Conflicts In High Courts Decisions On Central Laws

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Law Commission Report

Conflicts In High Courts Decisions On Central Laws

LAW COMMISSION or INDIA

ONE HUNDRED THIRTY-SIXTH
REPORT

CONFLICTS IN HIGH COURT DECISIONS ON
CENTRAL LAWS--HOW TO FORECLOSE AND
HOW TO RESOLVE

I I990

Tel. No. 384475

fate arrznrr
LAW COMMISSION

WITH G'?$T?
GOVERNMENT OF INDIA

meal nan,
SHASTRI BHAWAN,

M. P. THAKKAR 3% fagaaﬁ
Chairman NEW DELHI

D.0. No. 6(2)/90--LC(LS) Feb. 21, 1990

Shri Dinesh Goswami,

Minister of Law and Justice,
Government of India,
Shastri Bhavan,

New Delhi.

Dear Minister,
Re. Presentation of 136th Report

Forwarded l1ei'ewith please ﬁnd the 136th Report of the Law Commission of India bearing the
caption which conveys its contents, VIZ. : M

CONFLICTS IN HIGH COURT DECISIONS ON CENTRAL LAWS---- HOW TO FORECLOSE
AND HOW TO RESOLVE

This report is the outcome of a sac mom initiative on the part of the Commission which felt
exercised by the frustrating situation stemming from the identical Central law being interpreted,
applied, and administered in different and inconsistent fashion in different parts of India as a result
ofconflicting judgements of the concerned High Courts. The resultant legal chaos has created a
situation wh-sre similarly situated citizens governed by the same Central law '/1m'c>' : right in one pgrt
of th: country and 'do not have' such a right in another pert of the country. This situation" would
continue to obtain indeﬁnitely it' the concerned matter was not carried to the Supreme Ccnrt or would
continue for decades till the law was eventually settled by the Supreme Court even if the matter was
.;3;~;-igd to th;: Supreme Court. For instance. the law as to whether a widow would be entitled to be-
r_:-':-an: a full or a limited owner of a property in a particular situation came to be settled in ft vour of the
wir.':eVv after about 25 years. And th', law as to Whether the widow of a victim oi a motor vehicle
e':';irlv:n'3 could claim compensation in a given situation came to be settled in favour of the widow after
l1C:.1I'lj,' 20 ycar.~'(vi:!e paras 2.14 and 2.15 oi" Chapter II of the Report). The need for asolution, therefore.
is more than evident. Hence the Commission has endeavoured (1) to evolve a mechanism to nip such
conﬂicts in the bud and (2) to resolve existing conﬂicts in a phased manner by recommending legis-
lative clariﬁcations. This report is accordingly being presented with the hope that the gravity and
the urgency, of the situation will be appreciated and the needful will be done as soon as practicable.

With warm regards.
Yours faithfully,

Sd/-
Encl: ]36riz Report: {M. P. THAKKAR)
in

CONTENTS

PAGE

CHAPTER 1 Introduction . . . . . . . . . . 1
CHAPTER ll Uniformity and the Indian Legal system . . . . . 2
CHAPTER 111 Present Machinery, if Adequate . . . . . . 7
CHAPTER IV Identiﬁcation of some problems arising out of conﬂicting

decisions of different High Courts and suggestions of remedial

measures . . . . . . . . . . 8
CHAPTER V _ Conclusions & Recommendations , _ _ . . . 25
NOTES AND REFERENCES . . . . . . . .' . . . 28
APPENDIX Draft of the suggested legislation . . . . . . 31

(iii)

CHAPTER if
INTRODUCTION

1.1. Problem under examination.-----The constitutional guarantee of "Equality
before law" notwithstanding, under the identical provisions of the identical Central
law, canacitizen 'have' a legal right in one State and 'not have' sucl1 aright in
another part of the country? For instance, can a spouse 'have' a right to seek
maintenance under section 25(1) of the Hindu Marriage Act, 1955 in Andhra
Pradesh but 'not to have' such a right in West Bengal '.71 And if identical provisions
of identical Central Acts are interpreted, administered, and applied, in different and
inconsistent manner in different parts of the country, the problem certainly calls for
urgent and immediate attention with the end in view to (1) remove the existing
anomalies in the laws arising by reason of conﬂicting judgments of the different
Hign Courts and (2,) to evolve a mechanism to ensure that such anomalies do not
come into existence in future. Hence the present suo mom exercise.

1.2 Want of unifomiity an evil.---It is needless to point out that want of
uniformity inlaw not onlyimpairs the quality of the substantive or procedural law
but also causes serious inconvenience to citizens in general. Those whose business is
to advise persons who consult them on questions oflaw, ﬁnd it diﬂicult to give such
advice with conﬁdence where the decisions are conflicting. Those who are entrusted
with the function of adjudicating on questions of law must spend considerable
time in choosing between two or more possible views on a subject which falls to
be considered before them, In this process, there i s bound to result considerable
waste of time and energy. That apart, it is not a satisfactory situation that
on a given topic, the rule of law prevailing in one part of the country should be
different from the rule prevailing in another part of the country when the disparity
arises from conflicting judicial interpretations.

1.3. Scheme of the rep0rt.-----ltis against this background that the Commission
has in this report made an attempt to examine the problem and to make certain
recommendations on the subject. In the first few chapters of the report, the
Commission deals with the approach thatlies at the foundation of the Indian legal
system and considers adequacy of the present machinery to deal with the aforesaid
problem. Towards the end of the report, a recommendation calculated to resolve
the issue has been made. Besides, the Commission has also considered it proper
existing conllict of signiﬁcant decisions in the sphere of one important area of law
to bring out the namely, the major enactments that deal with Hindu Family
law and to make appropriate recommendations in order to achieve uniformity in
law. The Commission hopes to undertake a similar exercise in other areas of law in
3. phased manner at an appropriate time in future.

CHAPTER II
UNIFORMITY AND THE INDIAN LEGAL SYSTEM

2.l. Uniformity.--~lt is an elementary, but basic proposite-n in the lndian legal
system that, as far as possible. the law on import; nt topics forming pzrt ofthe legal
system should be uniform. A reasonably deep study of the various provisions on the
subject would show that it is an anxiety of our system to maintain and secure and,
wherever necessary, to restore, uniformity on important points of law. The manmr
in which this uniformity is maintained will be presently dealt With.

2.2 Source of uniformity.» Our Con.~.iitutie~n and legal system have given pri--
macy to uniformity of interpretation. Sources of such tti'iit'ernti=.y are more than one.
These have their origin in a variety of iiistruments, such as the Constitution, some
statutory provisions, the doctrines of the legal systeinfelzttiiig to the operation of case
law, certain historical developments relevant to the subject. the reasons which led
to the appointment of Law Commision and seine a speets ol' administrative law.

2.3 Article [41 of the Constitution.--------Article 141 of the Constitution declares
that the law declared by the Supreme Court shallbe binding on all courts and
authorities within India. This article, in one of its ztcpects, is intended to
reinforce the supremacy of the Supreme Court as an institution having its sway all
over lndia, and as putting beyond doubt the proposition that its pronouncements
are paraznount for all courts and authorities. But. in another of its aspects,
it is also intended to promote uniformity, Judicial interpretation. whetherit be
on a constitutional question or tin ordinary questiciirflaw. including a judicial
pronouncement on a question of uncoditied law, once it comes from the Supreme
Court, will ensure uniformity for the future all over India. This may appear to be
elementary, but is of basic importance when one is concerned with the desire of the
Constitution-makers to ensure uniform interpretation.

2.4 Appellate Jurisdiction in constitutional matters and other matters.--The
scheme of appellate jurisdiction of the higher judiciary, as envisaged in the
Constitution, reveals how anxious the Constitution-makers have been to ensure that
within the country or within a State. there shall be uniformity of interpretation,
as fat' as possible. For example, the right of appeal to the Supreme Court in every
matter which involves an interpretation olthe Constitution, shows that the makers
of the Contsitut ion desired that such questions must be ultimately decided by the
highes court in the land. Coming to questions ot' ordinary .;ivil law, the provision in
article 133 of the Constitution, which gives a right cl an appeal if there is
involved a substantial question of law which needs to be decided by the Superme
Court, is an indication ofthe basic premi.«.e llltli if there has been a controversy on a
question of law and the controversy needs to be decided by the Supreme Court, then
that Court must have jurisdiction to hear and decide the matter. It is thus evident
that the Constitution accords prime consideration to the need for uniformity.

2.5. Appeal by special leave.--~--Itis well known that the jurisdiction of the
Supreme Court to grant special leave to appeal under article 136 of the
Constitution is wide engough to permit interference by the Supreme Court when
there is need for such interference, because otherwise the law would remain in an
unsatisfactory condition or would be lacking in uniformity within the country. 1,2,3_

2.6. Access to the Supreme Court.----Befo1'e the Supreme Court is called upon to
make a pronouncement on a particular subject, there is the question of access to the
Supreme Court. The need for givng the citizens such access to the highest court of
the land where a question of law is involved was very much before the
Constitution-makers and supplies the principal rational for those provisions. The
Constitution envisages a right of appeal to the Supreme Court when there is involved
21 substantial question of law that needs to be decided by the Supreme Court.'-1 This
right of appeal is not merely for the beneﬁt ofthe litigant involved in the immediate
controversy. It is also intended to enable the obtaining of pronouncements of
law by the highest court. In this sense, such a right of appeal is intended to beneﬁt the
legal system itself', by advancing and promoting the cause of uniform interpretation.

Law Comnzissiorz of IndI'a~--136tk Report

277- Bllﬂlng 959" 07 High C011" li1dgen1ent.---lt is true that a provision man-
dating that the pronouncement of a High Court on questions of iaw shall bind
courts and authorities within the State is not found in the Constitution. But it is settled
beyond doubt that the pronouncements of a High Court have the same authoritv
within the State as those of the Supreme C0u1't have throughout India. This follows
from a number of judlolal decisions that have affirmed and reaﬂirmed the principle
mentioned above.

In fact, it is because of the existence of such 21 principle and it is against the back-
ground 05 515011 3 Prlncillle ill?-I Section l00 of the Code of Civil Procedure, 1908
formulates the right of second appeal to the High Court in terms of phraseology
which focuses itself upon the involvement ofa question oflaw. But For this emphasis
onaquestion oflaw, 3" ©n1pl1a,si>; which the Law Commission of India had an
opportunity of dealing with in its report on the Code') this aspect could have
escaped attention. But today, it cannot escape attention ."

This emphasis, as found in section 100 of the Code of Civil Procedure, was
more speciﬁcally formulated in the recommendation of the Law Commission which
has ultimately found its place in the section as amended in 1976. The Law Commis-
sion made the following observations as to the rationale underlying the right ol'

second appeal :

"l-J. 58. The 1-ntionale behind allowing a second appeal on a question of
law is, that there ought to be some tribunal having a jurisdiction that will
enable it to maintain, :ind.wl1ere neCessa1'y,re-establish uniformity throughout
the State on important legal issiies. so that within the area of the State, the
law, in so liar as it is not enacted law. should be laid down. or capable of being
laid down. by one court whose rulings will be binding on all courts, tribunals
and authorities within the area over which it has jurisdiction. Thisisimplicit in
any legal system where the higher courts have autlaority to make binding
decisions on question of law".

"I-J. 59_, When a case involves a substantial point of law, the general interest
of society in the predictability of the law clearly necessitates a system of appeals
from courts of first instance to 2: central appeal court".

"As has been observed. "The real justification For appeals on questions of
this sort is not so much that the law laid down by the appeal court is likely to
be superior to that laid down by a lower court, as that there should be "a final
rule laid down which binds all future Courts and so facilitates the prediction
of the law. in such a case the individuallitigants are sacriﬁced, with some jus-
tification, on the altar of law~mal<ing--, and must ﬁnd such consolation as they
can in the monument of a leading case".

2.8. Second appeal to High Court.«--One can view section 100 of the Code of
Civil Procedure from another angle. The section is based on the principle that mix}:-
in. the Slate, there should be uniformity on questions of law. It is on this basis
that section 100 gives 21 riglit ofsecond appeal to an aggrieved party if a question of
law is involved and ii' zrtain other conditions are satisﬁed. The basic objective oi'
this provision of the Civil Procedure Codeuras considered at some length in the Law
Commission': Report on the Code of Civil Procedure. The Conimission look the
opportunity of analysing the type of questions which should appropriately reach
the High 'Court by way ol second appeal. Dealing' with this aspect. the Law
Commission had an occasion to obserVe7

"Nature ofllte question oflczw regczrrled (IS a.'ppraprr'c1tef0r second appeal."

"LI. 7?. We shall indicate very broadly the nature of the questions of
law which we regard as appropriate for submission to the High
Court under section 100 as we propose to revise.

First- and the most important of all is the consideration of uniformity
throughout the State. It is obvious that on questions of lav; uniformity
must be maintained. in so far as interpretation of enaoted laws having Statevvise
importance is concerned. it is the task of the judiciary to maintain the unity
and the High Court, as the highest tribunal at the State level, should continue
to have the ultimate authority to establish unity by resolving or avoiding the
possibility of different views in lower courts.".

Law Commission of India «[36:11 Report

2.9. The above pi Ssagcs show that in cottfeffi-3,18 3 5'l3}1t"f'"'3C'0*?'l 31!-"i7'3_a1= 'he
lcgzilsystein is lb much concerned with the qtutlny ofilte l.1w,as' it IS with the
grievzmcc of the particular litigant. Unfortunately, this aspect at the schtpzrge of
ppeal is not visible on the surface. Tl1Ci'(.'ft'~1'C._ it oftcn csc-apcrs notice. BUL11 15 311'
aspect of vital importance. The objective of mzuntaingng '0?!' W111)' 1_I1_I.hc lztw. and oi
avoiding (or rcinovlng) wan': 0'? Ltniformily is implicit H1 the }'!U'\-'I"H*T7 01 the Code
1'.>;lO§iC£'-Ol'ld appeal. :1: silreztdy .=.t.aicd.-'

3.10. "Present posit:'oI1".--~¥Thc unsatistkactory pgsllioll that can result from
wamt of uniforntily. does: not require to be set out in detail. Even a cursory look at the
condition or the cam imv an any matter arising by vow,' of' construction of statute
nr by way of u:.=:po~.itiou of uncodiﬁed law would be enough. Rcporl_.~a of the Law
Commissimu oi" lndiii on various suhiects in the past have drawn attention to conflict
ol' decisions, wherever necessary." One Ckill also take at random, many more
ins12:nce.<.l'romtl1ecast: law relatingto any Central Act ol' general application and
iniportance, and di.<cove.r how :11»:-.re exists' llVw'ﬂT1l:L of unil'orn1ity on the interpretation
oi' so :11-my provisions of that Act. The position 1:» the sauna. even when one comes to
ruicm' of law not derived from smttite, but hosed on precedent.

