earlier
decision in Narayan Waktu v. Punjabrao, has said that the meaning of the pharase "professes a
religion" in the aforementioned provision is "to enter publicly in to a religious state" and that for
this purpose a mere declaration by a person that he has ceased to belong to a particular religion
and embraced another religion would not be sufficient. The meanings of the word "profess" have
been given thus in Webster's New World Dictionary: " to avow publicly, to make an open
declaration of ....... to declare one's belief in : as to profess Shrist. To accept into a religious
order" The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems
to us that the meaning 'to declare one's belief in : as to profess christ' is one which we have to
bear in mind while construing the aforesaid order because it is this which bears upon religous
belief and consequently also upon a change in religous belief. It woul thus follow that a
declaration of one's belief must necessarily mean a declaration in such a way that it would be
known to those whom it may interest. Therefore if a public declaration is made by a person that
he has ceased to belong to his old religion and has accepted another religion he will be taken as
professing the other religion. In the face of such an open declaration it would be idle to enquire
furhter as to whether the conversion to another religion was efficacious. The word 'profees' in the
Presidential Order appears to have been used in the sense an open declaration or practice by a
person of the Hindu for the Sikh religion. Where, therefore, a person says, on the contrary that he
has ceased to be Hindu he cannot derive any benefit from the order."

Thus it appears that for a conversion there should be a declaration of one's belief and the said
declaration should be in such a way that is should be known to those whom it may interest. If a
public declaration is made by a person that he has ceased to belong to one religion and is
accepting another religion, he will be taken as professing the other religion.

28. In Rakeya Bibi v. Anil Kumar Mukherjee, ILR 1948 (2) Cal 119, Calcutta High Court has
and occasion to consider this aspect of the matter in the context of conversion ot Islam. Having
held that the plaintiff in that case offered herself for conversion and went through the necessary
formalities, the Calcutta High Court observed as under:

240
"The question, however, stiff remains whether her conversion was a bona fide one or a mere
device adopted for the purpose of avoiding the marriage. Mr. Das, who appeared for her,
contended on the authority of certain observations made by Ormond J. In the case of Ayesh Bibi
v. Subodh chandra Chakrabariti. *ILR (1945) 2 Cal 405) : AIR 1949 Cal 436 that the question of
bona fides was wholly irrelevant and, further that no court could determine the bona fides or
otherwise of a person's change of faith. We entirely dissent from those propositions. It may be
that a court cannot test or gauge the sincerily of religious belief, or that, where there is no
question of the genuineness or a peron's belief in a certain religion, a court cannot measure its
depth or determine whether it is an intelligent conviction or an ignorant and superficial fancy.
But a court can and does find the true intendion of men lying behind their acts and one certainly
find from the circumstances of a case whether a pretended conversion was really a means to
some further end. We can see no reason to hold that it is in the nature of things impossible for a
court of law to determine whether a conversion was bona fide. Nor can we agree that the
question of bona fides is immaterial. In the case of Skinner v. Skinner (1897) ILR 25 Cal 537 the
Privy Council, while referring to the possibility that a change of religion on the part of both the
spouses might have the effect of altering rights incidental to the marriage, was careful to add the
qualification that such change must be made "honestly" and "without any intent to commit a
fraud upon the law" Indeed, it seeems to us to be eementary that if a conversion is not inspired
by religious feeling and undergone for its own sake, but is resorted to merely with the object of
creating a ground for some claim of right, a court of law cannot reconnise it as a good basis for
such claim but must hld that no lawful foundation of the claim has been proved. Where
conversion gives a legal right, to go through a mock conversion and set it up as a basis of that
right is to commit a frand upon the law. We are clearly of opinion that were a party puts forward
his conversion to a new faith as creating a right in his favour to the prejudice of another, it is
proper and necessary for a court of law to enquire and find whether the conversion was a bona
fide one."

Thus in case of a conversion there should be a change of heart and honest conviction in the tenets
of new religion in lieu of tenets of the original religion. If a ceremony of conversion is gone into
conscientiously after such an honest conviction, thee alone there is a conversion of faith or it can
be said that a person is professing another religion. In case of conversion from one religion to
another a strict proof is required and it cannot be easily interred. More so when a person
converted denies even the factum of conversion. As to whether there in fact a conversion or not
must depend on facts and circumstances of each case and not general rule can be laid down in
that behalf.

29. To prove factum of conversion apart from himself the plaintiff has examined P. W. 3 Quzi
Mohammand All Paloba, (PW 4) Alli M. Shamai (PW 5), Abdul Kadar Divekar, (P.W. 6) Yusuf
Khan. (PW 7) Dr. Bailu, (PW. 9) Mrs. Parhat Qazi, (PW 10) Hussein Beg and (PW 11) Zafar Ali
Mirjee. The plaintiff is also relying upon the documentary evidence viz., certain letters as well as
the diary of the defendant and an entry in a register maintained by Quazi.

30. The trial court has considered in detail all this evidence and come to the conclusion that the
plaintiff has failed to prove the factum of conversion. The trial Court has given good reasons for
coming to this conclusion. As we are in general agreement with the views of the trial court it is
not necessary to reproduce the whole evidence over again. (Sec , Ayodhya Dube v. Ram Sumder
Singh). According to the learned Judge the following surronding circumstances made the story of
conversion highly impossible: (1) the first and the foremost circumstance is that the plaint as
originally filed was totally silent about the alleged conversion: (2) there is no reference to the
date of any marriage nor any defails are given: (3) the plaintiff admitted in his evidence that he
241
knew that there was a mosque in England and he had also Muslim friends there: there fore it
would not have been difficult for him to have arranged for Nikah and conversion ceremonies
while the parties were in England and one wonders as to why the plaintiff should wait till their
return to India and no explanation is given by the plaintiff for this: (4) it is not pointed out that
there was any pressing occasionor pressure which necessitated the conversion of the defendant
and the subsequent Nikah; (5) if the father of the plaintiff was an orthodow, then the plaintiff
ordinarily would have insisted on the defendant's conversion and would not have allowed his
children to be born and brought up without the defendant's conversion to Islam: (6) though the
plaintiff speaks abour conversion, it is not his case that either his parents or his friends or
anybody else had desired the Nikah also should be performed.

31. One is at a loss to understand as to what was the object or purpose or even propriety in
performing the second marriage with the same wife over again after about three and hald years.
No written invitations were issued about the so-called Nikah ceremony. The learned Judge in
para 48 of his judgment has observed that the manner in which the ceremonies are stated to have
taken place did not appear to him as natural. No Nikahnama is produced. There is no record of
conversion. Thee are no photographs of the ceremonies viz. Conversion or Nikah. The entry
dated 29-12-69 is practically at the end of the register and had not seen light of the day till ti was
produced in court and therefore in substance it is held by the earned Judge cumstances are
relevant in appreciating the evidence both oral and documentary while deciding the issues of
conversion and Nikah. The learned Judge of the trial court has considered the oral evidence in
the light of these surrounding circumstances and in our view rightly, therefore, it is not possible
for us to accept the contention of Shri Mody that the finding recorded by the learned Judge in
that behalf is perverse. Apart from these circumstances. In our opinion there are certain other
circumstances which made the story of conversion doubtful.

32. The Bombay Registration of Marriages Act, 1953 provides for registration of marriages. This
Act came into force in the year 1964 and, therefore, the al;leged Nikah which took place in 1969
should have been normally registered under the Bombay Registration Act. Absence of such a
registration throws serious doubt on the factum of Nikah. It is pertinent to note that compulsory
registration of marriages was recommended by the United Nations so as to have effective check
on beigamous marriages. Apart from this registration also supplies rehable proof of marriages
and ensures legitimacy etc. Such a provisions is also hlepful to prevent take conversion to Islams
to evade prohibition of higamy under other laws.

33. Apart from the fact there were no written wedding invitations, there is also no signed
document in respect of Meher. No document bearing signatures of the parties and witnesses such
as Nikahname, is forthcoming. Apart from this subsequent events viz. Opening of a joint account
in the Bank in the name of Padma, entry in the fation card, birht certificates, telephone
application, insurance policies all show that in all these documents the defendant wife is
described as Padma. This clearly negatives the story of conversion. Apart from this the
circumstance that none of the defendant's personal lady friends or relatives were invited to the
for itself. At the time when the alleged conversion and Nikah took place the last child of the
defendant was a sucking child of less than two months old. Therefore, it appears to be a bit
improbable that with a sucking child in her arm the defendant will decide to enter into Islam.
According to the plaintiff himself reason for conversion was orthodoxy of his parets and none
else. Hence, the oral and documentary evidence produced by the plaintiff to prove the factum of
conversion will have to be considered in the background.

242
34. The main witness to the conversion ceremony is Quzi Paloba. It is the case of the plaintiff
that this witness has acted as Qazi and has conducted the conversion and Nikah ceremony. Qazi
Palong has filed an affidavit dated 12th June 1973 wherein he speaks about the certificate dated
5th May 1978, such is a certificate of marriage. In this affidavit he has not stated anything about
conversion. So far as the factum or conversion is concerned, P.W 3 Quzi Mohamined Ali Paloba
has stated as under:

"Whenever the parties come for Nikah I asked them their names. If I find that the party is non-
muslim, I ask that person whether be or she was willing to embrace Lslam willingly, if that
person consents the I makes him or her recite Kalma. This is my invariable practice in cases of
non-Muslime coming for Nika" But for saying this he does not speak about the factum of
conversion or the fact that in fact the defendant wife was asked to recite any Kalma or he had
even asked her name. Thus his evidence is not direct evidence of conversion. Then he speaks
about Nikah ceremony. However, in para 4 of his deposition he has stated that he does not
remember whether by had prepared at that time Nikah. He admitted that he belonged to Konkani
Jamat, which seems to be Jamat of the plaintiff. He is not aware of the existence of the Bombay
Marriage Registration Act. He does not recollect what name was told to him by the defendant
nor he is in a position to say definitely as to whether he had asked the defendant whether she was
prepared to embrace Islam religion. In pare 7 of his deposition he stated that he cannot remember
the place where Nikah took place and in the register the place of Nikah is not entered. He has
admitted that so far as the rigister is concerned, some pages towards the end of the rigister are
blank. He also admitted that he does not maintain any record about converting a person to Islam
and he does not hold any Sanad of Qazi. He also did not remember time or the date on which
Nikah of the plaintiff was performed. He then admitted that general practice is to keep a record,
He also admitted that he takes signatures of both parties after preparing Nikahname. His
attention was drawn to one of such Nikahnama Ex. 8 which related to other marriage. He also
admitted in para 13 of his deposition that the column is provided for Nikah form where the Quzi
makes entries such as whether bride is a widowed woman or is a divorcee etc. He also admitted
that if bride or bridegroom had been converted to Islam before Nikah, he writes in the column
serial number of the certificate issued by Nake Masjid about his or her conversion. He then
admitted in para 17 of his deposition that the presence of Vakil is necessary at the time of Nikah
to give consent of the bride besides fixing Meher etc. This witness was not to a position to
remember anything about Nikah of Zubeda, sister of the plaintiff which took place in the year
1978, though he has tried to depose about Nikah which took place in the year 1969 about 10
years back. In this context it is also pertinent to note that Shri Abdul Aziz Murghey (P.W 2) who
is Naib Qazi of Bombay since the last 35 years and who is examined by the plaintiff to prove.
Talaqnama has stated in his deposition that his office maintains Nikahnama register which is in
the nature of form. He also stated that as a rule he obtains signatures of both the parties to Nikah
on the Nikahnama and normal to Nikah on the Nikahnama and normally parties do sign
Nikahnama. Thus it appears that Nikahname is normally written. Therefore the learned Judge
was quite right in discarding the evidence of Qazi Palobs. This is more so when there is no
written record about the conversion and he does not speak about having made the defendant
recite Kalma.

35. The other evidence on record viz. The evidence of (P.Ws. 4, 5, 6, 7 and 9) is at the most in
the nature of conrroboration to the evidence of Qazi (P.A. 3) Therefore if the main evidence of
Qazi itself cannot be believed or is of little assistance for provising the factum of conversion and
Nikah, then on the basis of other evidence on record it is not possible to record a conclusive
finding in that behalf. All Shanmshi (p.W. 4) is the friend of the plaintiff. So far as his
examination-in-chief is concerned, his affidavit dated 9-5-1978 was produced on record and he
243
was tendered for cross-examination. He was stated in his deposition that he had gone alone to
attend the marriage. He has stated in his deposition that he had gone alone to attend the marriage.
He then stated that in fact Nikah was performed by Qazi in the evening and he does not
remember the exact time. He also admitted that he is secretary of the Konkani Ambulance
Society and director of Konkan Mercantile Bankand it appears that the plaintiff is also associated
with the said institutions. According to him it was Qazi Palobs who has conducted the
conversion ceremony as welll as the Nikah ceremony. Though he has stated that before Nikah,
conversion ceremony had taken place, it was not possible for him to give the details. He also
stated that as far as he remembers the plaintiff had not tole him any time about his intention to
divorce the defendant. Thus the evidence of this witness is also vague. Abdul Kadar Divekar (p.
W. 5) is another witness whi is also a friend of the plaintiff. According to him the defendant was
made to recite Kaling at the time of conversion. He also stated that he had acted as Vakil at the
time of Nikah. He then stated about the subsequent conduct of the defendant and has stated that
she was behaving like a Muslim lady meaning thereby that she used to say "salam". "Khuda
Hafiz" ect. In para 13 of his evidence he stated that be may have singed on Nikahnama in both of
his marriages. Then in para 14 be stated that as far as he remembers, at the time of Nikah of the
plaintiff and the defendant a Nikahname as written and he had signed over it. He then stated that
as far as his memory goes he had signed over only one Nikahnama form at that time. However,
so far as the plaintiff is concerned in para 129 of his deposition he stated that he does not
remember if he has signed on the Nikahnama at the time of Nikah. Qazi Paloba stated in his
deposition that he does not remember whether he had prepared at that time any Nikahname. Then
in para 12 of the deposition Divekar has stated that 10 years have passed, he does not remember
all the details of the ceremony. This witness is allenged to have acted as a Vakil. However in
para 15 of his deposition he had admitted that he has not acted as Vakil in any other Nikah
except this. He also admitted that at the time of Nikah often bride and bridegroom are made to
stay in separate rooms. He further admitted that ordinarily Vakil is a person from blood relation
of bride. He also could not say whether it is a rule that the bride has to give consent or Vakil has
to act on her behalf. It was also not possible for him to say as to who actually fixed Meher at the
time of Nikah between the plaintiff and the defendant. Thus it is doubtful as to whether he had
acted as a Vakil at all. To say the least his evidence is also beautifully vague. Yusuf Khan (P.W
6) is a relative of the plaintiff. He also speaks about the conversion and Nikah ceremony which
were conducted by Qazi Paloba as well as the subsequent conduct of the defendant. In para 14 of
his deposition he has stated that he does not remember whether he had signed over the
Nikahnama on 29-12-1969. Then in para 18 he stated that he could not bear what exactly was
spoken by Qazi and by the defendant between themselves as he was sitting in a soft voice.
Therefore his evidence is to some extent based on his evidence is to some extent based on his
own guess-work. In para 19 of his deposition he admitted that in the marriage of Zubeda
Nikahnama was made. He also stated that he could not say whether the Qazi who officiated at
the Nikah of Zubeda. It was then suggested to him that the Qazi Paloba as he was Assistant
Commissioner of Police (CID) and by using the said influence he has obtained certificate from
Qazi. This suggestion was dented by the witness. Thus the evidence of this witness is also of
little assistance. The evidence of other witness viz. P. W. 7 Dr. Baillur is also streeo-tyoe. In para
7 he has stated that he was not aware of disputes between the plaintiff and defendant till filing of
the suit. It was no possible for him to give details about the marriage ceremony of Farhad, the
sister of the plaintiff, which was a recent one and be had attended the said marriage. This witness
is a close friend of the plaintiff. P.W 9 Farhad is the sister of the plaintiff. At the time of alleged
conversion and Nikah she was about 14 or 15 years of age. Initially in the examination-in-chief
she stated that she stated that she does not aware of disputes between the plaintiff and defendant
till filing of the suit. It was not possible for him to give details about the marriage ceremony of
Farhad, the sister of the plaintiff, which was a recent one and he had attended the said marriage.
244
This witness is a close friend of the plaintiff. P. W. 9 Farhad is the sister of the plaintiff. At the
time of alleged conversion and Jikah she was abot 14 or 15 years of age. Initially in the
examination-in-chief she stated that she does not remember as to whether the plaintiff and the
defendant were married again according to Muslim rites after their coming to India. Thereafter
Interpreter was called and then the questions were again asked to her in Urdu. This witness has
studied up to B.A. standard and therefore it cannot be said that earlier she could not understand
the question. She had admitted that the marriage photographs were taken at the time of her
marriage. She also stated that she does not know what customs the defendant wife was following
prior to 29-12-1969 but according to her after that date she was following Muslim customs. She
also stated in para 2 of her deposition that even prior to the conversion and Nikah ceremonies she
herself and members of her family used to know the defendant on Pervin, From her evidence it is
clear the photographs were being taken at the time of marriages. Admittedly no photographs
were taken when the marriage of the plaintiff and defendant took place in England. On record,
there are one or two photographs of the father of the plaintiff. Therefore the absence of
photograph at such an important function when both thje plaintiff and the defendant are not only
educated but were leading a modern life is a circumstance which is relevant for deciding the
theory of conversion and subsequent. Nikah. So far as the plaintiff's evidence is concerned, itis
obvioulsly an interested testimony. To say the least the other evidence on record can only render
corroboration to the evidence of Qazi Paloba who had conducted the conversion as well as Nikah
ceremonies. Once his evidence is disbelieved, then obviously the other evidence is not of much
assistance to prove the facturn of conversion. We have also on record the earlier affidavits filed
by plaintiff and his father, These affidavits were filed in the year 1978, The evidence of the
defendant is obviously negative. However, it is pertinent to not relevant for deciding the question
of conversion and Nikah. According to her there was no conversion and Nikah and the whole
story is false. Further we do not find any good or compelling reason so that the defendant should
decide to get herself converted to Islam. Her case of denial gets. Substantial corroboration in
subsequent events namly the opinion of Bank account, entries in birth register and ration card
wherein her name is still shown as Padma. Therefore, to us the whole story of conversion and
subsequent Nikah sounds most improbable. It the said case of the plaintiff Is tested on the
touchstone of probabilities, it will have to be hdl that the plaintiff has failed to prove conversion
or Nikah. Therefore, if cumulative effect of all this evidence is considered together with
surrounding circumstances, it cannot be said that the view taken by the trial Court is not the
correct view of the evidence.

36. So far as the evidence relating to the subsequent conduct of the defendant is concerned, viz.,
her observing Muslim restival or her adopting certain modes of behavious, which are consistent
with Muslim form of behavious, in our view that cannot shange the complexion. After all the
defendant wife had chosen to marry a Muslim husband. Her children were also Muslim. Most of
the relatives and friends of the husband with whom the defendant has to associate and keep
relations were Muslim culture. It is not disputed by Shri Mody that from this alone an inference
of conversion cannot be drawn. On the other hand the other documentary evidence on record,
namely the entry in the ration card, recitals in the application for telephone, entries in the birth
certificates pertaining to birth of Sabir clearly indicates that there was no conversion. The
learned Judge of the trial court has considered this aspect of the matter in paras 60 to 75 of his
judgment and has rightly come to the conclusion that her said conduct does not lead to inference
that she was converted to Islam or was professing Muslim religion. Even otherwise the alleged
conversion was motivated by orthodoxy of plaintiff's parents and was not with noble sentiments.
It does not show honest conviction or change of heart of faith in Muslim religion.

245
37. Once such a finding is recorded, then so-called talaq loses all its efficacy and, therefore, we
do not propose to deal with the said evidence. Once it is held that the marriage between the
defendant and the plaintiff solemnized in England in 1966 is governed by the Foreign Marriage
Act, then obviously it cannot stand dissolved by unilateral talaq. It is rather surprising that
though the marriage solemnized in England in 1986 is governed by the foreign Marriage Act,
then obviously it cannot stand dissolved by unitateral talaq. It is rather surpreising that though
the marriage solemnized in England in 1966 was subsisting, the plaintiff has put up a story of
second marriage in Nikah form with the same wife in December 1969, Even if it is assumed that
the subsequent Nikah is established, earlier monogamous and secular marriage which took place
in England in 1966 under British Marriage Act, 1949 is still subsisting as it has not been lawfully
dissolved till today. Therefore we generally agree with the findings recorded by the learned trial
Judge in this behalf.

38. In the view which we have taken it is not necessary to make any detailed reference to various
decision cited at the Bar either for the plaintiff or the defendant.

39. However, it is contended by Shri Mody that even if it is held that the marriage of the plaintiff
with the defendant case where injunction should be granted in favour of the plaintiff restraining
the defendant from entering into the premises in Paradise Apartment. According to Shri Mody
from the tenor of the evidenc on record it is clear that their living together in the same house is
an unpossibility. The defendant has gone in the extent of making false allegations against the
plaintiff vide her letter was written by her in a feat of anger or it could be explained as abuses
from an angry woman. According to Shri Mody, the wife who has gone to the extent of making
such false allegations against her husband should not be permitted to five in the same house.
Further the plaintiff husband had got a reasonable apprehension of danger to his life and to his
reputation from her if she continues to live with him under the same roof. Shri Mody has also
submitted that an injunction could be granted in favour of the plaintiff subject to certain terms
and conditions and she could also be granted reasonable maintenance. According to Shri Mody
in law wife has no specific right against her husband to be provided with any particular house
nor she has a right to live in a particular portion of the house. He also contended that in the
present case there is ample evidence on record to show that the defendant wife is motivated by
desires of revenge, which is amply clear from the entries in her diary, as well as her letter Exh. C
and therefore this is a fit case where an injunction should be granted in favour of the plaintiff on
payment of certain amount towards maintenance. On the other hand it is contended by Shri Parkh
that all though it is the case of the wife that the flal in Paradise Apartment is jointly owned by her
or in any case is her matrimonial home. She has also pleaded that her articles including her
telephone, is inside the matrimonial home. The defendant was residing in her matrimonial home
till the date of institution of her suit and as lond as the marriage is subsisting the husband has no
right to throw his wife out of their matrimonial home. He also contended that the tral court as
well as the first appellate court have exercised their discretion judiclally and this court sitling in
the Letters Patent appeal cannot make out an altogether new case in favour of the plaintiff nor
the plaintiff can be prtmitted to make out an altogether new case in this appeal. According to Shri
Parekh this is not a fit case wherein any interference is called for in this Letters Patent Appeal
cannot make out an altogether new case in favour of the plaintiff nor the plaintiff can be
permitted to make out an altogether new case in this appeal. According to Shri Parekh this is not
a fit case wherein any interference is called for in this Letters Patent Appeal which is in
substance a second appeal. He also contended that in the trial court no injunction was filed but at
that stage the defendant had no opportunity to file a counter. He also contended that after the
decision in the first appeal, the stay was refused by the High Court and the leave petition filed
against if was also dismissed by the Supreme Court and since then the husband and wife are
246
living in the same premises. No material is placed on record by the plaintiff hsuband to indicate
that their living together is not peacefu, He also contended that during the course of the
arguments in this Letters Patent Appeal the Court indicated to Mr. Karim, learned Advocate on
record for the plaintiff that if he so desires, he can file an application indicating as to how the
plaintiff will be providing an alternate accommodtation and maintenance to his wife; but such an
application is not filed. Therefore, according to Shri Parekh in the absence of any such
application, the plaintiff is not entitied to any relief in this Letters Patent Appeal. It is also
contended by Shri Parekh that the plaintiff's conduct all through was such that the cannot be
heard in equity. It is also submitted by him that the plaintiff has filed a separate suit on the
Original Side of this Court bearing Suit No. 1413 of 1978 wherein he has sought for a
declaration that he is the absolute owner of the flat in the Paradise Apartment. He has also asked
for a permanent injunction restraining the defendant wife from entering into the said premises,
Thus the question of ownership of the flat is subjudice and until it is decided it cannot be
assumed that the plaintiff is the sole owner. In the said plaint the plaintiff has made a reference to
the injunction earlier granted by this Court in Appeal from Order No. 251 of 1978, therefore, if
so advised, he can approach the High Court in the said suit for an injunction on terms or
otherwise and in that case the defendant will have an opportunity to put forward her case.
According to Shri Parekh Granting an injunction in the present case other on termsor otherwise
will be most inequitable and will prejudice the case of the wife in the suit filed on the Original
Side.

40. Having regard to the facts and circumstances of the present case. In our opinion, this is a fit
case wherein an injunction subject to certain terms and conditions should be granted. From the
hare reading of the letter, Exhibit 6. Wherein respondent wife has made an allegation against the
petitioner husband about his incestuous relationship we are more than satisfied that their living to
gether is an impossibility. Shri Mody is also quite justified in complaining that she is motivated
by destres of revenge. He is supported in this contention in this behalf by the entries in her diary.
It further appears that not only in the trial Court but even at the first appellate stage various
efforts were made for reconciliation or settlement. Such efforts were also made during the
pendency of this Letters Patent Appeal also. However all these efforts failed. This clearly
indicates that the relations between the parties are strained beyond repairs. In these
circumstances it will not be in the interest of either parties to force then to live together.
Assuming that the residence in the Paradise Apartment is matrimonial home of the respondent
wife, the wife has no specifid right against her husband to live in the whole of the house or in
any particular portion of the house. The flat in Paradise Apartment is big enough to allow the
parties to live there separately by effecting suitable partition. This will be also in interest of
children who are away for education but come home in vacations. It is clear from the record that
both mother and father have love and affection for the children. Therefore if the parties are
allowed to live though seprately in the same house, the children will e in a position to enjoy the
company of their parents when they come home. Therefore in our opinion it will be just and fair
if an injunction is granted to the plaintiff on the condition that he will effect a partition in the flat
as suggested in the plan submitted by the learned counsel for the defendant wife and is also
directed to pay her maintenance on an and hoc basis. It is notdisputed that the Court has
jurisdiction to pass such a conditional order of jurisdiction to pass such a conditinal order of
injunction. In our view such an order is absolutely necessary in this case to do justice between
the parties before us. The plaintiff is an eminent surgeon. Therefore he must have a peace of
mind to enable him to discharge his duties as a surgeon more efficiently. Unless there is peace at
home. Such a peace of mind is an impossibility.Therefore in our view this is a fit case wherein
the plaintiff should be granted an injunction though on certain terms and conditions, till the

247
matter is decided in the suit pending on the Original Side of this Court or in any othe appropriate
proceedings.

41. It is submitted by Shri Parekh that in case Court comes to the conclusion that it is necessary
to grant interim injunction, then the defendant wife should be given a portion of the flat as
outlined by him in red boundary in the map accompanying his written submissions on the
conditions that the appellant plaintiff shall pay all outgoinds and shall not effect any sale or
create third party rights or tenancy in repect of the flat. He should also be directed to pay
additional and hoc maintenance per month to the defendant from the date of the order in this
appeal as the Court considers proper fill quantum of maintenance is fized by the order of the
Court of competent jurisdiction in any other proceeding. In the plain submitted by Shri Parekh he
has made a reference to points Nos. 1, 2, 3 and 4, which are doors and which will be closed and
E 2 will be the defendant's entrance and at points 5 and 6 a notional or real partition will have to
be created. E. 1 which is a servant's room or passage marked 'A' can become kitchen. The hall,
dining room, bedroom, toilet and two balconies will remain with the plaintiff and the other
smailer portion which is less than one-third could be allotted to the defendant wife wherein she
can live separately Shri Parekh has further submitted that at points 5 and 6 where the partition
will be constructed, the partition should have a door so that at least children can use both the
parts of the flat. In our opinion the arrangement suggested by Shri Parekh in the plan atached to
his written submission is most reasonable and if the plaintiff husband is granted injunction
obviously subject to the decision or orders in suit bearing No. 1413 of 1978 pending on the
Original Side. It will meet the ends of Justice. This will he subject to the further term of paying
additional adhoc maintenance of Rs. 7,000/- per month to the defendant by the plaintiff from the
date of the order of this Cpirt in this Letters Patent Appeal, till the quantum of maintenance is
fixed by the Court of competent jurisdiction in any other proceeding instituted by either of the
parties. To that extent the appeal deserves to be allowed.

42. In the result, therefore, the appeal is partly allowed and the defendant will be restrained from
entering into the portion of the flat, which is outlined in the map kept on record and which in
reserved for the residence of the plaintiff after be effects a notional or real partition at points 5
and 6 i.e door in between. The injunction will become operative from the date on which such
partition is actually effected. The injunction will also be subject to the condition that the plaintiff
shall pay to the defendant an amount of Rs. 1,000/- (one thousand) per month, on or before the
10th of each month, towards and hoc maintenance subject to the fixation of the maintenance by a
Court of competent jurisdiction in any other proceedings. The parties shall not effect any sale or
created third party interest or tenancy rights qua the flat, of course subject to the order of the
Courts of competent jurisdiction. The plaintiff will be liable to pay all outgoings including taxes
etc, qua the portion of the flat in occupation of the defendant. Since we have decided major
issues against the appellant plaintiff in this appeal, on our opinion this is a fit case where the
appellant husband should be directed to apy costs of this appeal to the defendant, which is
quantified at rupees and thousand (Rs. 1,000/-) The map produced is taken on record. In the view
which we have taken no order on cross-objection are necessary. Counter-claim as decreed stands
modified in terms of our aforesaid final order.

Supreme Court of India

Saroj Rani Vs Sudharshan Kumar AIR 1984 SC 1562

248
JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 187 of 1983.

From the Judgment and Order dated the 17th August, 1982 of the Punjab and Haryana High
Court in First Appeal From Order No. 199-M of 1979.

R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant.

E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma for the respondent.

The Judgment by SABYASACHI MUKHARJI, J.

The parties herein were married at Jullundur City according to Hindu Vedic rites on or about
24th January, 1975. The first daughter of the marriage Menka was born on 4th January, 1976. On
28th February, 1977 second daughter Guddi was born. It is alleged that 16th May, 1977 was the
last day of cohabitation by the parties. It is further alleged that on 16th May, 1977, the
respondent- husband turned the appellant out of his house and withdrew himself from her
society. The second daughter unfortunately expired in the house of the respondent/father on 6th
August, 1977. On 17th October, 1977, the wife-appellant filed a suit against the
husband/respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred
to as the said Act for restitution of conjugal rights.

In view of the argument now sought to be advanced, it is necessary to refer to the said petition.
In the said petition, the wife had set out the history of the marriage as hereinbefore briefly
mentioned and alleged several maltreatments both by the husband as well as by her in-laws and
thereafter claimed decree for restitution of conjugal rights. On 21st March, 1978, the learned
Sub-Judge Ist Class passed an order granting Rs. 185 per month as maintenance pendente lite
and Rs. 300 as the litigation expenses. On 28th March, 1978, a consent decree was passed by the
learned Sub-Judge Ist Class for restitution of conjugal rights. It may be mentioned that on the
petition of the wife for restitution of conjugal rights, the husband-respondent appeared and filed
his written statement admitting therein the factum of marriage between the parties but denied the
fact that the respondent had ever made any demand from the petitioner as alleged or had ever
disliked her or had withdrawn from her society or turned her out from his house as alleged by the
wife petitioner in her petition for restitution of conjugal rights. The respondent thereafter made a
statement in the court that the application of the petitioner under Section 9 of the said Act be
granted and decree thereof be passed. Accordingly the learned Sub-Judge Ist Class on 28th
March 1978 passed the decree for the restitution of conjugal rights between the parties. It was
alleged by the petitioner-wife that the appellant had gone to the house of the respondent and
lived with him for two days as husband and wife. This fact has been disbelieved by all the courts.
The courts have come to the conclusion and that conclusion is not challenged before us that there
has been no cohabitation after the passing of the decree for restitution of conjugal rights.

On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act
against the appellant for divorce on the ground that one year had passed from the date of the
decree for restitution of confugal rights, but no actual cohabitation had taken place between the
parties. The appellant filed her reply to the said petition. The categorical case in reply of the
appellant was that it was incorrect that after passing of the decree, there had been no restitution
of conjugal rights between the parties, positive case of the appellant was that after passing of the
decree, the wife was taken to the house of the husband by the parents of the wife after one month
249
of the decree and that the husband kept the wife in his house for two days and she was again
turned out. It was further alleged that the wife had filed an application under Section 28A of the
said Act in the court of Sub-Judge, 1st Class, Jullundur on 22nd January, 1979 with the request
that the husband should be directed to comply with the decree passed against him under Section
9 of the said Act and the application was pending at the time when the reply was filed by the
wife to the petition for divorce.

The learned District Judge on 15th October, 1979 dismissed the petition of the husband for
divorce. The learned Judge framed two issues, one was whether there has been no restitution of
conjugal rights after the passing of the decree for the restitution of conjugal rights, and secondly
to what relief was the husband entitled to ? After considering the evidence of civil and criminal
proceedings pending between the parties, the learned Judge came to the conclusion that there has
been no resumption of cohabitation between the parties after 28th March, 1978 and decided the
issue in favour of the husband but on the question of relief the learned Judge was of the view that
in view of the provisions of Section 23 of the said Act and in view of the fact that the previous
decree was a consent decree and at that time there was no provision like provision of Section
13B of the said Act i.e. 'divorce by mutual consent', the learned Judge was of the view that as the
decree for restitution of conjugal rights was passed by the consent of the parties, the husband was
not entitled to a decree for divorce.

Being aggrieved by the said decision, there was an appeal before the High Court of Punjab and
Haryana. So far as last mentioned ground was concerned, the High Court held that in view of the
decision of this Court in the case of Dharmendra Kumar v. Usha Kumari, this contention was not
open to the wife. The court was of the opinion that in view of the said decision of this Court, it
could not be said that the husband was taking advantage of his 'wrongs'. In the said decision this
Court noted that it would not be reasonable to hold that the relief which was available to the
spouse against whom a decree for restitution of conjugal rights had been passed should be denied
to the one who does not comply with the decree passed against him or her. The expression "in
order to be a 'wrong' within the meaning of Section 23 (1) (a) the conduct alleged has to be
something more than mere disinclination to agree to an offer of reunion, it must be misconduct
serious enough to justify denial of the relief to which the husband or the wife is otherwise
entitled to. So, therefore, Section 23 (1) (a) provides as follows:-

"23. (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief
is sought by him on the ground specified in sub-clause

(a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage
of his or her own wrong or disability for the purpose of such relief and").

In that view of the matter, the High Court rejected the contention. So far as the other aspect was
concerned, the learned Judge expressed the view that the decree for restitution of conjugal rights
could not be passed with the consent of the parties and therefore being a collusive one disentitled
the husband to a decree for divorce. This view was taken by the learned trial judge relying on a
previous decision of the High Court. Mr. Justice Goyal of the High Court felt that this view
required reconsideration and he therefore referred the matter to the Chief Justice for constitution
of a Division Bench of the High Court for the consideration of this question.

250
The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and
Chief Justice Sandhawalia for the said court on consideration of different authorities came to the
conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle
the petitioner to decree for restitution of conjugal rights. It may be mentioned that before the
Division Bench of behalf of the appellant-wife, counsel did not assail the factual finding of the
Trial Court that there was no co-habitation after the decree for restitution of conjugal rights nor
did he press the first ground of defence namely that the appellant could not take advantage of his
'wrong' because of having refused cohabitation in execution of the decree. However, the ground
that the decree for restitution of conjugal rights was in a sense collusive decree was pressed
before the Division Bench. In view of the Full Bench decision of the Punjab and Haryana High
Court in the case of Joginder Singh v. Smt. Pushpa wherein the majority of the Judges of the Full
Bench held that a consent decree in all cases could not be said to be a collusive decree and where
the parties had agreed to passing of a decree after attempts had been made to settle the matter, in
view of the language of Section 23 of the court had tried to make conciliation between the parties
and conciliation had been ordered, the husband was not disentitled to get a decree.

Section 23 sub-section (2) provides as follows:- "(2)-Before proceeding to grant any relief under
this Act, it shall be the duty of the court in the first instance, in every case where it is possible so
to do consistently with the nature and circumstances of the case, to make every endeavor to bring
about a reconciliation between the parties:

Provided that nothing contained in this sub- section shall apply to any proceeding wherein relief
is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause
(vi) or clause (vii) of sub-section (1) of section 13." In this case from the facts on record it
appears that there was no collusion between the parties. The wife petitioned against the husband
on certain allegations, the husband denied these allegations. He stated that he was willing to take
the wife back. A decree on that basis was passed. It is difficult to find any collusion as such in
the instant case. Apart from that we are in agreement with the majority of the learned judges of
the Division Bench of Punjab and Haryana High Court in the case of Joginder Singh v. Smt.
Pushpa (supra) that all cases of consent decrees cannot be said to be collusive. Consent decrees
per se in matrimonial matters are not collusive. As would be evident from legislative intent of
Section 13B that divorce by mutual consent is no longer foreign to Indian law of divorce but of
course this is a subsequent amendment and was not applicable at the time when the decree in
question was passed. In the premises we accept the majority view of the Division Bench of
Punjab and Haryana High Court on this point.

In this appeal before this Court, counsel for the wife did not challenge the finding of the Division
Bench that the consent decree as such was not bad or collusive. What he tried to urge before us
was that in view of the expression 'wrong' in Section 23(1) (a) of the Act, the husband was
disentitled in this case to get a decree for divorce. It was sought to be urged that from the very
beginning the husband wanted that decree for divorce should be passed. He therefore did not
deliberately oppose the decree for restitution of conjugal rights. It was submitted on the other
hand that the respondent/husband had with the intention of ultimately having divorce allowed the
wife a decree for the restitution of conjugal rights knowing fully well that this decree he would
not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with
the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong'. There is,
however, no whisper of these allegations in the pleading. As usual, on this being pointed out, the
counsel prayed that he should be given an opportunity of amending his pleadings and, the
parties, with usual plea, should not suffer for the mistake of the lawyers. In this case, however,
there are insurmountable difficulties. Firstly there was no pleading, secondly this ground was not
251
urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the
allegations made by the wife in the trial court and before the Division Bench were contrary to the
facts now sought to be urged in support to her appeal. The definite case of the wife was that after
the decree for restitution of conjugal rights, the husband and wife cohabitated for two days. The
ground now sought to be urged is that the husband wanted the wife to have a decree for judicial
separation by some kind of a trap and then not to cohabitate with her and thereafter obtain this
decree for divorce. This would be opposed to the facts alleged in the defence by the wife.
Therefore quite apart from the fact that there was no pleading which is a serious and fatal
mistake, there is no scope of giving any opportunity of amending the pleadings at this stage
permitting the wife to make an inconsistent case. Counsel for the appellant sought to urge that
the expression 'taking advantage of his or her own wrongs' in clause (a) of sub- section 23 must
be construed in such a manner as would not make the Indian wives suffer at the hands of cunning
and dishonest husbands. Firstly even if there is any scope for accepting this broad argument, it
has no factual application to this case and secondly if that is so then it requires a legislation to
that effect. We are therefore unable to accept the contention of counsel for the appellant that the
conduct of the husband sought to be urged against him could possibly come within the
expression 'his own wrongs' in section 23(1) (a) of the Act so as to disentitle him to a decree for
divorce to which he is otherwise entitled to as held by the courts below. Further more we reach
this conclusion without any mental compunction because it is evident that for whatever be the
reasons this marriage has broken down and the parties can no longer live together as husband and
wife, if such is the situation it is better to close the chapter.

Our attention, however, was drawn to a decision of a learned single judge of the Andhra Pradesh
High Court in the case of T. Sareetha v. Venkata Subbaiah. In the said decision the learned judge
had observed that the remedy of restitution of conjugal rights provided for by Section 9 of the
said Act was a savage and barbarous remedy violating the right to privacy and human dignity
guaranteed by Article 21 of the Constitution. Hence, according to the learned judge, Section 9
was constitutionally void. Any statutory provision that abridged the rights guaranteed by Part III
of the Constitution would have to be declared void in terms of Article 13 of the Constitution.
According to the said learned judge, Article 21 guaranteed right to life and personal liberty
against the State action. Formulated in simple negative terms, its range of operation positively
forbidding the State from depriving any person of his life or personal liberty except according to
the procedure established by law was of far-reaching dimensions and of overwhelming
constitutional significance. Learned judge observed that a decree for restitution of conjugal rights
constituted the grossest form of violation of any individual right to privacy. According to the
learned judge, it denied the woman her free choice whether, when and how her body was to
become the vehicle for the procreation of another human being. A decree for restitution of
conjugal rights deprived, according to the learned judge, a woman of control over her choice as
and when and by whom the various parts of her body should be allowed to be sensed. The
woman loses her control over her most intimate decisions. The learned judge therefore was of the
view that the right to privacy guaranteed by Article 21 was flagrantly violated by a decree for
restitution of conjugal rights. The learned judge was of the view that a wife who was keeping
away from her husband because of permanent or even temporary estrangement cannot be forced,
without violating her right to privacy to bear a child by her husband. During a time when she was
probably contemplating an action for divorce, the use and enforcement of Section 9 of the said
Act against the estranged wife could irretrievably alter her position by bringing about forcible
conception permanently ruining her mind, body and life and everything connected with it. The
learned judge was therefore clearly of the view that Section 9 of the said Act violated Article 21
of the Constitution. He referred to the Scarman Commission's report in England recommending
its abolition. The learned judge was also of the view that Section 9 of the said Act, promoted no
252
legitimate public purpose based on any conception of the general good. It did not therefore
subserve any social good. Section 9 of the said Act was, therefore, held to be arbitrary and void
as offending Article 14 of the Constitution. Learned judge further observed that though Section 9
of the said Act did not in form offend the classification test, inasmuch as it made no
discrimination between a husband and wife, on the other hand, by making the remedy of
restitution of conjugal rights equally available both to wife and husband, it apparently satisfied
the equality test. But bare equality of treatment regardless of the inequality of realities was
neither justice nor homage to the constitutional principles. He relied on the decision of this Court
in the case of Murthy Match Works, Etc. Etc. v. The Assistant Collector of Central Excise Etc.
The learned judge, however, was of the opinion based on how this remedy was found used
almost exclusively by the husband and was rarely resorted to by the wife.

The learned judge noticed and that is a very significant point that decree for restitution of
conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure. He also
referred to certain trend in the American law and came to the conclusion that Section 9 of the
said Act was null and void. The above view of the learned single judge of Andhra Pradesh was
dissented from in a decision of the learned single judge of the Delhi High Court in the case of
Smt. Harvinder Kaur v. Harmander Singh Choudhry. In the said decision, the learned judge of
the Delhi High Court expressed the view that Section 9 of the said Act was not violative of
Articles 14 and 21 of the Constitution. The learned judge noted that the object of restitution
decree was to bring about cohabitation between the estranged parties so that they could live
together in the matrimonial home in amity. The leading idea of Section 9 was to preserve the
marriage. From the definition of cohabitation and consortium, it appeared to the learned judge
that sexual intercourse was one of the elements that went to make up the marriage, but that was
not the summum bonum. The courts do not and can not enforce sexual intercourse. Sexual
relations constituted an important element in the conception of marriage, but it was also true that
these did not constitute its whole content nor could the remaining aspects of matrimonial
consortium be said to be wholly unsubstantial or of trivial character. The remedy of restitution
aimed at cohabitation and consortium and not merely at sexual intercourse. The learned judge
expressed the view that the restitution decree did not enforce sexual intercourse. It was a fallacy
to hold that the restitution of conjugal rights constituted "the starkest form of governmental
invasion" of "marital privacy".

This point namely validity of Section 9 of the said Act was not canvassed in the instant case in
the courts below counsel for the appellant, however, sought to urge this point before us as a legal
proposition. We have allowed him to do so.

Having considered the views of the learned single judge of the Andhra Pradesh High Court and
that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the
validity of Section 9 of the said Act the views of the learned single judge of the Delhi High
Court. It may be mentioned that conjugal rights may be viewed in its proper perspective by
keeping in mind the dictionary meaning of the expression "Conjugal". Shorter Oxford English
Dictionary, 3rd Edn. Vol. I page 371 notes the meaning of 'conjugal' as "of or pertaining to
marriage or to husband and wife in their relations to each other". In the Dictionary of English
Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal rights' thus:

"The right which husband and wife have to each other's society and marital intercourse. The suit
for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is
brought whenever either the husband or the wife lives separate from the other without any

253
sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial
Causes Act, 1950, s. 15), but will not enforce it by attachment, substituting however for
attachment, if the wife be the petitioner, an order for periodical payments by the husband to the
wife (s.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot
seize and detain his wife by force (R.V. Jackson [1891] 1 Q.B. 671)".

In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the
society of the other spouse is not merely creature of the statute. Such a right is inherent in the
very institution of marriage itself. See in this connection Mulla's Hindu Law-15th Edn. p. 567-
Para 443. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The
importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st
Report on the Hindu Marriage Act, 1955- "Irretrievable Breakdown of Marriage as a Ground of
Divorce, Para 6.5 where it is stated thus:-

"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness
that life has to offer and all the misery that has to be faced in life, an experience of the joy that
comes from enjoying, in common, things of the matter and of the spirit and from showering love
and affection on one's offspring. Living together is a symbol of such sharing in all its aspects.
Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of
the essence of marriage-"breakdown" and if it continues for a fairly long period, it would
indicate destruction of the essence of marriage- "irretrievable breakdown".

Section 9 only is a codification of pre-existing law.

Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance
for restitution of conjugal rights or for an injuction. Sub-rule (1) of Rule 32 is in these terms:

"Where the party against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of
obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a
decree for restitution of conjugal rights by the attachment of his property or, in the case of a
decree for the specific performance of a contract, or for an injuction by his detention in the civil
prison, or by the attachment of his property, or by both."

It is significant to note that unlike a decree of specific performance of contract, for restitution of
conjugal rights the sanction is provided by court where the disobedience to such a decree is
willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might
be enforced by attachment of property. So the only sanction is by attachment of property against
disobedience of a decree for restitution of conjugal rights where the disobedience follows as a
result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the
decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then
only financial sanction, provided he or she has properties to be attached, is provided for. This is
so as an inducement by the court in appropriate case when the court has decreed restitution for
conjugal rights and that the court can only decree if there is no just reason for not passing decree
for restitution of conjugal rights to offer inducement for the husband or wife to live together in
order to give them an opportunity to settle up the matter amicably. It serves a social purpose as
an aid to the prevention of break-up of marriage. It cannot be viewed in the manner the learned
254
single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to accept
the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the
Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is
understood in its proper perspective and if the method of its execution in cases of disobedience is
kept in view.

Another decision to which our attention was drawn is also a Bench decision of the Andhra
Pradesh High Court in the case of Geeta Laxmi v. G.V.R.K. Sarveswara Rao. There on the
admitted misconduct of the husband is not only in not complying with the decree for restitution
of conjugal rights but ill- treating the wife and finally driving her away from the house, it was
held that the husband was not entitled to a decree under Section 13(1A) of the said Act in view
of the wrong as contemplated under Section 23(1) (a) of the Act. The facts of that case were
entirely different from the facts of the instant case before us. There is no such allegation or proof
of any ill-treatment by the husband or any evidence of the husband driving the wife out of the
house. In that view of the matter, this decision cannot be of any assistance to the appellant in the
instant case.

Counsel for the appellant, however, contended before us that in the social reality of the Indian
society, a divorced wife would be materially at a great disadvantage. He is right in this
submission. In view, however, of the position in law, we would direct that even after the final
decree of divorce, the husband would continue to pay maintenance to the wife until she remarries
and would maintain the one living daughter of the marriage. Separate maintenance should be
paid for the wife and the living daughter. Until altered by appropriate order on application on
proper materials such maintenance should be Rs. 200 per month for the wife appellant and Rs.
300 per month for the daughter Menka. Wife would be entitled to such maintenance only until
she re- marries and the daughter Menka to her maintenance until she is married. Parties will be at
liberty to ask for variation of the amounts by proper application on proper materials made before
Sub-judge Ist Class Jullunder. The respondent would pay costs of this appeal to appellant
assessed at Rs. 1500.

The appeal is dismissed

N.G. Dastane v. S. Dastane

(1975) 2 SCC 326

Y.V. CHANDRACHUD, J. - This is a matrimonial dispute arising out of a petition filed

by the appellant for annulment of his marriage with the respondent or alternatively for
divorce or for judicial separation. The annulment was sought on the ground of fraud,
divorce on the ground of unsoundness of mind and judicial separation on the ground of
cruelty.

2. The spouses possess high academic qualifications and each one claims a measure of
social respectability and cultural sophistry. The evidence shows some traces of these.
But of this there need be no doubt: the voluminous record which they have collectively
built up in the case contains a fair reflection of their rancour and acrimony.
255
3. The appellant, Dr Narayan Ganesh Dastane, passed his M.Sc. in Agriculture from the
Poona University. He was sent by the Government of India for Australia in the Colombo
Plan Scheme. He obtained his Doctorate in Irrigation Research from an Australian
University and returned to India in April, 1955. He worked for about 3 years as an
Agricultural Research

.Officer and in October, 1958 he left Poona to take charge of a new post as an Assistant
Professor of Agronomy in the Post-Graduate School, Pusa Institute, Delhi. At present he
is said to be working on a foreign assignment. His father was a solicitor-cum-lawyer
practising in Poona.

4. The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly
in Delhi. Her father was transferred to Delhi in 1949 as an Under Secretary in the
Commerce Ministry of the Government of India and she came to Delhi along with the
rest of the family. She passed her B.Sc. from the Delhi University in 1954 and spent a
year in Japan where her father was attached to the Indian Embassy. After the rift in her
marital relations, she obtained a master‘s degree in Social Work. She has done field
work in Marriage Conciliation and Juvenile Delinquency. She is at present working in
the Commerce and Industry Ministry, Delhi.

5. In April, 1956 her parents arranged her marriage with the appellant. But before
finalising the proposal, her father- B. R. Abhyankar - wrote two letters to the appellant‘s
father saying in the first of these that the respondent ―had a little misfortune before
going to

Japan in that she had a bad attack of sunstroke which affected her mental condition for
some time‖. In the second letter which followed at an interval of two days, ―cerebral
malaria‖ was mentioned as an additional reason of the mental affectation. The letters
stated that after a course of treatment at the Yeravada Mental Hospital, she was cured:
―you find her as she is today‖. The respondent‘s father asked the appellant‘s father to
discuss the matter, if necessary, with the doctors of the-Mental Hospital or with one Dr
P.L. Deshmukh, a relative of the respondent‘s mother. The letter was written avowedly in
order that the appellant and his people ―should not‘ be in the dark about an important
episode‖ in the life of the respondent, which ―fortunately, had ended happily‖.

6. Dr Deshmukh confirmed what was stated in the letters and being content with his
assurance, the appellant and his father made no enquiries with Yeravada Mental
Hospital. The marriage was performed at Poona on May 13, 1956. The appellant was
then 27 and the Respondent 21 years of age.

7. They lived at Arbhavi in District Belgaum from June to October 1956. On November
1, 1956 the appellant was transferred to Poona where the two lived together till 1958.
During this period a girl named Shubha was born to them on March 11, 1957. The
respondent delivered in Delhi where her parents lived and returned to Poona in June,
1957 after an absence, normal on such occasions, of about 5 months. In October,
1958 the appellant took a job in the Pusa Institute of Delhi. On March 21, 1959 the
second daughter, Vibha, was bom. The respondent delivered at Poona where the
appellant‘s parents lived and returned to Delhi in August, 1959. Her parents were
living at this time in Djakarta, Indonesia.
256
 8. In January, 1961, the respondent went to Poona to attend the marriage of the
appellant‘s brother, a doctor by profession, who has been given in adoption in the
Lohokare family. A fortnight after the marriage, on February 27, 1961 the appellant
who had also gone to Poona for the marriage got the respondent examined by Dr
Seth, a Psychiatrist incharge of the Yeravada Mental Hospital. Dr Seth probably
wanted adequate data to make his diagnosis and suggested that he would like to have
a few sittings exclusively with the respondent. For reasons good or bad, the
respondent was averse to submit herself to any such scrutiny. Either she herself or
both she and the appellant decided that she should stay for some time with a relative
of hers, Mrs Gokhale. On the evening of the 27th, she packed her tit-bits and the
appellant reached her to Mrs Gokhale‘s house. There was no consultation thereafter
with Dr Seth. According to the appellant, she had promised to see Dr Seth but she
denies that she made any such promise. She believed that the appellant was building
up a case that she was of unsound mind and she was being lured to walk into that
trap. February 27, 1961 was the last that they lived together. But on the day of parting
she was three months in the family way. The third child, again a girl, named Pratibha
was bom on August 19, 1961 when her parents were in the midst of a marital crisis.

9. Things had by then come to an impossible pass. And close relatives instead of
offering wise counsel were fanning the fire of discord that was devouring the
marriage. A gentleman called Gadre whose letter-head shows an ―M.A.(Phil.),
M.A.(Eco.), LL.B.‖, is a maternal uncle of the respondent. On March 2, 1961 he had
written to the appellant‘s father a pseudonymous letter, now proved to be his, full of
malice and sadism. He wrote:

I on my part consider myself to be the father of ‗Brahmadev‘..... This is only the beginning.
From the spark of your foolish and half-baked egoism, a big conflagration of family quarrels will
break out and all will perish therein. This image of the mental agony suffered by all your kith
and kin gives me extreme happiness.... You worthless person, who cherishes a desire to spit on
my face now behold that all the world is going to spit on your old cheeks. So why should I lose
the opportunity of giving you a few severe slaps on your cheeks and of fisting your ear. It is my
earnest desire that the father-in-law should beat your son with foot-wear in a public place.

10. On March 11, 1961 the appellant returned to Delhi all alone. Two days later the
respondent followed him but she went straight to her parents‘ house in Delhi. On the
15th, the appellant wrote a letter to the police asking for protection as he feared
danger to his life from the respondent‘s parents and relatives. On the 19th, the
respondent saw the appellant but that only gave to the parties one more chance to give
vent to mutual dislike and distrust. After a brief meeting, she left the broken home for
good. On the 20th, the appellant once again wrote to the police renewing his request
for protection.

11. On March 23, 1961 the respondent wrote to the appellant complaining against his
conduct and asking for money for the maintenance of herself and the daughters. On
May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and
Agriculture, saying that the appellant had deserted her, that he had treated her with
extreme cruelty and asking that the Government should make separate provision for
her maintenance. On March 25, her statement was recorded by an Assistant
257
 Superintendent of Police, in which‘ she alleged desertion and ill-treatment by the
appellant. Further statements were recorded by the police and the Food Ministry also
followed up respondent‘s letter of May 19, but ultimately nothing came out of these
complaints and cross-complaints.

12. As stated earlier, the third daughter, Pratibha, was born on August 19, 1961. On

November 3, 1961 the appellant wrote to respondent‘s father complaining of

respondent‘s conduct and expressing regret that not even a. proper invitation was issued
to him when the naming ceremony of the child was performed. On December 15, 1961
the appellant wrote to respondent‘s father stating that he had decided to go to the court
for seeking separation from the respondent. The proceedings out of which this appeal
arises were instituted on February 19, 1962.

13. The parties are Hindus but we do not propose, as is commonly done and as has been
done in this case, to describe the respondent as a ―Hindu wife‖ in contrast to non-
Hindu wives as if women professing this or that particular religion are exclusively
privileged in the matter of good sense, loyalty and conjugal kindness. Nor shall we
refer to the appellant as a

―Hindu husband‖ as if that species unfailingly projects the image of tyrant husbands.
We propose to consider the evidence on its merits, remembering of course the peculiar
habits, ideas, susceptibilities and expectations of persons belonging to the strata of
society to which these two belong. All circumstances which constitute the occasion or
setting for the conduct complained of have relevance but we think that no assumption can
be made that respondent is the oppressed and appellant the oppressor. The evidence in
any case ought to bear a ‗secular‘ examination.

14. The appellant asked for annulment of his marriage by a decree of nullity under
Section 12(l)(c) of The Hindu Marriage Act‘, 25 of 1955, (―The Act‖) on the ground
that his consent to the marriage was obtained by fraud. Alternatively, he asked for
divorce under Section 13(l)(iii) on the ground that the respondent was incurably of
unsound mind for a continuous period of not less /than three years immediately
preceding the presentation of the petition. Alternatively, the appellant asked for
judicial separation under Section 10 (!)(b) on the ground that the respondent had
treated him with such cruelty as to cause a reasonable apprehension in his mind that it
would be harmful or injurious for him to live with her.

15. The appellant alleged that prior to the marriage, the respondent was treated in the
Yeravada Mental Hospital for schizophrenia but her father fraudulently represented
that she was treated for sunstroke and cerebral malaria. The trial Court rejected this
contention. It also rejected the contention that the respondent was of unsound mind.
It, however, held that the respondent was guilty of cruelty and on that ground it
passed a decree for judicial separation.

16. Both sides went in appeal to the District Court which dismissed the appellant‘s
appeal and allowed the respondent‘s, with the result that the petition filed by the
appellant stood wholly dismissed.

258
17. The appellant then filed Second Appeal No. 480 of 1968 in the Bombay High Court.
A learned Single Judge of that court dismissed that appeal by a judgment dated
February 24, 1969. This Court granted to the appellant special leave to appeal,
limited to the question of judicial separation on the ground of cruelty.

18. We are thus not concerned with the question whether the appellant‘s consent to the
marriage was obtained by fraud or whether the respondent had been of unsound mind
for the requisite period preceding the presentation of the petition. The decision of the
High Court on those questions must be treated as final and cannot be reopened.

19. In this appeal by special leave, against the judgment rendered by the High Court in
second appeal, we would not have normally permitted the parties to take us through
the evidence in the case. Sitting in second appeal, it was not open to the High Court
itself to reappreciate evidence. Section 100 of the Code of Civil Procedure restricts
the jurisdiction of the High Court in second appeal to questions of law or to
substantial errors or defects in the procedure which may possibly have produced error
or defect in the decision of the case upon the merits. But the High Court came to the
conclusion that both the courts below had ―failed to apply the correct principles of
law in determining the issue of cruelty‖. Accordingly, the

High Court proceeded to consider the evidence for itself and came to the conclusion
independently that the appellant had failed to establish that the respondent had -treated
him with cruelty. A careful consideration of the evidence by the High Court ought to be
enough assurance that the finding of fact is correct and it is not customary for this Court
in appeals under Article 136 of the Constitution to go into minute details of evidence and
weigh them one against the other, as if for the first time. Disconcertingly, this normal
process is beset with practical difficulties.

20. In judging of the conduct of the respondent, the High Court assumed that the words
of abuse or insult used by the respondent could not have been addressed in vacuum.
Every abuse, insult, remark or retort must have ‗been probably in exchange for
remarks and rebukes from the husband ... a court is bound to consider the
probabilities and infer, as I have done, that they must have been in the context of the
abuses, insults, rebukes and remarks made by the husband and without evidence on
the record with respect to the conduct of the husband in response to which the wife
behaved in a particular way on each occasion, it is difficult, if not impossible to draw
inferences against the wife.

21. We find this approach difficult to accept. Under Section 103 of the Code of Civil
Procedure, the High Court may, if the evidence on the record is sufficient, determine
any issue of fact necessary for the disposal of the appeal which has not been
determined by the lower appellate court or which has been wrongly determined by
such court by reason of any illegality, omission, error or defect such as is referred to
in subsection (1) of Section 100. But, if the High Court takes upon itself the duty to
determine an issue of fact its power to appreciate evidence would be subject to the
same restraining conditions to which the power of any court of facts is ordinarily
subject. The limits of that power are not wider for the reason that the evidence is
being appreciated by the High Court and not by the District Court. While
appreciating evidence, inferences may and have to be drawn but courts of facts have

259
 to remind themselves of the line that divides an inference from guess-work. If it is
proved, as the High Court thought it was, that the respondent had uttered words of
abuse and insult, the High Court was entitled to infer that she had acted in retaliation,
provided of course there was evidence, direct or circumstantial, to justify such an
inference. But the High Court itself felt that there was no evidence on the record with
regard to the conduct of the husband in response to which the wife could be said to
have behaved in the particular manner. The High Court reacted to this situation by
saying that since there was no evidence regarding the conduct of the husband, ―it is
difficult, if not impossible, to draw inferences against the wife‖. If there was no
evidence that the husband had provoked the wife‘s utterances, no inference could be
drawn against the husband. There was no question of drawing any inferences against
the wife because, according to the High Court, it was established on the evidence that
she had uttered the particular words of abuse and insult.

22. The approach of the High Court is thus erroneous and its findings are vitiated. We
would have normally remanded the matter to the High Court for a fresh
consideration of the evidence but this proceeding has been pending for 13 years and
we thought that rather than delay the decision any further, we should undertake for
ourselves the task which the High Court thought it should undertake under Section
103 of the Code. That makes it necessary to consider the evidence in the case.

23. But before doing so, it is necessary to clear the ground of certain misconceptions,
especially as they would appear to have influenced the judgment of the High Court.
First, as to the nature of burden of proof which rests on a petitioner in a
matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner
to establish his or her case for, ordinarily, the burden lies on the party which
affirms a fact, not on the party which denies it. This principle accords with
commonsense, as it is so much easier to prove a positive than a negative. The
petitioner must therefore prove that the respondent has treated him with cruelty
within the meaning of Section 10(1) (b) of the Act.. But does the law require, as the
High Court has held, that the petitioner must prove his case beyond a reasonable
doubt? In other words, though the burden lies on the petitioner to establish the
charge of cruelty, what is the standard of proof to be applied in order to judge
whether the burden has been discharged?

24. The normal rule which governs civil proceedings is that a fact can be said to be
established if it is proved by a preponderance of probabilities. This is for the reason
that under the Evidence Act, Section 3, a fact is said to be proved when the court
either believes it to exist or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition
that it exists. The belief regarding the existence of a fact may thus be founded on a
balance of probabilities. A prudent man faced with conflicting probabilities
concerning a fact-situation will act on the supposition that the fact exists, if on
weighing the various probabilities he finds that the preponderance is in favour of
the existence of the particular fact. As a prudent man, so the court applies this test
for finding whether a fact in issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh them, though the two may
often intermingle. The impossible is weeded out at the first stage, the improbable at
the second. Within the wide range of probabilities the court has often a difficult
choice to make but it is this choice, which ultimately determines where the
260
 preponderance of probabilities lies. Important issues like those which affect the
status of parties demand a closer scrutiny than those like the loan on a promissory‖
note: ―the nature and gravity of an issue necessarily determines the manner of
attaining reasonable satisfaction of the truth of the issue[Per Dixon, J. in Wright v.
Wright [(1948) 77 CLR 191, 210]; or as said by Lord Denning, ―the degree of
probability depends on the subject-matter in proportion as the offence is grave, so
ought the proof to be clear‖. But whether the issue is one of cruelty or of a loan on a
pronote, the test to apply is whether on a preponderance of probabilities the
relevant fact is proved. In civil cases this, normally, is the standard of proof to
apply for finding whether the burden of proof is discharged.

25. Proof beyond reasonable doubt is proof by a higher standard which generally governs
criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A
criminal trial involves the liberty of the subject, which may not be taken away on a
mere preponderance of probabilities. If the probabilities are so nicely balanced that a
reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt
arises regarding the existence of the fact to be proved and the benefit of such
reasonable doubt goes to the accused. It is wrong to import such considerations in
trials of a purely civil nature.

26. Neither Section 10 of the Act which enumerates the grounds on which a petition for
judicial separation may be presented nor Section 23 which governs the jurisdiction of
the court to pass a decree in any proceeding under the Act requires that the petitioner
must prove his case beyond a reasonable doubt. Section 23 confers on the court the
power to pass a decree if it is ―satisfied‖ on matters mentioned in clauses (a) to (e)
of the section. Considering that proceedings under the Act are essentially of a civil
nature, the word ―satisfied‖ must mean ―satisfied on a preponderance of
probabilities‖ and not ―satisfied beyond a reasonable doubt‖. Section 23 does not
alter the standard of proof in civil cases.

27. The misconception regarding the standard of proof m matrimonial cases arises
perhaps from a loose description of the respondent‘s conduct in such cases as
constituting a ―matrimonial offence‖. Acts of a spouse which are calculated to
impair the integrity of a marital union have a social significance. To marry or not to
marry and if so whom, may well be a private affair but the freedom to break a
matrimonial tie is not. The society has a stake in the institution of marriage and
therefore the erring spouse is treated not as a mere .defaulter but as an offender. But
this social philosophy, though it may have a bearing on the need to have the clearest
proof of an allegation before it is accepted as a ground for the dissolution of a
marriage, has no bearing on the standard of proof in matrimonial cases.

28. In England, a view was at one time taken that the petitioner in a matrimonial petition
must establish his case beyond a reasonable doubt but in Bfyth v. Bfyth [(1966) 1 All
ER 524, 336], the House of Lords held by a majority that so far as the grounds of
divorce or the bars to divorce like connivance or condonation are concerned, ―the
case, like any civil case, may be proved by a preponderance of probability‖. The High
Court of Australia in Wright v. Wright [(1948) 77 CLR 191, 210], has also taken the
view that ―the civil and not the criminal standard of persuasion applies to
matrimonial causes, including issues of adultery‖. The High Court was therefore in
261
 error in holding that the petitioner must establish the charge of cruelty ―beyond
reasonable doubt‖. The High Court adds that ―This must be in accordance with the
law of evidence‖, but we are not clear as to the implications of this observation.

29. Then, as regards the meaning of ―Cruelty‖. The High Court on this question begins
with the decision in Moanshee Bazloor Raheem v. Shumsoonnissa Begum [(1866)
11 MIA
551] where the Privy Council observed:

The Mohomedan law, on a question of what is legal cruelty between Man and
Wife, would probably not differ materially from our own of which one of the
most recent exposition is the following: - ‖There must be actual violence of such a
character as to endanger personal health or safety; or there must be a reasonable
apprehension of it‘.

The High Court then refers to the decisions of some of the Indian courts to illustrate
―The march of the Indian Courts with the English Courts‖ and cites the following
passage from D. Tolstoy‘s ―The Law and Practice of Divorce and Matrimonial
Causes” (Sixth Ed., p. 61):

Cruelty which is a ground for dissolution of marriage may be defined as wilful

and unjustifiable conduct of such a character as to cause danger to life, limb or
health, bodily or mental, or as to give rise to a reasonable apprehension of such a
danger.

The High Court concludes that:

Having regard to these principles and the entire evidence in a case, in my

judgment, I find that none of the acts complained of against the respondent can be
considered to be so sufficiently grave and weighty as to be described as cruel
according to the matrimonial law.

30. An awareness of foreign decisions could be a useful asset in interpreting our own
laws. But it has to be remembered that we have to interpret in this case a specific
provision of a specific enactment, namely, Section 10(1)(b) of the Act. What
constitutes cruelty must depend upon the terms of this statute, which provides:

10(1). Either party to a marriage, whether solemnized before or after the

commencement of this Act, may present a petition to the district court praying for
a decree for judicial separation on the ground that the other party -

262
 (b) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it will be harmful or injurious for
the petitioner to live with the other party;

The inquiry therefore has to be whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a reasonable apprehension that it will
be harmful or injurious for him to live with the respondent. It is not necessary, as under
the English law, that the cruelty must be of such a character as to cause ―danger‖ to life,
limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly,
danger to life, limb or health or a reasonable apprehension of it is a higher requirement
than a reasonable apprehension that it is harmful or injurious for one spouse to live with
the other.

32. One other matter which needs to be clarified is that though under Section
10(1)(b), the apprehension of the petitioner that it will be harmful or injurious to live
with the other party has to be reasonable, it is wrong, except in the context of such
apprehension, to import the concept of a reasonable man as known to the law of
negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and
expected to conduct their joint venture as best as they might but it is no function of a
court inquiring into a charge of cruelty to philosophise on the modalities of married life.
Someone may want to keep late hours to finish the day‘s work and someone may want to
get up early for a morning round of golf. The Court cannot apply to the habits or hobbies
of these the test whether a reasonable man situated similarly will behave in a similar
fashion.

The question whether the misconduct complained of constitutes cruelty and the
like for divorce purposes is determined primarily by its effect upon the particular
person complaining of the acts. The question is not whether the conduct would be
cruel to a reasonable person or a person of average or normal sensibilities, but
whether it would have that effect upon the aggrieved spouse. That which may be
cruel to one person may be laughed off by another, and what may not be cruel to
an individual under one set of circumstances may be extreme cruelty under
another set of circumstances.

The Court has to deal, not with an ideal husband and an ideal wife (assuming any such
exist) but with the particular man and woman before it. The ideal couple or a near-ideal
one will probably have no occasion to go to a matrimonial court for, even if they may not
be able to drown their differences, their ideal attitudes may help them overlook or gloss
over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollin
[(1963) 2 All ER 966]at 970:

In matrimonial cases we are not concerned with the reasonable man, as we are
in cases of negligence. We are dealing with this man and this woman and the
fewer a priori assumptions we make about them the better. In cruelty cases one
can hardly ever even start with a presumption that the parties are reasonable
people, because it is hard to imagine any cruelty case ever arising if both the
spouses think and behave as reasonable people.
263
 33. We must therefore try and understand this Dr Dastane and his wife Sucheta as
nature has made them and as they have shaped their lives. The only rider is the interdict
of Section 23(l)(a) of the Act that the relief prayed for can be decreed only if the Court is
satisfied that the petitioner is not in any way taking advantage of his own wrong. Not
otherwise.

34. We do not propose to spend time on the trifles of their married life. Numerous
incidents have been cited by the appellant as constituting cruelty but the simple
trivialities which can truly be described as the reasonable wear and tear of married life
have to be ignored. It is in the context of such trivialities that one says that spouses take
each other for better or worse. In many marriages each party can, if it so wills, discover
many a cause for complaint but such grievances arise mostly from temperamental
disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a
cause for the dissolution of marriage. We will therefore have regard only to grave and
weighty incidents and consider these to find what place they occupy on the marriage
canvas.

35. The spouses parted company on February 27, 1961, the appellant filed his petition on
February 19, 1962 and the trial began in September, 1964. The 3 years‘ separation
must naturally have created many more misunderstandings and further embitterment.
In such an atmosphere, truth is a common casualty and therefore we consider it safer
not to accept the bare word of the appellant either as to what the respondent said or
did or as to the genesis of some of the more serious incidents. The evidence of the
respondent too would be open to the same criticism but the explanation of her words
and deeds, particularly of what she put in cold print, must come from her oral word
and that has to be examined with care.

36. The married life of these spouses is well-documented, almost incredibly

documented. They have reduced to writing what crossed their minds and the letters
which they have written to each other bear evidence of the pass to which the marriage
had come. Some of these were habitually written as the first thing in the morning like a
morning cup of tea while some were written in the silence of midnight soon after the
echo of harsh words had died down. To think that this young couple could indulge in
such an orgy of furious letter-writing is to have to deal with a problem out of the ordinary
for it is seldom that a husband and wife, while sharing a common home, adopt the
written word as a means of expression or communication.

37. The bulk of the correspondence is by the wife who seems to have a flair for letter-
writing. She writes in some style and as true as ―The style is the man‖, her letters
furnish a clue to her personality. They are a queer mixture of confessions and
opprobrious accusations. It is strange that almost everyone connected with this couple
has a penchant for writing. The wife, apart from her voluminous letters, has written an
autobiographical account of her unfortunate experiences in the Yeravada Hospital,
calling it ―Mee Antaralat Tarangat Asta” (―while I was floating in space‖). The
husband‘s father idealised the Shiva-Parvati relationship in a book called:
―Gauriharachi Goad. Kahani” (―the sweet story of Gaurihar‖) Quite a few of the
wife‘s relatives including a younger sister of hers and of course her maternal uncle have
set their pen to paper touching some aspect or the other of her married life. Perhaps, it
was unfortunate that the promised millennium that did not come began with a letter. That
264
was the letter of April 25, 1956 which the wife‘s father wrote to the husband‘s father
while the marriage negotiations were in progress. The marriage took place on May 13,
1956.

38. Nothing deserving any serious notice happened till August, 1959 except that the
letters Exs. 556, 238, 243 and 244 show that quite frequently the respondent used to get
into fits of temper and say things for which she would express regret later. In the letter
Ex. 556 dated November 23, 1956 she admits to having behaved ―very badly‖; in Ex.
238 dated March 26, 1959 she admits that she was behaving like an ―evil star‖ and had
harassed the appellant; in Ex. 243 dated May 5, 1959 she says that she was aware of her
―lack of sense‖ and asks for forgiveness for having insulted the appellant, his parents,
his sister and her husband; and in Ex. 244 dated May 22, 1959 she entreats the appellant
that he should not feel guilty for the insults hurled by her at his parents.

39. The period from August, 1959 to March, 1960 was quite critical and the
correspondence covering that period shows that an innate lack of self-control had driven
the respondent to inexorable conduct. By the letter Ex. 256 dated February 16, 1960 the
appellant complained to the respondent‘s father who was then in Indonesia that the
respondent kept on abusing him, his parents and sister and that he was extremely
unhappy. The appellant says in the letter that differences between a husband and wife
were understandable but that it was impossible to tolerate the respondent constantly
accusing him and his relatives of wickedness. The appellant complains that the
respondent used to say that the book written by his father should be burnt to ashes, that
the appellant should apply the ashes to his forehead, that the whole Dastane family was
utterly mean and that she wished that his family may be utterly ruined. The appellant was
gravely hurt at the respondent‘s allegation that his father‘s ‗sanad‘ had been once
forfeited. The appellant tells the respondent‘s father that if he so desired he could ask her
whether anything stated in the letter was untrue and that he had conveyed to her what he
was stating in the letter. It may be stated that the respondent admits that the appellant had
shown her this letter before it was posted to her father. On March 21, 1960 the
respondent wrote a letter to the appellant‘s parents admitting the truth of the allegations
made by the appellant. On June 23, 1960 the respondent made a noting in her own hand
stating that she had accused the appellant of being a person with a beggarly luck, that she
had said that the food eaten at his house, instead of being digested would cause worms in
the stomach and that she had given a threat: ―murder shall be avenged with murder‖.

40. During June 1, 1960 to December 15, 1960 the marital relations were subjected to
a stress and strain, which ultimately wrecked the marriage. In about September 1960 the
appellant‘s father probably offered to mediate and asked the appellant and the respondent
to submit to him their respective complaints in writing. The appellant‘s bill of complaints
is at

Ex. 426 dated October 23, 1960. The letter, much too long to be reproduced, contains a
sorry tale. The gist of the more important of the appellant‘s grievances in regard to the
period prior to June, 1960 is this: (1) The respondent used to describe the appellant‘s
mother as a boorish woman; (2) On the day of ‗Paksha‘ (the day on which oblations arc
offered to ancestors) she used to abuse the ancestors of the appellant; (3) She tore off the
‗Mangal-Sutra‘; (4) She beat the daughter Shubha while she was running a high
temperature of 104°; (5) One night she started behaving as if she was ‗possessed‘. She
tore off the Mangal-Sutra once again and said that she will not put it on again; and (6)
265
She used to switch on the light at midnight and sit by the husband‘s bedside nagging him
through the night; as a result, he literally prostrated himself before her on several
occasions.

41. The gist of the incidents from May to October, 1960 which the appellant describes as
a period of utmost misery‘ is this: (1) The respondent would indulge in every sort of
harassment and would blurt out anything that came to her mind;(2) One day while a
student of the appellant called Godse was sitting in the outer room she shouted ―You
are not a man at all‖; (3) In the heat of anger she used to say that she would pour
kerosene on her body and would set fire to herself and the house; (4) She used to lock
out the appellant when he was due to return from the office. On four or five occasions
he had to go back to the office without taking any food; (5) For the sheer sake of
harassing him she would hide his shoes, watch, keys and other things. The letter Ex.
426 concludes by saying:

She is a hardheaded, arrogant, mercilvoo, thoughtless, unbalanced girl devoid of

sense of duty. Her ideas about a husband are: He is a dog tied at doorstep who is
supposed to come and go at her back and call whenever ordered. She behaves
with the relatives of her husband as if they were her servants. When I see her
besides herself with fury, I feel afraid that she may kill me at any moment. I have
become weary of her nature of beating the daughters, scolding and nagging me
every night uttering abuses and insults.

43. On July 18, 1960 the respondent wrote a letter to the appellant admitting that
within the hearing of a visitor she had beaten the daughter Shubha severely. When the
appellant protested she retorted that if it was a matter of his prestige, he should not have
procreated the children. She has also admitted in this letter that in relation to her
daughters she had said that there will be a world deluge because of the birth of those
―ghosts‖. On or about July 20, 1960 she wrote another letter to the appellant admitting
that she had described him as ―a monster in a human body‖, that she had said that he
should not have procreated children, that he should ―Pickle them and preserve them in a
jar‖ and that she had given a threat that she would see to it that he loses his job and then
she would publish the news in the Poona newspapers On December 15, 1960 the
appellant wrote a letter to the respondent‘s father complaining of the strange and cruel
behaviour not only of the respondent but of her mother. He says that the respondent‘s
mother used to threaten him that since she was the wife of an Under Secretary she knew
many important persons and could get him dismissed from service, that she used to pry
into his correspondence in his absence and that she even went to the length of saying that
the respondent ought to care more for her parents because she could easily get another
husband but not another pair of parents.

