Karnataka High Court
Iravva vs Shivappa Shiddalingappa Angadi on 3 March, 1987
Equivalent citations: AIR1987KANT241, ILR1987KAR1955, AIR 1987 KARNATAKA 241, ILR 1987 KANT 1955, (1987) 2 DMC 208, (1987) 2 HINDULR 312
JUDGMENT
1. This is an appeal by the petitioner (petitioner in Misc. Application No. 12 of 1985 on the file of the Principal Civil Judge, Dharwar) against the order dated 25-7-1986 passed by the Civil Judge, Dharwar, in Misc. Application No. 12 of 1985 dismissing the same as not maintainable.
2. The parties have been referred to with reference to their position in the trial Court.
3. The applicant Iravva is the wife of the deceased Gurupadappa Siddalingappa Angadi. They were married in the year 1948. The applicant was living with her husband but she did not bear any children. Since she did not bear any children, her husband wanted to marry another woman. The applicant did not give her consent to the second marriage. Notwithstanding it, her husband illegally married another woman and brought her to his house and the so-called second wife also deserted him and went away. Thereafter he brought another woman. The applicant's husband thought that the applicant might take some action against him. So by practising fraud on the applicant and the Court, he had obtained an exparte decree for divorce against the applicant in L.C. No. 32/1967. The applicant was not aware of the said suit at all. The summons was not served on the applicant in the said suit. By practising fraud and by practising misrepresentation, the applicant's husband managed to see that the applicant was some-how or the other reported to be served with summons. The ground made out in the divorce suit was that the applicant was suffering from venereal disease in a communicable form and the said allegation is false. The decree obtained by her husband is not according to law. The applicant was not aware of the said suit or decree at all. Recently at the time of dispute regarding entries to be made in respect to the properties belonging to the applicant's husband, she came to know that her husband had obtained an exparte decree of divorce. Her husband's brother is now disputing about the entry of the applicant's name in respect of the properties left by her husband. He is also contending that he is the only heir to the husband of the applicant. She came to know about the ex parte decree of divorce just some little time before the present application was filed. Hence she filed the present application under O. 9, R. 13, C.P.C to set aside the ex parte decree of divorce obtained by her husband in L.C. No. 32/67.
4. The opponent who is the brother of the applicant's husband, resisted the petition.
5. The trial Court held that the application under O.9, R. 13, C.P.C. under the circumstances was not maintainable. Taking this view, it dismissed the petition.
6. It is admitted that the applicant was the wife of the deceased Gurupadappa Siddalingappa Angadi. It is also admitted that the present opponent is the brother of the said Gurupadappa Siddalingappa Angadi. It is further admitted that the applicant was married to Gurupadappa in or about 19,48 and they lived together since then for a long number of years. It is also undisputed that the present applicant did not' bear any children. It is also undisputed that the disputes are. now going on between the applicant and her husbands brother-opponent regarding the properties left by the applicant's husband Gurupadappa. Admittedly Gurupadappa has died in 1985 i.e. before the institution of the application under O. 9, R. 13, C.P.C.
7. Now the question is whether the application under 0. 9, R. 13, C.P.C. to set aside the ex parte decree of divorce, is maintainable.
8. Section 41 of the Evidence Act, reads as :-
"A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof-
that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment (order or decree) declares it to have accured to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, (order or decree) declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, (order or decree) declares that it had been or should be his property."
9. It is undisputed that the Civil Courts in the Karnataka State have got jurisdiction under the Hindu Marriage Act. A useful reference can be made to the commentary of Sarkar's Evidence, 13th Edition, page-492 under the heading 'Matrimonial JurisdIction'.
It reads as: -
"Matrimonial Jurisdiction : The Civil Courts, other than the High Court exercise matrimonial jurisdiction under the provisions of the following Acts: - viz., (a) Indian Divorce Act (4 of 1869) relating to the divorce of persons professing the Christian religion; (b) Indian Christian Marriage Act (15 ol'1872); (c). Parsi Marriage and Divorce Act Q of 19,36); (d) Converts' Marriage Dissolution Act (21 of 1866); (e) Dissolution of Muslim Marriage Act (8 of 1939); (f) Special Marriage Act (43 of 1954); Hindu Marriage Act (25 of 1955). As to the matrimonial jurisdiction of the High Courts, see Letters Patent, 1865, Cl. 35.
