Patna High Court
Srikant Chand vs Mt. Ram Mohini on 25 November, 1957
Equivalent citations: AIR1959PAT186, AIR 1959 PATNA 186, ILR 37 PAT 83
JUDGMENT
1. The present matter arises out of a report made by the Stamp Reporter demanding court-fee on the application out of which this appeal arises.
2. The relevant facts, shortly, are these: The appellant filed an application under section 13 of the Hindu Marriage Act, 1955 (Act 25 of 1955) for the dissolution of marriage. The petition was filed in the Court below on a court-fee of Re. 1-2-0 only. This application was dismissed. Thereupon, the appellant preferred the present appeal on a court-fee of one rupee only.
The Stamp Reporter submitted the report stating that there was a deficit court-fee both in the Court below and in the High Court. The Stamp Reporter is of the view that Art, 17 (vi) of Schedule II of the Court-fees Act, 1870, applies to the facts of the present case and that the proper court-fee payable, therefore, is Rs. 22-8-0.
Accordingly, the Stamp Reporter has reported that there has been a deficit court-fee amounting to Rs. 21-6-0 on the application filed in the Court below and a further deficit amounting to Rs. 21-8-0 on the memorandum of appeal. The question of court-fee payable on the memorandum of appeal has been disposed of by the Taxing Officer of this Court, whose decision under Section 5 of the Court-fees Act has since become final,
3. The question of court-fee payable on the application under Section 13 of the Hindu Marriage Act filed in the Court below has been contested and has, in the usual course, come up for orders before us.
4. Now, the relevant portion of Section 13 of the Hindu Marriage Act, 1955, runs as follows:
"13 (1). Any marriage soleminzed, 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 ....
5. Sections 19 to 21 of the Act under the heading "Jurisdiction and Procedure" run as follows:
"19. Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together.
20. (1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.
(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by Jaw for the verification of plaints, and may, at the hearing, be referred to as evidence.
21. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908".
6. The rules fiamed by the High Court have been published in. the Bihar Gazette, part III, page 577, dated the 7th August 1957. Rule 5 thereof lays down that the forms of petitions, decrees and orders etc., shall be as prescribed in the schedule to the Indian Divorce Act, 1869. Rule 10(2) says that the application for leave under S. 14 of the Hindu Marriage Act should be filed bearing the proper court-fee under the law and in accordance with the rules, and R. 23 says that the appeals under the Act shall be governed by the relevant rules in the General Rules and Circular Orders (Civil) or by the Court's rules. So, it appears that there is no definite rule laid down for such cases regarding court-fees. ,
7. In Smurthwaite v. Smurthwaite, ILR 58 All 259: (AIR 1935 All 791), the Allahabad High Court (Bennet J.) held:
"The: court-fee payable on a petition for divorce under the Indian and Colonial Divorce Jurisdiction Act of 1926 is Rs. 2. The court, in hearing such a petition, does not apply the Indian Divorce Ace, and, therefore, the court-fee applicable to that Act cannot be applied to a petition under the Indian and Colonial Divorce Jurisdiction Act of 1926."
This case was dissented from by this Court in Ethel Ada Brown v. Charles Earnest Brown, AIR 1946 Pat 401, where Meredith J., (as he then was) held:
"It is quite true that the word 'suit" is not to be found in the Indian and Colonial Divorce Jurisdiction Act but section 1 (I) of the Act of 192t> in express terms confers jurisdiction on the High Court to make a decree for dissolution of a marriage and as incidental thereto to make certain orders. The use of the word 'decree' clearly implies that the proceedings are really by way ot suit, though initiated by petition. We get a definition of "decree* in S. 2 (2), Civil Procedure Code, as "the formal expression, of an adjudication which, so rar as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit etc."
* * * * Having regard to all the circumstances I havo no hesitation in holding that we are dealing with what is in substance a suit, and not a mere a.jf plication.-........"
This is substantially the argument of the learned Government Pleader, who appears to support the Stamp leport.
8. It appears to us that there is no scope for importing the words, 'plaint' and 'suit' in Section 13 of the Hindu Marriage Act, 1955. No such word has been used by the Legislature which, in its wisdom, has only referred to the word 'application'.
In Brown's case, (AIR 1946 Pat 401) (supraj, attention of this Court does not seem to have been drawn to the definition of 'decree' fully. The definition of 'decree' is thus given in the Code of Civil Procedure:
" 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or S. 144,..........
It says that it shall be deemed to include the determination of any question within Section 47 or Section 144 of the Code of Civil Procedure. Applications under Section. 47 and 144 are stamped as mere petitions. They are not stamped under Artiction 17 (VI), Schedule II, Court-fees Act.
It is conceded that court-fees on applications under Section 13 of the Hindu Marriage Act, 1955, are not otherwise provided for by the Court-fees Act.
It is also settled law that the fiscal Acts must be construed strictly and in favour of the subject.
9. For these reasons, we accept the submissions of Mr. Choudhuri, appearing for the appelliant, and hold that the proper Article applicable here is Schedule II, Article 1 (b), Court-fees Act, the relevant portion of which runs as follows:
"Application or petition when presented to a Civil .......... Court ........... and not otherwise provided for by this Act."
Therefore, applications under Section 13 of the Hindu Marriage Act, 1955, require to be stamped as mere petitions. 10. In our opinion, therefore, no further court-fee is payable on the petition under Section 13 of the Hindu Marriage Act, 1955, as presented to the Court below.