Madhya Pradesh High Court
Pawan Jain And Ors. vs Sunita Jain on 2 July, 2007
Equivalent citations: 2007(4)MPHT323
Author: R.C. Mishra
Bench: R.C. Mishra
ORDER R.C. Mishra, J.
This revision, under Section 115 of the Code of Civil Procedure (for short 'the Code'), is directed against the following orders passed by the First ADJ, Sagar in Civil Suit No. 2-B/03:
(1) Order dated 3-3-2004 rejecting petitioners' application under Order 7 Rule 11 read with Section 151 of the Code (hereinafter referred to as "the First Order").
(2) Order dated 1-7-2004 whereby petitioners' application; under Order 47 Rule 1 of the Code to recall order dated 3-3-2004 was dismissed (hereinafter referred to as "the Second Order").
2. The facts leading to filing of this revision are not in serious dispute and may be summarized as under:
(i) Marriage of the plaintiff/respondent (hereinafter referred to as "R") was solemnized with the petitioner No. 1, (for short 'PI'), the son of petitioner Nos. 2 and 3 on 8-7-1989 at Sagar. Thereafter, R and P1 resided together at Chhatarpur, where parental home of P1 is situated and at Gaziabad and Raipur, where he was posted as Assistant Divisional Engineer (Telecom). In the wedlock, twins named as Manu and Kanu were born. Thereafter, the martial relationship was eclipsed by strains due to incompatibility on various domestic issues. Ultimately, on 6-3-1996, PI filed a petition for dissolution of marriage by a decree of divorce, under Section 13(1)(a) of the Hindu Marriage Act, 1955 (for short 'the Act') in the District Court at Raipur.
(ii) On 17-3-1996, R was taken by her father to Sagar where, on 20-3-1996, she lodged a report at Mahila Police Station, Sagar, alleging that she was subjected to cruelty and harassment mainly due to non-satisfaction of dowry demand not only by the petitioners but also by the brother and sister of PI. However, the FIR, leading to registration of case against PI and his family members, was quashed by this Court by order dated 31-10-2003 passed in M.Cr.C. No. 1442/99. In the meanwhile, R filed a petition, under Section 9 of the Act, for restitution of conjugal rights; an application, under Section 125 of the Code of Criminal Procedural (for short, 'the Cr.P.C.'), for grant of maintenance and also an application, under Section 97 of the Cr.P.C., for production of Manu and Kanu before the Court. However, taking note of the fact that P1 had already obtained an interim order for custody of children, the order dated 2-9-1997 passed by CJM, Sagar in MJC No. 61/1997, directing PI to handover custody of the children to her, was quashed by this Court vide order dated 1-5-2003 passed in Cr.R. No. 854/1997. R also instituted a suit in the District Court at Rajnandgaon for custody of children and subsequently, this matter was transferred to the District Court at Damoh. Similarly, the divorce case pending at Raipur was transferred to the District Court at Sagar for being heard and decided along with R's petition for restitution of conjugal rights.
(iii) Against this backdrop of increasing bitterness, on 11-11-1998, R instituted the suit for compensation wherein the impugned orders were passed by the First ADJ, Sagar. According to her, she was entitled to claim Rs. 15 lacs as compensation for the cruelty meted out to her by the petitioners by depriving her of custody of children and making her to lead a miserable life as a dependent on her father. She further claimed an amount of Rs. 5 lacs as compensation on account of mental and physical torture.
(iv) On being served with the summons, instead of filing written statement, the petitioners/defendants raised questions as to maintainability, territorial jurisdiction and R's competence to sue as indigent person by moving an application, under Order 7 Rule 11 read with Section 151 of the Code. According to them, firstly, no cause of action was available to R in the light of this Court's order 31-10-2003 passed in M.Cr.C. No. 1442/99 and the order dated 1-5-2003 passed in Cr.R. No. 854/07 and secondly, even if it is assumed that a cause of action was available to R, the Court at Sagar has no territorial jurisdiction to hear the suit based on the alleged acts of cruelty committed at Chhatarpur and Raipur. It was also contended that the suit filed before final decision of her prayer for restitution of conjugal rights was not only premature but also an abuse of the process of the Court. In the wake of these preliminary objections, they prayed for rejection of plaint.
(v) While vehemently opposing the prayer, R submitted that her claim for damages was entirely different from the proceedings for restitution of conjugal rights.
3. The learned Trial Judge for the reasons recorded in the First Order 1 proceeded to reject the application under Order 7 Rule 11. Thereafter, the petitioners filed another application under Order 47 Rule 1 of the Code to review the aforesaid order. However, this application also met the fate of dismissal by the Second Order on the ground that there was no error apparent on the face of record to justify reconsideration of the earlier order. Being aggrieved, the petitioners have preferred this revision.
4. The petitioners have assailed legality, propriety, and correction of the impugned orders on various grounds. The first contention advanced by the learned Counsel for the petitioners is that the civil suit instituted by R is not maintainable under Section 9 of the Code as there is a special law, in the form of the Act, was operating to cover the field. According to him, learned Trial Judge committed serious error of jurisdiction in holding that the suit was maintainable under the uncodified law of torts. To buttress the contention, reliance has been placed on the pronouncements of the Apex Court in Jitendra Nath Biswas v. Empire of India & Ceylone Tea Co. , Pushpagiri Math v. Kopparaju Veerabhadra Rao and Dhruv Green Field Ltd. v. Hukam Singh and Ors. and decision of this Court in Sameeran Roy v. Smt. Leena Roy AIR 2001 MP 192.