A valid marriage causes the relationship of husband and wife to exist, not only as between the parties to it, but also as respects all the world; a valid dissolution of a marriage, whether it be by the act of the husband, as in the case of repudiation by a Mohammedan husband, or by the act of a Court competent to dissolve it, causes that relationship to cease as regards the whole world Kanhya v. Radha, (1867) 7 WR 338 (FB). A judgment of a Court given in the exercise of matrimonial jurisdiction (under the Hindu Marriage Act, 1955) falls under S. 41 and would be conclusive against the whole world Siddaiah v. Panchalamma, ; Suhas v. Manohar, . In divorce proceedings a finding against the petitioner or respondent in a previous suit, may be given in evidence, though between different parties, Ruck v. Ruck, (1896) P 152 : 65 LJP 87. Sentences concerning marriage and divorce when pronounced in the country where the parties are bona fide domiciled, will be regarded in the Courts of England as conclusive facts adjudicated, otherwise the rights of mankind would be very precarious Roach v. Gravan, (1748) 1 Ves Sen 157, See also Sinclair v. Sinclair, (1798) 1 Hagg Cons 294 (297), Shaw v. Gould, (1868) 37 LJ Ch 433 (HL).
A decree for dissolution or for nullity of marriage by a competent Court being a judgment affecting status is a judgment in rem(see Salvesen v. Administrator & C., (1927) AC 641: 137 LT 571; Hals Simond's ed. Vol. 7, p. 117). Decree dissolving marriage under Madras Act, 6 of 1949 is a judgment in rem Sunanda v. Subbarao, AIR 1957 Andh Pra 424." That the judgment passed in the matrimonial case would be a judgment in rem is also reiterated in Suhas Manohar Pande v. Manohar Shamrao Pande, ; Kamalabai v. Ramdas Manga Ingale, and Vempa Sunanda v. Vempa Venkata Subbarao, AIR 1957 Andh Pra 424. If it is so, a judgment granting divorce would be a thing which would affect the status of the parties and would result in the annulment of the relationship which existed between the wife and the husband. Such judgment which affected the status of the parties will be relevant under S. 41 of the Evidence Act even in the proceedings when such questions arose for consideration. Therefore when such serious questions are involved and when such matters affected the status of the parties, the Court will have to be very cautious in adjudicating upon the matters because serious consequences are likely to follow.
10. In Razia Begum v. Sahebzadi Anwar Begum, , the facts were as :-
"The appellant in her plaint asked for a declaration that she was a legally wedded wife of respondent No. 3 and that she was also entitled to receive from him Kharch-e-Pandan at a certain rate. Respondent No. 3 filed a, written statement in which he unequivocally admitted that the appellant was married to him and that she was also entitled to the Kharch-e-Pandan as claimed in the plaint. He further admitted that the appellant bore him three issues out of the marriage. At this stage, respondent No. 1, claiming to be the lawful and legally wedded wife of respondent No. 3 and respondent No. 2, the son of the third respondent by the first respondent, filed an application under O. 1, R. 10(2) as being: interested in denying the marriage of, the appellant and her rights and status. The trial Court allowed the application and directed respondents 1 and 2 to be added as defendants. The High Court in revision refused to interfere with the discretion of the trial Court."
The Supreme Court has stated on page 893 as :-
"The Court, when it is called upon to make a solemn declaration of the plaintiff's alleged status as the defendanf's wife, has, naturally to be vigilant and not to treat it as a matter of course, as it would do in a mere money claim which is admitted by the defendant. The adjudication of status, the declaration of which is claimed by the plaintiff, is a more serious matter, because by its intendment and in its ultimate result, it affects not only the persons actually before the Court in the suit as originally claimed, but also the plaintiff's progeny who are not parties to the action, and the respondents 1 and 2. If the declaration of status claimed by the plaintiff is granted by the Court, naturally, the three daughters by the plaintiff, would get the status of legitimate, children of the Prince. If the decision is the other way, they become branded as illegitimate. The suit clearly is not only in the interest of the plaintiff herself but of her children also. It is equally clear that not only the Prince is directly affected by the declaration sought, but his whole family, including respondents I and 2 and their descendants, are also affected thereby. This, naturally, leads us to a discussion of the effect of S. 43 of the Specific Relief Act etc., etc."
11. Therefore the Supreme Court has clearly laid down that when the suit involves the question of the marital status of the parties, the Court should be extremely vigilant because the property rights are likely to be seriously affected and also because the legitimacy or otherwise of the parties involved would be seriously affected.