3.11. Doctrine of precedent.-«The consideration ol'1znil'o1'm:'13] is, in fact, one
of the philosophical jitstiﬁcaziciis for the doctrine of precctlcnt. We are not. at the
moment. c:onc=srm:d with any theoretical exposition of this doclrine. But it seems
11BC€5S£1.l'_Y to draw eitlcniion to some aspects of the doctrine. Smrc» (f{'{'f..SI'.'s' has become
an integral part ol' our law and the LlOCTTll1£'5 of preccdetlt and Xrarr rlc'i'i.s-it seems in
lzavc at least three. 11ui'pc_-sea in mind '.»~

(1) they provide :1 basis from whiclt lawyers can aidvistt clients:
('2) they avoid addiiional costs of appeals and \ll1fItEC(f!i5~'Zl!'3' litigation; and

(ii 1.l'ii:Tc is a danger that in the absence of" UIESC dc-ctrines. 'dil"fcrent courts in
ditkrcnt areas; would apply different ]}l'll1Cll'1lIL'.'. oi law in the :id_tu(ltcatir.n
of Controversies.

The lizst mentmned object is' of direct rclcvan-:;l'u1' the healthy l'1nnc.tFc-Iiingn.' the
legal system.

2.12. Law Commission in 19th Century.~~lt is not merely in the constitutional
or statutory provisions or uncodiﬁed rules relating to precedent that the aspect of
tmiform interpretation ﬁnds 2. reflection. One can dis.cern its role as having been
visualised by those who had occasion to deal with the shaping of the Indian Legal
Sygtiggn in the course of the last two ccnturies or so. 011:: of the considcr.'3,tien;~. which
?~l.=}'.-pili_Ll.1i1:ll1*5}3l1'ﬁCiCl'l for the setting up of the Law Ci.'iEl'lI]TlL\'f3l(3]1S in the l9lh (fen-
tury wag the ds":-sire to secure uniformity of law. It is true that this was at :1 time when
the stress \.'VLl,S more on removing local variations in the law as enzzclcd or as followed
by custom. rather than on avoiding divergences in judiiﬁai dCCi5lOI]S. But the lE1I:'L'l'
c.:an.»-idcrxztioit was alao within his mind of the authorities. For example, one of lhe
.m.<3asu:'e5 of judicial rcforzu achieved in the latter 31alt'ol'tlic 19th century was thr-
Tusion of the parallel jiirisdictioiis earlier pcs.seF:<od by two sets of coi,-rl:~. which
were functioning within and outside the Presidency towns. The great. incmivenience
of cnnflictittg pronmmcements of law by th: eliilwhllc Supreme Courts (fer the
Presidency Towns) and by the erstwhile Sudder Diwzmi Ada.i:a.1s (for areas outside
the Preaidency Town) was perceived by those who wcrc entrusted with the task
oi' itcivjsizig in such matters. That is how the High Courts. Act. 1861 was born.
VV.l1¢i'€U11d€l' these pro-existing jurisdictions were conibinezl inlo one mrum which
would lay down the law :uitorimtiv<>.ly for its own aresa.

2.13. Presrnt Law Conmiission.»-~Evc~n in tho }),i'C:~.i:l1'i century. !he creation of the
Law Commission oi' India in 1955 xva?-, in part. the result ofa realisation that
wherever a conflict of decisions has impaired the iiniformity ol"law,t.hatunifo1-mjgy
shoulci be to-introduced into the legal system. It is needless to =tal31" that 'whencwi-
the Law Cotiiinisstoit has entered into an examination of Li particular Central Act. .'
1135.. in making rccommendatimis with referencc in attnendmcnt. repeal or revision
of that Central Acl. borne in mind the need for "r::introducing uuiforiiiity, if found
to haw? been damaged by a couﬁict of decisions or other sources of ambiguity
in the aw.

yaw: Min of L.;m- & Itistice/ND"-Vi

Law Commission of India~--136th Report

2.14. Section 14(1), Hindu Succession Act. An instance of conflict of decision
which fortunately came to be resolved by the Supreme Court (after a time lag of nearly
25 years) may be referred to at this stage. The case related to section 14(1) of the
Hindu Succession Act, 1956 and interpretation of the words "full owner" occuring
in that section. Section 14(1) of the Act reads as under :~»-

"(1) Any property possessed by a female Hindu, whether acquired before
or after the commencement of this Act, shall be held by her as full owner
thereof and not as a limited owner.

Explanation.--In this sub-section, 'property' includes both movable and
immovable property acquired by a female Hindu by inheritance or devise, or at
a partition, or in lieu of maintenance or arrears of maintenance, or by gift from
any person. whether a relative or not, before, at or after her marriage, or by
her own skill or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as stridhana
immediately before the commencement of this Act."

The probelem that had arisen before the High Courts can be best narrated from
the opening paragraph of the judgment of the Supreme Court 41.

"Under the same law (a) in an identical fact-situation, a Hindu widow who
has inherited property in Orissa or Andhra Preadesh would be a 'limited owner'
and would not become an 'absolute owner' thereof, whereas, if she has inherited
property in Madras, Punjab, Bombay or Gujarat, she would become an 'abso-
lute owner'. That is to say, in a situation where a Hindu widow regains
possession of a property (in which she had a limited ownership) subsequent to
the commencement of the Act (b) upon the retransfer of the very same property
to her by the transferee in whose favour she had transferred it prior to the
commencement of the Act. This incongruous situation has arisen because of an
interpretation and application of section 14(1) of the Hindu Succession Act
(Act). In the context of the aforesaid fact-situation the High Courts of Orissa
(c) and Andhra Pradcsh (d) have proclaimed that she would be only a 'limited
owner' of such property on such retransfer whereas the High Courts of
Madras (e), Punjab (f), Bombay (g) and Gujarat (h) have taken a contrary
View and have pronounced that she would become an 'absolute owner' of such a
property in the aforesaid situation. We have therefore to undertake this exercise
to rcniov-3 the unaesthetic W:'inl(les from the face of law to ensure that a
Hindu widow has the same rights under the same law regardless of the
fact as to whether her property is situated within the jurisdiction of one High
Court or the other."

Ultimately, the _Supreme Court held that the widow would be entitled as full
owner in the above circumstances.

215. Another illtistration of a controvesy which ultimately was resolved by the
Supreme Court (_ after a. time lag of nearly 20 years) may be referred to in this
context".

Insurer's Liability under Motor Vehicles Act.--Secti on 96(2) (b) (ii), Motor
Vehicles Act, 1939 was the provision to be considered. While section 96 of the Motor
Vehicles Act imposes on insurers of motor vehicles the duty to satisfy a judgment
obtained against persons insured in respect of third party risks, it was permissible
under section 96(2) for the insurer to raise certain defences to the action on speciﬁed
grounds. Thus. a d-e.fence could be based on section 96(2)(b)(ii) which related to--

"a condition excluding driving by a named person or persons or _by any person
who is not duly licensed, or by any person who has been disqualiﬁed for
holding or obtaining a driving licence during the period of disqualiﬁcation".

(a) Sgction 14(1) of Hindu Succession Act of 1956.

(b) The Act came into force on June 17, 1956.

(c) Ganesh Malianta v. Sukria Bewa, AIR 1963 Ori 167 : 39 Cm LT 474.7.
(d) Ven'.<atarallmain v. Palamms, (1970) 2 Andh WR 264.

(f) Teja Singh v. Jagat Singli, AIR 1964 Punj 403.

(g) Ramgowda Aunagowda v. Bhausahcb, ILR 52 Born 1: AIR 1927 PC 227.

(h) Bil Champ; v. Ci1?t1l(1".'tl<fl(liZt Hiralal Dahyabhai Sodagar, AIR 1973 Guj 227.
2-191 Min of Law & Justice/ND/90

Law Commission of 1nd1'a~--~136th Report

The question that troubled the High Courts. until it was resolved by the Supreme
Court, can be best stated by quoting from the judgment of the Supreme Court :--~

"Whilein some States awidow of a victim of a motor vehicle accident can
recover the amount of compensation awarded to her trim the intuit LTCC
company, in a precisely similar fact-situation she would be unable to do so, in
other States, conﬂicting viewg having been taken by the re$pecli\'c High
Courts. The unaesthetic wrinkles from the f ace oflaw require to be removed by
settling the law, so that the same law does not operate on citizens diﬁerently,
depending on the sims of the accident. The qustion is, whether the insurer
is entitled to claim immunity from a decree obtained by the dependants cf the
victim of a fatal accident on the ground that theinsurance policy prcvricd 'a
condition excluding driving by a named person or persons or by any person who
is not duly licensed or by any person who has been disqualiﬁed for holding or
obtaining a driving licence during the period of disqualiﬁcation', and
that such exclusion was permissible in the context of section 96(2)(b)(ii) for
claiming imn1unity"against the obligation to satisfy the judgments against the
insured in respect of third party risks".

On the question of the insurer's liability. the Supreme Court held that the
absolute exclusionary clause had to be read down so as to bring it in conformity V\ ith
the substantive provisions of the Act. What emerges from {the aforesaid illustration
is that it took about 25 years before uniformity in the law as contained in Section 14
of the Hindu '1' Succession Act could be brought about by the Supreme Court. Till
then the law "was being"administered differently in different parts of the country in
terms of the interpretation made bythe respective High Courts of concerned States.
SimilarIy,in the sccondillustration under the Motor Vehicles Act it took nearly 20
years before the law could be uniformly laid down by the Supreme Court. In the
result, a Hindu widow acquired a right to property in one State but not under another
under the identical All-India-Law. The widow of a victim became entitled to
compensation in one State but not in another under the samelaw in an identical
situation. Experience, thus, establishes that inordinate delay of nearly 20 years is
likely to be caused if the task of bringing in uniformityis left only to be settled and
laid down by the Supreme Court in appeals as and when the matter is taken up to
the Supreme Court as also establishe: the need for uniformity in law for application
throughout the country.

2.16. Question to be considered tlu:---machlnery.----This excursus has been
considered necessary in order to enable us to proceed to the next question. If, as
is the theme of the preceding paragraphs, uniformity of decisions and remedying
of the inconvenience caused by conflicting decisions is a desideratum, then what
should be the machinery for maintaining such uniformity? Is the existing machinery
on the subject adequate and if' not. what new measures should be devised for the
purpose? We shall, at the proper place, give some samples of important. points of
law on which there appears to exist conflict of decisions. in that connection, we may
also mention that there are several questions of law on which such a conﬁict existed
in the past for a fairly long period, though the same has been subsequently removed,
either byjudicial pronouncements of the court. or by legislative clariﬁcation inane as
aresult of the recommendations of the Law Commission of India or otlienvise.
At the end of this report, we shall make appropriate recommendations as to the
mechanism to be introduced for the purpose of maintaining uniformity.

CHAPTER III
PRESENT MACHINERY, IF ADEQUATE

3.1. Present machinery: appeal to Supreme C0urt.~----As regards the machinery
at present existing for the purpose of settling a conﬂict of views, it primarily consists
of access to the Supreme Court or legislative intervention. Access to the Supreme
Court by way of appeal is, in the veryﬂnature of things, sporadic and depends on the
accidents of titig ition. A litigant may or may not appeal to the Supreme Court on a
question of law. Even if he has appealed on a question of law, the appeal may be
withdrawn by him for his _own reasons, or the matter may be compromised or other-
wise disposed of, without a decision. Again, even if the matter comes to be heard and
decided on the merits before the Supreme Court, the particular question of law might
not be gone into by the Supreme Court. Other grounds would have supplied the
material for the ﬁnal decision. Thus, clariﬁcation by the Supreme Court--»which
would be a very good step----- is not actually achieved in every case, because the
process is not designed systematically for the purpose.

3.2. Legislative ii1tei'vention.---Legislative intervention designed to clarify the law
which might have become obscure by a conflict of decisions, is also not a very
systematic process. The point of conﬂict may not be brought to the notice of the

cgislature at all. Even if it is brought to the notice of the legislature, the legislature
may not have the time or the inclination to look into it, because of what are regarded
as more pressing demands. Sometimes, even after the Legislature has looked into the
matter and a legislative proposal has been introduced on the subject, the proposal
may not culminate in actual legislation, because the proposal may not be passed or
the Bill, as passed by the House ﬁnally, may not contain the needed clariﬁcation.
No doubt, the functioning of a body like the Law Commission brings to the notice of
the/Legislature the diﬂiculty caused by conflict of decisions on a particular point.
But th: quzstion of legislative time, inclination and other matters mentioned
above, still remains.

3.3. Need for amendment.----1t seems, therefore, that there is need to supplement
the exzisting machinery by creating some apparatus that will be designed directly to
seek and achieve uniformity 'of law temporarily marred by conﬂict of views, The
cause of uniformity has to be improved by removing the defect in the system, where--
under matters in the nature of conflict of decisions do not systematically reach the
courts (the Supreme Court by way of appeal) or the Legislature (for statutory
clarification), or do not reach either of these agencies promptly and effectively. In
order to deal with the subject in a concrete manner, we are making a recommendation
in this report1 as to the machinery that can be devised to achieve uniformity of law.

3.4. Certain speciﬁc enactments concerning Hindu Law cover-ed.~--It is appropriate
to draw attention to the conﬁiet of decisions that seems to exist on various signiﬁcant
points concerning certain speciﬁc enactments. The present report deals with
enactments which constitute an important part of codiﬁed Hindu Law, viz., the
Acts of Parliament relating to (i) Marriage; and (ii) Succession,--« that is to say, the
major statutes relating to Hindu Family Law. In due course, the Commission
hopes to take up certain other important enactments also, from the point of View
of settling the conﬂict of decisions that might have arisen on the subject.

CHAPTER IV

IDENTIFICATION OF SOME PROBLEMS ARISING OUT
OF CONFLICTING DECISIOIN-S OF DIFFERENT HIGH
COURTS AND SUGGESTION OF REMEDIAL MEASURES

4.1. Tnc same law cannot be continued to be aliowed to be interpreted, applied
or administered, in diiferent parts of the country in an incoiisistcnt and conﬂicting
fashion by different High Courts of the cocerned States. The conilict 'may' in
course ottime be resolved by the Supreme Court pI'<)vic/ecl lzowcvw that it is carried
to the S!l[}i'€'m(! Court. (The litigant may not have the will or the resources to approach
the Supreme Court). .Eve~nifti1c contlict ultimately gov resoivcii, may be after a
decade or two. Existing coiiflictsinust,therefore, I7£:ICn1OVCCib§' rcincdial legislative
measures. The stupendous and arduous task can be uiidertakcn only in a phased
manner. In the present chapter the Comniission has dealt. with probicms arising out
of the Hindu Marriage Act, I935 and the Hindu Succession Act, 1956 respectively.

