INTERPLAY IN CASES OF DIVORCE UNDER HMA AND SMA 1954

 

INTERPLAY IN CASES OF Divorce UNDER HMA AND SMA 1954

The effect of Marriage solemnised under Hindu Marriage act, but registered under Special Marriage act 1954

An interesting point was raised before the Delhi High Court in a matter bearing no. MAT. Appeal No.32/2009 captioned as Suman Kundra Vs Sanjeev Kundra. The question arose for consideration before the Delhi High Court was as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special marriage Act and yet give a direction suo motu to the respondent to amend the petition. Whether such an amendment is permissible.

                        FACTUAL PERSPECTIVE

1.     The appeal was filed under Section 28 of the Hindu Marriage Act, read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009, by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13 (i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act.

2.     The respondent/petitioner had filed a petition against the appellant/wife for grant of divorce under Section 13 (i) (a) and i(b) of the Hindu Marriage Act (HMA) on the grounds of cruelty and desertion. It was not disputed that the parties were Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage, though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988.

3.     After the decree of divorce, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriage Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13 (i)(a) and (b)  of the Hindu Marriage Act.

4.     The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009.

5.     On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable.

Per contra the respondent/petitioner in his reply to the application had stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce, which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1)(a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits.

After hearing both the parties, the learned ADJ  was pleased to dismiss the application of the appellant. It was held that the court had jurisdiction to entertain the petition for divorce, both under the HMA as well as Special Marriage Act and the cruelty being a ground for divorce under both the Acts, therefore, the petition could continue, as there is a cause of action for the same. The learned Judge had distinguished the judgment relied upon by the appellant reported in Harshad Chiman Lal Modi Vs DLF Universal & Anr (2005) 7 SCC 791, as the appellant had contended that a forum which did not have the jurisdiction could not have entertained  the same. It was however observed that the aforesaid judgment related to territorial jurisdiction and not to subject-matter jurisdiction, which, admittedly, the ADJ had, in the instant case. In fact, reliance was placed on the judgment relied upon by the respondent (petitioner) relied on the judgments rendered by the Gauhati High Court and Calcutta High Court, reported as Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee  Vs Kaveri Huha Chaterjee ; AIR 1987 Calcutta 191, as it was contended that the court had the jurisdiction, because, the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments.

Aggrieved, the appellant preferred appeal before Delhi High Court.

                        DELHI HIGH COURT FINDING

The contentions of the appellant were as under:

(i) If the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Act, since, the court will not have the jurisdiction over the subject-matter, unless and until it is not a family court, under the Family Court Act  Reliance was placed on Stephen Joshus & Anr. Vs. JS. Kapoor; (1995) 58 DLT 57; Mohan Raj vs. Violet Chandra; (1993) 1 ALL India HLR 108; and D. Jacintha Kamath Vs K Padmanabha Kamath  AIR 1992 Kant 372.

(ii) Non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against the appellant to raise this plea at any time of the proceedings. Reliance in this regard was placed on the following three judgments Sarwan Kumar Vs Madan Lal Aggarwal; (2003) 4 SCC 147; Hira Lal Patni Vs Kali Nath  ; (1962) 2 SCR 747; and Union of India Vs Baleshwar Singh; 1994 Supp. (2) SCC 587.

(iii) The divorce petition is liable to be dismissed as the same has been filed after suppressing material facts from the Hon'ble Court and reliance in this regard was placed on Satish Khosla Vs Eli Lilly Ranbaxy Ltd; 741 (1998) DLT 1; and A. Janaki Vs John Keneddy; MANU/TN/0394/2009.

 

In Stephen Joshus's case (supra), the question raised was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. It is to be noted that Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent, hence, in that case, submissions was made, that since, under the Special Marriage Act, 1954 A mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. It was negated by the High Court, stating that the divorce can be granted only on the grounds which are available under a particular act, under which parties have got married, meaning thereby, that since parties were married under the Christian Marriage Act, and under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar was the ratio of judgment in Mohan Raj's case (supra).

In D. Jacintha (Supra) the question that arose was- whether a Christian marriage where one of the parties is Hindu can be dissolved by a decree of divorce under Section 13 of Hindu Marriage Act at the instance of either of the parties. This contention was also negated by Karnataka High Court on the ground that for the purpose of dissolution of marriage under Hindu Marriage Act, the parties have to be necessarily Hindus and married according to Hindu rites and ceremonies, customary or ones which are prescribed under the said Act.

The Delhi High Court had thus held that none of the aforesaid three judgments, were applicable or helpful to the petitioner/appellant, because the ground on the basis of which the divorce is sought in the instant case is cruelty and/or desertion under the Hindu Marriage Act, which are also the grounds under the Special Marriage Act. Therefore, the question arose for consideration herein is whether a divorce petition under Section 13 of HMA filed by one of the parties, both being Hindu, but married under Special Marriage Act could be dismissed, merely, on the premise that the same ought to have been filed undersection 27 of Special Marriage Act.

The learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Cat were mentioned.

It is also contended on behalf of the appellant that under the Family Courts Act, it is the same Family Judge, who deals with the personal laws and the matrimonial laws of all the religions, but, before the constitution of the family courts, as the present case being an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order.

However, Delhi High Court has repelled the contention as what involved in the present case was special jurisdiction and admittedly, it cannot be said to be inherent lack of jurisdiction to entertain a matter with regard to the special jurisdiction that a matter pertaining to personal law or a law pertaining to grant of divorce by the Trial Judge. The reason for this is that the Trial Judge under the Hindu Marriage Act as well as under the Special Marriage Act has to be the District Judge, and incidentally, in the instant case, it is the same Additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act.