5. In Jitendra Nath Biswas's case (supra), observing that the relief was available under the Industrial Disputes Act, 1947 only, the Supreme Court proceeded to hold that the jurisdiction of Civil Court was impliedly barred whereas, in Pushpagiri Math's case (above), jurisdiction of Civil Court to declare title of the Inam land was held to be excluded by necessary implication due to operation of the Local Act whereby the pre-existing right or interest held by the inamdar or the institution stood extinguished. Although, a similar view was taken in Dhruv Green Field's case (supra), yet, it was also explained that the bar against jurisdiction of Civil Court cannot be inferred unless an alternative remedy is provided by the special statute excluding such jurisdiction. However, the Marriage Law applicable to R and P1 has no impact on the rights and liabilities of either of them in respect of any tort committed by him against her or by her against him. For this, reference may be made to the following excerpts available at Pages 35 and 36 of Ratanlal and Dharamlal's Law of Torts 25th Edition, 2006, revitalized by Mr. Justice G.P. Singh, formerly a Chief Justice of this Court:
Marital status of Hindus, Buddhists, Sikhs, Jains and Muslims in India is governed by their personal laws not by the common law. Marriage under these personal laws does not affect the capacity of the parties for suing or for being sued nor does it confer any protection to any of the spouses for any tortuous act committed by one against the other.
6. Further, as pointed out in Sameeran Roy's case (above), a counterclaim for damages for a tort (declaration in that case) is not maintainable under Sections 23A and 21 of the Act. As such, in the light of the observation made in Dhruv Green Field's case (supra), the Civil Court has jurisdiction to entertain a claim made by any of the parties to a Hindu Marriage for any tortuous act committed by the other party against her/him as no efficacious alternative remedy is available under the Act. Moreover, such a claim is not expressly barred under the Act. This apart, as explained by the learned author, the action for damages, under the un-codified law of tort, by each one of the spouses against the other, is maintainable.
7. In this view of the matter, the objection raised to maintainability of the suit was rightly rejected by the learned Trial Judge as misconceived.
8. The second contention urged on behalf of the petitioners is focused that the plea of territorial jurisdiction. According to the learned Counsel even assuming that the cause of action had accrued in favour of R, the Court at Sagar had no jurisdiction to entertain the suit in respect of the alleged acts of cruelty and torture at Chhatarpur and Raipur. In this regard attention has also been invited to the fact that the petitioner Nos. 2 and 3 had no occasion to reside with the daughter-in-law viz., R at Raipur.
9. A bare perusal of the First Order under challenge would reveal that the learned Trial Judge found no substance in the objection as to territorial jurisdiction in view of the admitted fact that the marriage was solemnized at Sagar only. However, the fact remains that the plaint did not contain any specific averment as to any tortuous act committed by the PI or his parents at Sagar.
10. Before proceeding further, it would be necessary to advert to provisions of Section 19 of the Code that governs the territorial jurisdiction of the suits for compensation for wrongs to person. It reads as under:
Where a suit is for compensation for wrong done to the person,--if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
11.In Y. Abraham Ajith v. Inspector of Police , the Apex Court explained the distinction between the expressions "cause of action" in civil cases and the "local jurisdiction" in criminal cases relating to domestic cruelty. It was observed-
while in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is, therefore, not a stranger to criminal cases.
12. Accordingly, it was held that the Criminal Court at the place where the complainant wife, after being subjected to cruelty and harassment by her husband at another place, was residing with her parents would not have any jurisdiction to deal with the matter as no part of cause of action had arisen within its jurisdiction.
13. This view was reiterated Ramesh v. State of T.N. (2005) 3 SCC 506, wherein it was laid down that subjection of a woman to cruelty by her husband or his relatives would cease as soon as she leaves the matrimonial home.
14. One may reasonably pose a question as to how analogy in respect of cause of action can be struck between a criminal case for the offence under Section 498A of the IPC and a civil case based on matrimonial tort. The answer would be:
In a way, there is no distinction between crime and tort, inasmuch as a tort harms an individual where a crime is supposed to harm a society. But then, a society is made of individuals; harm to an individual is ultimately harm to society P. Rathinam v. Union of India referred to.
15. It is, therefore, apparent that the Civil Court at Sagar had no jurisdiction to entertain the R's suit based on the alleged acts of cruelty and harassment allegedly committed by her husband and his parents at Chhatarpur and Raipur.
16. The third and last contention raised by the learned Counsel for the petitioners relates to the question of limitation. It has been pointed out that the suit is hopelessly time barred as it was not instituted within the period of one year, prescribed under Article 79 of the Limitation Act, 1963, commencing from 18-3-1996, the date of accrual of the cause of action, as pleaded. However, the fact remains that the plea of limitation was not raised before the Trial Court in the application under Order 7 Rule 11 of the Code. Moreover, the matter cannot be dealt with as a pure question of law. In such a situation, it would not be desirable to make any observation as to merits of the objection pertaining to limitation. It is, however, made clear that the petitioners shall be at liberty to raise the point of limitation before the Trial Court in accordance with law.
17. To sum up, the only error that the learned Trial Judge appears to have committed, lies in holding that the Court at Sagar, within local limits of whose jurisdiction, the marriage was solemnized, also had the jurisdcition to entertain the action based on tortuous acts allegedly committed elsewhere Instead, he ought to have returned the plaint for presentation to the Court having territorial jurisdiction. However, he did not commit any illegality in rejecting the review application as the error was riot apparent on the face of record and could be detected only after a long process of reasoning. In this view of the matter, the second order in question does not require any interference.
18. For these reasons, the revision petition is partly allowed. While holding that the suit filed by the respondent against the petitioners is maintainable. The plea of territorial jurisdiction is upheld. Accordingly, on the first order in question is modified and it is directed that the suit be returned to the respondent for presentation to a proper Court. There shall be returned to the respondent for presentation to a proper Court. There shall be no order as to costs.