4.3. Can or cannot a respondcint in :1 restitution of conjugal rights petition plead
by wayof defence that the marriage does not subsist? sliould he or site be driven
to a separate suit '.' Section 9 of the Hindu Marriage Act, i955 provides
that when either the liusband or the wife has, without reasonable excuse, withdrawn
from the society of the other, the aggrieved party may apply, by petition, to the
District Court for restitutioii of conjugal rights and the court, on being satisﬁed of the
truth of the statement made in such petition and on being satisﬁed that there is no
legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly. There is an E,\'a_z1/analiorz to the section, dealing
with the burden of proof of reasonable excuse. There is a conflict oi' decisions o11 one
question, nam.-;iy, whether the respondent in the petition for resmiitioii can raise

a plea in defence. that the respondent had already obtained dissolution of the marriage according to custom. T he High Court ofRajastl1au has held 1 that nit'/1 a plea cannot be rai',~'ea'. The reason proffered is that the Act makes no express provision for the adjudication of a claim or defence that the marriage between the contending parties stands dissolved by a decision by a private forum like the Panchayat of the tribe. According to that High Court, such adjudication can be obtained only from the civil court and not from the matrimonial court.

But the Higlz Court of Jammu and Kas/mm'? /ms Ia/cu: u conzi'cu;2> view. 111 its opinion, a petition under section 9 (for restitution) or under section 13 (for divorce) presupposes an existing valid mairiage. The plea that no such marriage exists, either because it never took place or because it was dissolved under a custom or a special enactment, is a defence open to the opposite party to non--suit the petitioner, even if such a defence has not been specifically provided in section 9. According to this view, a matrimonial court can, and indeed is bound to, entertain a defence raising a plea as to non-existence of a inzuriage or its non-performance or any other legal ground. The matrimonial cour::n1u~x:t mould its decree or order in accordance: with its adjudication on it. It would czppea/' that' the [grim view is c0rrc>('t. It is worth noting that section 29(2) of the Hindu £°vI;...r;iage Act, 1955 expressely provides that the Act is not to :.:ﬂ'ect any right recognised by custom or conferred by any special eiiaczment to obtain dissolution of a Hindu lv irriage. Thus, a custom is not abrogated by the Hindu Marriage Act, 1955. Incidentally, the Delhi High Court has held that the custom prevailing amongst Sikh J ats of the Amritsar District to dissolve the marrige otherwise than under the Hindu Marriage Act, l955is recognised bylaw, and where such a dissolution has been made out of court, a subsequent marriage cannot be declared null and void.3 The Conmiission is of the view Ihat.--~--

(1) in order to immunize the unfortunate spouse involved in a matrimonial litigation from the evil of multiplicity of proceedings and (2) in order to ensure that all the controversies between the pm-1163 are resolved by the very court before which their ntatrimonialdisputeis initially brought.

instead of driving the pai'tic.s' 10a_fi'csIz litigation I'm'0lring irzcwrimg 0/' figs]; (-0515 . . , the court must be expr:>ssly enzpourered to resolve? all the relevam i'.v.me.v So that 'Iis' befwc'<=n parrfc< i'-'i'l(4'.§ 0il('t' and for all HI77i",S'.

Law Commission of India-----136th Report To resoive the conﬂict of views and in view of the considerations streesed earlier, it is recommended that an 'Explanation' broadly on the lines indicated hereunder be added to section 9:--- y -e "Explanation 2. The Court before which a petition for restitution of conjugai rights is presented undcrthis section shall have jurisdiction to decide whether the marriage has been dissolved in exercise cl' any right recognised by any custom or conferred by any specialenactment to obtain the dissolution of a Hindu Marriage, being a right saved by subsection (2) of section 29."

4.3 Can one of the spouses who has signed a joint petition for divorce by consent not withdraw his or her consent before the court passes an order granting the prayer ?

Section 13B ofthe Hindu Marriage Act, 1955 provides for divorce by consen :--« "13B, D.vorcc by mutual consent.---(l) Subject to the provisions of this Act .1 p>.:i'=;ion for dissolution of marriage by a decree of divorce may be presented to th: diairict court by both the parties to a marriage together, whether such 1narriag«.:w.is soleniaiiizod before or after the coinmenccinent of the Marriage Laws (Amendment) Act, £976, on the ground that they have been living separately for a period of one your or more, that they have not beenablc to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presenttztion of the petition referred to in subsection (1) and not later than eighteen months after the said date, ifthc petition is not wéthclrawn in the meantime, the Court shall, on being satisﬁed, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solcmnized and that the averinenes in the pe';i.ion are true, pass a decree of divorce declaring til-3 inarriagc to be dissolved with effect froin the date of the decrccf'. [Emphasis added] Arie; the initial p.eti1.io11 for divorce is made jointly by the spouses, the court nmst wait for the period speciﬁed in the section. It is implicittllat the consent to divorce as recorded in the initial petition, can be withdrawn by the consenting spouses before a ﬁnal order passed by the court granting the request for consent decree for divorce. But can the consent be withdrawn by only one of the spouses? According to one view, it can be so withdrawn, 4, 5," However, accorciing to another view,' the xvithdrawuzl pplication m by only one of thetwo spouses is incompetent and having once appended the signature as a joint petitioner, he or she cannot rcsilc from the consent even though no ﬁnal order has been passed by the court acting on thy joint request. Once the signature is made and petition is presented, such is the view, he or silcis tied downto the consent and cannot be allowcdto withdraw from the con ;tant unilaterally provided the signautrc. made in token of the consent is voluiitary and not tainted with fraud.

The Delhi as well as the Bombay High Court subscribe to this view. "

4.3. l. In the result, in one part of India at spouse who has second tl2oz;g!:t~.- on the wisdoln of consenting to at decree for divorce can retrieve the situation bejii)t'e the court passes theﬁnol order, in another part qflndia he or she mnnot do so, thong/t /not/I arc- governed by the some statutory provision of law. Such a situation cannot be cc Lintenanced by t 3 community, particularly in a matter relating to marital status, and the conllict on the point cannot be tolerated. The statute, therefore, deserves to be amended so that the same law has the same consequences everywhere in the country.

4.3.2. Which view deserves to prevail and how to amend the law ?.----Beforc forming an opinion on the issue, th: reasoning which has commended itself to the respective High Courts in support oi' the two dive:gent views needs to be examined. The High Court of D2111! which holds the view that consent 'cannot' be withdrawn by only one of the spouses unilaterally reasons :--"

Saab-sce%.ion (2) provides that if the petitions is not withdrawn in the incan- time, on a joint motion made by the parties not earlier than six months after the date of the preseiitation of the ﬁrst petition referred toin sub--sec. (1) and not later th in l8 months after the said date, if the Court is satisﬁed after hearing the 'panic: and aiter making inquiries that a marriage has been solemnized and the avcrinents in the petition are true, it can pass a decree of divorce. Though sub-sec. (2) of section 13B eizvfsctges withdrawal of the joint petition, it does not it! Low .Commf5£--'i0n of 1ndi_a----~I36'ﬁI Report a prescribe the proceaﬁirejor.wit-fidmivai qfl'iiej0iiIfpe1'ifiL=i1.J' :.I.L¢o alt; Jiﬂfjﬁfiﬁlldﬂj-' other provision in the Act or the Eula; deaifrzg aviris withdrawal of a joint petition presented under section 1313(1). However. section 21 of the Act provides that subject to the other provisions contained in the Act and to such Rules as the High Court may make in this behalf, all proceedings under the Act shall be Iegtilated, as far as may be. by the Code. Tlius, it is ll€\.'--l.'-BE-al'§' to refer to the provisions dealing with withdi-awal and abandonment oi' plaint in the Code. Order 23, Rule 1 prescribe; the procedure for withdrawal and abandonment of a suit. Sub--rule 5 of Rule 1 of Order 23 speciﬁcally deals with the power of the Court 19 permit withdrawal or abandonment ol'a.~suii or part ofaclaim presented jointly by one or more plaintiffs. Sub-r. (5) or' R. I. of0.23 reads thus :

"{5} Nothing inthip rule ahallbc dceined to authorise the Court to permit one of several plaillllffb to abandon a guitar part of aclaim under sub--rule (1), or to _witl1d.raw, Ulltlfl' stab-mic (3), any suit or part of a claim, without the consent of the other' plaint iﬁ':.."

Thus, when the bait is ﬁled by two or more plaizitilis, the Courtuannot permit one of the several paiiiiills to abandon a suit or part of a claim without the consent of the olllcr plalntillk.

ill. Seetioii l3B{l] oi'llu.- Act al:-.0 l3£J111emf'i£l.IL'i:--, joint presentation Ufa pctltioll. It is similar to asuit ﬁled j0l1'l|.'i}'[}_;' no or more plaintiffs. Tliiisjzrsz .73;-izauie o_r;).rw qfr: dctfrti crxrmuﬁre r:fJ.rr.rn'."sm:1'! 5:; w.'.r'iiidr:ai-.«';: E-1: one p4'afii.ti_',ij'; one of rm» 'r;¢J.3"!'{'a"\? «'0 sale yofiiio-ii erzmmt fie pi--'J'imz':m' .10 Ii--'i'r&da'an' the p:=Iz'l'i17n or i7'b.1JI:1i3'!IiF!:' pa':;i_:-'H -ririfiout !i_':2 c'[JJL'c'll.' of me is-ii'.-cs' _;:a.i'I}=. In ol.I1e: v.'c1--d5 a petition ps'es_ented under section l3_B( 1) ofthe Act: aaniiiot be also withdrawn by ens party unilaterally. Of courao, ii' the (.'(:u1't in Satisﬁc-d that me consent was not a fr-e; consent -ancl ii ~.-;a.~. the result oi'1'o:'ce, li'ai;d or undue Eminence then it is :1. dlfferem n1alta1'b;:c.1u:~r,- in such a case the COUIL is cmpowe-red speciﬁcally 1,3 ;-'._~E':_n:,{;t()f._.f,1'§1[lZ the cicerirc. The L.«;:gi5lC1tlI:'c i.=ui'c-ﬂuted section 1313 in the A31 l)'; M arriago Law {Ai'nei1;imui1'.)Ac. l93'6'to p:'o'.'iclo for a speed} dissolution of marri-Lg-3 who-niais Found that tho iIia1'r1agi:isirrotriovablc.The Ixgislalurc pmviderl for an interval apcriod of six months betwcenthe first motion and the éecond rnotionin order to afford the parties ftvrtlier opportunity for reconciliation. it' one party is; allowed to withdraw the consent even when other grounds, naincly that the parties continue to live separately and have not been able to live tu_g¢II1G.i' still subsist and reconciliation is not possible then it willf1'L1s~tratc 'Ell: very pi._irpo~:e of the eztaoimolit. Very p:'ccL0m time of one oi" the parties Who 1125 waited for over '3l)(i1'l0]lii15 for ﬁling the second motion will be wasted and :1 part_v who wants to Ilarass and la guilty of abits: oi' the process of the Court will benefit. This position is made furtlier c.'a:a:' byms. ;'liGI1 ol's1:b-soc. (bin) to section 3 31f J_) of the Act. Uiider this auction, the Court is e.-npowenzzd to grant the decree oven in an ondeﬁznderl case ifit is satisﬁed that the Lwcriiieiits in the petition arc true an-rlth-1: consriitllu iziutual i.li1r'o:'u.r-;.-iicis not been obtained b),'force,li'a11& t}I'1ii1Cl11ClnﬂIlE=1lID-:. in my opinion, since the E£;'CC']1.Li motion as contemplated in section l3B(2_} ha 5 to he $7 joint niotion, section 23 would come into operalioil in :1 Cflwfj lilo: the prc.-.~;ent one wlien one-. of the pa_l'll€-S1'Cf'LlSCS to join in the second motion and the other party has no alternative but to make an applicazionto the court for -tJI'(l.E:i":; on the petiti-on air-zady pie:-cnted under seotion l3B(ljI of 111-: Act "o=ct'm:-2:11-: :=p.:~ci£::<'. 1Zl!l1i3 at' 15 months expires. iff um'l'at2i'aZ wiIIi(fro-um' of L'O.'!.'u'{'l!l i.a';,ii=}'J}1i.tI'L*il'ff'1i? ('o.rm' wiii not be (thin to pg5_s- (1 iirmree in cm zirzdefféaizieci saw m1ci'w' siu_'t{on 23-(395)) of rim Act. 1 am thus unable to accept the contention of the learsied counsel for the respondent that he could unilaterally witha-'».1'_.w the consent without proving 31131 the consent was obtained by force, fraud or undue inﬂuence.' [Emphasis supplied] 4.3.3. The same View is held by the High Court of Bombay 1" as reﬂected in the passage extracted from para ll'.--» "l l. The above-inemioiicd I3l1'L'.Ll11lST.2lL1CcS would rleﬁnltely .SI10'W1;hat [ha husband has filed the petition along Wl!.[l his wéib for a 4tii\'OfCC by mutual consent and thatwhile doing :so.hc acted voluiitarily. Then: was no question oFanycon1"u5cd slate of' mind. Tl11l~.i1t.'J'c is a case where there is abundant cvidenceto show that at the time why-n $114: agtglicasion was made the husband and £l1cwil'c had mutually agreed that the inam go <hould be dissolved.

~ Law Commission of India»-.136th Report Similarly, the various circumstances do indicate that-the parties have been residing separately for more than one year and that there was no possibility of theirliving together. These are all the requirements under section 13-B for making a joint application for divorce. Once these requirements are proved, it would be necessary for the court to grant a decree for divorce. The fact that at a later stage either party does not want a divorce would be irrelevant. What is material is as to whether the above mentioned requirements were existing when the petition was filed."

[Emphasis added] 4.3.4. The contrary view that consent can be withdrawn by one of the two spouses unilaterally is supported by the reasoning unfoldecl in this passage :11 "9. With great respect to the learned Judge of the Punjab and Haryana High Court we are unable to agree, that after a petition is signed and ﬁled in Court by both the parties under section 13-B(l) it cannot be withdrawn by one of them. The very condition prescribed in section 13-B (2) of the Act namely that the petitition has to be considered on the motion of both the parties, means, if one of the parties declines to join the other to ma/(ea motion for consideration of the petition on merits, after six months after the date of presentation of the petition, consideration of the petition on its merits becomes impossible. Therefore, it is clear that while it is open for both the parties to withdraw the petition jointly, it is also open to one of the partcis at her or his option, not to join the other to make a motion for consideration of the petition, in which event, the Court has no power to consider the petition on its merits. That is what happened in this case. Therefore, the learned Judge had no option than to dismiss the petition. In fact as shown earlier the appellant himself in his objection to the application for maintenance, has stated so, though he ll'<'.'3 contended to the contrary in this appeal.

10. Our view receives support from a Division Bench judgment of this Court in Krishnamurthy Rao v. Kamalakshi, AIR 1983 Kant 235. In that case Jagannatha Shetty 1., (as he then was) held that the consent, in the context of passing a decree for divorce, must subsist on the date of hearing. Therefore, consent given on the date of petition is not ﬁnal and irrevocable. If so, there was no necessity for the Legislature to impose the two conditions in section 13-B(2) viz., (1) bar for consideration of the petition for a period of sixvmonths and (2) the consideration of the petition could be only on/the motion of both the parties. Therfore, we are of the View that the respondent wasentitled to withdraw the cosent for divorce given in the petition and when she did so the Court was right in dismissing the petition, indeed it had no other option".