44. The respondent then went to Poona for the appellant‘s brother‘s marriage, was
examined by Dr Seth of the Yeravada Hospital and the spouses parted company on
February 27, 1961.

45. The correspondence subsequent to February 27, 1961 shall have to be considered
later in a different, though a highly important, context. Some of those letters clearly bear
the stamp of being written under legal advice. The parties had fallen out for good and the
266
domestic war having ended inconclusively they were evidently preparing ground for a
legal battle.

46. In regard to the conduct of the respondent as reflected in her admissions, two
contentions raised on her behalf must be considered. It is urged in the first place that the
various letters containing admissions were written by her under coercion. There is no
substance in this contention. In her written statement, the respondent alleged that the
appellant‘s parents had coerced her into writing the letters At the trial she shifted her
ground and said that the coercion proceeded from the appellant himself. That apart, at a
time when the marriage had gone as under and the respondent sent to the appellant
formal letters resembling a lawyer‘s notice, some of ‗them by registered post, no
allegation was made that the appellant or his parents had obtained written admissions
from her. Attention may be drawn in this behalf to the letters Exs. 299 and 314 dated
March 23 and May 6, 1961 or to the elaborate complaint Ex. 318 dated May 19, 1961,
which she made to the Secretary to the Government of India, Ministry of Food and
Agriculture. Prior to that, on September 23, 1960 she had drawn up a list of her
complaints, which begins, by saying: ―He has oppressed me in numerous ways like the
following‖. But she does not speak therein of any admission or writing having been
obtained from her. Further, letters like Exs. 271 and 272 dated respectively June 23 and
July 10, 1960, which besides containing admissions on her part also contain allegations
against the appellant, could certainly not have been obtained by coercion. Finally,
considering that the respondent was always surrounded by a group of relatives who had
assumed the role of marriage-counsellors, it is unlikely that any attempt to coerce her
into making admissions would have been allowed to escape unrecorded. After all, the
group here consists of greedy letter-writers

47. The second contention regarding the admissions of the respondent is founded on
the provisions of Section 23(1) (a) of the Act under which the Court cannot decree relief
unless it is satisfied that ―the petitioner is not in any way taking advantage of his ... own
wrong‖. The fulfilment of the conditions mentioned in Section 23(1) is so imperative that
the Legislature has taken the care to provide that ―then, and in such a case, but not
otherwise, the court shall decree such relief accordingly‖. It is urged that the appellant is
a bigoted and egocentric person who demanded of his wife an impossibly rigid standard
of behaviour and the wife‘s conduct must be excused as being in self-defence. In other
words, the husband is said to have provoked the wife to say and act the way she did and
he cannot be permitted to take advantage of his own wrong. The appellant, it is true,
seems a stickler for domestic discipline and these so-called perfectionists can be quite
difficult to live with. On September 22, 1957 the respondent made a memorandum of the
instructions given by the appellant, which makes interesting reading:

Special instructions given by my husband.

(1) On rising up in the morning to look in the mirror.

(2) Not to fill milk vessel or tea cup to the brim.
(3) Not to serve meals in brass plates, cups and vessels.

(4) To preserve carefully the letters received and if addresses of anybody are
given therein to note down the same in the notebook of addresses.

267
 (5) After serving the first course during meals, not to repeatedly ask ‗what do
you want?‘, but to inform at the beginning of the meals how much and which are
the courses.
(6) As far as possible not to dip the fingers in any utensils.
(7) Not to do any work with one hand.
(8) To keep Chi. Shuba six feet away from the primus stove and Shegari.

(9) To regularly apply to her ‗Kajal‘ and give her tomato juice, Dodascolin etc.
To make her do physical exercise, to take her for a walk and not to lose temper
with her for a year.
(10) To give him his musts and the things he requires when starts to go outside.
(11) Not to talk much.

(12) Not to finish work somehow or the other; for example, to write letters in
good handwriting, to take a good paper, to write straight and legibly in line.
(13) Not to make exaggerations in letters

(14) To show imagination in every work. Not to note down the milk purchased on
the calendar.

Now, this was utterly tactless but one cannot say that it called for any attack in self-
defence. The appellant was then 28 and the Respondent 22 years of age. In that early-
morning flush of the marriage, young men and women do entertain lavish expectations of
each other and as years roll by they see the folly of their ways. But we do not think that
the wife was really offended by the instructions given by the appellant. The plea of self-
defence seems a clear after-thought, which took birth when there was a fundamental
failure of faith and understanding.

48. Reliance was then placed on certain letters to show that the husband wanted to
assert his will at any cost, leaving the wife no option but to retaliate. We see no substance
in this grievance either. The plea in the written statement is one of the denial of conduct
alleged and not of provocation. Secondly, there are letters on the record by which the
wife and her relatives had from time to time complimented the husband and his parents
for their warmth, patience and understanding.

49. Counsel for the respondent laid great emphasis on the letter, Ex. 244 dated May 22,

1959 written by her to the appellant in which she refers to some ―unutterable question‖
put by him to her. It is urged that the appellant was pestering her with a demand for
divorce and the

―unutterable question‖ was the one by which he asked for divorce. No such inference
can in our opinion be raised. The respondent has not produced the letter to which Ex. 244
is reply; in the written statement there is hardly a suggestion that the appellant was
asking her for a divorce; and the appellant was not asked in his evidence any explanation
in regard to the
―unutterable question‖.
268
 50. These defences to the charge of cruelty must accordingly be rejected. However,
learned Counsel for the respondent is right in stressing the warning given by Denning, L.
J. in Kaslefsky v. Kaslefsky [(1950) 2 All ER 398, 403] that:

If the door of cruelty ‗were opened too wide, we should soon find ourselves
granting divorce for incompatibility of temperament. This is an easy path to tread,
especially in undefended cases. The temptation must be resisted lest we slip into a
state of affairs where the institution of marriage itself is imperilled.

But we think that to hold in this case that the wife‘s conduct does not amount to cruelty
is to close for ever the door of cruelty so as to totally prevent any access thereto. This is
not a case of mere austerity of temper, petulance of manners, rudeness of language or a
want of civil attention to the needs of the husband and the household. Passion and
petulance have perhaps to be suffered in silence as the price of what turns out to be an
injudicious selection of a partner. But the respondent is at the mercy of her inflexible
temper. She delights in causing misery to her husband and his relations and she willingly
suffers the calculated insults which her relatives hurled at him and his parents: the false
accusation that, ―the pleader‘s Sanad of that old hag of your father was forfeited‖; ―I
want to see the ruination of the whole Dastane dynasty‖; ―burn the book written by your
father and apply the ashes to your forehead‖; ―you are not a man‖ conveying that the
children were not his; ― you are a monster in a human body ―I will make you lose your
job and publish it in the Poona newspapers‖ — these and similar outbursts are not the
ordinary wear and tear of married life, but they became, by their regularily, a menace to
the peace and well-being of the household. Acts like the tearing of the Mangal-Sutra,
locking out the husband when he is due to return from the office, rubbing chillie powder
on the tongue of an infant child, beating a child mercilessly while in high fever and
switching on the light at night and sitting by the bedside of the husband merely to nag
him are acts which tend to destroy the legitimate ends and objects of matrimony.
Assuming that there was some justification for occasional sallies or show of temper, the
pattern of behaviour, which the respondent generally adopted, was grossly excessive.

51. The conduct of the respondent clearly amounts to cruelty within the meaning of
Section 10 (!)(b) of the Act. Under that provision, the relevant consideration is to see
whether the conduct is such as to cause a reasonable apprehension in the mind of the
petitioner that it will be harmful or injurious for him to live with the respondent. The
threat that she will put an end to her own life or that she will set the house on fire, the
threat that she will make him lose his job and have the matter published in newspapers
and the persistent abuses and insults hurled at the appellant and his parents are all of so
grave an order as to imperil the appellant‘s sense of personal safety, mental happiness,
job satisfaction and reputation. Her once-too-frequent apologies do not reflect genuine
contrition but were merely impromptu devices to tide over a crisis temporarily.

52. The next question for consideration is whether the appellant had at any time
condoned the respondent‘s cruelty. Under Section 23(1)(b) of the Act, in any proceeding
under the Act whether defended or not, the relief prayed for can be decreed only and only
if
269
―where the ground of the petition is cruelty the petitioner has not in any manner
condoned the cruelty‖.

53. The respondent did not take up the plea in her written statement that the appellant
had condoned her cruelty. Probably influenced by that omission, the trial Court did not
frame any issue on condonation. While granting a decree of judicial separation on the
ground of cruelty, the learned Joint Civil Judge, Junior Division, Poona, did not address
himself to the question of condonation. In appeal, the learned Extra Assistant Judge,
Poona, having found that the conduct of the respondent did not amount to cruelty, the
question of condonation did not arise. The High Court in second appeal confirmed the
finding of the first appellate Court on the issue of cruelty and it further held that in any
case the alleged cruelty was condoned by the appellant. The condonation, according to
the High Court, consisted in the circumstance that the spouses cohabited till February 27,
1961 and a child was born to them in August, 1961.

54. Before us, the question of condonation was argued by both the sides. It is urged
on behalf of the appellant that there is no evidence of condonation while the argument of
the respondent is that condonation is implicit in the act of cohabitation and is proved by
the fact that on February 27, 1961 when the spouses parted, the respondent was about 3
months pregnant. Even though condonation was not pleaded as a defence by the
respondent it is our duty, in view of the provisions of Section 23(!)(b), to find whether
the cruelty was condoned by the appellant. That section casts an obligation on the court
to consider the question of condonation, an obligation which has to be discharged even in
undefended cases. The relief prayed for can be decreed only if we are satisfied ―but not
otherwise‖, that the petitioner has not in any manner condoned the cruelty. It is, of
course, necessary that there should be evidence on the record of the case to show that the
appellant had condoned the cruelty.

55. Condonation means forgiveness of the matrimonial offence and the restoration of
offending spouse to the same position as he or she occupied before the offence was
committed. To constitute condonation there must be, therefore, two things: forgiveness
and restoration [The Law and Practice of Divorce and Matrimonial Causes by D.
Tolstoy, Sixth Ed., p. 75]. The evidence of condonation in this case is, in our opinion, as
strong and satisfactory as the evidence of cruelty. But that evidence does not consist in
the mere fact that the spouses continued to share a common home during or for some
time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act
but consists in most cases of a series of acts spread over a period of time. Law does not
require that at the first appearance of a cruel act, the other spouse must leave the
matrimonial home lest the continued cohabitation be construed as condonation. Such a
construction will hinder reconciliation and thereby frustrate the benign purpose of
marriage laws.

56. The evidence of condonation consists here in the fact that the spouses led a
normal sexual life despite the respondent‘s acts of cruelty. This is not a case where the
spouses, after separation, indulged in a stray act of sexual intercourse, in which case the
necessary intent to forgive and restore may be said to be lacking. Such stray acts may
bear more than one explanation. But if during cohabitation the spouses, uninfluenced by
the conduct of the offending spouse, lead a life of intimacy which characterises normal
matrimonial relationship, the intent to forgive and restore the offending spouse to the
270
original status may reasonably be inferred. There is then no scope for imagining that the
conception of the child could be the result of a single act of sexual intercourse and that
such an act could be a stark animal act unaccompanied by the nobler graces of marital
life. One might then as well imagine that the sexual act was undertaken just in order to
kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays
an important role in marital life and cannot be separated from other factors which lend to
matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the
spouses led a normal sexual life even after a series of acts of cruelty by one spouse is
proof that the other spouse condoned that cruelty. Intercourse, of course, is not a
necessary ingredient of condonation because there may be evidence otherwise to show
that the offending spouse has been forgiven and has been received back into the position
previously occupied in the home. But intercourse in circumstances as obtain here would
raise a strong inference of condonation with its dual requirement, forgiveness and
restoration. That inference stands uncontradicted, the appellant not having explained the
circumstances in which he came to lead and live a normal sexual life with the respondent,
even after a series of acts of cruelty on her part.

57. But condonation of a matrimonial offence is not to be likened to a full

Presidential pardon under Article 72 of the Constitution which, once granted, wipes out
the guilt beyond the possibility of revival. Condonation is always subject to the implied
condition that the offending spouse will not commit a fresh matrimonial offence, either
of the same variety as the one condoned or of any other variety. ―No matrimonial
offence is erased by condonation.
It is obscured but not obliterated‖ [See Words and Phrases : Legally Defined, 1969 Ed., Vol.

1, p. 305 (―Condonation‖)] Since the condition of .forgiveness is that no further

matrimonial offence shall occur, it is not necessary that the fresh offence should be
ejusdem generis with the original offence [See Halsbury’s Laws of England, 3rd Ed.,
Vol 12, p. 306]. Condoned cruelty can therefore be revived, say, by desertion or adultery.

58. Section 23(1)(b) of the Act, it may be urged, speaks of condonation but not of its
revival and therefore the English doctrine of revival should not be imported into matters
arising under the Act. Apparently, this argument may seem to receive some support from
me circumstance that under the English law, until the passing of the Divorce Reform Act,
1969 which while abolishing the traditional bars to relief introduces defences in the
nature of bars, at least one matrimonial offence, namely, adultery could not be revived if
once condoned [See Rayden on Dovorce, 11th Ed., (1971) pp. 11, 12, 2368, 2403] But a
closer examination of such an argument would reveal its weakness. The doctrine of
condonation was established by the old ecclesiastical courts in Great Britain and was
adopted by the English courts from the canon law. ‗Condonation‘ is a technical word,
which means and implies a conditional waiver of the right of the injured spouse to take
matrimonial proceedings. It is not ‗forgiveness‘ as commonly understtood [Words and
Phrases : Legally Defined, 1969 Ed., p. 306]. In England condoned adultery could not be
revived because of the express provision contained in Section 3 of the Matrimonial
Causes Act, 1963, which was later, incorporated into Section 42(3) of the Matrimonial
Causes Act, 1965. In the absence of any such provision in the Act governing the charge
of cruelty, the word ‗condonation‘ must receive the meaning which it has borne for
centuries in the world of law [See Ferrers v. Ferrers (1791) 1 Hag Con 130, 131].

271
‗Condonation‘ under Section 23(1)(b) therefore means conditional forgiveness, the
implied condition being that no further matrimonial offence shall be committed.

59. It therefore becomes necessary to consider the appellant‘s argument that even on
the assumption that the appellant had condoned the cruelty, the respondent by her
subsequent conduct forfeited the conditional forgiveness, thereby reviving the original
cause of action for judicial separation on the ground of cruelty. It is alleged that the
respondent treated the appellant with cruelty during their brief meeting on March 19,
1961, that she refused to allow to the appellant any access to the children, that on May
19, 1961 she wrote a letter to the Secretary to the Government of India, Ministry of Food
and Agriculture, New Delhi, containing false and malicious accusations against the
appellant and his parents and that she deserted the appellant and asked the Government to
provide her with separate maintenance.

60. These facts, if proved, shall have to be approached and evaluated differently from
the facts which were alleged to constitute cruelty prior to its condonation. The incidents
on which the appellant relied to establish the charge of cruelty had to be grave and
weighty. And we found them to be so. In regard to the respondent‘s conduct subsequent
to condonation, it is necessary to bear in mind that such conduct may not be enough by
itself to found a decree for judicial separation and yet it may be enough to revive the
condoned offence. For example, gross familiarities short of adultery [Halsbury’s : Laws
of England, 3rd Ed., vol. 12, p. 306, para 609] or desertion for less than the statutory
period Beard v. Beard [(1945) 2 All Er 306] may be enough to revive a condoned
offence.

61. The incident of March 19, 1961 is too trifling to deserve any notice. That incident
is described by the appellant himself in the complaint, which he made to the police on
March 20, 1961. He says therein that on the 19th morning, the respondent went to his
house with some relatives, that those relatives instigated her against him, that they
entered his house though he asked them not to do so and that she took away certain
household articles with her. As shown by her letter dated the 19th itself, the articles,
which she took away were some petty odds and ends like a doll, a slate, a baby hold-all,
two pillows, a bundle of clothes and a baby-cart. The police complaint made by the
appellant betrays some hypersensitivity.

62. As regards the children, it does seem that ever since February 27, 1961 the
appellant was denied a chance to meet them. His letters Exs. 307, 309 and 342 dated
April 20, April 21 and November 23, 1961 respectively contain the grievance that the
children were deliberately not allowed to see him. From his point of view the grievance
could be real but .then the children, Shubha and Vibha, were just 4 and 2 years of age in
February, 1961 when their parents parted company. Children of such tender age need a
great amount of looking after and they could not have been sent to meet their father
unescorted. The one person who could so escort them was the mother who had left or had
to leave the matrimonial home for good. The appellant‘s going to the house of the
respondent‘s parents where she was living was in the circumstances an impracticable
proposition. Thus, the wall that divided the parents denied to the appellant access to his
children.

63. The allegations made by the respondent in her letter to the Government, Ex. 318
dated. May 19, 1961 require a close consideration. It is a long letter, quite an epistle, in
272
tune with the respondent‘s proclivity as a letter-writer. By that letter, she asked the
Government to provide separate maintenance for herself and the children. The allegations
contained in the letter to which the appellant‘s Counsel has taken strong exception are
these: (1) During the period that she lived with the appellant, she was subjected to great
harassment as well as mental and physical torture; (2) The appellant had driven her out of
the house on February 27, 1961; (3) The appellant had deserted her and had declared that
he will not have any connection with her and that he will not render any financial help
for the maintenance of herself and the children. He also refused to give medical help to
her in her advanced stage of pregnancy; (4) The appellant had denied to her even the
barest necessities of life like food and clothing; (5) The parents of the appellant were
wicked persons and much of her suffering was due to the influence which they had on the
appellant; (6) The appellant used to threaten her that he would divorce her, drive her out
of the house and even do away with her life; (7) The plan to get her examined by Dr Seth
of the Yeravada Mental Hospital was an insincere, wicked and evil move engineered by
the appellant, his brother and his father; (8) On her refusal to submit to the medical
examination any further, she was driven out of the house with the children after being
deprived of the valuables on her person and in her possession; and (9) the appellant had
subjected her to such cruelty as to cause a reasonable apprehension in her mind that it
would be harmful or injurious for her to live with him.

64. Viewed in isolation, these allegations present a different and a somewhat

distorted picture. For their proper assessment and understanding, it is necessary to
consider the context in which those allegations came to be made. We will, for that
purpose, refer to a few letters

65. On March 7, 1961 the respondent‘s mother‘s aunt, Mrs Gokhale wrote a letter (Ex.
644) to the respondent‘s mother. The letter has some bearing on the events, which
happened in the wake of the separation, which took place on February 27, 1961. It
shows that the grievance of the respondent and her relatives was not so much that a
psychiatrist was consulted as that the consultation was arranged without any prior
intimation to the respondent. The letter shows that the appellant‘s brother, Dr
Lohokare, and his brother-in-law Deolalkar, expressed regret that the respondent
should have been got examined by a psychiatrist without previous intimation to any
of her relatives. The letter speaks of a possible compromise between the husband and
wife and it sets out the terms, which the respondent‘s relatives wanted to place before
the appellant. The terms were that the respondent would stay at her parents‘ place
until her delivery but she would visit the appellant off and on; that the children would
be free to visit the appellant; and that in case the appellant desired that the respondent
should live with him, he should arrange that Dr Lohokare‘s mother should stay with
them in Delhi for a few days. The last term of the proposed compromise was that
instead of digging the past the husband and wife should live in peace and happiness.
The letter bears mostly the handwriting of the respondent herself and the significance
of that circumstance is that it was evidently written with her knowledge and consent. .
Two things are clear from the letter: one, that the respondent did not want to leave the
appellant and two, that she did not either want to prevent the children from seeing the
appellant. The letter was written by one close relative of respondent to another in the
ordinary course of events and was not, so to say, prepared in order to create evidence
or to supply a possible defence. It reflects a genuine attitude, not a make-believe pose
and the feelings expressed therein were shared by the respondent whose handwriting
the letter bears.
273
 66. This letter must be read along with the letter Ex. 304 which the respondent sent to
the appellant on April 18, 1961. She writes:

I was sorry to hear that you are unwell and need treatment. I would always like
never to fail in my wifely duty of looking after you, particularly when you are
ailing, but you will, no doubt, agree that even for this, it will not -be possible for
me to join you in the house out of which you have turned me at your father‘s
instance. This is, therefore, just to keep you informed that if you .come to 7/6
East Patel Nagar, I shall be able to nurse you properly and my parents will ever
be most willing to afford the necessary facilities under their care to let me carry
out this proposal of mine.

There is no question that the respondent had no animus to desert the appellant and as
stated by her or on her behalf more than. once, the appellant had on February 27, 1961
reached her to Mrs Gokhale‘s house in Poona, may be in the hope that she will cooperate
with Dr Seth in the psychiatric exploration. She did not leave the house of her own
volition.

67. But the appellant had worked himself up to believe that the respondent had gone
off her mind. On March 15, 1961 he made a complaint to the Delhi police which begins
with the recital that the respondent was in the Mental Hospital before marriage and that
she needed treatment from a psychiatrist. He did say that the respondent was ―a very
loving and affectionate person‖ but he qualified it by saying:

―when excited, she appears to be a very dangerous woman, with confused thinking‖.

68. On April 20, 1961 the appellant wrote a letter to the respondent charging her once
again of being in an ―unsound state of mind‖. The appellant declared by that letter that
he will not be liable for any expenses incurred by her during her stay in her parents‘
house. On the same date he wrote a letter to the respondent‘s father reminding him that
he, the appellant, had accepted a girl ―who had returned from the Mental Hospital‖. On
April 21, 1961 he wrote a letter to the Director of Social Welfare, Delhi Administration,
in which he took especial care to declare that the respondent ―was in the Poona Mental
Hospital as a lunatic before the marriage‖. The relevance of these reiterations regarding
the so-called insanity of the respondent, particularly in the last letter, seems only this,
that the appellant was preparing ground for a decree of divorce or of annulment of
marriage. He was surely not so naive as to believe that the Director of Social Welfare
could arrange to ―give complete physical and mental rest‖ to the respondent. Obviously,
the appellant was anxious to disseminate the information as widely as possible that the
respondent was of unsound mind.

69. On May 6, 1961 the respondent sent a reply to the appellant‘s letter, Ex. 305, dated

April 20, 1961. She expressed her willingness to go back to Poona as desired by him, if
he could make satisfactory arrangements for her stay there. But she asserted that as a
wife she was entitled to live with him and there was no purpose in her living at Poona
274
―so many miles away from Delhi, without your shelter‖. In regard to the appellant‘s
resolve that he will not bear the expenses incurred by her, she stated that not a pie
remitted by him will be ill-spent and that, whatever amount he would send her will be
accounted for fully.

70. It is in this background that on May 19, 1961 the respondent wrote the letter Ex.
318 to the Government. When asked by the Government to offer his explanation, the
appellant by his reply Ex. 323 dated July 19, 1961 stated that the respondent needed
mental treatment, that she may have written the letter Ex. 318 in a ―madman‘s frenzy‖
and that her father had ―demoralised‖ her. In his letter Ex. 342 dated November 23,
1961 to the respondent‘s father, he described the respondent as ―your schizophrenic
daughter‖.

71. Considered in this context, the allegations made by the respondent in her letter
Ex. 318 cannot revive the original cause of action. These allegations were provoked by
the appellant by his persistent and purposeful accusation, repeated times without number,
that the respondent was of unsound mind. He snatched every chance and wasted no
opportunity to describe her as a mad woman which, for the purposes of this appeal, we
must assume to be wrong and unfounded. He has been denied leave to appeal to this
Court from the finding of the High Court that his allegation that the respondent was of
unsound mind is baseless. He also protested that he was not liable to maintain the
respondent. It is difficult in these circumstances to accept the appellant‘s argument either
that the respondent deserted him or that she treated him with cruelty after her earlier
conduct was condoned by him.

72. It is true that the more serious the original offence, the less grave need be the
subsequent acts to constitute a revival Cooper v. Cooper [(1950) WN 200 (HL)] and in
cases of cruelty, ―very slight fresh evidence is needed to show a resumption of the
cruelty, for cruelty of character is bound to show itself in conduct and behaviour, day in
and day out, night in and night out‖ Per Scott, L.J. in Bertram v. Bertram [(1944) 59,
60]. But the conduct of the respondent after condonation cannot be viewed apart from the
conduct of the appellant after condonation. Condonation is conditional forgiveness but
the grant of such forgiveness does not give to the condoning spouse a charter to malign
the other spouse. If this were so, the condoned spouse would be required mutely to
submit to the cruelty of the other spouse without relief or remedy. The respondent ought
not to have described the appellant‘s parents as ―wicked‖ but that perhaps is the only
allegation in the letter Ex. 318 to which exception may be taken. We find ourselves
unable to rely on that solitary circumstance to allow the revival of condoned cruelty. We
therefore hold that the respondent was guilty of cruelty but the appellant condoned it and
the subsequent conduct of the respondent is not such as to amount to a revival of the
original cause of action. Accordingly, we dismiss the appeal and direct the appellant to
pay the costs of the respondent.

** * * *

275
Supreme Court of India

Lachman Vs. Meena AIR 1964 SC 40

JUDGMENT:

AYYANGAR J.-This is an appeal against the judgment of the High Court of Bombay reversing
the judgment and decree of the City Civil Court at Bombay by which a decree for judicial
separation granted by' the trial judge was reversed and it comes before us on a certificate of
fitness granted by the High Court under Art. 133(1) (c) of the Constitution. The appellant, the
husband, filed a petition in the City Civil Court, Bombay, under s. 10(1) (a) of the Hindu
Marriage Act, 1955 (which we shall hereafter refer to as the Act), praying for a decree against
the respondent, his wife, for judicial separation on the ground that in terms of that provision she
had "deserted" him for "a continuous period of not less than two years immediately preceding the
presentation of his petition". The petition was presented on September 20, 1956, and the material
allega tion was that the wife had left the matrimonial home on February 26, 1954, and had not
thereafter come back to him and that this constituted "desertion" within the meaning of the
provision just cited. The learned trial Judge held that the appellant had established to the
satisfaction of the Court that the respondent-wife had left the matrimonial home with the
intention of permanently breaking it up and that such desertion continued during the requisite
period of two years and in consequence granted the decree for judicial separation, as prayed for.
The wife preferred an appeal, to the High Court and the learned judges disagreeing with the
finding of the learned trial judge that the leaving, by the wife, of the matrimonial home was with
the intention of deserting the appellant, reversed the decree of the trial judge and directed the
dismissal of the appellant's petition with costs. It is the correctness of this reversal that is
canvassed in the appeal before us.

Even at the outset we might state that the decision of the appeal does not depend so much on any
substantial question of law but rather on an appreciation of the facts on two matters on the basis
of which the learned Judges of the High Court have decided the case against the appellant: (1)
whether the appellant had established that the respondent had an irrevocable determination to
break up the matrimonial home when she admittedly left the petitioner on February 26, 1954,
and did not return to him thereafter, it being common ground that the onus of proving this to the
reasonable satisfaction of the Court was on the appellant, and (2) whether the respondent had a
justifiable cause for not returning to the husband the existence of which prevented her admitted
absence from the matrimonial home from constituting "desertion" as to serve as the foundation
for an order for judicial separation under s. 10(1) (a) of the Act.

Before, however, dealing with these two points which from the crux of the matter in dispute in
the appeal, it is necessary to summarise, briefly, the history of the married life of the parties. The
parties are Sindhi Hindus of the: Bhai Bund community. The appellant is a practicing doctor
while the respondent is said to have had read up to the High school classes. While the appellant's
father and his family were people of but moderate means, the respondent's father was a very
affluent business- ,Man-his business spreading over almost the entire South .East Asia. He had
business houses in Singapore, Dakarta, ,Hong Kong, Manila etc. Besides, while the appellant and
his parents appear to have been of an orthodox and conservative outlook and bent of mind, the
respondent and her parent's apparently did not set much store by orthodoxy, and were liberal and

276
modern. It looks to us as if it is possible that the trouble between the spouses was in part at least
due to these variations.

The parties were married at Hyderabad in Sind (now in Pakistan) on November 11, 1946. The
appellant was living with his father and mother and his two sisters and after her marriage the
respondent commenced to live with him in this household. The parties are not agreed as to
whether their marital life was happy even to start with, for while it was the case of the husband
that the same was unhappy even from the very beginning, the respondent's version was that for
the first month or so her relationship with her husband was happy, but nothing much turns on this
because from soon thereafter both of them agree in saying -that they were not pulling on well
together. It is not necessary either to tract the source of the friction between the spouses or
narrate the incidents which are related in connection therewith as they are hardly relevant for the
decision of the real points arising in the appeal. The only other circumstance to be noted in
connection with the early period of their married life was that on July 19, 1947, a son, Ashok,
was born to the respondent who, it may be mentioned, is now living with the appellant.

It is common experience that in some cases, the birth of a child puts an end to minor
misunderstandings and bickerings between the spouses, for the parties concentrate on lavishing
in common their love on the child and thus the two are brought together but in the case on band,
it does not seem to have had this effect and the relation between the parties does not appear to
have been smoothened by Ashok's birth. With the partition of the sub-continent the parties
migrated to India.

The appellant, his parents and his two sisters who were all living with him moved over to
Bombay along with the respondent and their young child but apparent-

ly. the accommodation which they could 'then secure was pot sufficient for this large family, and
as a result the appellant took the respondent, his child and his two sisters to Colombo and left
them in the care of his maternal uncle, one Narian Das, to stay there till he could find a
sufficiently commodius home in Bombay. The respondent stayed for a very short time at
Colombo and though she admitted that she was treated with kindness and affection by this uncle,
apparently all was not well in the relationship between the appellant's sisters and the respondent.
What emerged out of this was that she left Colombo without informing either Narian Das or the
appellant and came over to India. She came to Poona and Lonavala and started staying with her
mother who was there. There is a complaint by the appellant against her leaving his uncle
without informing him and on the other hand there is a complaint by the respondent about the
way in which her sisters-in-law behaved towards tier ,but we pass over these incidents and the
respective cases ,as, not having any material bearing on the points at issue in the appeal. The
appellant having come to know of her ,arrival at Lonavala, it is common ground that he went
there and induced her to come over and stay with him at ,Bombay. This was sometime towards
the end of January, 1948.

The period from January, 1948, to 1954 might be dealt with together. During this period she was
staying most of the time with the appellant at Bombay but his complaint is that she used to leave
him very often and that pressure had to be exerted or inducements offered to get her back to
Bombay to stay with him. This is, -of course, denied by the respondent whose story is that every
time it was with his consent that she went and that she came back of her own accord. It is not,
however, necessary to decide which of these versions is correct, though the learned trial judge
who had an opportunity of seeing these two as witnesses was inclined to accept the version of the
husband in respect of any matter on which he, was contradicted by his wife. It is only necessary
277
to add that though during these 4 or 5 years or so, the parties were living together most of the
time the relations between them had not become normalised. Be-

sides, it might be mentioned that the relationship between the parents of the two spouses were
also strained and simi- larly the relationship between the appellant and his wife's parents as also
between the respondent and her husbands parents.

We next come to a crucial event. On February 26, 1954, the respondent left the appellant's house
at Bombay (Colaba) and went to Poona. She was taken from the house by her father who had
come there in the evening and she traveled with him to poona by train. It is the case of the
appellant that the respondent left his home with the main items of her jewellery and clothes
without the knowledge and consent of himself and his parents and at a time when there was no
one in the house except a maid-servant and that he came to know of the respondent's departure
only from the maid-servant, when he later returned to the house. On the other hand, it is the case
of the respondent that she left the house after permission had been obtained by her father from
her father- in-law and after she herself had obtained the permission of her husband and that at the
time of the departure when her father came to take her, her father-in-law, mother-in-law and the
appellant were all present in the house and that the jewels etc., were given to her by her mother-
in-law who bade her good-bye and wished her a happy journey. The learned trial judge accepted
the appellant's story that the respondent did not seek or obtain anyone's permission for quitting
the house and that she left the house without the knowledge or consent 'of anyone. The
materiality of the acceptance of the appellant's version stems from the fact that in order to
'constitute desertion the withdrawal of the deserting spouse from the matrimonial home should
be without reasonable cause and "without the consent or against the wish of such party" [vide
Explanation to s. 10(1) of the Act]. On the other hand, the learned Judges of the High Court were
inclined to accept the wife's version that she had the consent of her husband to leave the home.
For reasons we shall set out in its proper place we are in agreement with the learned trial Judge
and do not share the views of the learned judges who accepted the wife's version of this event.
We shall, however, revert to it after comple-

ting the narrative of the events leading up to the filing of the petition.

It is the case of the appellant that he came to know a few days after her leaving him that his wife
was staying at Poona with her parents. According to his evidence he considered that, having
regard to the manner in which his wife left him, no useful purpose would be served by any trip of
his to Poona to persuade her to come back. It was his further case that a friend of his-one Dr.
Lulla, an M.R.C.P. of London who was employed as a doctor in a hospital in a suburb of
Bombay-suggested that the two of them go to Poona and try to induce the respondent to come
back to Bombay. This proposal, he says, he accepted and the appellant as well as Dr. Lulla who
has been. examined as a witness on his side have testified to the fact that in the last week of May,
1954, both of them went to Poona one evening, met the respondent at her parents' house and
appealed to her to come back to Bombay to live with the appellant. According to the evidence of
both these witnesses, the respondent, when re- quested to come back to Bombay, stated that she
was de- termined never again to come back to her husband's house. The respondent denied the
entire story and stated that neither the appellant nor Dr. Lulla ever came to Poona during her stay
there, nor of course ever talked to her. The learned trial Judge who had the opportunity of seeing
Dr. Lulla in the box entertained a very favorable opinion of his respectability and credibility and
accepted in toto his evidence that the respondent intimated to him her fixed determination not to
come back to the appellant. In the background of the previous history of the relationship between
the parties and the manner in which the respondent left, the husband's home on February 26,
278
1954, as found by the trial Judge, he recorded a finding that the factum of desertion which was
not in dispute was accompanied by "'animus deserendi' which had been satisfactorily established
by the declaration she made to the appellant and his friend. The learned Judges of the High Court
were not disposed to differ from the learned trial judge as regards the reality of the visit to Poona
of Dr. Lulla accompanied by the appellant and their meeting the respondent there. They were,
however, not in-

clined to attach any value to Dr. Lulla's testimony as regards the statement made by the
respondent because of two factors: (1) the time lag between May, 1954, when he met her and
April, 1957, when he gave evidence; the learned judges were inclined to hold that the witness
could not properly remember correctly the dialogue after that interval ; (2) the fact that Dr. Lulla
could not reproduce verbatim the questions put to the respondent and the answers she gave was
considered by them as a circumstance which would detract from the acceptability of, the
evidence regarding the matters about which he deposed. For these reasons the learned Judges
found that though Dr. Lulla might have visited the respondent in May, 1954, as spoken to by
him, there was no proper proof before the Court that the respondent had given expression to a
determination not to return to the husband. We shall deal later with this appreciation of Dr.
Lulla's evidence and the weight to be attached to it, but, to continue the narrative, the respondent
left India for Singapore on July 7, 1954, and returned from abroad in April, 1956. During this
period there has been some correspondence between the parties by way of telegrams and letter
which have considerable relevance on the issues involved in the case and the points in
controversy between the parties.

Before, however, referring to the events of that period a few more incidents which happened
prior to the departure of the respondent from India have to be noticed After Dr. Lulla's meeting
the respondent at the end of May, 1954, the next event of some importance is that the respondent
and her father came to Bombay during June, 1954, for the purpose of the respondent obtaining a
passport to enable her to leave India. At that time, it is common ground, that the respondent
stayed with her paternal uncle-one Tola Ram-whose house was in Colaba and about five minutes'
walk from the appellant's residence. It is the case of the appellant that when the respondent and
her father came over to Bombay in June they stayed there for about a month. This however, is
denied by the respondent and her father who say that the duration of their stay at Bombay at Tola
Ram's house was only for a little over a fortnight. It matters little which version is correct but one
thing is clear that notwithstanding the admitted stay in Bombay for two weeks or more she never
went to her husband's house either to see him or even to see her son, Ashok, then a boy of about
7 years. The learned Judges of the High Court have not adverted to this circumstance which we
consider has material bearing in deciding between the rival versions as to whether the respondent
did or did not leave the husband's home with his permission and consent and the blessings of the
parents-in-law. It is also to be noticed, and about this there is no dispute, that in the application
for the passport and in the passport itself it was not the appellant's name or address that was
given as her Indian residential address but that of Tola Ram in Colaba. As stated earlier, the
respondent left Bombay by air for abroad on . July 7, 1954. Before taking off she was in Bombay
for nearly 24 hours before the plane's departure. It is not in dispute that even then, she did not
visit her husband or her child though she was staying at Tola Ram's. From Bombay the
respondent reached Singapore by air and it is admitted that she sent no intimation or information
to the appellant either regarding her departure, the place to which she had gone or the proposed
duration of her stay. The appellant having come to know through other sources of the respondent
having gone to Singapore, sent her a cablegram on the 20th July reading :

279
"Extremely surprised at your suddenly secretly leaving India without my knowledge and consent.
Return immediately first plane"..

to which the respondent replied also by a cablegram "Returning within a few months".

These telegrams would, at least, make one thing clear that the appellant's case that he had no
knowledge of the respondent leaving India was not an after-thought and is probably true. On
receipt of this telegram dated the 23rd July the appellant replied the next day "You must return
immediately".

of course, the respondent did not return but her case was that she replied by a letter dated August
2, 1954. There is a controversy between the parties as to whether this letter was really written at
all, or if written, was posted and to the proper address. It is, however, common ground, and
found by both the Courts, that the appellant did not receive any letter from the respondent
bearing that date or written at about that time or with the contents which according to her were
the contents of that letter. The learned trial judge was inclined to the view that the respondent did
write a letter on that date but he was not satisfied that the copy which she produced which has
been marked as Ex. 4 in the case represented either a true copy of it or carried the contents of
that letter. He, therefore, discarded Ex. 4 from consideration. The learned judges of the High
Court on the other hand, took the view that a letter was written by the respondent on that date
and they were prepared to accept her story that the original of that letter which was stated to be
in manuscript-written in her own hand,. was copied from the typescript which she produced and
which was marked as Ex. 4. The evidentiary value of that letter was stated to consist in its
disclosure of the state of mind of the respondent and the learned judges held that its contents
indicated the readiness and willingness on the part of the respondent to join her husband and
therefore negatived any animus to desert or to continue the desertion, if there was any such
intention originally on her part. We shall reserve the discussion of the evidentiary value of this
letter to a later stage but shall here merely set out the material parts of it:

"I really feel surprised why you want me to return to Bombay by first plane without any reason.

Dear, I was particularly pained to read that I have suddenly and secretly left the place without
your consent. What has prompted you to write this I really do not understand.

Dear, how comes this change. You know I was not keeping good health and considerably gone
down in spirit and weight for reasons which I do not like to discuss here since You are fully
aware. It was you who suggested that I should go over and stay at my father's place and at your
suggestion I did so. You are fully aware that I was accompanying my father to Singapore for a
few months for a change and you gave consent. As soon as I feel better I shall return to
Bombay."

The appellant not having received this letter (if it was written) and not having received any reply
to his cable dated July 24, 1954, asking the respondent to return im- mediately to India, was,
according to him, hearing stones that she was moving from place to place. He thereupon' sent her
a cablegram on February 24, 1955, and addressed it to both her Singapore and Djakarta
addresses as he was not quite sure as to where exactly she was. That telegram read :

"Since your secret departure you not replying my telegrams, letters. Myself shocked. You
wandering different countries leading reckless life spoiling my reputation. Your most disgraceful
280
behaviour ruining my life." At the time the cable was received the respondent was still at
Singapore and on the 26th she replied by cable :

"Your allegations in your cable dated 24th not correct. Cannot understand your attitude. I have
departed with your knowledge with my father because of ailing health due to reasons you are
well aware. Keeping quiet life with my parents. Have not received your letter ; only telegrams
which have been replied by cable and letter."

and to this the appellant replied also by cable:

"Your telegram dated 26th February contains all foul lies. Myself shocked at your fabricating
false stories to justify your secretly quitting home and flouting my repeated instructions."

But even before the receipt of this last cable from the appellant the respondent wrote to him a
letter from Sin- gapore dated March 3 in which, after setting out the text of the cablegrams
exchanged, she made a positive assertion that she wrote a, letter to him on August 2, 1954. The
rest of the letter was concerned with inviting him to come abroad and stay with her and her father
at Hong Kong to which place she said she was leaving the next day and she promised him real
pleasure if he stopped working for his parents and commenced having pleasure with the
respondent in her father's house. After the dispatch of this letter on the 3rd of March the
respondent received the appellants cable in which he reiterated his allegation that she had left his
house secretly and without his knowledge and was thereafter flouting his instructions., On March
10, 1955, she sent him a cable from Hong Kong refuting this allegation and adverting to the
invitation' contained in her letter dated March 3, 1955, she, said.

"Why don't you come out of Bombay house-hold atmosphere and see for yourself. Cannot
understand, what you mean by flouting repeated instructions."

The letter of the 3rd was dispatched by the respondent by registered post and when this was
received as well as the cables from the respondent, the appellant wrote in reply a letter sent by
registered post dated April 1, 1955, in which he passed severe strictures against her conduct and
in her continuing abroad without obeying his instructions. We shall have to deal in somewhat
great detail with the contents of this letter. Ordinarily read it might seem to indicate that the
appellant was charging the respondent with improper behaviour even amount- ing to sexual
immorality. While in the witness box the appellant specifically repudiated that he intended any
Such imputation and, in fact, made it clear that he was neither basing his petition on any
allegation of immorality nor that he ever intended to impute any such conduct to her. The learned
trial judge accepted this explanation of the appellant and interpreted the letter as the outpourings
of an angry and grieved husband and was not, therefore, in- clined to read the expressions used
therein as imputing unchastity to her. On the other hand, the learned judges of the High Court
analysed the text of the letter and considered that it clearly made false and unfounded
imputations of unchastity on the respondent and for that reason they held that even if the
respondent be held to have had an animus deserendi when she quitted her husband's home on
February 26, 1954, and continued to retain that animus, still having regard to the false and
malicious amputations of unchastity made by the appellant in his letter dated April 1, 1955, they
held that she had justifiable cause for not returning to him thereafter and this formed one of the
prime grounds for directing the dismissal of the appellant's petition for judicial separations We
shall have to discuss these conflicting views and the different -interpretations of this letter, in the

281
light of the evidence adduced in the case when dealing with it. We shall, however, pass this over
for the present and continue the narrative.

The respondent received this letter while she was still at Hong Kong. But the next day she left
for Manila and she replied from the latter place on April 12, 1955. The main points made in this
reply were : (1) She left the house of the appellant with the consent of himself and his parents,
(2) The reason for her leaving Bombay to stay with her parents was that her health was poor and
-she wanted to recoup it by a trip abroad. The stay abroad was therefore only for the
improvement of her health., (3) The reason for her vacationing with her parents being for the
improvement of her health and for no other-not for leading the gay life which was suggested in
the appellant's letter dated April 1, 1955. She added :

"As soon as my health has completely improved I shall, of course, come back to you and to our
son." This, was the end of the correspondence between the parties. It is common ground that she
did not inform the appellant as to when she would be returning to India which was in April,
1956. Nor did she inform the appellant after her arrival in the country, nor did she go to his
home-Bombay-to meet him or her son. just about the time some relations of the respondent were
vacationing for the summer in Kashmir and she accompanied them there and spent the summer
in the valley. No communications passed between the appellant and the respondent during this
period either. It was after this that the petitioner filed the petition out of which this appeal arises,
on September 20, 1956. After the respondent was served with notice of the petition some attempt
was made to effect a reconciliation but it is not necessary to notice this because if there had been
desertion, as required by law and the duration of that desertion amounted to two years, the terms
of s. 10(1) of the Act are satisfied and the fact that thereafter the guilty spouse repents or recants
is not by itself a ground for refusing the relief to which the injured spouse is entitled (Compare s.
23(1) of the Act). From the above narration it will be seen that there are three points of contested
fact on which the decision 2 3 -2 S. C. India/61 of this appeal would turn : (1) whether the
respondent left the appellant's home on February 26, 1954, with his consent or whether she did
so without such consent., (2) What was the intention or animus of the respondent-in leaving her
matrimonial home, and in regard to this the interview with Dr. Lulla and the other matters to
which we have referred earlier and which transpired before the respondent left India on July 7,
1954, would have relevance., (3) The proper interpretation of the letter of April 1, 1955, writ-ten
by the appellant to the respondent and whether in the circumstances of the case it would afford
legal justification for the respondent's refusal thereafter to return to the matrimonial home, and to
these questions we shall immediately address ourselves.

Before doing so, however, it might be convenient to refer briefly to the law on the topic. The
relevant statutory provision may first be set out. Reading only the portion that is material s. 10(1)
enacts "10. (1) Either party to a marriage whether solemnized before or after the commencement
of this Act, may present a petition to the district court praying for a decree for judicial separation
on the ground that the other party-

(a) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition ; or"

This sub-section is followed by an Explanation which runs :

"Explanation.-In this section, the expression 'desertion', with its grammatical variations and
cognate expressions, means the desertion of the petitioner by the other party to the marriage

282
without reasonable cause and without the consent or against the wish of such party, and includes
the willful neglect of the petitioner by the other party to the marriage."

The question as to what precisely constitutes "desertion" came up for consideration before this
Court in an appeal from Bombay where the. Court had to consider the provisions of s. 3(1) of the
Bombay Hindu Divorce Act, 1947, whose language is in pari material with that of s.

10(1) of the Act. In the judgment of this Court in Bipin Chander v. Prabhawati(1) there is an
elaborate consideration of the several English decisions in which the question of the ingredients
of desertion were considered and the following summary of the law in Halsbury's Laws of
England (3rd Edn.), Vol. 12, was cited with approval :

"In its essence desertion means the intentional permanent forsaking and abandonment of one
spouse by the other without that other's consent, and without reasonable cause. It is a total
repudiation of the ob- ligations of marriage. In view of the large variety of circumstances and of
modes of life involved, the Court has discouraged attempts at defining desertion, there being no
general principle applicable to all cases. The position was thus further explained by this Court:

"If a spouse abandon the other spouse in a state of temporary passion, for example, anger or
disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For
the offence of desertion, so far as the deserting spouse is concerned, two essential conditions
must be there, (1) the factum of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly two elements are essential so far as the
deserted spouse is concerned : (1) the absence of consent and (2) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the necessary intention
aforesaid........

Desertion is a matter of inference to be drawn from the facts 'and circumstances of each case.
The inference may be drawn from certain facts which may not in another case be capable of
leading to the same inference ; that is to say, the facts have to be viewed as to the purpose which
is revealed by those acts or by conduct and expression of intention, both anterior and subsequent
to the actual acts of separation. If, in fact there has been a separation, the essential question
always is whether that act could be attributable to an animus descrendi. The offence of desertion
commences when the fact of separation and (1) [1956] S.C.R. 838.

the animus deserendi co-exist. But it is not necessary that they should commence at the same
time. The de facto separation may have- commenced without the necessary animus or it may be
that the separation and the animus deserendi coincide in point of time."

Two more matters which have a bearing on the points in dispute in this appeal might also be
mentioned. The first relates to the burden of proof in these cases, and this is a point to which we
have already made a passing reference. It is settled law that the burden of proving desertion-the
"factum" as well as the "animus deserenai is on the petitioner, and he or she has to establish
beyond reasonable doubt, to the satisfaction of the Court the desertion throughout the entire
period of two years before the petition as well as that such desertion was without just cause. In
other words, even if the wife, where she is the deserting spouse, does not prove just cause for her
living apart, the petitioner-husband has still to satisfy the Court that the desertion was without
just cause.
283
As Denning, L.J., observed : (Dunn v. Dunn)(1) : "The burden he (Counsel for the husband) said
was on her to prove just cause (for living apart). The argument contains a fallacy which has been
put forward from time to time in many branches of the law. The fallacy lies in a failure to'
distinguish bet- ween a legal burden of proof laid down by law and a provisional burden raised
by the state of the evidence............ The legal burden throughout this case is on the husband, as
petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies
on the fact that he asked her to join him and she refused. That is a fact from which the court may
infer that she deserted him without cause, but it is not bound to do so. Once he proves that fact of
refusal, she may seek to rebut the inference of desertion by proving that she had just cause for
her refusal ; and indeed, it is usually wise for her to do so, but there is no legal burden on her to
do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the
case, to ask itself: Is the legal burden discharged? Has (1) [1948] 2 All. E.R. 822, 823.

the husband proved that she deserted him without cause? Take this case. The wife was very deaf,
and for that reason could not explain to the court her reasons for refusal. The judge thereupon
considered reasons for her refusal which appeared from the facts in evidence, though she had not
herself stated that they operated on her mind. Counsel for the husband says that the judge ought
not to have done that. If there were a legal burden on the wife he would be right, but there was
none. The legal burden was on the husband to prove desertion without cause, and the judge was
right to ask himself at the end of the case: Has that burden been discharged?"

This, in our opinion, is as well the law in this country under the Act.

The other matter is this. Once desertion, as defined earlier, is established there is no obligation
on the deser- ted husband (taking the case where he is the deserted spouse) to appeal to the
deserting spouse to change her mind, and the circumstance that the deserted husband makes no
effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the
relief of judicial separation, for once desertion is proved the deserting spouse, so long as she
evinces no sincere inten- tion to effect a reconciliation and return to the matrimo- nial home, is
presumed to continue in desertion. of course, the matter would wear a different complexion and
different considerations would arise where before the end of the statutory period of 2 years or
even thereafter before the filing of the petition for judicial separation the conduct of the deserted
spouse was such as to make the deserting spouse desist from making any attempt at
reconciliation. If he or she so acts as to make it plain to the deserting spouse that any offer on the
part of the latter to resume cohabitation would be rejected, then the deserting spouse could
obviously not be blamed for not bringing the desertion to an end. Or again, if before the end of
the period of two years or the filing of the petition his or her conduct is such as to provide a just
cause for the deserting spouse for not resuming cohabitation, the petition cannot succeed, for the
petitioner would have to establish that the desertion was without just cause du-

ring the entire period referred to in s. 10(1)(a) of the Act: before he can succeed.

There were a few submissions made to us by learned counsel for the appellant regarding the
nature of the "just cause", particularly whether this should amount to "cruelty" or other
matrimonial offence etc., based on a construction of certain other provisions of the Act, but as
these have no substance and were not persisted in, we consider it unnecessary even to refer to
them.

We shall now proceed to consider the facts in the light of these principles with a view to find out
whether the appellant has proved that the respondent had deserted him without just cause for the
284
requisite period. We start with the admitted circumstance that the respondent left the husband's
home on February 26, 1954. It was not suggested that the husband threw her out or that she left
because of any expulsive conduct on his part. There is therefore no suggestion or case that she
left for any justifiable cause. The next question that would fall for determination is whether she
left with his consent. As we have stated earlier, on this point the learned judges of the High Court
have recorded a finding different from that of the trial Judge. The case of the respondent was that
she had the consent of her parents-in-law and also of the husband, and she even went to the
length of suggesting that it was he who suggested that she might go abroad with her father in
order to improve her health. Now as to the obtaining the consent of the respondent's parents-in-
law, the evidence was this. The respondents father who was her second witness deposed as
follows: There had always been disinclination on the part of the appellant and his parents in
permitting the respondent to go over to her parents' place on most earlier occasions. When
permission was thus sought for such a purpose, there had always been friction and trouble. In
connection with his taking his daughter with him when he intended to leave India in July, 1954
he sought their permission on more than two occasions but the same was refused. Subsequently a
friend and a neighbour of his at Poona--one Maganmal- promised to intercede with the appellants
father. The latter spoke to the appellant's father and obtained permission and informed the
witness.

The entire story of Maganmal having spoken to appellant's father and obtained the latter's
permission was denied by the appellant as false and the learned trial Judge was not inclined to
believe the story as true. Maganmal who gave evidence as D.W. 3 admitted that he could not
claim to be any close friend of the petitioner's father and, in fact, he admitted to what might
ordinarily constitute a state of unfriendliness between them. Kanayalal who had married the
appellant's sister was the adopted son of one Nanikram who was stated to have died leaving a
will by which he disposed of his properties in favour of a trust. The trustees, including
Maganmal who was one of the trustees, upheld the validity of the will and claimed the properties
for the trust, but Kanayalal challenged the truth and validity of the will and claimed the property
as the heir of Nanikram. It was stated by Maganmal that himself and the appellant's father
became acquainted with each other when they happened to meet in connection with this trust
estate and when the appellant's father came to him to sponsor the interests of his son-in-law. This
apart, the talk between himself and the appellant's father as a result of which the permission is
said to have been granted was thus stated by Maganmal in his evidence:

"I (Maganmal) talked to the petitioner's father in Bombay in collection with the securing of
permission for the respondent at the most for five months. I straightaway talked to the
petitioner's father about the securing of the permission for the respondent. There was no other
topic discussed between myself and the petitioner's father. The talk between myself and the
petitioner's father took place in the compound of Ishardas Temple when I and the petitioner's
father came out of the temple. I took the petitioner's father aside when I had a talk with the
petitioner's father."

This would not be a very credible story, because if to the requests of the respondent's father on
two or three occa- sions the appellant's father had refused permission it does not stand to reason
that to a person situated as Maganmal was in relation to him he would have yielded merely
because it was mentioned by Maganmal. The learned trial Judge who had an opportunity of
seeing Maganmal in the box was not impressed with his evidence and for the reasons we have set
out earlier regarding the relationship between the appellant's father and Maganmal learned trial
judge considered that the story of Maganmal being deputed to obtain permission and his having
285
obtained permission was false. We are inclined to agree with the learned trial judge in this
appreciation of the oral testimony. If Maganmal's evidence is rejected then the entire
superstructure of the respondent's case about the consent of the appellant's parents must fall to
the ground. In this connection there arc a few other matters to mention. It was common ground
that the appellant's father was, at the time of the trial, away at Tokyo on business and he was not
in a position to be examined as a witness. The learned judges of the High Court, however, drew
an inference adverse to the appellant from (1) his not calling his mother as a witness, and (2) the
non-examination of maidservant who was stated to have been in the house at the time when the
respondent left it on February 26, 1954. We do not agree with the learned judges of the High
Court in the inference so drawn. If Maganmal's evidence is -rejected, as it must, the father of the
respondent who supported the story of Maganmal's intervention would not come out with flying
colours and if his evidence as to this part is rejected we consider that it was not incumbent on the
appellant to adduce the negative evidence of his mother etc., at the risk of an adverse inference
being drawn against him in the event oil his not doing so.

Besides, there -.ire some circumstances which lead to the inference that the story spoken to by
the respondent about her parents-in-law being per sent at the time of her departure and their
loading her with gifts of jewellery and clothes is not credible. If really the respondent had left the
house with the consent and goodwill of the appellant's parents or if as she would have it in some
of her letters, it was the appellant himself who suggested her going abroad with her father to
recoup her health. there could be no explanation for the conduct of the respondent in ,not going
over to the house of the appellant during her stay in Bombay in June, 1954, for a fortnight or
more when she was there in connection with her passport, and when she stayed admittedly within
a few minutes' walk of the appellant's place. There would also be no explanation for her failure
to inform the appellant and his parents about her departure from Bombay on July 7, 1954. It is
only necessary to add that even in the first cable which the appellant sent her on coming to know
of her departure from India the appellant complained that she had left India secretly without his
knowledge and consent to which there was no contradiction in the reply by cable that she sent on
July 22, 1954, though in her later cablegrams and letters she asserted that she had such a consent.
There are several other matters which have been mentioned by the learned trial judge, such as the
discrepancies in the several versions that the respondent spoke to from time to time and between
these and the evidence given by her father and that of Maganmal coupled with her case as set out
in the -pleadings as circumstances for discarding the entire story as false, but to these it is not
necessary for us to advert in view of the broad features we have pointed out which have led us to
the conclusion that the respondent did not leave the house of the appellant with his consent but
that she did so of her own accord and without his knowledge.

The next matter for enquiry is as to the animus which prompted the respondent to leave the
appellant's house. There was admittedly no incident which led to the departure from the
matrimonial home which could throw light on that question nor is there any contemporaneous
declaration of the respondent. The learned trial judge has set out the history of the relationship of
the parties ever since their marriage up to 1954 as the background in which the simple act of
leaving should be viewed for the purpose of determining the animus with which that act was
done. The learned Judges of the High Court considered that this was not a proper approach to the
question. Without deciding on the correctness of the approach of the learned trial judge, we shall
proceed on the basis that the learned judges were right in discarding the earlier history of the
relationship between the parties as irrelevant for determining whether the respondent in
removing herself from her husband's house did or did not intend her withdrawal to be permanent
and with a view to disrupt their marriage and terminate their married life. We shall consequently
confine ourselves to the events and matters which trans-
286
pired after she left the appellant's home to determine what her intention was at the time when she
left it. The first matter to which reference must be made is the fact that after reaching Poona on
February 26, 1954, until the end of May of that year she never wrote any letter to her husband. If,
as we have found earlier, she left the appellant's house without his Consent or even knowledge,
the failure on her part to intimate to him as to where she had gone would certainly be a relevant
circumstance indicative of the animus which impelled her to leave the home. This is, no doubt, a
slight circumstance, but she has really no explanation to offer for her silence and particularly so
when taken in conjunction with the case that she put forward that she left her husband's place
with the blessings of her parents-in-law and almost at the suggestion of her husband in order that
her health might improve.

The next circumstance which, however, is very much more important, is her declaration on the
occasion when the appellant and Dr. Lulla visited her at Poona towards the end of May. The
learned trial judge, as stated earlier, has accepted that Dr. Lulla and the appellant did visit her at
Poona as spoken to by them and that her story denying this meeting is false. The learned Judges
of the High Court also did not accept her denial of the meeting, but they however refused to
attach any importance to the evidence of Dr. Lulla for the reason that he was unable to specify
the exact words of the questions put to her and her answers. We do not agree with the learned
judges about the value to be attached to the evidence of Dr. Lulla. The relevant portion of Dr.
Lulla's evidence runs thus :

"I told her (the respondent) to go back to Bombay and then settle the differences whatever they
were between the petitioner and the respondent but she said that she was not prepared to go back
for ever. There was no further talk between myself and the respondent. The petitioner had a talk
with the respondent first and then I had a talk with the respondent. I cannot recollect what the
petitioner actually told the respondent. The respondent did not mention the differences which she
had with the petitioner' She only stated that she was not prepared to come back to the peti-

tioner for ever."

Now, it will be seen that this evidence is categorical. It Consists of two parts: The first is as
regards the gist of the conversation between the appellant, and the respondent when they were
together. He admits he was not present when they talked to each other and it is the question and
answer at that stage, i.e., between the appellant and the respondent that the witness is unable to
state to the Court. The second part of the evidence is in relation to the ques- tions that he himself
put to the respondent. There is, no ambiguity in his evidence either about the questions which he
put nor about the answers which she gave. The comment of the learned judges that the witness
was unable to reproduce the exact words of the question put to the respondent and the words of
her answer does not obviously apply to this second part of the witness's testimony. If Dr. Lulla
be treated as a truthful witness, and even the learned judges of the High Court did not express
any view to the contrary, it is clear that the respondent had specifically stated to him that she
would never come back to her husband's home. There is thus clear evidence and satisfactory
proof that besides the factum of desertion there was also the animus descrendi at the time when
she left the husband's house or at least at the time of this meeting -it Poona at the end of May,
1954.

The matter does not rest here for there is further proof of her animus afforded by her conduct up
to the time of her leaving India for abroad on July 7, 1954. We are, here, referring to three
matters: (1) Her presence in Bombay for a fortnight or for a month, whichever it be, at her uncle
287
Tola Ram's place five minutes walk from the appellant's residence and her failure to call on the
appellant even for the purpose of seeing her boy Ashok; (2) her conduct in giving her address in
India as Tola Ram's place in the application for a passport and in the passport itself; and (3) her
failure to inform the appellant of her departure from Bombay and her not calling on him even
when she was leaving India for a stay of a considerable duration abroad. If then the conduct of
the respondent was an act of desertion with the requisite animus when it started, the question
next to be considered is whether it continued for the duration of two years before the presentation
of the appellant's petition under s. 10(1)(a) of the Act to satisfy the requirements of the statute.
We have already set out the correspondence which passed between the parties. In the first
telegram which was exchanged between them and which started immediately the appellant got
information that the respondent had left India-towards the end of July, 1954-he required the
respondent to return to India immediately. In her replies she stated that she would return, not
immediately-we are not, here, concerned so much with the reasons which she gave for not so
returning-but after her health improved. If her offer to return after sometime was genuine and
sincere and represented her then true feelings and intention it cannot be disputed that the
desertion would be brought to an end because thereafter the animus deserendi would be lacking,
though the factum of separation might continue. On the other hand, it cannot also be disputed
that if the offer was not sincere and there was in reality no intention to return, the mere fact that
letters were written expressing such an intention would not interrupt the desertion from
continuing. The question for inquiry would, therefore, be whether these offers by the respondent
to return were sincere. In this connection it is riot without significance that there are admittedly
several occasions on which the respondent could have returned to India but she did not do so
until April 1956. One of these was when one. Mr. Choith Rama relation of the parties-returned to
India. It is admitted by both the respondent as well as her father that it was possible for the
respondent to have returned to India with Choith Ram but it was stated that she did not do so
because she had not been invited to some wedding in the appellant's house. We consider this
explanation not satisfactory or convincing. If, as -we have found, she had left the appellant's
house without his consent, and she expressed her determination not to return to him when the
appellant and Dr. Lulla met her in May in Poona, and when in spite of repeated assertions in her
letters and telegrams that she would be coming back, but she fails so to return when she had
occasion and opportunity to do so, we consider that her acts and conduct in failing to return are
entitled to more weight as evidence of her true intention than her assurances contained in her
letters. We are not, therefore, prepared to hold that bona fide intended to return to her husband
when in her letters and telegrams, to which we have already adverted, she expressed her
intention to return to him. Besides, it would be seen that even after she returned to India in April,
1956, she did not go straight to her husband's house or even inform him of her return to India but
on the other hand went away to Kashmir and that state of things continued until the petition was
filed on September 20, 1956. If nothing more happened between the parties it is clear that the
petitioner would be entitled to the relief which he sought as there was satisfactory proof of
desertion as defined by the statute for the full term of two years.

The point, however, that forms one of the major bases of the judgment of the learned Judges and
which was strenuously sought to be supported by Mr. Aggarwala, learned counsel for the
respondent, was based upon the letter of the appellant dated April 1, 1955, as affording a
justification in law for her refusal to come back to join him.

Before proceeding to deal with the contents of the letter and the other points urged in relation to
it, it might perhaps be useful to set out the legal position in the light of which the entire matter
has to be considered. As stated by Scott. L. J., in Tickler v. Tickler(1), quoting the words of Lord
Romer in an earlier decision :
288
"The question whether a deserting spouse has a reasonable cause for trying to br ing the
desertion to an end and the corresponding question whether desertion without cause has existed
for the necessary period must always be a question of fact."

The question for consideration in such cases is "Is the con- duct of the deserted spouse such as to
excuse the deserting spouse from making any attempt to put an end to the deser- tion or from
attempting any reconciliation?" (Vide also Brewer v. Brewer(1). The basis of this rule rests on
this, that such conduct on the part of the deserted spouse would legally operate as a consent to
the existing separation and would have the effect of absolving the deserting spouse from any
obligation to return to the matrimonial home or (1) [1943] 1 All E.R. 7, 59. (2) [1961] 3 All E.R.
957,

964. to make amends for her improper conduct, for the petitioner in a petition for judicial
separation grounded on desertion by the other spouse has to prove that for the period of two
years specified in s. 10(1) (a) of the Act the respondent has without cause been in desertion and
that intention must be proved to exit through out that period. If, therefore, during that period the
respondent has just cause to remain apart he or she would not be in desertion and the petition for
judicial separation would fail.

It would be seen that we have here the interaction of two distinct matters which have to coexist
in order that desertion might come to an end. In the first place, there must be conduct on the part
of the deserted spouse which affords just and reasonable cause for the deserting spouse not to
seek reconciliation and which absolves her from her continuing obligation to return to the
matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there
is one other matter which is also of equal importance, that is, that the conduct of the deserted
spouse should have had such an. impact on the mind of the deserting spouse that in fact it causes
her to continue to live apart and thus continue the desertion. But where, however, on the facts it
is clear that the conduct of the deserted spouse has had no such effect on the mind of the
deserting spouse there is no rule of law that desertion ter- minates by reason of the conduct of the
deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which
is proved not to have caused the deserting spouse to continue the desertion does not put an end to
the desertion appears to be self-evident and deduci- ble from the legal concepts underlying the
law as to deser- tion. The position is besides supported by authority. We might usefully refer to
the following passage in the judg- ment of Willmer, L.J., in Brewer v. Brewer(1) where, ex-
plaining certain observations of Lord Macmillan in Pratt v. Pratt (2), he said :

"It remains for consideration however, exactly what Lord Macmillan meant when he spoke of the
husband 'making it plain' to his deserting wife that he will not (1) [1961] 3 All. E.R. 957.

(2) [1939] A.C. 417, 420.

receive her back. He cannot have meant, I apprehend, that a deserting wife is entitled to take
advantage of any chance statement that her husband may have made, irrespective of whether it
had any effect on her mind. It seems to me that what Lord Macmillan must have meant was that
a deserted husband cannot complain if what he has said or done has in fact caused hi-, wife to
desist from making any attempt at reconciliation which she otherwise would have made. If this
view be right, it becomes obvious at once that the question whether the conduct of the husband
was such .is to bring the wife's desertion to an end cannot be treated, as counsel for the wife (at
any rate at one point of his argument) appeared to invite us to treat it, as an abstract question of

289
law. It becomes necessary to consider the facts of the particular case, in order to ascertain what
in fact was the impact on the mind of the deserting spouse of anything which was said or done by
the deserted spouse."

We should add that this expresses our own view of the legal position.

We shall now proceed to consider the letter of the appellant dated April 1, 1955, and its
significance for the purposes of the defence of the respondent in the light of these principles. The
questions that arise on this letter fall into two broad classes : (1) The exact meaning and
construction of the expressions used in the letter, and (2) its impact on the mind of the
respondent. As to the meaning of the letter the rival contentions are these. According to the
appellant the letter was merely the outpourings of an angry and grievously injured husband who
found his wife persisting in keeping away from him and expressing happiness at her stay in and
movement from place to place in foreign countries. In this connection the expressions used in the
letter were put to the appellant in great detail during his cross examination and the burden of his
explanation was that he never intended to impute any unchastity to the respondent. It is not
necessary to set out the entirety of the letter but we would make a few extracts for the purpose of
judging whether the letter could bear the interpretation which the appellant asserted was his
intention in writing that letter:

"They (the appellant's parents) have overlooked all your faults and treated you with love and
kindness like their own daughter and have made all possible efforts to raise you up from your
low turpitude and make you a decent woman It is your perverted funny notions of pleasure
giving vent to your past and present associations, both in India and abroad, that are the root cause
of all your evil and irrational deeds. ... Just think how often have I counseled you against your
unceasing pleasure hunt which has brought only shame and misery to our whole family It is a
wonder that you find pleasure in leaving home, leaving your husband, wandering from country to
country, leading reckless life under the guise of being in the company of your relations and
uncles whom you find readily available at every port. And you have gone SO far in this
direction, that you find yourself unable to break your past links and get out of the muddle created
by you and seek pleasure and happiness in your own home by being a faithful and devoted wife
In spite of all my efforts, you have completely deserted me and chosen the path of pleasure and
perversion,at any cost. You are only looking for some cloak to cover your guilt and continue to
live your life of degradation with impunity. I refuse to furnish you with that cloak and I refuse to
be drawn into your game."

As we have stated earlier, the appellant expressly disclaimed in the witness box that he ever
considered her unchaste or that in that letter or otherwise he imputed unchastity to her. The
learned trial judge believed the appellant's testimony as to what he intended to convey by this
letter and was of the view that the contents were reasonably capable of being understood in the
manner suggested by the appellant. We cannot say that this is not a possible interpretation of the
letter and that it must be held that it was intended to impute unchastity to the wife. We must,
however, hasten to point out that the intention of the writer is neither very relevant nor, of
course, decisive of the matter. The question is what the words were reasonably capable of being
understood, and if they have been so understood it is no answer that the writer did not intend his
words to have that meaning. In view of what we are about to say, it would not be really
necessary for us to say whether, reasonably understood. the words would not impute sexual
immorality to the respondent, but we shall assume that the learned Judges of the High Court
were right in their interpretation of the. letter and the insinuations it contained. The question,
however, is how she understood and what her reactions were.
290
The next question for consideration therefore relates to the impact of this letter on the
respondent, for it is ulti- mately that that would determine, in the present case the legal effect of
the conduct of the appellant in terminating or not terminating the desertion that up to then
continued. As to this, the position stands thus : The evidence of the respondent was that she
received the letter at Hong Kong, and she stated :

"I read that a bit. On the next day I left for Manila. .... There I was appraised of the contents of
the letter and then I was shocked at the contents of the letter and my health became worse at
Manila."

The letter is -stated to have been received in the evening and she was to leave Hong Kong for
Manila at 10 a.m. the next day. According to one portion of her evidence she read a part of the
letter on the day she received it but she had no time to read the whole letter, but she corrected
herself later and stated that the entire letter was then read, but that she understood only a portion
of the letter on the day it was received and the rest of it explained to her in Manila. It was her
cousin--one Khem Chand-who is said to have been asked to read and explain the letter because
she did not understand fully its contents. This was at Hong Kong and he read that letter during
the night after he returned home from office. Before he finished reading that letter she said she
went to bed. He was reading, that letter till late that night. She, however, slept by then. Khem
Chand she said, promised to explain the contents the next morning but there was no time 1eft for
this as she left for Manila that day. It is apparent from this state of evidence that it did not have
very much upon the respondent or that she under-stood the letter as really charging her with
immorality. It' is just possible 24-2 S. C. India/64 that she understood its contents as merely an
admonition ,by the husband at her being away from him and at her conduct in asking him to go
over to Hong Kong instead -of returning to him immediately, as he desired in his telegrams. She
apparently attached not much significance to this letter and that is clear from the way in which
she got the letter read and explained to her partly at Hong Kong and the rest at Manila. And this
notwithstanding that her father was there to assist her in understanding the contents of that letter
and its implications.

This is so far as the oral testimony of the respondent is concerned, but possibly of more
significance and of higher evidentiary value than the inference to be drawn from the statements
in her deposition in Court is the reply that she sent from Manila to this letter on April 12, 1955. It
is necessary to examine with some care the contents of this reply. It is addressed to him.as 'My
dearest husband'. It consists of five paragraphs. In the first she acknowledges as letter dated April
1, 1955. of the contents of that letter those regarding which she deals in the 1st paragraph are: (1)
his statement that he had not received any letter from her dated August 2, 1954 and (2) a denial
of the fact that she left his house without his knowledge and consent and an assertion that he and
his parents consented that she should go and stay 'With her relations for a while. The second
paragraph is again taken up with the same matter and repeats (1) that she .did not leave the house
without his knowledge and consent, and (2) she left the house only for reasons of her health. The
third paragraph states that her health had improved but that she would like to stay a little longer
with her parents in order to improve it more and then she would return to him and to her "dear
son Ashok". The next paragraph is concerned with denying the unfounded accusations contained
in his letter and these are characterised as "merely the product of his hallucination" and that she
would ignore them because they are not based on truth and in the final paragraph she ends by
repeating that site was vacationing with her parents only for the improvement of her health and
for no other purpose and lie would kindly allow her to stay with her parents a little longer for her

291
welfare and advantage and she winds up the letter by assuring him "As soon as my health is
completely improved I shall of course come back home to you and to our son".

Now to the question as to what is the impact of the appellant's letter on the mind of the
respondent. In the face of this letter could it be said that she understood the appellant's letter as a
justification for her to stay apart? For this purpose it is not necessary to consider whether she
understood it as imputing unchastity to her or not. As we have already pointed out, it is doubtful
whether she did so. If it were so it would not be reasonable for her to read the letter at Hong
Kong in part or not understanding it there and not attaching any significance to it as an
imputation of a serious character against her morality. But in whatever way she understood it, it
is obvious that it did not have any effect on her mind in the matter of persuading her or impelling
her to stay apart from her husband, for we find in her reply repeated assertions that she intended
to come back to the husband. We do not, therefore, agree with the learned judges of the High
Court that the appellant's letter of April 1, 1955, would constitute an interruption of her desertion
which had commenced from February-May, 1954, by its being a just cause for her to remain
away from the matrimonial home.

As already stated, the letter of April 12, 1955, was the last letter which passed between the
parties and though she stayed abroad for nearly a year thereafter she did not write to the
appellant and even when she came to India in April, 1956, she did not go to her matrimonial
home as she had promised to do in this last letter of hers just referred to. A point similar to the
one dealt with by us in relation to the telegram of the respondent dated June 24, 1955, and her
letter dated March 3, 1955, arising out of the statements contained in them that she intended to
return to the husband on coming over to India and the effect of such a statement in terminating
the desertion has also to be considered with reference to the promise to return to the husband
contained in this letter of hers dated April 12, 1955. As already pointed out, if the offer to return
was genuine and sincere and was made with the intention of being kept and as indicative of a
desire felt to return to the matrimonial home it would constitute a break in the desertion and thus
disentitle the appellant to any relief under s. 10(1) of the Act because in the face of such an
intention the desertion of two years duration could not be established. We are, however, satisfied
that the intention expressed in this letter to return to the husband was not genuine or sincere. This
is shown beyond doubt by the following facts: (1) She wrote no letter to the appellant after April
12, 1955, right up to the date of the petition, (2) she did not intimate to him about her arrival in
India-a fact strongly suggesting her disinclination to meet him and to go to his house, (3) that
even after she returned to India nearly a year after her letter of April 12, 1955, she did not go to
her husband nor was any attempt made by her to contact her husband through friends before the
filing of the petition. The facts therefore and her conduct outweigh any assertion contained in
this letter and they convince us that she did not entertain any genuine desire to return to her
husband's home when she wrote those words in her letter to him dated April 12, 1955.

It was not contested that if desertion started in February- May, 1954, as we have found, and was
not put an end to and if no justifiable cause for the continuance of the desertion was afforded by
the appellant's letter of April 1, 1955, there was no other defence to the petition of the appellant
under s. 10(1) of the Act.

The result is that the appeal is allowed, the judgment of the High Court reversed and the decree
for judicial, separation passed by the learned trial judge restored with costs here and in the High
Court.

292
SUBBA RAO J.-I regret my inability to agree. This appeal by certificate presents a facet of the
social and sociological problem of a young Hindu woman landed by marriage in a joint family
and of her predicament therein. As Rajagopala Ayyangar, J., has traced the course of the
litigation, it is not necessary to cover the ground overagain. Two questions arise for
consideration, namely, (1) whether there was desertion by the respondent without reasonable
cause of her matrimonial home; and (2) whether the appellant had prevented the respondent
during the statutory period from bringing the desertion to an end. Before I consider the evidence
in the case, it will be convenient to notice the relevant aspects of the law pertaining to the
doctrine of desertion. The Hindu Marriage Act, 1955 (Act 25 of 1955), hereinafter called the
Act, codified the law in that regard. The material provisions of the Act read thus : .

Section 10. (1) Either party to a marriage, whether solemnized before or after the commencement
of this Act, may present a petition to the District Court praying for a decree for judicial
separation on the around that the other party-

(a) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition.

Explanation.-In this section, the expression "desertion", with its grammatical variations and
cognate expressions, means, the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such party,, and includes
the willful neglect of the petitioner by the other party to the marriage."

Under this section a spouse can ask for judicial separation if the other spouse has deserted her or
him for a continuous period of not less than two years. This provision introdu- ces a
revolutionary change in the Hindu law of marriage. It is given retrospective effect. A spouse in
India except in some states, who never expected any serious consequences of desertion, suddenly
found himself or herself on May 18, 1955, in the predicament of his or her marriage being put in
peril. If by that date the prescribed period of two years had run out, he or she had no locus
penitential and could retrieve the situation only by mutual consent. Section 10(1)(a) does not
proprio vigore bring about dissolution of marriage. It is a stepping stone for dissolution. On the
deserted spouse obtaining a decree for judicial separation, the said spouse can bring about
divorce by efflux of time under s. 13 (1) (viii) of the Act. The expression "desertion" came under
the judicial scrutiny of this Court in Bipin Chander jaisinghbhai Shah v. Prabha (1) [1956]
S.C.R. 838.

wati(1). There, the question arose under s. 3 (1)(d) of the Bombay Hindu Divorce Act, 1947
(Bom. 22 of 1947)., This Court, on the facts of that case, held that there was no desertion. The
said section read :

"(1) A husband or wife may sue for divorce on any of the following grounds,
namely....................

