RAMKUVAR MADANLAL ATALE Vs. MADANLAL SURAJKARAN ATALE

JUDGEMENT

(1.) This appeal has been referred to me under Section 98 of the Code of Civil Procedure on a difference of opinion between my brother Bhole and my brother Mukhi. The facts have been set out in detail by my brother Mukhi in his judgment and it is not necessary for me to set them out again. Suffice it to say that, on a petition filed by the respondent -husband for judicial separation on the ground, inter alia, of desertion under the Hindu Marriage Act, 1955, being Marriage Petition No. 5 of 1966, after evidence was taken, the parties presented a joint compromise purshis on September 5, 1966 in which it was stated that, in view of the evidence led before the Court, it appeared that the parties could not live together as husband and wife and there was, therefore, no objection from them to a decree for judicial separation being passed by the Court. It was, therefore, prayed in the purshis that a decree might be passed accordingly, and it was further stated that the parties were agreed that a sum of Rs. 60 per month should be paid by the husband by way of maintenance to the wife. On that purshis, the learned Judge recorded the fact that the parties admitted the settlement as per the said purshis which had been read out and fully explained to them, and then proceeded to state as follows: Decree in terms of this purshis and as per settlement recorded in the same and under judgment to follow. Later on, on the same day, the learned Judge proceeded to deliver a judgment in which, after referring to the pleadings in the usual way, he set out the issues, in which the second issue related to question of desertion for the statutory period. The learned Judge then set out the substance of the evidence given by the husband as well as the wife and then stated as1 follows: Even from the case which she has made out in her W.S. and also at the trial, it appears, that she would also be entitled for a decree for judicial separation on her own contentions and the petitioner has sought for the same relief. A good deal of effort was made, to see if there could be a reconciliation but all the efforts failed, and therefore, even on the evidence of the parties, it appears to me, that a decree for judicial separation between the parties would only be a proper solution, in the interest of the parties. I have therefore, answered issues Nos. 2 and 3 accordingly. In the next paragraph of his judgment the learned Judge proceeded to refer to the joint compromise purshis filed by the parties and stated as follows: Relying upon this joint purshis also, I have recorded my findings on issues Nos. 2 and 3.... He then passed a decree for desertion in favour of the husband and directed payment of alimony by him to his wife, at the agreed rate.

(2.) AFTER the expiry of the statutory period of two years provided in Section 13(1A)(i) of the Hindu Marriage Act, 1955, the husband thereafter presented, on September 11, 1968, a petition for divorce, being petition No. 118 of 1968, on the ground that there was no resumption of cohabitation between the parties for the statutory period after the passing of the decree for judicial separation on September 5, 1966. In her written statement, the wife contended that no decree for divorce could be passed because the decree for judicial separation had been passed on the basis of consent terms and was, therefore, illegal and not binding on her. The learned trial Judge held that the decree in Marriage Petition No. 5 of 1966 was not a compromise decree, and he, therefore granted the decree for divorce prayed for by the husband. On an appeal by the wife to the District Court at Poona, being Civil Appeal No. 982 of 1969, it was held that the decree for judicial separation in Marriage Petition No. 5 of 1966 was not unlawful and that the proper remedy for the respondent was to appeal from it, which she had not done, and the said appeal No. 982 of 1969 was, therefore, dismissed. The wife thereafter filed a Second Appeal to this Court, and it came up before my brother Bhasme who referred it to a Division Bench. That is how this appeal came up before my brothers Bhole and Mukhi who, after hearing the same, delivered differing judgments.