[Emphasis added] 4.3.5. Fallacy in the Delhi view.---The Delhi High Court has erroneously drawn upon the analogy of a civil suit by two plaintiffs which cannot be withdrawn by only one of the plaintiffs. It has been overlooked that both plaintiffs have a joint and common interest in seeking a relief against a defendant and one of the paintiffs cannot abandon the interest of the other. As against this in a joint petition for divorce by consent presented by two spouses, but for their consent at the stage of presentation, the interest of the two spouses is in conﬂict. There is_ no common defendant against whom they have a joint common interest to seek which cannot be abandoned by one of them at the cost of the other. This vital distinction has been overlooked. What is more, the Delhi High Court has not shown awareness of the insurmountable hurdle presented by section l3B(2) which envisions ajoint motion by both the sides (at least six months after the presentation of the petition) being made for a decree. Certainly the spouse having second thoughts cannot be compelled to make a. joint motion for decree. There is no answer to this hurdle. And the High Court has attempted none. The Delhi and Bombay view is therefore ialtogether untenable.

4.3.6. Why the Commission commends the view that consent can be withdrawn by any one of the spouses unilaterally.----There are ﬁve good reasons which induce the Commission to conclude that the view that the consent can be withdrawn even unilaterally at any time before the ﬁnal order is passed by the Court as held by the High Court of Punjab, Karnataka and Kerala (differing from the High Courts of Bombay and Delhi) :---- V e j (1) Consent of both the spouses must subsist till the passing "of the ﬁnal order by the Court granting a decree for divorce by consent. No decree by consent can be passed on the basis of a one-time consent accorded in the past at the point of time when the petition was signed and lodged. It would be unfair 11 l2 Law Commission of India-~136zI'2 Report and incongruous for the court to pass a decree in the face of the clear assertion by one of the Spouser, that there was no "consent on hi .2 or her part at the point of time of passing the so--called consent decree" in a matrimonial matter having serimis .l'CpC1'c1ESSlC-11:; on the life fllld future status oi' the spouse who, on lurther re-llection after appending the signature, has doubts abut the wisdom of doing so.

(2) There is no ba.s'is in logic or law forfreczingthe option of //1c coiwentitzg .spouse as on the date of f)l':'.S'€I1f(lfl0I? of the petition seeking (1 divorce by consent.

(3) The legislative mandate embodied in section l3B(2) compelling the two spou- .~.-es to wczitfor six H1011!/7.5' before moving the courl, bymcessrrry intplication, prov1'di"s the clue to the u'i5ccrm'bl£ purpose of the provi-,i(m, :'z'.:'., to grant time for 'reflection' as also for possible reconciliaticn puirauant thereto. viz., precondition enjoined.

(4) T lac 'motion' for decree for ¢iii'orcc by consent being i'cqz1:'r'm' [0 Di' I?l(;'t./C' by "boll!" of 2'/to.\po1:,s'v.s'caI1not be C0111]3ll(':(l with in case one oi' the spouses is 11c'; p.:'cpai'e<;l to join in making the motion. Su1'el'_vtl1cs:po14se who no longer corz.s'ents cannot be 'comp:.=I:'ed' to join in mori/lg a motion for or drcrec as enjoined by section l3B(2) .

(5) To pass :1 decree by consent in the face of the cxp1'c-ss uasertic ll by we of the two spouses that there was no consent at lllu really crueic.t point of titre of passing the ﬁnal order would be in total iiegatioil of the letter and spi1'lt of the law.

T he C0mmz'.ssI'o1i (!ccordiJzg.7_}' Iran' 110 /zesi/citiorz in rc(r..-1;zlirezldizzg that am 1:'.\'p/.~mc1/ion be added to scction 13 B to the zfffecz that the (30l"?£!'I.'? of both the spouses rcﬂected in the joint petition must .91/bsist at the point' of time trltcn the court passz-'s the ﬁnal order granting the decree as prrzyeti.

4.4. Should the ohiectieziahie or {:i".i€l conduct of one of the spouses sulisequent to the institution of a petition tinder the Isiiatlu Marriage Act, IEFSS be open to exami- nation or should it Er»-2» shutout of co: ' eration. There is a conflict of dc-:-i<.icm-. cnthe question wh::thcr the CC1't(l1ic!T of a gr-?1'SC11 .?.f'lf1' the ﬁiing of inzm-ixnonial petitz-'c1?_ can betaken into accountingra1i:ingrelie~£'1mde2° iht:AcI. particularly where the alleged conatluet amountsto «:72 -'ty.

Can be examined.

4.5 In at Delhi case," in the cross-exainination of the petitiom 1' hU.t--ban(.l.. it was suggested that he was having illicit, relationship wE';hc12c B. Subcsqtzrntly, the respondent-wife in her st;s.ten'u.*;:=t lmp1'(:Vt'-d her allrgaticn 2.11:' said tliat; she hm-{calf had. seen the husband closeted wixli B and sleeping with Bin 3. corttprctnising position. This iinputation not aground pleatietl by the husband inthe petition. It was CC.t't.ull(.l(3L'l'L'l12'=.'L this pagtictilar {]'Jli%C[l.(3 of crueltywas not ta» ken in the pleadings, (:l"._l1ri' initially or by \vc;yot' :tmend1ncnt, it could not be te.l<cn into consitleraticn by the court. The learned Single Judge took n<:.t«: of the relevant :1uth0:'iai«: s and. tli-sag.'eciiig with the contention, cbszcrved :----

"I have considered these cases, but they only state the general rulewhileit is equally well settled that there are exceptions to this rule and it (pen to a court in exceptional cases to take into consideration events which may have taken place subsequent to the film g of the suit and grant relief on their basis Where the relief as claimed orginally in the suit may have become inapproprirzte by reason ofalterecl circumstances andwherethis may appear to be necessary in crdcrto shorten unnecessary litigrtion or to subserve the substantial in'-.0: :.t oi' justice. Ram Darya] v. Ma./'1' Dcvdiji, AIRI 95 6 Raj 12, which I followed in Parilzar v. parihar, AIR 1978 Raj 140. Exceptions must be applied in matrimonial cases, in order to subserve the interest of justice and not to compel the parties to begin another round oflit i gation on the basis of subsequent events and allow the p1'cciouspe,ric(l of their life to go waste. It must be so done depettcliiig, cl" COL3'.-'Se, on the nature of the case, because it is not only the parties which are concerned in the case, but the court has a certain amount of duty and discretion to exercise. The relief entirely depends upon its satisfacticn.TI1:t is why, in C/zandlvc./rain v. Smt. Saroj, 1975 HLR 494 (Raj): AIR 1975 Raj 88, afact elicited in cross ex-sminztion, though not pleaded, was considered as to constitutc--cruelty. In Kzmdmz La} v, Law Commission of India-----136th Report Ktmld Rim!) 1979 Mat LR 352 (P&H), the husband in his suit for nullity and desertion, pleaded an unjustiﬁed impotence against the wife, the wife in her written statement did not say that the false charge of impotence amounted to cruelty and further did not plead that a report of theft was lodged against her with the police, but all this was proved on record. It was held that the wife was justiﬁed in her withdrawal from the society of her husband. I am, therefore, of the view that the learned trial judge" was justiﬁed in holding that he could take into consideration the allegation of adultery made by the wife at the time of cross-examination and in her deposition".

This view was rcaﬂirmed 13, 14 by the Delhi High Court in 1987, 4.6. In a Himachal Pradesh case, a subsequent allegation was taken intoaccount in a case of maintenance. 1"' Cannot be examined 4.7. According to the view propounded by the Allahabad high Court an allegation in the written statement cannot be examined to afford any cause of action. 1"

The pertinent observations are :--

"Having heard learned counsel for the parties on the merits of the appeal, I ﬁnd that it has none. I have already recited in sotne detail the allegations made by the husband in his original petition and even indicated that even if all the facts, stated by the petitioner in his original petition were accepted on their face, no case whether of cruelty or desertion, for judicial separation or divorce could be said to be made out against the respondent. The lower appellate court has recited certain statements, made by the respondent wife in her written statement, while discussing the point wehether the allegations made by the wife regarding the husband's intimacy with his Bhabhi are false and whether they amount to cruelty in law. Now, I must observe, at the very outset, that a fact in order to afford a cause of action for any relief, must precede the initiation of the action. Consequently any allegation made by the wife in her written statement could afford no cause of action for any relief on the husband's petizaion. Therefore, I do not think that the statements made by the wife in her written statement, could afford any ground for granting relief to the husband in the present case and need not have been discussed by the lower appellate court. With regard to the facts preceding the presentation of the petition, I agree with the finding reached on assessment of the evidence by the lower appellate court that none of them could amount to cruelty and at any rate, the allegation of illicit relations between the husband and his Bhabhi. which is said to have been hurled by the wife at him, must be deemed to have been condoned by the cohabitation between the husband and the wife in the year 1969, which resulted in the birth of a child on or about l2'5-1970. after which the parties did not live together.".

4.8. The Punjab High Court has also sustained the proposition that such subsequent statements cannot be taken into account."

4.9. Why the Commission supports the view that the conduct of a spouse even subsequent to the institution of a matrimonial petition should be permitted to be exa- mined.

In the considered opinion ofthc Commission, the contlict on this vital issue deserves to be resolved by a clariﬁcatory amendment of the relevant provisions of law so as to adopt the view propounded by the High Courts which have formed the opinion that conduct of a spouse should not be excluded from consideration merely on the ground that the conduct complained of is subsequent to the institution of the petitionin point of time subject, of course to the rider that the court may insist on the concerned pleading being amended to bring the issue in focus. If the subsequent conduct attributed to the concerned spouse is such that it has a bearing on the matrimonial problems brought before the court, there is no valid reason for refusing to examine the matter pertaining to such conduct. The court would naturally be expected to be anxious to do complete justice between the parties and would not be expected to shut out or exclude matters, otherwise relevant, from examination. For, refusing to look into such matters is likely to result in being disabled to sort out the problems in (I satisfactory Inanner or refusing to sort out some problems on hyperteclmical considerations. The court cannot refuse to face facts by closing the door to the scrutiny of subsequent conduct.Afew illustrations will be useful for 3--l9l Min of Law & Justice/ND/90 13 '14 Law ('n;2imi.m'ori of Indiu~--~~J36rl1 Report proper comprehension of the issue. 'l'ake the case of :1 husband seeking a decree for restitution of conjugal rights. /,1/"suh.vequcnf to the instimtinn ofrlic petition, lie as.raz1lts tlieresponderzt Wife or levels actriisations of adulterous rxondurt or starts living with (1 girlfriend. can such siibsoqzmif conduct be excluded from consideration except at the peril of denying jus'I/'re to the trifc'? Would the court consider it fair to proceedto pass a decree for restitution of conjugal rights in favour of the errant husband by adopting the 'hrtnds-ot'F-- the-subsequent conduct" stance 'F 4.10. The law on the subject is, therefore, in need of legislative clariﬁcation empowering the Court to take into account subsequent conduct and subsequent events.------The best course, in the opinion of the Commissiomwould be to insert at section, say section 21B (la), in the Hindu Marriage Act to the following effect to be inserted between 2lB (I) and 21B (2).

"'2lB(la). Subsequent events.-----In granting relief under this Act, the court shall have power to take into account events subsequent to the ﬁling of the petition. including statements made by a party in the pleadings or in the course of evidence before the court or in aﬂidavits or otherwise, but the court may, in a particular case. refuse to do so in the interests of justice until a plea based on such events is speciﬁcally taken in the petition or in the reply thereto, as ﬁled originally or as amended later with the leave of the court, as the case may be."

4.1 l.l. Whether order granting maintenance to a respondent can be passed even whilst refusing relief claimed by the petitioner and dismissing hislher petition.----~ Section 25 of the Hindu Marrige Act. 1955. confers jurisdiction on the court to pass orders for maintenance (on an application made by the spouse). at the time of passii-lg any decree under that Act. or at any subsequent time. It provides:

".25. Permanent alimony and 1I1ﬂiIlt€'llallC€.~-~(l) Any Court exercising jurisdiction under this Act may, at the time ofp(z.m'1zgm1_i' d('('l'('(' or at any time Xllbset/zteltt thereto. on application made to it for the purpose by either the wife or the husband, as the case may be. order that the respondent shall. pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any. the income and other property of the applicant, the conduct of the parties and other circumstances of the case it may seem to the Court to be just. and any such pay- ment may be secured, if necessary. by a charge on the immovable property ofthe respondent.

(2) lt' the Court is satisﬁed that there is a change in the circumstances of either party at any time after it has made an order under sub-section ( 1), it may. at the instance of either PKWY. Vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the Court is satisﬁed that the party in whose favour an order has been made under this section, has remarried or. if such party is the wife, that she has not remained chaste. or. if such partyis the husband. that he has had sexual intercourse with any woman outside wedlock, it may. at the instance of the other party. vary, modify or rescind any such orderin such manner as the court may deem justf'.

[Emphasis added] Many High Courts have taken the View that this power cannot be exercised where the petition for divorce is (lisnzissm', because. according to these High Courts, the expression "decreeis passed" is referable only to cases where decree granting one of the reliefs undcrthe Act is passed by the court. In other words, in the opinion Offhese High Courts, no order granting maintenance can be passed by (I court whilst r¢'jfzI.s'ing ally .s'1IbsIcmri re rcllij/'zrmlor the Act and irliilsr (li.m1is'.s'im: the main ,-writ/'on as a result thereof.

The High COUFKN' which have propoundecl this view are:

(1) Calcutta."

(2) Gujarat,1"

(3) Orissa.'-'° (4) Punjab & Haryana," and (5) Ra_iasthan.33 V Law C'ommi's.sion of Imiia--136tlz Report 4.1 L2. Maintenance can be granted---the contrary view.-----In the High Court of Bombay itself, there is a conﬂict on this point. One learned Single Judge of the High Court has in 1962 subscribed to the View held by the aforesaid High Courts. But another learned Single Judge has taken a contrary View in 1987 and held that an order for maintenance can be passed In favour of a respondent even in a matter where sub.stantz've relief is refused and I/zeimain petiiionis dismissed. 33 Later on, another learned Single Judge has fallen in line with this View in 1989. 24 4.1 l .3. The Andhra Pradesh High Court, in its recent judgement, has held that the power to grant maintenance under section 25 of the Act can be exercised even where the suit or petition is dismissed.-~The view is expressed that the section does not suffer from any such limitation as is assumed by the other High Courts, whose decisions are referred to hercinbefore. A "decree", in its opinion, means an expression of adjudication. Regardless of whether the suit or petition is allowed or dismissed, the order of the Court constitutes a decree and the expression "at the time of pausing any decree" in section 25 only means "at the time o_f'¢.lisposal oftlze case". And, according to the Andhra lfradesh view,the power to grant maintenance is ancillary to the main power of the disposal of the petition.25 4.11.4. How to resolve the conﬂict?-lt would be anomalous and unjust to interpret the identical_ provision of the aforesaid Central Act as conferring jurisdiction on the matrimonial court to grant maintenance at the time of passing a decree refusing the substantive relief claimed by the petitioner in one State and to so interpret it tliut the court has no such power in another State. A statutory clariﬁcation is, therefore, necessary In order to bring about uniformity in the administration of law in this area throughout the territory of India to which the Act is applicable.