(d) that the defendant has deserted the plaintiff for a continuous period of four years.

"Desertion" was defined in s. 2(b) in these terms: "'Desert' means to desert without reasonable
cause and without the consent or against the will of the spouse." Sinha, J., as he then was,
speaking on behalf of the Court after considering the relevant textbooks and decisions on the
subject, summarized the law thus, at p. 851 "For the offence of desertion, so far as the deserting
spouse is concerned, two essential conditions must be there, namely, (1) the factum of
293
separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence
of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the
burden of proving those elements in the two spouses respectively.

The learned judge dealt with the mode of putting an end to the state of desertion as follows, at p.,
852 :

"Hence, if a deserting spouse takes advantage of the locus penitantiae thus provided by law and
decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial
home with all the implications of marital life, before the statutory p eriod is out or even after the
lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an
end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and
not the former."

Based on that reasoning the learned Judge proceeded to lay down the duty of. the deserted
spouse during the crucial period "Hence it is necessary that during all the period that there has
been a desertion the deserted spouse 'must affirm the marriage and be ready and willing to
resume married life on such conditions as may be reasonable."

Adverting again to the burden of proof and the nature of evidence required to prove desertion,
the learned judge made the following observations, at p. 852 :

"It is also well settled that in proceedings for divorce the plaintiff must, prove the offence of
desertion like any other matrimonial offence, beyond all reasonable doubt. Hence, though
corroboration is not required as an absolute rule of law, the courts insist upon corroborative
evidence, unless its absence is accounted, for to the satisfaction of the Court."

Collating the aforesaid observations, the view of this Court may be stated thus : Heavy burden
lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential
conditions, namely.' (1) the factum of separation; (2) animus deserendi; (3) absence of his or her
consent; and (4) absence of his or her conduct 'giving reasonable cause to the deserting spouse to
leave the matrimonial home. The offence of desertion must be proved beyond any reasonable
doubt and as a rule prudence the evidence of the petitioner shall be corroborated. In short this
Court equated the proof required in a matrimonial case to that in a criminal case. I am bound by
this decision. I would, therefore, proceed to discuss the law from the point reached by this Court
in the said decision.

There is some controversy on the question on Whom the burden of proof lies to establish that the
deserting spouse has just cause or not to leave the matrimonial home. The judgment of this Court
is clear and unambiguous and it throws the burden on the petitioner seeking divorce. This view is
consistent with that expressed in leading judgment of English Courts.

In Pratt v. Pratt(1) the House of Lords considered the said aspect. Lord Macmillan stated, at p.
438, thus:

294
"In my opinion, what is required of a petitioner for divorce on the ground of desertion is proof
that throughout th e whole course of 3 years the respondent [1939] 3 All E.R. 437.

has without cause been in desertion.....................In fulfilling its duty of determining whether,on
the evi- dence, a case of desertion without cause has been proved, the Court ought not, in my
opinion, to leave out of account the attitude of mind of the petitioner. if, on the facts, it appears
that a petitioning husband has made it plain to his deserting wife that he will not receive her
back, or if he has repelled all the advances which she may, have made towards a resumption of
married life, he cannot complain that she has persisted without cause in her desertion".

On the question of just cause, Lord Romer made some pertinent remarks, at p. 443, which are
relevant to the present enquiry. There, as here, though under different circumstances, the
deserting spouse, the wife, after previous correspondence did not call on her husband. In

-that context, Lord Romer observed:

It would, in my opinion, be quite unreasonable to bold that the respondent, guilty though she was
of the serious matrimonial offence of desertion, should be expected to present herself at her
husband's door without any knowledge of how she would be received, 'and therefore at the risk
of being subjected to the indignity of having admission refused by her husband or by one of his
servants............................It could not be expected that she should suddenly make an unheralded
entry into his house."

Though it was necessary, in order to put an end to her de- sertion, for the wife to take some
active step towards re- turning to the matrimonial home, Lord Romer held that she had taken
such steps by writing letters and that the fact that 'she. did not physically appear in the
matrimonial home did not make is any the less a just cause on her part. In Dunn v. Dunn(1),
Denning L.J., as he then was, laid down the scope of burden of proof in such a case, at P-- 823,
thus:

"The legal burden throughout this case is on the husband, as petitioner, to prove that his wife
deserted him without cause. To discharge that burden, he relies on the fact that he asked her to
join him (1) [1948] 2 All E.R. 822.

and she refused. That is a fact from which the court may infer that she deserted him without
cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the
inference of desertion by proving that she had just cause for her refusal ; and indeed, it is usually
wise for her to do so, but there is no legal burden on her to do so. Even if she does not
affirmatively prove just cause, the court has still, at the end of the case, to ask itself : Is the legal
burden discharged? Has the hus- band proved that she deserted him without cause?"

This passage brings out the well known distinction between legal burden and onus of proof.
Legal burden always remains on the petitioner ; and onus of proof shifts and is a continuous
process. But, as the learned Lord points out, the court has to hold on the evidence whether the
legal burden to establish desertion without cause has been established by the petitioner.

295
In Day v. Day(1), the husband petitioned for divorce on the ground that his wife had deserted
him. The wife relied on the fact that the husband committed adultery and that, therefore, the
desertion was not without cause. The Court held that the burden was upon the petitioning
husband to prove that his adultery was not the cause of his wife's desertion and that he had
proved the same, as the facts proved established that she had formed her intention not to resume
cohabitation independently of his adultery. The legal position is stated thus, at p. 853 :

"On the facts of the present case that involves the husband proving affirmatively that the mind of
the wife was not in any way affected by her knowledge of the husband's adultery. Clearly the
burden is a heavy one, and doubtless in many cases it will be one that a petitioner will not be
able to discharge."

In Brewer- v. Brewer(2), the Court of Appeal explained the views expressed by Lord Macmillan
and Lord Romer in Pratt v. Pratt(1). Willmer, L.J. after quoting the observations of Lord
Macmillan in Peatt's case(3), proceeded to state: (1) [1957] 1 All E.R. 848.

(2) [1961] 3 All E.R. 957.

(3) [1939] 2 All E.R. 437.

"This passage, although not necessary for the decision of that case, was expressly approved and
adopted by Lord Romer in Cohen v. Cohen(1), and must, I think, be accepted as authoritative
having regard to the fact that all the other members of the House expressed their concurrence
with Lord Romer."

The case-law here and in England throws the burden of proof on the petitioning spouse to prove
that desertion was without cause.

Another aspect of the question may now be touched upon. The definition of desertion under s. 10
of the Act, the argument proceeds, is much wider than that under the English law or under the
Bombay Act considered by this Court. Emphasis is laid upon the following words in the
explanation to s. 10(1) of the Act :

"includes the willful neglect of the petitioner by the other party to the marriage."

The expression "includes", the argument proceeds, enlarges the scope of the word "desertion",
and takes in by de- finition the conscious neglect on the part of the offending spouse, without the
requisite animus deserendi. This ar- gument, if accepted, would impute an intention to the
Parliament, which was entering the field for the first time, to bring about a revolutionary change
not sanctioned even in a country like England where divorce or separation for desertion had long
been in vogue. We would be attributing to the Parliament an incongruity, for, in the first part of
the explanation it was importing all the salutary restrictions on the right to Judicial separation.
but in the second part it would be releasing the doctrine, to a large extent, of the said restrictions.
By such a construction the legislation would be made to defeat its own purpose. On the other
hand, the history of the doctrine of "desertion" discloses some limitations thereon conceived in
the interests of society and the Parliament by the inclusive definition couched in wide language
could not have intended to remove those limitations. The inclusive definition is only intended to
incorporate therein the doctrine of "constructive desertion" known to English law and the

296
language is designedly made wide to cover the peculiar circumstances of our society. In Rayden
on Divorce, (1) [1940] 2 All. E.R. 331, 335.

7th Edn., the expression "constructive desertion" is defined thus, at p. 155 :

"Desertion is not to be tested by merely ascertaining which party left the matrimonial home first.
If one spouse is forced by the conduct of the other to leave home it may be that the spouse
responsible for the driving out is guilty of desertion. There is no substantial difference between
the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man
who compels his wife by his conduct, with the same intention, to leave him. This is the doctrine
of constructive desertion."

Adverting to the question of animus in the case of con- structive desertion, the learned author
proceeded to obser- ve, at p. 156, thus :

"It is as necessary in cases of constructive desertion to prove both the factum and the animus on
the part of the spouse charged with the offence of desertion as it is in cases of simple desertion.
The practical difference between the two cases lies in the circumstances which will constitute
such proof, for, while the intention to bring the matrimonial consortium to an end exists in both
cases, in simple desertion there is an abandonment, whereas in constructive desertion there is
expulsive conduct."

The ingredients of desertion as well as constructive desertion are the same, namely, animus and
factum, though in one case there is actual abandonment and in the other there is expulsive
conduct. Under certain circumstances the deserted spouse may even stay under the same roof or
even in the same bed-room. In our society, it is well known that in many a home the husband
would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent
of denying her all marital rights, but still the wife, because of social and economic conditions,
may continue to live under the same roof. The words "willful neglect" in the explanation were
certainly designed to cover constructive desertion in the English law. If so, it follows that willful
conduct must satisfy the ingredients of desertion as indicated above. Hence, the appellant could
not take advantage of the inclusive definition unless he established all the ingredients of
constructive desertion, namely, animus, factum and want of just cause.

There is yet another legal contention which may be disposed of before I consider the facts. It is
based on s. 9 of the Act, which reads :

(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."

The contention on behalf of the appellant is that s. 9(2) of the Act affords a dictionary for the
expression "without reasonable cause" and that it shows that reasonable cause in the explanation
297
could only, be that cause which will be a legal ground for the offending spouse to resist the
petition by the other for restitution of conjugal rights. It is further contended that under cl. (2)
thereof such legal ground could only be the legal ground on which there could be judicial
separation or nullity of marriage and, therefore, the reasonable cause in the explanation to s. 10
should also be only such grounds like cruelty etc. There is a fallacy in this argument. An
illustration will bring it out. A husband files an application against the wife for restitution of
conjugal rights under s. 9 of the Act. The wife can plead, inter alia, that the husband is not
entitled to restitution of conjugal rights as lie has deserted her without reasonable cause. Section
9(2) of the Act does not afford any dictionary for ascertaining the meaning. of the expression
"reasonable cause". We have to fall back again for its meaning on the principles laid down by
decided cases and the facts of each case. That apart, s. 9 and s. 10 deal with different subjects-
one with restitution of conjugal rights and the other with judicial separation. We cannot import
the provisions of the one into the other, except in so far as the sections themselves provide for it.
The ex- planation does not expressly or by necessary implication equate reasonable cause with a
legal ground for sustaining a plea against an action for restitution of conjugal rights. Indeed, it is
a limitation on one of such legal grounds. There is an essential distinction between the scope of
the two sections. The Legislature even in socially advanced countries lean,, on the side of
sanctity of marriage ; therefore, under s. 9 of the Act, our Parliament imposes stringent
conditions to non-suit a claim for restitution of conjugal rights. On the same reasoning, under s.
10 of the Act, it does not permit separation of spouses on the ground of desertion except when
the desertion is without reasonable cause. The expression "reasonable cause" must be so
construed as to bring about a union rather than separation. The said expression is more
comprehensive than cruelty and such other causes. It takes in every cause which in a given
situation appears to be reasonable to a Court justifying a spouse to desert the other spouse. This
view is consistent with the English law on the subject. In Halsbury's Laws of England, 3rd Edn.,
Vol. 12, the author says, in para. 484, at p. 257 thus :

"Any matrimonial offence, if proved, is a ground for the other spouse withdrawing from
cohabitation. Further conduct which falls short of a matrimonial offence, that is conduct not
amounting to cruelty or adultery, may excuse desertion."

In Edwards v. Edwards(1) this idea was succinctly brought out. There it was stated that conduct
short of cruelty or other matrimonial offence, might afford cause for desertion. So too, in an
earlier decision in Yeatman v. Yeatman(2) it was held that reasonable cause was not necessarily
a distinct matrimonial offence on which a decree or judicial separation or dissolution of marriage
could be founded. I am, therefore. of the opinion that s. 9 of the Act does not throw any light on
the construction of the expression "without reasonable cause" and that whether there is a
reasonable cause or not in a given case (1) L.R [1950] P. 8.

(2 ) L.R. [1868] 1. P. & D. 489.

shall be decided only on the evidence and the peculiar cir- cumstances of that case.

The result of the said discussion may be stated thus The legal burden is upon the petitioning
spouse to establish by convincing evidence beyond any reasonable doubt that the respondent
abandoned him or her without reasonable cause. The petitioner must also prove that there was
desertion throughout the statutory period and there was no bona fide attempt on the respondent's
part to return to the matrimonial home and that the petitioner did not prevent the other spouse by
his or her action by word or conduct from cohabitation. The expression "willful neglect"
298
included in the section does not introduce a new concept in Indian law unknown to the English
law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not
rigid but elastic and without doing violence to the principles governing it, it can be applied to the
peculiar situations that arise in an Indian society and home. No inspiration could 'be derived
from s. 9 of the Act in order to construe the scope of the expression "without reasonable cause"
and whether there is a reasonable cause or not is a question of fact to be decided on the facts of
each case. I shall now proceed to consider the facts of the case. The main question is whether the
appellant has proved that the respondent deserted him within the meaning of the term as
explained above. To ascertain that fact from a correct perspective it is necessary to notice
broadly the marital life of the couple since their marriage. The appellant is an M.B.,B.S. and a
medical practitioner carrying on his profession in Bombay. He belongs to a well-to-do family,
his father being a businessman. The family is comparatively old-fashioned in habits and customs.
The respondent is the daughter of one Vasanmal, a businessman, who had -branches in
Singapore, Hongkong, Jakarta and Manila. Though he spent most of. his time in foreign
countries in connection with his business, he always left his family in India and he used to visit
his family in India whenever he could conveniently do so. Though the learned counsel for the
appellant attempted to argue that the members of Vasanmal's family, including the respondent,
were leading a fast life, there is no-

thing on the record, except some vague suggestions here and there, to support the said argument.
It may be accepted that the respondent's father is comparatively a richer man than the appellant.
On November 10, 1946, the appellant and the respondent were married at Hyderabad (Sind). On
July 19, 1947, a male child was born to them and was named Ashok. Unfortunately for the
couple, their even course of life was disturbed by the partition of India. In October, 1947, they
had to migrate, as many others did, from Pakistan to India. Though the respondent's father was
maintaining a family house at Lonavla, about 70 miles from Bombay, the members of the
appellant's family including the respondent, went to the Colombo and were staying with the
appellant's mother's brother. In or, about December, 1947, the appellant, along with his mother,
left Ceylon for Bombay leaving the respondent and appellant's sisters in his uncle's house at
Colombo. The respondent's version is that, as her sisters- in-law ill-treated her, she was not
happy there and therefore she had to leave that place, along with her child, in January, 1948, to
her parents' house at Lonavla. At the end of January, 1948, the appellant and his mother went to
Lonavla and brought the respondent to Bombay. At the end of the first week of February, 1948,
the respondent went back to Lonavla and came back to Bombay in or about August or
September, 1948, and was living with the appellant for about 3 months. In or about that time, the
respondent's parents shifted their residence from Lonavla to Poona and settled down there. Poona
is about 100 miles from Bombay. In December, 1948, the respondent visited her parents at Poona
and returned back to Bombay in February, 1949. According to her from February 26, 1954, she
was living with the appellant in his house at Bombay and she a permitted to go and see her
parents ; but according to the a pellant, she was going now and then- to her parents' house. Much
is made of her frequent visits to her parents' home, but it is ignore that the frequent visits were
only made during the difficult days the evacuees were passing through. But the fact remains that
from 1949 for about 4 years she was continuously living with her husband in his house. It is
common case that the couple were not happy in their married life. The husband and wife give
their ver- sions of the reasons for this estrangement. The husband, as P.W. 1, attempts to throw
the blame wholly on the wife He says that the respondent was disrespectful and indifferent to
him, that she was proud and arrogant, that she refused to wear the clothes which were made for
her by his parents on the ground that they were made of inferior stuff, that she was very
disobedient and disrespectful to his parents, that she used to leave for her parents' house very
often and sometimes without informing him, that she had no love or affection for him, that when
299
she was in her parents' house she used to play cards, and drank at the parties given by her father,
that she did not like to have children and that she was rude and insulting in her behaviour
towards him and his parents. In the cross-examination lie admits that lie saw her drinking only
twice or thrice at her father's parties, but none of his friends saw her drinking nor did she drink
from 1947. He further admits that he saw her playing cards without stakes, but he had not seen
personally her playing cards after 1946 or 1947. He admits that the relationship between his
mother and the respondent's parents was not cordial. He describes her acts of disobedience thus:

"On the next day of our marriage, it was customary that she should put on the saree which we got
made for her. We had such a saree already prepared. She refused to put on such a saree saying
that the same was too inferior to be put on by her. She on many oc- casions ordered him to do
certain things for her. For example, on one day I told her that she should not spread her sarees on
the sofa but she should keep the sarees wrapped and keep them in a cupboard. On the next day
the same thing was repeated, namely, that she kept her saree spread on the sofa. I called her and
requested her to wrap it. She asked me as to why I should not do the same. I protested and told
her that I was speaking to her in a polite way and why she should order me to do things,
whereupon she told me that her friends' husbands even do boot-polish and why I should not do
even such trifling things."

A perusal of his evidence discloses that though he is an educated man he belongs to the old,
school and takes offence for the most trivial things which another would ignore. A perusal of his
entire evidence also discloses that he is highly respectful to his parents and that he was particular
that his wife also should be obedient to them and particularly to his mother. Though the learned
counsel for the appellant painted the respondent in his opening address as a highly sophisticated
woman, addicted to all the evils of drink, dance etc., the evidence of the appellant, even if
entirely accepted, shows that she is not highly educated, that she has not been ad. dieted to any
bad habits such as drink, playing cards, smoking etc., and that she was living in the family house
of her husband, though now and then she was going to her parents' house. ID the cross-
examination the appellant also stated that he had to take the respondent in 1953 or 1954 to Dr.
Marfatia, a psychiatrist, for treatment, indicating thereby that was under some nervous or mental
strain.

Now let us see what the respondent says about her life in her husband's house. She says that at
the time of her marriage her father gave a dowry of Rs. 25,000.00 and several presents and gifts,
including clothes worth about Rs. 10,000.00, but her mother-in-law was not satisfied with the
amount of dowry given by her father ; that her parents- in-law would not ordinarily permit her to
visit her parents' house, that whenever such permission was asked for they used to refuse a
number of times, but would allow her to go only once in a way ; that she, was abused for trivial
things, such as when handkerchief'& were missing ; that the treatment of her mother-in-law and
sisters-in-law from the beginning was cruel and when they made complaints to the appellant, he
used to abuse her; that in Ceylon also they ill-treated her; that between 1949 and 1954 she was
allowed to go to her parents' house only on two occasions, that is, once on the wedding of one of
her sisters and the second time on the wedding of her cousin and during those occasions . she
stayed with them only for a few days; that she'" refused permission to go to Poona even when her
uncle died; that her parents-in-law,, not only said many 25-2 S C India/64 dirty things of her but
they did not allow her to speak to her son ; that when her father-in-law scolded her son, he
started weeping and she was scolded for interfering : that this incident happened in 1953 and that
since then her husband ceased to talk with her ; that she was also prevented by her mother-in-law
300
from doing any work for her husband or for her son, that she was also beaten by her husband
sometimes ; that she was not allowed to see her child when he was ill; that in 1951 she heard that
her husband attempted to remarry and even asked her to sign a paper giving her consent for him
to do so that she was made to sleep on a bench in the drawing room till about the year 1952 and
thereafter on the floor as her mother-in-law did not provide her with a bed. Her evidence
discloses that she had no freedom in her husband's house, that she was abused and insulted by
her parents-in-law and sisters-in-law, that she was not given the usual comforts which she
expected in her husband's home, that she was not allowed to look after her husband and her
child, that the husband took the side of his mother whenever there was trouble between her and
her mother-in-law. There may be some exaggeration in this version, but by and large this
evidence fits in what gene- rally happens in an old-fashioned house where a girl with modern
upbringing goes to stay as a daughter-in law of the house. It may therefore be accepted that she
was lead,rig a miserable life in her husband's house and she must have been under a terrible
nervous strain.

What does the father of the respondent, who was painted as villain of the piece, say about this
unfortunate situation in which his daughter was placed? Whatever may be said about him, his
evidence discloses that he is very much attached to his daughter and he attempted to do what an
affectionate father could possibly do in the circumstances. He supports -the evidence given by
his daughter in regard to dowry and the reluctance of her parents-in-law to send her to his house
whenever he requested the them to do so and also he speaks to the complaint made to him by his
daughter about the ill-treatment meted out to her by her in-laws and also the want of cordiality
between his family and the family of the appellant. I have gone through his evidence carefully
He does not impress me as one who was out to wreck the life of his daughter out of pride or
anger, but a loving father who tried his best to make her happy and to reconcile the couple, if
possible. Whenever there was trouble he tried to persuade them to live together and whenever
she was unhappy he tried to take her to his home and give her the necessary warmth of love and
affection.

Neither the mother-in-law nor the father-in-law nor the sisters-in-law were examined in the case.
If the mother in- law had been examined, more details could have elicited, but unfortunately she
was kept back, in my opinion, for obvious reasons.

The said evidence broadly gives the picture of the res- pondent's unhappy life in her husband's
house and the mental strain she was putting up there.

In those circumstances in the month of November, 1953, respondent's father came to India and
was very anxious to take her to his house at Poona and thereafter, with him, to foreign countries
for a short time to enable her to recoup her health. With that object, the father approached the
appellant's family cautiously and through mediators to at their permission. He says, in his
evidence, that after he came to India he met the respondent at her husband's place of residence
and observed that she was very pale, that she had lost weight and appeared to be much worried
and unhappy. He asked the appellant and his parents to allow her to be taken to Poona, but the
permission was not granted. Two or three months thereafter, he again came to Bombay two or
three times and made similar requests, but they were all turned down. On one occasion, the
respondent described to him her miserable condition under her husband's roof and be consoled
her that he would get her the permission to visit him. He requested one Manganmal to intercede
on his behalf with the appellant's father and get his permission to take the respondent to his
house and thereafter abroad for recoupment of health. About a week thereafter, Manganmal told
him that he had seen the appellant's father and made the request on his behalf, but the appellant's
301
father wanted to confer with his wife and so he asked him to see him again a week thereafter. A
week thereafter, he saw the appel-

lant's father and repeated the request. The appellant's father requested him to see him 3 or 4 days
thereafter. He went to him again, when the appellant's father gave the necessary permission. The
witness promised to go to him on February 26, 1954 to fetch his daughter. He went there at 4.30
p.m. on that day and left ,'or Poona by the Deccan Queen at about 5.30 p.m. on the same day. At
the time when he went to appellant's house to fetch the respondent, the appellant's father and
mother were present, but the appellant was not there. The respondent took the permission of her
parents-in-law and accompanied him. This version is natural. It is unthinkable that a man of the
status of respondent's father would carry away his daughter from her husband's house without
taking the permission of her husband or her parents-in-law. It is not likely that the respondent
would have run away from the house of her husband in the absence of her husband and parents
in-law taking away the jewels with her as was suggested on behalf -of the appellant. There is
nothing in the crossexamination worth the name to belie the version given by this witness. It was
the most natural thing any father in the position of the respondent's father would do in the said
circumstances. I do not see any Justification to reject his evidence. The respondent in her
evidence supports the evidence given by her father and, in addition, she says that on February 26,
1954, she took the permission of her husband before leaving the place. She asked him to allow
her to take-her son, but lie refused to give the permission. It is said that while she said that her
husband was in the house, her father said that he was not there. But she clearly says in her
evidence that her husband was in another room and that she went to that room to take his
permission. Obviously, the husband was not willing to face his father-in-law. Manganmal, who
interceded on behalf of the respondent's father with the appellant's father, gives evidence as D.W.
3. He is the Managing Director of Chotirmall & Co., with branches in India and in foreign
countries. He is a friend of the res- pondent's father. He corroborates the evidence of the
respondent's father. He says in his evidence that he went to the appellant's house and asked his
father to allow the respondent to stay with her father while he was in India, as, she had not been
to her father's house for years. In the cross-examination it was suggested that he was not a friend
of the appellant's father, that he, along with others, was a co-trustee with Kanayalal, a sonin-law
of the appellant's father, of Nanikram's trust, and that in the dispute that was raised by
Kanayalal's father, Nanikram, in respect of the subject-matter -of the trust, Kanayala was
supporting his father whereas Manganmal was supporting the trust. He admits that he does not
claim to be a friend of the appellant's father and that there was conflict of views between him and
Kanayalal in respect of the trust, but adds that on that account there was no lack of cordiality
between himself and the appellant's father. He is a respectable witness. He gave straightforward
answers to the questions put to him. He did, not support the respondent's father completely in
that he did not say that he asked for permission for the respondent's father taking the respondent
to foreign countries. Presumably the further request was made by the respondent's father himself
and not by this wit- ness. If he had come to lie in the witness-box, he would have added the
further request also. There is nothing unusual in the respondent's father requisitioning the
services of this gentleman in preference to others more close to the appellant's father, for this
witness is a respectable man and very well known to him and in A position and was also willing,,
to intercede on his behalf. I do not see any reason why the evidence of this witness should be
rejected.

As against this evidence, the appellant says that on February 26, 1954, he was not present when
the respondent left his house, that no one, except the maid-servant was present in the house when
the respondent left the house, that in the evening at about 6 O'clock he discovered that the
respondent had left his house leaving some message with the maid-servant and taking away all
302
her jewels and valuable clothes. He further says that he wrote some letters to his wife soon
thereafter, but he did not receive any reply from her. But this was denied by the respondent; and
there is nothing except his word for this. This is a remarkable story. If his wife had left him when
nobody was present in the house, he would not have taken it so philosophically as he asks us to
believe. On his own showing, he went to Poona only two or three months thereafter. He does not
even tell us what was the message that she left with the maid-servant. The maid-servant was not
examined. Neither his father nor his mother nor his sister were put in the witness-box. When
three witnesses, the respondent, her father and a friend of her father, defi- nitely gave evidence
that the appellant's parents were ap- proached and that they gave their consent, it was the duty of
the appellant to examine them. No doubt some sort of explanation was given that the father was
in Japan, but none in respect of his mother or the maid-servant. When the burden was upon the
appellant to establish desertion, it is strange indeed that he should have thought fit to keep back
the best evidence from the witness- box. When the respondent and her father depose that: they
took the consent of the appellant's parents and if the parents of the appellant did not choose to
come to the witness-box to deny it, a court ordinarily should accept the evidence of the father
and the daughter unless their evidence is ex facie unnatural or -inherently improbable. But that
cannot be said in this case, for what the respondent's father is said to have done is the most
natural in the circumstances. It is said that the City Civil. Judge had seen the res- pondent's
father, Manganmal and the respondent in the witness-box and he did not accent their evidence
and that, therefore, the High Court should not have taken a different view. On this aspect of the
case, after considering the evidence of the witnesses, the High Court says thus "The parents of
the petitioner were available to give evidence in this case. but they have not been examined: nor
has any explanation been given why the maidservant with whom a message was left by the
opponent when she left the house, has not been examined in the case. We are left in this case
with the two dia-

metrically opposite version of the two interested parties:.......... Having regard to these
circumstances, we are of the view that the departure of the opponent from the house of the
petitioner was, if not with his express permission, with his consent and full know- ledge though
such consent was given on account, of Some exasperation on his part."

I entirely agree with this view. It is consistent with the evidence given by the respondent's
witnesses and also with the circumstances of the case and subsequent conduct of the parties. The
appellant and his parents must have given the consent, though not willingly, either because of the
importunities of the respondent's father or because of, the social pressure put oft them through
the intervention of a respectable outsider. But they did not like the respondent's parents and
therefore they did not like the respondent going to their house. It was a permission reluctantly
given and she was afraid that it would be wit& draw.-Li. That is why there was no
correspondence between the couple during all the days she was staying at Poona and she did not
even meet the appellant or his parents when she was boarding the ship at Bombay. I would
therefore, bold that the respondent left her matrimonial home with the permission of the
appellant and his parents for the purpose of staying with her father at Poona and thereafter to
leave for foreign countries for short stay to recoup her health. Strong reliance is placed upon an
incident that is alleged to have taken place in May 1954. According to the appellant, he and his
friend, Dr. Lulla, went to Poona to persuade her to come back to his house, but she definitely
told, them that she would never return to his house. It is said that this incident would show that
she had decided to leave him permanently. In the petition this May incident was not specifically
'mentioned nor was it stated that it afforded a cause of action. There was no mention of the
appellant and his friend Dr. Lulla going to her and her, stating to them that she would never
return to his house. Before the High Court the learned counsel appearing for the appellant did not
303
seek to rely upon this meeting 2nd the reply alleged to have been given by the respondent as
furnishing a cause of action for founding a claim for relief of judicial separation. This incident
was relied upon: only in support of the appellant's case that the respondent, was intransigent
throughout and was unwilling to go back: to the petitioner. Indeed, the learned counsel appears
to admit that the evidence of the appellant and Dr. Lulla was not clear as to what was the precise
question asked and what was the exact answer given by the respondent. It would, therefore, be
seen that this incident did not loom large either in the pleadings or in the arguments before the
High Court. But it became a sheet-anchor of the appellant's case before us. Let me, therefore,
consider this aspect of the case in some detail.

The appellant says in his evidence that he went to Poona along with Dr. Lulla towards the end of
May 1954, that he saw the respondent at Poona and inquired of her to why she left his house
secretly and that she told him that she had decided not to come back to him. This is interested
evidence and is inconsistent with my finding that she left his house with his consent as well as
with the consent of his parents. His evidence is supported by the evidence of Dr. Lulla. But the
respondent contradicts this evidence. She denies the incident altogether. She is also A interested
witness. Dr. Lulla, as D.W.3, says that he went to Poona along with the appellant, that the
appellant tiled to persuade the respondent to come back to him, that thereafter he also tried to
persuade her to come back to the appellant, but she told them both that she had made up her
mind not to go back for ever. He is a doctor with a fairly good practice and a friend of the
appellant. But his cross- examination discloses that he did not ask the respondent why she left
the appellant, that he was with the respondent at Poona only for a few minutes, that he could not
recollect what the appellant told the respondent actually and that she only stated that she was not
prepared to come back to the appellant for ever. It also shows that they went to Poona without
any intimation, that they had decided to meet her alone, that they thought that they could
persuade her in a few minutes' time to come back to the appellant, and that, therefore, when they'
left for Poona they did not make any arrangements for the next day, for they expected to return
back by the midnight train. This evidence is attacked on many grounds. It is said that Dr. Lulla is
a friend of the appellant and, therefore, he went to him in getting rid of his wife as the appellant
was not happy with her. It is pointed out that if this incident had happened, this would have been
mentioned in the earlier correspondence, in the notice issued and in the plaint filed. It is also
argued that his entire evidence was arti- ficial and appears to be improvised for the occasion, for
the way he went about the business appears to be very casual. It is asked whether Dr. Lulla, who
was going on a serious attempt of reconciliation, would go to Poona without the appellant
informing the respondent or her father that they were coming if his intention was to meet her
alone, how did he expect that her parents would not be there when he went? And how did he also
think that the estrangement that was prolonged could have been put an end to in a few minutes?
If he was serious about it as he pretends he was, he would have gone there with preparations for
a stay of one or two days after making necessary arrangements in respect of his professional
work. There is much to be said for this argument. I have come across in my experience highly
respected persons lying, in the witness-box to help a friend or save one from a trouble. But the
City Civil Judge accepted his evidence. The High Court says about his evidence thus:

"The learned trial judge appears to have been considerably impressed by the testimony of Dr.
Lulla. He regarded Dr. Lulla as an independent person who was not likely 'to tell an untruth to
support the case of the petitioner. The learned judge also took the view, having regard to the
contradictory statements made by the opponent in her evidence that the testimony of the
opponent was not reliable. Sitting in appeal it will be difficult or us to ignore the appreciation of
evidence by the learned trial judge. It must, however, be observed that Dr. Lulla was deposing to
304
an incident which took place about three years prior to the date on which he gave evidence, and
he did not claim to remember the exact words in which the conversation took place between the
petitioner and the opponent or between the petitioner and himself. Dr. Jethmqlani, who appears
on behalf of the petitioner, does not seek to rely upon this meeting and the replies alleged to have
been given by the opponent as furnishing a cause of action for founding a claim to relief for
judicial separation. .. .. ...... in the absence of evidence as to what precisely were the questions
put to and the answers given by the opponent, it is difficult to hold, even on the view that there
was in the month of May 1954 a meeting between the petitioner and Dr. Lulla on the one hand
and the opponent on the other as alleged by the petitioner, that the opponent had in unmistakable
terms informed the petitioner and Dr. Lulla that she had no desire to return at any time to the
matrimonial home."

This finding appears to me to be couched in euphemistic terms. Though the learned judges were
not inclined to disturb the finding of the learned trial judge that Dr. Lulla met the respondent
along with the appellant, they were not willing to accept his evidence that she told them that she
would not return to the matrimonial home for ever. I feel a real doubt whether the appellant and
Dr. Lulla met the respondent at all. But let me assume for the purpose of this case, as the High
Court was inclined to assume, that they went there. But Dr. Lulla admits in his evidence that he
did not remember the exact words used by the respondent in speaking to the appellant; if so, he
could not have also remembered the exact words used by her in answering the appellant's
question. Afterall the emphasis is on the solitary word "ever". The witness was speaking to an
incident that took place about 3 years before he gave evidence and in respect of a conversation
that took place for a few minutes. It is not advisable to rely upon his memory in regard to the
words alleged to have been used by the respondent, particularly when he comes to give evidence
on behalf of a friend when the tendency would be to give the necessary twist to a conversion of
which one could not remember the exact words. The High Court as Well as the learned
Advocate, who appeared for the appellant in the High Court, did not, rightly, rely upon the
phraseology used in the alleged conversation between the appellant and the respondent. Even if
the incident had taken place, it fits in with my earlier finding, namely, -that the respondent's
father had taken the permission of the appellant's parents, though given with reluctance. The
appellant might have had second thoughts and intended to go back on the consent and to
persuade the respondent to come back to his home and not leave India. With that intention he
might have taken his friend Dr. Lulla to Poona, where the respondent was living. She might have
refused to return as the appellant was going back on his consent. She must have been obviously
very angry and must have curtly refused to come back. Even if she had used the word "ever"-
which I believe is only a gloss added to her statement intentionally or by lapse of memory-it
must have been said in a huff. If every statement made by a spouse in a huff in a short
conversation with her husband were taken in its face value, many a home would be broken. I
cannot, therefore, give any value to the evidence of Dr. Lulla. I would hold that it is very
doubtful whether this incident had taken place, that even if it did, the evidence given by Dr. Lulla
could not be taken to be a reproduction of the actual words used by the respondent, and that,
even if she had used those words, it was only a statement made in a huff in a short interview and
could not be taken as a final word on the subject as to compel a court to hold that she deserted
her husband without reasonable cause.

Some emphasis is also made on her conduct in not meeting her husband or his.parents when she
came to Bombay to board the ship and also on her not giving her husband's house as the address
in the relevant papers prepared for the journey. It was argued that the place where she was
305
staying at Bombay was very near to that of her husband and it is unthinkable that she would not
have gone there, if she was going abroad with permission, to see her husband or his parents or
her child. This argument misses the real point. Here we are considering the case of a wife who
was ill-treated in her husband's house and who, at the instance of her father and his friend, got
reluctant permission from her husband and parents-in-law and if Dr. Lulla's evidence were true,
the appellant went back on his consent and was trying to prevent her from going with her father.
In such a situation it is impossible to expect an unfortunate woman like the respondent to create
more unpleasantness to herself by going to her husband's house before departure and to take the
risk of spoiling her planned holiday. The fact that her husband's address was not given in the
relevant travel papers could not be attributed to her, for they must have been prepared in usual
course at the instance of the gentleman who was helping them in that regard. If once it was
accepted that she deserted her husband permanently, these circumstances may have relevance,
but once it was conceded that she was going with the permission of her husband, though
unwillingly given, this conduct would fall in a piece with the respondent's case. I would,
therefore, not give much value to such circumstances in the situation in which the respondent
was placed. The respondent left Bombay on July 7, 1954, for the Far East with her father. Much
was made about her leaving India with her father. IF she had eloped with a stranger, no doubt
that would be a different matter. But here a father was taking his daughter to give her a holiday
so that she may improve her health. By taking her away for short time from the oppressive
surroundings which affected her health,I do not see any justification for the comment that she
had deserted her husband. It must also be remembered that the respondent's father was not living
with his family in the Far East. His wife and children have all along been in India. He was taking
the respondent only for a temporary sojourn; and what is wrong in a father taking his daughter
for a holiday in those circumstances ? If he had taken the appellant's or his parents' consent, it
was not suggested that there was anything wrong in her so going. If lie or his daughter did not
take such a consent, it might be an improper or an inadvisable thing to do. But such a conduct in
the case of a wife leaving with her father temporarily to a foreign country as an escape from an
oppressive atmosphere cannot be described as reprehensible even by a Hindu society; much less
can it be treated as a desertion. It was a natural reaction to an extraordinary situation. She might
have known that her conduct would anger her husband, but she would not have thought that it
would be a permanent obstacle in their relationship. Be it as it may, I have already found that she
left with her father with the consent of the appellant and his father, and that even if the appellant
subsequently retracted from his consent, her departure might be only improper, but could not
conceivably amount to legal desertion.

Till now I was considering only the oral evidence. But hereafter we come across unimpeachable
documentary evidence which shows the attitude of the couple to each other. I shall proceed to
consider the documentary evidence on the assumption favourable to the appellant, namely, that
he, along with Dr. Lulla, went to Poona in May 1954, retracted his permission given earlier, and
persuaded her to come back to the matrimonial home, but she refused to do so and left with her
father for foreign Countries.

I am definitely of the view that in -,he circumstances narrated above the exact words used by her
could not be field to have been proved by the vague oral evidence of Dr. Lulla and that, even if
she had expressed herself strongly in a buff, such expression could not in the circumstances

-be considered to be decisive of her determination to leave the matrimonial home for ever. She
left for the Far East on July 7, 1954. Within a fortnight from that date, on July 20, 1954, the
appellant gave a cable to the respondent to the following effect "Extremely surprised at your

306
suddenly secretly leaving India without my knowledge and consent return immediately first
plane."

On July 22/23, 1954, as soon as the respondent received the cable from the appellant, she gave a
cable in reply thus "Returning within few months".

On July 24, 1954, the appellant gave another cable to the respondent to the following effect :

"You must return immediately."

Pausing here for a moment, let me recapitulate the position. If the respondent definitely told the
appellant and Dr. Lulla that she bad given him up and that she would not return to the
matrimonial home, why did the appellant send a cable telling her that he was surprised at her
secretly leaving India and asking her to return immediately? And why did she reply that she
would return in a few months?. The cable given by the appellant is more consistent with the fact
that neither of them understood that she had left him for ever. Indeed, the cable reflected his
anger on her departure along with her father, because, though permission was given earlier, he
did not like her to go. Whatever ambiguity there may be, her immediate reply was inconsistent
with her determination to leave him for ever, unless we assume, as we are asked to do, that the
cable 'was a link in the chain of the plan conceived by her and her father to resist an action that
might be taken by the. husband in a court of law. In July 1954 what was the action which the
appellant could have taken and what was the defence, if such an action was taken, that could be
sustained on the basis of this cable? At that time the Act was not passed. The Act was passed in
1955 and came into force on May 18, 1955. Therefore, the only action which the husband could
have taken 'Linder the law, as it then stood, was to file a suit for restitution of conjugal rights,
and this cable could not possibly be a defence against such an action. If she wanted to join him
again she could have submitted to the decree. The Bombay Hindu Divorce Act, 1947, may not
have any extra-territorial operation. Even if it has, four years of desertion had to run out before
she could be divorced; and there was no particular urgency for her to create any eviedence at that
stage. To may this cable is destructive of tile case of the appellant that she left him for ever. His
reply cable also is only consistent with the fact that there was no break between them.

Now, I come to a letter dated August 2, 1954, over which there is some controversy, the
appellant alleging that it was a forged one and the respondent stating that it was ,a draft of the
letter she sent to her husband. It reads " My dear husband, Darling I received your two telegrams,
copies of which enclosed herewith.

I immediately cabled you that I shall be.

returning within few months, however I really feel surprised why you want me return to Bombay
by first plane without any reason.

Dear I was particularly pained to read that I have suddenly and secretely left the place without
your consent. What has prompted you to write this I really don't understand. Dear how came this
change. You know I was not keeping good health and considerably gone down in spirit and
weight for reasons which I (10 not like to discuss here since you are fully aware of it. It was you
who suggested that I should go over and stay at my father's place and it was at your suggestion
that I did so.

307
You were fully aware that I was accompanying my father to Singapore for a few months for a
change and you gave consent As soon as I feel better I shall return to Bombay.

1 hope yourself, Ashok and all the other family members are 0. K. Give my loves to Ashok and
Best regards to Mother and Father. Yours forever, Meena."

The respondent, in her examination-in-chief, says:-

"I had written a letter dated 2nd August 1954 to my husband, a copy whereof has been preserved
by me, I produce the copy of the letter dated 2nd August 1954."

That was not objected to and the copy of the letter was put in and marked as Ex. No. 4. In the
cross-examination there is some confusion, but she broadly stated that her father dictated to her
the letter, that the said letter was typed, that she copied from that typed letter and that Ex. 4 is
that typed letter. The father in his cross-examination, deposes that the respondent had written a
letter dated August 2, 1954, to the appellant, that he had a draft of that letter and the same was
written after consulting him. The appellant denied that he received that letter. The learned City
Civil Judge found thus :-

"I am not prepared to hold that the copy letter Ex. 4 was fabricated subsequently, because there
are references to the letter dated 2-8-1954 in subsequent letters addressed by the respondent to
the petitioner."

But he held that the appellant did not receive such a letter. The trial Court held that the letter not
being a copy of what was written the respondent to the appellant, it could not be regarded is a
secondary evidence of the con- tents of the letter. But the High Court pointed out that it was not
the case of the respondent that it was a secondary evidence of the contents of the letter written by
her, but her case was that the text of Ex. 4 and the letter written to the appellant was the same;
and in support of her case she produced the letter from which she had copied out the letter she
had addressed to the appellant. Both the Courts, therefore, held that Ex. 4 was the typed letter
from which the respondent drafted her letter to her husband. Undoubtedly, Ex. 4 cannot be a
secondary evidence of the letter written by the respondent to her husband, but it certainly
corroborates her oral evidence that she wrote a letter with similar recitals contained in Ex. 4 to
her hus-

band on the date Ex. 4 bears. As pointed out by the learned City Civil Judge as well as by the
High Court, the subsequent letters written by her clearly demonstrate that Ex. 4 could not have
been fabricated subsequently and a letter must have been written by her on August 2, 1954. In
view of the concurrent findings of fact, I do not think it is necessary to consider the evidence
over again. I accept the concurrent findings that a letter dated August 2, 1954, with contents
similiar to those in Ex. 4 was written by the respondent to her husband.

It is contended that the said letter was written at the instance of the father and on his dictation to
furnish evidence in an action that might be brought by the appellant against there spondent. Let
me first take the comment,VI . Z., would a wife write a letter to her husband in consul- tation
with her father? Ordinarily in the case of married couples it is true that a wife would not write
letters to her husband after consulting her father. But the circumstances under which the
respondent wrote letter were not ordinary ones. Here, there was trouble between the husband and
wife. The husband, according to the respondent, gave his consent, though reluctantly, for her to
308
leave with her father to the Far East, but soon there-after gave two cables asking her to return
immediately. Naturally she would tell that fact to her father and seek his advice in the matter of-
replying to her husband. There is nothing wrong in her father helping her to send a suitable reply,
so that the husband may not be offended. The second comment, namely, that this 'letter was
intended to be a shield against a possible action by the appellant, is devoid of merits. At the time
the letter was written the Act had not come into force and this letter could not have been an
answer to a possible action the husband might take for restitution of conjugal rights. There was
no particular urgency for her to create evidence on that date against a possible action under the
Bombay Act, even if it applied to her. This letter demonstrates beyond any reasonable doubt that
the wife did not desert her husband with the requisite animus, but, on the other hand, shows her
willingness to go over to Bombay as soon as she regained her health. To this letter no reply was
sent by the appellant and he says in his evidence that he did not receive the said letter. It is very
difficult to believe Ms statement. He is obviously denying the receipt of this .letter a,,; it
establishes that she had not the animus to desert him. On February 24, 1955, he again gave a
cable in the following terms --

"Since your secret departure you not replying my telegrams letters myself shocked you
wandering different countries leading reckless life spoiling my reputation your most disgraceful
behaviour ruining my life."

This cable contains incorrect statements. Whether he received the letter dated August 2, 1954, or
not, admittedly he had received the cable given by her. I have already held that he must have
received the letter dated August 2, 1954. He imputes to her in this cable reckless life and
disgraceful behaviour. Where did he get this information that she was leading a bad life? In his
evidence he does not say that she was leading any disgraceful life. There is nothing on the record
to show that the respondent was leading a bad life, and indeed the appellant admits that she was
not even leading a fast one, she never danced, played cards or drank, at any rate, according to the
appellant, from the year 1947. This cable must have irritated any respectable woman. Yet on
February 26, 1955, she gave the following cable :-.

"Your allegation,% in your cable dated twenty fourth not correct cannot understand your attitude
stop I have departed with your knowledge with my father because of falling health due to reasons
you are well aware stop keeping quiet life with my parents stop have not received your letter
only telegrams which have been replied by cable and letter."

This reply is in subdued terms and it shows her respectable attitude towards the appellant inspite
of his provocation. Therein she denies his wild accusations and restates that she went with her
father with his consent and that she had replied to Ms cables by cables as well as by letter. On
March 4, 1955, the appellant gave another cable to her- charging her with fabricating false
stories. On March 3, 1955, before the respondent received the above cable, she wrote a letter to
the appellant giving a detailed reply to his cables. Therein she denied that she was leading any
reck-

26-2 S.C. India/64 less life and told him that she was either with her father or uncle and also that
she did not receive any letters from him. Then she proceeded to state :-

You know darling I being away from the people who despise me, I have improved my health
considerably, I wish you could come and meet me her outside that suspicious atmosphere and

309
you will know the real pleasure. I am very lonely without you and my son Ashok who is always
with me in my sleep. I long to see both of you and therefore I beg to come out here.. Please do
come and do not disappoint me. You know in your heart that I love you so much. This trip
outside India will make you good and we shall have a very happy life. You are working so hard
for your parents and never think of me and your health which as I know is deteriorating and I
also know that you are not happy. Darling, I assure you that this change for few months will
improve your health considerably. You need good rest to think on all your problems of daily life
which you can do only along and outside the influence of the people who are around you. I hope
you will understand and at least come out here for a change-for a short period. I shall do what
you want me to do, but please, darling, do come; Please give my Charanawandana to father and
mother and love to Ashok."

This letter is criticized on the ground that it was another attempt to create evidence at the
instance of her father and also on the ground that she asked her husband to come away from his
parents. To me this letter appears to be an honest attempt on the part of the wife to reconcile with
her husband. It mentions his troubles and requests him to come over the East not for any
permanent stay but only as a temporary sojourn to recoup his health and to enjoy a holiday along
with her. As I have already stated, by that time the Act was not passed and therefore this letter
could not have been written to set up any defence against any possible action by the husband. I
find it very difficult to see any sinister motive in this well meant reply to her husband, and
particularly after his cable attributing to her reckless life. After dispatching this letter she
received a cable dated March 4, 1955, wherein the appellant attributed to her the conduct of
fabricating false stories. To that cable she sent a reply cable on March 10, 1955, denying the said
allegation and telling him that somebody was wrecking their lives and asking him to come over
to Hongkong. On April 2, 1955, the appellant wrote a long letter to the respondent in reply to her
letter dated March 3, 1955. Therein he chastised her for making insinuations against his parents,
who had done much for her welfare and happiness. Emphasizing upon the word "pleasure" in her
letter dated March 3, 1955, he proceeded to state :-

"'Pleasure'! that, indeed, is the crux of the whole problem. It is your perverted funny notions of
pleasure giving vent to your past and present associations, both in India and abroad, that are the
root cause of all your evil and irrational deeds."

Pursuing the same idea, he observed:-

"Just remember my efforts all these years to improve you and make you a happy and contented
wife. It is a wonder that you find pleasure in leaving home, leaving your husband, wandering
from country to country, leading reckless life under the guise of being in the company of your
relations and uncles whom you find readily available at every port. And you have gone so far in
this direction, that you find yourself unable to break your past links and get out of the muddle
created by you and seek pleasure and happiness in your own home by being a faithful and
devoted wife."

He did not stop with that, but proceeded to state "....you have proceeded to Hongkong and other
places, in defiance of my clear instruction to return And, in order to cloak all these evil things
you are now inventing dirty excuses, evidently meant for the consumption of the outside world
whom you want to fool, so that you may be able to justify your disgraceful conduct and continue
to live your life of "pleasure" without let or hindrance."
310
What is more, he told her that in her letters she had fabricated false and malicious stories to
cover up her outrageous conduct for misleading the outside world. He finally ended with the
following words expressing his determination to ignore her further correspondence:-

"However, if you still choose to fling further filth in my face by writing to me such letters and
telegrams, I shall have no choice but to ignore and make no reply to the same. Inspite of all my
efforts, you have completely deserted me and chosen the path of pleasure and per-version at any
cost. You are only looking for same cloak to cover your guilt and continue to live your life of
degradation with impunity. I refuse to furnish you with that cloak and I refuse to be drawn in
your game."

There is considerable argument on the import of this letter. On behalf of the appellant it is
contented that the contents of this letter were nothing more than an emotional outburst of a
deserted husband and that the words used therein should not be understood literally. It is argued
on behalf of the respondent that this letter did not mince matters in attributing infidelity and
unchastity to the respondent and it communicated a final determination on his part not to have
anything to do with her. The former argument was accepted by the City Civil Court, but the latter
contention had the approval of the High Court. Shah, J., after reading the relevant portions of the
document, came to the following conclusion :-

Whatever may be the protestations made by the petitioner in his evidence before the Court, it is
impossible to accede to the contention of Mr. Jethmalani that his letter was merely the
outpouring of an anguished heart. The letter in no unmistakable terms charges the opponent with
infidelity not occasional but a persistent and chosen life of infidelity-and also charges with
inventing a scheme whereby she may be able to live that life of infidelity under an appearance of
being respectfuly married. If after this letter the opponent was unwilling to carry out the
petitioner's direction and to forthwith go and live with him, in our judgment, no fault can be
found with her."

Deasi, J., in his separate judgment wholly agreed with Shah, J. Theappellant is a graduate and it
cannot be said that he does not know English. The terms of the letter indicate that his standard of
English is rather high and he has sufficient vocabulary at Ms command. It is not necessary to
cover the ground overagain, as I entirely agree with the construction laced upon that letter by
Shah and Deasi, JJ. The expressions "outrageous conduct" reckless life", "wild ventures",
disgustful conduct", "life of plea- sure", "past links", "relations readily available at every port"
and such others found in the letter leave no room to doubt that the said expressions were
intended to impute an immoral and dissipated life to her. Whether he used those words really
believeing that. she was such a bad woman or whether he used the wild language because he was
angry that she went with her father need not be speculated upon. What matters is that he
designedly couched his letter without leaving any room for doubt in clear and precise
phraseology and told her that she was a bad woman and, therefore, he had nothing more to do
with her. To such an outrageous letter, how did the respondent react? She must have been
extremely offended as any self-respecting woman would be. But she controlled herself and
replied to him by letter dated April 12, 1955 in a subdued and dignified manner. After repeating
that the appellant and his parents gave her consent to leave with her father, she again repeated
that she left with her father to improve her health. She told him that her health improved a little
and that she would return to him and to her son after sometime. Adverting to his fulminations in
his letter she said :
311
"I find it unnecessary to reply to the other unfounded accusations contained in your letter
because I know and I am sure that the basis of the same are your hallucinations, of what I am not.
I deny your charges all over again and you know that they are not true. I believe that the best
way is to ignore them since they are not based on truth."

She ended her letter thus :

"Please do not indulge in misgivings. As soon as my health has completely improved, I shall of
course, come back home to you and to our son. "

This letter shows that she was very much offended and she was also sorry. She told him in mild
words that all his accusations were false and requested him not to indulge in such things. She
promised to come as soon as her health improved. Here the arguments advanced by learned
counsel for the appellant may be noticed.

Firstly, the usual argument, namely, that this letter was written to the dictation of her father as a
shield against a possible action by the appellant, is repeated ; and second- ly, this letter indicates
that the false accusations made by her husband did not so operate on her mind as to induce her to
give up her idea of coming back to him. The first argument calls for the same answer, which I
have given in the context of other correspondence. There is nothing wrong in the respondent
consulting her father, who any day was more affectionate to her than the appellant could possibly
have been. There is no point in the second contention. This letter clearly shows that she was
highly offended by the false accusations ; but she replied in a dignified manner asking him
neither to make nor to believe such accusations. She should be unusual woman if she was not
offended by this letter. This reply reflects more her self- control than her indifference or
insensitiveness. This letter, read along with the letter written by the appellant on April 2, 1955,
demonstrates that she was always ready and willing to come back to him inspite of his
accusations. Some comment is made on the basis of the answers she gave in her evidence in
regard to the manner she got the contents explained to her. Those answers were given in the
stress of cross-examination. Those could not possibly detract from the admitted facts that she
received the said letter and gave her reply. The letter and her answers speak for themselves. The
ingenuity of the cross-examining counsel could not add to or detract from either. So far as the
letters go, they proved beyond reasonable doubt that however inadvisable it may be for the
respondent to go to the Far East with her father, she had not the least intention of leaving her
husband permanently. She was always ready and willing to go back to her husband.

On April 8, 1956, the respondent returned to India. The appellant's complaint is that she did not
inform him that she was coming and that she did not come to his house. The contention on behalf
of the respondent is that after she received the letter dated April 2, 1955, she was highly offended
and that, therefore, she expected some step on the part of her husband to meet her or send
somebody to take her to his home. In her evidence she says that after she arrived in India, her
father spoke to two or three persons for rapprochement and one of them was Kishinchand of
Messers. J. Kimatrai and Kundanmal and that her father told her that Kishinchand had a talk with
the appellant, but the latter refused to take her back. She adds that after her return no efforts were
made either by her husband or on his behalf or by his parents to call her back to his house and
she thought that somebody would be sent by her husband to fetch her from Poona to Bombay
according to the custom. The appellant admits in his evidence that sometime in the month of
May or June 1955 he came to know that the Tespondent had returned to India. Assuming that he
was speaking the truth, it is clear from the evidence that he knew of her return about a month
312
after she returned, but presumably he was standing on his rights and prestige and did not move in
the matter. It is suggested to her that instead of going to her husband's house, in April 1956 she
went to Kashmir for a holiday. She admits that she went, but explains that her father's brother's
children had holidays and as they proceeded to Kashmir, she also accompanied them. I do not
see any bearing of this Kashmir trip on the question of desertion. If she was waiting for an
invitation to go to her husband's place there is nothing wrong in her accompanying the children
to Kashmir. The respondent's father says that about 2 months after their arrival in India, he
waited for an invitation from the appellant, but as he did not move in the matter, he met one or
two friends of his to bring about a rapprochement between the couple, but they could not do
anything in the matter. There is nothing unnatural in the father making the said attempts to bring
about re- conciliation between the couple. There is no reason to reject his evidence in this regard.
I shall assume that no mediators were sent by the respondent's father to, bring about a
rapprochement between the couple. Even so, after the letter dated April 2, 1955 the husband,
who knew that the respondent had come to India, should have taken some steps directly or
indirectly to induce her to come to his house. If he stood on his prestige, the respondent could not
be blamed, if after the rebuffs she received and the adment attitude of the appellant
communicated to her in the said letter, she did not take the first step. In this context another
circumstance may also be noticed. The respondent and also her father say that in November
1955, a sister of the appellant was married but no invitation was sent to the respondent. The
respondent says that this fact also made her to apprehend that she would not be received if she
straightaway went to the appellant's house. In the circumstances if she did not directly on landing
in India go to her husband's house but waited for an invitation from him, I cannot say that her
attitude was either unreasonable or that it should be attributed to her final determination to desert
her husband. On this aspect of the case, Shah, J., observed in his judgment :

"The conduct of the opponent in not meeting her son after she returned to India may appear to be
unnatural, but, if after receiving a highly offensive letter from the petitioner, she did not take an
initiative to return to the matrimonial home and waited for some invitation from, or from some
amends on the part of, the petitioner, that conduct may not be regarded as improbable or
justifying an' inference that she was seeking to continue the state of desertion which had
previously started."

I am in entire agreement with these observations. On the other hand the conduct of the appellant
is telltale and reflects his determination to discard her. According to him he came to know that
the respondent came to India in April or May 1956, but a few days thereafter instead of inviting
her to come, he went to a lawyer for consultation and thereafter filed the petition for judicial
separation in September 1956. It is manifest that he was waiting for the statutory time to run out
and soon thereafter he rushed to the Court. The respondent, who obviously did not know the
passing of the Act, fell into his trap.

Pausing here, let me summarize the facts. The respondent belongs to a fairly rich family. She
must have been brought up in comfort and with love and affection. She was not highly educated ;
she has read, we are told, upto sixth standard. She was married to the appellant, who belongs to a
well-to-do family. The appellant is an M.B.B.S. and has been carrying on the profession of a
doctor in Bombay. After the marriage, the respondent came to live in the joint family house of
the appellant in 1947. There were misunderstanding between the parents of the respondent and
the appellant and the latter's sisters. The respondent was ill-treated, insulted and was not even
allowed to look after her only child. The husband, for one reason or other, either because of his
respect for his parents or because of his weakness or because of both, though at the beginning he
313
was affectionate to his wife, was not able to stand up for her and later on he fell in line with his
parents and sisters and began to ill-treat her. Though in the earlier years she was allowed to go to
her parents' house now and then, later on the appellant and his parents refused her permission to
go to her parents' house or allowed her to do so once in a while with great reluctance, when her
father, on one of his infrequent visits, was in India. She was not even permitted to go when her
uncle died. The appellant also contemplated a second marriage, but, for one reason or other, it
did not come off. By the year 1954 she was in a nervous strain and necessarily that must have
affected her health. Her father, who came to India at the end of 1953, heard her complaints and
saw her physical and mental condition. He did what a loving father should do in the
circumstances. Giving up the ideas of false prestige, he approached the parents of the appellant
directly and through a friend and persuaded them to permit the respondent to go to his house and
thereafter to the Far East with him for a short stay to recoup her health. The respondent also took
the permission of her husband. After some time, the husband I am assuming that his version of
the visit along with Dr. Lulla, to Poona was true-changed his mind and asked her to come back,
but she refused to come back. From her standpoint she obviously did not like her husband going
back on his word and disturbing her planned holiday, to which she was looking forward. From
the standpoint of the husband, he was angry because as, a Hindu husband he expected his wife to
obey him whether his demand was reasonable or not. The wife, perhaps' did not tell him the day
when she would be leaving with her father to the Far East. She must have been afraid that he
would prevent her somehow from going abroad. That explains her conduct in not seeing him or
his parents at Bombay before she boarded the ship. The subsequent correspondence shows that
the appellant was telling her from his commanding position that she should give up her holiday
and come back to him immediately and she, on her part, was persuading him in a subdued tone to
permit her to stay for a few months and promising to come back thereafter. The letter dated April
2, 1955, was an unexpected and unmerited blow to her. Therein she was charged with unchastity
and leading a fast and reckless life. Even a Hindu wife would be enraged and insulted by such
dastardly conduct on the part of her husband. Even so she sent a reply couched in a dignified and
controlled language denying his allegations and stating that she would return in a few months.
She was not even invited by the appellant when his sister was married in November 1955. She
therefore, came back to India only in April 1956. In view of the serious allegations made by the
appellant in his letter dated April 2, 1954, and in view of his determined attitude disclosed
therein, she naturally and properly expected that the husband would invite her or send somebody
to take her back to his home. Instead of doing so, though he knew that the respondent had come
to India, he did not make any attempt to invite her or send a relation to bring her to his home as
he used to do on previous occasions when she went to her father's house. By that time as the Act
came into force, he found his opportunity for which he was waiting and took advantage of the
situation. As the statutory period of two years had expired from the date she left India, he rushed
to the Court. On these facts, I have no doubt that the appellant failed to establish that the
respondent deserted him without any reasonable cause. Even if she deserted him within the
meaning of s. 10 of the Act, I would hold that by writing the letter dated April 2, 1955, she
ceased to be in desertion from that date. A fair reading of that letter, read in the context of her
offer to return within a few months, shows beyond any doubt that he closed the door for her
return long before the statutory period had expired. When the respondent wrote to the appellant
telling him that she would come in a few months, he wrote to her saying that she was leading an
immoral life and that he would no longer be "drawn into her game." Even after that letter, she
wrote back denying his charges and promising to come as soon as her health improved. I have no
doubt that, at any rate from April 2, 1955, the desertion, if any, on the part of the respondent,
came to an end and from that date the appellant was guilty of desertion.

314
For the aforesaid reasons, I agree with the conclusion arrived at by the High Court. The appeal
deserves to be dismissed and I accordingly dismiss it with costs.

ORDER OF COURT In accordance with the majority opinion, the appeal is allowed with costs
here and in the High Court.

Supreme Court of India

V. Bhagat vs D. Bhagat on 19 November, 1993

Equivalent citations: 1994 AIR 710, 1994 SCC (1) 337

Bench: Jeevan Reddy, B.P. (J)

BENCH:
JEEVAN REDDY, B.P. (J)
KULDIP SINGH (J)

JUDGMENT:

The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- This is an unusual case
calling for an unusual solution. The husband sued for divorce on the ground that the wife is
guilty of adulterous course of life. The wife not only denied the allegation she attributed the
allegation to lack of mental equilibrium of the husband. The husband then amended his petition;
he alleged a new ground for divorce viz., mental cruelty. According to him, the allegations made
in the written statement per se constitute cruelty which entitle him straight away to a divorce
without going into the original allegation of adultery. He is also relying upon certain questions
put to him in cross-examination by the counsel for the respondent and the said counsel's
explanatory statement made in that connection. We may elaborate.

2.The petitioner-applicant, Shri V. Bhagat is an Advocate practicing in this Court and Delhi High
Court. He is now aged about 55 years. The respondent wife is working at present as the Vice-
President of ITDC, a Public Sector Corporation. She is aged about 50 years. They were married
in the year 1966. They have two grown-up children now a son and a daughter. The son is a
doctor while the daughter holds an MBA degree and is working with an American Company in
California.

3.The respondent was working in a Television Company at the time of her marriage. After the
birth of a child she left the job in August 1967. The respondent started working again from the
year 1972 onwards. To start with she was employed in a Travel Agency. Somewhere around
1978-79, the petitioner began suspecting her of infidelity. According to him, when he questioned
the respondent of her adulterous behaviour, she admitted the same and asked to be pardoned. The
wife denies this. She says, she never made any such admission and that the allegation is a totally
false one. From 1980 onwards the petitioner was making attempts to obtain a divorce by consent.
The respondent was not willing. On May 28, 1985, he instituted the present petition for divorce
in the District Court, Delhi. The divorce petition runs into more than 160 paragraphs. The main
ground is adultery. According to the husband, the wife is an incorrigible adulteress. The
315
respondent flied the written statement denying the allegations. The written statement, it anything,
is even lengthier and more voluminous than the divorce petition.

She has denied the allegation in toto. According to her, the husband is like Othello a
pathologically suspicious character.

4.On February 5, 1986, the petition for divorce was withdrawn and transferred to the High Court
of Delhi. It was assigned to Justice H.C. Goel. The learned Judge struck out a large number of
paragraphs from the petition for divorce. Against the order of the learned Judge, the petitioner
approached this Court by way of an appeal which was allowed on February 19, 1987. On that
occasion, this Court directed the learned Chief Justice of the Delhi High Court to nominate a
learned Judge to take up the divorce petition and dispose it of as expeditiously as possible. It was
directed that the matter may be heard on day-to-day basis as far as possible.

5.In May 1987, the petitioner filed an interlocutory application before the High Court for passing
a decree of divorce on the basis of the averments made by the respondent in her written
statement/counter. According to him, those allegations amounted to cruelty against him and
furnished adequate grounds for passing a decree of divorce. He then filed an application in this
Court to withdraw the said interlocutory application to the file of this Court and grant the relief
prayed for by him. This Court refused to do so. The interlocutory application filed by him was
dismissed by the High Court. Thereafter, he amended his petition for divorce and again filed
another interlocutory application for granting divorce on the basis of the averments made by the
respondent in her written statement. This application too was dismissed by the High Court. It is
stated that the special leave petition filed against the same was also dismissed by this Court. The
trial is in progress now. Petitioner's evidence is over and the wife's statement is being recorded.
At this stage, the present application I.A. No. 1 of 1993 is filed in Civil Appeal No. 424 of 1987
(which was disposed of on February 19, 1987). The prayer in the application is to give
appropriate directions for speedy disposal of the divorce petition. In this application the
petitioner has made the following averments: the petition for divorce is pending over the last 8
years. The respondent has indulged in dilatory tactics to protract the litigation. The respondent
spent more than 11 months in cross-examining the petitioner alone (February 19, 1992 to
January 1993). While the examination-in-chief is mere 30 pages, the cross-examination runs into
more than 150 pages most of it irrelevant and unnecessary. The trial Judges are unable to stop the
vexatious cross-examination by the counsel for the respondent. The repeated directions from this
Court to dispose of the divorce petition as expeditiously as possible and on day-to-day basis did
not have the desired effect. As many as five learned Judges of the High Court have tried this
matter, but still it is at the stage of recording of evidence. The evidence of the respondent wife is
yet to be completed. As a matter of fact, on May 1, 1991, this Court was constrained to observe:
"We are inclined to agree with the counsel for the petitioner that the directions have not been
followed and the matter has unnecessarily been protracting. We request the learned Chief Justice
of the High Court to personally look into the matter and allot the case to a learned Judge on the
appellate side who can deal with the matter day-to-day and have it disposed of within a
reasonable time, say, within three to four months from today."

The petitioner complains that even though a period of more than 28 months has elapsed since the
said order, the matter is still at the stage of trial.

6.In her counter filed to this application, the respondent stated that she is in no way responsible
for the delay in disposal of the divorce petition and that in fact the petitioner himself is
responsible for the delay. She submitted that almost every order passed by the Delhi High Court
316
was challenged by him by way of special leave petition in this Court and that he has also been
making allegations against the learned Judges trying the petition as and when they passed orders
unfavourable to him.

7.In this application (I.A. No. 1 of 1993), this Court directed on May 3, 1993, both the parties to
be present in person in the Court with a view to explore the possibility of a settlement. On the
next date, i.e. May 7, 1993, the respondent was not present. The matter was adjourned to July 19,
1993. On July 19, 1993, the parties were heard for some time and the Court suggested to the
parties to find a via media to settle the matter. The parties sought for a short adjournment. The
matter was adjourned to August 6, 1993. On 6th August, the matter was again adjourned to 16th
August on which date we were told that the parties could not arrive at any settlement, whereupon
the arguments of the counsel for the parties were heard. In the background of the orders of this
Court made in this IA, referred to above, learned counsel for the petitioner reiterated his plea to
grant a divorce on the ground of cruelty evidenced by the averments in her counter and the
questions put to him in the cross-examination. Counsel submitted that the marriage between the
parties has broken down irretrievably. Having regard to the nature of allegations and counter-
allegations made by the parties against each other, there is hardly any room for their coming
together. The petitioner has been trying to obtain divorce right from the year 1980. For five years
he tried to get it by consent, failing which he approached the Court. Eight years have passed by
and in spite of the repeated orders of this Court, even the trial is not yet over. The petitioner is
now 55 years old. A good part of the lives of both the parties has been spent in rancour and
litigation. Dehors the allegations of adultery originally made in the petition for divorce, the
petitioner is entitled to divorce on the basis of the additional ground put in by way of amendment
viz., cruelty mental cruelty by wife. The averments made in her counter and the questions put by
her counsel in the cross-examination of the petitioner do constitute clear acts of cruelty. In view
of the said averments/questions, no further material is necessary to establish the said additional
ground. In her written statement, the respondent has alleged that the petitioner is "suffering from
mental hallucination" that his is a "morbid mind for which he needs expert psychiatric treatment"
and further that "the petitioner is suffering from paranoid disorder. He needs expert
psychological treatment.... He is incoherent in his thinking.... The petitioner is a mental patient.
The petitioner needs treatment by a psychiatrist to whom he was directed by his own sister.... He
is a patient and needs treatment and restoration of normal mental health.... The petitioner needs
psychological treatment to make him act a normal person" and so on and so forth. In the cross-
examination of the petitioner, the Senior Advocate appearing for the respondent wife put several
questions suggesting that the petitioner and the several members of his family including his
grandfather are lunatics and that a streak of insanity is running in the entire family. When he
protested against the said questions, the learned Senior Advocate made the following statement
in the Court "all of your (petitioner's) family including your grandfather and others are lunatics
with streaks of insanity running in the entire family; this is the respondent's case; and that is why
these questions have been asked." The said questions were put and the said statement was made
by her Advocate at the instructions of the respondent. Notwithstanding the dismissal of a similar
application by the Delhi High Court and the dismissal of a special leave petition there against by
this Court, this is a fit and proper case and this is the most appropriate stage at which the
petitioner should be granted divorce on the ground of cruelty. The situation has become
intolerable, says the counsel.

8.The learned counsel for the respondent, on the other hand, reiterated his submission that the
respondent was not responsible for the delay; that in fact the petitioner has himself been delaying
the proceedings and that the questions put to him in cross-examination and the defence taken in
the written statement are merely the reactions of the wife to unjustified and unwarranted
317
aspersions cast upon her character. The respondent has only been trying to explain that the
several serious allegations levelled against her are the products of a sick mind and are mere
figments of his imagination. She submitted that her children and even the sisters and mother of
the petitioner are siding her in this dispute and that the petitioner alone, alienated from his entire
family, is persecuting her. It is submitted that she is only trying to defend her honour, self-
respect and standing in society. It is pointed out that she is holding a fairly high office in a Public
Sector Corporation and it is her duty to herself, her children and to the families of her husband
and herself to disprove the unfounded allegations levelled against her. She has submitted that she
is not agreeable to divorce on any ground whatsoever and that she is always prepared to live with
the petitioner. It is only the petitioner who is keeping himself away from her company and has
confined himself to one room, whereas she, her children and her mother-in-law live in the house
as usual.

9.It is said that marriages are made in heaven, that may be so, but this one has turned into a hell
for sure. The allegations and the counter allegations are indicative of the intense hatred and
rancour between the parties. Any reconciliation is out of question. The question before us is what
in all the facts and circumstances of the case, should we do? Three courses are open. First is to
look to the prayer in the application and reject it in view of two earlier directions to the same
effect. Second, to make another request (third one) to the High Court to dispose of the matter
expeditiously and third, to explore whether any solution can be found to the predicament in
which the parties are now placed. So far as the first two alternatives are concerned, it may be
noted, there have been two such directions by this Court earlier, one in the year 1987 and the
other in the year 1991. The advisability of a third such direction request is open to question. If
two such requests/directions had no effect, it is doubtful that a third direction would yield any
better result. It may be an exercise in futility besides being inadvisable. In the facts and
circumstances of this case, we are inclined to explore the third alternative.

10.That this is a rather unusual case can hardly be disputed. The divorce petition has been
pending for more than 8 years. With a view to expedite its disposal it was transferred from the
District Court to the High Court. This Court repeatedly requested (in 1987 and 1991) the High
Court to try the matter on a day-to-day basis and dispose it of expeditiously. The petition is still
at the stage of trial. It is not possible for us to apportion the blame. Each side attributes it to the
other. Five learned Judges of the High Court have tried their hand at the case, but it still remains
at the stage of trial. The cross-examination of the petitioner alone took one full year. The cross-
examination of the respondent is yet to begin. Having regard to the number of allegations made
by the petitioner in his divorce petition and the material relied upon by him, it may safely be
presumed that the cross-examination of the respondent would take as much time as the cross-
examination of the petitioner, if not more. Each party, it appears, is out to punish the other for
what the other is supposed to have said or done. This appears to be the single thought ruling their
lives today. A good part of the lives of both the parties has been consumed in this litigation and
yet the end is not in sight. The assertion of the wife that she wants to live with the husband even
now, appears to be but a mere assertion. After all the allegations made against her in the petition
and the allegations levelled by her against the petitioner, living together is out of question.
Rapprochement is not in the realm of possibility. For the parties to come together, they must be
superhumans, which they are not. The parties have crossed the point of no return long ago. The
nature of the allegations levelled against each other show the intense hatred and animosity each
bears towards the other. The marriage is over except in name. The desirability of allowing the
continuation of the divorce proceedings in the particular facts and circumstances of this case, is
open to grave doubt. The matter may take more than a year at the minimum to conclude in the
High Court and then there is the right of appeal to the losing party. Both the parties are well-
318
settled. The children are grown-up and are on their own. It is significant to note that this is not a
case where allegations are made only by one party against the other; both have levelled serious
allegations against the other. The husband calls the wife an adulteress and the wife calls the
husband a lunatic.

11.The question, however, is whether the allegations made by the respondent wife do constitute
mental cruelty. The allegations in her written statement and her counsel's explanatory statement
in Court have already 345 been set out hereinabove. The respondent has asserted in her written
statement that she "has every right to make correct statement of facts to defend herself against
the wanton, imaginary and irresponsible allegations".

12.Clause (i-a) of Section 13 specifies cruelty as one of the grounds of divorce. Insofar as
relevant, Section 13 reads:

"13. Divorce.- (1) Any marriage solemnised, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party- (i-a) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or"

13.Cruelty contemplated by the sub-clause is both physical and mental. We are concerned herein
with the latter. It is not possible to define 'mental cruelty' exhaustively. As observed by Lord
Reid in Gollins v. Gollins1: "No one has ever attempted to give a comprehensive definition of
cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of
the respondent, on the nature of his (or her) conduct, and on the character and physical or mental
weaknesses of the spouses, and probably no general statement is equally applicable in all cases
except the requirement that the party seeking relief must show actual or probable injury to life,
limb or health. It is easy to see that the origin of this requirement is the decision in the well-
known case of Russell v. Russell2."

To the same effect are the observations of Lord Pearce (at p. 695; All ER p. 992): "It is
impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or
departure from the normal standards of conjugal kindness causes injury to health or an
apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the
temperament and all the other particular circumstances would consider that the conduct
complained of is such that this spouse should not be called on to endure it.

I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his
mind first whether there was injury or apprehended injury to health. In the light of that vital fact
the court has then to decide whether the sum total of the reprehensible conduct was cruel. That
depends on whether the cumulative conduct was sufficiently weighty to say that from a
reasonable person's point of view, after a consideration of any excuse which this respondent
might have in the 1 1964 AC 644: (1963) 2 All ER 966 2 (1895-99) All ER Rep 1 :(1897) AC
395 circumstances, the conduct is such that this petitioner ought not to be called on to endure it.

The particular circumstances of the home, the temperaments and emotions of both the parties and
their status and their way of life, their past relationship and almost every circumstance that
attends the act or conduct complained of may all be relevant."
319
The reference to "Injury to life, limb or health" in the above passages must be understood in the
context of the requirements of the divorce law then obtaining in the United kingdom.

14.The change of law brought about by the Hindu Marriage Laws (Amendment) Act, 1976
deserves notice. Prior to the said Amendment Act, cruelty was not a ground for claiming divorce
under the Hindu Marriage Act. It was a ground only for claiming judicial separation under
Section 10. By the said Amendment Act, cruelty was made a ground for divorce as well
evidently in recognition of the changing mores of the society. While doing so, it is significant,
the words "as to cause a reasonable apprehension in the mind of the petitioner that it will be
harmful or injurious for the petitioner to live with the other party," qualifying the expression
"cruelty" in Section 10(1)(b), were omitted by Parliament. It is, therefore, not necessary for the
party claiming divorce to prove that the cruel treatment is of such a nature as to cause an
apprehension a reasonable apprehension in his/her mind that it will be harmful or injurious for
him/her to live with the other party. Now what does this change mean? Surely, the deletion of the
said words could not have been without a purpose. The cruelty of the nature described in Section
10(1)(b) has been explained in this Court's decision in N.G. Dastane v. S. Dastane3.
Chandrachud, J. speaking for the Bench, held that where an allegation of cruelty is made, the
enquiry has to be "... whether the conduct charged as cruelty is of such a character as to cause in
the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him
to live with the respondent".

