SITABAI RAMCHANDRA TODANKAR Vs. RAMCHANDRA RAGHUNATH TODANKAR

JUDGEMENT

(1.) THIS Full Bench has to consider a rather important question as to the right of a Hindu to obtain divorce on the ground of desertion, which right was given to him under the Bombay Hindu Divorce Act of 1947 and which was taken away by the Hindu Marriage Act of 1955.

(2.) THE facts which give rise to the Full Bench are briefly these. The respondent, who is the husband, filed a petition for judicial separation before the City Civil Court on the ground that his wife, the appellant, had deserted him for a continuous period of four years from 22nd December 1950. An application for amendment of this petition was made and the amendment effected was that the petitioner sued for divorce on the ground of desertion under the Bombay Act. The learned City Civil Court Judge took the view that in view of this amendment the Court had no jurisdiction. The plaint was then presented before Mr. Justice Coyajee and the question raised before him was whether the High Court had jurisdiction to try the suit. The learned Judge came to the conclusion that the petition for divorce was properly filed under the Bombay Act, that under the Bombay Act the High Court had jurisdiction and he transferred the suit to the City Civil Court under the Bombay Matrimonial (Transfer of Cases) Act of 1950. It is against this judgment that an appeal was preferred. The appeal came before my brother Mr. Justice Section T. Desai and myself and we took the view that as the decision raised a rather important question and as there was a judgment of a Division Bench which required consideration a Full Bench should be constituted.

(3.) NOW, the question that we have to consider is whether by reason of the provisions of the Hindu Marriage Act of 1955 (Act 25 of 1955), it is competent for the plaintiff to maintain this petition for divorce on the ground of desertion. Turning to the provisions of the two Acts, the Bombay Hindu Divorce Act of 1947 mentioned in Section 3 as one of the grounds for divorce that the defendant had deserted the plaintiff for a continuous period of four years. Under this Act "court" was denned in Greater Bombay as the High Court in its ordinary original civil jurisdiction and elsewhere, the Court of a District Judge, and hence if a suit had to be filed for divorce in Bombay it had to be filed in the High Court on its Original Side. This Act also dealt with suits for judicial separation under Section 4 and it may be noted that desertion was not one of the grounds on which judicial separation could be obtained. When we turn to the Hindu Marriage Act of 1955, it is necessary to observe that this was an Act to amend and codify the law relating to marriage among Hindus. It is a well known fact of which judicial notice may be taken that Parliament was anxious to bring about uniformity in the various provisions of law in different parts of India regulating Hindu marriages. Therefore, the Act aimed at uniformity and codification and at social reform. Under this Act "divorce" was dealt with under Section 13 and desertion was not constituted a ground for divorce, only a decree for judicial Separation could be obtained on the ground of desertion, and under S, 10 (1) either party to a marriage may present a petition for judicial separation on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. But desertion, apart from entitling the party deserted to a decree for judicial separation, also entitled him to -a decree for divorce under Section 13 (1) (viii) when the party who deserted had not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party. Therefore, the scheme under the Hindu Marriage Act was that the petitioner could obtain a decree for judicial separation two years after desertion, and if there was no cohabitation for a further period of two years after the passing of that decree he could apply for divorce and obtain it. Therefore, it may be said that really in sub-Stance there was not much difference between the provisions of the Bombay Act and the Hindu Marriage Act because in both cases there had to be a continuous period of desertion for four years, the difference being that under the Hindu Marriage Act divorce was obtained by two stages, first a decree for judicial separation and then a decree for divorce, whereas under the Bombay Act a party could straightaway proceed to obtain divorce after desertion had continued for a period of four years. Then Section 19 dealt with jurisdiction and procedure and under this section every petition had to be presented to the District Court, which was defined as a City Civil Court in those area where a City Civil Court had been set up, and therefore every petition under this Act had to be presented to the City Civil Court. Then Section 29 dealt with savings and we are concerned with sub-s. (2);