In the considered op1'nz'on of the Commission, the corgﬂict reqmres to be resolved by accepting {lie view propouna'ed by the Andlira Praderlz Hijglz Courtancloyzlze Bombay High Court in its two decisions of 1987 and 1989, namely, the view that the conrzexereising jurisdicﬁon wider the Act is empowered to grant iriainteirance even whilst refusing the substantive relief claimed by the petitioner and disnu'.s'sing In': or her petition. The Commission has formed this opinion for the reasons articulated hereinafte;-j 4.1 L5. Reasons.~--The ﬁvelligh Courts which have formed the opinion that the court has no power to grant mamtenane in a case where the main petition of the pctitioneris dismissed have been impressed by the argument that when the main petition is dismissed, it cannot be said that a decree has been passed within the meaning of section 25 of the Act. Says the Gujarat High Court in Harilal v. Lilcivatizﬂ :

"In our view, the passing of an order of disiizzksal of II petition could not be regarded as the passing of a decree within the meaning of this section. The word "gny" whiclz precedes the word "decree" has been used having regard to the vlzrlous ldmls' of decrees whicli may be passed mzder the provisions of Ilze Act. A decree may be 2: decree for restitution of conjugal rights. It may be a decree for judicial separation. It may be a decree of nullity of marriage. It may be a decree of divorce. At the time of passing any such decree or at any time subsequent thereto, orders can be made as provided in the section.

=l= 9:: is In our view, the language used by the legislature in section 25 is such that the power thereby conferred could only be exercised at the time of passing of any of the decrees referred to in the earlier provisions of the Act or any time subsequent thereto. We are supported in this conclusion by an unreported decision of Chief Justice S.T. Desai and Justice Bakshi given on 28th November 1960 in First Appeal No. 178 of 1960 (Guj). In that case, it has been laid down that Sec. 25 relottes only to an ancillary relief wlzic l: is fiicidental to tlzesubstonrive relief 'that may be granted by the Court, though the incidental relief may be given to other party' .

[Emphasis added] it is this reasoning which has found favour with all the aforesaid ﬁve High Courts and with the learned Single Judge of the Bombay High Court in Shcmtara'm's care." The contrary view, however. is founded on the following_ reasoning which appealed to the Andhra Pradesh High Courtgs i'iz.: ' "The intention of the legislaturcis clear that inasmuch as the matrimonial Court has been seized oi' the matter and has gone into the merits of the controversy between the parties and knows who had committed the wrong and where the justice lay should be empowered to make an order of permanent alimony. The pass.-"rig of any decree includes passiiig of clismfssal of the petition I5 16 Law Commission of India--136tli Report and the decree may be it decree allowing the petition or dismissing the same. The words "any decree" take in both kinds of decrees. Otherwise, the words will not be "any decree" but merely "a decree". Besides there is no meaning in allowing the parties to go to some other Court and start back once again after they have done it before the matrimonial Court which knows their respective strength and can be expected to do justice especially when the Court is one of the Superior Courts in the Country being a District Court or its equivalent".

[Emphasis added] In the opinion of the Commission, the Andhra Pradesh High Court has rightly stressed the aspect that an order passed bya court dismissing the main pﬁtilikll constitutes a decree and the expression "any decree" employed by the Legislature in section 25 is wide enough to cover a decree granting the relief as well as a decree refusingthe relief, fora decree refusing the rclicfis alsoa "decree passed by the court". The expression "at the time of passing the decree" employed by the Legislature in section 25 of the Act cannot be equated with the expression "any decree granting one of the .rellefs under the Act." If the Legislature intended to confer the power on the court only whilst granting a relief, the Legislature would have used the expression "any decree granting ct relief instead of employing the expression "at the time of passing any decree". The contrary view is an extremely narrow view which would prove counter-productive and would defeat the very Purpose of conferring the power on the court to grant maintenance. Because, if the court was passing a decree giving relief to one of the spouses, say, of "restitution of conjugal rights", the court would be doing so on rite ground that the otlterspotrse has no laitgtiil excuse for staying separate. in the everit of reaching such a conclusion, there would possibly be no occasion for awarding maintenance in favour of the spouse found to be at fault whilst granting a decree for restitution of conjugal rights in favour of the petitioner. So also if the court was granting a decree for "judicial separation"inl'z.vour ofthe petitioner, the court would be doing so on the promise that the petitioner had lawful ground for staying separate from the respondent. In that event also, while passing a decree for restitution in favour of the petitioner, there would possibly be no occasion for awarding maintenance to the respondent spouse who was found to be at fault. The same would be the position in amatter where the court upholds the claim of the petitiontr for a decree of nullity. There would be no occasion to award maintenance whllSt upholding the claim of the petitioner that the marriage was a nuility, say, on the ground that a fraud had been practised. Thus there would l2r--'ra'ly be an occasion to award maintenance whilst granting relief to tire petitioner and allowing his or her petition. Surely, the Legislature was not conferring this power for ornamental purposes when in most of the cases there would be no occasion to exercise the power. Regardless of Whether the petitioner was granted, the relief of a decree for "restitution of conjugal rights" or "judicial separation" or "nullity" or whether he was refused such a relief, the respondent could not pray for award of maintenance. In case the petitioner succeeded and the decree was passed in his or lierﬁtvonr, the responaent, being aspotrse at fault who had no right to stay separate and claim maintenance, could not possibly claim maintenance. In the event that tlie petitioner failed, since the court was not passing a decree granting relief, the respondent would not be c'm'i2'lccl to pray jor gnaintenance. In eltlter event, therefore, the respomlent would not be entitled to claim maintenance. It would mean that such a power could perhaps be exercised only whilst granting a decree for divorce and in no other case. Such an inteipretafiotz of the expression "at the time of passing a decree" would, therefore, be virtually tentamoant to rendering the matrimonial conrt powerless to do justice by awarding ntaintename even in at case where the respondent spouse was the wronged party and was entitled to stay separate and claim maintenance. As pointed out by the Andhra Pradesh High Court, the respondent spouse would have to initiate proceedings under section 125 of the Code of Criminal Procedure or under section 18 of the Hindu W0men's Adoptions and Maintenance Act. The result would be tlntt a wronged spouse would be driven to anotlzer court, itzvolving expenditiae of <'0nsiderablc time and money and resulting in considerable misery to the said spouse. It would also be counterproductive to create a situation wlticlt results in multiplicity of proceedings besides distress to the wronged spouse and divesfs the court of the power to do justice between the parties in the very proceeding before the very court. In any Vif)W of the matter, therefore, it is appropriate to resolve the conllict by adding an Explattatioit to sub--section (1) of section 25 providing that the power may be exercised regardless of whether the court granted the relief claimed by the petitioner or whether the court refused any substantive relief under the Act to the petitioner' and dismissed his or her petition either on merits or by reason of the petitioner withdrawing the petition or the same being dismissed for non-prosecution.

Law Commission of I'ndia---136th Report 4.12.1. Whether an application claiming maintenance can be entertained only by the very court which has passed a decree or also by any other court exercising jurisdiction under section 19 Of the Act?---An0ther signiﬁcant question arising under section 25 of the Hindu Marriage AC?» 1935, and in respect of which there are conflicting decisions, is regarding the court to whlch an application for permanent alimony under the said section can be made. The Punjab & Horyano High Court" has taken the view that even if in a petition seeking divorce or 9311}-'0Ih('l' relief under the Act, a decree is passed by 'one' particular court /mrw'ngjurisa'ict1'on under Section I9 of the Act, the opposite party can move 'any' court having jurisdiction under section 19 of the Act in order to seek permanent alimony 01' maintenance, as The case may be. The High Court has supported the conclusion by the reasoning reﬂected in the following passage:_ "It is not disputed that the marriage of the parties was solcmnised within the juyisdiction of District Court, Jullundur, both the parties are residing within the jurisdiction of District Court, Jullundur, although it is not clear as to where they last resided together. Therefore. it is clear that even for a petition under section 25 of the Act, the Iullundur Court will have jurisdiction in this matter, Adverting to the phraseology of S. 25, stress is being laid on the words "on application made to It for the purpose". From these words. it is sought to be inferred that 'it' is the Court which passed the decree, and that court alone, is entitled to entertain such application. Ii' this interpretation were to be placed on these words, it will lead to anomalous results as would be clear from the following example. Suppose, a divorce petition is dismissed by the first Court and the dismissal is conﬁrmed by the High Court and the matter goes to the Supreme Court and the Supreme Court grants a decree of divorce. The interpretation sought to be placed on S. 25 of the Act and on the word 'it' would mean that a. petition for grant of permanent ai11"I1_CvI1Y Ilﬂder Sec. 25 ofthe Act will have to be ﬁled before the Supreme Court. Similarly, if the divorce petition was declined by the ﬁrst Court, but was granted by this Court, the application for the grant of permanent alimony will he to this Court. This is not the scope of either 5. 25, or conveyed by S. 19 of the Act. Moreover. the opening part of S. 25 shows that the proceedlngs may be taken before _'any' Court exercising jurisdiction under this Act and the jurisdiction under this Act IS exercised in view of Sec. 19 of the Act on matters arising under the Act. Therefore, the reasonable interpretation to be placed, would be that S. 25 or for that matter any other section, should be read subject to S. 19 so 'far as the jurisdiction of the Court is concerned unless there is a specific pi'0VLSi0n to the contrary in any particular section. Therefore. on a plain reading of S. 19 and reading it harmoniously with S. 25 of the Act, the only conclusion to be drawn would be that even ifa petition for divorce or any other decree, is granted by one of the Courts having jurisdiction under S. 19 of the Act, it may give cause to the opposite party to move for the grant of permanent alimony or any other Iellef under S. 26 or 27 of the Act, again the jurisdiction Will be governed by S. l9 of the Act and not merely by the passing of a decree by a particular Court".

4.12.2. A contrary view this been falter: by the Bombay High Court" which is of the View that section 19 will not apply to an application made undcrsection 25, l-lindu Marriage Act, 1955, and that no other court except the court passin g the decree will have the jurisdiction to grant permanent alimony, Says the High Court :--~« "The substantive matrimonial reliefs under the scheme ofthe Hindu Marriage Act are governed by Sections 9 to l3B of the Acl1.e. l'o1-restitution of conjugal rights, for judicial separation, for declaration of a void or voidable marriage, for divorce on one of the several co ntlngencles or for d] vorcc by mutual consent. All these substantive reliefs underIhel1'indu_ Marriage Act are to be secured by presenting a petition before the Court oi original ]l.lI'1F.C_ilcllGI'l as deﬁned under Section 19 of the Act. On the other hand. the applications which we have discussed above under Sections .24, 25 and _26 are to be presented durlngthc pendency of the mam _ substantive proceedmg. The _appl1cat1on for interim maintenance under Section 24 has to be presented durlng the pendency of the petition for substantial matrimonial rel1ct'.vSo also application for custody of the child or for maintenance or education. 18 to be presented when the substantive petition for matrimonial relief is pending. The wordings of the opening sentences of Sections 24 and 26 C-lcarly show that the applications are to be presented in any proceeding under T.l'LlS Act. The wordmgs of Section 25 are however slightly different. Section 25 reads in so far as it is relevant for purposes of this revision as follows:----

":15, (1) Any court exercising Jurisdiction under this Act may, at the time of passing any decree or at anytime subsequent thereto, on application made to 1'! Law Coininission of 1ndia--~ 1361/1 Report it for the purpose by either the wife or the husbanil, as the case may be, order that the respondent shall pay to the applicant tor her or his mainte- 118.1106 and Support such gross sum . . . . . . . . . . . . . . . .".

Thus, the application under section 25 has to be pre.~.en'ied to the Court exercising jurisdiction under this Act between the parties in respect of a substantial relief under the Act. The phraseology further shows that it is that Court which can pass an order either at the time of passing any decree for substantial relief or at any time subsequent thereto. It is further clear when the 'section says that such application has to be made to it i.e. referring to the Court exercising jurisdiction under this Act at the time of passing any decree or at any time subsequent thereto.

_ Even viewing the case from another angle, it would be seen that the procee- dings under Sections 24, 25 and 26 of the Hindu Marriage Act are consequential reliefs to the main or substantial reliefs arising out ofthe marriage petition. As far as Sections 24 and 26 are concerned, there can be no dispute that they are to be ﬁled during the pendency of the main proceedings for substantial relief.

In so far as S. 25 is concerned. permanent alimony is a consequential relief to the substantial relief of the determination of matrimonial rights between the parties. The phrase clearly shows that the Court exercising jurisdiction at the time of passing of the decree or subsequent thereto on an application presented before it may pass an order granting relief of permanent alimony and maintenance. The object of the framers appears to be that the Court having Session of the matter relating to substantial relief is also given the jurisdiction to deal with the consequential relief of permanent alimonyf'.

The contrary View of the Punjab and Haryanu H ig/2 C ourz" lms been C()tllll('l'('(l in the following inaimer:~--

"A contrary view has been taken by the learned single Judge of Punjab and Haryana High Court in the matter of Smt. Darshan Kaur V. Malook Singh (AIR 1983 Punj. & Har. 28). According to the learned Judge, Section 19 of the Hindu Marriage Act is applicable to all proceedings including the application under Section 25 of the Act as well. He disagreed with the argument that the phraseology of S. 25, and in particular the words 'on application made to it for the purpose' referred to the court which passed the decree. According to him, this interpretation wouldlead to anomalous results. l respectfully disagree with the said view, inasmuch as firstly the word "petition" in the Hindu Marriage Act is referred. only to those which are presentcdto the Court for substantial reliefs in respect of matrimonial relations inter so while the Word "applicatio1i" is used only for consequential reliefs of interim maintenance. permanent maintenance or for custody and maintenance of children. Section l9 of the Act also refers to "petition" and, in my opinion, obviously to the petition oi substantive reliefs covered by Ss. 9 to 13B of the Act. Further Ss. 24 and 26 from the very nature of the reliefs to be granted refer to the pending proceedings for the main relief and as such have to be ﬁled and presented where the petition for substantive relief is pending. So also S. 25. which, in my opinion. is a consequential relief to be granted at the time of passing of any decree of substantive relief or at any time subsequent thereto. the application thereunder will have to be ﬁled before the Court exercising the jLl1'lsdicti0n at the time of passing of any decree or subsequent thereto.