The learned Judge held further: (SCC pp. 337- 38, paras 30-3 1) "It is not necessary, as under the
English law, that the cruelty must be of such a character as to cause 'danger' to life, limb or
health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life,
limb or health or a reasonable apprehension of it is a higher requirement than a reasonable
apprehension that it is harmful or injurious for one spouse to live with the other. But under
Section 10(1)(b), harm or injury to health, reputation, the working-career or the like, would be an
important consideration in determining whether the conduct of the respondent amounts to
cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of
cruelty having regard to the principles of English law, but whether the petitioner 3 (1975) 2 SCC
326: AIR 1975 SC 1534 proves that the respondent has treated him with such cruelty as to cause
a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the
respondent."

This requirement is no longer present in Section 13(1)(i-a).

15. If so, the question arises what kind of cruel treatment does clause (i- a) contemplate? In
particular, what is the kind of mental cruelty that is required to be established? While answering
these questions, it must be kept in mind that the cruelty mentioned in clause (i-a) is a ground now
for divorce as well as for judicial separation under Section

10. Another circumstance to be kept in mind is that even where the marriage has irretrievably
broken down, the Act, even after the 1976 (Amendment) Act, does not permit dissolution of
marriage on that ground. This circumstance may have to be kept in mind while ascertaining the
type of cruelty contemplated by Section 13(1)(i-a).

16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts
upon the other party such mental pain and suffering as would make it not possible for that party
to live with the other. In other words, mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. The situation must be such that the wronged
320
party cannot reasonably be asked to put up with such conduct and continue to live with the other
party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health
of the petitioner. While arriving at such conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the possibility or otherwise of the
parties ever living together in case they are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in
one case may not amount to cruelty in another case. It is a matter to be Determined in each case
having regard to the facts and circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which they were made.

17.At this stage, we may refer to a few decisions of this Court rendered under Section 13(1)(i-a).
In Shobha Rani v. Madhukar Reddi4, Justice K. Jagannatha Shetty, speaking for the Division
Bench, held: (SCC pp. 108-09, paras 4 and 5) "Section 13(1)(i-a) uses the words 'treated the
petitioner with cruelty'. The word 'cruelty' has not been defined. Indeed it could not have been
defined. It has been used in relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one
which is adversely affecting the other. The cruelty may be mental or physical, intentional or
unintentional. If it is physical the court will have no problem to determine it. It is a question of
fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as 4
(1988) 1 SCC 105:1988 SCC (Cri) 60 to the nature of the cruel treatment. Second, the impact of
such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be
drawn by taking into account the nature of the conduct and its effect on the complaining spouse.

There may, however, be cases where the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be
enquired into or considered. In such cases, the cruelty will be established if the conduct itself is
proved or admitted.

It will be necessary to bear in mind that there has been marked change in the life around us. In
matrimonial duties and responsibilities in particular, we find a sea change. They are of varying
degrees from house to house or person to person.

Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or
relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in
one case may not be so in another case. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social conditions. It may also depend
upon their culture and human values to which they attach importance. We, the judges and
lawyers, therefore, should not import our own notions of life. We may not go in parallel with
them. There may be a generation gap a between us and the parties. It would be better if we keep
aside our customs and manners. It would be also better if we less depend upon precedents.
Because as Lord Denning said in Sheldon v. Sheldon' 'the categories of cruelty are not closed'.
Each case may be different. We deal with the conduct of human beings who are not generally
similar. Among the human beings there is no limit to the kind of conduct which may constitute
cruelty. New type of cruelty may crop up in any case depending upon the human behaviour,
capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm
of cruelty.

" It was a case where the wife was a postgraduate in biological sciences while the husband was a
doctor. The wife moved the court for divorce on the ground of cruelty. According to her, she had
321
an amount of Rupees two lakhs in fixed deposit in a bank apart from a house property, that her
mother-in-law used to make constant demands of money, and that the respondent husband
supported his mother therein. She did not report the same to her parents because she was afraid
that if she informed her parents, something may be done to her. The respondent-husband himself
admitted in a letter written to the wife that the demand for dowry by his parents was nothing
wrong. On the above facts, it was held that the ground of cruelty was established and divorce
was granted. The following further observations of Shetty, J. appear to us relevant: (SCC pp. 1
14-15, para 18) "Section 13(1)(i-a) of the Hindu Marriage Act provides that the party has after
solemnization of the marriage treated the petitioner with 5 (1966) 2 All ER 257, 259: (1966) 2
WLR 993 cruelty. What do these words mean? What should be the nature of cruelty? Should it
be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial
offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It
may be different in different cases. It is in relation to the conduct of parties to a marriage. That
conduct which is complained of as cruelty by one spouse may not be so for the other spouse.
There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The
cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the
act of cruelty is established, the intention to commit suicide cannot be established. The aggrieved
party may not get relief. We do not think that was the intention with which the Parliament
enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the
word 'cruelty' has been used in the section, seems to us, that intention is not a necessary element
in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial
affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or
brutal act complained of, cruelty could be easily established. But the absence of intention should
not make any difference in the case, if by ordinary sense in human affairs, the act complained of
could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground
that there has been no deliberate or wilful ill-treatment."

18.In Chanderkala Trivedi v. Dr S.P. Trivedi6 the husband sued for divorce on the ground of
cruelty by wife. The wife filed a written statement wherein she attributed adultery to the
husband. In reply thereto the husband put forward another allegation against the wife that she
was having undesirable association with young boys. Considering the mutual allegations, R.M.
Sahai, J. speaking for Division Bench, observed: (SCC p. 233, para 2) "Whether the allegation of
the husband that she was in the habit of associating with young boys and the findings recorded
by the three courts are correct or not but what is certain is that once such allegations are made by
the husband and wife as have, been made in this case then it is obvious that the marriage of the
two cannot in any circumstance be continued any further. The marriage appears to be practically
dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the
husband with a lady doctor and unbecoming conduct of a Hindu wife."

19.It was argued on behalf of the husband that the wife has failed to establish the charge of
adultery levelled against him and that the charge of adultery must be proved beyond reasonable
doubt. Dealing with the argument, the learned Judge observed: (SCC pp. 233-34, para 3) 6
(1993) 4 SCC 232 : 1993 SCC (Cri) II 54 : (1993) 3 Scale "But we do not propose to examine it
as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this
Court except that the appeal can be sent back to the Division Bench to decide it again which
would mean another exercise in futility leading to tortuous litigation and continued agony of the
parties."

20.In the light of the principles enunciated hereinabove, we may now examinewhether the
allegations made by the wife in her written statement and thequestions put by her counsel to the
322
petitioner in cross-examination amount to mental cruelty within the meaning of the said sub-
clause? The relevant portions of the written statement have already been set out by us
hereinbefore. We have also set out in the said paragraph the explanatory statement made by the
respondent's counsel in court in Justification of the questions put by him to the petitioner in his
cross- examination. It is true that the said averments must be read in the context in which they
were made. At the same time, it must be remembered that the wife was merely defending herself
against what are, according to her, totally unfounded allegations and aspersions on her character.
It was not necessary for her to go beyond that and allege that the petitioner is a mental patient,
that he is not a normal person, that he requires psychological treatment to restore his mental
health, that he is suffering from paranoid disorder and mental hallucinations and to crown it all,
to allege that he and all the members of his family are a bunch of lunatics. It is not as if these
words were uttered in a fit of anger or under an emotional stress. They were made in a formal
pleading filed in the Court and the questions to that effect were put by her counsel, at her
instructions, in the cross-examination. Even in her additional written statement she has asserted
her right "to make correct statement of facts to defend herself against the wanton, imaginary and
irresponsible allegations". These are not the mere protestations of an injured wife; they are
positive assertions of mental imbalance and streak of insanity in the mental build-up of the
husband. The husband is an Advocate practicing in this Court as well as in Delhi High Court.
The divorce petition is being tried in the Delhi High Court itself. Making such allegations in the
pleadings and putting such questions to the husband while he is in the witness-box, is bound to
cause him intense mental pain and anguish besides affecting his career and professional
prospects. It is not as if the respondent is seeking any relief on the basis of these assertions. The
allegations against her may not be true; it may also be true that the petitioner is a highly
suspicious character and that he assumes things against his wife which are not well founded. But
on that ground, to say that the petitioner has lost his normal mental health, that he is a mental
patient requiring expert psychological treatment and above all to brand him and all the members
of his family including his grandfather as lunatics, is going far beyond the reasonable limits of
her defence. It is relevant to notice that the allegations of the wife in her written statement
amount in effect to "psychopathic disorder or any other disorder" within the meaning of the
Explanation to clause (iii) of sub-section (1) of Section 13, though, she has not chosen to say that
on that account she cannot reasonably be expected to live with the petitioner-husband nor has she
chosen to claim any relief on that ground. Even so, allegations of 'paranoid disorder', ,mental
patient', 'needs psychological treatment to make him act a normal person' etc. are there coupled
with the statement that the petitioner and all the members of his family are lunatics and that a
streak of insanity runs through his entire family. These assertions cannot but constitute mental
cruelty of such a nature that the petitioner, situated as he is and in the context of the several
relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The
husband in the position of the petitioner herein would be justified in saying that it is not possible
for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of
this case show that the respondent is deliberately feigning a posture which is wholly unnatural
and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible
adulteress. She is fully aware that the marriage is long dead and over. It is her case that the
petitioner is genetically insane. Despite all that, she says that she wants to live with the
petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a
miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of
this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the
petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has
broken down irretrievably and there is no chance of their coming together, or living together
again. Having regard to the peculiar features of this case, we are of the opinion that the marriage
between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we
323
do so accordingly. Having regard to the peculiar facts and circumstances of this case and its
progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case
for cutting across the procedural objections to give a quietus to the matter.

21.Before parting with this case, we think it necessary to append a clarification. Merely because
there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere
delay in disposal of the divorce proceedings by itself a ground. There must be really some
extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted
material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself.
But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are
made out and in determining the relief to be granted, the said circumstance can certainly be
borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up
an insoluble mess, when the court finds it in the interest of both the parties.

22.The petition for divorce H.M. Case No. 1 of 1986 pending in the Delhi High Court is
withdrawn to the file of this Court and is allowed. The marriage between the parties is dissolved.
In the circumstances, the allegations levelled by the petitioner against the wife are held 'not
proved'. The honour and character of the respondent wife stands vindicated.

23. There shall be no order as to costs.

Supreme Court of India

Smt. Sureshta Devi vs Om Prakash on 7 February, 1991

Equivalent citations: 1992 AIR 1904, 1991 SCR (1) 274

Bench: Shetty

BENCH:
SHETTY, K.J. (J)
AGRAWAL, S.C. (J)

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 633 of 1991.

From the Judgment and Order dated 1.8.1989 of the Himachal Pradesh High Court in F.A.0.
(H.M.A.) No. 28 of 1989.

Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellant.

Subhagmal Jain and H.K. Puri for the Respondent. The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. Special Leave granted. This appeal from a decision of the
Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by
mutual consent, and is said, probably rightly, to raise an important issue. The issue is whether a
party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act,
324
1955 ('Act') can unilaterally withdraw the consent or whether the consent once given is
irrevocable.

The appellant is the wife of the respondent. They were married on 21 November 1968. They
lived together for about six to seven months. Thereafter, it is said that the wife did not stay with
the husband except from 9 December 1984 to 7 January 1985. That was pursuant to an order of
the Court, but it seems that they did not live like husband and wife during that period also. On 8
January 1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri
Madan Rattan. After about an hour discussion, they moved a petition under Section 13-B for
divorce by mutual consent in the District Court at Hamirpur. On 9 January 1985, the Court
recorded statements of the parties and left the matter there.

On 15th January 1985, the wife filed an application in the Court, inter alia, stating that her
statement dated 9 January 1985 was obtained under pressure and threat of the husband and she
was not even allowed to see or meet her relations to consult them before filing the petition for
divorce. Nor they were permitted to accompany her to the Court. She said that she would not be
party to the petition and prayed for its dismissal. The District Judge made certain orders which
were taken up in appeal before the High Court and the High Court remanded the matter to the
District Judge for fresh disposal. Ultimately, the District Judge dismissed the petition for divorce.
But upon appeal the High Court has reversed the order of the District Judge and granted a decree
for dissolution of the marriage by mutual consent. The High Court has observed that the spouse
who has given consent to a petition for divorce cannot unilaterally withdraw the consent and
such withdrawal however, would not take away the jurisdiction of the Court to dissolve the
marriage by mutual consent, if the consent was otherwise free. The High Court also recorded a
finding that the wife gave her consent to the petition without any force, fraud or undue influence
and therefore she was bound by that consent.

Section 13-B was not there in the original Act. It was introduced by the Amending Act 68 of
1976. Section 13-B provides:

13-B(l) Subject to the provisions of the Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together, whether
such marriage was solemnized before or after the commencement of the Marriage Laws
(Amendment) Act, 1976, on the ground that they have been living separately for a period of one
year or more, that they have not been able to live together and that they have mutually agreed
that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree."

It is also necessary to read Section 23(l)(bb): 23(1) In any proceeding under this Act, whether
defended or not, if the Court is satisfied that-

325
(bb) When a divorce is sought on the ground of mutual consent, such consent has not been
obtained by force, fraud or undue influence, and ....."

Section 13-B is in pari materia with Section 28 of the Special Marriage Act, 1954. Sub-section
(1) of Section 13-B requires that the petition for divorce by mutual consent must be presented to
the Court jointly by both the parties. Similarly, sub- section (2) providing for the motion before
the Court for hearing of the petition should also be by both the parties.

There are three other requirements in sub-section (1). There are:

(i) They have been living separately for a period of one year.

(ii) They have not been able to live together, and

(iii) They have mutually agreed that marriage should be dissolved.

The 'living separately' for a period of one year should be immediately preceding the presentation
of the petition. It is necessary that immediately preceding the presentation of petition, the parties
must have been living separately. The expression 'living separately', connotes to our mind not
living like husband and wife. It has no reference to the place of living. The parties may live
under the same roof by force of circumstances, and yet they may not be living as husband and
wife. The parties may be living in different houses and yet they could live as husband and wife.
What seems to be necessary is that they have no desire to perform marital obligations and with
that attitude they have been living separately for a period of one year immediately preceding the
presentation of the petition. The second requirement that they 'have not been able to live
together' seems to indicate the concept of broken down marriage and it would not be possible to
reconcile themselves. The third requirement is that they have mutually agreed that the marriage
should be dissolved.

Under sub-section (2) the parties are required to make a joint motion not earlier than six months
after the date of presentation of the petition and not later than 18 months after the said date. This
motion enables the Court to proceed with the case in order to satisfy itself about the genuineness
of the averments in the petition and also to find out whether the consent was not obtained by
force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the
hearing or examination of the parties for the purpose of satisfying itself whether the averments in
the petition are true. If the Court is satisfied that the consent of parties was not obtained by force,
fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it
must pass a decree of divorce.

The question with which we are concerned is whether it is open to one of the parties at any time
till the decree of divorce is passed to withdraw the consent given to the petition. The need for a
detailed study on the question has arisen because of the fact that the High Courts do not speak
with one voice on this aspect. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh
Bhikaji Londhe, AIR 1984 Bom. 302, has expressed the view that the crucial time for the
consent for divorce under Section 13-B was the time when the petition was filed. If the consent
was voluntarily given it would not be possible for any party to nullify the petition by
withdrawing the consent. The court has drawn support to this conclusion from the principle
underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is
filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or

326
withdrawn by one of the plaintiffs or one of the parties to the suit. The High Court of Delhi
adopted similar line of reasoning in Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989
Delhi 73 and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta, [1984] 11 DMC
388 also took a similar view But the Kerala High Court in K.L Mohanan v. Jeejabai, AIR 1988
Kerala 28 and the Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh, AIR
1988 Punjab & Haryana 27 and Rajasthan High Court in Santosh Kumari v. Virendra Kumar,
AIR 1986 Rajasthan 128 have taken a contrary view. It has been inter alia, held that it is open to
one of the spouses to withdraw the consent given to the petition at any time before the Court
passes a decree for divorce. The satisfaction of the Court after holding an inquiry about the
genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to
withdraw the consent. The Kerala High Court in particular has ruled out the application of
analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the
situation arising under Section 13-B of the Act.

From the analysis of the Section, it will be apparent that the filing of the petition with mutual
consent does not authorise the court to make a decree for divorce. There is a period of waiting
from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to
the parties to reflect on their move and seek advice from relations and friends. In this transitional
period one of the parties may have a second thought and change the mind not to proceed with the
petition. The spouse may not be party to the joint motion under sub-section (2). There is nothing
in the Section which prevents such course. The Section does not provide that if there is a change
of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi
have proceeded on the ground that the crucial time for giving mutual consent for divorce is the
time of filing the petition and not the time when they subsequently move for divorce decree. This
approach appears to be untenable. At the time of the petition by mutual consent, the parties are
not unaware that their petition does not by itself snap marital ties. They know that they have to
take a further step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It
provides that "on the motion of both the parties .... if the petition is not withdrawn in the
meantime, the Court shall pass a decree of divorce What is significant in this provision is that
there should also be mutual consent when they move the court with a request to pass a decree of
divorce. Secondly, the Court shall be satisfied about the bonafides and the consent of the parties.
If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a
decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce
decree even at the instance of one of the parties and against the consent of the other. Such a
decree cannot be regarded as decree by mutual consent.

Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the
parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the
divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to
have the power to make a decree solely based on the initial petition, it negates the whole idea of
mutualitly and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a
decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is
passed. It is a positive requirement for the court to pass a decree of divorce. "The consent must
continue to decree nisi and must be valid subsisting consent when the case is heard". [See (i)
Halsbury Laws of England, Fourth Edition Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed.
Vol. 1 p. 291 and (iii) Beales v. Beales, [ 1972] 2 All E. R. 667 at 674].

In our view, the interpretation given to the section by the High Courts of Kerala, Punjab &
Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view.

327
The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said
to have laid down the law correctly and they stand overruled.

In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the
circumstances of the case, however, we make on order as to costs.

T.N.A. Appeal allowed

Supreme Court of India

Yamanaji H. Jadhav vs Nirmala on 1 February, 2002

Author: S Hegde

Bench: N. Santosh Hegde, Doraiswamy Raju

CASE NO.:
Appeal (civil) 4969 of 1998

BENCH:
N. Santosh Hegde & Doraiswamy Raju

JUDGMENT:

SANTOSH HEGDE, J.

The appellant in this appeal was the defendant in O.S.No.156 of 1982 before the Principle
Munsif Bijapur, which suit was filed by the respondent plaintiff praying for a declaration that a
divorce deed dated 26th of June, 1982 executed by her was obtained by coercion and threat and
for cancellation of the same. The said suit came to be dismissed by the trial court and an appeal
against the said judgment being dismissed, the respondent plaintiff appealed to the High Court.
The High Court in a second appeal has reversed the finding of the courts below and has decreed
the suit with a further direction that the concerned District Judge should file a complaint against
the plaintiff for an offence committed by him against his wife within three months from the date
of the receipt of the said judgment. As noted above, the appellant plaintiff is before us in this
appeal.

We will refer to the parties in their status in which they were arrayed in the trial court.

The case of the plaintiff in the trial court was that her marriage with the defendant was
solemnized on 26th of May, 1978 and though they lived as husband and wife for some time, she
was constantly ill-treated by her husband consequent to which she was hospitalized.
Subsequently the defendant had filed a matrimonial suit for divorce in the year 1979 and the said
suit came to be compromised. However, the relationship between the two did not improve and
husband was continuing to demand a divorce from her. Ultimately, she was sent back to her
parental home because of which she was constrained to file a petition for maintenance. It is
328
further claimed that the defendant forcibly took her and wrongly confined her which led her
father to make an application under Section 97 of Cr.P.C. It is also stated that subsequently under
threat and coercion she was taken to the office of the Sub-Registrar on the 26th of June, 1982
and signed a document which has turned out to be a deed of divorce. It is also stated that unable
to bear the suffering, she even tried to commit the suicide, but, however, she was saved by the
neighbours. Subsequently when she realised that the document executed by her was a divorce
deed she filed a suit for a declaration that the said deed was obtained by fraud and coercion as
also for the cancellation of the deed.

The defendant in his written statement contended that the allegations of the plaintiff was false
and mischievous but admitted that he was married to the plaintiff on the 26th of May, 1978. He
denied that he ever ill-treated and forced the plaintiff to grant him a divorce but she, as a matter
of fact, deserted him and ultimately she decided to grant him a divorce and the divorce deed in
question was executed by her in the office of the Sub-Registrar of her own free will.

On the basis of the averments in the plaint, the trial court framed the following issues:

1. Whether the suit divorce deed dated 26.6.1982 is the out come of undue influence and
coercion by the defendant ?

2. If so, is it void and deserves for cancellation ?

3. Whether Court fee paid is proper ?

4. Whether this Court has jurisdiction to try and to entertain the suit ?

On consideration of the evidence on record, the trial court came to the conclusion the allegations
that the divorce deed of 26th June, 1982 was obtained by undue influence was not established by
the plaintiff. As stated above, this finding of the trial court was affirmed by the First Appellate
Court which, however, came to be reversed by the High Court. Shri P.R.Ramasesh, learned
counsel appearing for the defendant strenuously contended that the High Court erred in
interfering with the concurrent finding of the facts arrived at by the two courts without framing a
question of law in this regard, hence, on this ground alone, the judgment of the High Court was
liable to be dismissed. He also contended that the approach of the High Court in regard to
appreciation of facts involved in the case was rather one sided and for reasons wholly outside the
judicial scrutiny. While Ms.Sarda Devi learned counsel for the plaintiff supported the judgment
of the High Court.

In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go
into the contentions advanced by the learned counsel for the parties in this case, because we find
that the courts below have erroneously proceeded on the basis that the divorce deed relied upon
by the parties in question was a document which is acceptable in law. It is to be noted that the
deed in question is purported to be a document which is claimed to be in conformity with the
customs applicable for divorce in the community to which the parties to this litigation belong to.
As per the Hindu Law administered by courts in India divorce was not recognised as a means to
put an end to marriage, which was always considered to be a sacrament, with only exception
where it is recognised by custom. Public policy, good morals and the interests of society were
considered to require and ensure that, if at all, severance should be allowed only in the manner
and for the reason or cause specified in law. Thus such a custom being an exception to the
general law of divorce ought to have been specially pleaded and established by the party
329
propounding such custom since said custom of divorce is contrary to the law of the land and
which, if not proved, will be a practice opposed to public policy. Therefore, there was an
obligation on the trial court to have framed an issue whether there was proper pleadings by the
party contending the existence of a customary divorce in the community to which the parties
belonged and whether such customary divorce and compliance with the manner or formalities
attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the
instant case, we have perused the pleadings of the parties before the trial court and we do not
find any material to show that prevalence of any such customary divorce in the community,
based on which the document of divorce was brought into existence was ever pleaded by the
defendant as required by law or any evidence was led in this case to substantiate the same. It is
true in the courts below that the parties did not specifically join issue in regard to this question
and the lawyers appearing for the parties did orally agree that the document in question was in
fact in accordance with the customary divorce prevailing in the community to which the parties
belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint
or in the written statement would not, in our opinion, permit the court to countenance the plea of
customary divorce unless and until such customary divorce is properly established in a court of
law. In our opinion, even though the plaintiff might not have questioned the validity of the
customary divorce, the court ought to have appreciated the consequences of their not being a
customary divorce based on which the document of divorce has come into existence bearing in
mind that a divorce by consent is also not recognisable by a court unless specifically permitted
by law. Therefore, we are of the opinion to do complete justice in this case. It is necessary that
the trial court be directed to frame a specific issue in regard to customary divorce based on which
the divorce deed dated 26th of June, 1982 has come into existence and which is the subject
matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they
so desire and also to lead evidence to the limited extent of proving the existence of a provision
for customary divorce (otherwise through the process of or outside court) in their community and
then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in
deciding the new issue.

With the above directions, we set aside the judgment and decree of the courts below and remand
the matter back to the trial court to frame an appropriate issue in regard to the existence of a
provision for customary divorce in the community of the parties to these proceedings to get a
marriage dissolved except through the process of or outside the court. The trial court will
consider afresh the case of the parties set up in the suit after deciding the issue now directed to be
framed by us, without any manner, being influenced by the earlier finding given by the court
below including the High Court.

For the reasons stated above, this appeal is allowed and the matter now remanded back to the
trial for fresh disposal in accordance with the law and in the light of the observations made in
this appeal.

.....................................J. (N.Santosh Hegde) ......................................J. February 1, 2002.

(Doraiswamy Raju)

A.C. Mathivanan v B. Sathyabama, 2016 SCC OnLine Mad 8884, decided on 03.08.2016]

Madras High Court: An appeal against the order and decree passed by the Family Court.,

330
 Madras High Court., set aside the decision of the Family Court dismissing the joint petition for
dissolution of marriage of the appellants for want of reasons for separation
Facts

In the present case, the appellants had filed a joint petition under Section 13B (2) of the 1955
Act with mutual consent seeking for dissolution of marriage as the appellants were living
separately and there was no chance of any re-union.

However their petition was dismissed as the Family Judge noted that the parties have not
mentioned the reasons for their separation.

Perusing the facts of the case, the Court said that the parties have been living separately and
as per the affidavit presented by the appellants there has been no cohabitation between
them since the stated date of separation. The only requisite of Section 13B (2) is that the
parties applying for dissolution of marriage must be living separately for a period of one
year or more, irrespective of any reason . When the ingredient was satisfied it was
unnecessary for the Family Court to enquire about the reasons behind their separation.
As per the provision the only duty of the Family Court was to ensure that whether the
marriage has been solemnised and that the averments in the petition are true. when the
parties were willing to part ways as their marriage had turned out to be a failure, the
Family Court should have respected the sentiments of the parties and should have granted
the divorce.

The Court further observed

Family Courts are not allowed to enlarge the scope of enquiry under Section 13B (2) of the
Hindu Marriage Act, 1955, and once it is satisfied that the essential requirements under
Section 13B (2) has been fulfilled.

UNIT- IV

Supreme Court of India

Smt. Chandan Bilasini (Dead) By Lr vs Aftabuddin Khan & Ors on 16 November, 1995

Equivalent citations: 1996 AIR 591, 1996 SCC (7) 13

BENCH:
MANOHAR SUJATA V. (J)
331
PUNCHHI, M.M.

JUDGMENT:

J U D G M E N T Since the parties before us have already settled their property dispute, the only
question which is left for us to decide is whether the respondent Amaresh Sarkar in Civil Appeal
No. 2462/1977 was the duly adopted son of Chandan Bilasini Dasi, the original first-plaintiff.

Chandan Bilasini Dasi was married to one Kalikrishna Sarkar who died on 11.12.1905 leaving a
will under which, inter alia, he had authorised his widow, the original plaintiff No. 1 to adopt a
son and in the event of the adopted son's death to adopt a second son. The adoption had to be
made with the consent of the executors. Accordingly the first-plaintiff had adopted one
Sudhanshu Mohan Sarkar as per the directions contained in the Will of Kalikrishna. Sudhanshu
Mohan Sarkar died in an unmarried state on 7.3.65. Thereafter she adopted the said respondent
Amaresh Sarkar on 24.8.65. By this time all the executors were dead. She also executed a
registered deed acknowledging the adoption of Amaresh Sarkar which is dated 30.9.65. This
deed, however, was not counter-signed by the natural parents of the adopted child. The natural
father executed a deed acknowledging adoption which is dated 15.4.67. This deed is also
registered. Apart from these documents, evidence was led in order to prove the ceremony of
giving and taking in adoption. It is necessary to bear in mind that this second adoption took place
after coming into force of the Hindu Adoptions and maintenance Act, 1956 under which the first-
plaintiff Chandan Bilasini Das being a widow was entitled to adopt a son even otherwise than
under the authority given to her under the Will of her deceased husband.

PWs 1, 2 and 6 have given oral evidence relating to the adoption ceremony. PW1, who is the
natural father of the adopted son has given evidence to the effect that the adoption took place on
24.8.65 and the ceremony of giving and taking in adoption was performed. A priest was also
present and Kalasa Pooja Homa, were performed. PW2 is the priest who performed the adoption
ceremony and PW6 is an attesting witness to the deed of adoption which was executed by the
adoptive mother on 30.9.65. He was also present at the time of the adoption ceremony.

The first appellate court on the basis of the oral evidence as well as the two supporting
documents held that there was a valid adoption of the respondent Amaresh Sarkar by the original
plaintiff No.1. The Division Bench of the High Court in appeal, however, held that there was no
valid adoption. It appears to have drawn an adverse inference on the basis of the fact that the
adoptive mother who was alive at the time when the evidence was recorded by the trial court,
had not examined herself. It is accepted by both sides that at the time when the evidence was
recorded the adootive mother was a very old lady 86 years of age and she was too old to be
produced in court for giving evidence. The Division Bench failed to take into account the fact
that there were three other witnesses who were present at the time of the adoption ceremony who
were examined -- one of them being the priest and the other one being a person who was also
present at the time when the deed of admission of adoption was executed by the first plaintiff
adoptive mother and was an attesting witness to the deed. The mere fact that some other persons
who were also present at the adoption ceremony were not examined, cannot be considered as
making the adoption doubtful. There is clear testimony relating to the ceremony of taking and
giving the respondent Amaresh Sarkar in adoption as between the natural parents and the
adoptive mother. The registered document regarding this adoption which was executed within a
month of the adoption by the adoptive mother should also be given its due weight as evidence of
332
adoption. There is also a second document executed by the natural father after a lapse of two
years. Since the natural father after would be interested in executed such a document which
would give an advantage to his natural son the same probative value may not be attached to the
second document. But the earlier document which is executed by adoptive mother must be given
its due weight. It has been properly proved and is a registered document.

Looking to the entire evidence which is on record which goes to establish that adoption took
place by the ceremony of giving and taking, we hold that there was a valid adoption of the
respondent Amaresh Sarkar by the original first-plaintiff Chandan Bilasini Dasi. After the
coming into force of the Hindu Adoptions and Maintenance Act of 1956, this adoption was made
in accordance with the provisions of Hindu Adoptions and Maintenance Act.

On adoption of the respondent Amaresh Sarkar by the widow of the deceased Kalikrishna
Sarkar, the adopted son Amaresh Sarkar sevared his ties with his natural family and became a
part of the adoptive family. As such, Chandan Bilasini Dasi became his mother and Kalikrishan
became his deceased father. Section 12 of the Hindu Adoptions and Maintenance Act clearly
provides that an adopted child shall be deemed to be the child of his adoptive father or mother
for all purposes with effect from the date of the adoption and from such date all ties of the child
in the family of his or her birth shall be deemed to be severed and replaced by those created by
the adoption in the adoptive family. As a consequence, when a widow adopts a child, the child
not merely acquires an adoptive mother but also acquires other relationships in the adoptive
family, unless there is anything to the contrary in the Hindu Adoptions and Maintenance Act.

This position is reinforced by Section 14(4) which sets out that where a widow or an unmarried
woman adopts a child, any husband whom she marries subsequently shall be deemed to be the
step-father of the adopted child. In other words, the family relationship gets crystalised as at the
date of adoption. The child will be deemed to be the child of the parent who adopts the child and
the existing or deceased spouse of that parent (as the case may be), if any, will be considered the
child's father or mother. A spouse subsequently acquired by the adoptive parent becomes the
step-parent of the adopted child. The adopted child, however, cannot divest any person of any
property already vested in that person (Section 12[c]).

In the premises, we set aside the impugned judgment in so far as it holds that Amaresh Sarkar
was not the validly adopted son of Chandan Silasini Dasi and Kalikrishna Sarkar. The appellants
in Civil Appeal No. 2462/1977 have, through their counsel, agreed that the status of the
respondent Amaresh Sarkar as adoptive son of late Shri Kalikrishna Sarkar and Chandan Dilasini
Dasi is not disputed.

In Civil Appeal No. 1245/1977 the parties through their counsel have agreed that the appellant
will not question the validity or the sale-deed which is the subject-matter of this appeal and it is
declared that the sale-deed is valid and binding. Respondents will pay rupees five lakhs to the
appellant in full and final settlement of all his claims against the respondents. The respondents
have requested for some time for making payment of this amount. We direct that 50% of the
amount will be paid on or before 30th of November, 1995 and the balance amount will be paid
on or before 31st of March, 1996.

The appeals are disposed of accordingly. In the circumstances, there will be no order as to costs.

333
Supreme Court of India

PETITIONER:
SAWAN RAM & OTHERS

Vs.

RESPONDENT:
KALA WANTI & OTHERS

BENCH:
BHARGAVA, VISHISHTHA
WANCHOO, K.N. (CJ)
MITTER, G.K.

CITATION:
1967 AIR 1761, 1967 SCR (3) 687

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 728 of 1964. Appeal by special leave
from the. judgment and decree dated September 25, 1961 of the Punjab High Court in Civil
Regular Second Appeal 343 of 1961.

S. K. Mehta and K. L. Mehta, for the appellant. A. D. Mathur, for the respondents.

The Judgment of the Court was delivered by Bhargava, J. One Ramji Dass died leaving behind a
widow, Smt. Bhagwani. At the time of his death, he owned some land and a house. 4 bighas and
17 biswas of the land were mortgaged by Smt. Bhagwani on 2nd May, 1948 in favour of
respondent No. 3, Babu Ram. Later, on 22nd August, 1949, she executed a deed of gift in respect
of the house and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala
Wanti who was related to her as a grandniece. Sawan Ram appellant instituted a suit for a
declaration that both these alienations were without legal necessity and were not binding on him,
claiming that he was the nearest reversioner of Ramji Dass, being his collateral. In that, suit,
Smt. Bhagwni the donee, Smt. Kala Wanti, respondent No. 1, and the mortgagee, Babu Ram,
respondent No. 3, were impleaded as defendants. That suit was decreed and Smt. Bhagwani went
up in appeal to the High Court. During the pendency of the appeal, Smt. Bhagwani adopted
respondent No. 2, Deep Chand, the son of Brahmanand and his wife, respondent No. 1, Smt.
Kala Wanti. A deed of adoption was executed by her in that respect on 24th August, 1959. The
appeal was dismissed in spite of this adoption. Smt. Bhagwani died on 31st October, 1959, and
thereupon, the appellant brought a suit for possession of the house and the land which had been
gifted by Smt. Bhagwani to respondent No. 1 as well as for possession of the land which she had
mortgaged with respondent No. 3. It was claimed that Smt. Bhagwani had only a life interest in
all these properties, because she had divested herself of all the rights in those properties on 22nd
334
August, 1949, before the Hindu Succession Act, 1956 (No. 30 of 1956) came into force. The
adoption of Deep Chand was also challenged as fictitious and ineffective. It was further urged
that, even if that adoption was valid, Deep Chand became the adopted son of Smt. Bhagwani and
could not succeed to the properties of Ramji Dass. The suit was dismissed by the trial court,
holding that the adoption of Deep Chand was valid and that, though Smt. Bhagwani had not
become the full owner of the property under the Hindu Succession Act, 1956, Deep Chand was
entitled to succeed to the property of Ramji Dass in preference to the appellant, so that the
appellant could not claim possession of these pro-

perties. That order was upheld by the High Court. of Punjab, and the appellant has now come up
to this Court in appeal by special leave.

In this appeal before us, only two points have been urged by learned counsel for the appellant.
The first point taken is that, even though the appellant did not challenge the finding of fact that
respondent No. 2 was, in fact, adopted by Smt. Bhagwani, that adoption was invalid under clause
(Ii) of section 6 read with sub-s. (2) of s. 9 of the Hindu Adoptions and Maintenance Act, 1956
(No. 78 of 1956) (hereinafter referred to as "the Act"). It is urged that, under s. 9 (2) of the Act, if
the father of a child is alive, he alone has the right to give in adoption, though the right is not to
be exercised, save with the consent of the mother. In this case, reliance was placed on the
language of the deed of adoption dated 14th August, 1959, to urge that Deep Chand was, in fact,
given in adoption to Smt. Bhagwani by his mother, respondent No. 1, even though his father,
Brahmanand, was alive.

This point raised on behalf of the appellant is negatived by the evidence on the record. There is
oral evidence of the adoption which has been accepted by the lower courts, and it shows that.
Deep Chand was given in adoption by both the parents to Smt. Bhagwani. Even the deed of
adoption dated 24th August, 1959, on which reliance was placed on behalf of the appellant in
support of this argument, does not bear out the suggestion that Deep Chand was given in
adoption by his mother and not by his father. The deed clearly mentions that "the parents of
Deep Chand have, of their own free will, given, Deep Chand to me, the executant, today as my
adopted son." This recitation is followed by a sentence which states : "Mst. Kala Wanti, mother
of Deep Chand, has put her thumb-mark hereunder in token of her consent." It was from this
solitary sentence that inference was sought to be drawn that Deep Chand had been given in
adoption by his mother, Kala Wanti and not by the father. The deed, in the earlier sentence
quoted above, clearly mentions that Deep Chand had been given in adoption by his "parents"
which necessarily includes the father. This later sentence, it appears, was put in the deed,
because s. 9(2) of the Act mentions that the father is not to exercise his right of giving his child
in adoption, save with the consent of the mother. "The consent of the mother" having been used
in the Act which was applicable, the draftsmen of the deed included in it the fact that Deep
Chand's mother had actually given her consent and obtained her thumb-impression in token
thereof. This mention of the consent cannot, in these cir- cumstances, be held to show that it was
the mother who, in fact, gave the child in adoption and not the father. The second point and the
one, on which reliance is mainly placed by learned counsel for the appellant, is that, according to
him, under the Act, an independent right of adoption is given to a Hindu female and if a widow
adopts a son, he becomes the adopted son of the widow only and is not to be deemed to be the
son of her deceased husband. Under the Shastric Hindu Law, no doubt, if a Hindu widow made
an adoption after the death of her husband on the basis of consent obtained from him in his
lifetime, the adopted son was deemed to be the son of the deceased husband also; but it is urged
that the Act has completely changed this policy. In support of this proposition, learned counsel
drew our attention to the provisions of s. 8 of the Act, under which any female Hindu, who is of
335
sound mind, who is not a minor, and who is not married, or if married, whose marriage has been
dissolved or whose husband is dead or has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound
mind, has been granted the capacity to take a son or a daughter in adoption. Then reference was
made to s. 12 of the Act, which runs as follows :-

"12. An adopted child shall be deemed to be the child of his or her adoptive father or mother for
all purposes with effect from the date of adoption and from such date all the ties of the child in
the family of his or her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family;

Provided that-

(a) the child cannot marry any person whom he or she could not have married if he or she had
continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in
such person subject to the obligations, if any, attaching to the owner- ship of such property,
including the obligation to maintain relatives in the family of his or her birth-,

(c) the adopted child shall not divest any person of any estate which vested in him or her before
the adoption."

Reliance was also placed on sections 13 and 14 of the Act which are reproduced below:- "13.
Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or
mother of the power to dispose of his or her property by transfer inter vivos or by will.

14. (1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the
adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior most in
marriage among them shall be deemed to be the adoptive mother and the others to be, step-
mothers.

(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall
be. deemed to be; the stepmother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries
subsequently shall be deemed to be the stepfather of the adopted child."

On the basis of these provisions, it was urged that the scheme of the Act is that, when a Hindu
female adopts a child, he becomes the adopted son of the Hindu female only and does not
necessarily become the son of the deceased husband, if the Hindu female be a widow. Emphasis
was laid on the fact 'that even an unmarried female Hindu is permitted to take a son or daughter
in adoption and in such a case, naturally, no question would arise of the adopted child becoming
the adopted son of a Hindu male also. In this connection, reliance was placed on a decision of the
High Court of Andhra Pradesh in Nara Hanumantha Rao v. Nara Hanumayya and Another(1).
For convenience, the facts of that case may be briefly reproduced as given in the head-note to
indicate the question of law that fell to be decided. A and his two sons B and C were members of
336
a Hindu joint family. B died on 26th August, 1924 leaving behind his widow D. A died in the
year 1936. On 17th June, 1957, D adopted E, and E filed the suit against C and his son F for
partition and separate possession of a half share in the properties. The trial court held : (1) that
there is a custom among the members of the Kamma caste, to which the parties belonged,
whereby the adoption of a boy more than 15 years old is valid; and (2) that the adoption of E
could not have the result of divesting the interest of B that had vested in C long prior to the date
of the adoption, having regard to the provisions of the Act. In appeal, the High Court upheld the
decision of the trial court on both the points that were raised. The existence of the caste custom,
by which boys aged more than 15 years could be adopted, was held to be sufficiently proved by
evidence. Then the High Court proceeded to consider the provisions of the Act to find out
whether E could claim a share in the property of B, the deceased husband of D who had adopted
him. The learned Judges of the High Court enumerated the contents of the various relevant
sections of the Act and then proceeded to consider whether E could claim a right in the property
left by B. The Court, after reproducing the provisions of s. 12 of the Act held : (1) [1964] I
Andhra Weekly Reporter, 156.

69 2 "Under the terms of the above section, an adopted child is deemed to be the child of his or
her adoptive father or mother for all purposes with effect from the date of the adoption. Relying
on the words "for all purposes", it is argued that the adopted child has the same rights and
privileges in the family of the adopter as the legitimate child. From the language of the section, it
is manifest that an adopted child is deemed to be the child of his or her adoptive father or mother.
The use of the word "or" between the words "father" and "mother' makes this abundantly clear.
The use of the expression "with effect from the date of adoption" as also the language of clause
(c) of the Proviso are important. The expression "with effect from the date of adoption"
introduces a vital change in the pre-existing law. Under the law as it stood before the Act came
into operation, the ground on which an adopted son was held entitled to take in defeasance of the
rights acquired prior to his adoption was that, in the eye of law, his adoption related back, by a
legal fiction, to the date of death of his adoptive father. The rights of the adopted son, which
were rested on the theory of "relation back", can no longer be claimed by him. This is clear from
the specific provision made in s. 12 that the rights of the adopted are to be determined with effect
from the date of adoption. Clause (c) of the Proviso to s. 12 lays down the explicit rule that the
adoption of a son or daughter, by a male or female Hindu is not to result in the divesting of any
estate vested in any person prior to the adoption."

When finally expressing its opinion on the question of law, the Court said :

"The Act has made a notable departure from the previous law in allowing a widow to adopt a son
or daughter to herself in her own right. Under the Act, there is no question of the adopted child
divesting of any property vested in any person or even in herself. The provisions of section 13
make this position clear, by providing that an adoption does not deprive the adoptive father or
mother of the powers to dispose of his or her property by transfer inter vivos or by will... On a
fair interpretation of the provisions of section 12 of the Act, we are of the opinion that the
section has the effect of abrogating the ordinary rule of Mitakshara law that, as a result of the
adoption made by the widow, the adoptee acquires rights to the share of his. deceased 39 6
adoptive father which has passed by survivorship to his father's brothers."

We are unable to accept this interpretation of the provisions of the Act by the Andhra Pradesh
High Court as it appears to us that the High Court ignored two important provisions of the Act
337
and did not consider their effect when arriving at its decision. The first provision, which is of
great significance, is contained in s. 5 (1) of the Act which lays down : "No adoption shall be
made after the commencement of this Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption made in contravention of the said
provisions shall be void." It is significant that, in this section, the adoption to be made is
mentioned as "by or to a Hindu". Thus, adoption is envisaged as being of two kinds. One is
adoption by a Hindu, and the other is adoption to a Hindu. If the view canvassed on behalf of the
appellant be accepted, the consequence will be that there will be only adoptions by Hindus and
not to Hindus. On the face of it, adoption to a Hindu was intended to cover cases where an
adoption is by one person, while the child adopted becomes the adopted son of another person
also. It is only in such a case that it can be said that the adoption has been made to that other
person. The most common instance will naturally be that of adoption by a female Hindu who is
married and whose husband is dead, or has completely and finally renounced the world, or has
been declared by a court of competent jurisdiction to be of unsound mind. In such a case, the
actual adoption would be by the female Hindu, while the adoption will be not only to herself, but
also to her husband who is dead, or has completely and finally renounced the world or has been
declared to be of unsound mind.

The second provision, which was ignored by the Andhra Pradesh High Court, is one contained in
s. 12 itself. 'The section, in its principal clause, not only lays down that the adopted child shall be
deemed to be the child of his or her adoptive father or mother for all purposes with effect from.
the date of the adoption, but, in addition, goes on to define the rights of such an adopted child. It
lays down that from such date all the ties of the child in the family of his or her birth shall be
deemed to be severed and replaced by those created by the adoption in the adoptive family. A
question naturally arises what is the adoptive family of a child who is adopted by a widow, or by
a married woman whose husband has completely and finally renounced the world or has been
declared to be of unsound mind even though alive. It is well-recognized that, after a female is
married, she belongs to the family of her husband. The child adopted by her must also, therefore,
belong to the same family. On adoption by a widow, therefore, the adopted son is to be deemed
to be a member of the family of the deceased husband of the widow. Further still, he loses all his
rights in the family of his birth and those rights

-are replaced by the rights created by the adoption in the adoptive family. The right, which the
child had, to succeed to property by virtue of being the son of his natural father, in the family of
his birth, is, thus, clearly to be replaced by similar rights in the adoptive family and,
consequently, he would certainly obtain those rights in the capacity of a member of that family
as an adopted son of the deceased husband of the widow, or the married female, taking him in
adoption. This provision in s. 12 of the Act, thus, itself makes it clear that, on adoption by a
Hindu female who has 'been married, the adopted son will, in effect, be the adopted son of her
husband also. This aspect was ignored by the Andhra Pradesh High Court when dealing with the
effect ,of the language used in other parts of this section.

It may, however, be mentioned that the conclusion which we have arrived at does not indicate
that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect. As
we have mentioned earlier, the question in that case as whether E, after the adoption by D, the
widow of B, could divest C of the rights which had already vested in C before the adoption. It is
significant that by the year 1936 C was the sole male member of ,the Hindu joint family which
owned the disputed property. B died in the year 1924 and A died in 1936. By that time, the
Hindu Women's Rights to Property Act had not been enacted and, consequently, C, as the sole
male survivor of the family became full owner of that property. In these circumstances, it was
338
clear that after, the adoption of E by D, E could not divest C of the rights already vested in him
in view of the special provision contained in clause (c) of the proviso to s. 12 of the Act. It
appears that, by making such a provision, the Act has narrowed down the rights of an adopted
child as compared with the rights of a child born posthumously. Under the Shastric law, if a child
was adopted by a widow, he was treated as a natural-born child and, consequently, he could
divest other members of the family of rights vested in them prior to his adoption. It was only
with the limited object of avoiding any such consequence on the adoption of a child by a Hindu
widow that these provisions in clause (c) of the proviso to s. 12, and section 13 of the Act were
incorporated. In that respect, the rights of the adopted child were restricted. It is to be noted that
this restriction was placed on the rights of a child adopted by either a male Hindu or a female
Hindu and not merely in a case of adoption by a female Hindu. This restriction on the rights of
the adopted child cannot, therefore, in our opinion, lead to any inference that a child adopted by a
widow will not be deemed to be the adopted son of her deceased husband. The second ground
taken on behalf of the appellant also, therefore, fails. The appeal is, consequently, dismissed with
costs.

Y.P. Appeal dismissed.

Supreme Court of India

Smt. Sitabai And Anr. vs Ramchandra on 20 August, 1969

Equivalent citations: AIR 1970 SC 343, (1969) 2 SCC 544, 1970 2 SCR 1

Bench: J Shah, A Grover, V Ramaswami

JUDGMENT

1. This appeal is brought by special leave from the judgment of the Madhya Pradesh High Court
dated September 7, 1965 in Second Appeal No. 275 of 1962.

2. Dulichand and Bhagirath were brothers and the properties concerned are, according to the
written statement of the defendant himself, ancestral. Plaintiff Sitabai is the widow of Bhagirath,
who pre-deceased Dulichand, his elder brother sometime in 1930. It is the admitted case of both
the parties that after Bhagirath died, the plaintiff Sitabai was living with Dulichand as a result of
which connection an illegitimate child defendant Ramchandra was born in 1935. Dulichand died
on March 13, 1958. Sometime before his death Sitabai adopted plaintiff no. 2 Suresh Chandra
and an adoption deed was executed on March 4, 1958. After the death of Dulichand Ramchandra
took possession of the joint family properties. The plaintiff therefore brought the present suit for
ejectment of the defendant Ramchandra, the illegitimate son of Dulichand from the disputed
properties. The suit was contested by the defendant on the ground that Dulichand had in his
lifetime surrendered the lands to the Jagirdar who made re-settlement of the same with the
defendant. As regards the house the contention of the defendant was that Dulichand had executed
a will before his death making a bequest of his house entirely to him. The trial court decided all
the issues in favour of the plaintiff and A granted the plaintiffs a decree for possession with
regard to the land and the house. The defendant took the matter in appeal to the District Judge
who modified the decree. The District Judge took the view that the will executed by Dulichand
was valid so far as half of his share in the house was concerned and, therefore, defendant was
339
entitled to claim half the share of the house in dispute. The defendant preferred a second appeal
before the Madhya Pradesh High Court which reversed the decree of the lower courts and held
that the plaintiff was not entitled to any relief and the suit should be dismissed in its entirety. The
High. Court held that plaintiff no. 2 became the son of plaintiff no. 1 in 1958 from the date of
adoption and did not obtain any coparcenary interest in the joint family properties. The High
Court C thought that on the date of adoption Dulichand was the sole coparcener and there was
nobody else to take a share of his property and plaintiff no. 2 had no concern with the
coparcenary property in the hands of Dulichand.

3. The first question to be considered in this appeal is whether the High Court was right in
holding that plaintiff no. 2 Suresh Chandra at the time of his adoption by plaintiff no. 1 did not
become a coparcener of Dulichand in the joint family properties. It is the admitted case of both
the parties that the properties consisted of agricultural land and a house jointly held by Bhagirath
and Dulichand. After the death of Bhagirath, Dulichand became the sole surviving coparcener of
the joint family. At the time when plaintiff no. 2 Suresh Chandra was adopted the joint family
still continued to exist and the disputed properties retained their character of coparcenary
properties. It has been pointed out in Gowli Buddanna v. Commissioner of Income-tax, Mysore
60 I.T.R. 293 (S.C.) that under the Hindu system of law a joint family may consist of a single
male member and widows of deceased male members and that the property of a joint family did
not cease to belong to a joint family merely because the family is represented by a single
coparcener who possesses rights which an absolute owner of property may possess. In that case,
one Buddappa. his wife, his two unmarried daughters and his unmarried son, Buddanna, were
members of a Hindu undivided family. Buddappa died and after his death the question arose
whether the income of the properties held by Buddanna as the sole surviving coparcener was
assessable as the individual income of Buddanna or as the income of the Hindu Undivided
Family. It was held by this Court that since the property which came into the hands of Buddanna
as the sole surviving coparcener was originally joint family property, it did not cease to belong to
the joint family and income from it was assessable in the hands of Buddanna as income of the
Hindu Undivided Family. As pointed out by the Judicial Committee in Attorney General of
Ceylon v. A. R. Arunachalam Chettiar, 1957 A.C. 540, it is only by analyzing the nature of the
rights of the members of the undivided family, both those in being and those yet to be born, that
it can be determined whether the family property can properly be described as 'joint property' of
the undivided family. In that case one Arunachalam Chettiar and his son constituted a joint
family governed by the Mitakshara school of Hindu law. The father and son were domiciled in
India and had trading and other interests in India, Ceylon and Far Eastern countries. The
undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu
undivided family to which a number of female members belonged. Arunachalam died in 1938,
shortly after the Estate Ordinance no. 1 of 1938 came into operation in Ceylon. By Section 73 of
the Ordinance it was provided that property passing on the death of a member of the Hindu
undivided family was exempt from payment of estate duty. On a claim to estate duty in respect
of Arunachalam's estate in Ceylon, the Judicial Committee held that Arunachalam was at his
death a member of the Hindu undivided family, the same undivided family of which his son,
when alive, was a member and of which the continuity was preserved after Arunachalam's death
by adoption made by the widows of the family and since the undivided family continued to
persist, the property in the hands of Arunachalam as a single coparcener was the property of the
Hindu undivided family. The Judicial Committee observed at p. 543 of the report.

...though it may be correct to speak of him as the 'owner', yet it is still correct to describe that
which he owns as the joint family property. For his ownership is such that upon the adoption of a
son it assumes a different quality; it is such, too, that female members of the family (whose
340
members may increase) have a right to maintenance out of it and in some circumstances to a
charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-
called ownership, just because the property has been and has not ceased to be joint family
property. Once again their Lordships quote from the judgment of Gratiaen, J. 'To my mind it
would make a mockery of the undivided family system if this temporary reduction of the
coparcenary unit to a single individual were to convert what was previously joint property
belonging to an undivided family into the separate property of the surviving coparcener.' To this
it may be added that it would not appear reasonable to impart to the legislature the intention to
discriminate, so long as the family itself subsists, between property in the hands of a single
coparcener and that in the hands of two or more coparceners.

The basis of the decision was that the property which was the joint family property of the Hindu
undivided family did not cease to be so because of the "temporary reduction of the coparcenary
unit to a single individual". The character of the property, viz. that it was the joint property of a
Hindu undivided family, remained the same. Applying the principle to the present case, after the
death of Bhagirath the joint family property continued to retain its character in the hands of
Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of
maintenance out of the joint family properties.

4. The question next arises whether Suresh Chandra, plaintiff no. 2, when he was adopted by
Bhagirath's widow became a coparcener of Dulichand in the Hindu joint family properties. The
High Court has taken the view that Suresh Chandra became the son of plaintiff no. 1 with effect
from 1958 and plaintiff no. 2 would not become the adopted son of Bhagirath in view of the
provisions of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956). It was argued
on behalf of the appellant that the High Court was in error in holding that the necessary
consequence of a widow adopting a son under the provisions of Act 78 of 1956 was that the
adoptee would be the adopted son of the widow and not of her deceased husband. In our view the
argument put forward on behalf of the appellant is well-founded and must be accepted as correct.
Section 5(1) of Act 78 of 1956 states :

(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in
accordance with the provisions contained in this chapter....

Section 6 deals with the requisites of a valid adoption and provides :

No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption.

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

Sections 7 and 8 relate to the capacity of a male Hindu and a female Hindu to take in adoption.
Under Section 7 any male Hindu who is of sound mind and is not a minor has the capacity to
take a son or a daughter in adoption. If he is married, requires the consent of his wife in
connection with the adoption. A person having more than one wife is required to have the
consent of all his wives. Under Section 8 any female Hindu, who is of sound mind and not a
341
minor is stated to have capacity to take a son or a daughter in adoption. The language of this
section shows that all females except a wife have capacity to adopt a son or a daughter. Thus, an
unmarried female or a divorcee or a widow has the legal capacity to take a son or a daughter in
adoption. Section 11 relates to "other conditions for a valid adoption".

Clause (vi) of Section 11 states :

(vi) the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the family of its
birth to the family of its adoption.

Section 12 enacts:

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from such date all the ties of the child in
the family of his or her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family; Provided that-

(a) ... ... ...

(b) ... ... ...

(c)the adopted child shall not divest any person of any estate which vested in him or her before
the adoption.

Section 14 provides:

(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive
mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior-most in
marriage among them shall be deemed to be the adoptive mother and the others to be step-
mothers.

(3) Where a widower or a bachelor adopts a child any wife whom he subsequently marries shall
be deemed to be the step-mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries
subsequently shall be deemed to be the step-father of the adopted child.

5. It is clear on a reading of the main part of Section 12 and Sub-section (vi) of Section 11 that
the effect of adoption under the Act is that it brings about severance of all ties of the child given
in adoption in the family of his or her birth. The child altogether ceases to have any ties with the
family of his birth. Correspondingly, these very ties are automatically replaced by those created
by the adoption in the adoptive family. The legal effect of giving the child in adoption must
therefore be to transfer the child from the family of its birth to the family of its adoption. The
result is, as mentioned in Section 14(1) namely where a wife is living, adoption by the husband
results in the adoption of the child by both these spouses; the child is not only the child of the
adoptive father but also of the adoptive mother. In case of there being two wives, the child
becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the
342
step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets
married subsequent to the adoption, his wife becomes the step-mother of the adopted child.
When a widow or an unmarried woman adopts a child, any husband she marries subsequent to
adoption becomes the step-father of the adopted child. The scheme of Sections 11 and 12,
therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the
adoptive family to which the widow belonged. In other words the child adopted is tied with the
relationship of sonship with the deceased husband of the widow. The other collateral relations, of
the husband would be connected with the child through that deceased husband of the widow. For
instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter
of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this
way, the adopted son would become a member of the widow's family, with the ties of
relationship with the deceased husband of the widow as his adoptive father. It is true that Section
14 of the Act does not expressly state that the child adopted by the widow becomes the adopted
son of the husband of the widow. But it is a necessary implication of Sections 12 and 14 of the
Act that a son adopted by the widow becomes a son not only of the widow but also of the
deceased husband. It is for this reason that we find in Sub-section (4) of Section 14 a provision
that where a widow adopts a child and subsequently marries a husband, the husband becomes the
"step-father" of the adopted child. The true effect and interpretation of Sections 11 and 12 of Act
No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child
in the family of his or her birth become completely severed and these are all replaced by those
created by the adoption in the adoptive family. In other words the result of adoption by either
spouse is that the adoptive child becomes the child of both the spouses. This view A is borne out
by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat, 67
B.L.R. 864. It follows that in the present case plaintiff no. 2 Suresh Chandra, when he was
adopted by Bhagirath's widow, became the adopted son of both the widow and her deceased
husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family
properties. After the death of Dulichand, plaintiff no. 2 became the sole surviving coparcener and
was entitled to the possession of all joint family properties. The Additional District Judge was,
therefore, right in granting a decree in favour of the plaintiff no. 2 declaring his title to the
agricultural lands in the village Palasia and half share of the house situated in the village.

6. It is contended on behalf of the respondent that the rights of the Inamdar's tenants were not
heritable under the Madhya Bharat Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950)
and therefore the plaintiffs could not claim to become the Inamdar's tenants after the death of
Dulichand in the absence of a contract between the Inamdar and themselves. Reference was
made to Sections 63 to 88 dealing with the rights of pakka tenants and it was argued that there
was no provision in the Act dealing with the rights of an ordinary tenant.

Section 87 states:

An ordinary tenant is entitled to hold the land let to him in accordance with such terms as may be
agreed upon with the person from whom he holds, provided that they are not inconsistent with
the provisions of this Act.

Section 89 deals with the rights of sub-tenants and reads:

(1) A sub-tenant is entitled to hold the land let to him in accordance with such terms as may be
agreed upon with the person from whom he holds, subject to his compliance with the general
conditions of tenancy as laid down in Section 55, provided that he shall, in no circumstances,
lease out the land to any person.
343
........

It is not possible to accept the argument advanced on behalf of the respondent that under the
scheme of Act 66 of 1950 the rights of ordinary tenant are not heritable. It is true that there are
special provisions with regard to heritability as regards pakka tenant. But in the absence of any
special statutory provision, the heritability of ordinary tenancies must be governed by the
personal law of the tenants concerned. Section 86 of the Act contains provisions with regard to
mutation of names. Sub-section (1) of Section 86 states:

When a holder of land, other than an assignee of proprietary rights, loses his rights, in any land
in a village by death or by surrender or abandonment of the land or by transfer of his rights to
any other person, or by dispossession or otherwise, the patwari of the village in which the land is
situated shall forthwith report the fact to the Tehsildar intimating the name of the new holder and
the grounds on which the latter claims to succeed to the title of the former holder. Any person
claiming to succeed to the title of the former holder may also apply to the Tehsildar for the
mutation of his name within a period of two years from the date the last holder loses his rights.
The section applies to all classes of tenants and contemplates heritability and transferability of
the rights of a tenant or a subtenant. We accordingly reject the argument of the respondent that
the rights of Dulichand were not heritable.

7. It is also urged on behalf of the respondent that the jurisdiction of the Civil Court was barred
by the provisions of the Madhya Bharat Land Revenue Administration and Ryotwari Land
Revenue and Tenancy Act, 1950 (Act no. 66 of 1950). This issue was decided against the
respondent in the trial court and also in the first appellate court. The decision of the lower courts
on this point was not challenged in the High Court and it is not permissible for the respondent to
raise this question at this stage.

8. For the reasons already given we hold that the judgment and decree of the High Court of
Madhya Pradesh dated September 7, 1965 in Second Appeal no. 275 of 1962 should be set aside
and the judgment and decree of the Additional District Judge, Indore dated April 21, 1962 in
First Appeal No. 26 of 1961 should be restored. This appeal is accordingly allowed with cost

Kerala High Court

Philips Alfred Malvin vs Y.J. Gonsalvis And Ors. on 5 January, 1999

Equivalent citations: AIR 1999 Ker 187, I (2000) DMC 540

Bench: D Sreedevi

JUDGMENT D. Sreedevi, J.

1. This appeal is directed against the decree and judgment in A.S. No. 92 of 1989 of the Sub
Court, Thalassery, which was filed against the decree and judgment in O.S. No. 458 of 1987 of
the Munsiffs Court, Kannur. The plaintiff before the trial Court is the appellant.

2. The case of the appellant is that the plaint schedule property originally belonged to deceased
George Correa and his wife Jane Correa, as per document No. 912/1955. Jane Correa
predeceased her husband George Correa. She died on 2-11-1970. George Correa died on 18-12-
1976. His legal representatives are the plaintiff and defendants 1 and 2 and another son Malvin,
344
who is no more. The legal representatives of Malvin Correa are defendants 3 to 8. The plaintiff
claiming to be the adopted son of George Correa sued for partition of the plaint schedule
property.

2A. The defendants contended that the suit is not maintainable, that the plaintiff is not the
adopted son of deceased George Correa, that George Correa never adopted him as his son, that
Christian Law has never recognised adoption and hence the plaintiff has no right over the plaint
schedule property.

3. The trial Court passed a preliminary decree for partition. Aggrieved by the said decree and
judgment, the defendants filed A.S. No. 92 of 1989 before the Sub Court, Thalassery. The
learned Sub Judge allowed the appeal setting aside the decree and judgment of the trial Court and
dismissed the suit. Aggrieved by the said decree and judgment of the Sub Court, the plaintiff has
preferred this appeal.

4. The only question that arises for consideration in this appeal is whether George Correa had
adopted the plaintiff as his son and if so is he entitled to any share over the plaint schedule
property.

5. Considering the importance of the question involved in this case, at the instance of the counsel
for the appellant, Mr. V. Giri, Advocate, was appointed as amicus curiae to assist the Court. He
has brought to my notice the scope of adoption, the various provisions of law and custom
prevailing among the various communities in India. The learned Counsel for the appellant
submitted that Christian Law does not recognise adoption and as such the plaintiff cannot claim
any share over the plaint schedule property, as the adopted son of George Correa. The defendants
also deny the status of the plaintiff as the adopted son of Correa couple.

6. The plaintiff claims to be the adopted son of George Correa and Jane Correa. According to
him, he was adopted by Correa couple on 8-6-1946 at Kannur Holy Trinity Church. The first
defendant does not challenge the status of the plaintiff as the adopted son of Correa couple. The
second defendant admits that the plaintiff was living with her parents and that he had been given
all sorts of facilities and encouragements as that of a member of the family. In paragraph 6 of the
written statement the second defendant admits as follows :

"The plaintiff is seeking to put forward a case that he is the adopted son of George Correa merely
on the basis of the close relationship that existed between him and the family of George Correa.
He was treated by this defendant as well as the other children of the George Correa as a relation
of theirs and he was also allowed to partake of their hospitality and he was given a lot of
encouragement and help by them. This close association cannot take the place of a legal adoption
of the plaintiff by George Correa. Adoption is a positive legal act. It is not a situation that arises
in consequence of the relationship between the parties or the acceptance of a relationship very
close to each other. In fact the plaintiff is grossly misusing the kindness and love that has been
shown to him by this defendant, her husband and the George Correa."

From the above statements, a clear picture of a son living along with Correa couple can be seen.
Till the date of death of George Correa the plaintiff was living with him and thereafter he was
residing with the second defendant, enjoying all the facilities of a brother. Thus, from the
admissions of the second defendant, it is clear that the plaintiff was treated as a member of the
family by Correa couple and subsequently by the defendant. The other defendants, except the
second defendant, have no objection regarding the status of the plaintiff. The second defendant
345
would contend that Correa couple have not adopted the plaintiff as their son. Christian Law also
does not recognise adoption. But it is an admitted fact that the Christian Law does not prohibit
adoption. The Hindu Adoptions and Maintenance Act provides for adoption of children by Hindu
parents. The main purpose of law of adoption is to provide consolation and relief to childless
person. An adopted child is transplanted in the adoptive family creating all rights and
relationships as if the child was a biological child. On the other hand, all his rights and
relationships cease in the natural family. So far as Hindus are concerned, adoption is to preserve
the continuation of ones lineage. Apart from the religious motives, secular motives were also
important such as man's desire for celebration of his name for the perpetuation of his lineage, for
providing security in the old age and for dying in satisfaction that one has left a heir to one's
property. It is essentially a transfer of dominion over the child from the natural parents to the
adoptive parents and therefore some essential formalities were prescribed to effectuate the
transfer on dominion. The position of an adopted child in respect of inheritance and maintenance
is the same as that of a natural born child. Nowadays inter-country adoption is promoted for
which the Apex Court has given some guidelines in Lakshmi Kant Pande v. Union of India, AIR
1984 SC 469.

7. Let us see whether the plaintiff was adopted by the Correa couple. In order to prove adoption,
the plaintiff has produced Ext. A2 extract from the Register of Baptism kept in the Holy Trinity
Church, Kannur, where the alleged adoption took place. Ext. A2 reads as follows :

"Illegitimate child of Anna, adopted by the god parents, mother gave her consent for the adoption
and Catholic education, to the god parents. Both Anna and John were Marthomites from
Travancore as per the entry in the Baptism Register."

Even though the second defendant's counsel objected to the admissibility of Ext. A2, the Court
below did not find any reason to reject the evidence of Ext. A2. The plaintiff has summoned the
baptism register and the parish priest, who is in custody of Ext. A2. He was examined as PW-2.
PW-2 proved the baptism register and the contents of Ext. A2. Thus, the plaintiff has proved that
on 8-6-1946 the plaintiff was baptised as the son of Correa couple and that he was adopted by
them at the Holy Trinity Church, Kannur.

8. The Canon Law does not prohibit adoption. The Code of Canon Law, commissioned by the
Canon Law Society of America, goes to show that Canon 110 relates to adoption, which reads as
follows:

"Children who have been adopted according to the norm of civil taw are considered as being the
children of the person or persons who have adopted them.

Adopted children are usually not at all, or occasionally not wholly, related to the parents
adopting them..........................Church law adopts the civil law pertinent to the area and states
that adopted children are held to be the equivalent of natural children of an adopting couple in
those instances in which adoption has been duly formalized according to the Civil Law."

Canon 111 provides, that-

"A child of parents who belong to the Latin Church is ascribed to it by reception of baptism, or,
if one or the other parent does not belong to the Latin Church and both parents agree in choosing
that the child be baptized in the Latin Church, the child is ascribed to it by reception of baptism

346
but, if the agreement is lacking, the child is ascribed to the Ritual Church to which the father
belongs."

From the above Canon Laws, it can be seen that the Church has adopted civil law pertaining to
the area. Therefore, adoption made by Correa couple cannot be said to be invalid.

9. Mohammaden Law also recognise adoption if there is custom prevailing among Mohammaden
communities. The custom is accepted to have the force of law, as is held in AIR 1936 Lahore
465. Section 29 of the Oudh Estates Act, 1869 permits a Mohammedan Talukdar to adopt a son.
In the State of Jammu & Kashmir, the existence of local custom regarding adoption has been
recognised by virtue of Sri Pratap Jammu & Kashmir Laws Consolidation Act, 1977. The right
of the couple to adopt a son is a constitutional right guaranteed under Article 21. The right to life
includes those things which make life meaningful. Correa couple might have thought of making
their life more meaningful by adopting a son.

10. Thus, the Hindu Law, Mohammedan Law and Canon Law recognize adoption. Therefore,
simply because there is no separate statute providing adoption, it cannot be said that the adoption
made by Correa couple is invalid. Since the adopted son gets all the rights of a natural born child,
he is entitled to inherit the assets of George Correa couple. The learned Subordinate Judge went
wrong in holding that unless adoption is recognised either by personal law, custom or by Canon
Law, the first respondent cannot claim right over the plaint schedule property, as the adoption
itself is invalid in the eye of law. Therefore, the decree and judgment appealed against are liable
to be set aside.

In the result, the appeal is allowed and the decree and judgment in A.S. No. 92 of 1989 are set
aside and the decree and judgment of the trial Court are restored. No costs.

I place on record my appreciation to Mr. V. Giri, Advocate, for the services rendered by him.

Rajasthan High Court

Heera Lal vs Board Of Revenue & Ors. on 5 February, 2001

citations: AIR 2001 Raj 318,

Bench: . A Lakshmanan, H R Panwar

ORDER Lakshmanan, C.J.

(1). The unsuccessful petitioner in the wril petition is the appellant in this appeal. The
appellant filed the writ petition to quash the judgment of the Board of Revenue dated 28.6.74
(Anx. 5). and to restore the judgment of the Sub Divisional Officer, Udaipur dated 18.12.1968
(Anx. 3) and to dismiss the suil of the respondent No. 4 Shanker Lal (Plaintiff).

(2). The dispute in this appeal lies in a very narrow compass. The facts found by the courts below
have not been disputed before us. Before proceeding further to deal with the facts of this case it
is better to refer to the family tree.

347
 Gangal Ram
______________________|__________________________
| | | |
Prithvi Raj Girdhari | |
| | | |
Dev Kishan Hari Lal Gulab Bhagwan
(Son) (Son) (son) (died in 1910)
|
(petitioner (petnr. No. 2 (Resp. No. 5 Champa
No. 1 in in writ in writ (widow)
writ petition) petition) |
Petition) Shanker Lal

(adopted on
12.12.1959
for herself
and to her
deceased
husband)
(Plaintiff)

It is seen from the above family tree that Ganga Ram had three sons Pritnvi Raj, Girdhari and
Bhagwan. Prithvi Raj's son is Dev Kishan who is petitioner No. 1 -defendant No.1 in the writ
petition. Girdhari had two sons, Hecra Lal (petitioner No.2 in the writ petition) and Gulab
(respondent No.5 in the writ petition), Bhagwan, the third son of Ganga Ram died in the year
1910 leaving behind his widow Champa. On 12.12.1959, Champa adopted Shanker Lal, the
fourth respondent herein-plaintiff in the suit.

(3). Shanker Lal filed the suil for division of holding on the allegation that the suit land originally
belonged to their ancester Ganga Ram and it has devolved on the parties who were co-tenants.
However, after the death of Dhagwan his two brothers got the land in dispute entered in their
own names and during the life time of Smt, Champa widow of Bhagwan they continued to put
her off on the pretext that she was a widow and whenever she made adoption Bhagwan's 1/3rd
share would be got entered in the name of the adopted son. However, even after his adoption
Prithvi Raj and Girdhari put Shanker Lal and his mother off on the pretext that they would give
possession of their l/3rd share when Shanker Lal comes up of age but when they did not do so
even after Shanker Lal attained majority it compelled Shanker Lal to file this suit for division of
holding. The defendants No.1 and 2 i.e. the petitioners contested the suit. However the defendant
No.3 admitted the plaintiff's claim.

(4). The trial court found that Shanker Lal's adoption was proved but as the adoption took place
in 1959 after the Hindu Adoption and Maintenance Act had come into force Shanker Lai could
not divest the property which had already vested in the other two coparceners i.e. Prithvi Raj and
348
Girdhari on the death of Bhagwan in 1910 A.D. The trial court held that under Section 12(c) of
the Hindu Adoption and Maintenance Act the adopted son Shankerlal was debarred from
divesting the property which had already vested in the other two coparceners. The suit was,
therefore, dismissed. The dismissal was upheld by the Revenue Appellate Authority by judgment
dated 9.7.1969. Shanker Lal filed a second appeal before the Board of Revenue. The Board of
Revenue held that even though the number of male coparceners is reduced to one the property
which was jointly owned by the coparceners at the time of death of one or more of them will still
continue to be a joint family property and that the property jointly belonged to Prithvi Raj,
Girdhari and Bhagwan and, therefore, on the death of Bhagwan the character of the property in
the hands of Prithvi Raj, Girdhari alongwith the widow of Bhagwan was still that of joint family
property. The Board of Revenue also answered the further question whether on his adoption
Shanker Lal became coparcener with the successors of Prithvi Raj and Girdhari. The Board of
Revenue held that on the adoption by Srnt. Champa, Shanker Lal became the son of Bhagwan
and, therefore, a coparcener with the heirs of Prithvi Raj and Girdhari and being a coparcener
Shanker Lal becomes contenant and was therefore entitled to ask for a division of holding under
Section 53 of the Rajas than Tenancy Act. In this context the Board of Revenue has placed relied
on few judgments of the Hon'ble Supreme Court. In the result the Board of Revenue had
accepted the appeal filed by Shanker Lal and set aside the judgment and decrees of the courts
below and passed a preliminary decree in favour of the fourth respondent Shanker Lal against the
defendants declaring that Shanker Lal will have l/3rd share in the property described in Schedule
'A' appended to the plaint.

(5). Being aggrieved, the legal representatives of Prithvi Raj and Girdhari filed Writ Petition No.
3140/74 and urged that the joint family property in question had already vested in the remaining
coparceners Prithvi Raj and Girdhari on the death of Bhagwan in 1910 and, therefore, heirs of
Prilhvi Raj and Girdhari could not be divested of the said property on account of adoption of
Shanker Lal by the widow of Bhagwan in view of the provisions of clause (c) of proviso to
Section 12 of the Act. Before the learned Single Judge following judgments were cited and relied
on by the parties-Sawan Ram vs. Mst. Kalawanti & Ors. (I), Sita Bai vs. Ramchandra (2), Anant
Bhik-kappa Patil vs. Shanker Ramchandra Patil (3), Srinivas Krishnarao Kango vs. Narayan
Devji Kango and Ors (4), Krishnamurthi Vasudeorao Deshpande & anr. vs. Phruwaraj (5),
Sripad Gajanan Suthankar vs. Dattaram Kashinath Suthankar & ors. (6), Gowli Buddanna vs.
Commissioner of Income-Tax, Mysore (7), Attorney General of Ceylon vs. Arunachalam
Chettlar & ors. (8), Moti Lal & ors. vs. Sardarmal & ors. (9), V.K. Nalvade & ors. vs. Ananda G.
Chavan & ors. (10), Krishnabai Shivram Patil vs. Ananda Shivram Patil (11), Yarlagadda
Nayudamma etc. vs. The Government of Andhra Pradesh & ors. (12), Shrisailappa & anr. vs.
Muttawwa & ors. (13), and Dunichand etc. vs. Paras Ram etc. (14). The learned Single Judge
after considering the rival submissions made by both parties and after analysing various
judgments cited before him on the principles laid down therein came to the conclusion that there
is no question of divesting of any coparcener of the properly vested in him would arise in this
case and so long as the property retains the character of a joint family properly each coparcener
has only fluctuating interest in such property which is liable to increase or decrease by addition
or diminution in the joint family. Construing Section 12(c) the learned Judge held that clause (c)
of the proviso to Section 12 does not refer to increase and diminution in the value of the interest
of a coparcener in the Hindu joint family property and it only prohibits divesting of any person
from the estate vested in him before the adoption of a child and if a fluctuating interest has
vested in a member of the Joint Hindu family, the same would be crystalised only upon partition
and separation of the shares of the members of the joint Hindu family. The learned Judge has
further observed that so long as joint family continues to exist and the disputed property reiains
the character of joint family property on the dale when the widow of the deceased coparcener
349
adopted a son to herself and her deceased husband, then the adopted son acquires his interest in
the joint family properly and does not divest the surviving coparceners of any estate vested in
them, inasmuch as, their fluctuating interest in the joint family properly is still retained and
continues to vesl in them. The learned Judge upheld the order of the Board of Revenue in
holding that Shanker Lal could maintain a suit for partition and had l/3rd share in'the joint family
properties which he could get separated by partition. The writ petition was accordingly
dismissed.