Therefore, it was held that as the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as the Special Marriage Act shall not lack the jurisdiction to entertain the application of the respondent. Moreover, objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter was filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness was yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction, when the same is due to an inadvertent drafting error which can be corrected by an amendment simpliciter, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties. This is not, as if, the divorce under the Special Marriage Act and the divorce petition under HMA are dealt with by two different authorities. Both the powers are with the same District Judge. The contentions on behalf of the appellant was thus repelled for the simple reason as stated above, that in the instant case, it is the same District Judge, who was hearing the objections for grant of divorce, restitution of conjugal rights as well as grant of maintenance and other peripheral orders.

WRONG PROVISIONS & SUBSTANTIAL JUSTICE: BALANCE TO BE CREATED

As regard the submission that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh Vs Harminder Singh; (2004) 6 SCC 256, when the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under:

6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But, there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest Court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows:

"The Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit."

       

The Delhi High Court in Suman Kundra (Supra) has noted that in the aforesaid case, although the application for recalling and examination of a witness was filed, but wrong provision of law was mentioned. The Supreme Court, although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision.

There is no quarrel with the proposition of law laid down in the said judgment that correct provision of law must be mentioned in the application or the petition, but at the same time in case a correct provision of law has not been mentioned, a party be that in an application or a petition, the said petitioner/applicant should not be made to suffer on account of these inadvertent technical errors which have cropped up. Further, much would depend of the case on the nature of the case, the stage of the case as well as the nature of mistake. In case, the case or an application is at the threshold perhaps court may dismiss the application or the petition for want of mentioning of correct provision or the party may itself like to withdraw the application or the petition with liberty to file afresh. But situation would be different in case, the case is at an advance stage or considerable time has already been spent by the court dismissing the application would be a hyper technical approach rather than doing substantive justice.

The respondent had relied upon N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 to contend in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under the Special Marriage Act.

In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Act, can be given divorce when the petition for divorce has been filed under H.M.A, certainly answer to this question is in negative. But then, the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition.

The Delhi High Court has held above that there is no inherent lack of jurisdiction in the case in hand, therefore, to contend that the appellant's participation will not confer the jurisdiction in the court has no merit. The only wrong committed was the use of wrong provision by the respondent. As such objection ought to have been taken in the very beginning, as it was not done, then, what will be implicit is the waiver and the appellant should be estopped from raising the same at the belated stage. As regards the question of cause of action existed or not, that are the aspect of merit and shall have to be dealt with by the court concerned. Even the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity.

The respondent has primarily relied upon two judgments of Bombay High Court. These are:  Anandrao vs. Madhuri.; 2009 (111) Bombay LR 832  and Anupam Das Vs Smt Mampi Das AIR 2008 Gau 3.

In Suman Kundra (Supra), the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under the Special Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. It is only incidental that some of the grounds which are available in the Hindu Marriage Act may be available as a ground for divorce under the Special Marriage Act or under the other matrimonial laws like Christian Marriage Act, but that would not be a ground to convert a petition which is filed under one enactment to a petition under another enactment as that would be resulting in chaos, because, then, there will be no end to the plea which will be available to a party though the marriage had taken place in a particular law, but, the ground of divorce is available in the different law and that is why the petition is maintainable. The law regarding amendment of the plaint or a petition is incorporated under Order VI Rule 17 of the CPC and that envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5CPC or under Order 1 Rule 10 of CPC to pass an order which may be warranted. The learned Trial Judge has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13 (1)(a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act, but, at the same time, it is also noted that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities.

It is also assumed that when a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v. Munshilal; (1981) 2 SCC 788, the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party.

The Hon'ble Supreme Court in Bhuwan Mohan Singh Vs Meena AIR 2014 SC 2875 has observed that all such applications pertaining to maintenance, divorce, custody of child must be decided expeditiously by the court owing to the factum that the lis before it pertains to emotional fragmentation and delay can feed it to grow. The instant case was filed in 2005 and we are in 2015, in the last ten years, the matter has not seen any substantial progress on account of the same being lying pending in the docket of this court merely due to an inadvertent drafting error which can be rectified on an amendment simpliciter.

The Delhi High Court in Suman Kundra (Supra)  in the light of the above had partly allowed the appeal while holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. It was thus directed that in case such an application is filed, it shall be dealt with in accordance with law. The parties are directed to appear before the learned District Judge.

                        REMARK

It is essential to note that, though, the pleadings are of utmost importance, but, so are the provisions of law, under which a petition is filed. The courts cannot be oblivious to the obvious i.e the prospective harms to a party to the lis, hence, courts are to be by and large guided by the substantive justice, rather than, ousting a party on hyper technicalities, more so, in matrimonial cases, which are not like a commercial disputes and such cases are required to be dealt with in a different manner as human fallibilities, may cause irreversible void to the psyche of a person and scar whereof can probably never be mitigated in such disputes. The approach, therefore, in such cases, ought to be humane and to find a solution, rather than to accentuate it and in any case, no premium should be accorded to the delaying tactics adopted by the parties. Any objection with regard to jurisdiction  or lack of it, should be raised right in the beginning and in a later stage if the objection is raised and acceded to, which may be raised designedly, as the same is likely to cause incalculable harm to the other party and therefore, it should be deprecated in general and in matrimonial cases, in particular and deterring costs should be imposed on delaying parties. The Delhi High Court appears to have taken note of that in the above case.

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                                Anil K Khaware

                        Founder & Senior Associate

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