>11 9.4 Even the plain reading of the opening sentence of S. 25 shows that the sec- tion itself ﬁxes the forum for the relief of permanent alimony and maintenance to be the same Court which is exercising jurisdiction between the husband and wife at the time of passing of a decree_for_substantive matrimonial relief or any time subsequent thereto on an application made to it for the purpose,"

. 4.12.3. Which of the two conflicting views deserves to be ad0pted?-The Law Com- missionis of the opinion that wliilcborlirlie viewsare p/((u.s'iblc, the Punjab view that an application claiming m(IlIllclI(!IZ('(' or pernmnoni alimony under section 25 of the Act can be made to 'emf court within the nieaning of section 19 to wliicli the main petition could have been made. is prefemble. It gains strength from the feet that the Legislature has employed the expression "any Court" instead of employing the expression "tlzc Court". In any case, the 1i'11iIj(lb view' is IIll}I'£' (Yul/IL/Llcl/t't' to ju.ii1'cc in the senst' llllll it I'€'S!IlfS in alleviating the hard.rhi'p ofa spouse eiififlecl to claim ll1(lli7lt'}Ic/IIt"(' or ]lt'I'lIIt'lll€Tll Law Coinmission of /mlin---136th Report alimony. .fl1i'l'0ltIt'tlt'_l' view is likely to occasion. great utirery and hatrdship to such a spouse. An illustration may be useful to buttress this proposition. Say a husband obtains an ex parte divorce decree at Bombay. The wife residing at Madras where the marriage was solemnized will be obliged to go to Bombay to seek alimony involving time-cost, travel-cost and money-cost which she cannot possibly afford. She may ﬁnd it practically impossible to do 50. Such would not be the position if she can move the Madras Court where the marriage was solemnized. Accordingly, the view that an application for maintenance, etc., under section 25 of the Act can be made to 'any' court in which the main petition could have been instituted having regard to section 19 of the Act deserves to be adopted.

4.12.4. Recommc-ndation.----In order to resolve the conﬂict on the question, in the opinion of the Law Commission, it would be appropriate to amend section 19, Hindu Marriage Act, by inserting the words "including an application under section 25" after the words "every petition" and before the words "under the Act"

in the opening line thereof.

4.13.1. Whether the court passing an ex parte decree can itself set it aside under Order 9, rule 11, CPC, or whether the litigant should be obliged to prefer an appeal?- There is a conﬂict of decisions on the question whether or not an ex parte decree passed under the Hindu Marriage Act can be set aside on an application made by the respondent under the provisions of Order 9, rule 13, Code of Civil Procedure, 1973. The view of Delhi 33, K-urn; take. 33 and Madras 34 High Courts is that the court passing the decree has the power to set aside but the Guuhati High Court ' holds otherwise. The Madras High Court in its latest jztdgrnezit. concurring with the views of the Delhi and Karnataka High Courts that an ex parte decree can beset aside by that very Court, holds:----

"Under S.2l of the Act,it lies been provided th;t subject to the other provisions of the Act and also to the rules framed thereunder, all proceedings under this Act shall be regulated as far as may be, by the Code of Civil Procedure. S. 28(l) of the 'Act states that all decrees made by the Court in any proceeding under this Act shall be appeallable as decrees of the Court made in the exercise 'of its original civil jurisdiction and every such appeal shall lie to the Court to which appeal ordinarily lies from the decisions of the Court given in the exercise its original civil jurisdiction. Encouraged by the provision so made under S. 28(1) of the Act, learned counsel for the petitioner was emboldened to contend that the remedy of the respondent was only to appeal and not an applicution to set aside the ex parte decree. There is no provision either in the Act or in the Rules framed thereunder as to the setting aside of on ex parte decree passed under its provisions. It is also not disputed that the Rules framed by this Court do not provide for it. In the absence, therefore, of provisions in the Act and also the Rules framed thereunder under 8. 21 of the Act,.the proceedings under the Act stand regulated by the provisions of the Civil Procedure Code. In S. 21 of the Act, there is no indication that procedural part of the Civil Procedure Code alone would be applicable and notthe substmtive part of it.Primafacie, it would appear that in the absence of any restriction to the applicability of the substantive provisions of the Civil Procedure Codezn application for setting aside the ex parte decree passed under the Act would lie under 0. 9 R.) 13. C.P.C."

[Emphasis added] 4.13.2. The contrary l'l('l\' taken by Gauhati High Court 35 to the eﬂect that an application under order .9, rule 13, Code of Civil Procedure. for setting aside an 'ex parte' decree passed under the Hindu Jwarriage Act, 1955, is not maintainnable is expressed thus :--

"It is made clear that subject to the other provisions contained in the Hindu Marriage Act, all proceedings under the said Act shall be regulated, as far as may be, by the Civil P.C. Therefore, the mandatory provisions of S. 28 (1) of the Hindu Marriage Act cannot be regulated by 0.9 R. 13 of the C. P. C. for setting aside an ex parte decree. All decrees made by the Court in any proceeding under the Hindu Marriage Act also include an ex parte decree. Therefore, only appeal will lie against an exparte decree as laid down under the mandatory provisions of S. 28(1) of the Hindu Marriage Act. An application under 0.9 R.13 C. P.C. for setting aside such ex parte decree, is not msinta.inable. The learned Additional District Judge committed error in law. The order dated 7-2-83 is liable to be set aside". ' V 19 .Law Conmzission of Imh'a~ 136112 Report 4.13.3. How to resolve the coriﬂict.----Tlre consensus view held by Delhi, Karnataka and Madras High Courts is supported by sound reasons. The Gauhati High Court has taken a very nrwrrow view without €X"II1lIlll" g the reasoning of all the other High Courts. There is no re; son why the litigants in Assa.m should suffer hardship and injustice by being obliged to approach the appella te court incurring further time cost and money-cost instead of seeking the setting aside of the 'ex parte' decree in the very court. A statutory clariﬁcation is, therefore, required to be made in order to bring about uniformity of law in the areas to which the Act is applicable. It is, therefore, recommended that a newsection, say section 28A, should be inserted in Hindu Marriage Act, 1955, on the following lines. :--

"28A.(l) In any case in which a decree is pcssed ex parte against the respondent, he may a.pply to the Court by which the decree was passed for an order to set it aside, and if he sriisﬁes the Court that summons was not duly served or that he was prevented by sufficient cause from appearing when the case was called on for hearing the Court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks ﬁt, and shall appoint a day for proceeding with the case.

(2) No decree shall be set aside on any such appliczation as aforesaid unless notice thereof has been served en the opposite prrty."

4.14.1 Whether an appeal against a decree of divorce abates on the death of the spouse obtaining the decree?--There is a conﬂict in the decisions on the question whc ther an zzppeal against a decree of divorce or an application made under Order 9, rule 13, Code of Civil Procedure, 1973, for setting aside an ex parte decree of divorce would abrte on the death of the spouse in whose favour decree of divorce has been passed. The Bombay High Court 3" is of the view that an appeal against a decree of divorce will not abate on the death of the respondent pending appeal. The Karnataka High Court 37 has comrurre.-2' with this view. The following reasons prevailed with the Bombay High Court 33 in arriving at its conclusions.---

"It may be conceded that the position is not free from doubt, but where this is so, equitable considerations must prevail to rid bearing in mind the nature of the conclusion, the far-reachiri g effect of the ﬁndings of the Court, both on personal status and property rights, it is desrra.ble 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."

4.14.2. A Contrary view that such an appeal would abate has been taken by the Madras High Court 39 on the following reasoning :--

"On the passing of the ex parte decree of divorce the marriage between the respondent and deceased Ramanrthan stood dissolved and on the death of Ramanathan, even on the footing that there had been no prior dissolution of mvrririge the matrimonial knot was once and for all irrevocably united on 3-6-1984. It is doubtful whether even in cases where the marriage has been dissolved by death there is a power in the Cr urt to declare that it continued for some other reasons. It is necessary to remember that a man after the death can no more be divorced or secure a. decree of divorce than he can be considered to be married or even condemned to death. On the death of the husband, in this case, the matrimonial knot did not any longer subsist and thereafter there cannot be a decree of divorce dissolving the ma rriiige. The so-called question of status on the sis of which the lower appellate Court was inclined to implead the petitioner as a legal representzntive does not carry any conviction. In this case, on the obtaining of the decree of divorce ex parte, the respondent became .1 divorcee and that status was unalterably ﬁxed to her by the subsequent demise of Ramnathan. It is difficult to understand how and by wh: t process the respondent who was a divorcee on 24-10-1983, when the ex parte decree of divorce was passed and on 3-6-1984, when Ramanathan died, could claim the status of a widow. This would assume that despite the decree of divorce dissolving the mairia ge, the marriage had continued to subsist till the date of death of Raman: than, for which there is no basis whatever in law. Further, when the marital knot had been untied by the decree of divorce, thereis no basis whatever for cssuming that the marriagr had subsisted even thereafter in order to confer the status of a widow on the respondent herein on the death of Ramanathan. On the facts of this case, it is seen that the respondent was onlya divorcee from the date of passing of the decree and also on the Lmr Cotizmfssioxl of Ina'icI--~--I36tlz Report date c-3:" death of her husband and she cannot lay any claim as the widovu of Ramanathan unless she can re:'~uri to some atalutnry provisions enabling her to do so. The Court below W'as, thL3'.'€fOi'C, in error in holding thatth: question ofthe stzzms ofihc respondent would make some diﬂfercncc to the l'ac11ie's.5 situation obtaining in this case."

4.14.3. Why in the opinion of the Law Commission the View subscribed to by the Bombay and Karnataka High Conrfs is correct and how to salvage the situation arising out of the conﬂici-- A decree for divorce involves declaration and nd_iudic23.tio11 oftlzc staiusiof a. spouse. B-.2: its relexrance does not disappear' when Liv: other spouse, S2,];-'hl.lSba.1]Cl, dies. lithe decree is unienablc in law, the status oi' llll': ~.vil'e will subsist. in that case she would be entitled to S1:CC€:c(.'L to 'aim esta-'.e of her dgc;-g_5,3d_ husband in her capaciiy as his vvidow. if £11"L1',E;'ErZ'fiE£1lil6'll'E£iiﬂcllltlle on rim dead: of, say. 2'J'a'e ll-:isl;»-.9*r:n-', firm eircn on 2.mzmczbfe? ciecrce of divorce passer! against the wifér will remain lnﬁilljbrce and she will be deprived of her rigfzt to succeed to the estate' of her deceased fmsbmul in .691' capacity as fziy widow. The view that the proceeding does not abate is plausible and there is no compufsion in law 9;: logic to hold oihcnvise. Ir, Ilwrcf0:'e, sm1:a's»to redson,m2da1.9o prornorei (he ends o_;'f;'mi'e'c:>, to adopt (fr: B0mb(t}'- Km'mrt;:lca view firm: the proceeding does not ctbrlle.

4.l4.4. Recmnnacndati'on.---in ord_e1' to resolve the conflict on this vital issue. it i~. desirable to specifically provide in the Hindu Marriage Act by way of amendment that no appeal against the decree for rlivorcc or rrulilay of rnmriagc and no upplicatioia made for selling aside an ex parte riecrcc for divorce or nullity' of lT1':l.l'l'lL7g£' ahali abate on the death of" the ;'esponde!1t':1 spa-nae. This s.:r:eno'r:-,enc can be czwried out by way' of the lIIS€IElCl1 of 21 new sub~sec'.ion as sub-section (5) to ~'.::C'-.l0n 28 ofthe Hindu Marriage Act. 1955.

=l.l5.l. Can :3. Matrimonial Court pass an order in respect of the personal property presﬁlltﬂd at or about the time. of marriage to one 0!' the spouses which is lying at the mntrinrnnia-.l lmme.~J[l:L'e conﬂict of' decisions on this point centres. on the p;'ecli'.c w,£0]l*l.} ofseciion 2? of the Hindu Marriage Act, 1955 quoted hereunderzw ":7. D12 pose. of pr-op'.fr1y.---- In any proceeding under' this Act, she norm rnay Ella'.-ZIC such _:1Ti:3'.'lSiCn'a' an Ihe. decree 5..-; ;: deems. gust ano' proper _with respect to any property presented. at or about the time of marriage. which may belong ~ss jointly Lo both the husband and the wile. .

A queslionhas arisen under this provision whether the Matrimonial Court cart plus an orcier regarding the disposal of property received by a spouse individually as 3 present at or about me time of marriage whilst disposing of a substantive proceeding under the Act. Accordi.ng to Allahabad High Com'? 4°. section 27 does not ('.r.'('llm'(* rke jm'i5n'ic rim: or the power Qffflﬂ Com? to pan an appropriate (Iecree in regard' {O the properrywliicllmay belong eiIher'.9oleIyIo the Imsbarzdor_¢m'el_1= to rite 11-'.rﬁ3. This power, in the nature ol'thing§. is inherent 1n the legal proceedings' which appropriately Ltrise under the Hindu Marnzugo Act. ll has been held lha: since section 21 of the Act confers on the Matrimonial Court all the powers Oflhc civil court. byrecourse to section I5] of the Code ol' Civil Procedure which pert-u.ii1:. 1ui13h€.'€11i powers to make such orders as may be necessasry for ihe ends of justice or to prevent abuse of the process of the court, the court can grant general or other relief which it may think just nnd. proper under the circumstances established in 3. given case. t2fcaur.n;', crnorfier fezirimi Single .Imlgc afrlze smne High Court 11:13 51.-b.seq:zenrZ,i* rakenacontrary view ow'rienrl'y umnr-are of the mrlier view 41. Since the earlier view could not have been _}'CV(}}"S&& except by a larger Bench, in the Allahabad High Court itself, 111.3;-.3 £5 3 corilliei on this point.

4.15.2. The High Courts of Jammn & Kaslamir", 43, Delhi 4". Orissa 4' and Punjab & Haryana 4', ",4", '*9 have dissmled from the decision of the Allahabad H lg}: Court and have taken the view that section 2'! excludes, liy necws.-=l.r_v int-endment. its application to the property, which ihe party seeking a; direction from the Court claims that it exclnsivel_v belongs to it.--~ It has further held that the court cannot make provision in respect of the individual property of aspouse in the decree in exercise of its inherent powers under section l5l of the Code of Civil Procedure.

4.15 .3. How to resolve the coI1l|ict?----Th.e real controversy centres round me debate as to v.-nether the inherent powers undo: secuou 151 of the Code of Civn Procedure canbe invoked in a petition under the Hindu Marriage Act in order to do complete justice between the facilities having regard to the fa ct that section 27 of the Act is not happily worded so as to cover within its sweep incidental dispute;

-i----l91 Min of Law & lustice,-'NDIFU 21 Lair C0lI1IJli.S'.§'i0}T of India-----13Gt/2 .Rcpoi'f oi' this nature. The Allahabad rieir (lull in/iert'iti [rowers can be iiii'0/cod to _m1.s'.\ incidental OI':/e'l'.\ on related }Iit1I7('I'S' Qft}iismiti1r'(' zi'esei'i-'es to be adopted in oiufcr to once and for all putan em! 10 all the legal dispii1esari.s'z'n_q out of their martini tie. Otherwise the spouse, say, the wife, who complains that the property gifted to her. being her separate and exclusive property kept at the matrimonial house. is being held back by the husband will have to file a separate suit. Taking ofsuch a view will mail! in uiizti',_27/.r'ci!y 0_/'pro<'eerlJng.s'. more i}7l'('.S'fI71t'JH o/'n'mi*. costs. mid ruiming In faw_i'er:t rim.' a'0l1f'ISand(!Il0f]7€r"i'0L!l1(1Q/I/flligtlllioil .".'tc'i'ca.s'1'iigc(i'm'(i'(ib!e work load iiin'iut'o1n'ix. T/I4' .4/lct/iabad view, f/reitjfi)/'c. (//.'.S'('I'|'('S to he zitfopfim'. Sectioii 27 (ic('0i'(liiig/_i'nee:/.3' to i'?(' imteizded and words 'or i'.\'t'/m:.ii'('/_,i" slzoiild he tltiizfecl after the words' 'ii'/iirli HI(l_1' bi'i'nnc ioinllyi mid bcffore I/It' ls'()I'(/.\' 'I0 1201/; the lizi.sI)rrIi(.'mm' wife'. and I'/It' l.aii' ("miiIi1i's.si'oi1 rec-ommem/.3' (I('('())'(/1.17.2/_l'.