(6). Aggrieved by the order dated 29.7.1983 passed in the writ petition the above special appeal
was filed in the year 1984 which was now Us ted for final hearing before us.

(7). We heard Mr. M.C. Bhoot for the appellant and Mr. Dinesh Maheshwari for the contesting
4th respondent. Mr. M.C. Bhoot after stating the facts of the case raised a point of law as to
whether the 4th respondent Shanker Lal can divest the property vested in two brothers of late
Bhagwan as back as in 1910 when he was alleged (o be adopted on 12.12.1959. He has also cited
the following five decisions before us:

1. AnanI Bhikkappa Patil vs. Shanker Ramchandra Patil (supra)

2. Krishnamurthi Vasudeorao Deshpande & anr. vs. Dhruwaraj (supra)

3. Sawan Ram vs. Mst. Kalawanti & ors. (supra)

4. Sita Bai vs. Ramchandra (supra)

5. Dina Ji & ors. vs. Daddi & ors. (15) Mr. Bhoot, learned counsel for the appellant urged that
the joint family properly in question had already vested in the remaining coparceners Prithvi Raj
and Girdhari on the death of Bhagwan in the year 1910 and now the dependents of Prithvi Raj
and Girdhari could not be divested of the said property on account of adoption of Shanker Lal,
4th respondent by the widow of Bhagwan in view of the provisions of clause (c) of the proviso to
Section 12 of the Act.

(8). Per contra, it was urged by Mr. Dinesh Maheshwari that so long as the property in dispute
continues to be a joint family properly there was no question of divesting the parties from their
interest in the joint family property but the 4th respondent-plaintiff as a member of the joint
family was entitled to seek a division of the joint family property including the agricultural land
in question and seek separate possession of his share.

(9). Section 12 of the Hindu Adoption and Maintenance Act, 1956 runs as follows;-

"12. Effect of Adoption.-An adopted child shall be deemed to be the child of, his or her adoptive
father or mother for all purposes with effect from the date of the adoption and from such date all
the ties of the child in the family of his or her birth shall be deemed to be served and replaced by
those created by the adoption in the adoptive family.

Provided that-

(A) The child cannot marry any person whom he or she could not have married if he or she had
continued in the family of his or her birth;

350
(B) Any property which vested in the adopted child before the adoption shall continue to vest in
such person subject to the obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of his or her birth;

(C) The adopted child shall not divest any person of any estate which vested in him or her before
the adoption."

This section, in its one aspect, confirms the pre-Act position that on adoption a child for all
intents and purposes becomes the child of not merely of adopters or adopter but also of the
adoptive family and all his ties with the natural family come to an end from the date of adoption.
Thus adoption will have the following effects :

(a) The adopted child for all purposes be deemed to be the child of its adoptive parent or parents;

(b) All the ties of the child in the nalural family will stand terminated from the date of adoption,
except the ties of blood for the purposes of marriage.

(c) All the ties of the child will come into existence in the adoptive family from the dale of
adoption.

The adopted child is deemed to be the child of the adopter for all purposes and his posilion for all
intends and purposes is that of a natural born son. He has the same right, privilege and the same
obligation in the adoptive family as held by the High Court of Bombay in Kesharpai vs. State of
Maharashtra (16). In the instant case the adoption was made by the widow of Bhagwan who is
also a coparcener with others. It is well established proposition of law that when a coparcener
dies his individual interest devolves on surviving coparceners by survivorship. Moment the
widow of a coparcener adopts a son, the adopted son becomes a coparcener with the surviving
coparceners of the adoptive father and consequently acquires the same interest which his
adoptive father would have in the property had he been living. This was on account of the
doctrine of relating back. The child adopted by the widow of the coparcener became the child of
the deceased coparcener from the dale of the death of the coparcener. Mr. Bhoot relied on certain
passages in Anant Bhikkappa Patil vs. Shankar Ramchandra Patil (supra). In the above case the
position of a son adopted by a Hindu widow under the Shastric Hindu Law, with respect to his
rights in the joint family properties of the adoptive father, was explained by the Privy Council.
The Privy Council held that the power of a Hindu widow to adopt a son does not come to an end
on the death of the sole surviving coparcener. It does not depend upon vesting or divesting of the
estate nor the right to adopt is defeated by partition between the coparceners. The Privy Council
also held that on the death of a sole surviving coparcener a Hindu Joint Family cannot be finally
brought to an end while it is possible in nature or law to add a male member to it. The joint
family cannot come to an end while there is still potential mother and that mother can by nature
or by law can bring a new male member in the joint family. The fact that the property had vested
in the mean time in the heir of the sole surviving coparceners would not itself affect the right of
the adopted son and the adoption of a son by a widow of the deceased coparcener would have the
effect of divesting the surviving coparceners and vesting the property in the adopted son to the
extent of his adoptive father's share in the joint family property. Thus in our view the adoption
by the widow Champa will divest the other coparceners and their legal representatives of the
interest of her husband Bhagwan in the joint family property notwithstanding a partition amongst
the surviving coparceners after the death of her husband. However, the aforesaid Privy Council
judgment was not followed by the Supreme Court in Srinivas Krishnarao Kango vs. Narayan
Devji Kango (supra). Mr. Bhoot also relied on the judgment in Krishnamurthi Vasudeorao
351
Deshpande & anr. vs. Dhruwaraj (supra), The Supreme Court in this judgment has summarised
the principles deducible from its decision in Srinivas Krishnarao Kango vs. Narayan Devji
Kango (supra) as under:-

"(i) An adopted son is held entitled to take in defeasance of the rights acquired prior to his
adoption relates bak, by a legal fiction, to the dale of the death of his adoptive father, he being
put in the position of a posthumous son.

(ii) As a preferential heir, an adopted son (a) divests his mother of the estate of his adoptive
father; (b) divests his adoptive mother of the estate she gets as an heir of her son who died after
the death of her husband;

(iii) A coparcenary continues to subsist so long as there is in existence a widow of a coparcener

capable of bringing a son into existence by adoption; and if the widow made an adoption, the
rights of the adopted son are the same as if he had been in existence at the time when his
adoptive father died arid that his title as coparcener prevailed as against the tiile of any person
claiming as heir to the last coparcener.

(iv) The principle of relation back applies only when the claim made by the adopted son relates
to the estate of his adoptive father. The estate may be definite and ascertained, as when, he is the
sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a
joint Hindu family in which the interest of the coparceners is liable to increase by death or
decrease by birth. In either case, it is the interest of the adoptive father which he adopted son is
declared entitled to take as on the dale of his death. This principle of relation back cannot be
applied when the claim made by the adopled son relates not to the estate of his adoptive father
but to that of a collateral, with reference to the claim with respect to the estale of a collateral, the
governing principle is that inheritance can never be in abeyance, and that once il devolves on a
person who is the nearest heir under the law, it is thereafler not liable to be divested when
succession to the properties of a person other than an adoptive father is involved. The principle
applicable is not the rule of relation back but the rule that inheritance once vested could not be
divested."

(10). The principle of relation back was further considered by the Supreme Court in Shripad
Gajanan Suthankar vs. Dattaram Kashinath Suthankar & Ors, (supra). Mr. Bhoot next cited the
decision of the Supreme Court in Sawan Ram vs. Smt. Kalawanti (supra), wherein it was held
that on adoption by a widow the adopted son must be deemed to be a member of the family of
the deceased husband of the widow more so because he loses all his rights in the family of his
birth and the rights are replaced by the rights created by adoption in the adoptive family. The
adopted son obtains the right to succeed to the property in the adoptive family in his capacity as
the adopted son of the deceased husband of the widow and thereby becomes a member of the
family. Mr. Bhoot further relied upon the observations made in para 9 of the above judgment
(Sawan Ram's case) wherein the Supreme Court explained the effect of Section 12(c) of the Act
by making the following observations;

"It appears that by making such a provision, the Act has narrowed down the rights of a child born
posthumously. Under the Shaslric Law, if a child was adopted by a widow, he was treated as a
natural-born child and, consequently, he could divest other members of the family of rights
vested in them prior to his adoption. It was only with the limited object of avoiding any such
consequence on the adoption of a child by a Hindu widow that these provisions in Cl. (c) of the
proviso to Sec. 12 and Sec. 13 of the Act were incorporated. In thai respect, the rights of the
352
adopted child were restricted. It is to be noted that this restriction was placed on the rights of a
child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by
a female Hindu."

Mr. Bhoot next relied upon a decision in Sita Bai vs. Ramchandra (supra). In this case the
provisions of Section 12 of the Act were again considered by the Supreme Court.

In the said case the facts were that the properties consisting of agricultural lands and a house was
jointly held by one Bhagirath and his brother Dulichand. Bhagiralh died sometime in the year
1930 leaving his widow Sita Bai and after the dealh of Bhagirath Dulichand became me sole
surviving coparcener of the joint family. Sita Bai adopted Suresh Chandra on 4.3.1958 after
coming into force of the Act. The Supreme Court noled the fact that at the time Suresh Chandra
was adopted the joint family still continued to exist and the disputed properties retained their
character of coparcenary property. Relying upon Gowli Buddanna vs. Commissioner of Income
Tax (supra), the Supreme Court observed that under the Hindu system of law a joint family may
consist of a single male member and widows of deceased male members and that the property of
a join! family did not cease to belong to the joint family merely because the family is represented
by a single coparcener who possesses rights which an absolute owner of the property may
possess. A judgment of the Supreme Court in Dina Ji & ors. vs. Daddi & ors. (supra), was also
cited by the learned counsel for the appellant. In that case one Dinaji filed a suit for injunclon
and possession on the basis of registered sale-deed executed by one Yashoda Bai in his favour
with respect of immovable property including agricultural land and houses. The property
originally belonged to Yashoda Bai's husband and after his death she got it as limited owner and
by influx of time and by coming into force of the Hindu Succession Act, she acquired the rights
of an absolute owner. On 24.3.1963, she adopted respondent Nain Singh as her son and executed
a adoption document which was not registered. The trial court admitted the same in evidence in
proof of adoption. In the adoption deed it is stated that the adopted son will be entitled to the
whole property including movable and immovable and adoptive mother will have no right to
alienate any part of the property after the deed of adoption, the trial court decreed the suit. The
appellate court dismissed the suit setting aside the decree passed by the trial court. The learned
Single Judge of the High Court considering the impact of Section 12 of the Act held that the
adopted son in view of the proviso (c) to Section 12 of the Act will only be entitled to properly
after the death of the adoptive mother, but the learned Judge felt that the further covenant in the
adoption deed deprived her of that right and conferred that right on the adopted son. On this basis
the High Court came to the conclusion that the widow after executing this deed of adoption had
no right left in the properly and therefore a transfer executed by her will not confer any title on
the plaintiff. It is on this basis that the High Court maintained the judgment of the lower
appellate court dismissing the suit of the plaintiff appellant. By special leave the appeal was
taken to the Supreme Court. The Supreme Court construed Section 12(c) of the Act and held that
this proviso departs from the Hindu General Law and makes it clear that the adopted child shall
not divest any person of the estate which has vesled in him or her before the adoption.
Construing the facts and circumstances of the said case, the Supreme Court held that in the said
case Yashoda Bai who was the limited owner of the property after the death of her husband and
after the Hindu Succession Act came into force, has become an absolute owner and therefore, the
properly of her husband vested in her and therefore merely by adopting a child she could not be
deprived of any of her rights in the properly and the adoption would come into play and the
adopted child could get the rights for which he is entitled after her death as is clear from the
scheme of Section 12 Proviso (C). The Supreme Court in this case after construing Section 12 of
the Act and Section 17(1)(b) of the Registration Act set aside the judgments of the High Court

353
and of the lower appellate court and restored the judgment of the trial court. This judgment, in
our opinion, is distinguishable on facts and law with' the case on hand.

(11). Mr. Dinesh Maheshwari, learned counsel for the fourth respondent took us through the
pleadings and the judgments rendered by the courts below and of the learned Single Judge and
submilted that the question involved in Ihis case now stands conclusively answered by the
Supreme Court in the two decisions in Vasant & anr. vs. Dattu & ors. (17), and Dharma Shamrao
Agalawe vs. Pandurang Miragu Agalawe (18), In Vasant vs. Dattu (supra), the Supreme Court
was considering the .scope of the joint family and the effect of the adoption of a child. The
Supreme Court held that the shares of other members of family get decreased because of the
adoption and that they are however not divested of any estate vested In them. It is also held that
provision (c) to Section 12 does not preclude the adopted child from claiming his share in joint
family properties. Paras 1 and 5 of the said judgment can be usefully reproduced hereunder:

"We are concerned wilb proviso (c) to S. 12. The introduction of a member into a joint family,
by birth or adoption, may have the effect of decreasing the share of the rest of the members of
the joint family, but it certainty does not involve any question of divesting any person of any
estate vested in him. The joint family continues to hold the estate, but, with more members, than
before. There is no fresh vesting or divesting of the estate in anyone.

3. The learned counsel for the appellants have urged that on the death of a member
of a joint family the property must be considered to have vesled in the remaining
members by survivorship. It is not possible to agree with this argument. The
property, no doubt passes by survivorship, but there is no question of any vesting
or divesting in the sense contemplated by

Sec. 12 of the Act. To interpret Sec, 12 to include cases of devolution by survivorship on the
death of a member of the joint family would be to deny any practical effect to the adoption made
by the widow of a member of the joint family. We do not think that such a result was in the
contemplation of Parliament at all."

(12). In Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe and Ors, (supra), the
Supreme Court was consideryig the question whether a person adopted by Hindu widow after
coming into force of the Hindu Adoption nnd Maintenance Act, 1956 can claim a share in the
properly which had devolved on sole surviving coparcener on the death of the husband of the
widow who took him in adoption, fn this case one Shamrao died leaving behind him two sons
Dharma and Miragu. Miragu died issueless in the year 1928 leaving behind him his widow
Champabai, The properties owned by the joint family of Dharma and Miragu passed on to the
hands of Dharma who was the sole surviving coparcener on the death of Miragu. Under the law
as it stood then, Champabai had only a right of maintenance in the joint Family property. The
Act came into force on 21st December, 1956. On 9.8.1968 Champabai took one Pandurang in
adoption and immediately thereafter a suit was filed by Pandurang and Champabai for partition
and separate possession of one-half share in the properties of the joinl family, of which Dharma
and Miragu were coparceners? the suit was resisted by Dharma on the ground thai Pandurang
was not entitled to claim any share in the properlies which originally belonged to the joint family
in view of clause (c) of the proviso to Section 12 of the Act and the properlies which had been
sold by him in favour of third parlies could not in any event be the subject-matter of the partition
suit. The trial court dismissed the suit. The appeal filed by the widow and the adopted son before
the Dislrict Judge was allowed and the preliminary decree for partition in favour of Pandurang
and Champabai and separate possession of one-half share of the joint family properties except
354
the two fields which had been sold earlier in favour of their parlies. Aggrieved by the decree of
the District Judge, an appeal was filed before the High Court which affirmed the decree passed
by the District Court following the decision in Y.K. Nalavade vs. Ananda G. Chavan (supra), in
which it was observed that clause (c) of the proviso to section 12 of the Act was not a bar to such
a suit for partition. An appeal by special leave was filed by the appellant against the judgment of
the High Court of Bombay before the Supreme Court. Before the Supreme Court the appellant
urged only the question that the suit for partiiion should have been dismissed by the High Court
as the adopted child Pandurang could not divest Dharma of any part of the estate which had been
vested in him before the adoption in view of clause (c) of proviso to section 12 of the Act. The
Supreme Court in this judgment approved the decisions in Y.K. Nalavade vs. Ananda G. Chavan
(supra) and Vasant vs. Daltu (supra) and relied on Sita Bai vs. Ram Chandra (supra).

(13). In this case it was argued before the Supreme Court that Pandurang became the child of the
adoptive molher for all purposes with effect from the date of adoption and only from that dale all
the ties of Pandurang in the family of his birth should be deemed to have been severed and
replaced by those created by the adoption in the adoptive family and, therefore, Pandurang, the
adopted son could not claim a share in the joint family properlies which had devolved on the
appellanl by survivorship on the death of Miragu, In support of this conlention, the judgment in
Sawan Ram's (supra) was relied upon. The Supreme Court after analysing the facts involved in
Sawan Ram's case (supra) and the facts and circumstances of the decision of the Andhra Pradesh
High Court in Narra Hanumantha Rao vs. Narra Hanumayya (19), which was cited before the
Supreme Court was of the opinion that the observations at page 1765 of Sawan Ram's case
(supra) appear to support the case of the appellant. Rut however the Court was of the view that
these observations were not necessary for deciding the case which was before the court and,
Iherefore, they have to be held obiter dicta. As already noticed the Supreme Court in this case
has approved the decision in Vasant vs. Dattu (supra), wherein the effect of Section 12 of the Act
was considered. The Supreme Court in that case interpreting clause (c) of proviso to Section 12
of the Act observed that a case of this nature where the joint family properly passed on to the
hands of the remaining members of the coparcenery on the death of one of the coparceners, no
vesting of property actually took place in the remaining coparceners while their share in the joint
family property may have increased on the death of one of the coparceners which was bound to
decrease on the introduction of one more member into the family either by birth or by adoption*.

(14). Before us Mr. M.C. Bhoot, counsel for the appellant urged ttiat on the death of a member of
joint family the property must be considered to have vested in the remaining members by
survivorship. Similar argument was advanced by the learned counsel for the appellant in Dharma
Shamrao Agalawe vs. Pandurang Miragu Agalawe & ors. (supra), also. The Supreme Court
rejected the said conlention. 11 was held that property no doubt passes by survivorship but there
is no question of any vesting or divesting in the sense contemplated by Sec. 12 of the Act. To
interpret Sec. 12 to include cases of devolution by survivorship on the death of a member of the
joint family would be to deny any practical effect to the adoption made by the widow of a
member of the joint family. The Supreme Court was of the view that such result was not in the
contemplation of the Parliament at all. The Supreme Court in Dharma Shamrao Agalawe vs.
Pandurang Miragu Agaiawe (supra), had agreed with the observations of the Supreme Court in
Vasant's case (supra) and had observed lhal the joint family properly does not cease to be joint
family property when it passes to the hands of sole surviving coparceners. The Supreme Court
also approved the decision in Y.K. Nalavade's case (supra). The Supreme Court had agreed with
the reasons given by the High Court of Bombay in that decision in taking the view that clause (c)
of proviso to Section 12 of the Act would not be attracted to a case of this nature since as
observed by the Supreme Court in Vasant's case (supra) no vesting of joint family property in
355
Dharma the appellant took place on the death of Miragu and no divesting of property took place
when Pandurang was adopted. In this view of the matter the Supreme Court has overruled the
decision of the Andhra Pradesh High Court in Narra Hanumantha Rao's case (supra) which takes
a contrary view.

(15). Thus as rightly pointed out by Mr. Dinesh Maheshwari the question involved in this case
now stands conclusively answered by the Hon'ble Supreme Court in the two decisions in Vasant
vs. Dattu (supra) and Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe (supra).

(16). It cannol be lost sight of that the undivided interest of a deceased coparcener passes to other
coparceners by survivorship and not by succession. Clause (c) of the proviso to Section 12 lays
down in express and explicit terms that the adoption of a son or daughter by a male or female
Hindu would not have the effect of divesting of any estate vested in any person prior to the
adoption. In our view the individed interest in the surviving coparceners of a joint Hindu family
is not divested on the introduction of an adopted son in the joint Hindu family but only the extent
of his interest therein is affected by such adoption. It can, therefore, be legitimately held that if
on the date of adoption the family still continues to be joint and owns joint family property, the
adoptive child would acquire an interest in the joint family property and the same would not have
the effect of divesting the surviving coparceners, (17). In the result the appeal fails and the suit
filed by the plaintiff Shanker Lal the 4th respondent herein stands decreed and the order of the
Board of Revenue as affirmed by the learned Single Judge in his judgment dated 29.7.83 in writ
petition No. 3140/74 are confirmed and we declare that a preliminary decree be passed in favour
of the 4th respondent plaintiff Shanker Lal against the defendants that he will have l/3rd share in
the property described in Schedule 'A' appended to the plaint. The appeal is dismissed. In our
view because of refusal to give the due share to the 4th respondent Shankerlal he was compelled
to approach the civi! Court on 7.2,1966 and was litigating in court up til now nearly for 35 years
to get his lawful share in the property as the adopted son. In our opinion, it is an eminently fit
case for awarding examplary costs. We, therefore, dismissed the appeal by awarding costs of Rs.
5000.

Supreme Court of India

PETITIONER:
JAI SINGH

Vs.

RESPONDENT:
SHAKUNTALA

DATE OF JUDGMENT: 14/03/2002

BENCH:
Umesh C. Banerjee & Brijesh Kumar

JUDGMENT:

356
BANERJEE,J.

The matter under consideration pertains to the effect of statutory presumption as envisaged under
Section 16 of the Hindu Adoption and Maintenance Act, 1956. For convenience sake it would be
worthwhile to note the provision for its true purport. Section 16 reads as below:

"16. Presumption as to registered documents relating to adoption. Whenever any document

registered under any law for the time being in force is produced before any Court purporting to
record an adoption made and is signed by the person giving and the person taking the child in
adoption, the Court shall presume that the adoption has been made in compliance with the
provisions of this Act unless and until it is disproved."

The Section thus envisages a statutory presumption that in the event of there being a registered
document pertaining to adoption there would be a presumption that adoption has been made in
accordance with law. Mandate of the Statute is rather definite since the Legislature has used
"shall" in stead of any other word of lesser significance. Incidentally, however the inclusion of
the words "unless and until it is disproved" appearing at the end of the statutory provision has
made the situation not that rigid but flexible enough to depend upon the evidence available on
record in support of adoption. It is a matter of grave significance by reason of the factum of
adoption and displacement of the person adopted from the natural succession - thus onus of proof
is rather heavy. Statute has allowed some amount of flexibility, lest it turns out to be solely
dependent on a registered adoption deed. The reason for inclusion of the words "unless and until
it is disproved" shall have to be ascertained in its proper perspective and as such the presumption
cannot but be said to be a rebuttable presumption.

Statutory intent thus stands out to be rather expressive depicting therein that the presumption
cannot be an irrebuttable presumption by reason of the inclusion of the words just noticed above.
On the wake of the aforesaid the observations of the learned single Judge in Modan Singh vs.
Mst.Sham Kaur & Ors. (AIR 1973 P&H 122) stands confirmed and we record our concurrence
therewith. In the contextual facts a Deed of Adoption dated 1.6.1973 came into existence and
stands registered in the Sub Registrar's office at Charkhi, Dadri in the State of Punjab.

Adverting to the factual backdrop briefly at this juncture it is to be noted that the dispute relates
to the estate of one Sunda Ram and the contest stands out to be between one Shakuntala being
the daughter of Sunda Ram and Jai Singh, who claims to be the adopted son.

Record depicts that the plaintiff (respondent herein) filed a suit for declaration that she was the
owner in possession of the suit land and that the decree dated August 1, 1986 passed in Civil Suit
instituted on July 23, 1986 and registered will dated February 14, 1974 alleged to have been
executed by her father together with the Adoption Deed dated June 1, 1973 recording that Jai
Singh had been adopted by Sunda Ram were illegal and result of misrepresentation of facts and
thus not binding on her. The trial Court decreed the suit. Appeal therefrom filed by the
defendant/appellant was dismissed and even the second appeal also stands dismissed.

Mr.Jain, the learned senior Advocate appearing in support of the appeal contended that in the
event of due compliance with the four requirements as envisaged under Section 16 of the Act of
1956 question of there being any further requirement depicting acceptance thereof does not and
cannot arise. The submissions undoubtedly at the first blush seem to be rather attractive and it is
on this particular issue which prompted this Court to have the matter argued in detail irrespective
of the technicality as raised before this Court pertaining to the maintainability issue vis-a-vis the
357
appeal. While scrutiny of evidence does not stand out to be totally prohibited in the matter of
exercise of jurisdiction in the second appeal and that would in our view be too broad a
proposition and too rigid an interpretation of law not worthy of acceptance but that does not also
clothe the superior courts within jurisdiction to intervene and interfere in any and every matter It
is only in very exceptional cases and on extreme perversity that the authority to examine the
same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can
thus be safely concluded that while there is no prohibition as such, but the power to scrutiny can
only be had in very exceptional circumstances and upon proper circumspection. This is,
however, without expression of any opinion pertaining to Section 100 of the Code of Civil
Procedure.

Needless to record that the trial Court decreed the suit and the first Appellate Court as also the
High Court were pleased to dismiss the appeals. It is in this context the recording of the High
Court may be looked into for proper appreciation of the matter.

The High Court observed:

"It also deserves notice that on July 22, 1986 the appellant had filed a suit claiming the property
of Sunda Ram. Surprisingly, the suit was decreed within less than 10 days on August 1, 1986. It
is also the day when Sunda Ram had expired. It is correct that Mr.Mittal has not raised any plea
on the basis of this decree. The fact, however, remains that the appellant tried to usurp the
property by even getting a decree in his favour. The proceedings do reflect upon his conduct. In
fact, he did not rest contended with the adoption deed and the decree. He had even propounded a
Will. The courts below have found that the will is shrounded by suspicious circumstances and
have not accepted its authenticity. No argument has been addressed by the learned counsel in this
behalf. In view of the above, the conclusions recorded by both the courts below do not call any
interference."

The issue thus arises as to whether High Court was justified in laying emphasis on the conduct of
the adopted son. As noticed herein before the presumption is a rebuttable presumption. While it
is true that the registered instrument of adoption presumably stands out to be taken to be correct
but the Court is not precluded from looking in to it upon production of some evidence contra the
adoption. Evidence, which is made available to the Court for rebutting the presumption, can
always be looked into and it is on production of that evidence that the High court has recorded a
finding non-availability of the presumption to the Appellant A brief reference to the available
evidence may be convenient at this juncture. The following documents were placed on record:

(i) Voters list prepared in the year 1991;

(ii) Receipts of chulha tax said to have been paid by the appellant;

(iii) Mutation proceedings dated August 23, 1986;

(iv) Jamabandi for the year 1988-89.

As regards (i) no fault can be ascribed on rejection of this piece of evidence by reason of the fact
that the suit was instituted on September 24, 1986 and being aware of the pendency of the
dispute the appellant described himself as son of Sunda Ram. Incidentally in the voters list
prepared in 1984, the appellant has been described as the son of his natural father i.e. Jage Ram

358
and accordingly the High Court came to a definite conclusion that D-8 being the document,
which came into existence after the institution of the suit can be of no consequence whatsoever.

Similar is the situation as regards the next set of evidence, namely, payment of chulha tax
receipts admittedly relate to a period after the institution of the suit (period between October 7,
1986 and July 21, 1991). The mutation proceedings being the third set of evidence noticed herein
before stood initiated by the appellant immediately after the death of Sunda Ram, who
admittedly expired on 1st August, 1986 and the appellant had got the mutation entries without
any notice as such the same cannot possibly be taken recourse to and similar is the situation with
regard to the Jamabandi for the years 1988-89.

It is also on record that in the reply filed by the appellant in proceedings under Section 125 of the
Criminal Procedure Code initiated by his wife, the appellant described himself as a son of his
natural father as also the voters list prepared in the year 1984 it has thus been stated that these
two documents on the face of it militates against the proof of adoption It is at this juncture, a
brief look at the Deed of Adoption would be of some interest. Relevant extracts of the Deed of
Adoption are as below:

" I have no son. According to Hindu Dharam Shastra, every Hindu should have one son so that
he may give pind water. There is one boy of age of 10 years son of Jage Ram, Resident of village
Rassiwas, who is Jat by caste and who has been brought up by me. I have fatherly love for him.
In the month of March, parents of Jai Singh gave him to me in adoption, in the presence of the
relatives of Rassiwas, at the occasion of Holly, and I had taken Jai Singh in my lap, I adopted
him. Now, I as well as parents of Jai Singh want that a deed of adoption should be prepared. Jai
Singh is living with me for the last five years. Now with sound disposition of mind, I adopt Jai
Singh willingly as my adopted son and he shall be my son in the eyes of others. Jai Singh, my
adopted son shall have same rights as a natural son has.

This deed of adoption has been written on 31.5.1973, ( 10 Jaith, 1895 Shudi )."

The Deed records that the parents of Jai Singh have given him in adoption to Sunda Ram in the
month of March and he had taken him on his lap. No specific ceremonies have been noted
neither any evidence has been tendered pertaining to the adoption in March, 1973. It is on this
Deed that Mr.Ramchandran, the learned senior Advocate appearing for the respondent contended
that the document even on the face of it does not justify any consideration by reason of the
recording that 'the adopted son shall have the same rights as a natural son has' this insertion of
preservation of his right as a natural son is rather significant and ought to be read along with the
Will dated 14th February, 1974 wherein it has been recorded that 'entire property will be
inherited by the adopted son, Jai Singh and no one else shall have any share in it' : whereas the
recording of the Will that the testator being not desirous of giving any share to the daughter
cannot but be termed to be otherwise in accordance with the normal human conduct under
certain circumstances but recording to the effect "in case after my death my daughter Shakuntla
claims any property that should be rejected" together with the recording that "this Will has been
written in favour of my adopted son Jai Singh so that it may be used at the time of need" depict
the true nature of the claim of the appellant which it has been argued for the Respondent
tantamounts to be utterly false. Mr.Ramchandran also placed reliance on Section 11(vi) of the
Act, which records that the child to be adopted must be actually given and taken in adoption by
the parents or guardian concerned with intent to transfer the child from the family of its birth to
the family of its adoption. The give and take in adoption is a requirement, which stands as a sine-
qua-non for a valid adoption and it is in this context that Mr.Ramchandran contended that the
359
rebuttable presumption has thus been duly rebutted by the evidence put forth by the respondent
and stands reinforced by the appellant's own evidence.

It is on this factual backdrop, the High Court upon, recording the fact of the presumption being
rebuttable, came to a conclusion negating the adoption. On the wake of the aforesaid, we do not
see any reason to lend concurrence to the submissions of Mr.Jain that the statutory presumption
should give way to all other instances available on record. The presumption under Section 16
being a rebuttable presumption as the statute prescribes and on the state of evidence available on
record question of decrying the order of the trial court as also of the two appellate courts on the
fact situation of the matter in issue cannot be termed to be so perverse so as to authorise this
Court to scan the evidence and reappreciate the same. This is where Mr. Ramachandran
contended that scope of Article 136 being limited and by reason of definite allegation of fraud in
the matter of bringing forth the document of adoption interference with the orders of three
different forums would not arise. We do find a great deal of substance thereon since the
appreciation of evidence as noticed above cannot be had at this stage of the proceedings unless
the order can be ascribed to be totally perverse.

In the present fact situation of the matter we do feel it expedient to record our concurrence to the
statement of Mr. Ramachandran that perversity is a far cry in the matter and the order of the
High Court does not call for any interference in the contextual facts.

In that view of the matter, we do not find any merit in the appeal. The appeal thus stands
dismissed without, however, any order as to costs.

..J.

(Umesh C. Banerjee) J.

(Brijesh Kumar) March 14, 2002

Supreme Court of India

PETITIONER:
Brijendra Singh

RESPONDENT:
State of M.P. & Anr.

DATE OF JUDGMENT: 11/01/2008

BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:

J U D G M E N T Dr. ARIJIT PASAYAT, J.

360
The present appeal involves a very simple issue but when the background facts are
considered it projects some highly emotional and sensitive aspects of human life.

Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at Jabalpur in a
Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the C.P.C.).

Background facts sans unnecessary details are as follows:

Sometime in 1948, one Mishri Bai, a crippled lady having practically no legs was given in
marriage to one Padam Singh. The aforesaid marriage appears to have been solemnized because
under the village custom, it was imperative for a virgin girl to get married. Evidence on record
shows that Padam Singh had left Mishri Bai soon after the marriage and since then she was
living with her parents at Village Kolinja. Seeing her plight, her parents had given her a piece of
land measuring 32 acres out of their agricultural holdings for her maintenance. In 1970, Mishri
Bai claims to have adopted appellant Brajendra Singh. Padam Singh died in the year 1974. The
Sub-Divisional Officer, Vidisha served a notice on Mishri Bai under Section 10 of the M.P.
Ceiling on Agricultural Holdings Act, 1960 (in short the Ceiling Act) indicating that her holding
of agricultural land was more than the prescribed limit. Mishri Bai filed a reply contended that
Brajendra Singh is her adopted son and both of them constituted a Joint family and therefore are
entitled to retain 54 acres of land. On 28.12.1981, the Sub Divisional officer by order dated
27.12.1981 disbelieved the claim of adoption on the ground inter alia that in the entries in
educational institutions adoptive fathers name was not recorded. On 10.1.1982, Mishri Bai filed
Civil Suit No. SA/82 seeking a declaration that Brajendra Singh is her adopted son. On
19.7.1989, she executed a registered will bequeathing all her properties in favour of Brajendra
Singh. Shortly thereafter, she breathed her last on 8.11.1989. The trial court by judgment and
order dated 3.9.1993 decreed the suit of Mishri Bai. The same was challenged by the State. The
first appellate court dismissed the appeal and affirmed the judgment and decree of the trial court.
It was held concurring with the view of the trial court that Mishri Bai had taken Brajendra Singh
in adoption and in the will executed by Mishri Bai the factum of adoption has been mentioned.
Respondents filed Second Appeal No. 482 of 1996 before the High Court. A point was raised
that the adoption was not valid in the absence of the consent of Mishri Bais husband. The High
Court allowed the appeal holding that in view of Section 8(c) of Hindu Adoption and
Maintenance Act, 1956 (in short the Act) stipulated that so far as a female Hindu is concerned,
only those falling within the enumerated categories can adopt a son.

The High Court noted that there was a great deal of difference between a female Hindu who is
divorced and who is leading life like a divorced woman. Accordingly the High Court held that
the claimed adoption is not an adoption and had no sanctity in law. The suit filed by Mishri Bai
was to be dismissed.

In support of the appeal learned counsel for the appellant submitted that as the factual position
which is almost undisputed goes to show, there was in fact no consummation of marriage as the
parties were living separately for a very long period practically from the date of marriage. That
being so, an inference that Mishri Bai ceased to be a married woman, has been rightly recorded
by the trial court and the first appellate court. It was also pointed out that the question of law
framed proceeded on a wrong footing as if the consent of husband was necessary. There was no
such stipulation in law. It is contented that the question as was considered by the High Court was
not specifically dealt with by the trial court or the first appellate court. Strong reliance has been
placed on a decision of this Court in Jolly Das (Smt.) Alias Moulick v. Tapan Ranjan Das
[1994(4) SCC 363] to highlight the concept of Sham Marriage.
361
It was also submitted that the case of invalid adoption was specifically urged and taken note of
by the trial court. Nevertheless the trial court analysed the material and evidence on record and
came to the conclusion that Mishri Bai was living like a divorced woman.

Learned counsel for the respondents on the other hand submitted that admittedly Mishri Bai did
not fall into any of the enumerated categories contained in Section 8 of the Act and therefore, she
could not have validly taken Brajendra Singh in adoption.

It is to be noted that in the suit there was no declaration sought for by Mishri Bai either to the
effect that she was not married or that the marriage was sham or that there was any divorce. The
stand was that Mishri Bai and her husband were living separately for very long period.

Section 8 of the Act reads as follows:

8. Capacity of a female Hindu to take in adoption Any female Hindu

(a) who is of sound mind,

(b) who is not minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is
dead or has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind, has capacity to take a son or
daughter in adoption. We are concerned in the present case with clause (c) of Section 8. The
Section brings about a very important and far reaching change in the law of adoption as used to
apply earlier in case of Hindus. It is now permissible for a female Hindu who is of sound mind
and has completed the age of 18 years to take a son or daughter in adoption to herself in her own
right provided that (a) she is not married; (b) or is a widow; (c) or is a divorcee or after marriage
her husband has finally renounced the world or is ceased to be a Hindu or has been declared to
be of unsound mind by a court having jurisdiction to pass a declaratory decree to that effect. It
follows from Clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself
even with the consent of her husband because the Section expressly provides for cases in which
she can adopt a son or daughter to herself during the life time of the husband. She can only make
an adoption in the cases indicated in clause (c). It is important to note that Section 6(1) of the Act
requires that the person who wants to adopt a son or a daughter must have the capacity and also
the right to take in adoption. Section 8 speaks of what is described as capacity. Section 11 which
lays down the condition for a valid adoption requires that in case of adoption of a son, the mother
by whom the adoption is made must not have a Hindu son or sons son or grand son by legitimate
blood relationship or by adoption living at the time of adoption. It follows from the language of
Section 8 read with Clauses (i)& (ii) of Section 11 that the female Hindu has the capacity and
right to have both adopted son and adopted daughter provided there is compliance of the
requirements and conditions of such adoption laid down in the Act. Any adoption made by a
female Hindu who does not have requisite capacity to take in adoption or the right to take in
adoption is null and void. It is clear that only a female Hindu who is married and whose marriage
has been dissolved i.e. who is a divorcee has the capacity to adopt. Admittedly in the instant case
there is no dissolution of the marriage. All that the evidence led points out is that the husband
and wife were staying separately for a very long period and Mishri Bai was living a life like a
divorced woman. There is conceptual and contextual difference between a divorced woman and
one who is leading life like a divorced woman. Both cannot be equated. Therefore in law Mishri
Bai was not entitled to the declaration sought for. Here comes the social issue. A lady because of
362
her physical deformity lived separately from her husband and that too for a very long period right
from the date of marriage. But in the eye of law they continued to be husband and wife because
there was no dissolution of marriage or a divorce in the eye of law. Brajendra Singh was adopted
by Mishri Bai so that he can look after her. There is no dispute that Brajendra Singh was in fact
doing so. There is no dispute that the property given to him by the will executed by Mishri Bai is
to be retained by him. It is only the other portion of the land originally held by Mishri Bai which
is the bone of contention.

Section 5 provides that adoptions are to be regulated in terms of the provisions contained in
Chapter II. Section 6 deals with the requisites of a valid adoption. Section 11 prohibits adoption;
in case it is of a son, where the adoptive father or mother by whom the adoption is made has a
Hindu son, sons son, or sons sons son, whether by legitimate blood relationship or by adoption,
living at the time of adoption. Prior to the Act under the old Hindu law, Article 3 provided as
follows:

3. (1) A male Hindu, who has attained the age of discretion and is of sound mind, may adopt a
son to himself provided he has no male issue in existence at the date of the adoption.

(2) A Hindu who is competent to adopt may authorize either his ( i ) wife, or ( ii ) widow (except
in Mithila) to adopt a son to himself. Therefore, prior to the enactment of the Act also adoption
of a son during the lifetime of a male issue was prohibited and the position continues to be so
after the enactment of the Act. Where a son became an outcast or renounced the Hindu religion,
his father became entitled to adopt another. The position has not changed after the enactment of
the Caste Disabilities Removal Act (21 of 1850), as the outcast son does not retain the religious
capacity to perform the obsequial rites. In case parties are governed by Mitakshara law,
additionally adoption can be made if the natural son is a congenital lunatic or an idiot.

The origin of custom of adoption is lost in antiquity. The ancient Hindu law recognized twelve
kinds of sons of whom five were adopted. The five kinds of adopted sons in early times must
have been of very secondary importance, for, on the whole, they were relegated to an inferior
rank in the order of sons. Out of the five kinds of adopted sons, only two survive today, namely,
the dattaka form prevalent throughout India and the kritrima form confined to Mithila and the
adjoining districts. The primary object of adoption was to gratify the means of the ancestors by
annual offerings and, therefore, it was considered necessary that the offerer should be as much as
possible a reflection of a real descendant and had to look as much like a real son as possible and
certainly not be one who would never have been a son. Therefore, the body of rules was evolved
out of a phrase of Saunaka that he must be the reflection of a son. The restrictions flowing from
this maxim had the effect of eliminating most of the forms of adoption. (See Hindu Law by S.V.
Gupte, 3rd Edn., at pp. 899-900.) The whole law of dattaka adoption is evolved from two
important texts and a metaphor. The texts are of Manu and Vasistha, and the metaphor that of
Saunaka. Manu provided for the identity of an adopted son with the family into which he was
adopted. (See Manu, Chapter IX, pp. 141-42, as translated by Sir W. Jones.) The object of an
adoption is mixed, being religious and secular. According to Mayne, the recognition of the
institution of adoption in the early times had been more due to secular reasons than to any
religious necessity, and the religious motive was only secondary; but although the secular motive
was dominant, the religious motive was undeniable. The religious motive for adoption never
altogether excluded the secular motive. (See Maynes Hindu Law and Usage, 12th Edn., p. 329.)
As held by this Court in V.T.S. Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar (AIR 1963
SC 185) substitution of a son for spiritual reasons is the essence of adoption, and consequent
devolution of property is mere accessory to it; the validity of an adoption has to be judged by
363
spiritual rather than temporal considerations and devolution of property is only of secondary
importance.

In Hem Singh v. Harnam Singh (AIR 1954 SC 581) it was observed by this Court that under the
Hindu law adoption is primarily a religious act intended to confer spiritual benefit on the adopter
and some of the rituals have, therefore, been held to be mandatory, and compliance with them
regarded as a condition of the validity of the adoption. The first important case on the question of
adoption was decided by the Privy Council in the case of Amarendra Man Singh Bhramarbar v.
Sanatan Singh (AIR 1933 PC 155). The Privy Council said: Among the Hindus, a peculiar
religious significance has attached to the son, through Brahminical influence, although in its
origin the custom of adoption was perhaps purely secular. The texts of the Hindus are themselves
instinct with this doctrine of religious significance. The foundation of the Brahminical doctrine
of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance
of the line and the solemnization of the necessary rites.

With these observations it decided the question before it viz. that of setting the limits to the
exercise of the power of a widow to adopt, having regard to the well-established doctrine as to
the religious efficacy of sonship. In fact, the Privy Council in that case regarded the religious
motive as dominant and the secular motive as only secondary.

The object is further amplified by certain observations of this Court. It has been held that an
adoption results in changing the course of succession, depriving wife and daughters of their
rights, and transferring the properties to comparative strangers or more remote relations. [See:
Kishori Lal v. Chaltibai (AIR 1959 SC 504)]. Though undeniably in most of the cases, motive is
religious, the secular motive is also dominantly present. We are not concerned much with this
controversy, and as observed by Mayne, it is unsafe to embark upon an enquiry in each case as to
whether the motives for a particular adoption were religious or secular and an intermediate view
is possible that while an adoption may be a proper act, inspired in many cases by religious
motives, courts are concerned with an adoption, only as the exercise of a legal right by certain
persons. The Privy Councils decision in Amarendra Man Singhs case (supra) has reiterated the
well- established doctrine as to the religious efficacy of sonship as the foundation of adoption.
The emphasis has been on the absence of a male issue. An adoption may either be made by a
man himself or by his widow on his behalf with his authority conveyed therefor. The adoption is
to the male and it is obvious that an unmarried woman cannot adopt, for the purpose of adoption
is to ensure spiritual benefit for a man after his death and to his ancestors by offering of oblations
of rice and libations of water to them periodically. A woman having no spiritual needs to be
satisfied, was not allowed to adopt for herself. But in either case it is a condition precedent for a
valid adoption that he should be without any male issue living at the time of adoption.

A married woman cannot adopt at all during the subsistence of the marriage except when the
husband has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under
such disqualification, the wife cannot adopt even with the consent of the husband whereas the
husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso
thereof makes it clear that a male Hindu cannot adopt except with the consent of the wife, unless
the wife has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a Court of competent jurisdiction to be of unsound mind. It is relevant to note that in
the case of a male Hindu the consent of the wife is necessary unless the other contingency exists.
Though Section 8 is almost identical, the consent of the husband is not provided for. The proviso
to Section 7 imposes a restriction in the right of male Hindu to take in adoption. In this respect
364
the Act radically depicts from the old law where no such bar was laid down to the exercise of the
right of a male Hindu to adopt oneself, unless he dispossess the requisite capacity. As per the
proviso to Section 7 the wifes consent must be obtained prior to adoption and cannot be
subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an
adoption which is mandatory and adoption without wifes consent would be void. Both proviso to
Sections 7 and 8(c) refer to certain circumstances which have effect on the capacity to make an
adoption.

At this juncture it would be relevant to take note of Jolly Dass case (supra). The decision in that
case related to an entirely different factual scenario. There was no principle of law enunciated.
That decision was rendered on the peculiar factual background. That decision has therefore no
relevance to the present case.

Learned counsel for the appellant submitted that in any event, the land which is declared to be in
excess of the prescribed limit vests in the Government to be allotted to persons selected by the
Government. It was submitted that in view of the peculiar background, the Government may be
directed to consider the appellants case for allotment of the land from the surplus land so that the
purpose for which adoption was made and the fact that the appellant nourished a crippled lady
treating her to be his own mother would set a healthy tradition and example. We express no
opinion in that regard. It is for the State Government to take a decision in the matter in
accordance with law. But while dismissing the appeal, we permit the appellant to be in
possession of land for a period of six months by which time the Government may be moved for
an appropriate decision in the matter. We make it clear that by giving this protection we have not
expressed any opinion on the acceptability or otherwise of the appellants request to the State
Government to allot the land to him.

The appeal is dismissed subject to the aforesaid observations.

Supreme Court of India

Bench: P Sathasivam, Ranjan Gogoi, Shiva Kirti Singh

SHABNAM HASHMI ... PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. ... RESPONDENT (S)

JUDGMENT

RANJAN GOGOI, J.

1. Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of the
Constitution is the vision scripted by the public spirited individual who has moved this Court
under Article 32 of the Constitution. There is an alternative prayer requesting the Court to lay
down optional guidelines enabling adoption of children by persons irrespective of religion, caste,

365
creed etc. and further for a direction to the respondent Union of India to enact an optional law the
prime focus of which is the child with considerations like religion etc. taking a hind seat.

2. The aforesaid alternative prayer made in the writ petition appears to have been substantially
fructified by the march that has taken place in this sphere of law, gently nudged by the judicial
verdict in Lakshmi Kant Pandey Vs. Union of India[1] and the supplemental, if not
consequential, legislative innovations in the shape of the Juvenile Justice (Care And Protection
of Children) Act, 2000 as amended in 2006 (hereinafter for short ‘the JJ Act, 2000) as also The
Juvenile Justice (Care and Protection of Children) Rules promulgated in the year 2007
(hereinafter for short ‘the JJ Rules, 2007’).

3. The alternative prayer made in the writ petition may be conveniently dealt with at the outset.

The decision of this Court in Lakshmi Kant Pandey (supra) is a high watermark in the
development of the law relating to adoption. Dealing with inter-country adoptions, elaborate
guidelines had been laid by this Court to protect and further the interest of the child. A regulatory
body, i.e., Central Adoption Resource Agency (for short ‘CARA’) was recommended for
creation and accordingly set up by the Government of India in the year 1989. Since then, the said
body has been playing a pivotal role, laying down norms both substantive and procedural, in the
matter of inter as well as in country adoptions. The said norms have received statutory
recognition on being notified by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 and are today in force throughout the country, having
also been adopted and notified by several states under the Rules framed by the states in exercise
of the Rule making power under Section 68 of the JJ Act, 2000.

4. A brief outline of the statutory developments in the concerned sphere may now be sketched.

In stark contrast to the provisions of the JJ Act, 2000 in force as on date, the Juvenile Justice Act,
1986 (hereinafter for short ‘the JJ Act, 1986’) dealt with only “neglected” and “delinquent
juveniles”. While the provisions of the 1986 Act dealing with delinquent juveniles are not
relevant for the present, all that was contemplated for a ‘neglected juvenile’ is custody in a
juvenile home or an order placing such a juvenile under the care of a parent, guardian or other
person who was willing to ensure his good behaviour during the period of observation as fixed
by the Juvenile Welfare Board. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV
under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and
protection. Such rehabilitation and social reintegration was to be carried out alternatively by
adoption or foster care or sponsorship or by sending the child to an after-care organization.
Section 41 contemplates adoption though it makes it clear that the primary responsibility for
providing care and protection to a child is his immediate family. Sections 42, 43 and 44 of the JJ
Act, 2000 deals with alternative methods of rehabilitation namely, foster care, sponsorship and
being looked after by an after-care organisation.

5. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006
that the meaning thereof came to be expressed in the following terms:

“2(aa)-“adoption” means the process through which the adopted child is permanently separated
from his biological parents and become the legitimate child of his adoptive parents with all the
rights, privileges and responsibilities that are attached to the relationship”

366
6. In fact, Section 41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time
the responsibility of giving in adoption was cast upon the Court which was defined by the JJ
Rules, 2007 to mean a civil court having jurisdiction in matters of adoption and guardianship
including the court of the district judge, family courts and the city civil court. [Rule 33 (5)]
Substantial changes were made in the other sub-sections of Section 41 of the JJ Act, 2000. The
CARA, as an institution, received statutory recognition and so did the guidelines framed by it
and notified by the Central Govt. [Section 41(3)].

7. In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules,
2007 have been enacted. Chapter V of the said Rules deal with rehabilitation and social
reintegration. Under Rule 33(2) guidelines issued by the CARA, as notified by the Central
Government under Section 41 (3) of the JJ Act, 2000, were made applicable to all matters
relating to adoption. It appears that pursuant to the JJ Rules, 2007 and in exercise of the rule
making power vested by the JJ Act, 2000 most of the States have followed suit and adopted the
guidelines issued by CARA making the same applicable in the matter of adoption within the
territorial boundaries of the concerned State.

Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions regulating pre-adoption
procedure i.e. for declaring a child legally free for adoption. The Rules also provide for foster
care (including pre-adoption foster care) of such children who cannot be placed in adoption &
lays down criteria for selection of families for foster care, for sponsorship and for being looked
after by an aftercare organisation. Whatever the Rules do not provide for are supplemented by
the CARA guidelines of 2011 which additionally provide measures for post adoption follow up
and maintenance of data of adoptions.

8. It will now be relevant to take note of the stand of the Union of India. Way back on 15th May,
2006 the Union in its counter affidavit had informed the Court that prospective parents,
irrespective of their religious background, are free to access the provisions of the Act for
adoption of children after following the procedure prescribed. The progress on the ground as laid
before the Court by the Union of India through the Ministry of Women and Child Development
respondent No. 3 herein) may also be noticed at this stage. The Union in its written submission
before the Court has highlighted that at the end of the calendar year 2013 Child Welfare
Committees (CWC) are presently functioning in a total of 619 districts of the country whereas
State Adoption Resource Agencies (SARA) has been set up in 26 States/Union Territories;
Adoption Recommendation Committees (ARCs) have been constituted in 18 States/Union
Territories whereas the number of recognized adoption organisations in the country are 395.
According to the Union the number of reported adoptions in the country from January, 2013 to
September, 2013 was 19884 out of which 1712 cases are of inter-country adoption. The third
respondent has also drawn the attention of the Court that notwithstanding the time schedule
specified in the guidelines of 2011 as well as in the JJ Rules, 2007 there is undue delay in
processing of adoption cases at the level of Child Welfare Committees (CWS), the Adoption
Recommendation Committees (ARCs) as well as the concerned courts.

9. In the light of the aforesaid developments, the petitioner in his written submission before the
Court, admits that the JJ Act, 2000 is a secular law enabling any person, irrespective of the
religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954,
which enables any person living in India to get married under that Act, irrespective of the
religion he follows. JJA 2000 with regard to adoption is an enabling optional gender-just law, it
is submitted. In the written arguments filed on behalf of the petitioner it has also been stated that
in view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 the prayers made in
367
the writ petition with regard to guidelines to enable and facilitate adoption of children by persons
irrespective of religion, caste, creed etc. stands satisfactorily answered and that a direction be
made by this Court to all States, Union Territories and authorities under the JJ Act, 2000 to
implement the provisions of Section 41 of the Act and to follow the CARA guidelines as
notified.

10. The All India Muslim Personal Law Board (hereinafter referred to as ‘the Board’) which has
been allowed to intervene in the present proceeding has filed a detailed written submission
wherein it has been contended that under the JJ Act, 2000 adoption is only one of the methods
contemplated for taking care of a child in need of care and protection and that Section 41
explicitly recognizes foster care, sponsorship and being look after by after-care organizations as
other/ alternative modes of taking care of an abandoned/surrendered child. It is contended that
Islamic Law does not recognize an adopted child to be at par with a biological child. According
to the Board, Islamic Law professes what is known as the “Kafala” system under which the child
is placed under a ‘Kafil’ who provides for the well being of the child including financial support
and thus is legally allowed to take care of the child though the child remains the true descendant
of his biological parents and not that of the “adoptive” parents. The Board contends that the
“Kafala” system which is recognized by the United Nation’s Convention of the Rights of the
Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ Act,
2000 and therefore a direction should be issued to all the Child Welfare Committees to keep in
mind and follow the principles of Islamic Law before declaring a muslim child available for
adoption under Section 41(5) of the JJ Act, 2000.

11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the
option of adopting an eligible child by following the procedure prescribed by the Act, Rules and
the CARA guidelines, as notified under the Act. The Act does not mandate any compulsive
action by any prospective parent leaving such person with the liberty of accessing the provisions
of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and,
instead, follow what he comprehends to be the dictates of the personal law applicable to him. To
us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution.
Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the
provisions of an enabling statute. At the cost of repetition we would like to say that an optional
legislation that does not contain an unavoidable imperative cannot be stultified by principles of
personal law which, however, would always continue to govern any person who chooses to so
submit himself until such time that the vision of a uniform Civil Code is achieved. The same can
only happen by the collective decision of the generation(s) to come to sink conflicting faiths and
beliefs that are still active as on date.

12. The writ petitioner has also prayed for a declaration that the right of a child to be adopted and
that of the prospective parents to adopt be declared a fundamental right under Article 21 of the
Constitution. Reliance is placed in this regard on the views of the Bombay and Kerala High
Courts in In re: Manuel Theodore D’souza[2] and Philips Alfred Malvin Vs. Y.J.Gonsalvis &
Ors.[3] respectively. The Board objects to such a declaration on the grounds already been
noticed, namely, that Muslim Personal Law does not recognize adoption though it does not
prohibit a childless couple from taking care and protecting a child with material and emotional
support.

13. Even though no serious or substantial debate has been made on behalf of the petitioner on the
issue, abundant literature including the holy scripts have been placed before the Court by the
Board in support of its contention, noted above. Though enriched by the lengthy discourse laid
368
before us, we do not think it necessary to go into any of the issues raised. The Fundamental
Rights embodied in Part-III of the Constitution constitute the basic human rights which inhere in
every person and such other rights which are fundamental to the dignity and well being of
citizens. While it is correct that the dimensions and perspectives of the meaning and content of
fundamental rights are in a process of constant evolution as is bound to happen in a vibrant
democracy where the mind is always free, elevation of the right to adopt or to be adopted to the
status of a Fundamental Right, in our considered view, will have to await a dissipation of the
conflicting thought processes in this sphere of practices and belief prevailing in the country. The
legislature which is better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment
of the JJ Act 2000 and the same must receive due respect. Conflicting view points prevailing
between different communities, as on date, on the subject makes the vision contemplated by
Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the
Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain
restraint. All these impel us to take the view that the present is not an appropriate time and stage
where the right to adopt and the right to be adopted can be raised to the status of a fundamental
right and/or to understand such a right to be encompassed by Article 21 of the Constitution. In
this regard we would like to observe that the decisions of the Bombay High Court in Manuel
Theodore D’souza (supra) and the Kerala High Court in Philips Alfred Malvin (supra) can be
best understood to have been rendered in the facts of the respective cases. While the larger
question i.e. qua Fundamental Rights was not directly in issue before the Kerala High Court, in
Manuel Theodore D’souza (supra) the right to adopt was consistent with the canonical law
applicable to the parties who were Christians by faith. We hardly need to reiterate the well
settled principles of judicial restraint, the fundamental of which requires the Court not to deal
with issues of Constitutional interpretation unless such an exercise is but unavoidable.

14. Consequently, the writ petition is disposed of in terms of our directions and observations
made above.

...…………………………CJI.
[P. SATHASIVAM] .........………………………J.
[RANJAN GOGOI] …..........……………………J.
[SHIVA KIRTI SINGH] NEW DELHI, FEBRUARY 19, 2014.

UNIT- V
Supreme Court of India
Bai Tahira A vs Ali Hussain Fissalli Chothia And ... on 6 October, 1978
Equivalent citations: 1979 AIR 362, 1979 SCR (2) 75

Bench: Krishnaiyer, V.R.

:

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 332 of 1977.

Appeal by Special Leave from the Judgment and order dated 20-10-75 of the Bombay High
Court in Criminal Application No. 1 379/75.
369
M. C. Bhandare, A. N. Karkhanis, Miss Malini Panduval and Mrs. S. Bhandare for the
Appellant.

G. L. Sanghi and A. K. Verma for Respondent No. 1. M. N. Shroff for Respondent No. 2.

The Judgment of the Court was delivered by A Prefatory statement KRISHNA IYER, J.-In this
appeal, by special leave, we are called upon to interpret a benign provision enacted to ameliorate
the economic condition of neglected wives and discarded divorcees, namely. s 125. Cr.P.C.

Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to
be served by the Legislature and when the beneficiaries are the weaker sections, like destitute
women, this spirit of Art. 15(3) of the Constitution must belight the meaning of the Section. The
Constitution is a pervasive omnipresence brooding over the meaning and transforming the values
of every measure. So, s. 125 and sister clauses must receive a compassionate expansion of sense
that the words used permit.

The Brief Facts The respondent (husband) married the appellant (wife) as a second wife, way
back in 1956, and a few years later had a son by her. 15 The initial warmth vanished and the
jealousies of a triangular situation erupted, marring mutual affection. The respondent divorced
the appellant around July 1962. A suit relating to a flat in which the husband had housed the wife
resulted in a consent decree which also settled the marital disputes. For instance, it recited that
this respondent had transferred the suit premises, namely, a flat in Bombay, to the appellant and
also the shares of the Cooperative Housing Society which built the flat concerned. There was a
reference to mehar money (Rs. 5,000/- and 'iddat' money, Rs. 180/-) which was also stated to
have been adjusted by the compromise terms.

There was a clause in the compromise: G "The plaintiff declares that she has now no claim or
right whatsoever against the defendant or against the estate and the properties of the defendant."
And another term in the settlement was that the appellant had by virtue of the compromise
become the absolute owner of the flat and various deposits in respect of the said flat made with
the cooperative housing society.

For some time there was flickering improvement in the relations between the quondum husband
and the quondum wife and they lived together. Thereafter, again they separated, became
entranged. The appellant, finding herself in financial straits and unable to maintain herself,
moved the magistrate under s. 125 of the Criminal Procedure Code, 1973, for a monthly
allowance for the maintenance of herself and her child. She proceeded on the footing that she
was still a wife while the respondent rejected this status and asserted that she was a divorce and
therefore ineligible for maintenance. The Magistrate who tried the petition for maintenance held
that the appellant was a subsisting wife and awarded monthly maintenance of Rs. 300/- for the
son and Rs. 400/- for the mother for their subsistence, taking due note of the fact that the cost of
living in Bombay, where the parties lived, was high, and that the respondent had provided
residential accommodation to the appellant.

This order was challenged before the sessions Judge by the aggrieved husband, who on a strange
view of the law that the court, under s. 125, had no jurisdication to consider whether the
applicant was a wife, dismissed the petition in allowance of the appeal. The High Court deigned
to bestow little attention on the matter and summarily dismissed a revision petition. This
protracted and fluctuating litigation misfortune has leu to the appeal, by special leave, before this
Court.
370
The Questions Mooted Shri Bhandare appearing for the appellant contended that the Courts
below had surprisingly forgotten the plain provision in the Explanation (b) to s. 125(1) of the
Code, which reads:

"wife' includes a woman who has been divorced by. or has obtained a divorce from, her husband
and has not remarried.

On this foundation, he urged that accepting the contention of the respondent that the appellant
was a divorcee? his client was still entitled to an allowance. This is obviously beyond dispute or.
a simple reading of the sub-section and it is curious how this innovative and sensitive provision
with a benignant disposition towards destitute divorcees has been overlooked by all the courts
below. We hold that every divorce otherwise eligible, is entitled to the benefit of maintenance
allowance and the dissolution of the marriage makes no difference to this right under the current
Code. In the normal course, an order for maintenance must follow, the quantum having been
determined by the learned Magistrate at the trial level.

However, Shri Sanghi, appearing for the respondent, sought sustain the order in his favour on
three grounds They arc of pubic importance since the affected party in such a fact-situation is the
neglected divorcee. He first argued that s. 125(4) would apply in the absence of proof that the
lady was not living separately by mutual consent. His next plea was that there must be proof of
neglect to maintain to attract s.125 and his third contention was that there was a settlement by
consent decree in 1962 whereby the mehar money had been paid and all claims adjusted, and so
no claim for maintenance could survive. The third contention is apparently based upon
contractual arrangement in the consent decree read with s. 127(3) (b) which reads: C "(b) the
woman has been divorced by her husband and that she has received, whether before or after the
date of the said order, the whole of the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce cancel such order,-

(i) in the case where such sum was paid before such order, from the date on which such order
was made.

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has
been actually paid by the husband to the woman;

We must state, however, that there was no specific plea, based upon the latter provision, set up
anywhere in the courts below or urged before us. But if one were to locate a legal ground to raise
The contention That the liability to pay maintenance had ceased on account of the payment of
mehar, it is s. 127(3) of the Code. So we must deal with the dual sub-heads of the third ground.

The meaning of meanings is! derived from values in a given society and its legal system.
Art.15(3) has compelling, compassionate relevance in the context of s. 125 and the benefit of
doubt. If any in statutory interpretation belongs to the ill-used wife and the derelict divorcee.
This social perspective granted, the resolution of all the disputes projected is easy. Surely,
Parliament, in keeping with Art. 15(3) and deliberate by design, made a special provision to help
women in distress cast away by divorce. Protection against moral and material abandonment
manifest in Art. 39 is part of social and economic justice, specificated in Art. 38, fulfilment of
which is fundamental to the governance of the country (Art.37). From this coign of vantage we
must view the printed text of the particular Code.

371
S. 125 requires, as a sine qua non for its application, neglect by husband or father. The
magistrate's order proceeds on neglect to maintain; the sessions judge has spoken nothing to the
contrary; and The High Court has not spoken at all. Moreover, the husband has not examined
himself to prove that he has been giving allowances to the divorced wife. His case, on the
contrary, is that she has forfeited her claim because of divorce and the consent decree.
Obviously, he has no case of non-neglect. His plea is his right to ignore. So the basic condition
of neglect to maintain is satisfied. In this generous jurisdiction, a broader perception and
appreciation of the facts and their bearing must govern the verdict not chopping little logic or
tinkering with burden of proof.

The next submission is that the absence of mutual consent to live separately must be made out if
the hurdle of s. 125(4) is to be over come. We see hardly any force in this plea. The compulsive
conclusion from a divorce by a husband and his provision of a separate residence as evidenced
by the consent decree fills the bill. Do divorcees have to 1) prove mutual consent to live apart?
Divorce painfully implies that the husband orders her out of the conjugal home. If law has nexus
with life this argument is still-born.

The last defence, based on mehar payment, merits more serious attention. The contractual limb
of the contention must easily fail. The consent decree of 1962 resolved all disputes and settled all
claims then available But here is a new statutory right created as a projection of public policy by
the Code of 1973, which could not have been in the contemplation of the parties when in 1962,
they entered into a contract to adjust their then mutual rights. No settlement of claims which does
not have the special statutory right of the divorcee under s. 125 can operate to negate that claim.

Nor can s.127 rescue the respondent from his obligation. Payment of mehar money, as a
customary discharge, is within the cognisance of that provision. But what was the amount of
mehar ? Rs. 5000/-, interest from which could not keep the woman's body and soul together for a
day, even in that city where 40% of the population are reported to live on pavements, unless she
was ready to sell her body and give up her soul ? The point must be clearly under stood that the
scheme of the complex of provisions in Chapter IX has a social purpose. Ill-used wives and
desparate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the
streets. This traumatic horror animates the amplitude of s.127. Where the husband, by customary
payment at the time of divorce, has adequately provided for the divorce, a subsequent series of
recurrent does is contra-indicated and the husband liberated. This is the teleological A
interpretation, the sociological decoding of the text of s.127. The keynote thought is adequacy of
payment which will take reasonable care of her maintenance.

The payment of illusory amounts by way of customary or personal law requirement will be
considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a
reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social
obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration
of the statutory project can secure validation if the court is to pay true homage to the
Constitution. The only just construction of the section is that Parliament intended divorcees
should not derive a double benefit. If the first payment by way of mehar or ordained by custom
has a reasonable relation to the object and is a capitalised substitute for the order under s. 125-not
mathematically but fairly-then s. 127(3) (b) subserves the goal and relieves; the obligor, not pro
tanto but wholly. The purpose of the payment 'under any customary or personal law' must be to
obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The
whole scheme of s. 127(3) (b) is manifestly to recognise the substitute maintenance arrangement
by lump sum payment organised by the custom of the community or the personal law of the
372
parties. There must be a rational relation between the sum so paid and its potential as provision
for maintenance. To interpret otherwise is to stultify the project. Law is dynamic and its meaning
cannot he pedantic but purposeful. The proposition, therefore, is that no husband can claim under
s. 127(3)(b) absolution from this obligation under s. 125 towards a divorced wife except on proof
of payment of a sum stipulated by customary or personal law whose quantum is more or less
sufficient to do duty for maintenance allowance.

The conclusion that we therefore reach is that the appeal should be allowed and it is hereby
allowed, and the order of the trial court restored.

P.B.R. Appeal allowed.

Supreme Court of India

Rameshwari Devi vs State Of Bihar And Others on 27 January, 200

Bench: D.P.Wadhawal, S.N.Phukan

JUDGMENT:

D.P. Wadhwa, J.

Leave granted.

Appellant is aggrieved by judgment dated April 23, 1998 of the Division Bench of the Patna
High Court passed in Letters Patent Appeal affirming the judgment of the learned single Judge
dated April 26, 1996.

Dispute concerns to payment of family pension and death-cum- retirement gratuity to two wives
of Narain Lal, who died in 1987 while posted as Managing Director, Rural Development
Authority of the State of Bihar. Appellant is the first wife. Narain Lal is stated to have married
second time with Yogmaya Devi on April 10, 1963 while the appellant was still alive. From the
first marriage he had one son and from the second marriage four sons born in 1964, 1971, 1972
and 1976. Learned single Judge in his judgment held that children born to Narain Lal from the
wedlock with Yogmaya Devi were entitled to share the family pension and death-cum-retirement
gratuity and further that family pension would be admissible to the minor children only till they
attained majority. He also held that the second wife Yogmaya Devi was not entitled to anything.
Appeal by the first wife Rameshwari Devi against the judgment was dismissed by the Division
Bench. According to her there was no marriage between Narain Lal and Yogmaya Devi and the
children were, therefore, not legitimate. Aggrieved Rameshwari Devi has come to this Court.

On filing of the special leave petition notices were issued to the respondents. In response thereto
counter affidavits have been filed by - (1) Yogmaya Devi, (2) State of Bihar and (3) Accountant
General (A&E) II Patna.

Stand of the State Government is that Rameshwari Devi was the legally married wife of Narain
Lal. He married again to Yogmaya Devi in April, 1963 and that the marriage with Yogmaya
Devi was against the provisions of law as contained in Sections 5 and 11 of the Hindu Marriage
373
Act, 1955. It was, therefore, a void marriage. Second wife had thus no status and could not claim
any share from the estate of Narain Lal as per the provisions of Hindu Succession Act, 1956.
Accordingly State Government sanctioned family pension and gratuity to Rameshwari Devi by
its order dated August 22, 1995. By this order the State Government cancelled its previous two
orders dated September 23, 1993 and October 6, 1993. Group insurance and final withdrawal of
GPF had already been sanctioned to Rameshwari Devi. However, in compliance with the order
of the High Court dated April 26, 1996 in writ petition filed by Yogmaya Devi family pension,
gratuity, GPF, pay for unutilised leave and group insurance were sanctioned to Rameshwari and
her son and minor sons of Yogmaya Devi.

Accountant General in his affidavit has only to refer to the action of the State Government in
cancelling its earlier order dated September 23, 1993 and fresh order dated August 22, 1995
authorising all the payments to Rameshwari Devi being the sole recipient of family pension and
death- cum-retirement gratuity. Accountant General says that on the orders of the State
Government it authorised full family pension and full gratuity to Rameshwari Devi. Reference
was then made to writ petition filed by Yogmaya Devi in the High Court and when the State
Government on the basis of the order of the High Court issued fresh order dated October 17,
1996 Accountant General accordingly authorised 50% of family pension and death-cum-
retirement gratuity to the minor children of Yogmaya Devi. A direction was issued to the
Treasury Officer to recover excess amount of family pension and death-cum-retirement gratuity
paid to Rameshwari Devi and further to reduce her family pension and death-cum-retirement
gratuity by 50%. Accountant General is non-committal if the children of Yogmaya Devi are
legitimate or illegitimate children of Narain Lal and rightly so. He has merely to act as per the
directions issued by the State Government.

Rameshwari Devi has disputed the very factum of marriage between Narain Lal and Yogmaya
Devi. Her case is that nothing has come on record to show that there was any valid marriage
solemnized as per Hindu law between Yogmaya Devi and Narain Lal. Yogmaya Devi says that
from the time of her marriage with Narain Lal in April, 1963 she has been continuously living
with Narain Lal as his wife. At the time of her marriage she had no knowledge if Narain Lal had
earlier been married. She has referred to various judgments of this Court to show that when two
persons are living together for long years as husband and wife, in such circumstances, even in
absence of proof, a presumption of valid marriage between them would arise. She says nothing
has been brought on record to rebut that presumption. In Badri Prasad vs. Dy. Director of
Consolidation & Ors. [(1978) 3 SCC 527] this Court said that a strong presumption arises in
favour of wedlock where the partners have lived together for a long spell as husband and wife.
Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the
relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. The
Court further observed that if men and women who live as husband and wife in society are
compelled to prove, half a century later, by eye-witness evidence that they were validly married,
few will succeed. There have been various other judgments of this Court holding where a man
and a woman live together for long years as husband and wife then a presumption arose in law of
legality of marriage existed between the two, though the presumption is rebuttable.

An inquiry report dated December 11, 1987 of ADM, Danapur Sub Division, Danapur, Patna has
been brought on record. According to this report on inquiry it was found that Narain Lal had
married twice. First time to Rameshwari Devi in 1948 and second time to Yogmaya Devi on
April 10, 1963. There is mention of one son from his first marriage with Rameshwari Devi and
four sons from marriage with Yogmaya Devi. Two persons have testified to the marriage of
Yogmaya Devi with Narain Lal. Both Narain Lal and Yogmaya Devi had lived together as
374
husband and wife at all the places wherever Narain Lal was posted. This fact was also verified
from the colleagues of Narain Lal and their wives. That four sons were born to Narain Lal from
his marriage with Yogmaya Devi has also been similarly testified.

Now, when first order was cancelled by the State Government and second passed depriving
Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed
writ petition in the High Court, which, as noted above, was allowed by the learned single Judge
and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of
the High Court which is impugned. Learned single Judge referred to Section 16 of the Hindu
Marriage Act, 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi
was void their children would be legitimate and thus would be entitled to claim share in the
family pension and death-cum-retirement gratuity of Narain Lal but only till they attained
majority. Learned single Judge accordingly issued direction to the State Government to issue
fresh sanction order for payment of arrears of family pension and death-cum-retirement gratuity
to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they
attain majority but nothing would be payable to Yogmaya Devi.

Mr. Dubey, counsel for Rameshwari Devi, submitted that inquiry conducted by the State
Government as to the marriage of Narain Lal with Yogmaya Devi was incompetent as there was
no lawful authority with the State Government to hold such an inquiry. It was for Yogmaya Devi
to establish her right of her being married to Narain Lal in a court of law. Mr. Dubey said under
the relevant Conduct Rules applicable to Narain Lal he could be charged with misconduct of his
having married a second time during the life time of his first wife. It is only in that circumstance
when there is charge of misconduct there could be an inquiry as to the marriage of Narain Lal
with Yogmaya Devi. He referred to Rule 21 of the Central Civil Service (Conduct) Rules as well
as to Rule 23 of the Bihar Government Servant's conduct Rules, 1976, which are as under:-

CCS Rules "21. Restriction regarding marriage (1) No Government servant shall enter into, or
contract, a marriage with a person having a spouse living; and (2) No Government servant
having a spouse living, shall enter into, or contract, a marriage with any person : Provided that
the Central Government may permit a Government servant to enter into, or contract, any such
marriage as is referred to in Clause (1) or Clause (2), if it is satisfied that (a) such marriage is
permissible under the personal law applicable to such Government servant and the other party to
the marriage; and (b) there are other grounds for so doing. (3) A Government servant who has
married or marries a person other than of Indian nationality shall forthwith intimate the fact to
the Government.

Bihar Government Servant's Conduct Rules,1976

23. Restrictions regarding marriages.(1) No Government servant shall enter into, or contract a
marriage with a person having a spouse living; and (2) No Government servant, having a spouse
living shall enter into or contract a marriage with any person : Provided that Government may
permit a Government servant to enter into, or contract, any such marriage as is referred to in
clause (4) or clause (2) if it is satisfied that. (a) such marriage is permissible under the personal
law applicable to such Government servant and the other party to the marriage; and (b) there are
other grounds for so doing. (3) A Government servant who has married or marries a person other
than of Indian Nationality shall forthwith intimate the fact to the Government."

We may also note two judgments of this Court on the question when there is charge of
misconduct against a Government servant. In State of Karnataka and another vs. T.
375
Venkataramanappa (1996 (6) SCC 455) the respondent, a police constable was prosecuted at the
instance of his wife for having contracted second marriage. He was discharged for want of
evidence. A departmental inquiry was instituted against him for having contracted second
marriage, for which he was suspended. He approached the Karnataka Administrative Tribunal
against the order of suspension and for stopping of the inquiry against him on the ground that a
criminal court had discharged him of the offence of bigamy. Tribunal accepted the stand of the
respondent, quashed the departmental proceedings and lifted the suspension. On appeal filed by
the State this Court said as under: --

"There is a string of judgments of this Court whereunder strict proof of solemnisation of the
second marriage, with due observance of rituals and ceremonies, has been insisted upon. The
prosecution evidence in the criminal complaint may have fallen short of those standards but that
does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka
Civil Service Rules, which forbids a government servant to marry a second time without the
permission of the Government. But, here the respondent being a Hindu, could never have been
granted permission by the Government to marry a second time because of his personal law
forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the
departmental proceedings against the respondent on the footing that such question of bigamy
should normally not be taken up for decision in departmental enquiries, as the decisions of
competent courts tending to be decisions in rem would stand at the highest pedestal. There was a
clear fallacy in such view because for purposes of Rule 28, such strict standards, as would
warrant a conviction for bigamy under Section 494 IPC, may not, to begin with, be necessary."

In State of W.B. and others vs. Prasenjit Dutta (1994 (2) SCC 37) departmental proceedings were
initiated against the respondent, who was a member of the Police Service of the State of West
Bengal under Rule 5(4) of the West Bengal Services (Duties, Rights and Obligations of the
Government Employees) Rules, 1980 for having contracted a second marriage. That Rule says
that no government employee who has a wife/husband living shall contract another marriage
without previously obtaining the dissolution of the first marriage in accordance with law for the
time being in force, notwithstanding such second marriage is permissible in the personal law of
the community to which he or she belongs. On an inquiry made by an officer, appointed for the
purpose, and on his report that the respondent was guilty of misconduct alleged, an order of
dismissal was passed by the disciplinary authority. Respondent approached the High Court and
the order of his dismissal was stayed. Nevertheless High Court was of the view that the second
marriage was a serious matter, which could not be left to be decided by the departmental
authorities, in proceedings such as these, and a civil or matrimonial court needs to pronounce
thereon properly and finally. On appeal filed by the State Government this Court said: --

"The view of the High Court may be correct that a matter such as the present one concerning the
existence or not of a relationship of husband and wife is normally to be dealt with in a
matrimonial or a civil court. It cannot at the same time be said that the departmental authorities
cannot go into such question for the limited purposes of sub-rule (4) of Rule 5 of the aforesaid
Rules. When contracting another marriage, in the presence of the previous one, has been termed
to be misconduct visiting departmental punishment it is difficult to keep suspended action under
the Rule till after a proper adjudication is made by the civil or matrimonial court. It would, thus,
have to be viewed that the departmental proceeding could not be shut in the manner in which the
High Court has done and it would have to go on to some finality at a departmental end, on the
culmination of which, it may then give rise to the delinquent approaching the civil court for
determining his matrimonial status."