12. In Kamalabai v. Ramdas Manga Ingale, , it has been stated as -
"Where an appeal was filed by wife against the decree of divorce and the respondent husband died during the pendency of the appeal, the appeal cannot be treated as having abated on the death of the respondent."
In para 8, it has been stated as "It may be conceded that the position is not free from doubt, but where this is so, equitable considerations must prevail and bearing in mind the nature of the conclusion, the far-reaching effect of the findings of the Court, both on personal status and property rights, it is desirable that the party aggrieved by the decree of the trial Court must have the opportunity to have the findings reversed and this opportunity must be assured irrespective of the death of the respondent."
In Para 9, it is further stated as :-
"It must be opined, however, that the decision in the appellate Court cannot be obtained reversing the trial Court or modifying the trial Court by any compromise. In the peculiar circumstances of the case such compromise must be ignored and the appellate Court must dispose of the appeal on merits. Even if it finds the respondent not supporting the judgment of the trial Court or making only a pretence of supporting it, it may, in an appropriate case, ask some Advocate to assist the Court and decide the appeal only after proper assistance is forthcoming."
In Para 10, it has been stated as:-
"In the result, the Second Appeal is allowed and the order of the learned Assistant Judge, Dhule, observing that the order passed on Ex. 25 bringing Pratibha on record was not legal, cannot be maintained. In my opinion, this order was legal and the appeal was thereafter required to be heard on merits and not treated as having abated. The learned Assistant Judge, however, was right in not accepting the compromise, though for different reasons. This is not an ordinary property or money claim which can be allowed to be compromised in this manner. If the wife is entitled to justice she must claim and secure that justice by appropriate arguments and not through a compromise with her own daughter. It will be for her to establish before the appellate Court that the decree of the trial Court declaring her to be of unsound mind for a period of three years prior to the presentation of the matrimonial petition was incorrect. This must be established by argument and not by compromise."
A reference has been made in the said. Bombay case to Sunanda v. Venkata Subbarao, AIR 1957 Andh Pra 424. Regarding the said Andhra Pradesh case, the Bombay High Court has stated as : -
"The observations in this judgment., to some extent, do support the view taken by the learned Assistant Judge. Again, the point directly under consideration was different and the observations which support the learned Assistant Judge can be regarded as obiter. According to the Division Bench of the Andhra Pradesh High Court, the legal position was clear and the equities or inequities could not alter the legal position. According to the Division Bench an innocent wife may have her image tarnished by those unfortunate circumstances viz., the death of the husband during the pendency of the appeal, but according to the Bench in the same way a guilty wife may get the benefit of the position."
In the said Andhra Pradesh case, daring the pendency of the appeal from the decree dissolving the marriage, the respondent died. It was held that the appeal abated though not the suit. Therefore as rightly pointed out by the Bombay High Court, the opinion expressed in the said Andhra Pradesh case, appears to be an obiter dicta. Therefore following the said Bombay view, I am of the opinion that even though the husband dies, it is open to the wife to challenge the decree of dissolution of marriage by process known to law. If this right is to be denied to wife her status would be in serious jeopardy and her property rights would he seriously affected. While laying down these principles, the Court must also bear in mind that the Indian community is rather male dominated and the ladies have got only a second role to play in the matters. The ladies might not come to know about the actions of the males till they are seriously affected and till they are made known about it. Therefore taking into consideration the peculiar position prevailing in our country also I am of the view that a wife is entitled to maintain an action known to law for avoiding a decree of dissolution of marriage obtained by the husband ex parte against her.
13. I questioned Shri Malimath as to whether was it not open to her to file a suit seeking a declaration that the decree of divorce obtained by the husband against her was null and void either on account of fraud, misrepresentation or mistake etc. fie stated that such a suit can be filed. Therefore, there cannot be any legal and valid objection to the institution of the petition under O. 9, R. J3, C. P.C., the object of which also is to set aside the ex parte decree.
14. Therefore, under these circumstances, the finding of the trial Court that an application under O. 9, R. 13, C.P.C. is not competent and is not maintainable, is set aside. The appeal is allowed. The application filed under 0. 9, R. 13, C.P.C. is maintainable. The Court below is directed to proceed with the application according to law and on merits.
15. No costs in this appeal.
16. Appeal allowed.