4. l 6. 3 . Wliether section 23 of the Hindu Succession Act, 1956 is applicable where there is only one male heir of the intestate? ----Therc is a conilic'. oi' judicial opinion among the various High Courts about the precise scope and zlpplicttbiliiy of section 23 of Hindu Succession Act, E956 in the CO11"s':Xt of the situation where a Hindu male or female. dies intestate leaving behind a family comprircd of one male heir and one or more female heirs. The question is whether section 23 wiil be attrztcted in such a situation and uhethci a female heir will be denied the right oi partition of the dwelling house untii the male heir chooses to claim partition othis sliarc therein. The said provision runs thus: --~ '"23. Special provision respecting dwelling houses.----Where a Hindu intestate has left surviving him or her both male and female heirs speciﬁed in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shallbe entitled to a right of residence therein :

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling--house only if she isunmarried or has been deserted by or has separated from her husband or IS a widow."

4.16.2. The Calcutta5'°,51 Gujarat", ](erala53 and Madras 54, High Courts have held that Section 23 of the Act will be attracted even in such a situation and a female heir cannot claim partition of the din-liing--house until the male heir chooses to claim partition of his share therein.~The reasoning of the Madras High Court 57'. which COl1Ci.lt'.\ with the Calcutta High Court. is unfolded in the passage extracted from iix judging-nt:--~ ". . .we are of the opinion that the Parliament, while enacting this section should have felt that the dwelling-house of a Hindu joint family should be regarded as an impartible asset treasured by the ancient Hindu tenants and as such the dwelling-house should be allowed to be preserved by the family until the male heir or male heirs. as the case may be, mentioned in Class I of the Schedule, opted for dividing the same and to that extent the Parliament wanted to recognise the traditions and sentiments so cherished by the ancient Hindu families from time immemorial. If the male members choose to divitlc the family house among themselves. or if a single male member chooses to divide it among the respective shares or alicnates his share to a stranger. then it would mean that the contingency has arisen whereby the male members are no longer capable of preserving the dwelling house. That is why the Parliament 1183.

under the section. allowed the female members to claim partition in case the male members choose to divide their I'C'>pCCiiVe s~h3.re:~ in the house. At this juncture, we may point out that the Parliament has not in any way restricted the right of the female member to claim partition in the other properties left by the intestate. In our opinion, so long .the male members do not choose to divide thrir respective >]1<u'es in the dwt..-.-.';g house, the dwelling house is in a way excluded from division, subject to the right of the female members to a share th:;'ein and the right of residence oi' the unmarried female members, etc. While doing so, the Parliament ~hould have taken into account the fact that the female membxs aftc; th:ir m. 2';-iagc naturally live with their husbands in their houses. if at the ll1»'~,£t11CC oi' such female members, the dwelling' house is allowed to b; pgy-.;ii,ic..ncd against the wishes of the male h>ir, he may be put to great hardship and be COITI.f)f'liCCi to alienate the house if it its iitcapable of division.

Law Commission of India---136th Report Therefore it was but just that the family dwelling house should be allowed to be kept by the male members till they chose to divide it, and the female members should not be the persons resppnsible for the disintegration and f1'agmcnt.atio11 of the dwelling house. In fact, section 23 has been introduced as a '>p8Cl3l provision respecting dwelling houses, as clearly seen from the heading of the section itself, thereby laying emphasis on the preservation of the dwelling house. It was for these reasons, in our opinion, the Parliament has given the male members an edge over the female members in the matter of the option for partition of the dwelling house. But, at the same time, it is signiﬁcant to note that the proviso to S. 23 preserves the right of residence of a female heir who is unmarried or is deserted by or has separated from her husband, or is a widow.

The ]l{adra.r High Court reaiised that great Imrdslnp irouid 8I?l{I'(? to the _jL'J7la[(' heirs but argued that it was a lesser cvil than the resultant injustice to the male heir:

"We are conscious of the fact that there are certain hard cases where for instance,thc intestate has left onlya big mansion in the form ofa dwelling house and no other property, (and is) survived by a single male heir and one or more female heirs. In such cases even though the female heirs are entitled toa share in the property of the intestate under the Act. such right would practically be defeated and frustrated since there is no possibility of the single male heir choosing to divide the shares in the property of the intestate, and thus the right of the female co-heirs to have a partition of their shares i s likely to be successfully obstructed for ever. In such cases, the right to demand partition, vested in the female heir, will be permanently postponed and ultimately, frustrated. Such hard contingencies would cause great hardship to the female heirs; but that cannot be avoided. In our opinion, if the view of the Orissa High Court, followed by Padmanabhan, J. is to be accepted, then, in our opinion, gross injustice would be done to the single male heir and the very object with which the section has been enacted would be completely nulliﬁed. In our view, the hardship that would be caused to the female heirs in not being able to cialm partition is certainly relatively less than the injustice that could be done to the single male member. Despite the above opinion held by us, we cannot help observing that it is very unfortunate that section 23 is not very carefully and lucidly worded in a particularity of language. avoiding the scope of different interpretations. In our view, section 23 deserves modiﬁcation so as to avoid difficulties of interpretation leading to divergent views and consequent anomaly".

4.l6.3. A contra:-_;» view has been taken by tlte_Bomb(ty 5", Qzrmttaka 57 and 0rfssa53 High Courts. Says Bombzzy High Court°9.--~ "Now, it is true that the object of section 23 is to prevent fragmentation and disintegration of a family dwelling-house at the instance of a female heir or heirs to the prejudice of the male heirs. True it is that it is in tended to repeat one of the ancient Hindu tenets to preserve a family dwelling house as an impartible asset. It is a special provision meant to preserve and safeguard a family dwelling-house.whenit devolves in accordance with provisions of this Act. It cannot be gainsaid that the female heirs speciﬁed in class--l inherit the share even in the dwelling-house absolutely. The course of devolution of property under section 8 of the Act, however, is restricted, so far as female heirs are cocerned, and this restriction is to operate only till the happening of an event envisaged under sec1:ion 23 of the Act. Their right is only kept in abeyanee until the male heirs choose to divide their respective sharesin the family house. When the;c are more than one heir of the intestate residing jointly together- and forming a joint Hindu family, it is in the ﬁtness of things and as intended by the the legislature that at the instance of female heirs who are strangers, theirjoint abode should not be disrupted and their joint status impaired. But this object no' tiger survives when there IS no joint Hindu family with male members residing together in a family house on one hand, and female heir on the other. With a sole surviving copzwreener or a lone male heir with other female heir or heirs on whom the property (including the dwellinghouse) devolves as per the provisions of section 8 of the Act and who all take simultaneously, they are all tenants-in-common. To restrict their rights in such situation also is not merely to postpone that restriction till the happening of any event (as that event can never occur) but practically destroy and deny that right for ever.".

Law Commission ofIncliu-1361/1 Report 4.16.4. Why the Bombay-Karnataka-Orissa View that the female heirs should in such a situation be entitled to claim partition deserves to prevail. There is no good answer tothe vital point made by the Bombay High Court to the effect that ii' the rights of the female co--owner who inherits the property along with the male co-owners is curtailed to this extent that even if there is no joint family comprising of male heirs in existance, the female heir cannot claim partition 1'1 will virtually tcntamount to taking away from the female heir by another hand what is given to her by the Parliament by one hand. The Mac/ms High Court View that t/tefemale co-owner must suﬂer t/zis l'm'iistice lest the male c0--o'n'ner will /raw to suffer is in c{1',v/zorinany am! out of time with the constitutional p/zilosop/1y of equality between both the sexes and smatks of at pro-male and cmti-female bias. Surely a female c'o--0H'ner Cannot be denied the es.s'em'e of tire rig/ztmere/y because oflzer gender even wire}: the reason for the rule has virtually disappeared in tlie situat1'0nm'1ere there is only one male co-owner mm' the argument of preserving the joint family is no longer ava1'la'b1c. The anachronism. therefore, deserves 10 be removed by a suitable amendment on the lines indicated liereinaftcr.

4.16.5. How to resolve the contiict?----In order to resolve the existing conﬂict and anomaly centering on the interpretation and the scope of applicability of section 23 of the Act, the Law Commission recommends that section 23 be amended by inco1'p0I'E'.tlDg a further proviso to the existing proviso to semi on 23 of lhe Act in the following terms :

"Provided further that the :provisions ofthis section shall not apply where Ihefg

- ' 9 is only one male heir. ' CHAPTER V CONCLUSIONS & RECOMMENDATIONS 5.1. Conclusioi1.----The Commission. is of the considered opinion that the anomaly and incongruity arising on account of the identical provisions of the identical Central laws being construed as having one meaning in some parts of India and the same having different meaning in other parts of India, by reason of the conflict of views of the different High Courts, needs to be straightened out for the sake of achieving uniformity in the interpretation and application of Central laws throughout India, and for the sake of ensuring equality before law in this area, two steps deserve to be taken :--~ (1) Removal of existing con_ﬂi'cts by legislative measures calculated to clarify the law by appropriate aineiidnients in a phased miiniier, and (2) To devise a iiiechaiiiimz to i?lTSi'i'I':° that no site/z coiiﬂi'cfs come fiito ¢'2.7t'l'.i'l'¢'ltC'€ or remain unresolved in tiiiiire so as to obviate the need for legislative amendments in future.

To this end we make two recommendations:

FIRST RECOMMENDATIONS 5.2. Removal of existing coi1ﬂicts.------In this context we recomniened that existing anomalies in the area of Hindu Mai'riage Act and Hindu Succession Act are removed by legislative measures on the indicated lines as suggested in Chapter IV. As a result thereof, throughout the country in all the States to which the concerned Central Act applies, uniformity of law will be secured in the relevant area, and in all such States instead of only in some States:

1. The matrimonial court, ina petition for restitution of conjugal rights,' will have jurisdiction to entertain a defence raising the plea to the eti'ect that the ' marriage had already been dissolved as per custom 'p1'l01' to the institution of the petition.

(See Chapter IV, para 4.2)

2. One of the two spouses who have presented a joint petition for divorce by consent can withdraw his or her consent before the Court passes the final order.

(See Chapter IV, para 4.3)

3. The objectionable or crueleonduct of the other spouse 'subsequent' to the institution of a matrimonial petition willhe open to exii.minationinthe same proceeding.

(See Chapter IV. paras 4.4 to 4.10)

4. An order granting maintenance can be passed by any matrimonial court under section 25(1) of Hindu Marriage Act at the time of passing a decree regardless of whether the petitioner's prayer for relief is granted or _ not and regardless of whether the petition is allowed or dismissed.

(See Chapter IV, para 4.11)

5. An application claiming maintenance or 'permanent alimony can be entertained 'by any of_the courts having Jttflsdlclloll in the context of section £9 of the Hindu Marriage Act instead of only the court passing the decree.

(See Cliapter IV. para 4.12)

6. Alitigant against whom an ex ptirro decree is passeil under the Hindu Marriage Act can apply to the same court for setting aside the decree on . suﬁicient cause being shown instead of being driven to an appellate court.

(See Chapter IV, para 4.13) 25 26 Law Commission of IIl(iia~~]35f]I Report

7. An appeal against a decree for divorce or a proceeding to set aside an ex parte divorce decree is not considered as having abated on the death of the spouse obtaining the decree.

(See Chapter IV, para 4.14)

8. Whilst disposing of a substantive proceeding under the Hindu Marriage Act, the concerned matrimonial court will be empowered to pass appropriate orders also regarding the individual property belonging to one spouse lying with the other spouse instead of obliging such a spouse to undergo another round of Iitigation, and incur further time-cost, money-cost and effort-cost.

(See Chapter IV, para 4.15)

9. The bar against a female co-owner claiming partition of her share in a dwelling house inherited along with other male heirs will not operate even in a situation where there is one male co-owner so that her right is not rendered virtually unexercisable and valueless.

(See Chapter IV, para 4.16) SECOND RECOMMENDATION The need for evolving a mechanism for nipping in the bud the couﬂicting interpretation at the High Court level and the suggested solution.

5.3.1. The question that requires to be addressed to is as regards the need for evolving suitable machinery so as to maintain, strengthen and restore uniformity on questions of law. For, the present constitutional and statutory provisions that are designed to maintain such uniformityl operate only when the matter reaches the highest judiciary by way of appeal by the aggrieved party or the Legislature ﬁnds time to attend to the conflict of decisions. If one keeps aside certain special provisions, such as the advisory jurisdiction of the Supreme Court, one ﬁnds that a point on which there is want of uniformity can come up for decision only when a litigant invokes the jurisdiction of the Supreme Court. In other words, if alitigant who has failed in the High Court on 9. question of law cannot afford to go to the Supreme Court, or does not, for any reason, propose to approach the Supreme Court, then the ruling of the High Court stands. The conﬂict of decisions ona particular point of law will then remain as it is. This is not a satisfactory position.

5.3.2. To allow a conﬂict of views between High Courts to arise and languish in comfort for many years, even decades, before resolving it 'if' the conﬂictis carried to the Supreme Court and ironed out in due course 'when' the matter happens to come up for hearing there, is less than an exemplary solution. A much better, much speedier, and much more satisfactory solution which will systematically address this problem deserves to be evolved. And such is the present endeavour of the Commis- sron.

5.3.3. The contours of the suggested solution are :

(1) When High Court "A" is faced with a problem pertaining to an all-India law (excluding the Constitution of India) on which High Court "B" has already made a pronouncement, if High Court "A" holds a view diﬂerent or inconsistent from the view already pronounced byHigh Cour-t"B",I-ligh Court "A", instead of making its own pronouncement, shall make a reference to the Supreme Court. The order of reference shall be accompanied by 'a reasoned opinion propounding its own view with particular speciﬁcation of reasons for differing from the view pronounced by High Court "B".

(2) (8) The party supporting the reference may arrange for appearance in the Supreme Court but will not be obliged to do so.

(b) The said party will have the option of submitting written submissions supplementing the reasoning embodied in the order of reference.

(c) The party opposing the reference shall also have a similar option for engaging an advocate in the Supreme Court and submitting written submissions, inter alia to counter the written submissions, if any, submitted by the other side.

Law Commission of Itzdz'a---136th Report (3) The Supreme Court may require the Government of the State in which the High Courts "A" and "B" are situated to appoint at the State's cost any advocate from the State panel of lawyers of the concerned States to support by oral arguments the view points of the respective High Courts.