(3.) SECTION 10 of the said Act lays down the grounds on which a petition for judicial separation can be presented, and the very first ground is, desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. Section 13 lays down the grounds on which a petition for divorce may be presented, and Sub -section (1A) thereof enacts that a petition for divorce may be presented on the ground that there had been no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties. Section 21 of the said Act provides that, subject to the other provisions contained in the said Act, all proceedings thereunder are to be regulated, as far as may be, by the Code of Civil Procedure. Sub -section (1) of Section 23 of the Act is in the following terms: 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 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (f) of Sub -section (1) of Section 10, or in Clause (i) of Sub -section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and (c) the petition is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. Considering these statutory provisions, apart from the authority, it appears to me to be clear that only these provisions of the Code of Civil Procedure would be applicable which are not, in any manner, contrary to the provisions of the Hindu Marriage Act itself. In that view of the matter, in my opinion, even on a plain reading of Sections 21 and 23(1) it is clear that Order XXIII, Rule 3 of the Code of Civil Procedure which enjoins that the Court must pass decree in accordance with a compromise arrived at between the parties is not applicable to proceedings under the Hindu Marriage Act, 1955, by reason of the provisions of Section 23(1)(a) of the said Act which lay down in mandatory terms that before a Court can grant a decree under the said Act, it must be satisfied that one or other of the statutory grounds for granting relief exists in the case before it. It is only on the Court being so satisfied that it gets the jurisdiction to grant a decree under the said Act, and it cannot pass a decree 'otherwise' as the concluding portion of Section 23(1) clearly states. The word 'otherwise' which occurs there must naturally and necessarily comprise a decree by consent and the Court cannot, therefore, pass a consent decree unless it is itself satisfied that one or other of the grounds for granting the relief sought by the petitioner exists. I will now turn to the very recent decision of the Supreme Court to which I have referred above, and that is the decision in the case of Nagindas v. Dalpatram A.I.R [1974] 471. The facts of that case were that the appellant before the Supreme Court was a tenant of certain premises at Surat where, at the material time, Bombay Rents, etc. Act of 1947 was applicable. The landlords (respondents before the Supreme Court) served a notice on the tenant terminating his tenancy and also requiring him to pay arrears of rent, and thereafter filed a suit for possession against the tenant on the ground of non -payment of rent, as well as on the ground of bona fide requirement of the premises by the landlords for their own use. The parties thereafter arrived at a compromise under which the tenant was to hand over possession of the suit premises without objection to the landlords by the September 30, 1968, and was to pay a certain amount as and by way of mesne profits. After the expiry of that date, the landlords filed a petition to recover possession of the suit premises in execution of the decree. One of the objections raised by the tenant to the said petition was that, since the decree had been passed by the Court without satisfying itself as to the existence of a ground of eviction under the Bombay Rents Act, it was a nullity and was not executable. The executing Court upheld that contention of the tenant and held the decree to be void, but that order of the executing Court was set aside by the Extra Assistant Judge at Surat, on appeal, holding that there was ample material in the shape of admissions in the compromise itself from which the Court could be satisfied about the existence of both the statutory grounds for eviction alleged in the plaint. The tenant thereafter preferred a revision application to the High Court of Gujarat which was dismissed, in limine, and it was against that order of dismissal that the tenant came in appeal to the Supreme Court, by the special leave of that Court. After referring to the relevant provisions of the Bombay Rents Act, the Supreme Court, stated (para. 18) that construing the provisions of Sections 12, 13 and 28 of that Act in the light of the public policy which permeated the entire scheme and structure of the Act, there was no escape from the conclusion that the Rent Court under the said Act was not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which was de horn the Act. It further proceeded to lay down that the existence of one of the statutory grounds mentioned in Sections 12 and 13 was a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions, and the parties could not by their consent confer jurisdiction on the Rent, Court to do something which, according to the legislative mandate, it could not do. The Supreme Court further proceeded to state (para. 21) that the mere fact that Order XXIII. Rule 3 of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rents Act does not remove that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute, for even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. The Supreme Court observed that the lawfulness or otherwise of the agreements was to be judged, 'also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act.' The Supreme Court then laid down the law on the point in the following terms (para. 26, p. 476): From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. The Supreme Court further stated (para. 29) that in cases where an objection as to the non -excitability of the decree on the ground of its being a nullity is taken, the executing Court was not competent to go behind the decree, if the decree on the face of it, disclosed some material on the basis of which, the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction and that the executing Court could for that purpose look to the original record of the trial Court to ascertain whether there was any material furnishing a foundation for the trial Court's jurisdiction to pass the decree it did. It was observed in the judgment of the Supreme Court that all that it had to see was whether 'there was some material on the basis of which the Rent Court could have -as distinguished from must have -been satisfied as to the statutory ground for eviction.' The Supreme Court took the view that in the case before it there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under Section 12(3)(a), and the executing Court was not competent to go behind the decree and question its validity. The Supreme Court, therefore, dismissed the appeal before it.