376
But then it is not necessary for us to consider if Narain Lal could have been charged of
misconduct having contracted a second marriage when his first wife was living as no disciplinary
proceedings were held against him during his lifetime. In the present case, we are concerned only
with the question as to who is entitled to the family pension and death-cum-retirement gratuity
on the death of Narain Lal. When there are two claimants to the pensionary benefits of a
deceased employee and there is no nomination wherever required State Government has to hold
an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil court
pronounces upon the respective rights of the parties. That would certainly be a long drawn affair.
Doors of civil courts are always open to any party after and even before a decision is reached by
the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted
by the State Government cannot be a sham affair and it could also not be arbitrary. Decision has
to be taken in a bona fide reasonable and rational manner. In the present case an inquiry was held
which cannot be termed as sham. Result of the inquiry was that Yogmaya Devi and Narain Lal
lived as husband and wife since 1963. A presumption does arise, therefore, that marriage of
Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies
connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has
been unable to rebut. Nevertheless, that, however, does not make the marriage between
Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under
Section 494 IPC strict proof of solemnisation of the second marriage with due observance of
rituals and ceremonies has been insisted upon.

It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in
contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage.
Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu
Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause
(1) which include widow and son. Among the widow and son, they all get shares (see Sections 8,
10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a
widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between
Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the
property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born
from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when
Hindu male dies intestate. Here, however, we are concerned with the family pension and death-
cum-retirement Gratuity payments which is governed by the relevant rules. It is not disputed
before us that if the legal position as aforesaid is correct, there is no error with the directions
issued by the learned single Judge in the judgment which is upheld by the Division Bench in
LPA by the impugned judgment. Rameshwari Devi has raised two principal objections : (1)
marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that
there is no witness to the actual performance of the marriage in accordance with the religious
ceremonies required for a valid Hindu marriage and (2) without a civil court having pronounced
upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it
cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be
legitimate under Section 16 of the Hindu Marriage Act. First objection we have discussed above
and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage
duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct
that no civil court has pronounced if there was a marriage between Yogmaya Devi and Narain
Lal in accordance with Hindu rights. That would, however, not debar the State Government from
making an inquiry about the existence of such a marriage and act on that in order to grant
pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already
adverted to above. After the death of Narain Lal, inquiry was made by the State Government as
to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by
377
Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined
during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur
and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya
Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were
living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also
been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge,
Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha, w/o Sri S.N. Sinha, ADM and
others. Other documentary evidence were also collected which showed Yogmaya Devi and
Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya
Devi and Narain Lal were shown in records as sons of Narain Lal.

Having considered all the facts of the case as presented before us we do not find any error in the
impugned judgment of the Division Bench of the Patna High Court upholding the judgment of
the learned single Judge referred to in the beginning of this judgment. The appeal, therefore, fails
and is dismissed. However, there shall be no order as to costs.

Supreme Court of India

Savitaben Somabhai Bhatiya vs State Of Gujarat And Ors on 10 March, 2005

Bench: Arijit Pasayat, S.H. Kapadia

JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.) No. 4688 of 2004) ARIJIT PASAYAT, J.

Leave granted.

A brief reference to the factual position would suffice because essentially the dispute has to be
adjudicated with reference to scope and ambit of Section 125 of the Code of Criminal Procedure,
1973 (in short the 'Code').

The case at hand according to appellant is a classic example of the inadequacies of law in
protecting a woman who unwittingly entered into relationships with a married man.

Factual position as projected by the appellant is as follows:-

Appellant claims that she was married to respondent No.2 some time in 1994 according to the
customary rites and rituals of their caste. Though initially, the respondent No.2 treated her nicely,
thereafter he started ill-treating her and she was subjected to mental and physical torture. On
enquiry about the reason for such a sudden change in his behaviour, the appellant came to know
that respondent No.2 had developed illicit relationship with a lady named Veenaben. During the
period the appellant stayed with the respondent, she became pregnant and subsequently, a child
was born. As respondent No.2 neglected the appellant and the child born, an application in terms
of Section 125 of the Code was filed claiming maintenance. The application was filed before the
learned Judicial Magistrate, First Class (hereinafter referred to as the 'JMFC') Himmatnagar.
Respondent No.2 opposed the application by filing written statements taking the stand that the
appellant was not his legally married wife and the child (respondent No.3) was not his son. He
also denied having developed illicit relationship with Veenaben. He claimed that actually she
was married to him more than 22 years back and two children were born. Their son Hament had
378
died in the road accident in July 1990. In the Claim Petition name of Veenaben was mentioned as
the legal heir and in the Voters List, Ration Card and Provident Fund records, Veenaben was
shown as the wife of respondent No.2. On 23.6.1998 learned JMFC allowed the Claim Petition
and granted maintenance. A criminal revision was filed by respondent No.2 before learned
Additional Sessions Judge, Sabaakatha, Dist. Himmatnagar, who by his order dated 26.11.1998
set aside the judgment dated 23.6.1998 as passed by the learned JMFC and remanded the matter
to the trial Court for adjudication afresh after affording an opportunity to respondent No.2 to
cross examine the witnesses of the appellant. By order dated 31.7.1999, learned JMFC after
considering the matter afresh awarded maintenance to both the appellant and the child.

A Criminal Revision Application No.65/95 was filed by respondent No.2 against the order dated
31.7.1999. By order dated 12.7.2001, learned Additional District Judge, Sabarkatha dismissed
the application. The respondent No.2 filed a Special Criminal Application No.568/2001 before
the Gujarat High Court which by the impugned order held that the appellant was not legally
wedded wife of respondent No.2. Reliance was placed on documents filed by respondent No.2 to
conclude that before the alleged date of marriage between the appellant and respondent No.2, the
latter was already married to Veenaben with reference to the documents produced. However,
maintenance granted to the child (respondent No.3) was maintained and amount as awarded to
him i.e. Rs.350/- was enhanced to Rs.500/-. A direction was also given to pay the enhanced
amount from the date of order of the learned JMFC i.e. 31.7.1999.

In support of the appeal, learned counsel for the appellant submitted that the High Court has
taken a too technical view in the matter. Strict proof about a valid marriage is not the sine qua
non for getting maintenance under Section 125 of the Code. The documents produced by
respondent No.2 to substantiate the plea of earlier marriage with Veenaben should not have been
given primacy over the clinching evidence adduced by the appellant to show that she was
unaware of the alleged marriage. Since respondent No.2 is guilty of fraud and mis-
representation, the equity should not weigh in his favour. Law is intended to protect destitute and
harassed woman and rigid interpretation given to the word 'wife' goes against the legislative
intent. In any event, nothing has been shown by respondent No.2 to show that there is any
customary bar for a second marriage. Customs outweigh enacted law. That being the position,
the order passed by the learned JMFC should be restored. It was residually submitted that when
the amount was claimed as maintenance there was statutory limitation prescribed at Rs.500/-
which has been done away with by omitting the words of limitation so far as the amount is
concerned by amendment in 2001 to the Cr.P.C. Therefore, taking into account the high cost of
living the quantum of maintenance should be enhanced for the child.

In response, learned counsel for respondent No.2 submitted that law is fairly well settled
regarding the definition of the expression 'wife' and there is no scope for giving an extended
meaning to include a woman who is not legally married.

There may be substance in the plea of learned counsel for the appellant that law operates harshly
against the woman who unwittingly gets into relationship with a married man and Section 125 of
the Code does not give protection to such woman. This may be an inadequacy in law, which only
the legislature can undo. But as the position in law stands presently there is no escape from the
conclusion that the expression 'wife' as per Section 125 of the Code refers to only legally married
wife.

The provision is enacted for social justice and specially to protect women and children as also
old and infirm poor parents and falls within the constitutional sweep of Article 15(3) reinforced
379
by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). The provision gives
effect to the natural and fundamental duty of a man to maintain his wife, children and parents so
long as they are unable to maintain themselves. Its provisions are applicable and enforceable
whatever may be personal law by which the persons concerned are governed. (See Nanak Chand
v. Chandra Kishore (AIR 1970 SC 446). But the personal law of the parties is relevant for
deciding the validity of the marriage and therefore cannot be altogether excluded from
consideration. (See Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr.(AIR
1988 SC 644) There is no inconsistency between Section 125 of the Code and the provisions in
the Hindu Adoption and Maintenance Act, 1956 (in short the 'Adoption Act'). The scope of the
two laws is different.

Section 125 of the Code at the point of time when the petition for maintenance was filed reads as
follows:

"125(1)- If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may,
upon proof of such neglect or refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother at such monthly rate not exceeding five
hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as
the Magistrate may from to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause

(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means.

Explanation:- For the purposes of this Chapter-

(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed
not to have attained his majority;

(b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried."

By the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) the words
'not exceeding five hundred rupees in the whole' have been omitted w.e.f. 24.9.2001.

In Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (AIR 1999 SC 3348) it was held that
the validity of the marriage for the purpose of summary proceedings under Section 125 of the
Code is to be determined on the basis of the evidence brought on record by the parties. The
standard of proof of marriage in such proceedings is not as strict as is required in a trial of
380
offence under Section 494 of Indian Penal Code, 1860 (in short the 'IPC'). If the claimant in
proceedings under Section 125 succeeds in showing that she and the respondent have lived
together as husband and wife, the Court has to presume that they are legally wedded spouses, and
in such a situation one who denies the marital status can rebut the presumption. Once it is
admitted that the marriage procedure was followed then it is not necessary to further probe as to
whether the said procedure was complete as per the Hindu rites, in the proceedings under Section
125 of the Code. It is to be noted that when the respondent does not dispute the paternity of the
child and accepts the fact that marriage ceremony was performed though not legally perfect, it
would hardly lie in his mouth to contend in proceedings under Section 125 of the Code that there
was no valid marriage as essential rites were not performed at the time of said marriage. The
provision under Section 125 cannot be utilized for defeating the rights conferred by the
legislature on the destitute women, children or parents who are victims of social environment.
The provision is a measure of social justice and as noted above specially enacted to protect
women and children and falls within the constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution.

The sections of statutes calling for construction by courts are not petrified print but vibrant words
with social functions to fulfill. The brooding presence of the constitutional empathy for the
weaker sections like women and children must inform interpretation if it has to have social
relevance. So viewed it is possible to be selective in picking out that interpretation out of two
alternatives which advances the cause-the cause of the derelicts. (See Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807).

In Smt. Yamunabai's case (supra), it was held that expression 'wife' used in Section 125 of the
Code should be interpreted to mean only a legally wedded wife. The word 'wife' is not defined in
the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover
a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law
preceding that status. The expression must therefore be given the meaning in which it is
understood in law applicable to the parties. The marriage of a woman in accordance with the
Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is
therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955
(in short the 'Marriage Act'). Marriage with person having living spouse is null and void and not
voidable. However, the attempt to exclude altogether the personal law applicable to the parties
from consideration is improper. Section 125 of the Code has been enacted in the interest of a
wife and one who intends to take benefit under sub- section (1)(a) has to establish the necessary
condition, namely, that she is the wife of the person concerned. The issue can be decided only by
a reference to the law applicable to the parties. It is only where an applicant establishes such
status or relationship with reference to the personal law that an application for maintenance can
be maintained. Once the right under the provision in Section 125 of the Code is established by
proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the
personal law. The issue whether the Section is attracted or not cannot be answered except by
reference to the appropriate law governing the parties.

But it does not further the case of the appellant in the instant case. Even if it is accepted as stated
by learned counsel for the appellant that husband was treating her as his wife it is really
inconsequential. It is the intention of the legislature which is relevant and not the attitude of the
party.

In Smt. Yamunabai's case (supra) plea similar to the one advanced in the present case that the
appellant was not informed about the respondent's earlier marriage when she married him was
381
held to be of no avail. The principle of estoppel cannot be pressed into service to defeat the
provision of Section 125 of the Code.

It may be noted at this juncture that the legislature considered it necessary to include within the
scope of the provision an illegitimate child but it has not done so with respect to woman not
lawfully married. However, desirable it may be, as contended by learned counsel for the
appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly
reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any
artificial definition to include woman not lawfully married in the expression 'wife'.

As noted by this Court in Vimala (K.) v. Veeraswamy (K.) (1991 (2) SCC 375) when a plea of
subsisting marriage is raised by the respondent-husband it has to be satisfactorily proved by
tendering evidence to substantiate that he was already married.

In the instant case the evidence on record has been found sufficient by the Courts below by
recording findings of fact that earlier marriage of respondent was established.

In that view of the matter, the application so far as claim of maintenance of the wife is concerned
stands dismissed.

That brings us to the other question relating to adequacy of the quantum of maintenance awarded
to the child. It is not in dispute that when the Claim Petition was filed, Rs.500/- was claimed as
maintenance as that was the maximum amount which could have been granted because of the un-
amended Section 125. But presently, there is no such limitation in view of the amendment as
referred to above.

Learned counsel for respondent No.2 submitted that there was no amendment made to the Claim
Petition seeking enhancement. We find that this is a too technical plea. As a matter of fact,
Section 127 of the Code permits increase in the quantum. The application for maintenance was
filed on 1.9.1995. The order granting maintenance was passed by the learned JMFC on
31.7.1999. The High Court enhanced the quantum awarded to the child from Rs.350/- to
Rs.500/- with effect from the order passed by learned JMFC. No dispute has been raised
regarding enhancement and in fact there was a concession to the prayer for enhancement before
the High Court as recorded in the impugned judgment. Considering the peculiar facts of the case,
we feel that the amount of maintenance to the child can be enhanced to Rs.850/- with effect from
today.

Learned counsel for the respondent No.2 has submitted that as a humanitarian gesture, the
respondent No.2 agrees to pay a lump-sum amount to settle the dispute. In case the respondent
No.2 pays a sum of rupees two lakhs only within a period of four months to the appellant, the
same shall be in full and final settlement of the claim of respondent No.3 for maintenance. While
fixing the quantum we have taken note of the likely return as interest in case it is invested in
fixed deposit in a Nationalised Bank, and the likely increase in the quantum of maintenance till
respondent No.3 attains majority. Till deposit is made, the quantum fixed by this order shall be
paid. If the respondent No.2 wants to make lump-sum payment in terms of this order, the amount
shall be paid by the Bank draft in the name of respondent No.3 with appellant as mother
guardian. The amount shall be kept in a fixed deposit with monthly interest payment facility till
respondent No.3 attains majority.

The appeal is accordingly disposed of.

382
Supreme Court of India

Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985

Equivalent citations: 1985 AIR 945, 1985 SCR (3) 844

Author: Y Chandrachud

Bench: Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S.
(J), Misra Rangnath

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 103 of 1981.

From the Judgment and Order dated 1. 7. 1980 of the Madhya Pradesh High Court in Crl.
Revision No. 320 of 1979.

P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms. Sangeeta and S.K Gambhir for the
Appellant.

Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N.Singh for the Respondents.

Mohd. Yunus Salim and Shakeel Ahmed for Muslim Personal Law Board.

S.T. Desai and S.A. Syed for the Intervener Jamat- UlemaHind.

The Judgment of the Court was delivered by CHANDRACHUD,C.J. This appeal does not
involve any question of constitutional importance but, that is not to say that it does not involve
any question of importance. Some questions which arise under the ordinary civil and criminal
law are of a far-reaching significance to large segments of society which have been traditionally
subjected to unjust treatment. Women are one such segment. ' Nastree swatantramarhati" said
Manu, the Law giver: The woman does not deserve independence. And, it is alleged that the
'fatal point in Islam is the 'degradation of woman'(l). To the Prophet is ascribed the statement,
hopefully wrongly, that 'Woman was made from a crooked rib, and if you try to bend it straight,
it will break; therefore treat your wives kindly.

This appeal, arising out of an appellation filed by a divorced Muslim woman for maintenance
under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of
common interest not only to Muslim women, not only to women generally but, to all those who,
aspiring to create an equal society of men and women, lure themselves into the belief that
mankind has achieved a remarkable degree of progress in that direction. The appellant, who is an
advocate by profession, was married to the respondent in 1932. Three sons and two daughters
were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial
home. In April 1978, the respondent filed a petition against the appellant under section 125 of the
Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance
at the rate of Rs 500 per month. On November 6, 1978 the appellant divorced the respondent by

383
an irrevocable talaq. His defence to the respondent's petition for maintenance was that she had
ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore

under no obligation maintenance for her, that he had already paid maintenance to her at the rate
of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the
court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate
directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of
maintenance. It may be mentioned that the respondent had alleged that the appellant earns a
professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed
by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to
Rs. 179.20 per month. The husband is before us by special leave.

Does the Muslim Personal Law impose no obligation upon the husband to provide for the
maintenance of his divorced wife ? Undoubtedly, the Muslim husband enjoys the privilege of
being (1) 'Selections from Kuran'-Edward William Lane 1843, Reprint 1982, page xc
(Introduction) able to discard his wife whenever he chooses to do so, for reasons good, bad or
indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of a
pittance during the period of iddat ? And, is the law so ruthless in its inequality that, no matter
how much the husband pays for the maintenance of his divorced wife during the period of iddat,
the mere fact that he has paid something, no matter how little, absolves him for ever from the
duty of paying adequately so as to enable her to keep her body and soul together ? Then again, is
there any provision in the Muslim Personal Law under which a sum is payable to the wife 'on
divorce' ? These are some of the important, though agonising, questions which arise for our
decision.

The question as to whether section 125 of the Code applies to Muslims also is concluded by two
decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia(1) and
Fazlunbi v. K. Khader Vali.(2) These decisions took the view that the divorced Muslim wife is
entitled to apply for maintenance under section 125. But, a Bench consisting of our learned
Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined to the view that those cases
are not correctly decided. Therefore, they referred this appeal to a larger Bench by an order dated
February 3, 1981, which reads thus:

"As this case involves substantial questions of law of far-reaching consequences, we feel that the
decisions of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia & Anr and Fuzlunbi v. K.
Khader Vnli & Anr. require reconsideration because, in our opinion, they are not only in direct
contravention of the plain and an unambiguous language of s. 127(3)(b) of the Code of Criminal
Procedure, 1973 which far from overriding the Muslim Law on the subject protects and applies
the same in case where a wife has been divorced by the husband and the dower specified has
been paid and the period of iddat has been observed. The decision also appear to us to be against
the fundamental concept of divorce by the husband and its consequences (1) 1979 (2) SCR 75 (2)
1980 (3)SCR 1127 under the Muslim law which has been expressly protected by s. 2 of the
Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed by the

384
aforesaid decisions. We, therefore, direct that the matter may be placed before the Honorable
Chief Justice for being heard by a larger Bench consisting of more than three Judges. "

Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads
thus: "Order for maintenance of wives, children and parents

125. (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself,

(b)...

(c)...

(d)...

a Magistrate of the first class may, upon proof of such neglecter refusal, order such person to
make a monthly allowance for the maintenance of his wife .. at such monthly rate not exceeding
five hundred rupees in the whole as such Magistrate think fit Explanation-For the purposes of
this Chapter,-

(a)......

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband has not remarried.

(2)..... .

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole or any part of
each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for
a term which may extend to one month or until payment if sooner made:

Provided......

Provided further that if such person offers to maintain his wife on condition of her living with
him. and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it
shall be considered to be just ground for his wife's refusal to live with him."

Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus:

"Alteration in allowance

127. (1).....

385
(2)......

(3) Where any order has been made under section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied
that-

(a).....

(b) the woman has been divorced by her husband and that she has received, whether before or
after the date of the said order, the whole of the Sum which, under any customary or personal
law applicable to the parties, was payable on such divorce, cancel such order,-

(i) in the case where such sum was paid before such order, from the date on which such order
was made.

(ii) in any other case, from the date of expiry of the period, if any, for Which maintenance has
been actually paid by the husband to the woman."

Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain
his wife who is unable to maintain herself, can be asked by the court to pay a monthly
maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation
to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are
too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or
by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus
or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of
these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the
Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and
obligations of the parties belonging to particular, religions, like the Hindu Adoptions and
Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to
provide a quick and summary remedy to a class of persons who are unable to maintain
themselves. What difference would it then make as to what is the religion professed by the
neglected wife, child or parent ? Neglect by a person of sufficient means to maintain these and
the inability of these persons to maintain themselves are the objective criteria which determine
the applicability of section 125. Such provisions, which are essentially of a prophylactic nature,
cut across the barriers of religion. True, that they do not supplant the personal law of the parties
but, equally the religion professed by the parties or the state of the personal law by which they
are governed, cannot have any repercussion on the applicability of such laws unless, within the
framework of the Constitution, their application is restricted to a defined category of religious
groups or classes. The liability imposed by section 125 to maintain close relatives who are
indigent is founded upon the individual's obligation to the society to prevent vagrancy and
destitution. That is the moral edict of the law and morality cannot be clubbed with religion.
Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced
wife, contains no words of limitation to justify the exclusion of Muslim women from its scope.
Section 125 is truly secular in character.

Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal
Member of the Viceroy's Council, described the precursor of Chapter IX of the Code in which
section 125 occurs, as 'a mode of preventing vagrancy or at least of preventing its consequences.
In Jagir kaur v. Jaswont Singh,(1) Subba Rao, J. speaking for the Court said that Chapter XXXVI

386
of the Code of 1898 which contained section 488, corresponding to section 125, "intends to serve
a social purpose". In Nanak Chand v. Shri Chandra Kishore Agarwala.(2) Sikri, J., while
pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and that of
section 488 was different, said that section 488 was "applicable to all persons belonging to all
religions and has no relationship with the personal law of the parties".

Under section 488 of the Code of 1898, the wife's right to maintenance depended upon the
continuance of her married status. Therefore, that. right could be defeated by the husband by
divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce
against her under the other systems of law. It was in order to remove this hardship that the Joint
Committee recommended that the benefit of the provisions regarding maintenance should be,
extended to a divorced woman, so long as she has not remarried after the divorce. That is the
genesis of clause (b) of the Explanation to section 125(1), which provides that 'wife' includes a
woman who has been divorced by, or has obtained a divorce from her husband and has not
remarried. Even in the absence of this provision, the courts had held under the Code of 1&98 that
the provisions regarding maintenance were independent of the personal law governing the
parties. The induction of the definition of 'wife, so as to include a divorced woman lends even
greater weight to that (1) 1964 (2) SCR 73, 84.

(2) 1970 (l) S CR 565.

conclusion. 'Wife' means a wife as defined, irrespective of the religion professed by her or by her
husband. Therefor, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for
the purpose of section 125. The statutory right available to her under that section is unaffected by
the provisions of the personal law applicable to her.

The conclusion that the right conferred by section 125 can be exercised irrespective of the
personal law of the parties is fortified, especially in regard to Muslims, by the provision
contained in the Explanation to the second proviso to section 125(3) of the Code. That proviso
says that if the husband offers to maintain his wife on condition that she should live with him,
and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by
her, and may make an order of maintenance not with standing the offer of the husband, if he is
satisfied that there is a just ground for passing such an order. According to the Explanation to the
proviso:

"If a husband has contracted marriage with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live with him."

It is too well-known that "A Mahomedan may have as many as four wives at the same time but
not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely
irregular". (See Mulla's Mahomedan Law,18th Edition, paragraph 25S, page 285, quoting
Baillie's Digest of Moohummudan Law; and Ameer Ali's Mahomedan Law, 5th Edition, Vol. II,
page 280). The explanation confers upon the wife the right to refuse to live with her husband if
he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that
section 125 overrides the personal law, if is any there conflict between the two.

The whole of this discussion as to whether the right conferred by section 125 prevails over the
personal law of the parties, has proceeded on the assumption that there is a conflict between the
provisions of that section and those of the Muslim Personal Law. The argument that by reason of

387
section 2 of the Shariat Act, XXVI of 1937, the rule of decision in matters relating, inter alia, to
maintenance "shall be the Muslim Personal Law" also proceeds upon a similar assumption. We
embarked upon the decision of the question of priority between the Code and the Muslim
Personal Law on the assumption that there was a conflict between the two because, in so far as it
lies in our power, we wanted to set at rest, once for all, the question whether section 125 would
prevail over the personal law of the parties, in cases where they are in conflict.

The next logical step to take is to examine the question, on which considerable argument has
been advanced before us, whether there is any conflict between the provisions of section 125 and
those of the Muslim Personal Law on the liability of the Muslim husband to provide for the
maintenance of his divorced wife.

The contention of the husband and of the interveners who support him is that, under the Muslim
Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of
iddat. In support of this proposition, they rely upon the statement of law on the point contained in
certain text books. In Mulla's Mahomedan Law (18th Edition, para 279, page 301), there is a
statement to the effect that, "After divorce, the wife is entitled to maintenance during the period
of iddat". At page 302, the learned author says: -

'Where an order is made for the maintenance of a wife under section 488 of the Criminal
Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration
of the period of iddat. The result is that a Mahomedan may defeat an order made against him
under section 488 by divorcing his wife immediately after the order is made. His obligation to
maintain his wife will cease in that case on the completion of her iddat,"

Tyabji's Muslim law (4th Edition, para 304, pages 268-

269). contains the statement that:

"On the expiration of the iddat after talaq, the wife's right to maintenance ceases, whether based
on the Muslim Law, or on an order under the Criminal Procedure Code-"

According to Dr Paras Diwan:

"When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of
iddat.... On the expiration of the period of iddat, the wife is not entitled to any maintenance under
any circumstances. Muslim Law does not recognise any obligation on the part of a man to
maintain a wife whom he had divorced."

(Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text book are
inadequate to establish the proposition that the Muslim husband is not under an obligation to
provide for the maintenance of his divorced wife, who is unable to maintain herself. One must
have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent
both, in quantum and induration, of the husband's liability to provide for the maintenance of an
indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr
to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of
dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four
rupees (Mulla's Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard
388
to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr is
generally expected to take care of the ordinary requirements of the wife, during the marriage and
after. But these provisions of the Muslim Personal Law do not countenance cases in which the
wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust,
to extend the scope of the statements extracted above to cases in which a divorced wife is unable
to maintain herself. We are of the opinton that the application of those statements of law must be
restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising
out of the indigence of the divorced wife. We are not concerned here with the broad and general
question whether a husband is liable to maintain his wife, which includes a divorced wife, in all
circumstances and at all events. That is not the subject matter of section 125. That section deals
with cases in which, a person who is possessed of sufficient means neglects or refuses to
maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal
Law, which limits the husband's liability to provide for the maintenance of the divorced wife to
the period of iddat, does not contemplate or countenance the situation envisaged by section 125,
it would be wrong to hold that the Muslim husband, according to his personal law, is not under
all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is
unable to maintain herself. The argument of the appellant that, according to the Muslim Personal
Law, his liability to provide for the maintenance of his divorced wife is limited to the period of
iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. The true
position is that, if the divorced wife is able to maintain herself, the husband's liability to provide
maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain
herself, she is entitled to take recourse to section 125 of the Code. The outcome of this
discussion is that there is no conflict between the provisions of section 125 and those of the
Muslim Personal Law on the question of the Muslim husband's obligation to provide
maintenance for a divorced wife who is unable to maintain herself.

There can be no greater authority on this question than the Holy Quran, "The Quran, the Sacred
Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have
been communicated to Prophet Muhammed, as a final expression of God's will". (The Quran-
Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 . of the Quran show that
according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced
wives. The Arabic version of those Aiyats and their English translation are reproduced below:

Arabic version English version

Ayat No. 241 For divorced women
WA LIL MOTALLAQATAY Maintenance (should
be
MATA UN Provided)
BIL MAAROOFAY On a reasonable
(Scale)
HAQQAN This is a duty
ALAL MUTTAQEENA On the righteous.

KAZALEKA YUBAIYYANULLAHO Thus doth God LAKUM AYATEHEE LA ALLAKUM

Make clear His Signs TAQELOON To you: in order that ye may understand.

(See 'The Holy Quran' by Yusuf Ali, Page 96). The correctness of the translation of these Aiyats
is not in dispute except that, the contention of the appellant is that the word 'Mata' in Aiyat No.
241 means 'provision' and not 'maintenance'. That is a distinction without a difference. Nor are
389
we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat
241, the exhortation is to the' Mutta Queena', that is, to the more pious and the more God-fearing,
not to the general run of the Muslims, the 'Muslminin'. In Aiyat 242, the Quran says: "It is
expected that you will use your commonsense".

The English version of the two Aiyats in Muhammad Zafrullah Khan's 'The Quran' (page 38)
reads thus:

"For divorced women also there shall be provision according to what is fair. This is an obligation
binding on the righteous. Thus does Allah make His commandments clear to you that you may
understand."

The translation of Aiyats 240 to 242 in 'The Meaning of the Quran' (Vol. I, published by the
Board of Islamic Publications, Delhi) reads thus .

"240-241.

Those of you, who shall die and leave wives behind them, should make a will to the effect that
they should be provided with a year's maintenance and should not be turned out of their homes.
But if they leave their homes of their own accord, you shall not be answerable for whatever they
choose for themselves in a fair way; Allah is All Powerful, All-wise. Likewise, the divorced
women should also be given something in accordance with the known fair standard. This is an
obligation upon the God-fearing people.

242. A Thus Allah makes clear His commandments for you: It is expected that you will use your
commonsense." In "The Running Commentary of The Holy Quran" (1964 Edition) by Dr.
Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus:

"241 And for the divorced woman (also) a provision (should be made) with fairness (in addition
to her dower); (This is) a duty (incumbent) on the reverent."

In "The Meaning of the Glorious Quran, Text and Explanatory Translation", by Marmaduke
Pickthall, (Taj Company Ltd.,karachi), Aiyat 241 is translated thus:

'-241.

For divorced women a provision in kindness: A duty for those who ward off (evil)."

Finally, in "The Quran Interpreted" by Arthur J.

Arberry. Aiyat 241 is translated thus:

"241.

There shall be for divorced women provision honourable-an obligation on the god fearing." So
God makes clear His signs for you: Happily you will understand."

390
Dr. K.R. Nuri in his book quoted above: 'The Running Commentary of the Holy Quran", says in
the preface:

"Belief in Islam does not mean mere confession of the existence of something. It really means
the translation of the faith into action. Words without deeds carry no meaning in Islam.
Therefore the term "believe and do good" has been used like a phrase all over the Quran. Belief
in something means that man should inculcate the qualities or carry out the promptings or
guidance of that thing in his action. Belief in Allah means that besides acknowledging the
existence of the Author of the Universe, we are to show obedience to His commandments..."

These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to
make provision for or to provide maintenance to the divorced wife. The contrary argument does
less than justice to the teaching of the Quran. As observed by Mr. M. Hidayatullah in his
introduction to Mulla's Mahomedan Law, the Quran is Al- furqan' that is one showing truth from
falsehood and right from wrong.

The second plank of the appellant's argument is that the respondent's application under section
125 is liable to be dismissed be cause of the provision contained in section 127 (3) (b). That
section provides, to the extent material, that the Magistrate shall cancel the order of maintenance,
if the wife is divorced by the husband and, she has received "the whole of the sum which, under
any customary or personal law applicable to the parties, was payable on such divorce". That
raises the question as to whether, under the Muslim Personal law, any sum is payable to the wife
'on divorce'. We do not have to grope in the dark and speculate as to which kind of a sum this
can be because, the only argument advanced before us on behalf of the appellant and by the
interveners supporting him, is that Mahr is the amount payable by the husband to the wife on
divorce. We find it impossible to accept this argument.

In Mulla's principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in
paragraph 285 as "a sum of money or other property which the wife is entitled to receive from
the husband in consideration of the marriage." Dr. Paras Diwan in his book, "Muslim Law in
Modern India" (1982 Edition, page 60), criticises this definition on the ground that Mahr is not
payable "in consideration of marriage" but is an obligation imposed by law on the husband as a
mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time
of marriage does not affect the validity of the marriage. We need not enter into this controversy
and indeed, Mulla`s book itself contains the further statement at page 308 that the word
'consideration' is not used in the sense in which it is used in the Contract Act and that under the
Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of respect for
the wife. We are concerned to find is whether Mahr is an amount payable by the husband to the
wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the
amount of Mahr is usually split into two parts, one of which is called "prompt", which is payable
on demand, and the other is called "deferred ", which is payable on the dissolution of the
marriage by death or by divorce. But, the tact that deferred Mahr is payable at the time of the
dissolution of marriage, cannot justify the conclusion that it is payable 'on divorce'. Even
assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on
the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on
divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount
has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by
the divorce, which is what is meant by the expression 'on divorce', which occurs in section 127
(3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband
391
hl consideration of the marriage, that is the very opposite of the amount being payable in
consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable
in consideration of the marriage can possibly be described as an amount payable in consideration
of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a
mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to
the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And.
he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark
of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable 'on
divorce'.

In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in
Hamira Bibi v. Zubaide Bibi(1) sum-

(1) 43 1. A. 294.

med up the nature and character of Mahr in these words:

"Dower is an essential incident under the Muslim Law to the status of marriage; to such an extent
that is so that when it is unspecified at the time the marriage is contracted, the law declares that it
must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in
theory, payable before consummation; but the law allows its division into two parts, one of
which is called "prompt" payable before the wife can be called upon to enter the conjugal
domicil; the other " deferred", payable on the dissolution of the contract by the death of either of
the parties or by divorce." (p. 300-301) This statement of law was adopted in another decision of
the Privy Council in Syed Sabir Husain v. Farzand Hasan.(1) It is not quite appropriate and
seems invidious to describe any particular Bench of a court as "strong" but, we cannot resist the
temptation of mentioning that Mr. Syed Ameer Ali was a party to the decision in Hamira Bibi
while Sir Shadi Lal was a party to the decision in Syed Sabir Husain. These decisions show that
the payment of dower may be deferred to a future date as, for example, death or divorce. But,
that does not mean that the payment of the deferred dower is occasioned by these events.

It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated
December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was
on the anvil, would show that the intention of the Parliament was to leave the provisions of the
Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement
made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs:

"Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law
deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not
go into this, but say that we would not like to interfere with the customary law of the Muslims
through the Criminal Procedure Code. If there is (1) 65 I.A. 119, 127 a demand for change in the
Muslim Personal Law, it should actually come from the Muslim Community itself and we should
wait for the Muslim public opinion on these matters to crystalise before we try to change this
customary right or make changes in their personal law. Above all, this is hardly, the place where
we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous
situation. Divorced women have been included and brought within the admit of clause 125, but a

392
limitation is being imposed by this amendment to clause 127, namely, that the maintenance
orders would ceases to operate after the amounts due to her under the personal law are paid to
her. This is a healthy compromise between wh lt has been termed a conservative interpretation of
law or a concession to conservative public opinion and liberal approach to the problem. We have
made an advance and not tried to transgress what are the personal rights of Muslim women. So
this, I think, should satisfy Hon. Members that whatever advance we have made is in the right
direction and it should be welcomed."

lt does appear from this speech that the Government did not desire to interfere with the personal
law of the Muslim through the Criminal Procedure Code. It wanted the Muslim community to
take the lead and the Muslim public opinion to crystalise on the reforms in their personal law.
However, we do not concerned with the question whether the Government did not desire to bring
about changes in the Muslim Personal Law by enacting sections 125 and 127 of the Code. As we
have said earlier and, as admitted by the Minister, the Government did introduce such a change
by defining the expression 'wife' to include a divorced wife. It also introduced another significant
change by providing that the fact that the husband has contracted marriage with another woman
is a just ground for the wife's refusal to live with him. The provision contained in section 127 (3)
(b) may have been introduces because of the misconception that dower is an amount payable "on
divorce". But, that cannot convert an amount payable as a mark of respect for the wife into an
amount payable on divorce.

It must follow from this discussion, unavoidably a little too long, that the judgments of this Court
in Bai Tahira (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,) one
of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the
Court in both these cases, relied greatly on the teleological and schematic method of
interpretation so as to advance the purpose of the law. These constructional techniques have their
own importance in the interpretation of statutes meant to ameliorate the conditions of suffering
sections of the society. We have attempted to show that taking the language of the statute as one
finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply
for maintenance under section 125 and that, Mahr is not a sum which, under the Muslim Personal
Law, is payable on divorce.

Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an
error which has crept in the judgement There is a statement at page 80 of the report, in the
context of section 127 (3) (b), that "payment of Mahr money, as a customary discharge, is within
the cognizance of that provision". We have taken the view that Mahr, not being payable on
divorce, does not fall within the meaning of that provision.

It is a matter of deep regret that some of the interveners who supported the appellant, took up an
extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women
who are unable to maintain themselves. The written submissions of the All India Muslim
Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how
a Muslim divorce should maintain herself. The facile answer of the Board is (that the Personal
Law has devised the system of Mahr to meet the requirements of women and if a woman is
indigent, she must look to her relations, including nephew and cousins, to support her. This is a
most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social
worker who has been working in association with the Delhi City Women's Association for the
uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the
wife It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It
393
provides that "The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India". There is no evidence of any official activity for framing a
common civil code for the country.A belief seems to have gained ground that it is for the Muslim
community to take a lead in the matter of reforms of their personal law.A common Civil Code
will help the cause of national integration by removing disparate loyalties to laws which have
conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions
on this issue. It is the State which is charged with the duty of securing a uniform civil code for
the citizens of the country and, unquestionably, it has the legislative competence to do so.A
counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the
political courage to use that competence is quite another. We understand the difficulties involved
in bringing persons of different faiths and persuasions on a common platform But, a beginning
has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has
to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow
injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap
between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more
satisfactory way of dispensing justice than justice from case to case.

Dr. Tahir Mahmood in his book 'Muslim Personal Law' (1977 Edition, pages 200-202), has made
a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance
of the goal of secularism, the State must stop administering religion based personal laws". He
wants the lead to come from the majority community but, we should have thought that, lead or
no lead, the State must act. It would be useful to quote the appeal made by the author to the
Muslim community:

"Instead of wasting their energies in exerting theological and political pressure in order to secure
an "immunity" for their traditional personal law from the state` legislative jurisdiction, the
Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of
their time-worn and anachronistic interpretations, can enrich the common civil code of India."

At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and
Comparative Law, Indian Institute of Islamic Studies New Delhi? he also made an appeal to the
Muslim community to display by their conduct a correct understanding of Islamic concepts on
marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146).

Before we conclude, we would like to draw attention to the Report of the Commission on
marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution
dated August 4, 1955. The answer of the Commission to Question No.5 (page 1215 of the
Report) is that "a large number of middle-aged women who are being divorced without rhyme or
reason should not be thrown on the streets without a roof over their heads and without any means
of sustaining themselves and their children."

The Report concludes thus:

"In the words of Allama Iqbal, "the question which is likely to confront Muslim countries in the
near future, is whether the law of Islam is capable of evolution-a question which will require
great intellectual effort, and is sure to he answered in the affirmative "

For these reasons, we dismiss the appeal and confirm the judgment of the High Court. The
appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees ten
394
thousand. It is needless to add that it would be open to the respondent to make an application
under section 127 (1) of the Code for increasing the allowance of maintenance granted to her on
proof of a change in the circumstances as envisaged by that section.

S.R. .Appeal dismissed

Supreme Court of India

PETITIONER:
NOOR SABA KHATOON

Vs.

RESPONDENT:
MOHD. QUASIM

DATE OF JUDGMENT: 29/07/1997

BENCH:
A. S. ANAND, K. VENKATASWAMI

JUDGMENT:

J U D G M E N T DR. ANAND. J, A short but interesting question involved in this appeal, by

Special Leave, is whether the children of muslim parents are entitled to grant of maintenance
under Section 125, Cr. P. C. for the period till they attain majority or are able to maintain
themselves whichever date is earlier or in the case of female children till they get married or is
their right restrict to the grant of maintenance only for a period of two years prescribed under
Section 3(1)(b) of the Muslim Women (protection of Rights on Divorce) Act, 1986
notwithstanding Section 125 Cr. P. C.

The appellant married the respondent according to muslim rites on 27.10.1980. During the
wedlock, three children were born - two daughters and a son. On certain disputes arising between
the parties, the respondent allegedly turned the appellant out of the matrimonial home alongwith
the three children then aged 6 years, 3 years and 1 1/2 years and also refused and neglected to
maintain her and the children thereafter. After turning the appellant out of the matrimonial home,
the respondent took a second wife, Shahnawaz Begum, Claiming that the appellant has no means
to maintain herself and the children and that the respondent had both agricultural land and was
carrying on business in electrical appliances as well and had sufficient income and means to
maintain them, she filed an application under Section 125 Cr. P. C. in the Court of Shri A. K.
Jha, Judicial Magistrate, First Class, Gopalganj, on 13.2.1992. She claimed a sum of Rs. 400/-
per month for herself and Rs. 300/- per month as maintenance for each of the three children. The
application was contested, though it was only the appellant, who adduced evidence at the trial
and the respondent/husband did not lead any evidence. The Trial Court found that the respondent
had failed and neglected to maintain his wife and children and that they had no source of income
or means to maintain themselves and accordingly held that they were entitled to the grant of
maintenance from the respondent. By its order dated 19.1.1993, the Trial Court directed the
respondent to pay maintenance to the appellant at the rate of Rs. 200/- per month for herself and
395
at the rate of Rs. 150/- per month for each of the three minor children, till they attain the age of
majority. While the matter rested thus, the respondent divorced the appellant and thereafter filed
an application in the Trial Court seeking modification of the order dated 19.1.1993, in view of
the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter
referred to as the 1986 Act). By an order dated 27.7.1993, the Trial Court modified the order
dated 19.1.1993, insofar as the grant of maintenance to the appellant is concerned while
maintaining the order granting maintenance to each of the three minor children. Insofar as the
appellant is concerned, the Trial Court held that in view of the provisions of the 1986 Act the
appellant-wife after her divorce was entitled to maintenance only for a period of three months i.e.
for the period of Iddat. The Trial Court further found that the right to maintenance under Section
125 Cr. P. C. insofar as the children are concerned was not affected by the 1986 Act in any
manner. The order dated 27.7.1993 was challenged by the respondent through a Revision
Petition in the Court of 2nd Additional Judge, Gopalganj. On 16.7.1994, the revisional court
dismissed the revision petition holding that the 1986 Act does not over- ride the provisions of
Section 125 Cr. P. C. for grant of maintenance to the minor children and that Section 3(1)(b) of
the 1986 Act also entitles a divorced woman to claim reasonable and fair maintenance from her
husband for maintaining the children born to her before or after her divorce from her former
husband for a period of two years from the respective dates of birth of the children and that the
said provision did not affect the right to maintenance of the minor children granted by Section
125 Cr. P. C. The respondent, thereupon, filed a Criminal Misc. Petition under Section 482 Cr. P.
C. in the High Court challenging the correctness of that part of the order of the revisional court
which upheld the right to maintenance of the three minor children under Section 125 Cr. P. C. at
the rate of Rs. 150/- per month per child. A learned single Judge of the High Court accepted the
plea of the respondent that vide Section 3(1)(b) of the 1986 Act, a divorced muslim woman is
entitled to claim maintenance from her previous husband for her minor children only for a period
of two years from the date of birth of the concerned child and that the minor children were not
entitled to claim maintenance under Section 125 Cr. P. C. after the coming into force of the 1986
Act. The High Court noticed that the tow older children were aged 6 years and 3 years when the
application for maintenance was filed on their behalf by their mother, and thus "had completed
two years prior to filling of the petition for grant of maintenance", and as such those two children
were held not entitled to the grant of any maintenance under Section 125 Cr. P. C. and that the
third child, who was only 1 1/2 years of age on 19.1.1993, was entitled to receive maintenance
till she attained the age of two years i.e. till 19.7.1993 from the date of filing of the application
i.e. 13.2.1992. With the said modification, the miscellaneous application of the respondent-
husband was partly allowed. By special leave to appeal the appellant has come up to this court.

The facts are not in dispute. The appellant had filed a petition for grant of maintenance under
Section 125 Cr. P. C. for herself as well as on behalf of the three children born during the
wedlock, who were living with her, since the respondent had refused and neglected to maintain
them. On the date of the application filed under Section 125 Cr. P. C. i.e. 13.2.1992, the children
were aged 6 years, 3 years and 1 1/2 years. After the Trial Court granted the petition under
Section 125 Cr. P. C. in favour of the appellant and the three minor children, the respondent
divorced the appellant and filed an application seeking modification of the order of maintenance
in view of the provisions of the 1986 Act. The trial court modified its order qua the appellant,
restricting the grant of maintenance to the period of Iddat but maintained its earlier order insofar
as the children are concerned. While the revisional court declined to interfere with the order of
the Trial Court, the High Court based itself on Section 3(1)(b) of the 1986 Act to hold that the
grant of maintenance to the children of divorced muslim parents, living with their mother, was
restricted to the period prescribed under the said section notwithstanding the provisions of
Section 125 Cr. P. C..
396
Does Section 3(1)(b) of the 1986 Act is any way affect the rights of the minor children of
divorced muslim parents to the grant of maintenance under Section 125 Cr. P. C. is thus the moot
question?

The preamble to the 1986 Act reads: "An Act to protect the rights of Muslim women who have
been divorced by, or have obtained divorce from their husbands and to provide for matters
connected therewith or incidental thereto."

The Act, thus, aims to protect the rights of Muslim Women who have been divorced. The 1986
Act was enacted as a sequel to the judgment in Mohd. Ahmed Khan vs. shah Bano Begum, AIR
1985 SC 945. The question of maintenance of children was not involved in the controversy
arising out of the judgment in the case of Shah Bano Begum (supra). The Act was not enacted to
regulate the obligations of a muslim father to maintain his minor children unable to maintain
themselves which continued to be governed with Section 125 Cr. P. C.. This position clearly
emerges from a perusal of the relevant provisions of the 1986 Act.

Section 3 of the 1986 Act to the extent relevant for this case reads:

Sec. 3 Mahr or other properties of Muslim woman to be given to her at the time of divorce.- (1)
Notwithstanding anything contained in any other law for the time being in force, a divorced
woman shall be entitled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat
period her former husband;

(b) where she herself maintains the children born to her before or after her divorce, a reasonable
and fair provision and maintenance to be made and paid by her former husband for a period of
two ears from the respective dated of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at her time of her
marriage or at any time thereafter according to Muslim law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by her
relatives or friends or the husband or any relatives of the husband or his friends.

...................................

.............."

From a plain reading of the above Section it is manifest that it deals with "Mahr" or other
properties of a muslim woman to be given to her at the time of divorce. It lays down that a
reasonable and fair provision has to be made for payment of maintenance to her during the
period of Iddat by her former husband. Clause (b) of Section 3(1) (supra) provides for grant of
additional maintenance to her for the fosterage period of two years from the date of birth of the
child of marriage for maintaining that child during the fosterage. Maintenance for the prescribed
period referred to in Clause (b) of Section 3(1) is granted on the claim or the divorced mother on
her own behalf for maintaining the infant/infants for a period of tow years from the date of the
birth of the child concerned who is/are living with her and presumably is aimed at providing
some extra amount to the mother for her nourishment for nursing or taking care of the
397
infant/infants upto a period of two years. It has nothing to do with the right of the child/children
to claim maintenance under Section 125 Cr. P. C. So long as the conditions for the grant of
maintenance under Section 125 Cr. P. C. are satisfied, the rights of the minor children, unable to
maintain themselves, are not affected by Section 3(1)(b) of the 1986 Act. Under Section 125 Cr.
P. C. the maintenance of the children is obligatory on the father (irrespective of his religion) and
as long as he is in a position to do so and the children have no independent means of their own, it
remains his absolute obligation to provide for them. Insofar as children born of muslim parents
are concerned there is nothing in Section 125 Cr. P. C. which exempts a muslim father from his
obligation to maintain the children. These provisions are not affected by clause (b) of Section
3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even
preposterous to deny the benefit of Section 125 Cr. P. C. to the children only on the ground that
they are born of Muslim parents. The effect of a beneficial legislation like Section 125 Cr. P. C.,
cannot be allowed to be defeated except through clear provisions of a statute. We do not find
manifestation of any such intention in the 1986 Act to take away the independent rights of the
children to claim maintenance under Section 125 Cr. P. C. where they are minor and are unable
to maintain themselves. Muslim father's obligation, like that of a Hindu father, to maintain his
minor children as contained in Section 125 Cr. P. C. is absolute and is not at all affected by
Section Section 3(1)(b) of the 1986 Act. Indeed a muslim father can claim custody of the
children born through the divorced wife to fulfil his obligation to maintain them and if he
succeeds, he need not suffer an order or direction under Section 125 Cr. P. C. but where such
custody has not been claimed by him, he cannot refuse and neglect to maintain his minor
children on the ground that the has divorced their mother. The right of the children to claim
maintenance under Section 125 Cr. P. C. is separate, distinct and independent of the right of their
divorcee mother to claim maintenance for herself for maintaining the infant children upto the age
of 2 years from the date of birth of the concerned child under Section 3(1) of the Act. There is
nothing in the 1986 Act which in any manner affects the application of the provisions of Sections
125-128 of the Cr. P. C. relating to grant of maintenance insofar as minor children of muslim
parents, unable to maintain themselves, are concerned.

Indeed Section 3(1) of 1986 Act begins with a non obstante clause "notwithstanding any thing
contained in any other law for the time being in force" and clause (b) thereof provides that a
divorced woman shall be entitled to a reasonable and fair provision for maintenance by her
former husband to maintain the children born out of the wedlock for a period of two years from
the date of birth of such children, but the non obstante clause in our opinion only restricts and
confines the right of a divorcee muslim woman to claim or receive maintenance for herself and
for maintenance of the child/children till they attain the age of tow years, notwithstanding
anything contained in any other law for the time being in force in that behalf. It has nothing to do
with the independent right or entitlement of the minor children to be maintained by their muslim
father. A careful reading of the provisions of Section 125 Cr. P. C. and Section 3(1)(b) of the
1986 Act makes it clear that the two provisions apply and cover different situations and there is
no conflict, much less a real one, between the two. Whereas the 1986 Act deals with the
obligation of a muslim husband vis-a-vis his divorced wife including the payment of
maintenance to her for a period of two years of fosterage for maintaining the infant/infants,
where they are in the custody of the mother, the obligation of a muslim father to maintain the
minor children is governed by section 125 Cr. P. C. and his obligation to maintain them is
absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In
the case of female children this obligation extends till their marriage. Apart from the statutory
provisions referred to above, even under the Muslim personal Law, the right of minor children to
receive maintenance from their father, till they are able to maintain themselves, is absolute.

398
Prof. Tahir Mahmood, in his book "Statute-Law relating to Muslims in India" (1995 Edn.) while
dealing with the effect of the provisions of Section 125 Cr. P. C. on the 1986 Act and the Muslim
personal law observes at page 198:

"These provisions of the Code remain fully applicable to the Muslims, notwithstanding the
controversy resulting from the Has Bano case and the enactment of the Muslim Women
(Protection of Rights on divorce) Act, 1986. There is nothing in that Act in any way affecting the
application of these provisions to the children and parents governed by Muslim
law.............................. As regards children, the Code adopts the age of minority from the
Majority Act, 1875 by saying: "Minor means a person who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority" - [Explanation to
section 125 (1), clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the CrPC
law to obtain maintenance from its parents if they "neglect or refuse" to maintain it despite
"giving sufficient means"............................. .......

................................... ......

................................... ......

By Muslim law maintenance (nafaqa) is a birth right of children and an absolute liability of the
father.

Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they
get remarried if they are thaviba (divorce/widow). Sons are entitled to till they attain bulugh if
they are normal; and as long as necessary if they are handicapped or indigent. providing
maintenance to daughters is a great religious virtue. The Prophet had said:

"Whoever has daughters and spends all that the has on their upbringing well, on the Day of
Judgment, be as close to me as two fingers of a hand.

If a father is a poverty- stricken and cannot therefore provide maintenance to his children, while
their mother is affluent, the mother must provide them maintenance subject to reimbursement by
the father when his financial condition improves.

(Emphasis supplied) Thus, both under the personal law and the statutory law (Sec. 125 Cr. P. C.)
the obligation of a muslim father, having sufficient means, to maintain his minor children, unable
to maintain themselves, till they attain majority and in case of females till they get married, is
absolute, notwithstanding the fact that the minor children are living with the divorced wife.

Thus, our answer to the question posed in the earlier part of the opinion is that the children of
muslim parents are entitled to claim maintenance under Section 125 Cr. P. C. for the period till
they attain majority or are able to maintain themselves, whichever is earlier and in case of
females, till they get married, and this right is not restricted, affected or controlled by divorcee
wife's right to claim maintenance for maintaining the infant child/children in her custody for a
period of tow years from the date of birth of the child concerned under Section 3(1)(b) of the
1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of
the minor children of divorced muslim parents to claim maintenance from their father under

399
Section 125 Cr. P. C. till they attain majority or are able to maintain themselves, or in the case of
females, till they are married.

It, therefore, follows that the learned Trial Court was perfectly right in directing the payment of
amount of maintenance to each of the three children as per the order dated 19.1.1993 and the
learned 2nd Additional Sessions Judge also committed no error in dismissing the revision
petition filed by the respondent. The High court, on the other hand, fell in complete error in
holding that the right to claim maintenance of the children under Section 125 Cr. P. C. was taken
away and superseded by Section 3(1)(b) of the 1986 Act and that maintenance was payable to the
minor children of Muslim parents only for a period of two years from the date of the birth of the
child concerned notwithstanding the provisions of Section 125 Cr. P. C.. The order of the High
Court cannot, therefore, be sustained. It is accordingly set aside. The order of the Trial Court and
the Revisional Court is restored. This appeal succeeds and is allowed but without any orders as
to cost.

The arrears of maintenance in respect of the children shall be paid by the respondent to the
appellant-mother, who filed the petition on their behalf, within one year form the date of this
order in four equal instalments, payable quarterly. The first instalment shall be paid on or before
August 15, 1997 and thereafter every three months. Any single default in the payment of the
arrears will entitle the appellant to recover the entire balance amount at once with 12% interest
through the Trial Court in the manner prescribed by the Code. The respondent shall continue to
pay maintenance as directed by the trial court, till the children attain minority or are able to
maintain themselves and in the case of the daughters, till they get married.

Supreme Court of India

PETITIONER:
DANIAL LATIFI & ANR.

Vs.

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT: 28/09/2001

BENCH:
G.B. Pattanaik, S. RAjendra Babu, D.P. Mohapatra, Doraiswamy Raju & Shivaraj V. Patil

JUDGMENT:

[ With WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86, 1281/86, T.C. (C)
22/87, 86/88, 68/88, T.P. (C) No. 276- 77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-

400
97/92, WP(C) No. 12273/84, SLP(Crl.) No. 2513/94, Crl. A. Nos. 508/95, 843/95, 102-103/89,
292/90, SLP (Crl.) Nos. 2165/96, 3786/99, 2462/99] J U D G M E N T RAJENDRA BABU, J.:

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986
[hereinafter referred to as the Act] is in challenge before us in these cases.

The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (1985) 2 SCC 556, are as
follows.

The husband appealed against the judgment of the Madhya Pradesh High Court directing him to
pay to his divorced wife Rs.179/- per month, enhancing the paltry sum of Rs.25 per month
originally granted by the Magistrate. The parties had been married for 43 years before the ill and
elderly wife had been thrown out of her husbands residence. For about two years the husband
paid maintenance to his wife at the rate of Rs.200/- per month. When these payments ceased she
petitioned under Section 125 CrPC. The husband immediately dissolved the marriage by
pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears
of maintenance and maintenance for the iddat period and he sought thereafter to have the petition
dismissed on the ground that she had received the amount due to her on divorce under the
Muslim law applicable to the parties. The important feature of the case was that the wife had
managed the matrimonial home for more than 40 years and had borne and reared five children
and was incapable of taking up any career or independently supporting herself at that late stage
of her life - remarriage was an impossibility in that case. The husband, a successful Advocate
with an approximate income of Rs.5,000/- per month provided Rs.200/- per month to the
divorced wife, who had shared his life for half a century and mothered his five children and was
in desperate need of money to survive.

Thus, the principle question for consideration before this Court was the interpretation of Section
127(3)(b) CrPC that where a Muslim woman had been divorced by her husband and paid her
mahr, would it indemnify the husband from his obligation under the provisions of Section 125
CrPC. A Five-Judge Bench of this Court reiterated that the Code of Criminal Procedure controls
the proceedings in such matters and overrides the personal law of the parties. If there was a
conflict between the terms of the Code and the rights and obligations of the individuals, the
former would prevail. This Court pointed out that mahr is more closely connected with marriage
than with divorce though mahr or a significant portion of it, is usually payable at the time the
marriage is dissolved, whether by death or divorce. This fact is relevant in the context of Section
125 CrPC even if it is not relevant in the context of Section 127(3)(b) CrPC. Therefore, this
Court held that it is a sum payable on divorce within the meaning of Section 127(3)(b) CrPC and
held that mahr is such a sum which cannot ipso facto absolve the husbands liability under the
Act.

It was next considered whether the amount of mahr constitutes a reasonable alternative to the
maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of
Section 127(3)(b) CrPC but even in that case, mahr is part of the resources available to the
woman and will be taken into account in considering her eligibility for a maintenance order and
the quantum of maintenance. Thus this Court concluded that the divorced women were entitled
to apply for maintenance orders against their former husbands under Section 125 CrPC and such
applications were not barred under Section 127(3)(b) CrPC.

401
The husband had based his entire case on the claim to be excluded from the operation of Section
125 CrPC on the ground that Muslim law exempted from any responsibility for his divorced wife
beyond payment of any mahr due to her and an amount to cover maintenance during the iddat
period and Section 127(3)(b) CrPC conferred statutory recognition on this principle. Several
Muslim organisations, which intervened in the matter, also addressed arguments. Some of the
Muslim social workers who appeared as interveners in the case supported the wife brought in
question the issue of mata contending that Muslim law entitled a Muslim divorced woman to
claim provision for maintenance from her husband after the iddat period. Thus, the issue before
this Court was: the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on
the ground that he had given to his wife the whole of the sum which, under the Muslim law
applicable to the parties, was payable on such divorce while the woman contended that he had
not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had not
provided the mata i.e. provision or maintenance referred to in the Holy Quran, Chapter II, Sura

241. This Court, after referring to the various text books on Muslim law, held that the divorced
wifes right to maintenance ceased on expiration of iddat period but this Court proceeded to
observe that the general propositions reflected in those statements did not deal with the special
situation where the divorced wife was unable to maintain herself. In such cases, it was stated that
it would be not only incorrect but unjust to extend the scope of the statements referred to in those
text books in which a divorced wife is unable to maintain herself and opined that the application
of those statements of law must be restricted to that class of cases in which there is no possibility
of vagrancy or destitution arising out of the indigence of the divorced wife. This Court concluded
that these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt that the Holy
Quran imposes an obligation on the Muslim husband to make provision for or to provide
maintenance to the divorced wife. The contrary argument does less than justice to the teaching of
the Holy Quran. On this note, this Court concluded its judgment.

There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of
making the decision in Shah Banos case ineffective.

The Statement of Objects & Reasons to the bill, which resulted in the Act, reads as follows :

The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. [AIR 1985 SC 945),
has held that although the Muslim Law limits the husbands liability to provide for maintenance
of the divorced wife to the period of iddat, it does not contemplate or countenance the situation
envisaged by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would
be incorrect and unjust to extend the above principle of Muslim Law to cases in which the
divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if
the divorced wife is able to maintain herself, the husbands liability ceases with the expiration of
the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled
to have recourse to Section 125 of the Code of Criminal Procedure.

This decision has led to some controversy as to the obligation of the Muslim husband to pay
maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights
which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.

The Muslim Women ( Protection of Rights on Divorxe) Act was passed after the decision in
Mohd. Ahmed Khan Vs Shah BNO Begum After 11985 Sc 945 which held if the divorced
woman is able to maintain herself, th3e husband’s liability ceases with the expiration of Iddat,

402
period,, but if she is unable to maibtain herself, after t he period of iddat, she is entitled to have
recourse to Cr.P>C. Sec.125.

The Actr provides for the dfollowing:

(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and
maintenance within the period of iddat by her former husband and in case she maintains the
children born to her before or after her divorce, such reasonable provision and maintenance
would be extended to a period of two years from the dates of birth of the children. She will also
be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband
and the husbands relatives. If the above benefits are not given to her at the time of divorce, she is
entitled to apply to the Magistrate for an order directing her former husband to provide for such
maintenance, the payment of mahr or dower or the deliver of the properties;

(b) where a Muslim divorced woman is unable to maintain.n herself after the period of iddat, the
Magistrate is empowered to make an order for the payment of maintenance by her relatives who
would be entitled to inherit her property on her death according to Muslim Law in the
proportions in which they would inherit her property. If any one of such relatives is unable to pay
his or her share on the ground of his or her not having the means to pay, the Magistrate would
direct the other relatives who have sufficient means to pay the shares of these relatives also. But
where, a divorced woman has no relatives or such relatives or any one of them has not enough
means to pay the maintenance or the other relatives who have been asked to pay the shares of the
defaulting relatives also do not have the means to pay the shares of the defaulting relatives the
Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the
shares of the relatives who are unable to pay..

As held in Shah Banos case, the true position is that if the divorced wife is able to maintain
herself, the husbands liability to provide maintenance for her ceases with the expiration of the
period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to
have recourse to Section 125 CrPC. Thus it was held that there is no conflict between the
provisions of Section 125 CrPC and those of the Muslim Personal Law on the question of the
Muslim husbands obligation to provide maintenance to his divorced wife, who is unable to
maintain herself.

This view is a reiteration of what is stated in two other decisions earlier rendered by this Court in
Bai Tahira vs. Ali Hussain Fidaalli Chothia, (1979) 2 SCC 316, and Fuzlunbi vs. K.Khader Vali
& Anr., (1980) 4 SCC 125.

Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the
petitioners and they are summarised as follows :

1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or

dower and absence of consideration will discharge the marriage. On the other hand, Section 125
CrPC has been enacted as a matter of public policy.

2. To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who is
having sufficient means and neglects or refuses to maintain her, payment of maintenance at a
monthly rate not exceeding Rs.500/-. The expression wife includes a woman who has been
divorced by, or has obtained a divorce from her husband and has not remarried. The religion
professed by a spouse or the spouses has no relevance in the scheme of these provisions whether
403
they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. It is submitted that
Section 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which defines
and governs rights and obligations of the parties belonging to a particular religion like the Hindu
Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 CrPC, it
is submitted, was enacted in order to provide a quick and summary remedy. The basis there
being, neglect by a person of sufficient means to maintain these and the inability of these persons
to maintain themselves, these provisions have been made and the moral edict of the law and
morality cannot be clubbed with religion.

3. The argument is that the rationale of Section 125 CrPC is to off- set or to meet a situation
where a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is
enacted to prevent the same in furtherance of the concept of social justice embodied in Article 21
of the Constitution.

4. It is, therefore, submitted that this Court will have to examine the questions raised before us
not on the basis of Personal Law but on the basis that Section 125 CrPC is a provision made in
respect of women belonging to all religions and exclusion of Muslim women from the same
results in discrimination between women and women. Apart from the gender injustice caused in
the country, this discrimination further leads to a monstrous proposition of nullifying a law
declared by this Court in Shah Banos case. Thus there is a violation of not only equality before
law but also equal protection of laws and inherent infringement of Article 21 as well as basic
human values. If the object of Section 125 CrPC is to avoid vagrancy, the remedy thereunder
cannot be denied to Muslim women.

5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim
women and it undermines the secular character, which is the basic feature of the Constitution;
that there is no rhyme or reason to deprive the muslim women from the applicability of the
provisions of Section 125 CrPC and consequently, the present Act must be held to be
discriminatory and violative of Article 14 of the Constitution; that excluding the application of
Section 125 CrPC is violative of Articles 14 and 21 of the Constitution; that the conferment of
power on the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different
from the right of a muslim woman like any other woman in the country to avail of the remedies
under Section 125 CrPC and such deprivement would make the Act unconstitutional, as there is
no nexus to deprive a muslim woman from availing of the remedies available under Section 125
CrPC, notwithstanding the fact that the conditions precedent for availing of the said remedies are
satisfied.

The learned Solicitor General, who appeared for the Union of India, submitted that when a
question of maintenance arises which forms part of the personal law of a community, what is fair
and reasonable is a question of fact in that context. Under Section 3 of the Act, it is provided that
a reasonable and fair provision and maintenance to be made and paid by her former husband
within the iddat period would make it clear that it cannot be for life but would only be for a
period of iddat and when that fact has clearly been stated in the provision, the question of
interpretation as to whether it is for life or for the period of iddat would not arise. Challenge
raised in this petition is dehors the personal law. Personal law is a legitimate basis for
discrimination, if at all, and, therefore, does not offend Article 14 of the Constitution. If the
legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it could also be
stated that the same legislature can, by implication, withdraw such application and make some
other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them
and apply personal law and the policy of Section 125 CrPC is not to create a right of
404
maintenance dehors the personal law. He further submitted that in Shah Banos case, it has been
held that a divorced woman is entitled to maintenance even after the iddat period from the
husband and that is how Parliament also understood the ratio of that decision. To overcome the
ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord
with the personal law.

Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law
Board, submitted that the main object of the Act is to undo the Shah Banos case. He submitted
that this Court has harzarded interpretation of an unfamiliar language in relation to religious
tenets and such a course is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem
vs. Koolsom Bee Bee & Ors., 24 IA 196, particularly in relation to Suras 241 and 242 Chapter II,
the Holy Quran.. He submitted that in interpreting Section 3(1)(a) of the Act, the expressions
provision and maintenance are clearly the same and not different as has been held by some of the
High Courts. He contended that the aim of the Act is not to penalise the husband but to avoid
vagrancy and in this context Section 4 of the Act is good enough to take care of such a situation
and he, after making reference to several works on interpretation and religious thoughts as
applicable to Muslims, submitted that social ethos of Muslim society spreads a wider net to take
care of a Muslim divorced wife and not at all dependent on the husband. He adverted to the
works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad, published from Lahore
in 1957 at p. 735. He also referred to the English translation of the Holy Quran to explain the
meaning of gift in Sura 241. In conclusion, he submitted that the interpretation to be placed on
the enactment should be in consonance with the Muslim personal law and also meet a situation
of vagrancy of a Muslim divorced wife even when there is a denial of the remedy provided under
Section 125 CrPC and such a course would not lead to vagrancy since provisions have been
made in the Act. This Court will have to bear in mind the social ethos of Muslims, which are
different and the enactment is consistent with law and justice.

It was further contended on behalf of the respondents that the Parliament enacted the impugned
Act, respecting the personal law of muslims and that itself is a legitimate basis for making a
differentiation; that a separate law for a community on the basis of personal law applicable to
such community, cannot be held to be discriminatory; that the personal law is now being
continued by a legislative enactment and the entire policy behind the Act is not to confer a right
of maintenance, unrelated to the personal law; that the object of the Act itself was to preserve the
personal law and prevent inroad into the same; that the Act aims to prevent the vagaries and not
to make a muslim woman, destitute and at the same time, not to penalise the husband; that the
impugned Act resolves all issues, bearing in mind the personal law of muslim community and
the fact that the benefits of Section 125 CrPC have not been extended to muslim women, would
not necessarily lead to a conclusion that there is no provision to protect the muslim women from
vagaries and from being a destitute; that therefore, the Act is not invalid or unconstitutional.

On behalf of the All India Muslim Personal Law Board, certain other contentions have also been
advanced identical to those advanced by the other authorities and their submission is that the
interpretation placed on the Arabic word mata by this Court in Shah Banos case is incorrect and
submitted that the maintenance which includes the provision for residence during the iddat
period is the obligation of the husband but such provision should be construed synonymously
with the religious tenets and, so construed, the expression would only include the right of
residence of a Muslim divorced wife during iddat period and also during the extended period
under Section 3(1)(a) of the Act and thus reiterated various other contentions advanced on behalf
of others and they have also referred to several opinions expressed in various text books, such as,
-
405
1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed
Abdul Latif;

2. Persian Translation of the Quran by Shah Waliullah Dahlavi

3. Al-Manar Commentary on the Quran (Arabic);

4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin
Ahmed BinUsman Az-Zahbi;

5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As- Sabai;

6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;

7. Commentary on the Quran by Baidavi (Arabic);

8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;

9. Al Muhalla by Ibne Hazm (Arabic);

10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu Zuhra Darul Fikrul Arabi.

On the basis of the aforementioned text books, it is contended that the view taken in Shah Banos
case on the expression mata is not correct and the whole object of the enactment has been to
nullify the effect of the Shah Banos case so as to exclude the application of the provision of
Section 125 CrPC, however, giving recognition to the personal law as stated in Sections 3 and 4
of the Act. As stated earlier, the interpretation of the provisions will have to be made bearing in
mind the social ethos of the Muslim and there should not be erosion of the personal law.

[ On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr.
Mustafa-as-Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy
Quran casts an obligation on a former husband to pay maintenance to the Muslim divorced wife
beyond the iddat period. It is submitted that Mr. M. Asads translation and commentary has been
held to be unauthentic and unreliable and has been subscribed by the Islamic World League only.
It is submitted that Dr. Mustafa-as-Sabayi is a well-known author in Arabic but his field was
history and literature and not the Muslim law. It was submitted that neither are they the
theologists nor jurists in terms of Muslim law. It is contended that this Court wrongly relied upon
Verse 241 of Chapter II of the Holy Quran and the decree in this regard is to be referred to Verse
236 of Chapter II which makes paying mata as obligatory for such divorcees who were not
touched before divorce and whose Mahr was not stipulated. It is submitted that such divorcees do
not have to observe iddat period and hence not entitled to any maintenance. Thus the obligation
for mata has been imposed which is a one time transaction related to the capacity of the former
husband. The impugned Act has no application to this type of case. On the basis of certain texts,
it is contended that the expression mata which according to different schools of Muslim law, is
obligatory only in typical case of a divorce before consummation to the woman whose mahr was
not stipulated and deals with obligatory rights of maintenance for observing iddat period or for
breast-feeding the child. Thereafter, various other contentions were raised on behalf of the
Islamic Shariat Board as to why the views expressed by different authors should not be accepted.

406
Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National Commission for
Women, submitted that the interpretation placed by the decisions of the Gujarat, Bombay, Kerala
and the minority view of the Andhra Pradesh High Courts should be accepted by us. As regards
the constitutional validity of the Act, he submitted that if the interpretation of Section 3 of the
Act as stated later in the course of this judgment is not acceptable then the consequence would be
that a Muslim divorced wife is permanently rendered without remedy insofar as her former
husband is concerned for the purpose of her survival after the iddat period. Such relief is neither
available under Section 125 CrPC nor is it properly compensated by the provision made in
Section 4 of the Act. He contended that the remedy provided under Section 4 of the Act is
illusory inasmuch as firstly, she cannot get sustenance from the parties who were not only
strangers to the marital relationship which led to divorce; secondly, wakf boards would usually
not have the means to support such destitute women since they are themselves perennially
starved of funds and thirdly, the potential legatees of a destitute woman would either be too
young or too old so as to be able to extend requisite support. Therefore, realistic appreciation of
the matter will have to be taken and this provision will have to be decided on the touch stone of
Articles 14, 15 and also Article 21 of the Constitution and thus the denial of right to life and
liberty is exasperated by the fact that it operates oppressively, unequally and unreasonably only
against one class of women. While Section 5 of the Act makes the availability and applicability
of the remedy as provided by Section 125 CrPC dependent upon the whim, caprice, choice and
option of the husband of the Muslim divorcee who in the first place is sought to be excluded
from the ambit of Section 3 of the post-iddat period and, therefore, submitted that this provision
will have to be held unconstitutional.

This Court in Shah Banos case held that although Muslim personal law limits the husbands
liability to provide maintenance for his divorced wife to the period of iddat, it does not
contemplate a situation envisaged by Section 125 CrPC of 1973. The Court held that it would not
be incorrect or unjustified to extend the above principle of Muslim Law to cases in which a
divorced wife is unable to maintain herself and, therefore, the Court came to the conclusion that
if the divorced wife is able to maintain herself the husbands liability ceases with the expiration of
the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled
to recourse to Section 125 CrPC. This decision having imposed obligations as to the liability of
Muslim husband to pay maintenance to his divorced wife, Parliament endorsed by the Act the
right of a Muslim woman to be paid maintenance at the time of divorce and to protect her rights.

The learned counsel have also raised certain incidental questions arising in these matters to the
following effect-

1) Whether the husband who had not complied with the orders passed prior to the enactments
and were in arrears of payments could escape from their obligation on the basis of the Act, or in
other words, whether the Act is retrospective in effect?

2) Whether Family Courts have jurisdiction to decide the issues under the Act?

3) What is the extent to which the Wakf Board is liable under the Act?

The learned counsel for the parties have elaborately argued on a very wide canvass. Since we are
only concerned in this Bench with the constitutional validity of the provisions of the Act, we will
consider only such questions as are germane to this aspect. We will decide only the question of
constitutional validity of the Act and relegate the matters when other issues arise to be dealt with
by respective Benches of this Court either in appeal or special leave petitions or writ petitions.
407
In interpreting the provisions where matrimonial relationship is involved, we have to consider
the social conditions prevalent in our society. In our society, whether they belong to the majority
or the minority group, what is apparent is that there exists a great disparity in the matter of
economic resourcefulness between a man and a woman. Our society is male dominated both
economically and socially and women are assigned, invariably, a dependant role, irrespective of
the class of society to which she belongs. A woman on her marriage very often, though highly
educated, gives up her all other avocations and entirely devotes herself to the welfare of the
family, in particular she shares with her husband, her emotions, sentiments, mind and body, and
her investment in the marriage is her entire life a sacramental sacrifice of her individual self and
is far too enormous to be measured in terms of money. When a relationship of this nature breaks
up, in what manner we could compensate her so far as emotional fracture or loss of investment is
concerned, there can be no answer. It is a small solace to say that such a woman should be
compensated in terms of money towards her livelihood and such a relief which partakes basic
human rights to secure gender and social justice is universally recognised by persons belonging
to all religions and it is difficult to perceive that Muslim law intends to provide a different kind
of responsibility by passing on the same to those unconnected with the matrimonial life such as
the heirs who were likely to inherit the property from her or the wakf boards. Such an approach
appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of
universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of
life and dictates of necessity in the pursuit of social justice should be invariably left to be decided
on considerations other than religion or religious faith or beliefs or national, sectarian, racial or
communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act
in question.

Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The
Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have
been divorced by, or have obtained divorce from, their husbands and to provide for matters
connected therewith or incidental thereto. A divorced woman is defined under Section 2(a) of the
Act to mean a divorced woman who was married according to Muslim Law, and has been
divorced by, or has obtained divorce from her husband in accordance with Muslim Law; iddat
period is defined under Section 2(b) of the Act to mean, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to menstruation; and

(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery
of her child or the termination of her pregnancy whichever is earlier. Sections 3 and 4 of the Act
are the principal sections, which are under attack before us. Section 3 opens up with a non-
obstante clause overriding all other laws and provides that a divorced woman shall be entitled to
-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the period
of iddat by her former husband;

(b) where she maintains the children born to her before or after her divorce, a reasonable
provision and maintenance to be made and paid by her former husband for a period of two years
from the respective dates of birth of such children;

408
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim Law; and

(d) all the properties given to her by her before or at the time of marriage or after the marriage by
her relatives, friends, husband and any relatives of the husband or his friends.

Where such reasonable and fair provision and maintenance or the amount of mahr or dower due
has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, she or any one duly authorised by her may,
on her behalf, make an application to a Magistrate for an order for payment of such provision
and maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the
provisions of Section 3 of the Act may not be of much relevance, which are procedural in nature.

Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act
or in any other law for the time being in force, where the Magistrate is satisfied that a divorced
woman has not re-married and is not able to maintain herself after the iddat period, he may make
an order directing such of her relatives as would be entitled to inherit her property on her death
according to Muslim Law to pay such reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of such relatives and such maintenance shall
be payable by such relatives in the proportions in which they would inherit her property and at
such periods as he may specify in his order. If any of the relatives do not have the necessary
means to pay the same, the Magistrate may order that the share of such relatives in the
maintenance ordered by him be paid by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such proportions as the Magistrate may think
fit to order. Where a divorced woman is unable to maintain herself and she has no relatives as
mentioned in sub-section (1) or such relatives or any one of them has not enough means to pay
the maintenance ordered by the Magistrate or the other relatives have not the means to pay the
shares of those relatives whose shares have been ordered by the Magistrate to be paid by such
other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct
the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such
maintenance as determined by him as the case may be. It is, however, significant to note that
Section 4 of the Act refers only to payment of maintenance and does not touch upon the
provision to be made by the husband referred to in Section 3(1)(a) of the Act.

Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128
CrPC. It lays down that if, on the date of the first hearing of the application under Section 3(2), a
divorced woman and her former husband declare, by affidavit or any other declaration in writing
in such form as may be prescribed, either jointly or separately, that they would prefer to be
governed by the provisions of Sections 125 to 128 CrPC, and file such affidavit or declaration in
the court hearing the application, the Magistrate shall dispose of such application accordingly.