(4) All such references may be 'assigned to a Special Bench which may endeavour to dispose of all such references within six months of the receipt of the references in the Supreme Court in view of the inherent urgency to ensure uniformity.

(5) If any SLP or appeal is already pending on the same point from judgment of High Court "B" or any other High Court, the said matter may be clubbed alongwith the reference. Any interested party may be permitted to appear as interveners.

(6) The Supreme Court may return the reference if it appears that the parties are acting in collusion.

(7) The Attorney General may be served with a copy of the referene and he shall be entitled to urge the point of view of the Central Government in regard to the relevant provision of the concerned Central Statute, if so desired.

(8) The referring High Court shall ﬁnally dispose of the appeal on all points in the light of the decision of the Supreme Court in regard to the referred point.

(9) The decision of the Supreme Court in the reference will have no impact or effect on the decision of High Court "B" in the event of the Supreme Court upholding the reference in case it has become ﬁnal between the parties by reason of the matter not having been carried to the Supreme Court and the said decision shall remain undisturbed as between the parties in High Court "Baa.

5.3.4. In order to give effect to the aforesaid recommendation, a suitable legislation may have to be enacted. A draft of the suggested legislation has been appended for the sake of facilitating the task. V 5.3.5. The First Recommendation, if and when accepted, will result in removal of the existing conﬁict and disharmony in some areas of law forthwith, and in other areas of law, in course of time, in aphased manner. In the result, the evident injustice occasioned to citizens by denial of equal treatment under the identical provision of an identical all--India law, will be remedied.

The Second Recommendation, if and when implemented, it is hoped, will result in nipping in the very bud such conflicts in the future. And the citizens will be protected from deprival of equality of treatment under the very same law.

5.3.6. The Commission, therefore, recommends accordingly.

Sd./- .

(M. P. THAKKAR) Chairman Sd./- Sd./-

(Y. V. ANJANEYULU) (P. M. BAKSHI) Member Member Sd/.-

(G. V. G. KRISHNAMURTY) Member Secretary New DELHI, DATED THE 2151" Fair, 1990.

-'V('?I'I£5 .-«'1.-'\-'lJ REFERENC'.E»S C1-IAPIER I I .

$1.,-w: (hr-.p'.«..-1' IV', -.1 :14 -1.l1_in regard In «3.\i:»tiug mnilict on this point in the context 01 section 23(1) 01 1119 Hmdu Tvlnrrzagc. Act, 1955.

CHAPTER 1] I. Gurunath v. 1.x'a1nIubai, AIR 1955 SC. Zoo, 207, 208.

I .

2. Ganga Saran V. Ram (jfharzm, (1952) SCR 311.

3. Balakrishna V. Ramaswami, AIR 1965 SC 195, 197.

»L P.m.1grap11 2 11 .s'upm.

5. Luv Co:11.n':<.»i0u 01' 1n.|».u, .3.1r'z }{e1J_=.?'l(C9:1I: of Ctvil Procedure, 1905), I'agc;» 71----'.J3.

C:I.I1TcI' I-J m.1'1ic:.I|:.I'I_v p;1r:.: 1-J 58 and LI 59.

I». cf paw 2.9 1'/z_:'m.

7. Law Comnfscion oflnctia.S-»1f/1I{c/wt(Code of Civil I'1'ocedLu'c, 1908), pages 88, 89. ' I'.tragr.'1ph 2."! supra.

91. See also para 2.13 r'n_/ru.

11.). Sec para 2.10 supra.

11. JagannatI1anPiIlaiv. Ktlnjithapudam Piilai, (1957) 2 SCC 572, S75.

12.. Skandia Insurance (30. v. Kokilaben ChamIra'»'m1ain, (1987) 2 SCC 654, 657. CHAPTER III Chap1'e1' IV', infra.

CHAPTER IV 'JaJ--'»1.\a---

Damml-at v. Urmila, AIR 1980 Rajasthan 57.

Ram) Devi v. Rishi Kumar, (1981) Hindu Law Reporter 324 (J & K). Iialwimhr Singh V. Gurpal Kaur, AIR 1985 Delhi 14.

N. G. Rama Prasad v. B. C. \'a:1-Imalzx, AIR 1988 Kaun 102..

K. Krislmamurthy Rao v. Kmnalakshi, AIR 1983 Karl; 235.

Irlarchnraulimlr V. Nachhattar Singh. AIR 1983 Fun} 27.

K. I. Mohan v. Jeejnbai, Alﬁi 1591513 3*;-:.x' 21:.

}5wm.1|)a_V and I..)..-111i. sgc iufm.

Sml. Chamle1'K:u1Ia V. lrlkuas' I\'u:.u..u* amd umsiiiex', AIR 1989 Dcllu 1.5.

. Smt. Jayeshrce Ram;-sh Lomlhc v. I{ames!1Bhi!;ajiLondhe, AIR 1981 B-am. 30.1. . N. G. Rama Pras-ad v. B. C. Vanamala, AIR1988 . Smt. Pushpa Rani v. Krishan L-.11, AIR 1982 Del H17'.

k'n.11=.. H52.

Ashnk Shanna V'. Smt. Santosh Shamn, MR 1987, 1091 0.1.

. Smt. Savitri V. Mulchand, AIR 1987 D.:I 52.

. Smt. Shakuntala v. Rattan Lal, (1981) HLR 54.'. (E-1.1'.). . Sadan Singh V. Smt. Reslm1a.A1R 1982 A11 52.

Smt. Jarnail. Kaur v. Sarwan Siugh, (I979) 1-Iimlu LR ~11S(_P..'sL1i1. Minarani v. Dasarath, AIR 1963 C211 428.

. Kadia Harilal v. Kadia Lilavati, AIR 1961 Guj 202.

. Akasam Chinna Babu v. Akasam Parbati, AIR 1967 (J;'m;x I63.

. Gurcharan Kaur v. Ram Chaud, AIR 1979 P & II 21143.

. Purshotam v. Smt. Devakai, AIR 1973 Raj 3.

. Manilal v. Smt. Bllanumati, 1987(1) HLR 229.

. Sadanand v. Sulochana, AIR 1989 Born 220.

. S. Jagannadha I-'rasad v. Smt. S. Lalitha Kumari, AIR 1989 AP 8. . See now 19 supra.

Shantaram Narkar v. Hira Bai, AIR (1962) Bum. 27.

. Note 25 supra.

. Smt. Darhsan Kaur V. Maluok Siugh, AIR (1983) P& H 25.

Jagdish v. Bhanumati, AIR (1983) Bombay 297.

. Note 29 supra.

Jang Bahadur v. Smt. Mulch; syai, AIR 1986 Do! -122.

._;;».~{,,L,_y¢,...

7_L;]'t.;§7'.»3:"3---*C'\'c'oc\A_5:.'2::=:

. Iravva v. Shivappa Shiddalingappa, 'AIR uumuxuuu-uzuzt.nuxu\J:..p.-u §ooc_\1o.§J-.r-.9.-NI;-c;\soo\1 Law Commission of India-----136th Report 29 . lravva v. Shivappa tihidaialingappa, AIR 1987 Karn. 241. . Sarasvmtlni AnImaIv.'Lak:.I1mi, AIR IEIS9 . Anjan Kumarv. Smf. Minakslxi Sarma, AIR 1985 Gua11zm'44.

Madras 216.

Kamalabaiv. Ramdas, AIR 1981 Bomb;=.y1S7.

1987 Kamataku 241.

Note 3!'5_.\'1lp!'u. ' _ » _ A ' ' ' " "

N01L*'.34 .s'u_[)rz1.

I{amt:1Prasadv. 5:313. '1'Jmuii, AIR 19'/.1 Alli. 15.5. Santosh Anand V. Anaud Prakash, 198%) All WC 157'. ' Surinder Singh v. Mzmjit Kaur, AIR .1983 J 644 K 80.

. Anil Kumar V. Smt. .;\rlm2i Dugg:1I,."-.1R 1.989 NOU (Jam) 63. . Smt. . P. Moiuamjan V. Chakalayil Kamj. AIR 'I988 Orissd 175. I

46. . Vinod Kumar v. State of Punjab, AIR 1982 Punjab &I{aryana 372.

. Sureslnliunxar V. Smt. Saroj Bala, AIR 1988 Punjab & Haryana 217.

. Dr. Suraj Prakash v. Mohinder Pal Sharma,AiR 1988 Punj-lb & Haryana 218. . Arun Kumar v. Jnanendra Nath, AIR 1975 C.zlcL1;;v. 232.

.*j-huklav. Brij i.-'pllushan, AIR 1982 Delhi 2.13.

Surinder Kaur v. I\/IVadanGopa!Singh,IX1R 1980 Punjab & Haryana 334.

Surjya Kumar v. Smt. Maya Dutta, AIR 1982 (','Hw1¢.;* 2,73.

. Vidyaben V. J. N.Bhatt, AIR 1974 Gujami 23.

. Madhavan Ezhuthassan v. Vellayyappan, (I981) HLR 594 (Ker). . Janabai Ammal v. TA. S. Palani Muduliar, AIR 1981 Madras 62.

Note 54 supra.

. Anant Gopalrao v. Jankibai Gopalrao, AIR 1984 Bombay 319.

B. Bangarappa v. .I.K.T . Pattanshetti, AIR 1988 Karnataka I74.

. Hemalata Deiv. Umashanl<ariMaharana, AIR 1975 Ofissa 208.

Now 56 supra.

CHAPTER V

1. Sec Chaptcrs I, II and 111 supra.

APPENDIX DRAFT BILL THE CONFLICT OF DECISIONS (RBST9(3%){A1'ION OF UNIFORMITY) BILL, l Billto promote the uniformity of law, by providing a machinery for settling conﬂiets of decisions amongst High Courts.

A 1. Short title.--This Act mty b: cilled the Conﬂict of Decisions (Restoration of Uniformity) ct, 1990.

2. Delinitions.---In this Act, unless the context otherwise requires.-

(a) "reference" means it reference made by the High Court under section 3, and

(b) "statutory instrument" means a rule, notiﬁcation, byelaw, order, scheme or form made under any enactment.

(c) "Special Bench" means :1 Bench to which references are speciﬁcally assigned.

_ 3.(t) Conflict of decisions and reference by the High C0lll'i.~--Wh€I'e, on a question oi law involved In a case pending before a I-_1igli Court being a :1ucs_tion to which this section applies, the High Court takes a view which is_ in disagreement with the view taken on that question in a judgment of another High Court (not being a Judgment which has been subsequently overruled or superseded by law), then the High Court shall, betore ﬁnally dlSp0Sll1g of the 'Tease, make a reference of the t'1uv(:1§ti0l11'0ihe Supreme Court, in order that the law on the subject may be Settled for the Whole of n In.

(2) The provisions of this section apply to a question of law~--

(it) relétting to the interpretation of a Central Act or of a statutory iiimiiiiieiit issued there- un er, or

(b) relating to a subject forming p.trt of the uncodified law of India.

but they do not apply to a question relating to the interpretation of the Constitution or any order issued thereunder.

_4. gontents of order of rel'erence.---The High Court shall, in the order of reference under section .-

(a) fornitilatc the question of law referred by it to the Suprcnic Court, and lb) state its own viciv on that question along with its reason for differing with the view of the other High Court.

5. Proceedings in the Supreme C0iﬂ"L---VVh\:l'i.': a reference reliiting to a question of law is made to the Supreme Court by the High Court under section 3, _the Supreme _Court may proceed to hear the reference and determine such question in accordance with the provisions of this Act.

(3. Notice to parties aiitl other persu:1s.--NoLic: of the ditc ﬁxed for lieitring of the reference shall be given»---

(ii) to the parties to the proceeding pendinginthe High Court out of which the reference arose;

(b) to the Attorney General of India;

(c) it' the Sunxemz Court so directs, to the Governments of the Statesin relation to which the ,1 ;%,High_ Court imking the i-eference and the other High Court with whose view the first mentioned High Court is in disagreement, exercise Jurisdiction; and

(d) such other State Government, person or bodies, if any, as the Supreme Court may think proper in the circumstance of the case.

7. Arguments and submissions by pai-t_ies.~--(1) A party to whom notice is issued under clause (a) of §¢cil0n 5 may, if it so chooses, appear in the reference aniladdress oralarguments or make written submissions to the Court on the question at issue, including (it so permitted by the Court),arguinentg or subm' iSiOilS in reply to thoie of any party appearing in the reference.

(2) The Attorney Generalof India to whom notice is issued under clause (b) of section 6, shall be entitled to apper iri_the reference and to address oral argumen_ts_or make written submission to the court, on the question at issue, including arguments or submissions intended to place before the Court the views of the Central Government on that question.

(3) Where notice is issued tothe State Government under clause (c) of section 6,the State Government, through its advocate,----~

(a) shall appear in th: i'_efei'euce a_n:l_ address oral arguments (unless dispensed with by the court) and nuke written submissions to the Court on the question at issue; and (ti) sh2tll,if so required by the Court, place bufQI'C the Court _all such rnaterial as may possibly suppgrt the view taken on the question at Issue by the High Court exercising jurisdiction in relation to the State.

Law Commissim: of Indr'a--~I36rh Report 31 (4) The State Government, person or body to which or to whom notice may have beenisgued under clause (d) of section 6 may appear in the reference and address oral arguments or make written submissions to the Court on the question at issue.

8.(I) Hearing by Special Bench and consolidation of ct_Ises.--A reference may _be heard by a Special Bench of the Supreme Court, for disposal _withii_i six months of its receipt in the Supreme Court in view of the inherent urgency to ensure uniformity.

(2) Where the question involved in a reference is also involved in any proceeding including a petition for special leave to appeal pending before the Supreme Court (whether on appeal from a High Court or otherwise). the Supreme Court may consolidatethereference and the proceedings and hear them together in the interests of justice.

9. _Collusive references.-_---W_here the Supreme Court is of opinion that a reference is the result of a collusion between the pa.1'ties,it may decline to hear it and may return it to the High Court.

10. _(l) Decision of the Supreme Court.---The decision of the Supreme Court on a reference under this Act shallbe communicated to the High Court which had made the reference and to all IC-Iigh Courts whose views on the question at issue might have been convassed before the Supreme ourt.

(2) The High Court making the reference shall thereafter proceed further with the case pending before it, for disposal in conformity with the decision of the Supreme Court.

11. Effect on judgment of High Courts.-----Thc decision of the Supreme Court on a question of lawunder this Act shallnot aﬁect the ﬁnality of any 'udgment of a High Court in any case as between the parties to that particular case if no appea has been carried against such judgment of the High Couinnotwithstzinding the fact thatthe proposition of law laid down in the judgment may have been overruled or modiﬁed by the Supreme Court in its decision.

l2. Rules by the Supreme Court.---The Supreme Court may make rules to regulate the Procedure to be followed in regard to references under section 3 and proceedings thereon.

GMGIPN--S 3--191 Min. of Law & Justice/ND/90--Dt. 23-4-91---l,200.

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