Bombay High Court
Siona Nuriel Samuel vs Nuriel Nissim Samuel on 6 November, 1986
Equivalent citations: (1986)88BOMLR646
JUDGMENT S.N. Khatri, J.
1. The short question that is posed before me in these three matters is whether this Court has power under Section 4A of the Bombay City Civil Court Act, 1948 (hereafter "the Act") to transfer matrimonial disputes arising under the Jewish Law, to Bombay City Civil Court.
2. Three submissions were advanced, opposing the proposed transfer. These are:
I. The State Legislature has no competence to- enact Section 4A of the Act, because it purports to override the provisions of the Letters Patent.
II. This Court gets jurisdiction to try matrimonial disputes between the Jews under Clause 12 of the Letters Patent and not under Clause 35. Matters falling under Clause 35 alone can be deemed to have been filed under "the matrimonial jurisdiction" of this Court. As such, matrimonial suits between the Jews which fall under Clause 12 will not come within the mischief of Section 4A of the Act.
III. Even assuming that the Court has power under Section 4A of the Act to transfer the present three matters to the City Court, it should decline to exercise its discretion to make such orders.
3. The first objection has to be mentioned only to be rejected. It was pointed out to Kum. Iyer who had raised it, that the Bombay Act 26 of 1950 by which Section 4A was added, had received Presidential assent on May 22, 1950. The original Act of 1948 had also received the assent of the Governor General. Thus the requirements of Article 254 of the Constitution stand duly complied with. The objection was, therefore, not seriously pressed and is hereby overruled.
4. It is not and cannot be disputed that matrimonial disputes arising under the Jewish Law fall under Clause 12 and not Clause 35 of the Letters Patent, This position has been settled by a string of judicial pronouncements. If at all necessary, we may see Benjamin v, Benjamin , Mozelle Robin Solomon v. Lt. Col. R.J. Solomon (1968) 81 Bom. L.R. 578, and Dr. Pinhas Ezekil Silas v. Sally Silas . Without covering the entire ground, I may only say that operation of Clause 35 of the Letters Patent is in terms restricted to "Our subjects professing the Christian religion". Obviously matrimonial matters under the Jewish Law will not fall under Clause 35.
5. Now the crux of the question: Whether matrimonial matters arising under the Jewish Law are beyond the mischief of Section 4A of the Act, because this Court entertains them under Clause 12 (not 35) of the Letters Patent? It will be of advantage to extract the material portions of Sections 3 and 4A of the Act:
3. The State Government may by notification in the Official Gazette, establish for the Greater Bombay a court, to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding fifty thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognizable-
(a) by the High Court as a Court ...having... matrimonial jurisdiction.
4A. (1) Notwithstanding anything contained in any law for the time being in force, the High Court may at any stage transfer to the City Court any suit or proceeding which is cognizable by it as a Court having matrimonial jurisdiction and instituted in such court.
(Emphasis supplied) [herein indicated in italics-Ed.]
6. The learned Counsel who oppose the transfer of the three matters to the City Court, submit that because these matters admittedly fall under Clause 12 of the Letters Patent, they cannot be treated as suits cognizable by this Court as a "Court having matrimonial jurisdiction". According to them the only suits that fall under this description are the ones referred to in Clause 35. The learned Counsel have advanced exhaustive submissions on this aspect. In view of the unrestricted sweep of Clause 12 covering "suits of other description", I do not see any difficulty in holding that the matrimonial disputes under the Jewish Law are taken cognizance of by this Court as a court having matrimonial jurisdiction, although such matters fall under Clause 12. All the same, in my view, the central question before the Court can be decided without recording a firm finding in this regard, merely on the plain construction of Sections 3(a) and 4A of the Act.
7. The present three suits either are, or are not, suits cognizable by this Court "as a court having matrimonial jurisdiction". There cannot obviously be any third possible position. Assuming for a moment that this stand of the learned Counsel is right that these suits are not cognizable by this Court as a court having matrimonial jurisdiction, these suits would have been, cognizable at the threshold by the City Court itself under the main operative provision of Section 3, and not by this Court. It is worthwhile to note that all the three plaintiffs have themselves described jurisdiction of this Court in their plaints as "matrimonial jurisdiction". It is not controverted - and rightly - that the three suits were presented in this Court, because they attract the exception enacted in Clause (a) of Section 3. It is not suggested that the term "as a court having matrimonial jurisdiction" as figuring in Sections 3(a) and 4A of the Act has different connotation. When the aforesaid term has one and the same meaning for both these provisions, it follows that Section 4A will clamp itself with full and equal vigour upon all the suits which stand excepted under Section 3(a) and, for this reason, continues to be entertainable by this Court. It follows that if the present three suits were validly taken cognizance of by this Court under the aforesaid exception, they will also be amenable to the power of this Court conferred under Section 4A. The second objection also will have to be repelled.
8. Regarding the last objection as to how I should use my discretion, I do not see any reason why the matters should not be transferred to the City Court. I am told that there is a practice obtaining in this Court to transfer contested matters alone to the City Court. I do not 'wish to comment on the merits of this practice, one way or the other. Nor do I, as presently advised, wish to depart from it in haste. I have ascertained from the learned Counsel concerned that all the three matters before me are going to be contested, I, therefore, feel that no useful purpose will be served by retaining these matters in this Court until the defendants file their written statements. Section 4A of the Act empowers this Court to transfer the proceedings at any stage. It would, therefore, be in the interest of justice to transfer these matters to the City Court forthwith.
9. All the three matters are directed to be transferred to the Bombay City Civil Court under Section 4A of the Bombay City Civil Court Act for disposal according to law. The parties are directed to appear before that Court on December 15, 1986. Interlocutory applications, if any, pending in any of these suits, will also go to that Court.