A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim
woman divorcee by putting them outside the scope of Section 125 CrPC as the divorced woman
has been defined as Muslim woman who was married according to Muslim law and has been
divorced by or has obtained divorce from her husband in accordance with the Muslim law. But
the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian
Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under
Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The Act does not apply to
the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the
409
husband for the duration of the iddat period and this obligation does not extend beyond the
period of iddat. Once the relationship with the husband has come to an end with the expiry of the
iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows
Muslim personal law in determining which relatives are responsible under which circumstances.
If there are no relatives, or no relatives are able to support the divorcee, then the Court can order
the State Wakf Boards to pay the maintenance.

Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her
husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat
period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the
former husband has not paid to her a reasonable and fair provision and maintenance or mahr due
to her or has not delivered the properties given to her before or at the time of marriage by her
relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for
procedure wherein the Magistrate can pass an order directing the former husband to pay such
reasonable and fair provision and maintenance to the divorced woman as he may think fit and
proper having regard to the needs of the divorced woman, standard of life enjoyed by her during
her marriage and means of her former husband. The judicial enforceability of the Muslim
divorced womans right to provision and maintenance under Section (3)(1)(a) of the Act has been
subjected to the condition of husband having sufficient means which, strictly speaking, is
contrary to the principles of Muslim law as the liability to pay maintenance during the iddat
period is unconditional and cannot be circumscribed by the financial means of the husband. The
purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding
payment of maintenance to his erstwhile wife after divorce and the period of iddat.

A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to
a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend
that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the
word provision indicates that something is provided in advance for meeting some needs. In other
words, at the time of divorce the Muslim husband is required to contemplate the future needs and
make preparatory arrangements in advance for meeting those needs. Reasonable and fair
provision may include provision for her residence, her food, her cloths, and other articles. The
expression within should be read as during or for and this cannot be done because words cannot
be construed contrary to their meaning as the word within would mean on or before, not beyond
and, therefore, it was held that the Act would mean that on or before the expiration of the iddat
period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so
then the wife is entitled to recover it by filing an application before the Magistrate as provided in
Section 3(3) but no where the Parliament has provided that reasonable and fair provision and
maintenance is limited only for the iddat period and not beyond it. It would extend to the whole
life of the divorced wife unless she gets married for a second time.

The important section in the Act is Section 3 which provides that divorced woman is entitled to
obtain from her former husband maintenance, provision and mahr, and to recover from his
possession her wedding presents and dowry and authorizes the magistrate to order payment or
restoration of these sums or properties. The crux of the matter is that the divorced woman shall
be entitled to a reasonable and fair provision and maintenance to be made and paid to her within
the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate
that the husband has two separate and distinct obligations : (1) to make a reasonable and fair
provision for his divorced wife; and (2) to provide maintenance for her. The emphasis of this
section is not on the nature or duration of any such provision or maintenance, but on the time by
which an arrangement for payment of provision and maintenance should be concluded, namely,
410
within the iddat period. If the provisions are so read, the Act would exclude from liability for
post-iddat period maintenance to a man who has already discharged his obligations of both
reasonable and fair provision and maintenance by paying these amounts in a lump sum to his
wife, in addition to having paid his wifes mahr and restored her dowry as per Section 3(1)(c) and
3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Banos case was that
the husband has not made a reasonable and fair provision for his divorced wife even if he had
paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he
was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This
position was available to Parliament on the date it enacted the law but even so, the provisions
enacted under the Act are a reasonable and fair provision and maintenance to be made and paid
as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly,
by the use of two different verbs to be made and paid to her within the iddat period, it is clear
that a fair and reasonable provision is to be made while maintenance is to be paid; secondly,
Section 4 of the Act, which empowers the magistrate to issue an order for payment of
maintenance to the divorced woman against various of her relatives, contains no reference to
provision. Obviously, the right to have a fair and reasonable provision in her favour is a right
enforceable only against the womans former husband, and in addition to what he is obliged to
pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of mata as
maintenance though may be incorrect and that other translations employed the word provision,
this Court in Shah Banos case dismissed this aspect by holding that it is a distinction without a
difference. Indeed, whether mata was rendered maintenance or provision, there could be no
pretence that the husband in Shah Banos case had provided anything at all by way of mata to his
divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim
woman who is entitled to mata is only a single or one time transaction which does not mean
payment of maintenance continuously at all. This contention, apart from supporting the view that
the word provision in Section 3(1)(a) of the Act incorporates mata as a right of the divorced
Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also
enables a reasonable and fair provision and a reasonable and fair provision as provided under
Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means
of the husband, and the standard of life the woman enjoyed during the marriage and there is no
reason why such provision could not take the form of the regular payment of alimony to the
divorced woman, though it may look ironical that the enactment intended to reverse the decision
in Shah Banos case, actually codifies the very rationale contained therein.

A comparison of these provisions with Section 125 CrPC will make it clear that requirements
provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by
compelling those who can do so to support those who are unable to support themselves and who
have a normal and legitimate claim to support is satisfied. If that is so, the argument of the
petitioners that a different scheme being provided under the Act which is equally or more
beneficial on the interpretation placed by us from the one provided under the Code of Criminal
Procedure deprive them of their right loses its significance. The object and scope of Section 125
CrPC is to prevent vagrancy by compelling those who are under an obligation to support those
who are unable to support themselves and that object being fulfilled, we find it difficult to accept
the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be
attracted and even otherwise, the Magistrate has been conferred with the power to make
appropriate provision for maintenance and, therefore, what could be earlier granted by a
Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being
the position, the Act cannot be held to be unconstitution
411
In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC
to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to
avoid vagrancy or destitution on the part of a Muslim woman. The contention put forth on behalf
of the Muslims organisations who are interveners before us is that under the Act vagrancy or
destitution is sought to be avoided but not by punishing the erring husband, if at all, but by
providing for maintenance through others. If for any reason the interpretation placed by us on the
language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will have to examine the
effect of the provisions as they stand, that is, a Muslim woman will not be entitled to
maintenance from her husband after the period of iddat once the Talaq is pronounced and, if at
all, thereafter maintenance could only be recovered from the various persons mentioned in
Section 4 or from the Wakf Board. This Court in Olga Tellis v. Bombay Municipal Corporation,
1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978 (1) SCC 248, held that the
concept of right to life and personal liberty guaranteed under Article 21 of the Constitution
would include the right to live with dignity. Before the Act, a Muslim woman who was divorced
by her husband was granted a right to maintenance from her husband under the provisions of
Section 125 CrPC until she may re-marry and such a right, if deprived, would not be reasonable,
just and fair. Thus the provisions of the Act depriving the divoced Muslim women of such a right
to maintenance from her husband and providing for her maintenance to be paid by the former
husband only for the period of iddat and thereafter to make her run from pillar to post in search
of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does
not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such
deprivation of the divorced Muslim women of their right to maintenance from their former
husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise
available to all other women in India cannot be stated to have been effected by a reasonable,
right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter
IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been
unreasonably discriminated and got out of the protection of the provisions of the general law as
indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women
or women belonging to any other community. The provisions prima facie, therefore, appear to be
violative of Article 14 of the Constitution mandating equality and equal protection of law to all
persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution
which prohibits any discrimination on the ground of religion as the Act would obviously apply to
Muslim divorced women only and solely on the ground of their belonging to the Muslim
religion. It is well settled that on a rule of construction a given statute will become ultra vires or
unconstitutional and, therefore, void, whereas another construction which is permissible, the
statute remains effective and operative the court will prefer the latter on the ground that
Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation
should be accepted and, therefore, the interpretation placed by us results in upholding the validity
of the Act. It is well settled that when by appropriate reading of an enactment the validity of the
Act can be upheld, such interpretation is accepted by courts and not the other way.

The learned counsel appearing for the Muslim organisations contended after referring to various
passages from the text books to which we have adverted to earlier to state that the law is very
clear that a divorced Muslim woman is entitled to maintenance only upto the stage of iddat and
not thereafter. What is to be provided by way of Mata is only a benevolent provision to be made
in case of divorced Muslim woman who is unable to maintain herself and that too by way of
charity or kindness on the part of her former husband and not as a result of her right flowing to
the divorced wife.
The enactment though purports to overcome the view expressed in Shah Banos case in relation to
a divorced Muslim woman getting something by way of maintenance in the nature of Mata is
412
indeed the statutorily recognised by making provision under the Act for the purpose of the
maintenance but also for provision. When these two expressions have been used by the
enactment, which obviously means that the Legislature did not intend to obliterate the meaning
attributed to these two expressions by this Court in Shah Banos case. Therefore, we are of the
view that the contentions advanced on behalf of the parties to the contrary cannot be sustained.

In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988
(Guj.) 141; Ali vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J.
3371; K. Zunaideen v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz
Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh &
Anr., 1999 (3) Mh.L.J. 694, while interpreting the provision of Sections 3(1)(a) and 4 of the Act,
it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her
future being made by her former husband which must include maintenance for future extending
beyond the iddat period

While upholding the validity of the Act, we may sum up our conclusions:

1) a Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to
pay maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself
after iddat period can proceed as provided under Section 4 of the Act against her relatives who
are liable to maintain her in proportion to the properties which they inherit on her death
according to Muslim law from such divorced woman including her children and parents. If any
of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board
established under the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

In the result, the writ petition Nos. 868/86, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86
and 1281/86 challenging the validity of the provisions of the Act are dismissed.

All other matters where there are other questions raised, the same shall stand relegated for
consideration by appropriate Benches of this Court.

J.

Supreme Court of India

Badshah vs Sou. Urmila Badshah Godse & Anr on 18 October, 2013

Bench: Ranjana Prakash Desai, A.K. Sikri

JUDGMENT

413
A.K.SIKRI,J.

1. There is a delay of 63 days in filing the present Special Leave Petition and further delay of 11
days in refilling Special Leave Petition. For the reasons contained in the application for
condonation of delay, the delay in filing and refilling of SLP is condoned.

2. The petitioner seeks leave to appeal against the judgment and order dated 28.2.2013 passed by
the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Writ Petition
No.144/2012. By means of the impugned order, the High Court has upheld the award of
maintenance to respondent No.1 at the rate of Rs.1000/- per month and to respondent No.2
(daughter) at the rate of Rs.500/- per month in the application filed by them under Section 125 of
the Code of Criminal Procedure (Cr.P.C.) by the learned Trial Court and affirmed by the learned
Additional Sessions Judge. Respondents herein had filed proceedings under Section 125, Cr.P.C.
before Judicial Magistrate First Class (JMFC) alleging therein that respondent No.1 was the wife
of the petitioner herein and respondent No.2 was their daughter, who was born out of the
wedlock.

3. The respondents had stated in the petition that respondent No.1 was married with Popat
Fapale. However, in the year 1997 she got divorce from her first husband. After getting divorce
from her first husband in the year 1997 till the year 2005 she resided at the house of her parents.
On demand of the petitioner for her marriage through mediators, she married him on 10.2.2005
at Devgad Temple situated at Hivargav-Pavsa. Her marriage was performed with the petitioner
as per Hindu Rites and customs. After her marriage, she resided and cohabited with the
petitioner. Initially for 3 months, the petitioner cohabited and maintained her nicely. After about
three months of her marriage with petitioner, one lady Shobha came to the house of the petitioner
and claimed herself to be his wife. On inquiring from the petitioner about the said lady Shobha,
he replied that if she wanted to cohabit with him, she should reside quietly. Otherwise she was
free to go back to her parents house. When Shobha came to the house of petitioner, respondent
No.1 was already pregnant from the petitioner. Therefore, she tolerated the ill-treatment of the
petitioner and stayed alongwith Shobha. However, the petitioner started giving mental and
physical torture to her under the influence of liquor. The petitioner also used to doubt that her
womb is begotten from somebody else and it should be aborted. However, when the ill-treatment
of the petitioner became intolerable, she came back to the house of her parents. Respondent
No.2, Shivanjali, was born on 28.11.2005. On the aforesaid averments, the respondents claimed
maintenance for themselves.

4. The petitioner contested the petition by filing his written statement. He dined his relation with
respondent Nos.1 and 2 as his wife and daughter respectively. He alleged that he never entered
with any matrimonial alliance with respondent No.1 on 10.2.2005, as claimed by respondent
No.1 and in fact respondent No.1, who was in the habit of leveling false allegation, was trying to
blackmail him. He also denied co-habitation with respondent No.1 and claimed that he was not
the father of respondent No.2 either. According to the petitioner, he had married Shobha on
17.2.1979 and from that marriage he had two children viz. one daughter aged 20 years and one
son aged 17 years and Shobha had been residing with him ever since their marriage. Therefore,
respondent No.1 was not and could not be his wife during the subsistence of his first marriage
and she had filed a false petition claiming her relationship with him.

5. Evidence was led by both the parties and after hearing the arguments the learned JMFC
negatived the defence of the petitioner. In his judgment, the JMFC formulated four points and
gave his answer thereto as under:
414
|1. |Does applicant no.1 Urmila proves that she is |Yes |
| |a wife and applicant No.2 Shivanjali is | |
| |daughter of non applicant? | |
|2. |Does applicant No.1 Urmila proves that |Yes |
| |non-applicant has deserted and neglected them| |
| |to maintain them through having sufficient | |
| |means? | |
|3. |Whether applicant No.1 Urmila and Applicant |Yes |
| |No.2 Shivanjali are entitled to get | |
| |maintenance from non-applicant? | |
|4. |If yes, at what rate? |Rs. 1,000/- |
| | |p.m. to |
| | |Applicant |
| | |No. 1 and |
| | |Rs. 500/- |
| | |p.m. to |
| | |Applicant |
| | |No. 2. |

6. It is not necessary to discuss the reasons which prevailed with the learned JMFC in giving his
findings on Point Nos.1 and 2 on the basis of evidence produced before the Court. We say so
because of the reason that these findings are upheld by the learned Additional Sessions Judge in
his judgment while dismissing the revision petition of the petitioner herein as well as the High
Court. These are concurrent findings of facts with no blemish or perversity. It was not even
argued before us as the argument raised was that in any case respondent No.1 could not be
treated as “wife” of the petitioner as he was already married and therefore petition under Section
125 of the Cr.P.C. at her instance was not maintainable. Since, we are primarily concerned with
this issue, which is the bone of contention, we proceed on the basis that the marriage between the
petitioner and respondent No.1 was solemnized; respondent No.1 co-habited with the petitioner
after the said marriage; and respondent No.2 is begotten as out of the said co-habitation, whose
biological father is the petitioner. However, it would be pertinent to record that respondent No.1
had produced overwhelming evidence, which was believed by the learned JMFC that the
marriage between the parties took place on 10.2.2005 at Devgad Temple. This evidence included
photographs of marriage. Another finding of fact was arrived at, namely, respondent No.1 was a
divorcee and divorce had taken place in the year 1997 between her and her first husband, which
fact was in the clear knowledge of the petitioner, who had admitted the same even in his cross-
examination.

7. The learned JMFC proceeded on the basis that the petitioner was married to Shobha and was
having two children out of the wedlock. However, at the time of solemnizing the marriage with
respondent No.1, the petitioner intentionally suppressed this fact from her and co-habited with
respondent No.1 as his wife.

415
8. The aforesaid facts emerging on record would reveal that at the time when the petitioner
married the respondent No.1, he had living wife and the said marriage was still subsisting.
Therefore, under the provisions of Hindu Marriage Act, the petitioner could not have married
second time. At the same time, it has also come on record that the petitioner duped respondent
No.1 by not revealing the fact of his first marriage and pretending that he was single. After this
marriage both lived together and respondent No.2 was also born from this wedlock. In such
circumstances, whether respondents could filed application under Section 125 of the Cr.P.C., is
the issue. We would like to pin point that in so far as respondent No.2 is concerned, who is
proved to be the daughter of the petitioner, in no case he can shun the liability and obligation to
pay maintenance to her. The learned counsel ventured to dispute the legal obligation qua
respondent No.1 only.

9. The learned counsel for the petitioner referred to the judgment of this Court in Yamunabai
Anantrao Adhav vs. Anantrao Shivram Adhay & Anr.[1] In that case, it was held that a Hindu
lady who married after coming into force Hindu Marriage Act, with a person who had a living
lawfully wedded wife cannot be treated to be “legally wedded wife” and consequently her claim
for maintenance under Section 125, Cr.P.C. is not maintainable. He also referred to later
judgments in the case of Savitaben Somabai Bhatiya vs. State of Gujarat & Ors.[2] wherein the
aforesaid judgment was followed. On the strength of these two judgments, the learned counsel
argued that the expression “wife” in Section 125 cannot be stretched beyond the legislative
intent, which means only a legally wedded-wife. He argued that Section 5(1) (i) of the Hindu
Marriage Act, 1955 clearly prohibits 2nd marriage during the subsistence of the 1st marriage,
and so respondent No.1 cannot claim any equity; that the explanation clause

(b) to Section 125 Cr.P.C. mentions the term “divorce” as a category of claimant, thus showing
that only a legally wedded-wife can claim maintenance. He, thus, submitted that since the
petitioner had proved that he was already married to Shobha and the said marriage was
subsisting on the date of marriage with respondent No.1, this marriage was void and respondent
No.1 was not legally wedded wife and therefore had no right to move application under Section
125 of the Cr.P.C.

10. Before we deal with the aforesaid submission, we would like to refer two more judgments of
this Court. First case is known as Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.[3] In
this case it was held:

“The validity of the marriage for the purpose of summary proceeding under s.125 Cr.P.C. is to be
determined on the basis of the evidence brought on record by the parties. The standard of proof
of marriage in such proceeding is not as strict as is required in a trial of offence under section
494 of the IPC. If the claimant in proceedings under s.125 of the Code succeeds in showing that
she and the respondent have lived together as husband and wife, the court can presume that they
are legally wedded spouse, and in such a situation, the party who denies the marital status can
rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not
necessary to further probe into whether the said procedure was complete as per the Hindu Rites
in the proceedings under S.125,Cr.P.C. From the evidence which is led if the Magistrate is prima
facie satisfied with regard to the performance of marriage in proceedings under S.125, Cr.P.C.
which are of summary nature strict proof of performance of essential rites is not required.

It is further held:

416
It is to be remembered that the order passed in an application under section 125 Cr.P.C. does not
finally determine the rights and obligations of the parties and the said section is enacted with a
view to provide summary remedy for providing maintenance to a wife, children and parents. For
the purpose of getting his rights determined, the appellant has also filed Civil Suit which is
spending before the trial court. In such a situation, this Court in S.Sethurathinam Pillai vs.
Barbara alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that maintenance under section
488, Cr.P.C. 1898 (similar to Section 125, Cr.P.C.) cannot be denied where there was some
evidence on which conclusion for grant of maintenance could be reached. It was held that order
passed under Section 488 is a summary order which does not finally determine the rights and
obligations of the parties; the decision of the criminal Court that there was a valid marriage
between the parties will not operate as decisive in any civil proceeding between the parties.”

11. No doubt, it is not a case of second marriage but deals with standard of proof under Section
125, Cr.P.C. by the applicant to prove her marriage with the respondent and was not a case of
second marriage. However, at the same time, this reflects the approach which is to be adopted
while considering the cases of maintenance under Section 125,Cr.P.C. which proceedings are in
the nature of summary proceedings.

12. Second case which we would like to refer is Chanmuniya vs. Virendra Kumar Singh
Kushwaha & Anr.[4] The Court has held that the term “wife” occurring in Section 125, Cr.P.C.
is to be given very wide interpretation. This is so stated in the following manner:

“A broad and expansive interpretation should be given to the term “wife” to include even those
cases where a man and woman have been living together as husband and wife for reasonably
long period of time, and strict proof of marriage should not be a pre- condition for maintenance
under Section 125 of the Cr.P.C. so as to fulfill the true spirit and essence of the beneficial
provision of maintenance under Section 125.”

13. No doubt, in Chanmuniya (supra), the Division Bench of this Court took the view that the
matter needs to be considered with respect to Section 125,Cr.P.C., by larger bench and in para
41, three questions are formulated for determination by a larger bench which are as follows:

“1. Whether the living together of a man and woman as husband and wife for a considerable
period of time would raise the presumption of a valid marriage between them and whether such a
presumption would entitle the woman to maintenance under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section
125,Cr.P.C. having regard to the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary rites and ceremonies, without
strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other
personal law would entitle the woman to maintenance under Section 125,Cr.P.C.?”

14. On this basis, it was pleaded before us that this matter be also tagged along with the aforesaid
case. However, in the facts of the present case, we do not deem it proper to do so as we find that
the view taken by the courts below is perfectly justified. We are dealing with a situation where
the marriage between the parties has been proved. However, the petitioner was already married.

417
But he duped the respondent by suppressing the factum of alleged first marriage. On these facts,
in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent,
taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter.

15. Firstly, in Chanmuniya case, the parties had been living together for a long time and on that
basis question arose as to whether there would be a presumption of marriage between the two
because of the said reason, thus, giving rise to claim of maintenance under Section 125,Cr.P.C.
by interpreting the term “wife” widely. The Court has impressed that if man and woman have
been living together for a long time even without a valid marriage, as in that case, term of valid
marriage entitling such a woman to maintenance should be drawn and a woman in such a case
should be entitled to maintain application under Section 125,Cr.P.C. On the other hand, in the
present case, respondent No.1 has been able to prove, by cogent and strong evidence, that the
petitioner and respondent No.1 had been married each other.

16. Secondly, as already discussed above, when the marriage between respondent No.1 and
petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first
marriage. A false representation was given to respondent No.1 that he was single and was
competent to enter into martial tie with respondent No.1. In such circumstances, can the
petitioner be allowed to take advantage of his own wrong and turn around to say that respondents
are not entitled to maintenance by filing the petition under Section 125,Cr.P.C. as respondent
No.1 is not “legally wedded wife” of the petitioner? Our answer is in the negative. We are of the
view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the
wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For
this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases
would apply only in those circumstances where a woman married a man with full knowledge of
the first subsisting marriage. In such cases, she should know that second marriage with such a
person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she
has to suffer the consequences thereof. The said judgment would not apply to those cases where
a man marriages second time by keeping that lady in dark about the first surviving marriage.
That is the only way two sets of judgments can be reconciled and harmonized.

17. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section
125,Cr.P.C. While dealing with the application of destitute wife or hapless children or parents
under this provision, the Court is dealing with the marginalized sections of the society. The
purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the
Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that
we have chosen the democratic path under rule of law to achieve the goal of securing for all its
citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social
justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social
justice. While giving interpretation to a particular provision, the Court is supposed to bridge the
gap between the law and society.

18. Of late, in this very direction, it is emphasized that the Courts have to adopt different
approaches in “social justice adjudication”, which is also known as “social context adjudication”
as mere “adversarial approach” may not be very appropriate. There are number of social justice
legislations giving special protection and benefits to vulnerable groups in the society. Prof.
Madhava Menon describes it eloquently:

“It is, therefore, respectfully submitted that “social context judging” is essentially the application
of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations
418
presented before courts where unequal parties are pitted in adversarial proceedings and where
courts are called upon to dispense equal justice. Apart from the social- economic inequalities
accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates
to the disadvantage of the weaker party. In such a situation, the judge has to be not only sensitive
to the inequalities of parties involved but also positively inclined to the weaker party if the
imbalance were not to result in miscarriage of justice. This result is achieved by what we call
social context judging or social justice adjudication.”[5]

19. Provision of maintenance would definitely fall in this category which aims at empowering
the destitute and achieving social justice or equality and dignity of the individual. While dealing
with cases under this provision, drift in the approach from “adversarial” litigation to social
context adjudication is the need of the hour.

20. The law regulates relationships between people. It prescribes patterns of behavior. It reflects
the values of society. The role of the Court is to understand the purpose of law in society and to
help the law achieve its purpose. But the law of a society is a living organism. It is based on a
given factual and social reality that is constantly changing. Sometimes change in law precedes
societal change and is even intended to stimulate it. In most cases, however, a change in law is
the result of a change in social reality. Indeed, when social reality changes, the law must change
too. Just as change in social reality is the law of life, responsiveness to change in social reality is
the life of the law. It can be said that the history of law is the history of adapting the law to
society’s changing needs. In both Constitutional and statutory interpretation, the Court is
supposed to exercise direction in determining the proper relationship between the subjective and
objective purpose of the law.

21. Cardozo acknowledges in his classic[6] “….no system of jus scriptum has been able to
escape the need of it”, and he elaborates: “It is true that Codes and Statutes do not render the
Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There
are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it
were nothing but the search and the discovery of a meaning which, however, obscure and latent,
had none the less a real and ascertainable pre- existence in the legislator’s mind. The process is,
indeed, that at times, but it is often something more. The ascertainment of intention may be the
least of a judge’s troubles in ascribing meaning to a stature.” Says Gray in his lecture[7] “The
fact is that the difficulties of so-called interpretation arise when the legislature has had no
meaning at all; when the question which is raised on the statute never occurred to it; when what
the judges have to do is, not to determine that the legislature did mean on a point which was
present to its mind, but to guess what is would have intended on a point not present to its mind, if
the point had been present.”

22. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and
harmonize results with justice through a method of free decision—“libre recherché sceintifique”
i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption
that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its
Constitutional duty in good faith, had always intended to give relief to the woman becoming
“wife” under such circumstances.

23. This approach is particularly needed while deciding the issues relating to gender justice. We
already have examples of exemplary efforts in this regard. Journey from Shah Bano[8] to
Shabana Bano[9] guaranteeing maintenance rights to Muslim women is a classical example.
419
24. In Rameshchandra Daga v. Rameshwari Daga[10], the right of another woman in a similar
situation was upheld. Here the Court had accepted that Hindu marriages have continued to be
bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented
that though such marriages are illegal as per the provisions of the Act, they are not ‘immoral’ and
hence a financially dependent woman cannot be denied maintenance on this ground.

25. Thus, while interpreting a statute the court may not only take into consideration the purpose
for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief
rule, first propounded in Heydon’s Case[11] which became the historical source of purposive
interpretation. The court would also invoke the legal maxim construction ut res magis valeat
guam pereat, in such cases i.e. where alternative constructions are possible the Court must give
effect to that which will be responsible for the smooth working of the system for which the
statute has been enacted rather than one which will put a road block in its way. If the choice is
between two interpretations, the narrower of which would fail to achieve the manifest purpose of
the legislation should be avoided. We should avoid a construction which would reduce the
legislation to futility and should accept the bolder construction based on the view that Parliament
would legislate only for the purpose of bringing about an effective result. If this interpretation is
not accepted, it would amount to giving a premium to the husband for defrauding the wife.
Therefore, at least for the purpose of claiming maintenance under Section 125, Cr.P.C., such a
woman is to be treated as the legally wedded wife.

26. The principles of Hindu Personal Law have developed in an evolutionary way out of concern
for all those subject to it so as to make fair provision against destitution. The manifest purpose is
to achieve the social objectives for making bare minimum provision to sustain the members of
relatively smaller social groups. Its foundation spring is humanistic. In its operation field all
though, it lays down the permissible categories under its benefaction, which are so entitled either
because of the tenets supported by clear public policy or because of the need to subserve the
social and individual morality measured for maintenance.

27. In taking the aforesaid view, we are also encouraged by the following observations of this
Court in Capt.Ramesh Chander Kaushal vs. Veena Kaushal [12]:

“The brooding presence of the Constitutional empathy for the weaker sections like women and
children must inform interpretation if it has to have social relevance. So viewed, it is possible to
be selective in picking out that interpretation out of two alternatives which advances the cause –
the cause of the derelicts.”

28. For the aforesaid reasons, we are not inclined to grant leave and dismiss this petition.

..………………………J.

[Ranjana Prakash Desai] …………….………….J.

[A.K.Sikri] New Delhi, October 18, 2013

Supreme Court of India

Chand Patel vs Bismillah Begum & Anr on 14 March, 2008

420
Bench: Altamas Kabir, J.M.Panchal

DATE OF JUDGMENT: 14/03/2008

BENCH:
Altamas Kabir & J.M.Panchal

JUDGMENT:

J U D G M E N T CRIMINAL APPEAL NO. 488 OF 2008 (@ Special Leave Petition(Crl.)

No.3989 of 2006) ALTAMAS KABIR,J.

1. Leave granted.

2. The application for condonation of delay in filing the Special Leave Petition is allowed and
the delay in filing the same is condoned.

3. This appeal raises an interesting question of law as to whether a marriage performed by a

person professing the Muslim faith with his wife's sister, while his earlier marriage with the other
sister was still subsisting, would be void in law or merely irregular or voidable even though the
subsequent marriage may have been consummated.

4. The facts which give rise to the aforesaid question, in brief, are set out hereunder.

5. The respondent No.1 herein, Bismillah Begum, filed an application for her maintenance and
for the maintenance of her minor daughter, Taheman Bano, under Section 125 of the Code of
Criminal Procedure, against one Chand Patel, in the Court of the Judicial Magistrate, First Class,
Chincholi, being Criminal Misc. No.6 of 2001. In her petition she claimed that she was the
legally wedded wife of the appellant herein and that her marriage with the appellant had taken
place about eight years prior to the filing of the said petition. Her further case was that the
marriage was consummated and two years after the marriage a daughter was born from the
wedlock and she has been made petitioner No.2 in the application for maintenance. The
petitioner No.2 Taheman Bano being a minor, is under the care and guardianship of her mother,
the petitioner No.1, in the said application.

6. In her petition the respondent No.1 herein categorically admitted that the appellant herein was
married to her elder sister, Mashaq Bee, and that the appellant, with the consent of his first wife
married the respondent No.1 and a Nikahnama was also executed but the same had been
misplaced. It was also admitted that the appellant herein lived with his first wife Mashaq Bee and
the respondent No.1 under one roof and the appellant had even accepted the petitioner No.2 as
his daughter and had brought her up.

7. That with the passage of time the relationship between the appellant and the respondent No.1
began to deteriorate and he started neglecting the respondents who have no means to support
themselves. The respondent No.1 prayed for maintenance for herself and for her minor daughter
@ Rs.1,000/- per month for each of them from the date of filing of the petition.

421
8. The case made out on behalf of the respondent No.1 was denied on behalf of the appellant
herein. He categorically denied that he had married the respondent No.1. The defence put up by
the appellant was not accepted by the learned Trial Court, which prima facie came to a finding
that the respondent No.1 was, in fact, the wife of the appellant and that the petitioner No.2 is his
daughter. The Trial Court also came to the finding that the appellant had neglected the
respondents and had failed to maintain them, which he was in law required to do, and
accordingly, directed the appellant to pay Rs.1,000 per month to the respondent No.1 towards her
life support maintenance and to the respondent No.2 till she reached adulthood.

9. The aforesaid decision was challenged by the appellant herein in the revision filed by him,
being Criminal Revision No.76 of 2003, in the Court of the District and Sessions Judge at
Gulbarga. The respondent No.1 herein, both on her own behalf and on behalf of her minor
daughter, also filed Criminal Revision No.96 of 2003 before the same learned Judge and both the
revision petitions were taken up together for disposal and wee disposed of by a common order.
After considering several decisions of different High Courts and this Court the learned Fourth
Additional District Judge, Gulbarga, dismissed both the revision petitions and confirmed the
order passed by the Judicial Magistrate, First Class, Chincholi, in Criminal Misc. No.6 of 2001.
While arriving at the aforesaid decision, the learned revisional Court held that the personal law
of the parties could not come in the way of a Muslim to pray for and obtain maintenance under
Section 125 of the Code of Criminal Procedure since an obligation is cast upon the appellant
herein to maintain his wife and children till the marriage between them was declared null and
void by a competent court. While referring to various decisions of different High Courts, the
revisional Court relied to a large extent on a decision of this Court in the case of Nanak Chand
Vs. Chandra Kishore Aggarwal and others (AIR 1970 SC 446) in which it was, inter alia, held
that Section 488 of the old Code which corresponds to Section 125 of the new Code is applicable
to all persons belonging to all religions and has no relationship to the personal law of the parties.
The learned Judge also referred to the decision of this Court in the case of Re- Hussain Saheb
(1985 Criminal Law Journal 1505 (A.P.) (W.P. No.858 of 1985) wherein it was held that the
provisions of maintenance of a divorced wife under Section 125 of the Code of Criminal
Procedure could not be struck down on the ground of inconsistency between the said provisions
and the personal laws of the parties. On the basis of the above, the learned Additional Sessions
Judge held as follows:

"Thus in the above said dictum the personal law of the Muslim no way coming in the way of
Muslim to maintenance of the respondent.

Moreover the Magistrate cannot go into validity of the marriage while dealing u/Section 125 of
Cr.P.C. The petitioner must maintain the wife and children till the marriage between them
declares null and void by the competent court. Therefore, by relying upon the rulings of the
Hon'ble Supreme Court the marriage between the petitioner and respondent No.1 is presumed to
be legal and validity of the marriage cannot be decided under proceedings u/sec. 125 of Cr.P.C.
or Section 391 of Cr.P.C.

Therefore, I do not find any illegality or irregularity committed by the Magistrate while granting
maintenance to the respondents. Hence I answer Point no.1 and 2 in the negative."

10. Subsequently, the appellant herein filed an application under Section 482 of the Criminal
Procedure Code for setting aside the order dated 28.6.2003 passed by the Judicial Magistrate 1st
Class in Criminal Misc. No.6 of 2001. From the order disposing of the said petition it is apparent
that the High Court had occasion to look into the orders passed both by the Trial Court as well as
422
the revisional Court and after considering the same was of the view that there was no merit in the
petition and dismissed the appellant's application under Section 482 of the said Code.

11. Much the same arguments as had been advanced before the Courts below have been
advanced on behalf of the respective parties in these proceedings.

12. On behalf of the appellant it has been urged that the Muslim law specifically prohibits
'unlawful conjunction' which has been interpreted to mean that a man could not marry his wife's
sister in his wife's life time. It was urged that in the instant case the appellant had from the very
initial stage denied having married the respondent No.1 herein, who is his wife's younger sister
and that he did not have any sexual relations with her, thereby disputing the paternity of the
respondent No.2 through him. It was also submitted that since such unlawful conjunction is
prohibited, even if the marriage had been performed the same was void in law and did not confer
any rights either on the respondent No.1 or on respondent No.2 since from the very inception the
marriage was void and invalid.

13. In support of his aforesaid contention Mr.Raja Venkatappa Naik, learned counsel for the
appellant, firstly referred to the decision of this Court in Rameshchandra Rampratapji Daga Vs.
Rameshwari Rameshchandra Daga,(2005) 2 SCC 33, in which this Court had occasion to
consider, inter alia, the provisions of Sections 11 and 12 as also Section 5(i) of the Hindu
Marriage Act, 1955. The facts of the said case are to some extent similar to the facts of this case,
although, the same involved the provisions of the Hindu Marriage Act, 1955. In the said case the
wife was first married to someone but according to her the customary rituals of the marriage had
not been completed, inasmuch as, during the marriage ceremony the family members quarrelled
over dowry. She, thereafter, filed a petition for divorce but did not prosecute the same and no
decree of divorce was passed in the said proceedings. However, in accordance with the prevalent
customs in the Maheshwari community, a chhor chithhi or a document of dissolution of marriage
was executed between the wife and the said person and it was also registered. The said
documents were shown and also given to the person with whom the second marriage was
performed and a daughter was also born from the second marriage. According to the wife, her
second husband began to ill treat her, and, ultimately, she had to file proceedings in the Family
Court for grant of a decree of judicial separation and maintenance of Rupees Three thousand per
month both for herself and for her minor daughter. The second husband filed a counter petition
seeking a declaration that his marriage with his present wife was a nullity on the ground that on
the date of the second marriage her earlier marriage with her previous husband had not been
dissolved by any Court in accordance with the provisions of the Hindu Marriage Act, 1955. The
Family Court allowed the petition of the wife and granted a decree of judicial separation as also
the maintenance claimed by her and dismissed the counter petition filed by the husband. The
High Court, however, reversed the finding of the Family Court and held that since the first
marriage of the present wife with the previous husband had not been dissolved by the Court, the
second marriage was in contravention of Section 5(i) of the aforesaid Act and was, therefore, a
nullity under Section 11 of the Act. The High Court granted a decree of separation holding that
the marriage was a nullity, though it maintained the decree granted in respect of maintenance to
the respondent No.1 and her daughter.

14. Dismissing the two appeals preferred both by husband and the wife, the Supreme Court held
that in the facts of the case the Courts below were fully justified in granting maintenance both to
the wife and the daughter since the evidence of the wife had been rightly believed by the Courts
below. The High Court accepted the validity of the document of dissolution of marriage executed

423
between the parties and also took into consideration the fact that they had lived as husband and
wife for about 9 years. On such consideration, both the appeals came to be dismissed.

15. Mr. Naik also relied on another decision of this Court in the case of Savitaben Somabhai
Bhatiya vs. State of Gujarat and others, (2005) 3 SCC 636, in which it was observed that the
legislature had considered it necessary to include within the scope of Section 125 of the Code an
illegitimate child, but it had not done so in respect of a woman not lawfully married. It was
observed that however desirable it may be, to take note of the plight of the unfortunate woman,
the legislative intent being clearly reflected in Section 125 of the Code, there was no scope for
enlarging its scope by introducing any artificial definition to include a woman not lawfully
married in the expression "wife".

16. On the basis of the aforesaid two decisions, learned counsel for the appellant submitted that
having regard to the letter and spirit of Section 125 of the Code, the Courts below had erred in
granting maintenance to the respondent No.1 when her marriage itself was void from its very
inception.

17. Mrs. K. Sarada Devi, learned counsel for the respondents, however, questioned the decision
of the High Court on the ground that in a proceeding under Section 125 of the Code, the Court
was not required to adjudicate upon the validity of a marriage and on a prima facie view it could
pass an order for maintenance of both the wife and her daughter. She however, also contended
that the marriage between the parties had been solemnised inspite of the existing facts which
were known to both the parties. She urged that it was the appellant who, despite having married
her elder sister, not only chose to marry the respondent No.1 as well, but was now taking
recourse to technicality to avoid payment of maintenance which he was required to pay under the
provisions of Section 125 of the Code.

18. She urged that till such time as the marriage between the appellant and the respondent No.1
was not declared to be void by a competent Court of law, it continued to subsist and all rights
flowing from a valid marriage continued to be available to the respondent No.1 and her minor
daughter till such time a competent Court of law directed such marriage to be invalid and void.

19. The answer to the question, which we are called upon to answer in this case, will depend on
the legal status of the union effected by the appellant with the respondent No.1. Though the
factum of marriage between them was denied by the appellant, the courts below negated the
appellant's case and proceeded on the basis that a marriage had been performed between them. If
the marriage which was said to have been performed between the appellant and the respondent
No.1 is held to be void then, in such event, the respondent No.1 will not be entitled to
maintenance from the appellant under Section 125 Crl.P.C. If, on the other hand, the marriage is
held to be irregular, then in such event, the marriage will subsist for all purposes, unless declared
to be void by a competent court. Till such a declaration is made, along with the respondent No.2,
the respondent No.1 will also be entitled to maintenance under Section 125 Cr.P.C. Although,
the law applicable in this case is under the personal law of Muslims, it has many similarities with
the provisions of Sections 11 and 12 of the Hindu Marriage Act, 1955. Section 11 of the 1955
Act, defines "Void Marriages" and provides that any marriage solemnized after the
commencement of the Act shall be null and void and on a petition presented by either party
thereto, be so declared by a decree of nullity if it contravened any one of the conditions specified
in clauses (i), (iv) and (v) of Section 5 of the Act. In Yamunabai Anantrao Adhav vs. Anantrao
Shivram Adhav (AIR 1988 SC 644), this Court had held that marriages covered by Section 11
are void ipso-jure, that is void from the very inception and have to be ignored as not existing in
424
law at all. A marriage in contravention of Section 11 must be treated as null and void from its
very inception.

20. Section 12 of the 1955 Act defines "voidable marriages" and provides that any marriage
solemnized before or after the commencement of the Act shall be voidable and may be annulled
by a decree of nullity on any of the grounds enumerated in the Section. In the case of a marriage
covered by Section 12 of the 1955 Act, the marriage is not void ipso- jure from its inception, but
a decree would have to be obtained from the competent court declaring the marriage to be void
and so long as such declaration is not made, the marriage will continue to subsist.

21. Under the Muslim law also a distinction has been drawn between void marriages and
irregular marriages. The same has been dealt with in Mulla's "Principles of Mahomedan Law" in
paragraphs 260 to 264. Paragraphs 260, 261 and 262 deal with complete prohibition of marriage
between a man and the persons included therein and any marriage in violation of such provision
would be void from its very inception (batil). Paragraph 263 which is relevant for our purpose
reads as follows:-

"263. Unlawful conjunction A man may not have at the same time two wives who are so related
to each other by consanguinity, affinity and fosterage, that if either of them had been a male, they
could not have lawfully intermarried, as for instance, two sisters, or aunt and niece. The bar of
unlawful conjunction renders a marriage irregular, not void."

22. The above provision fell for the consideration of different High Courts and the earliest
decision is that of the Calcutta High Court in the case of Aizunnissa vs. Karimunissa (ILR 1895
23 Calcutta page 130) which was decided on 23rd July, 1895. After discussing the various
authorities on the subject the Calcutta High Court took the view that a marriage with a wife's
sister while the earlier marriage was still subsisting was void and the children of such marriage
were illegitimate and were not entitled to inherit. It was held that the sister of a person's wife was
prohibited from the very inception and a marriage contracted with her would from the very
inception be void (batil).

23. The said decision subsequently came to be considered by the Bombay High Court in the case
of Tajbi Abalal Desai vs. Mowla Alikhan Desai (39 Indian Cases 1917 page 603) and was
decided on 6th February, 1917. The Bombay High Court differed with the decision rendered in
Aizunnissa's case (supra) and placing reliance on the views expressed in Fatawa-i-Alamgiri held
that a marriage with the sister of an existing wife was not void (batil) but irregular (fasid). The
reasoning adopted was that marriage with a permanently prohibited woman had always been
considered by the exponents of Muslim law to be void and has no legal consequence, but
marriage with a temporarily prohibited woman if consummated may have legal consequences.
The logic behind the aforesaid reasoning was that a marriage with the sister of an existing wife
could always become lawful by the death of the first wife or by the husband divorcing his earlier
wife and thereby making the marriage with the second sister lawful to himself. The Bombay
High Court after considering various authorities, and in particular Fatawa-i-Alamgiri, ultimately
observed as follows:-

"Taking the whole current of authority and the general trend of informed thought on this subject,
it points clearly to some such distinctions having always been recognized by the Muhammadan
Law. Where that is so and a particular case on the borderland of such distinctions, to which it
may be doubtful whether they can be applied in the ordinary way, arises, surely the Courts would
be well advised to accept the authoritative statement of the law as it was then understood by the
425
authors of the Fatawa-i-Alamgiri. It is impossible to say that that statement conflicts with the
textual authority of the Kuran. Speaking generally, it appears to us to harmonize with the course
the law took during the intervening period, and to be in consonance with the soundest practical
principles. It has the support of such a great modern text-book writer as Baillie. The eighth
chapter of his first book appears to us to reach conclusions by unanswerable reasoning, and while
those conclusions may be his own, they are the conclusions of a writer of profound knowledge
intimately versed at first hand with all the best writings of Muhammadan lawyers. The modern
Muhammadan tex-book writers, Ameer Ali, Tyabji and Abdur Rahim, are in substantial
agreement. All authority appears to us to point one way. Against this is nothing but the judgment
of the Calcutta High Court in Aizunnissa's case and after having given it and the materials upon
which it avowedly rests our most careful and respectful attention, we find ourselves wholly
unconvinced by its reasoning and unable to agree with the law it lays down."

24. The aforesaid question also fell for the consideration of the Oudh Chief Court in the case of
Mussammat Kaniza vs. Hasan Ahmad Khan (92 Indian Cases 1926 page 82) decided on 24th
November, 1925 and by the Lahore High Court in Taliamand vs. Muhammad Din (129 Indian
Cases 1931 page 12) decided on 16th July, 1930, and also by the Madras High Court in Rahiman
Bibi Saheba vs. Mahboob Bibi Saheba (ILR 1938 page

278) which was decided on 1st September, 1937. All the said courts favoured the view taken by
the Bombay High Court in Tajbi's case (supra) and were of the view that the decision of the
Calcutta High Court in Aizunnissa Khatun's case (supra) was incorrect.

25. Paragraph 264 which deals with the distinction between void and irregular marriages reads as
follows:-

"264. Distinction between void and irregular marriages (1) A marriage which is not valid may
be either void or irregular.

(2) A void marriage is one which is unlawful in itself the prohibition against the marriage being
perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguity,
affinity, or fosterage is void, the prohibition against marriage with such a woman being perpetual
and absolute.

(3) An irregular marriage is one which is not unlawful in itself, but unlawful "for something
else," as where the prohibition is temporary or relative, or when the irregularity arises from an
accidental circumstance, such as the absence of witnesses. Thus the following marriages are
irregular, namely

(a) a marriage contracted without witness;

(b) a marriage with a fifth wife by a person having four wives;

(c) a marriage with a woman undergoing iddat;

(d) a marriage prohibited by reason of difference of religion;

(e) a marriage with a woman so related to the wife that if one of them had been a male, they
could not have lawfully intermarried.

426
The reason why the aforesaid marriages are irregular, and not void, is that in cl.(a) the
irregularity arises from a accidental circumstance; in cl. (b) the objection may be removed by the
man divorcing one of his four wives; in cl.(c) the impediment ceases on the expiration of the
period iddat; in cl.(d) the objection may be removed by the wife becoming a convert to the
Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in cl(e)
the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus if
a man who has already married one sister marries another, he may divorce the first, and make the
second lawful to himself."

26. Paragrph 266 deals with the effects of a void (batil) marriage and provides that a void
marriage is no marriage at all. It does not create any civil rights or obligations between the
parties. The offspring of a void marriage are illegitimate. Paragraph 267 which deals with the
effects of irregular (fasid) marriages reads as follows:-

"267. Effect of an irregular (fasid) marriage (1) An irregular marriage may be terminated by
either party, either before or after consummation, by words showing an intention to separate, as
where either party says to the other "I have relinquished you". An irregular marriage has no legal
effect before consummation.

(2) If consummation has taken place

(i) the wife is entitled to dower, proper or specified, whichever is less;

(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and death is
three courses;

(iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does
not create mutual rights of inheritance between husband and wife (Baillie, 694, 701)."

27. On consideration of the decisions of the various High Courts referred to hereinabove and the
provisions relating to void marriages and marriages which are merely irregular, we are also of
the view that the decision rendered by the Bombay High Court in the case of Tajbi's case (supra)
is correct. Since a marriage, which is temporarily prohibited may be rendered lawful once the
prohibition is removed, such a marriage is in our view irregular (fasid) and not void (batil).

28. The answer to the question raised at the very outset, therefore, is that the bar of unlawful
conjunction (jama bain-al-mahramain) renders a marriage irregular and not void. Consequently,
under the Hanafi law as far as Muslims in India are concerned, an irregular marriage continues to
subsist till terminated in accordance with law and the wife and the children of such marriage
would be entitled to maintenance under the provisions of Section 125 of the Code of Criminal
Procedure.

29. The decisions cited during the hearing of this case do not really come to the aid of the parties,
except to the extent that a marriage which is merely irregular or voidable continues to subsist till
it is set aside or declared to be void in accordance with law.

30. In view of what has been stated hereinabove, we hold that the unlawful conjunction and/or
marriage between the appellant and respondent No.1 continues to subsist not having been
declared void by any competent forum and that accordingly, the respondent No.1 and the
respondent No.2 will both be entitled to maintenance under Section 125 of the Code of Criminal
427
 Procedure. There is, therefore, no reason to interfere with the order passed on 20.6.2005 by the
Karnataka High Court in Criminal Petition No. 3002 of 2004 or that of the Judicial Magistrate,
First Class, Chincholi, on 28.6.2003 in Criminal Misc. No. 6 of 2001. The appeal is accordingly
dismissed and the interim stay granted on 14.8.2006 is vacated.

31. The appellant shall pay to the respondents all the arrears of maintenance, within a period of
six months from the date of this Judgment and will also go on paying the current maintenance
with effect from the month of March, 2008. In addition, the appellant will also pay to the
respondent No.1 a sum of Rs.10,000/- towards the cost of litigation.

Rabindra Nath Sahu v. Susila Sahu, 2016 SCC OnLine Ori 592

Judgment

 Orissa High Court: While dealing with the question relating to jurisdiction under Section 27 of
the Protection of Women from Domestic Violence Act, 2005, the Bench comprising of S.K.
Sahoo, J., held that even if an aggrieved person is residing at a place for a temporary period of
time, she has the right to file an application and seek relief under Section 12 of the said Act,
before the competent court within the local limits of whose jurisdiction such place situates.
The widowed mother, respondent herein, was compelled to leave the house in the twilight of her
life by her son and daughter-in-law, the petitioners herein. After being subjected to physical and
mental cruelty, the mother was constrained to take shelter in the house of her elder daughter at
Phulbani. She filed an application under Section 12 of the 2005 Act in the Court of S.D.J.M.,
Phulbani against the petitioners seeking reliefs under the Act. The present application sought
transfer of the case to Berhampur on the ground that the Court at Phulbani had no jurisdiction to
entertain the same.
The Court held that in view of Section 27, if the ‘aggrieved person’ either permanently or
temporarily resides at a place, the Court of Judicial Magistrate of the First Class within the local
limits of whose jurisdiction such place situates is competent to entertain an application under
Section 12 and to grant protection order and other orders under the Act or try the offences under
the Act. Dismissing the application, the Court observed that ‘residence’ as defined under Section
27 includes both temporary and permanent residence of the aggrieved person. The Court further
stated the meaning of the word ‘temporary’ as lasting, existing, serving for a time only which is
not permanent. Thus a temporary residence is a temporary dwelling place where the aggrieved
person resides, irrespective of residing there permanently or for considerable length, but for the
time being. The Court stated that temporary residence does not include a place where the
aggrieved person may stay or reside for the purpose of filing a case against another or a place
where the aggrieved person has gone on a casual visit, a lodge or hostel or a guest house or an
inn where she stays for a short period rather a place where the aggrieved person was force to
reside for the time being in view of the commission of domestic violence.

428
UNIT - VI

Supreme Court of India

PETITIONER:
MS. GITHA HARIHARAN & ANR.

Vs.

RESPONDENT:
RESERVE BANK OF INDIA & ANR.

DATE OF JUDGMENT: 17/02/1999

BENCH:
Umesh C. Banerjee

JUDGMENT:

BANERJEE,J.

Though nobility and self-denial coupled with tolerance mark the greatest features of Indian
womanhood in the past and the cry for equality and equal status being at a very low ebb, but with
the passage of time and change of social structure the same is however no longer dormant but
presently quite loud. This cry is not restrictive to any particular country but world over with
variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and
proclaimed by the General Assembly in its resolution No.217A(III)] provided that everybody is
entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or
religion and the ratification of the convention for elimination of all forms of discrimination
against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent
acceptance and ratification by India in June 1993 also amply demonstrate the same.

2. We the people of this country gave ourselves a written Constitution, the basic structure of
which permeates equality of status and thus negates gender bias and it is on this score, the
validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in
the matters under consideration, on the ground that dignity of women is a right inherent under
the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956.

3. In order, however, to appreciate the contentions raised, it would be convenient to advert to the
factual aspect of the matters at this juncture. The facts in WP c No.489 of 1995 can be stated as
below:-

429
 4. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son
named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve
Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab alongwith an
intimation that the petitioner No.1 being the mother, would act as the natural guardian for the
purposes of investments. The application however was sent back to the petitioner by the RBI
Authority advising her to produce the application signed by the father and in the alternative the
Bank informed that a certificate of guardianship from a Competent Authority in her favour,
ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested
and it is this communication from the RBI authorities, which is stated to be arbitrary and
opposed to the basic concept of justice in this petition under Article 32 of the Constitution
challenging the validity of section 6 of the Act as indicated above.

5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of the
minor son born through the lawful wedlock between the petitioner and the first respondent. Be it
noted that a divorce proceeding is pending in the District Court of Delhi and the first respondent
has prayed for custody of their minor son in the same proceeding. The petitioner in turn,
however, also has filed an application for maintenance for herself and the minor son. On further
factual score it appears that the first respondent has been repeatedly writing to the petitioner,
asserting that he was the only natural guardian of the minor and no decision should be taken
without his permission. Incidentally, the minor has been staying with the mother and it has been
the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of
the petitioner, the father has shown total apathy towards the child and as a matter of fact is not
interested in welfare and benefit of the child excepting however claiming the right to be the
natural guardian without however discharging any corresponding obligation. It is on these facts
that the petitioner moved this Court under Article 32 of the Constitution praying for de claration
of the provisions of Section 6(a) of the Act read with Section 19(b) of the Guardian Co
nstitution. and Wards Act as violative of Articles 14 and 15 of the

6.Since, challenge to the constitutionality of Section 6 of the Act is involved in both the matters,
the petitions were heard together.

7. Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the
provisions of section 6 of the Act seriously disadvantage woman and discriminate man against
woman in the matter of guardianship rights, responsibilities and authority in relation to their own
children.

8. It has been contended that on a true and proper interpretation of section 4 and the various
provisions thereunder and having due regard to the legislative intent, which is otherwise explicit,
question of putting an embargo for the mother in the matter of exercise of right over the minor as
the guardian or ascribing the father as the preferred guardian does not arise, but unfortunately
however, the language in section 6 of the Act runs counter to such an equality of rights of the
parents to act as guardian to the minor child.

9. For convenience sake however section 6 of the Act of 1956 is set out herein below: "6. Natural
guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property (excluding his or her undivided interest in
joint family property), are-

430
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother : provided that
the custody of a minor who has not completed the age of five years shall ordinarily be with the
mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her,
the father;

(c) in the case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-

(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation-In this section, the expressions `father' and `mother' do not include a step-father and
a step-mother."

10. Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the
statute book by way of an amendment and codification of certain parts of the law relating to
minority and guardianship among Hindus. It is not out of place to mention also that Hindu law
being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it
has its values and importance even today. But the law makers however thought it prudent to
codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the
prevailing concept of law having due regard to the social and economic changes in the society. It
is on this perspective however certain aspects of the law as it stood prior to the codification
ought to be noted.

11. As regards the concept of guardianship both the parents under the Hindu law were treated as
natural guardians, of the persons and the separate property of their minor children, male or
female except however that the husband is the natural guardian of his wife howsoever young she
might be and the adopted father being the natural guardian of the adopted son. The law however
provided that upon the death of the father and in the event of there being no testamentary
guardian appointed by the father, the mother succeeds to the natural guardianship of the person
and separate property of their minor children. Conceptually, this guardianship however is in the
nature of a sacred trust and the guardian cannot therefore, during his lifetime substitute another
person to be the guardian in his place though however entrustment of the custody of the child for
education or purposes allying may be effected temporarily with a power to revoke at the option
of the guardian.

12. The codification of this law pertaining to guardianship however brought about certain
changes in regard thereto, of which we will presently refer, but it is interesting to note that prior
to the enactment, the law recognised both de facto and de jure guardian of a minor: A guardian-
de- facto implying thereby one who has taken upon himself the guardianship of a minor-whereas
the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the
property or both as the case may be. This concept of legal guardian includes a natural guardian: a
testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law
under the general law of British India.

431
 13. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found
not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as
recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit,
Guardian and Wards Act of 1890 and Indian Majority Act of 1875. Be it further noted that the
Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the
subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself
which provides that the Act shall be in addition to and not in derogation of the Acts as noticed
above.

14. Before proceeding further, however, on the provisions of the Act in its true perspective, it is
convenient to note that lately the Indian Courts following the rule of equality as administered in
England have refused to give effect to inflexible application of paternal right of minor children.
In equity, a discretionary power has been exercised to control the father's or guardian's legal
rights of custody, where exercise of such right cannot but be termed to be capricious or
whimsical in nature or would materially interfere with the happiness and the welfare of the child.
In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed: "The dominant matter for the
consideration of the Court is the welfare of the child. But the welfare of a child is not to be
measured by money only, nor by physical comfort only. The word `welfare' must be taken in its
widest sense. The moral and religious welfare of the child must be considered as well as its
physical well being. Nor can the ties of affection be disregarded." Lord Esher, M.R. in the
Gyngall (1893) 2 Q.B.232 stated: "The Court has to consider therefore, the whole of the
circumstances of the case, the position of the parent, the position of the child, the age of the
child, the religion of the child so far as it can be said to have any religion , and the happiness of
the child. Prima facie it would not be for the welfare of the child to be taken away from its
natural parent and given over to other people who have not that natural relation to it. Every wise
man would say that, generally speaking, the best place for a child is with its parent. If a child is
brought up, as one may say from its mother's lap in one form of religion, it would not, I should
say be for its happiness and welfare that a stranger should take it away in order to alter its
religious views. Again, it cannot be merely because the parent is poor and the person who seeks
to have the possession of the child as against the parent is rich, that, without regard to any other
consideration, to the natural rights and feelings of the parent, or the feelings and views that have
been introduced into the heart and mind of the child, the child ought not to be taken away from
its parent merely because its pecuniary position will be thereby bettered. No wise man would
entertain such suggestions as these." The English law therefore has been consistent with the
concept of welfare theory of the child. The Indian law also does not make any departure,
therefrom.. In this context, reference may be made to the decision of this Court in the case of
J.V. Gajre vs. Pathankhan and Ors. (1970 (2) SCC 717) in which this Court in paragraph 11 of
the report observed:

"We have already referred to the fact that the father and mother of the appellant had fallen out
and that the mother was living separately for over 20 years. It was the mother who was actually
managing the affairs of her minor daughter, who was under her care and protection. From 1951
onwards the mother in the usual course of management had been leasing out the properties of the
appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a
written lease was executed by the tenant in favour of the appellant represented by her mother. It
is no doubt true that the father was alive but he was not taking any interest in the affairs of the
minor and it was as good as if he was non-existent so far as the minor appellant was concerned.
We are inclined to agree with the view of the High Court that in the particular circumstances of
this case, the mother can be considered to be the natural guardian of her minor daughter. It is
needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956
432
(Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into
force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect
of the minor's person as well as the minor's property are the father and after him the mother. The
position in the Hindu Law before this enactment was also the same. That is why we have stated
that normally when the father is alive he is the natural guardian and it is only after him that the
mother becomes the natural guardian. But on the facts found above the mother was rightly
treated by the High Court as the natural guardian."

15. Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the
growth of the child, and welfare being the predominant criteria, it would be a plain exercise of
judicial power of interpreting the law so as to be otherwise conducive to a fuller and better
development and gro wth of the child.

16. Incidentally the Constitution of India has introduced an equality code prohibiting
discrimination on the ground of sex and having due regard to such a mandate in the Constitution,
is it justifiable to decry the rights of the mother to be declared a natural guardian or have the
father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic `no' and
contended that the statute in question covering this aspect of the Personal law has used the
expression `after' in Section 6 (a) but the same cannot run counter to the constitutional
safeguards of gender justice and as such cannot but be termed to be void and ultravires the
Constitution.

17. Be it noted here that the expressions `guardian' and `natural guardian' have been given
statutory meanings as appears from Section 4(b) wherein guardian is said to mean a person
having the care of the person of a minor or his property and includes: (i) natural guardian;

(ii) a guardian appointed by the will of the minor's father or mother; (iii) a guardian appointed or
declared by court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards;

18. It is pertinent to note that sub-section (c) of section 4 provides that a natural guardian means
a guardian mentioned in section 6. This definition section, however obviously in accordance with
the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic
provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu
minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The
statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts
that the mother's right to act as a natural guardian stands suspended during the lifetime of the
father and it is only in the event of death of the father, the mother obtains such a right to act as a
natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having
a gender bias and thus opposed to the constitutional provision. It has been contended that the
classification is based on marital status depriving a mother's guardianship of a child during the
life time of the father which also cannot but be stated to be a prohibited marker under Article 15
of the Constitution.

19. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such
interpretation ought to be in consonance with the legislative intent in engrafting the statute on the
Statute Book and not de hors the same and it is on this perspective that the word `after' appearing
in section 6A shall have to be interpreted. It is now a settled law that a narrow pedantic
interpretation running counter to the constitutional mandate ought always to be avoided unless of
433
course, the same makes a violent departure from the Legislative intent-in the event of which a
wider debate may be had hav ing due reference to the contextual facts..

20. The contextual facts in the decision noticed above, depict that since the father was not taking
any interest in the minor and it was as good as if he was non-existing so far as the minor was
concerned, the High Court allowed the mother to be the guardian but without expression of any
opinion as regards the true and correct interpretation of the word `after' or deciding the issue as
to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956 - it was
decided upon the facts of the matter in issue. The High Court in fact recognised the mother to act
as the natural guardian and the findings stand accepted and approved by this Court. Strictly
speaking, therefore, this decision does not lend any assistance in the facts of the matter under
consideration excepting however that welfare concept had its due recognition.

21. There is yet another decision of this Court in the case of Panni Lal vs Rajinder Singh and
Another (1993 (4) SCC 38) wherein the earlier decision in Gajre's case was noted but in our view
Panni Lal's case does not lend any assistance in the matter in issue and since the decision pertain
to protection of the properties of a minor.

22. Turning attention on the principal contention as regards the constitutionality of the
legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation
is to be presumed and efforts should always be there on the part of the law courts in the matter of
retention of the legislation in the statute book rather than scrapping it and it is only in the event
of gross violation of constitutional sanctions that law courts would be within its jurisdiction to
declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is
on this perspective that we may analyse the expressions used in section 6 in a slightly more
greater detail. The word `guardian' and the meaning attributed to it by the legislature under
section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean
and include both the father and the mother and this is more so by reason of the meaning
attributed to the word as "a person having the care of the person of a minor or his property or of
both his person and property...." It is an axiomatic truth that both the mother and the father of a
minor child are duty bound to take due care of the person and the property of their child and thus
having due regard to the meaning attributed to the word `guardian' both the parents ought to be
treated as guardians of the minor. As a matter of fact the same was the situation as regards the
law prior to the codification by the Act of 1956. The law therefore recognised that a minor has to
be in the custody of the person who can sub-serve his welfare in the best possible way - the
interest of the child being paramount consideration.

23. The expression `natural guardian' has been defined in Section 4(c) as noticed above to mean
any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three
classes of guardians viz., father, mother and in the case of a married girl the husband. The father
and mother therefore, are natural guardians in terms of the provisions of Section 6 read with
Section 4(c). Incidentally it is to be noted that in the matter of interpretation of statute the same
meaning ought to be attributed to the same word used by the statute as per the definition section.
In the event, the word `guardian' in the definition section means and implies both the parents, the
same meaning ought to be attributed to the word appearing in section 6(a) and in that perspective
mother's right to act as the guardian does not stand obliterated during the lifetime of the father
and to read the same on the statute otherwise would tentamount to a violent departure from the
legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be
treated as natural guardians and the expression `after' therefore shall have to be read and
interpreted in a manner so as not to defeat the true intent of the legislature.
434
24. Be it noted further, that gender equality is one of the basic principles of our Constitution and
in the event the word `after' is to be read to mean a disqualification of a mother to act as a
guardian during the lifetime of the father, the same would definitely run counter to the basic
requirement of the constitutional mandate and would lead to a differenciation between male and
female. Normal rules of interpretation shall have to bow down to the requirement of the
Constitution since the Constitution is supreme and the statute shall have to be in accordance
therewith and not de hors the same. The father by reason of a dominant personality cannot be
ascribed to have a preferential right over the mother in the matter of guardianship since both fall
within the same category and in that view of the matter the word `after' shall have to be
interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and
effective meaning to the words used.

25. In our opinion the word `after' shall have to be given a meaning which would sub-serve the
need of the situation viz., welfare of the minor and having due regard to the factum that law
courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it
expedient to record that the word `after' does not necessarily mean after the death of the father,
on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be
it temporary or otherwise or total apathy of the father towards the child or even inability of the
father by reason of ailment or otherwise and it is only in the event of such a meaning being
ascribed to the word `after' as used in Section 6 then and in that event the same would be in
accordance with the intent of the legislation viz. welfare of the child.

26. In that view of the matter question of ascribing the literal meaning to the word `after' in the
context does not and cannot arise having due regard to the object of the statute, read with the
constitutional guarantee of gender equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and which situation in our view ought to be
avoided.

27. In view of the above, the Writ Petition c No.489 of 1995 stands disposed of with a direction
that Reserve Bank authorities are directed to formulate appropriate methodology in the light of
the observations, as above, so as to meet the situation as called for in the contextual facts.

28. Writ Petition c No.1016 of 1991 also stands disposed of in the light of the observations as
recorded above and the matter pending before the District court, Delhi, as regards custody and
guardianship of the minor child, shall be decided in accordance therewith.

29. In the facts of the matters under consideration there shall however be no order as to costs.

Supreme Court of India

Mohd. Amin And Others vs Vakil Ahmed And Others on 22 October, 1952

Equivalent citations: 1952 AIR 358, 1952 SCR 1133

Author: N H Bhagwati

435
Bench: Bhagwati, Natwarlal H.

PETITIONER:
MOHD. AMIN AND OTHERS

Vs.

RESPONDENT:
VAKIL AHMED AND OTHERS.

BENCH:
BHAGWATI, NATWARLAL H.
MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA

CITATION:
1952 AIR 358 1952 SCR 1133

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 51 of 1951. Appeal from the Judgment
and Decree dated the 11h September, 1945, of the High Court of Judicature at Allaha- bad
(Brand and Waliullah JJ.) in First Appeal No. 212 of 1942 arising out of the Judgment and
Decree dated the 28th February, 1942, of the Court of the Civil Judge of Azamgarh in Original
Suit No. 4 of 1941.

S.P. Sinha (Shaukat Hussain, with him) for the appel- lants.

C.K. Daphtary (Nuruddin Ahmed, with him) for the re- spondents.

1952. Oct. 22. The judgment of the Court was delivered by BHAGWATI J.--This is an appeal
from the judgment and decree of the High Court of judicature at Allahabad which set aside a
decree passed by the Civil Judge of Azamgarh decreeing the plaintiff's claim.

One Haji Abdur Rahman, hereinafter referred to as -Haji" a Sunni Mohammedan, died on the
26th January, 1940, leaving behind him a large estate. He left him surviving the plain- tiffs 1 to
3, his sons, plaintiff 4 his daughter and plain- tiff 5 his wife, defendant 6 his sister, defendant 7
his daughter, by a predeceased wife Batul Bibi and defendants 1 to 4 his nephews and defendant
5 his grand-nephew. Plain- tiffs case is that immediately after his death the defendant 1 who was
the Chairman, Town Area qasba Mubarakpur and a member of the District Board, Azamgarh and
defendant 5 who was an old associate of his started propaganda against them, that they set afloat
a rumour to the effect that the plain- tiffs 1 to 4 were not the legitimate children of Haji and that
the plain- tiff 5 was not his lawfully wedded wife, that the defendants 1 to 4 set up an oral gift of
one-third of the estate in their favour and defendant 5 set up an oral will bequeathing one-third
share of the estate to him and sought to interfere with the possession of the plaintiffs over the
estate and nearly stopped all sources of income. It was alleged that under these circumstances a
so-called deed of family settle- ment was executed by and between the parties on the 5th April,
1940, embodying an agreement in regard to the distri- bution of the properties belonging to the
estate, that plaintiff 3 was a minor of the age of about 9 years and he was represented by the
plaintiff 1 who acted as his guardian and executed the deed of settlement for and on his behalf.
436
On these allegations the plaintiffs filed on the 25th Novem- ber, 1940, in the Court of Civil
Judge of Azamgarh the suit out of which the present appeal arises against the defend- ants 1 to 5
and defendants 6 and 7 for a declaration that the deed of settLement dated 5th April, 1940, be
held to be invalid and to establish their claim to their legitimate shares in the estate of Haji under
Mohammedan Law. The defendant 8 a daughter of the plaintiff 5 whose paternity was in dispute
was added as a party defendant to the suit, the plaintiffs claiming that she was the daughter of the
plaintiff 5 by Haji and the defendants 1 to 5 alleging that she was a daughter of the plaintiff 5 by
her former husband Alimullah.

The only defendants who contested the claim of the plaintiffs were the defendants 1 to 5. They
denied that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the
legitimate children of Hail. They also contended that the deed of settlement embodied the terms
of a family settlement which had been bona fide arrived at between the parties in regard to the
disputed claims to the estate of Haji and was binding on the plaintiffs. It is significant to observe
that the defendants 6 and 7 who were the admitted heirs of Haji did not contest the plaintiffs'
claim at all.

The two issues which were mainly contested before the trial Court were, (I) Whether the
plaintiffs 1 to 4 are the legitimate issue of and the plaintiff 5 is the wedded wife of Abdul
Rahman deceased;

(2) Whether the agreement dated 5th April, 1940, was executed by the plaintiffs after
understanding its contents fully or was obtained from them by fraud or undue influence ? Was
the said deed insufficiently stamped? Was it benefi- cial to the minor plaintiffs ?

As regards the first issue there was no document evi- dencing the marriage between the plaintiff
5 and Haji. The plaintiff 5 and Haji had however lived together as man and wife for 23 to 24
years and the plaintiffs 1 to 4 were born of that union. There was thus a strong presumption of
the marriage of Haji with plaintiff 5 having taken place and of the legitimacy of plaintiffs 1 to 4.
The trial Court did not attach any importance to the question of onus or pre- sumption, examined
the evidence which was led by both the parties with a view to come to a finding in regard to this
issue, and found as follows:

"So far as Musammat Rahima's marriage with Alimullah or another Abdul Rahman is concerned
the evidence of both the parties stands on the same level and is not worthy of much credit. I have
however, not the least hesitation to observe that so far as the oral evidence and the circumstances
of the case are concerned, they all favour the plaintiffs. I, however, find it difficult to ignore the
testimony of the defendants' witnesses Shah Allaul Haq and Molvi Iqbal Ahmad ...................
Owing to the voluminous oral evidence adduced by the plaintiffs and the circumstances that
apparently favour them, I gave my best attention to this case, but upon a careful consideration of
the whole evidence on the record, I am not prepared to hold that the plaintiffs 1 to 4 are the
legitimate issues of the plaintiff No. 5, the lawfully wedded wife of the deceased, Haji Abdul
Rahman. I frankly admit that the matter iS not free from difficulty and doubt but to my mind the
scale leans away from the plain- tiffs and I am not satisfied that their version is correct."

On the second issue the learned trial Judge came to the conclusion that the disputed compromise
amounted to a family settlement; that it was beneficial to the interests of the minor plaintiff and
that it was made by the parties willing- ly and without any fraud or undue influence. On these
find- ings the suit was dismissed with costs.

437
The plaintiffs filed an appeal to the High Court of Judicature at Allahabad. After considering the
several authorities on the binding nature of family settlements cited before it came to the
conclusion that it did not bind the plaintiffs. As regards defendants 1 to 5 it was held that there
was no consideration whatsoever which could in any way support the arrangement. Plaintiffs 4
and 5 being Purdanashin ladies, it was found that they had no chance at any stage of the
transaction of getting independent advice in regard to the contents or the effect of the document
which they were executing and that even if the deed were valid otherwise it would not be binding
on them. It was further held that the plaintiff 3 who would be about 9 years of age at the time of
the execution of the deed was repre- sented in the transaction by his brother who could not be the
legal guardian of his property and that the deed in so far as it adversely affected the interest of
plaintiff 3 would not be binding on him. On the question of marriage and legitimacy the High
Court came to the conclusion that ii the trial Court had considered the question of onus in its
proper light and given the plaintiffs the benefit of the initial presumption in favour of legitimacy
and lawful wedlock under the Mahomedan law, he would have recorded a finding in their favour.
The defendants to 5 had alleged that at the time of the commencement of sexual relations
between the plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimullah who was alive and that
therefore the con- nection between the plaintiff 5 and Haji was in its origin illicit and continued
as such, with the result that the presumption in favour of a marriage between the plaintiff 5 and
Haji and in favour of the legitimacy of plaintiffs 1 to 4 would not arise. The learned trial Judge
disbelieved the evidence led by the defendants 1 to 5 in regard to this marriage between the
plaintiff 5 and Alimullah. The High Court upheld the finding and said:--

"All these circumstances, to my mind, strongly militate against the theory of a first marriage of
Musammat Rahima Bibi with the man called Alimullah. In this state of the evidence one cannot
but hold that this story of the marriage with Alimullah was purely an after-thought on the part of
the defendants 1 to 5 and it was invented only to get rid of the strong presumption under the
Mahomedan law in favour of the paternity of plaintiffs 1 to 4 and the lawful wedlock of the
plaintiff 5."

Having thus discredited the theory of the first mar- riage of the plaintiff 5 with Alimullah the
High Court came to the conclusion that it was fully established that Musam- mat Rahima Bibi
was the lawfully wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji.
The defendants 1 to 5 obtained leave to appeal to His Majesty in Council and the appeal was
admitted on the 10th January, 1947 Shri S.P. Sinha who appeared for the defendants 1 to 5
before us has urged the self-same two questions, namely, (1) Whether the deed of settlement is
binding on the plaintiffs and (2) Whether the plaintiff 5 was the lawfully wedded wife and the
plaintiffs 1 to 4 are the legitimate children of Haji.

In regard to the first question, it is unnecessary to discuss the evidence in regard to fraud, undue
influence, want of independent advice etc., as the question in our opinion is capable of being
disposed of on a short point. It is admitted that the plaintiff 3 Ishtiaq Husan was a minor of the
age of about 9 years at the date of the deed, and he was not represented as already stated by any
legal guardian in this arrangement. The minor's brother had no power to transfer any right or
interest in the immovable property of the minor and such a transfer if made was void. (See
Mulla's Mahomedan Law, 13th Edition, page 303,section 364).

Reference may be made to the decision of their Lord- ships of the Privy Council in Imambandi v.
Mut- saddi(1). In that case the mother who was neither the legal guardian of her minor children
nor had been appointed their guardian under the Guardian and Wards Act had purported to
transfer the shares of her minor children in the property inherited by them from their deceased
438
father. Mr. Ameer Ali who deliv- ered the judgment of the Board observed at page 82 as follows
:-

The question how far, or under what circumstances according to Mahomedan law,a mother's
dealings with her minor child's property are binding on the infant has been frequently before the
courts in India. The decisions, howev- er, are by no means uniform, and betray two varying
tenden- cies: one set of decisions purports to give such dealings a qualified force; the other
declares them wholly void and ineffective. In the former class of cases the main test for
determining the validity of the particular transaction has been the benefit resulting from it to the
minor; in the latter the admitted absence of authority or power on the part of the mother to
alienate or incumber the minor's property."

The test of benefit resulting from the transaction to the minor was negatived by the Privy Council
and it was laid down that under the Mahomedan law a person who has charge of the person or
property of a minor without being his legal guardian, and who may, there- fore, be conveniently
called a "defacto guardian," has no power to convey to another any right or interest in immovable
property which the transferee can enforce against the infant. (1) (1918) 45 1. A. 73.

Shri S.P. Sinha relied upon a decision of the Calcutta High Court reported in Mahomed
Keramutullah Miah v. Keramutulla (1) where it was held that there was nothing in the doctrine
of family arrangements opposed to the general principle that when it was sought to bind a minor
by an agreement entered into on his behalf, it must be shown that the agreement was for the
benefit of the minor;that if improper advantage had been taken of the minor's position, a family
arrangement could be set aside on the ground of undue influence or inequality of position or one
or other of the grounds which would vitiate such arrangement in the case of adults; but where
there was no defect of this nature, the settlement of a doubtful claim was of as much advantage
to a minor as to an adult, and where a genuine dispute had been fairly settled the dispute could
not be reopened solely on the ground that one of the parties to the family arrangement was a
minor.

This decision was reached on the 19th July, 1918, i.e., almost 5 months after the decision of their
Lordships of the Privy Council, but it does not appear that the ruling was brought to the notice of
the learned Judges of the Calcutta High Court. The test of the benefit resulting from the
transaction to the minor which was negatived by their Lord- ships of the Privy Council was
applied by the learned Judges of the Calcutta High Court in order to determine whether the
family arrangement which was the subject-matter of the suit before them was binding on the
minor.

