APURBA Vs. MANASHI

JUDGEMENT

(1.) The appellant-husband petitioned against the wife-respondent in court below for dissolution of the marriage on the ground of her alleged mental disorder and the petition having been dismissed, the husband has preferred this appeal to this Court. But both the parties have now filed a joint-petition before us praying that the marriage between them may be dissolved by a decree of divorce on compromise on the terms and conditions contained therein. The question that has accordingly arisen for our consideration is whether such a course is permissible under the provisions of the Hindu Marriage Act, 1955.

(2.) Under S.21 of the Hindu Marriage Act, "all proceedings under this Act shall be regulated, as far as may be, by the Civil P.C.'', which would accordingly include O.23, R.3 of the Code, providing for compromise of suit. But as indicated in S.21 itself in its opening words, the Civil P.C. would apply ''subject to the other provisions contained in this Act", and as provided in R.3 of O.23 of the Code, the Rule would apply only when the Court is satisfied that the "agreement or compromise", on the basis of which the proceeding is sought to be decreed, is "lawful". We would accordingly have to ascertain as to whether the " agreement or compromise" in question is lawful and whether there is anything in the Hindu Marriage Act, express or implied, to outweigh the operation of R.3 of O.23 of the Civil P.C. to a proceeding under the Hindu Marriage Act.

(3.) Section 23 of the Hindu Marriage Act, providing for decree to be awarded thereunder, expressly provides that only when ''any of the grounds for granting relief exists", obviously meaning thereby any of the grounds specified in the Act, and the other relevant provisions in Cls.(a) to (e) are also satisfied, then only, "but not otherwise", the Court can decree the reliefs prayed for. The expression "but not otherwise" is weighty enough to indicate with unmistakable clarity that a decree can be granted by the Court only when any of the statutory grounds mentioned in the Act for the grant of relief is found to exist and not merely on the grounds that the parties have agreed to the grant of such a decree. If a special statute governs the grant of relief therein and affirmatively provides that decrees for such reliefs can be granted on those grounds and also negatively provides that decrees can be granted not otherwise, i.e., on no other grounds, then the decree on any ground not provided in the statute would not only be illegal but may amount to a nullity. This is the process of reasoning on which the Supreme Court has held, in a long catena of decisions since 1970 under the Rent Control Acts, that when such Act provides that no decree for eviction can be passed except on one or more of the grounds mentioned therein, a decree passed solely on the basis of compromise without the Court's satisfaction as to the existence of any of such grounds is a nullity. Reference may be made to the decision of the Supreme Court in Roshan Lal v. Madan Lal, AIR 1975 SC 2130 where all the earlier decisions on the point have been referred to and reviewed and it has been pointed out that even where a landlord and a tenant, in order to avoid protracted litigation or otherwise, agreed to a decree of eviction on compromise, the Court can pass an effective decree of compromise only when the Court is satisfied that the compromise indicates, either on its face or in the background of other materials on record, that a statutory ground of eviction has been made out. A later decision of the Supreme Court in Nai Bahu v. Lala Ramnarayan AIR 1978 SC 22 has also pointed out that while a decree for eviction can be passed on compromise, yet the same may be challenged as a nullity if the records do not indicate that the Court could be satisfied as to the existence of any grounds provided in the relevant law for eviction. Most of these decisions proceeded on the assumption of a public policy involved in relevant Rent Control Acts to give protection to the tenants.