Shri S.P. Sinha next relied upon a decision of the Chief Court of Oudh, Ameer Hasan v. Md.
Ejaz Husain(2). In that case an agreement to refer to arbitration was entered into by the mother
for her minor children and an award was made by the arbitrators. The scheme of distribu- tion of
properties promulgated in the award was followed without any objection whatever for a long
period extending over 14 years and proceedings were taken at the instance of the minors for
recovery of possession by actual partition of their shares in the properties. The Court held (1)
A.I.R. 1919 Cal. 218. (2) A.I.R. 1929 Oudh

134. that the reference to arbitration could not be held binding on the minors and the award could
not be held to be an operative document, but if the scheme of distribution pro- mulgated in the
award was in no way perverse or unfair or influenced by any corruption or misconduct of the
arbitra- tors and had been followed without any objection whatever for a long period extending
439
over 14 years, it would as well be recognised as a family settlement and the court would be
extremely reluctant to disturb the arrangement arrived at so many years ago. This line of
reasoning was deprecated by their Lordships of the Privy Council in Indian Law Reports 19
Lahore 313 at page 317 where their Lordships observed "it is, however, argued that the
transaction should be upheld, because it was a family settlement. Their Lordships cannot assent
to the proposition that a party can, by describing a contract as a family settlement, claim for it an
exemption from the law governing the capacity of a person to make a valid contract." We are
therefore unable to accept this case as an authority for the proposition that a deed of settlement
which is void by reason of the minor not having been properly represented in the transaction can
be rehabil- itated by the adoption of any such line of reasoning.

If the deed of settlement was thus void it could not be void only qua the minor plaintiff 3 but
would be void altogether qua all the parties including those who were sui juris. This position
could not be and was not as a matter of fact contested before us.

The contention of the defendants 1 to 5 in regard to the lawful wedlock between plaintiff 5 and
Haji and the legitimacy of the plaintiffs 1 to 4 is equally untenable. The plaintiffs had no doubt to
prove that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the
legitimate children of Haji. Both the Courts found that the factum of the marriage was not proved
and the plaintiffs had therefore of necessity to fall back upon the presump- tion of marriage
arising in Mahomedan law. If that presump- tion of marriage arose, there would be no difficulty
in establishing the status of the plaintiffs 1 to 4 as the legitimate children of Haji because they
were admittedly born by the plaintiff 5 to Haji. The presumption of marriage arises in
Mahomedan law in the absence of direct proof from a prolonged and continual cohabitation as
husband and wife. It will be apposite in this connection to refer to a passage from the judgment
of their Lordships of the Privy Council in Khajah Hidayut Oollah v. Rai Jan Khanurn(1). Their
Lord- ships there quoted a passage from Macnaghten's Principles of Mahomedan Law:--

"The Mahomedan lawyers carry this disinclination (that is against bastardizing) much further;
they consider it legitimate of reasoning to infer the existence of marriage from the proof of
cohabitation ......... None but children who are in the strictest sense of the word spurious are
considered incapable of inheriting the estate of their putative father. The evidence of persons
who would, in other cases, be considered incompetent witnesses is admitted to prove wedlock,
and, in short, where by any possibility a marriage may be presumed, the law will rather do so
than bastardize the issue, and whether a marriage be simply voidable or void ab initio the
offspring of it will be deemed legitimate ........................... This I apprehend, with all due
deference, is carrying the doctrine to an extent unwarranted by law; for where children are not
born of women proved to be married to their father, or of female slaves to their fathers, some
kind of evidence (however slight) is requisite to form a presumption of
matrimony......................................The mere fact of casual concubinage is not sufficient to
establish legiti- macy ;and if there be proved to have existed any insurmount- able obstacle to the
marriage of their putative father with their mother, the children, though not born of common
women, will be considered bastards to all intents and purposes."

Their Lordships deduced from this passage the principle that where a child had been both to a
father, of a mother where there had been not a mere casual (1) (1844) 3 Moore's indian Appeals
295 at p. 317.

concubinage, but a more permanent connection, and where there was no insurmountable obstacle
to such a marriage, then according to the Mahomedan law, the presumption was in favour of
440
such marriage having taken place. The presumption in favour of a lawful marriage would thus
arise where there was prolonged and continued cohabita- tion as husband and wife and where
there was no insurmount- able obstacle to such a marriage, eg., prohibited relation- ship between
the parties, the woman being an undivorced wife of a husband who was alive and the like.
Further illustra- tions are to be found in the decisions of their Lordships of the Privy Council in
21 Indian Appeals 56 and 37 Indian Appeals 105 where it was laid down that the presumption
does not apply if the conduct of the parties was incompatible with the existence of the relation of
husband and wife nor did it apply if the woman was admittedly a prostitute before she was
brought to the man's house (see Mulla's Mahomedan Law, p. 238, section 268). If therefore there
was no insur- mountable obstacle to such a marriage and the man and woman had cohabited with
each other continuously and for a pro- longed period the presumption of lawful marriage would
arise and it would be sufficient to establish that there was a lawful marriage between them.

The plaintiff 5 and Haji had been living as man and wife for 23 to 24 years openly and to the
knowledge of all their relations and friends. The plaintiffs 1 to 4 were the children born to them.
The plaintiff 5, Haji, and the children were all staying in the family house and all the relations
including the defendant I himself treated the plaintiff 5 as a wife of Haji and the plaintiffs 1 to 4
as his children. There was thus sufficient evidence of habit and repute. Haji moreover purchased
a house and got the sale deed executed in the names of the plaintiffs 1 and 2 who were described
therein as his sons. The evidence which was led by the defendants 1 to 5 to the contrary was dis-
carded by the High Court as of a negative character and of no value. Even when the deed of
settlement was exe- cuted between the parties the plaintiff 5 was described as the widow and
plaintiffs 1 to 4 were described as the chil- dren of Haji. All these circumstances raised the
presumption that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the
legitimate children of Haji. The result therefore is that both the contentions urged by the
defendants 1 to 5 against the plaintiffs' claim in suit fail and the decree passed in favour of the
plaintiffs by the High Court must be affirmed.

It was however pointed out by Shri S.P. Sinha that the High Court erred in awarding to the
plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned
Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne
profits as such but urged that the claim for mesne profits would be included within the
expression "awarding possession and occupation of the property aforesaid together with all the
rights appertaining thereto." We are afraid that the claim for mesne profits cannot be included
within this expression and the High Court was in error in awarding to the plaintiffs mesne profits
though they had not been claimed in the plaint. The provision in regard to the mesne profits will
therefore have to be deleted from the decree. We dismiss the appeal of the defendants 1 to 5 and
affirm the decree passed by the High Court in favour of the plain- tiffs, deleting therefrom' the
provision in regard to mesne profits. The plaintiffs will of course be entitled to their costs
throughout from the defendants 1 to 5.

Appear dismissed.

Agent for the appellants': V.P.K. Nambiyar. Agent for the respondents: B.P. Maheshwari.

441
Supreme Court of India

Vikram Vir Vohra vs Shalini Bhalla on 25 March, 2010

Author: Ganguly

Bench: G.S. Singhvi, Asok Kumar Ganguly

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2704 OF 2010

(Arising out of SLP(C) No.19935/2009)

Vikram Vir Vohra ..Appellant(s)

Versus

Shalini Bhalla ..Respondent(s)

JUDGMENT

GANGULY, J.

1. Leave granted.

2. This appeal by the husband, impugns the judgment and order dated 27.07.09 of Delhi High
Court which upheld the judgment and order of the Additional District Judge passed in relation to
applications filed by both the parties under Section 26 of the Hindu Marriage Act (hereinafter
"the Act"). The impugned judgment permitted the respondent-wife to take the child with her to
Australia.

3. The material facts of the case are that the parties to the present appeal were married as per the
Hindu rites on 10.12.2000. A child, Master Shivam, was born to them on 05.08.02. In view of
irreconcilable differences between the parties they had agreed for a divorce by mutual consent
under Section 13-B of the Act and filed a petition to that effect and on 05.09.06 a decree of
divorce on mutual consent was passed by the Additional District Judge, Delhi.

4. As regards the custody of the child there was some settlement between the parties and
according to the appellant the same was incorporated in paras 7 and 9 of the petition filed under
Section 13-B (2) of the Act. Those paragraphs are as under:

"The parties have agreed that the custody of the minor son Master Shivam shall remain with the
mother, petitioner No.1 who being the natural mother is also the guardian of the son Master
Shivam as per law laid down by the Supreme Court of India. It is, however, agreed that the father
petitioner shall have right of visitation only to the extent that the child Master Shivam shall be
with the father, petitioner No.2, once in a fortnight from 10 AM to 6.30 PM on a Saturday.
442
Petitioner No.2 shall collect the child Master Shivam from WZ-64, 2nd Floor Shiv Nagar Lane
No.4, New Delhi-58 at 10 AM on a Saturday where the child is with his mother. And on the
same day at by 6.30 PM, the petitioner No.2 would leave the child back at the same place with
the mother i.e. petitioner No.1 and in case he does not do so petitioner No.1 the mother shall
collect the child from petitioner No.2 on the same day. Both parties undertake before this
Hon'ble Court that they would not create any obstruction in implementation of this arrangement.

The petitioner No.1 shall take adequate care of the child in respect of health, education etc., at
her own cost. In case the petitioner No.1 changes her address or takes the child outside Delhi, she
shall keep petitioner No.2 informed one week in advance about the address and telephone nos.
and the place where the child would be staying with the mother, to enable the petitioner No.2 to
remain in touch with the child.

The petitioner No.1 has received all her Stridhan and other valuables, articles and other
possessions, and nothing remains due to her from the petitioner No.2. The petitioner No.1 and
the child Shivam has no claim to any property or financial commitment from petitioner No.2 and
all her claims are settled fully and finally".

5. Thereafter the respondent-wife filed applications dated 07.11.06 and 9.05.08 and the
appellant-husband also filed applications dated 17.11.07 and 16.02.09 under Section 26 of the
Act seeking modification of those terms and conditions about the custody of the child.

6. The respondent was basing her claim on the fact that she wanted to take the child with her to
Australia where she was employed for gain with a request to revoke the visitation rights granted
to the appellant for meeting the child. This she felt will be conducive to the paramount interest
and welfare of the child. The appellant on the other hand sought permanent custody of the child
under the changed circumstances alleging that it is not in the interest of the child to leave India
permanently.

7. The Trial Court vide its order dated 06.04.09 took notice of the fact that in the joint petition of
divorce, parties voluntarily agreed that the custody of the child shall remain with the mother and
father shall have only visiting rights, in the manner indicated in the mutual divorce decree. The
Court modified the terms and conditions of the custody and visitation rights of the appellant
about the minor child. By its order the Trial Court had allowed the respondent to take the child
with her to Australia but also directed her to bring the child back to India for allowing the father
visitation rights twice in a year i.e. for two terms - between 18th of December to 26th of January
and then from 26th of June to 11th of July.

8. Being aggrieved by that order of the Trial Court, the appellant appealed to the High Court. It
was argued by the appellant since no decree was passed by the Court while granting mutual
divorce, an application under Section 26 of the Act does not lie and in the absence of specific
provision in the decree regarding the custody and visitation rights of the child, the Trial Court
has no jurisdiction to entertain the petition afresh after passing of the decree.

9. The High Court took into consideration the provisions of Section 26 of the Act and was of the
view that the aforesaid provision is intended to enable the Court to pass suitable orders from
time to time to protect the interest of minor children. However, the High Court held that after the
final order is passed in original petition of divorce for the custody of the minor child, the other
party cannot file any number of fresh petitions ignoring the earlier order passed by the Court.

443
10. The Court took into consideration that even if the terms and conditions regarding the custody
and visitation rights of the child are not specifically contained in the decree, they do form part of
the petition seeking divorce by mutual consent. It was of the view that absence of the terms and
conditions in the decree does not disentitle the respondent to file an application under Section 26
of the Act seeking revocation of the visitation rights of the appellant.

11. It is important to mention here that the learned Judge of the High Court had personally
interviewed the child who was about 7 years old to ascertain his wishes. The child in categorical
terms expressed his desire to be in the custody and guardianship of his mother, the respondent.
The child appeared to be quite intelligent. The child was specifically asked if he wanted to live
with his father in India but he unequivocally refused to go with or stay with him. He made it
clear in his expression that he was happy with his mother and maternal grandmother and desired
only to live with his mother. The aforesaid procedure was also followed by the learned Trial
Court and it was also of the same view after talking with the child.

12. Being aggrieved with the judgment of the High Court the appellant has approached this Court
and hence this appeal by way of Special Leave Petition.

13. We have also talked with the child in our chambers in the absence of his parents. We found
him to be quite intelligent and discerning. The child is in school and from the behaviour of the
child, we could make out that he is well behaved and that he is receiving proper education.

14. The child categorically stated that he wants to stay with his mother. It appears to us that the
child is about 8-10 years of age and is in a very formative and impressionable stage in his life.
The welfare of the child is of paramount importance in matters relating to child custody and this
Court has held that welfare of the child may have a primacy even over statutory provisions [See
Mausami Moitra Ganguli vs. Jayant Ganguli - (2008) 7 SCC 673, para 19, page 678]. We have
considered this matter in all its aspects.

15. The argument of the learned counsel for the appellant, that in view of the provisions of
Section 26 of the Act, the order of custody of the child and the visitation rights of the appellant
cannot be changed as they are not reflected in the decree of mutual divorce, is far too hyper
technical an objection to be considered seriously in a custody proceeding. A child is not a chattel
nor is he/she an article of personal property to be shared in equal halves.

16. In a matter relating to custody of a child, this Court must remember that it is dealing with a
very sensitive issue in considering the nature of care and affection that a child requires in the
growing stages of his or her life. That is why custody orders are always considered interlocutory
orders and by the nature of such proceedings custody orders cannot be made rigid and final.
They are capable of being altered and moulded keeping in mind the needs of the child.

17. In Rosy Jacob vs. Jacob A Chakramakkal -

[(1973) 1 SCC 840], a three judge Bench of this Court held that all orders relating to custody of
minors were considered to be temporary orders. The learned judges made it clear that with the
passage of time, the Court is entitled to modify the order in the interest of the minor child. The
Court went to the extent of saying that even if orders are based on consent, those orders can also
be varied if the welfare of the child so demands.

444
18. The aforesaid principle has again been followed in Dhanwanti Joshi vs. Madhav Unde -
[(1998) 1 SCC 112].

19. Even though the aforesaid principles have been laid down in proceedings under the
Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the
custody of a child under Section 26 of the Act since in both the situations two things are
common; the first, being orders relating to custody of a growing child and secondly, the
paramount consideration of the welfare of the child. Such considerations are never static nor can
they be squeezed in a strait jacket. Therefore, each case has to be dealt with on the basis of its
peculiar facts.

20. In this connection, the principles laid down by this Court in Gaurav Nagpal vs. Sumedha
Nagpal reported in (2009) 1 SCC 42 are very pertinent. Those principles in paragraphs 42 and 43
are set out below:

"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares
that in any proceeding under the said Act, the court could make, from time to time, such interim
orders as it might deem just and proper with respect to custody, maintenance and education of
minor children, consistently with their wishes, wherever possible.

43. The principles in relation to the custody of a minor child are well settled. In determining the
question as to who should be given custody of a minor child, the paramount consideration is the
"welfare of the child" and not rights of the parents under a statute for the time being in force".

21. That is why this Court has all along insisted on focussing the welfare of the child and
accepted it to be the paramount consideration guiding the Court's discretion in custody order. See
Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka - [AIR 1982 SC 1276], para 17.

22. In the factual and legal background considered above, the objections raised by the appellant
do not hold much water.

23. Now coming to the question of the child being taken to Australia and the consequent
variations in the visitation rights of the father, this Court finds that the Respondent mother is
getting a better job opportunity in Australia. Her autonomy on her personhood cannot be
curtailed by Court on the ground of a prior order of custody of the child. Every person has a right
to develop his or her potential. In fact a right to development is a basic human right. The
respondent-mother cannot be asked to choose between her child and her career. It is clear that
the child is very dear to her and she will spare no pains to ensure that the child gets proper
education and training in order to develop his faculties and ultimately to become a good citizen.
If the custody of the child is denied to her, she may not be able to pursue her career in Australia
and that may not be conducive either to the development of her career or to the future prospects
of the child. Separating the child from his mother will be disastrous to both.

24. Insofar as the father is concerned, he is already established in India and he is also financially
solvent. His visitation rights have been ensured in the impugned orders of the High Court. His
rights have been varied but have not been totally ignored. The appellant-father, for all these
years, lived without the child and got used to it.

25. In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother
made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to
445
ensure her return to India and to make available to the father, his visitation rights subject to the
education of the child. This Court finds that so far as the order which had been passed by the
High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father
have been so structured as to be compatible with the educational career of the child. This Court
finds that in this matter judicial discretion has been properly balanced between the rights of the
appellant and those of the respondent.

26. In that view of the matter, this Court refuses to interfere with the order passed by the High
Court. The appeal is dismissed with the direction that the respondent-mother, before taking the
child to Australia, must file an undertaking to the satisfaction of the Court of Additional District
Judge-01, (West), Delhi within a period of four weeks from date. No order as to costs.

.......................J.

(G.S.SINGHVI) .......................J.

(ASOK KUMAR GANGULY) New Delhi March 25

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 968/2017

PRATEEK GUPTA Appellant(s)

VERSUS

SHILPI GUPTA & ORS. Respondent(s)

Date : 06-12-2017 This appeal was called on for Judgment today.

For Appellant(s) Mr. Braj Nath Patel, Adv.

Ms. Sweta, Adv.
Ms. Romila, Adv.
Ms. Binu Tamta, AOR

For Respondent(s) Mr. N. S. Dalal, Adv.

Mr. D. P. Singh, Adv.
Mr. R. C. Kaushik, AOR

Hon'ble Mr. Justice Amitava Roy pronounced the reportable

Judgment of the Bench comprising Hon'ble The Chief Justice of India and His Lordship.

446
The appeal is allowed.

Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA) (RENU DIWAN)

COURT MASTER ASSISTANT REGISTRAR

(Signed reportable Judgment

Supreme Court - Daily Orders

Prateek Gupta vs Shilpi Gupta on 6 December, 2017

JUDGMENT

AMITAVA ROY, J.

1. By the impugned judgment and order dated 29.04.2016 rendered by the High Court of Delhi,
in a writ petition filed by the respondent No.1 seeking a writ in the nature of habeas corpus, the
appellant-father has been directed to hand over the custody of the child, Master Aadvik, aged
about 5 years to respondent No.1- mother. The appellant-father is in assailment of this
determination and seeks the remedial intervention of this Court. By order dated 03.05.2016, the
operation of the impugned verdict was stayed and as the said arrangement was continued
thereafter from time to time, the custody of the child as on date has remained with the Signature
Not Verified appellant.

Digitally signed by JAYANT KUMAR ARORA Date: 2017.12.06 17:04:27 IST The orders
passed by this Court though attest its Reason:

earnest endeavour to secure a reconciliation through interactions with the parents and the child,
the efforts having failed, the appeal is being disposed of on merits.

2. We have heard Ms. Binu Tamta, learned counsel for the appellant and Mr. N.S. Dalal, learned
counsel for the respondent No. 1 (hereafter to be referred to as “respondent”).

3. A skeletal outline of the factual backdrop is essential. The appellant and the respondent who
married on 20.01.2010 in accordance with the Hindu rites at New Delhi had shifted to the United
States of America (for short, hereafter referred to as 'U.S.'), as the appellant was already residing
and gainfully employed there prior to the nuptial alliance. In due course, the couple was blessed
with two sons, the elder being Aadvik born on 28.09.2012 and the younger, Samath born on
10.09.2014. As adverted to hereinabove, the present lis is with regard to the custody of Master
Aadvik, stemming from an application under Article 226 of the Constitution of India filed by the
respondent alleging illegal and unlawful keeping of him by the appellant and that too in violation
of the orders passed by the Juvenile and Domestic Relations Court of Fairfax County, passed on
28.05.2015 and 20.10.2015 directing him to return the child to the Commonwealth of Virginia
and to the custody and control of the respondent.

447
4. The pleaded facts reveal that the child resided with the parents from his birth till 07.11.2014
and thereafter from 07.11.2014 till 06.03.2015 with the respondent-mother in the United States.
This is so, as in view of irreconcilable marital issues, as alleged by the respondent, particularly
due to the volatile temperament and regular angry outbursts of the appellant often in front of the
child, the parties separated on or about 15.11.2014. Prior thereto, the appellant had on
08.11.2014 left for India leaving behind the respondent and her children in U.S. He returned on
18.01.2015 to the U.S., but the parties continued to live separately, the respondent with her
children. The appellant however, made short time visits in between and on one such occasion i.e.
on 24.01.2015, he took along with him Aadvik, representing that he would take him for a short
while to the Dulles Mall. According to the respondent, she did not suspect any foul play and
permitted the child to accompany his father, but to her dismay though assured, the appellant did
not return with the child in spite of fervent insistences and implorations of the mother. As alleged
by the respondent, the appellant thus separated the child from her from 24.01.2015 to 07.03.2015
in a pretentious and cruel move, seemingly acting on a nefarious strategy which surfaced when
on 07.03.2015, the appellant left U.S. with the child to India without any prior information or
permission or consent of hers.

5. Situated thus, the respondent approached Juvenile and Domestic Relations Court Fairfax
County, for its intervention and for that, on 15.05.2015, she filed “Emergency Motion For Return
of Minor Child and Established Temporary Custody”.

6. On the next date fixed i.e. 19.05.2015, after the service of the process on the appellant, his
counsel made a “special appearance” to contest the service. On the date thereafter i.e.
28.05.2015, he however informed the court that he was not contesting the service upon the
appellant, whereupon hearing the counsel for the parties at length and also noticing the plea on
behalf of the appellant that he intended to return with the child in U.S. and that the delay was
because of his mother's illness, the U.S. Court passed the following order:

“IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX
COUNTRY SHILPI GUPTA IN re: Aadvik Gupta D.O.B. September 28, 2012 Petitioner Case
No. JJ 431468-01-00 Vs.

Prateek Gupta Respondent ORDER This cause came before this Court on the 19 th May, 2015,
upon the petitioner Shilpi Gupta's verified motion for return of minor child and to establish
temporary custody; It appearing to the Court that this Court has proper jurisdiction over the
parties to this action pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act,
more specifically 20-146.24 and 20-146.32 of the Code of Virginia, 1950, as amended.

It further appearing to the Court that it is in the best interest of the child, Aadvik Gupta,
(hereinafter “Aadvik”) born on September 28, 2012, that he be immediately returned to the
custody of the petitioner and to the Commonwealth of Virginia pending any further order of this
Court and that good cause exists with which to require that the petitioner take immediate
possession of the child by all means necessary. It is therefore adjourned and ordered as follows:

1. Custody: The petitioner Shilpi Gupta, is hereby granted sole legal and physical custody of the
minor child, Aadvik Gupta, pending further order of this Court.

2. Return of the Child: That the respondent, Prateek Gupta, is hereby ordered to immediately
return Aadvik to the Commonwealth of Virginia, and to the custody and control of the petitioner

448
or her agents. Thereafter, the respondent shall not remove the child from the Commonwealth of
Virginia under any circumstances without further order of the Court.

3. Enforcement: That the all law enforcement agencies and related agencies (including but not
limited to Police Department(s), Sheriff's Department(s), U.S. State Department, Federal Bureau
of Investigations) are hereby directed to assist and/or facilitate the transfer of Aadvik to the
petitioner, if necessary, including taking the child into custody from anyone who has possession
of him and placing him in the physical custody of the petitioner.

4. Passport: That once the child has been returned to Virginia, any and all of Aadvik's passports
must be immediately surrendered to the petitioner where it will be held until further order of this
Court.

5. Removal from the Commonwealth of Virginia: That all relevant and/or local law enforcement
agencies shall do whatever possible to prevent the removal of Aadvik Gupta, from the
Commonwealth of Virginia except at the direction of the petitioner, Shilpi Gupta.

And this cause is continued.

Entered this 28 day of May, 2015.

Sd/-

Judge”

7. Thereby, the Court in U.S. being satisfied that it had the proper jurisdiction over the parties to
the action before it and also being of the opinion that it was in the best interest of the child, that
he be returned to the custody of the respondent and to the Commonwealth of Virginia pending
further orders, and that being convinced that good cause existed to require that the respondent-
mother take immediate possession of the child by all means necessary, granted sole legal and
physical custody of the child to the respondent pending further orders of the Court. The appellant
was directed to immediately return the child to the Commonwealth of Virginia and to the
custody and control of the respondent or her agents with a further restraint on him not to remove
the child from the Commonwealth of Virginia under any circumstance without the further order
of the Court. Thereby, all law enforcement and related agencies as mentioned in the order were
directed to assist and/or facilitate the transfer of the child to the respondent, if necessary by
taking the child into custody from anyone who had his possession and by placing him in the
physical custody of the respondent.

8. As the records laid before this Court would divulge, the appellant meanwhile on 26.05.2015
filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1956
(as amended) and also a petition under Section 7(b) of the Guardian and Wards Act, 1890 in the
court of the Principal Judge, Family Court, Rohini, Delhi seeking a decree for restitution of
conjugal rights between the parties and for a declaration that he was the sole and permanent
guardian of the child, respectively. Subsequent thereto on 26.08.2015 he also instituted a suit in
the High Court of Delhi at New Delhi praying for a decree inter alia to adjudge the proceedings
initiated by the respondent in the court in U.S. to be false, malicious, vexatious, oppressive and
nullis juris, being without jurisdiction and also to declare the order dated 28.05.2015 with regard
to the return of the child to the custody of the respondent-mother to be also null and void and not
binding on him. A decree for permanent injunction against the respondent, her agents etc. from
449
pursuing her proceedings before the court in U.S. was also sought for. The orders, if any, passed
in these proceedings instituted by the appellant having a bearing on those pursued by the
respondent before the court in U.S. are however not on record and we therefore refrain from
making any comment thereon. Suffice is to state that the lodging of the proceedings by the
appellant in courts in India demonstrates in unambiguous terms, his knowledge about the lis in
the Court in U.S. and the order dated 28.08.2015, interim though, directing him to return the
custody of the child immediately to the respondent-mother and to the Commonwealth of
Virginia, pending further orders.

9. Be that as it may, the court in U.S. on 20.10.2015 noticing inter alia that the appellant had
refused to return the child to the U.S. and to the custody of the respondent in direct violation of
its earlier order dated 28.05.2015, ordered that the respondent be granted sole, legal and physical
custody of the child and also declared that no visitation be granted to the appellant. It was further
directed that if either party intended to relocate his or her residence, he/she would have to give
30 days' advance written notice of any such intended relocation and of any intended change in
address to the other party and the court. The proceedings concluded with the observation “This
cause is final”. For immediate reference the proceedings of 20.10.2015 is also extracted
hereinbelow:

“IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX
COUNTY Shilpi Gupta In re: Aadvik Gupta D.O.B. September 28, 2012 Petitioner Case No.
JJ431468-01-00/02-00 Vs.

Prateek Gupta Respondent CUSTODY AND VISITATION ORDER This cause came before this
Court on the 20 th day of October, 2015, upon the petitioner Shilpi Gupta’s petitions for custody
and visitation of Aadvik Gupta. It appearing to the Court that it has jurisdiction over the parties
and the subject matter of the above-styled matter;

It further appearing to the Court that the respondent, Prateek Gupta, unilaterally removed Aadvik
Gupta to India without notice to or consent of the petitioner, and has further refused to return
said child to the United States and into the custody of the petitioner in direct violation of this
Court’s order entered on May 28, 2015.

Having considered all of the factors of 20-124.3 of the Code of Virginia, 1950, as amended, it is
hereby: Adjudged and ordered that petitioner is granted sole legal and physical custody of
Aadvik Gupta; it is further.

Adjudged and ordered that no visitation is granted to the respondent at this time; and it is further;
Adjudged and ordered that pursuant to 20-124.5 of the Code of Virginia, 1950 as amended,
either party who intends to relocate his or her residence shall give thirty-days advance written
notice of any such intended relocation and of any intended change of address, said notice being
given to both the other party and to this Court.

This cause is final Entered this 20th day of October, 2015.”

10. Mentionably, before the order dated 20.10.2015 was passed, the respondent in the face of
deliberate non-compliance of the order dated 28.05.2015 of the court in U.S. had filed a
contempt petition before it and the copy thereof was served on the appellant asking him to show
cause. It is also a matter of record that the order dated 28.05.2015 of the court in U.S. had been
450
published in the daily “The Washington Times” on 03.09.2015, whereafter the order dated
20.10.2015 was passed in the presence of the counsel for the appellant after affording the
respondent due hearing, whereupon the counsel of the appellant signed the order with the
following endorsement “objected to for returning the child to mother sole legal and physical
custody”. The proceedings of the order dated 20.10.2015 would also testify that he failed to
appear even after personal service. That the notice of the proceedings in U.S. Court at both the
stages had been served on the appellant is a minuted fact. It was in this eventful backdrop, that
the respondent invoked the writ jurisdiction of the High Court of Delhi seeking a writ of habeas
corpus against the appellant for the custody of the child alleging its illegal and unlawful charge
by him.

11. In reinforcement of her imputations, the respondent elaborated that the child was an
American citizen by birth, Virginia being his home State and that in spite of the order(s) of a
court of competent jurisdiction, the appellant had illegally detained him. Various
correspondences made by her with different authorities seeking their intervention and assistance
as the last resort before approaching the Writ Court were highlighted.

12. In refutation, it was pleaded on behalf of the appellant that the petition for a writ in the nature
of habeas corpus was misconceived in absence of any imminent danger of the life or physical or
moral well-being of the child. Referring to, amongst others the proceedings initiated by him
under the Guardian and Wards Act, 1890 which was pending adjudication, it was asserted on his
behalf that as the same assured effective and efficacious remedy in law, the prayer in the writ
petition ought to be declined. It was insisted as well that as the issue of the custody of the child
was involved, a summary adjudication thereof was unmerited and that a proper trial was the
imperative. Apart from referring to the reasons for the acrimonious orientation of the parties, the
initiatives and efforts made by him and his family members to fruitlessly effect a resolution of
the differences, were underlined. It was maintained on his behalf that the parties however, as an
interim arrangement made on 24.01.2015 had agreed to live separately with each parent keeping
one child in his/her custody and that in terms thereof Aadvik, the minor whose custody is in
dispute, was given in charge of the appellant. Institution and pendency of the other proceedings
before the Indian Courts were also cited to oppose the relief of the writ of habeas corpus. It was
contended as well that the respondent being a single working woman, she would not, in any view
of the matter, be capable of appropriately looking after both the children.

13. In rejoinder, it was asserted on behalf of the respondent that the proceedings instituted by the
appellant were all subsequent to the one commenced by her in the court in U.S. on 15.05.2015
and in the face of the final order(s) passed, directing return of custody of the child to her and the
Commonwealth of Virginia, the continuance of the child with the appellant was apparently
illegal and unauthorized, warranting the grant of writ of habeas corpus.

14. The High Court, as the impugned judgment would evince, after traversing the recorded facts,
amongst others took note of the disinclination of the respondent-wife to join the company of her
husband in India because of his alleged past conduct and the trauma and torture suffered by her,
a plea duly endorsed by her father present in court, granted the writ as prayed for. While
rejecting the contention of the appellant that no orders ought to be passed in the writ petition in
view of the pendency of the three proceedings initiated by him in India, the High Court seemed
to place a decisive reliance on the decision of this Court in Surya Vadanan vs. State of Tamil
Nadu & Ors.,1 and after subscribing to the principle of “comity of courts” and the doctrines of
“most intimate contact” and “closest concern” returned the finding, in the prevailing factual
setting, that the domestic court had much less concern with the child as against the foreign court
451
which had (2015) 5 SCC 450 passed the order prior in time. It observed further that no special or
compelling reason had been urged to ignore the principle of comity of courts which predicated
due deference to the orders passed by the U.S. Court, more particularly when the appellant was
represented before it through his counsel and had submitted to its jurisdiction. It was held that as
the child remained in the U.S. since birth upto March, 2015, it could be safely construed that he
was accustomed to and had adapted himself to the social and cultural milieu different from that
of India. It was observed that no plea had been raised on behalf of the appellant that the foreign
court was either incompetent or incapable of exercising its jurisdiction or had not rendered a
reasonable or fair decision in the best interest of child and his best welfare. In the textual facts,
the conclusion of the High Court was that the most intimate contact with the parties and their
children was of the court in U.S. which did have the closest concern for their well-being.

15. Having determined thus, the High Court directed the appellant to produce the child in court
on the date fixed for consequential handing over of his custody to the respondent.

16. In the process of impeachment of the impugned ruling of the High Court, the learned counsel
for the appellant at the threshold has assiduously questioned the maintainability of the writ
proceeding for habeas corpus. According to the learned counsel, in the attendant facts and
circumstances, the custody of the child of the appellant who is the biological father can by no
means be construed as illegal or unlawful and thus the writ proceeding is misconceived. Further
the appellant being in-charge of the child on the basis of an agreement between the parties,
which also stands corroborated by various SMS and e-mails exchanged between them during the
period from January, 2015 to 07.03.2015, the departure of the appellant with the child from the
U.S. to India and its custody with him is authorized and approved in law. The learned counsel
argued as well that during the interregnum, after the appellant had returned to India with the
child, the couple had been in touch with each other with interactions about the well-being of the
child and thus in law and on facts, there is no cause of action whatsoever for the writ of habeas
corpus as prayed for. That in passing the impugned order, the High Court had visibly omitted to
analyze the perspectives pertinent for evaluating the interest or welfare of the child has been
underlined to urge that on that ground alone, the assailed ruling is liable to be interfered with.
The learned counsel dismissed any binding effect of the order of the U.S. Court on the ground
that the same had been obtained by the respondent by resorting to fraud in withholding the
relevant facts from it and deliberately projecting wrongly that the safety of the child was in
danger in the custody of the appellant. The order of the court in U.S. having thus been obtained
by resorting to fraud, it is non est in law, she urged. Even otherwise, India being not a signatory
to the Hague Convention of “The Civil Aspects of International Child Abduction”, the order of
the U.S. Court was not per se enforceable qua the appellant and as in any view of the matter, the
principle of comity of courts was subject to the paramount interest and welfare of the child, the
High Court had fallen in error in relying on the rendition of this Court in Surya Vardanan1 which
in any event, was of no avail to the respondent in the singular facts of the case. According to the
learned counsel, the parties are Indian nationals and citizens having Indian passports and they are
only residents of U.S. on temporary work visa. It has been argued that the respondent is all alone
in U.S. with the younger child on a temporary work visa which would expire in 2017 and her
parents and other family members are all in India. It has been pleaded as well that when the child
was brought to India by the appellant, he was aged 2½ years, by which age he could not be
considered to have been accustomed and adapted to the lifestyle in U.S. for the application of the
doctrines of “intimate contact” and “closest concern” by a court of that country. According to the
learned counsel, the child after his return to India, has been admitted to a reputed school and has
accustomed himself to a desired congenial family environment, informed with love and
affection, amongst others of his grand-parents for which it would be extremely harsh to extricate
452
him herefrom and lodge him in an alien setting, thus adversely impacting upon the process of his
overall grooming. That the removal of the child by the appellant to India had not been in
defiance of any order of the court in U.S. and that the issue, more particularly with regard to his
custody as per the Indian law is presently pending in a validly instituted proceeding here has also
been highlighted in endorsement of the challenge to the impugned judgment and order. The
decisions of this Court in Dhanwanti Joshi vs. Madhav Unde2, Sarita Sharma vs. Sushil Sharma3
and Surya Vadanan1 have been adverted to in consolidation of the above arguments.

17. In his contrasting response, the learned counsel for the respondent, while edifying the
sanctified status of a mother and her revered role qua her child in its all round development,
urged with reference to the factual background in which the child had been removed from his
native country, that his continuing custody with the appellant is patently illegal and unauthorized
besides being ruthless and (1998) 1 SCC 112 (2000) 3 SCC 14 inconsiderate vis-à-vis the
respondent-mother and his younger sibling. Heavily relying on the determination of this Court in
Surya Vadanan1, the learned counsel has insisted that the High Court had rightly invoked the
principle of comity of courts and the doctrines of “intimate contact” and “closest concern” and
therefore, no interference is called for in the ultimate interest and well-being of the child. It was
urged that the orders passed by the court in U.S. directing the return of the child to the custody of
the respondent and the Commonwealth of Virginia is perfectly legal and valid, the same having
been rendered after affording due opportunity to the appellant and also on an adequate
appreciation of the aspects bearing on the welfare of the child. The orders thus being binding on
the appellant, the defiance thereof is inexcusable in law and only displays a conduct unbecoming
of a father to justify retention of the custody of the child in disobedience of the process of law.
The High Court as well on a due consideration of the facts and the law involved had issued its
writ for return of the custody of the child to the respondent after affording a full-fledged hearing
to both the parties for which no interference is warranted, he urged. The learned counsel however
denied that there was ever any agreement or understanding between the couple, under which they
agreed that each parent would have the custody of one child as represented by the appellant. In
the case in hand as a final order has been passed by the court in U.S. with regard to the custody
of the child in favour of the respondent after discussing all relevant aspects, the impugned order
of the High Court being in conformance with the letter and spirit thereof, no interference is
merited, he urged. While placing heavy reliance on the decision of this Court in Surya Vadanan1
, it was also insisted that the return of the elder child to the custody of the mother was
indispensably essential also for the proper growth and grooming of the younger child in his
company and association, sharing the common bond of love, affection and concern.

18. The recorded facts and the contentious assertions have received our due attention. A brief
recapitulation of the state of law on the issue at the outset is the desideratum.

19. A three Judge Bench of this Court in Nithya Anand Raghavan vs. State (NCT of Delhi) and
another 4 did have the occasion to exhaustively revisit the legal postulations qua the repatriation
of a minor child removed by one of the parents from the custody of the other parent from a
foreign country to India and its retention in the face of an order of a competent foreign court
directing its return to the place of abode from which it had been displaced. The appeal before
(2017) 8 SCC 454 this Court arose from a decision of the High Court in a Writ Petition filed by
the father alleging that the minor daughter of the parties had been illegally removed from his
custody in United Kingdom (for short, hereafter referred to as “UK”), thus seeking a writ of
habeas corpus for her production. By the verdict impugned, the High Court directed the
appellant-mother therein to produce the minor child and to comply with an earlier order passed
by the High Court of Justice, Family Division, Principal Registry, United Kingdom within three
453
weeks or in the alternative to handover the custody of the daughter to the respondent-father
therein within that time. The proceeding in which the Court in the UK had passed the order dated
08.01.2016 had been initiated by the respondent/father after the appellant/mother had returned to
India with the minor.

20. A brief outline of the factual details, would assist better the comprehension of the issues
addressed therein. The parties to start with, were Indian citizens and were married as per the
Hindu rites and customs on 30.11.2006 which was registered before the SDM Court, Chennai,
whereafter on the completion of the traditional formalities, they shifted to U.K. in early 2007 and
set up their matrimonial home in Watford (U.K.). Differences surfaced between them so much so
that as alleged by the wife, she was subjected to physical and mental abuse. She having
conceived in and around December, 2008, left U.K. for Delhi in June, 2009 to be with her
parents and eventually was blessed with a girl child, Nethra in Delhi. The husband soon joined
the mother and the child in Delhi whereafter, they together left for U.K. in March, 2010.
Skipping over the intervening developments, suffice it to state that the mother with the child who
had meanwhile been back on a visit to India, returned to London in December, 2011, whereafter
the minor was admitted in a Nursery School in U.K. in January, 2012. In December, 2012, the
daughter was granted citizenship of U.K. and subsequent thereto, the husband also acquired the
same. Meanwhile from late 2014 till early 2015, the daughter was taken ill and was diagnosed to
be suffering from cardiac disorder for which she was required to undergo periodical medical
reviews. As imputed by the wife, the father however, dis-played total indifference to the
daughter’s health condition. Finally on 02.07.2015, the appellant-mother returned to India along
with the daughter because of alleged violent behavior of the respondent and also informed the
school that the ward would not be returning to U.K. for her well-being and safety.

The appellant thereafter filed a complaint on 16.12.2015 against the respondent with the Crime
Against Women Cell, New Delhi, which issued notice to the respondent and his parents to
appear before it. According to the appellant, neither the respondent nor his parents did respond to
the said notice and instead as a counter-blast, he filed a custody/wardship petition on 08.01.2006
before the High Court of Justice, Family Division, U.K. praying for the restoration of his
daughter to the jurisdiction of that Court. The Court in U.K. on 08.01.2016 passed an ex-parte
order inter alia directing the appellant to return the daughter to U.K. and to attend the hearing of
the proceedings. Within a fortnight therefrom, the respondent also filed a writ petition before the
High Court of Delhi against the appellant-wife seeking a writ of habeas corpus for production of
the minor before the Court. By the impugned Judgment and Order, the High Court directed the
appellant to produce the daughter and comply with the orders passed by the U.K. Court or hand
over the minor to the respondent-father within three weeks therefrom.

Assailing this determination, it was urged on behalf of the appellant inter alia that the High Court
had wrongly assigned emphasis on the principle of comity of courts in complete disregard of the
paramount interest and welfare of the child, more particularly in view of the vicious environment
at her matrimonial home in U.K. in which she (appellant) had been subjected to physical and
verbal abuse and had even placed the child at risk with his behaviour. The fact that India not
being a signatory to the Hague Convention intended to prevent parents from abducting children
across the borders, the principle of comity of courts did not merit precedence over the welfare of
the child, an aspect overlooked by the High Court, was underlined. It was asserted that the
impugned order did also disregard the parens patriae jurisdiction of the Indian court within
whose jurisdiction the child was located as well as the welfare of the child in question in
mechanically applying the principle of comity of courts. That though the welfare of the child in
situations of the like as well, is of paramount consideration, this Court in Shilpa Aggarwal vs.
454
Aviral Mittal and another5 and in Surya Vadanan1 had deviated from this governing precept and
had directed the child and mother to return to the jurisdiction of the foreign court by mis-
interpreting the concept of ‘intimate contact’ of the child with the place of repatriation, was
highlighted for reconsideration of the views expressed therein. It was urged that the decision in
Surya Vadanan1 had a chilling effect of assigning dominance to the principle of comity of courts
over the welfare of a child, which mentionably undermined the perspective of the child, thus
encouraging multiplicity of proceedings It was insistingly canvassed that the view adopted in
Surya Vadanan1 was in direct conflict with an earlier binding decision in V. Ravi Chandran (Dr.)
vs. Union of India and others6 in which a three-Judge Bench had categorically held that under no
circumstance (2010)1 SCC 591 (2010) 1 SCC 174 can the principle of welfare of the child be
eroded and that a child can seek refuge under the parens patriae jurisdiction of the Court. While
dismissing the initiative of the respondent before the UK Court to be one in retaliation of the
appellant’s allegation of abuse and violence and noticeably after she had filed a complaint with
the Crime Against Women Cell (CAWC), New Delhi, it was also urged that the U.K. Court had
passed ex parte order without affording any opportunity to her to present her case. It was
canvassed further that the writ petition filed by the respondent seeking a writ of habeas corpus
which is envisaged for urgent and immediate relief was also a designed stratagem of his
bordering on the abuse of the process of the court and thus ought to have been discouraged by
the High Court. It was underlined as well that the High Court in passing the impugned direction
had also overlooked that the respondent had defaulted in the discharge of his parental duty
towards the child, who was suffering from serious health problems, thus compromising in all
respects the supervening consideration of overall well-being of the child.

In refutation, it was maintained on behalf of the respondent that the child was a British citizen
and brought up in U.K. and as he had acquired its citizenship and the appellant was also a
permanent resident of U.K., they had the abiding intention to permanently settle there along with
the child and thus the U.K. Court had the closest concern and intimate contact with the child as
regards her welfare and custody and thus indubitably had the jurisdiction in the matter. It was
urged on behalf of the respondent by referring amongst others to the rendering in Surya
Vadanan1 that the child had clearly adapted to the social and cultural milieu of U.K. and thus it
was in its best interest to be rehabilitated there. That there was no material to suggest that the
return of the child to U.K. would result in psychological, physical or cultural harm to her or that
the U.K. Court was incompetent to take a decision in the interest and welfare of the child, was
underlined. It was insisted as well that there was no compelling reason for the High Court to
ignore the principle of comity of courts and that as acknowledged by the High Court, better
medical facilities were available in U.K. to treat the child. The steps taken by the respondent
towards the child’s boarding and travelling expenses together with the expenditure incurrable for
the school and other incidental aspects and his undertaking not to pursue any criminal proceeding
against the appellant for kidnapping the child with the avowed desire of reinstating his home was
highlighted to demonstrate his bona fides. That there was no delay on the part of the respondent
in filing the writ petition, which he did immediately after coming to learn that the appellant was
disinclined to return the child to U.K., was stressed upon as well.

In this disputatious orientation, this Court premised its adjudication on the necessity to comply
with the direction issued by the foreign court against the appellant to produce the minor child
before the U.K. Court where the issue regarding wardship was pending for consideration and
also to ascertain as to which Court could adjudicate the same.

While recalling that the concept of forum convenience has no place is wardship jurisdiction, this
Court at the outset dwelt upon the efficacy of the principle of comity of courts as applicable to
455
India in respect of child custody matters and for that purpose, exhaustively traversed the relevant
decisions on the issue. It referred to the verdict in Dhanwanti Joshi2, which recorded the
enunciation of the Privy Council in Mark T. Mckee vs. Evelyn Mckee7, which in essence
underlined the paramountcy of the consideration of welfare and happiness of the infant to be of
decisive bearing in the matter of deciding its custody with the observation that comity of courts
demanded not its enforcement but its grave consideration. In that case, a decree of divorce was
passed in USA and custody of the child was given to the father and later varied in favour of the
mother. At that stage, the father took away the child to Canada, whereafter in the habeas corpus
proceedings by the mother, though initially the (1951) AC 352 (PC) decisions of the lower courts
went against her, the Supreme Court of Canada gave her custody and the said Court held that the
father could not have the question of custody retried in Canada once the question was
adjudicated in favour of the mother in the U.S.A. earlier. The above observation was made by the
Privy Council on appeal to it which held that in the proceedings relating to the custody before the
Canadian Court, the welfare and happiness of the infant was of paramount consideration and the
order of a foreign court in USA as to the custody can be given due weight in the circumstances
of the case but such an order of a foreign court was only one of the factors which must be taken
into consideration. The duty of the Canadian Court to form any independent judgment on the
merits of the matter with regard to the welfare of the child was emphasized. It recorded as well
that this view was sustained in L (minors) (Wardship: Jurisdiction), In. re8, which reiterated that
the limited question which arose in the latter decisions was whether the court in the country in
which the child was removed could conduct (a) summary enquiry or (b) an elaborate enquiry in
the question of custody. It was explicated that in case of (a) a summary enquiry, the court would
return custody to the country from which the child was removed unless such return could be
shown to be harmful to the child and in case of (b) an elaborate (1974) 1 WLR 250 (CA)
enquiry, the court could go into the merits to determine as to where the permanent welfare lay
and ignore the order of the Foreign Court or treat the fact of removal of the child from another
country as only one of the circumstances and the crucial question as to whether the court (in the
country to which the child is removed) would exercise the summary or elaborate procedure is to
be determined according to the child's welfare. It was indicated that the summary jurisdiction to
return the child is invoked, for example, if the child had been removed from its native land to
another country where, may be, his native language is not spoken, or the child gets divorced
from the social customs and contacts to which he has been accustomed, or its education in his
native land is interrupted and the child is being subjected to a foreign system of education, for
these are all acts which could psychologically disturb the child. It was mentioned as well that the
summary jurisdiction is exercised only if the court to which the child has been removed is moved
promptly and quickly, for in that event, the Judge may be well persuaded that it will be better for
the child that those facets be investigated in the court in his native country on the expectation
that an early decision in the native country could be in the interest of the child before it would
develop roots in the country to which he had been removed. It was expounded in the alternative,
that the Court might as well think of conducting an elaborate enquiry on merits and have regard
to the other facts of the case and the time that has elapsed after the removal of the child and
consider, if it would be in the interest of the child not to have it returned from the country to
which it had been removed, so much so that in such an eventuality, the unauthorized removal of
the child from the native country would not come in the way of the court in the country to which
the child has been removed, to ignore the removal and independently consider whether the
sending back of the child to its native country would be in the paramount interest of the child.

This Court recalled its mandate in Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr.9, directing
the father of the child therein, who had removed it from USA contrary to the custody orders of
U.S. Court, to repatriate it to USA to the mother not only because of the principle of comity but
456
also because on facts, which on independent consideration merited such restoration of the child
to its native State, in its interest. The following observations in Dhanwanti Joshi2 qua the state of
law vis-a-vis the countries who are not the signatories of the Hague Convention are of
formidable significance and as noticed in Nithya Anand Raghavan4 , are extracted hereinbelow:

“33. So far as non-Convention countries are concerned, or where the removal related to a period
before adopting the Convention, the law is that the court in the country to which the child is
removed (1987) 1 SCC 42 will consider the question on merits bearing the welfare of the child as
of paramount importance and consider the order of the foreign court as only a factor to be taken
into consideration as stated in McKee v. McKee unless the Court thinks it fit to exercise
summary jurisdiction in the interests of the child and its prompt return is for its welfare, as
explained in Re [L. (Minors) (Wardship : Jurisdiction). As recently as 1996-1997, it has been
held in P. (A minor) (Child Abduction: Non-Convention Country), Re: by Ward , L.J. [1996
Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a child who
has been abducted from his or her country of habitual residence—which was not a party to the
Hague Convention, 1980—the courts' overriding consideration must be the child's welfare. There
is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by
ordering the child's return unless a grave risk of harm was established. See also A. (A Minor)
(Abduction: Non-Convention Country) [Re, The Times, 3-7-1997 by Ward, L.J. (CA) (quoted in
Current Law, August 1997, p. 13].

This answers the contention relating to removal of the child from USA.” Here again the court in
the country to which the child is removed was required to consider the question on merits
bearing on its welfare as of paramount significance and take note of the order of the foreign court
as only a factor to be taken into consideration as propounded in Mckee7, unless the court thought
it fit to exercise the summary jurisdiction of the child and its prompt return to its native country
for its welfare. In elaboration of the above exposition, this Court in Nithya Anand Raghavan4
propounded thus:

“40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on
“Civil Aspects of International Child Abduction”. As regards the non-Convention countries, the
law is that the court in the country to which the child has been removed must consider the
question on merits bearing the welfare of the child as of paramount importance and reckon the
order of the foreign court as only a factor to be taken into consideration, unless the court thinks it
fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its
welfare. In exercise of summary jurisdiction, the court must be satisfied and of the opinion that
the proceeding instituted before it was in close proximity and filed promptly after the child was
removed from his/her native state and brought within its territorial jurisdiction, the child has not
gained roots here and further that it will be in the child's welfare to return to his native state
because of the difference in language spoken or social customs and contacts to which he/she has
been accustomed or such other tangible reasons. In such a case the court need not resort to an
elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to
the foreign court by directing return of the child. Be it noted that in exceptional cases the court
can still refuse to issue direction to return the child to the native state and more particularly in

457
spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the child's
return may expose him to a grave risk of harm.

This means that the courts in India, within whose jurisdiction the minor has been brought must
“ordinarily” consider the question on merits, bearing in mind the welfare of the child as of
paramount importance whilst reckoning the pre-existing order of the foreign court if any as only
one of the factors and not get fixated therewith. In either situation—be it a summary inquiry or
an elaborate inquiry—the welfare of the child is of paramount consideration. Thus, while
examining the issue the courts in India are free to decline the relief of return of the child brought
within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it
would expose the child to physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its return. We are in respectful
agreement with the aforementioned exposition.” The above excerpt would in no uncertain terms
underscore the predication that the courts in India, within whose jurisdiction the minor has been
brought “ordinarily” while examining the question on merits, would bear in mind the welfare of
the child as of paramount and predominant importance while noting the preexisting order of the
foreign court, if any, as only one of the factors and not get fixated therewith and that in either
situation, be it a summary enquiry or elaborate enquiry, the welfare of the child is of preeminent
and preponderant consideration, so much so that in undertaking this exercise, the courts in India
are free to decline the relief of repatriation of the child brought within its jurisdiction, if it is
satisfied that it had settled in its new environment or that it would be exposed thereby to physical
harm or otherwise, if it is placed in an intolerable or unbearable situation or environment or if the
child in a given case, if matured, objects to its return.

Sustenance of this view was sought to be drawn from the verdict of another three-Judge Bench of
this Court in V. Ravichandran6, as expressed in paragraphs 27 to 30 in the following terms:

“27. … However, in view of the fact that the child had lived with his mother in India for nearly
twelve years, this Court held that it would not exercise a summary jurisdiction to return the child
to the United States of America on the ground that its removal from USA in 1984 was contrary
to the orders of US courts. It was also held that whenever a question arises before a court
pertaining to the custody of a minor child, the matter is to be decided not on considerations of the
legal rights of the parties but on the sole and predominant criterion of what would best serve the
interest of the minor.” (emphasis supplied) Again in paras 29 and 30, the three-Judge Bench
observed thus: (SCC pp. 195-96) “29. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention of the orders of the court where the
parties had set up their matrimonial home, the court in the country to which the child has been
removed must first consider the question whether the court could conduct an elaborate enquiry
on the question of custody or by dealing with the matter summarily order a parent to return
custody of the child to the country from which the child was removed and all aspects relating to
the child's welfare be investigated in a court in his own country. Should the court take a view that
an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and
happiness of the child as the paramount consideration and go into all relevant aspects of welfare
of the child including stability and security, loving and understanding care and guidance and full
development of the child's character, personality and talents. While doing so, the order of a
foreign court as to his custody may be given due weight; the weight and persuasive effect of a
foreign judgment must depend on the circumstances of each case.
458
30. However, in a case where the court decides to exercise its jurisdiction summarily to return
the child to his own country, keeping in view the jurisdiction of the court in the native country
which has the closest concern and the most intimate contact with the issues arising in the case,
the court may leave the aspects relating to the welfare of the child to be investigated by the court
in his own native country as that could be in the best interests of the child. The indication given
in McKee v. McKee that there may be cases in which it is proper for a court in one jurisdiction to
make an order directing that a child be returned to a foreign jurisdiction without investigating the
merits of the dispute relating to the care of the child on the ground that such an order is in the
best interests of the child has been explained in L. (Minors), In re [L. (Minors) (Wardship :
Jurisdiction), (1974) 1 WLR 250 (CA)] and the said view has been approved by this Court in
Dhanwanti Joshi [Dhanwanti Joshi. Similar view taken by the Court of Appeal in H. (Infants)
(1966) 1 WLR 381 has been approved by this Court in Elizabeth Dinshaw.” (emphasis supplied)
The quintessence of the legal exposition on the issue was succinctly synopsised in the following
terms:

“42. The consistent view of this Court is that if the child has been brought within India, the
courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of
custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to
the country from where he/she was removed unless such return is shown to be harmful to the
child. In other words, even in the matter of a summary inquiry, it is open to the court to decline
the relief of return of the child to the country from where he/she was removed irrespective of a
pre-existing order of return of the child by a foreign court. In an elaborate inquiry, the court is
obliged to examine the merits as to where the paramount interests and welfare of the child lay
and reckon the fact of a pre-existing order of the foreign court for return of the child as only one
of the circumstances. In either case, the crucial question to be considered by the court (in the
country to which the child is removed) is to answer the issue according to the child's welfare.
That has to be done bearing in mind the totality of facts and circumstances of each case
independently. Even on close scrutiny of the several decisions pressed before us, we do not find
any contra view in this behalf. To put it differently, the principle of comity of courts cannot be
given primacy or more weightage for deciding the matter of custody or for return of the child to
the native State.”

21. Thus the state of law as approved in Nithya Anand Raghavan4 is that if a child is brought
from a foreign country, being its native country to India, the court in India may conduct (a)
summary enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case
of a summary enquiry, the court may deem it fit to order the return of the child to the country
from where he/she has been removed unless such return is shown to be harmful to the child.
Axiomatically thus, even in case of a summary enquiry, it is open to the court to decline the
relief of return of the child to the country from where he/she has been removed irrespective of a
pre-existing order of return of a child by a foreign court, in case it transpires that its repatriation
would be harmful to it. On the other hand, in an elaborate enquiry, the court is obligated to
examine the merits as to where the paramount interest and welfare of the child lay and take note
of the pre-existing order of the foreign court for the return of the child as only one of the
circumstances. As a corollary, in both the eventualities whether the enquiry is summary or
elaborate, the court would be guided by the pre-dominant consideration of welfare of the child
assuredly on an overall consideration on all attendant facts and circumstances. In other words,

459
the principle of comity of courts is not to be accorded a yielding primacy or dominance over the
welfare and well-being of the child which unmistakeably is of paramount and decisive bearing.

22. This Court in Nithya Anand Raghavan4 also had to examine as to whether a writ of habeas
corpus was available to the father qua the child which was in the custody of the mother, more
particularly in the face of ex-parte order of the court in U.K. against her and directing her for its
return to its native country by declaring it to remain as a ward of that court during its minority or
until further orders. This Court noted that this order had remained not only unchallenged by the
appellant mother but also no application had been made by her before the foreign court for its
modification. This Court however was firstly of the view that this order per se did not declare the
custody of the minor with the appellant mother to be unlawful or that till it returned to England,
its custody with the mother had become or would be treated as unlawful inter alia for the
purposes of considering a petition for issuance of writ of Hebeas Corpus. In this regard, the
decision of this Court, amongst others in Syed Saleemuddin vs. Dr. Rukhsana & Ors.10, was
adverted to, wherein it had been proclaimed that the principal duty of the court moved for the
issuance of writ of habeas corpus in relation to the custody of a minor child is to ascertain
whether such custody is unlawful or illegal and whether the welfare of the child requires, that his
present custody should be changed and the child ought to be handed over to the care and custody
of any (2001) 5 SCC 247 person. It was once again emphasized that while doing so, the
paramount consideration must be, the welfare of the child.

The observation in Elizabeth Dinshaw9 that in such matters, the custody must be decided not by
reference to the legal rights of the parties but on the sole and predominant criterion as to what
would best serve the interest and welfare of the minor and that to that extent, the High Court
would exercise its parens patriae jurisdiction, as the minor is within its jurisdiction was
reminisced. In the facts of the case also, noting the supervening fact that the appellant was the
biological mother and natural guardian of the minor child, the remedy of writ of habeas corpus
invoked for enforcement of the directions of the foreign court was declined, however leaving the
respondent/father to take recourse to such other remedy as would be available in law for the
enforcement of the order passed by the foreign court for securing the custody of the child. It was
held that the appellant being the biological mother and natural guardian of the child, it could be
presumed that its custody with her was lawful.

23. This Court in Nithya Anand Raghavan4 next turned to the contextual facts to record that the
parents of the child were of Indian origin and that the minor was an Indian citizen by birth as she
was born in Delhi and that she had not given up her Indian citizenship though she was granted
UK citizenship subsequent thereto. That the child was admitted to a primary school in UK in
September 2013 and that she had studied there in July 2015 was noted. It was mentioned as well
that till she accompanied her mother on 02.07.2015 to India, no proceeding of any kind had been
filed in the UK Court, either in relation to any matrimonial dispute between the parents or for her
custody. In India, the child had been living with her grand-parents and other family members and
relations unlike in U.K., where she lived in a nuclear family of three with no other relatives. That
she had been studying in India for last over one year and had spent equal time in both the
countries up to the first six years of her life was taken note of as well. This Court also expressed
that the child would be more comfortable and secured to live with her mother here in India, who
can provide her with motherly love, care, guidance and the required upbringing for her desired
grooming of personality, character and faculties. That being a girl child, the custody, company
and guardianship of the mother was of utmost significance was felt. It was also recorded that
being a girl child of the age of about seven years, she ought to be ideally in the company of her
mother in absence of circumstances that such association would be harmful to her. That there
460
was no restraint order passed by any court or authority in U.K. before the child had travelled
with her mother to India was accounted for as well. This Court noticed most importantly, that the
child was suffering from cardiac disorder, which warranted periodical medical reviews and
appropriate care and attention, which it felt could be provided only by the mother as the
respondent/father being employed would not be in a position to extend complete and full
attention to his daughter. That the appellant/mother had neither any intention to return to UK nor
according to her if the child returns to UK, she would be able to secure the desired access to her
to the child to provide care and attention was noted in express terms. On an evaluation of the
overall facts and circumstances, this Court thus was of the unhesitant opinion that it would be in
the interest of the child to remain in the custody of her mother and that her return to UK would
prove harmful to her. While concluding thus, it was stated that this arrangement notwithstanding
the appellant/mother ought to participate in the proceedings before the UK Court so long as it
had the jurisdiction to adjudicate the matter before it. It was observed as well that, as the scrutiny
involved with regard to the custody had arisen from a writ petition filed by the respondent/father
for issuance of writ of a habeas corpus and not to decide the issue of grant or otherwise of the
custody of the minor, all relevant aspects would have to be considered on their own merit in case
a substantive proceeding for custody is made before any court of competent jurisdiction,
including in India, independent of any observation made in the judgment.

To complete the narrative, the analysis of the other relevant pronouncements rendered on the
issue would be adverted to in seriatim. In V. Ravi Chandran6, a writ of habeas corpus for
production of minor son from the custody of his mother was sought for by his father. The child
was born in US and was an American citizen and was about eight years of age when he was
removed by the mother from U.S., in spite of her consent order on the issue of custody and
guardianship of the minor passed by the competent U.S. Court. The minor was given in the joint
custody to the parents and a restraint order was operating against the mother when it was
removed from USA to India. Prior to his removal, the minor had spent few years in U.S.. All
these factors weighed against the mother as is discernible from the decision, whereupon this
Court elected to exercise the summary jurisdiction in the interest of the child, whereupon the
mother was directed to return the child to USA within a stipulated time.

24. In Shilpa Aggarwal5, the minor girl child involved was born in England having British
citizenship and was only 3½ years of age at the relevant time. The parents had also acquired the
status of permanent residents of U.K. In the facts and circumstances of the case, this Court
expressed its satisfaction that in the interest of the minor child, it would be proper to return her to
U.K. by applying the principle of comity of courts. The Court was also of the opinion that the
issue regarding custody of the child should be decided by the foreign court from whose
jurisdiction the child was removed and brought to India. A summary enquiry was resorted to in
the facts of the case.

25. In Arathi Bandi vs. Bandi Jagadrakshaka Rao and others11 the minor involved was a male
child who was born in USA and had acquired the citizenship of that country by birth. The child
was removed from USA by the mother in spite of a restraint order and a red corner notice
operating against her had been issued by a court of competent jurisdiction in USA. This Court
therefore held that the facts involved were identical to those in V. Ravi Chandran6 and further
noticed that the mother of the child also had expressed her intention to return to USA and live
with her husband though the latter was not prepared to cohabit with her.

26. In Surya Vadanan1, the two minor girls aged 10 years 6 years respectively were British
citizens by birth. Following intense matrimonial discords, the mother had left UK and had come
461
to India with her two daughters. She also instituted a proceeding in the Family Court at
Coimbatore seeking dissolution of marriage. The husband, finding the wife to be unrelenting and
disinclined to return to U.K.

(2013) 15 SCC 790 with her daughters, petitioned the High Court of Justice in U.K. for making
the children as the wards of the Court, which passed an order granting the prayer and required
the mother to return the children to its jurisdiction. This order was passed even before any formal
order could be passed on the petition filed by the wife seeking divorce. This order was followed
by another order of the U.K. Court giving peremptory direction to the wife to produce the two
daughters before the U.K. Court and was supplemented by a penal notice to her. It was thereafter
that the husband moved the Madras High Court for a writ of habeas corpus on the ground that the
wife had illegal custody of the two daughters. On the following considerations as extracted
hereinbelow, relief as prayed for by the husband was granted:

“56. However, if there is a pre-existing order of a foreign court of competent jurisdiction and the
domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must
have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course.
While deciding whether a summary or an elaborate inquiry should be conducted, the domestic
court must take into consideration:

(a) The nature and effect of the interim or interlocutory order passed by the foreign court.

(b) The existence of special reasons for repatriating or not repatriating the child to the
jurisdiction of the foreign court.

(c) The repatriation of the child does not cause any moral or physical or social or cultural or
psychological harm to the child, nor should it cause any legal harm to the parent with whom the
child is in India. There are instances where the order of the foreign court may result in the arrest
of the parent on his or her return to the foreign country. In such cases, the domestic court is also
obliged to ensure the physical safety of the parent.

(d) The alacrity with which the parent moves the foreign court concerned or the domestic court
concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable
and the child has developed firm roots in India, the domestic court may be well advised to
conduct an elaborate inquiry.”

27. Vis-à-vis the renditions in V. Ravi Chandran6, Shilpa Aggarwal5 and Arathi Bandi11, this
Court in Nithya Anand Raghavan4 distinguished the facts involved therein from the one under its
scrutiny. While underlining that the considerations which impelled the court to adopt its
summary approach/jurisdiction in directing the return of the child to its native country, did not in
any way discount or undermine the predominant criterion of welfare and interest of the child
even to outweigh neuter or offset the principle of comity of courts, it disapproved the primacy
sought to be accorded to the order of the foreign court on the issue of custody of minor in Surya
Vadanan1 though negated earlier in Dhanwanti Joshi2 and reiterated that whether it was a case
of summary enquiry or an elaborate enquiry, the paramount consideration was the interest and
welfare of the child so much so that the preexisting order of a foreign court could be taken note
of only as one of the factors. The alacrity or the expedition with which the applicant/parent
462
moves the foreign court or the domestic court concerned, for custody as a relevant factor was
also not accepted to be of any definitive bearing. This notion of “first strike principle” was not
subscribed to and further the extrapolation of that principle to the courts in India as predicated in
Surya Vadanan1 was also held to be in-apposite by adverting inter alia to Section 14 of the
Guardians and Wards Act, 1890 and Section 10 of the Civil Procedure Code.

28. The following passage from Nithya Anand Raghavan4 discarding the invocation of “first
strike” principle as a definitive factor in furtherance of the applicability of the principle of
comity of courts is quoted as hereunder:

“66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine
and whittle down the wholesome principle of the duty of the court having jurisdiction to consider
the best interests and welfare of the child, which is of paramount importance. If the Court is
convinced in that regard, the fact that there is already an order passed by a foreign court in
existence may not be so significant as it must yield to the welfare of the child. That is only one of
the factors to be taken into consideration.

The interests and welfare of the child are of paramount consideration. The principle of comity of
courts as observed in Dhanwanti Joshi case in relation to non-Convention countries is that the
court in the country to which the child is removed will consider the question on merits bearing
the welfare of the child as of paramount importance and consider the order of the foreign court as
only a factor to be taken into consideration. While considering that aspect, the court may reckon
the fact that the child was abducted from his or her country of habitual residence but the court's
overriding consideration must be the child's welfare.” In conclusion, qua the decisions relied
upon by the respondent-father, the facts contained therein were held to be distinguishable and it
was observed that though the factual backdrop as obtained therein necessitated the court to issue
direction to return the child to the native State, it did not follow that in deserving cases, the
Courts in India were denuded of their powers to decline the relief to relocate the child to the
native State merely because of a pre-existing order of foreign court of competent jurisdiction.
The law laid down in Dhanwanti Joshi2 and approved by a three Judge Bench of this Court in V.
Ravi Chandran6 was enounced to be the good law, thus reiterating that so far as non-convention
countries are concerned, the court in the country in which the child is removed while examining
the issue of its repatriation to its native country, would essentially bear in mind that the welfare
of the child was of paramount importance and that the existing order of foreign court was only a
factor to be taken note of. It was reiterated that the summary jurisdiction to return the child could
be exercised in cases where the child had been removed from his native land to another country
where his native language is not spoken or the child gets divorced from social customs and
contacts to which he is accustomed or if his education in his native land is interrupted and the
child is subjected to foreign system of education, thus adversely impacting upon his
psychological state and overall process of growth. Though a prompt and expeditious move on the
part of the applicant parent for the repatriation of the child in a court in the country to which it
had been removed may be a relevant factor, the overwhelming and determinative consideration
unfailingly has to be in the interest and welfare of the child. It was observed that in the facts of
the case, the minor child after attaining majority would be free to exercise her choice to go to
U.K and stay with her father but till that eventuality, she should stay in the custody of mother
unless the court of competent jurisdiction trying the issue of custody of the child did order to the
contrary. Visitation right to the respondent-father however was granted and directions were
issued so as to facilitate the participation of the appellant- mother in the pending proceedings
463
before the U.K. Court, inter alia by requiring the respondent-husband to bear the necessary costs
to meet the expenditure towards all relevant aspects related thereto. The impugned judgment of
the High Court issuing the writ of habeas corpus in favour of the respondent-husband was thus
set aside.

29. The dialectics and determinations in Nithya Anand Raghavan4 have been alluded to in
pervasive details as the adjudication therein by a Bench of larger coram has forensically analyzed
all the comprehensible facets of the issue, to which we deferentially subscribe.

30. The decisions cited at the Bar and heretofore, traversed present fact situations with fringe
variations, the common and core issue being the justifiability or otherwise factually and/or
legally, of the relocation of a child removed from its native country to India on the basis of the
principle of comity of courts and doctrines of “intimate contact” and “closest concern”.

31. The following observations in Ruchi Majoo vs. Sanjeev Majoo12 bearing on the parens
patriae jurisdiction of Indian courts in cases involving custody of minor children are apt as well:

“Recognition of decrees and orders passed by foreign courts remains an eternal dilemma
inasmuch as whenever called upon to do so, courts in this country are bound to determine the
validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of
Civil Procedure, 1908, as amended by the Amendment Acts of 1999 and 2002. The duty of a
court exercising its parens patriae jurisdiction as in cases involving custody of minor children is
all the more onerous. Welfare of the minor in such cases being the paramount consideration; the
court has to approach the issue regarding the validity and enforcement of a foreign decree or
order carefully. Simply because a foreign court has taken a particular view on any aspect
concerning the welfare of the minor is not enough for the courts in this country to shut out an
independent consideration of the matter. Objectivity and not abject surrender is the mantra in
such cases. That does not, however, mean that the order passed by a foreign court is not even a
factory to be kept in view. But it is one thing to consider the foreign judgment to be conclusive
and another to (2011) 6 SCC 479 treat it as a factor or consideration that would go into the
making of a final decision.”

32. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from
its native country is clearly founded on the predominant imperative of its overall well-being, the
principle of comity of courts, and the doctrines of “intimate contact and closest concern”
notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua
a foreign court from the territory of which a child is removed are factors which deserve notice in
deciding the issue of custody and repatriation of the child, it is no longer res integra that the ever
overriding determinant would be the welfare and interest of the child. In other words, the
invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant
facts and circumstances of each case, the ultimate live concern being the welfare of the child,
other factors being acknowledgeably subservient thereto. Though in the process of adjudication
of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate
restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her
initiative and the existing circumstances ex facie justify such course again in the overwhelming
exigency of the welfare of the child, such a course could be approvable in law, if an effortless
discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its
physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing
464
and irreparable detrimental and nihilistic attentuations. On the other hand, if the applicant/parent
is slack and there is a considerable time lag between the removal of the child from the native
country and the steps taken for its repatriation thereto, the court would prefer an elaborate
enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it
expectedly had grown roots in the country and its characteristic milieu, thus casting its influence
on the process of its grooming in its fold.

33. The doctrines of “intimate contact” and “closest concern” are of persuasive relevance, only
when the child is uprooted from its native country and taken to a place to encounter alien
environment, language, custom etc., with the portent of mutilative bearing on the process of its
overall growth and grooming.

34. It has been consistently held that there is no forum convenience in wardship jurisdiction and
the peremptory mandate that underlines the adjudicative mission is the obligation to secure the
unreserved welfare of the child as the paramount consideration.

35. Reverting to the present facts, the materials as available, do substantiate lingering dissensions
between the parties. They are living separately since 2014 with one child each in their company
and charge. The children are US citizens by birth. Noticeably, the child Aadvik, who is the
subject matter of the lis and custody was barely 2½ years old when he came over to India and
had stayed here since then. Today, he is a little over 5 years old. In other words, he has spent half
of his life at this age, in India. Considering his infant years of stay in US, we construe it to be too
little for the required integration of his with the social, physical, psychological, cultural and
academic environment of US to get totally upturned by his transition to this country, so much so
that unless he is immediately repatriated, his inherent potentials and faculties would suffer an
immeasurable set back. The respondent-mother also is not favourably disposed to return to India,
she being a working lady in US and is also disinclined to restore her matrimonial home. The
younger son is with her. There is no convincing material on record that the continuation of the
child in the company and custody of the appellant in India would be irreparably prejudicial to
him. The e-mails exchanged by the parties as have been placed on records do suggest that they
had been in touch since the child was brought to India and even after the first order dated
28.05.2015 was passed by the court in US. In the said e-mails, they have fondly and keenly
referred to both the sons staying in each other’s company, expressing concern about their illness
and general well-being as well. As has been claimed by the appellant, the child is growing in a
congenial environment in the loving company of his grand-parents and other relatives. He has
been admitted to a reputed school and contrary to the nuclear family environment in US, he is
exposed to a natural process of grooming in the association of his elders, friends, peers and
playmates, which is irrefutably indispensable for comprehensive and conducive development of
his mental and physical faculties. The issue with regard to the repatriation of a child, as the
precedential explications would authenticate has to be addressed not on a consideration of legal
rights of the parties but on the sole and preponderant criterion of the welfare of the minor. As
aforementioned, immediate restoration of the child is called for only on an unmistakable
discernment of the possibility of immediate and irremediable harm to it and not otherwise. As it
is, a child of tender years, with malleable and impressionable mind and delicate and vulnerable
physique would suffer serious set-back if subjected to frequent and unnecessary translocation in
its formative years. It is thus imperative that unless, the continuance of the child in the country to
which it has been removed, is unquestionably harmful, when judged on the touchstone of overall
perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the
environment and setting to which it had got adjusted for its well-being.

465
36. Noticeably, a proceeding by the appellant seeking custody of the child under the Guardian
and Wards Act, 1890 has been instituted, which is pending in the court of the Principal Judge,
Family Court, Rohini, Delhi. This we mention, as the present adjudication pertains to a challenge
to the determination made in a writ petition for habeas corpus and not one to decide on the
entitlement in law for the custody of the child.

37. In Nithya Anand Raghavan4 as well, this Court while maintaining the custody of the child in
favour of the mother in preference to the applicant-father had required the mother to participate
in the proceeding before the foreign court initiated by the respondent-father therein. It was
observed that the custody of the child would remain with the respondent-mother till it attained
majority, leaving it at liberty then to choose its parent to reside with. The arrangement approved
by this Court was also made subject to the decision with regard to its custody, if made by a
competent Court.

38. In the overwhelming facts and circumstances, we see no reason to take a different view or
course. In view of order dated 03.05.2016 of this Court, the child has remained in the custody of
the appellant-father. To reiterate, no material has been brought on record, persuasive and
convincing enough, to take a view that immediate restoration of the custody of the child to the
respondent-mother in the native country is obligatorily called for in its interest and welfare. The
High Court, as the impugned judgment and order would demonstrate, did not at all apply itself to
examine the facts and circumstances and the other materials on record bearing on the issue of
welfare of the child which are unmistakably of paramount significance and instead seems to have
been impelled by the principle of comity of courts and the doctrines of “intimate contact” and
“closest concern” de hors thereto. The appellant being the biological father of Aadvik, his
custody of the child can by no means in law be construed as illegal or unlawful drawing the
invocation of a superior Court’s jurisdiction to issue a writ in the nature of habeas corpus. We
are, in the textual facts and on an in-depth analysis of the attendant circumstances, thus of the
view that the dislodgment of the child as directed by the impugned decision would be harmful to
it. Having regard to the nature of the proceedings before the US Court, the intervening
developments thereafter and most importantly the prevailing state of affairs, we are of the
opinion that the child, till he attains majority, ought to continue in the custody, charge and care
of the appellant, subject to any order to the contrary, if passed by a court of competent
jurisdiction in an appropriate proceeding deciding the issue of its custody in accordance with
law. The High Court thus, in our estimate, erred in law and on facts in passing the impugned
verdict.

39. The impugned judgment and order is thus set aside. We however direct that the parties would
participate in the pending proceedings relating to the custody of the child, if the same is pursued
and the court below, before which the same is pending, would decide the same in accordance
with law expeditiously without being influenced in any way, by the observations and findings
recorded in this determination.

40. The appeal is thus allowed.

…...................................CJI.

[DIPAK MISRA ] ….....................................J [AMITAVA ROY ] NEW DELHI;

466
SUPREMECOURTOF INDIA
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 968/2017

PRATEEK GUPTA Appellant(s)

VERSUS

SHILPI GUPTA & ORS. Respondent(s)

Date : 06-12-2017 This appeal was called on for Judgment today.

For Appellant(s) Mr. Braj Nath Patel, Adv.

Ms. Sweta, Adv.
Ms. Romila, Adv.
Ms. Binu Tamta, AOR

For Respondent(s) Mr. N. S. Dalal, Adv.

Mr. D. P. Singh, Adv.
Mr. R. C. Kaushik, AOR

Hon'ble Mr. Justice Amitava Roy pronounced the reportable

Judgment of the Bench comprising Hon'ble The Chief Justice of India and His Lordship.

The appeal is allowed.

Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA) (RENU DIWAN)

COURT MASTER ASSISTANT REGISTRAR

(Signed reportable Judgment

467