RAMESH RAMANLAL SARAIYA Vs. KUSUM MADGAOKAR

JUDGEMENT

(1.) THIS is an appeal from an order of Mr. Justice Coyajee. The respondent, who is the wife, filed a petition against her husband for a declaration that the marriage between them was null and void on the ground of the impotency of her husband. The husband filed a counter petition also praying for a decree of nullity on the ground that the wife suffered from impotency. Mr. Justice Coyajee decreed the wife's petition and gave her a decree for nullity of marriage. The petition of the husband was dismissed. Having granted the decree Mr. Justice Coyajee proceeded to pass the order which is the subject of this appeal, viz. to order an inquiry for the purpose of fixing the amount of permanent alimony which should be given to the wife. It was contended before Mr. Justice Coyajee that the Court had no jurisdiction to grant permanent alimony to the wife in a case where a decree for nullity was passed. Mr. Justice Coyajee rejected that contention and held that the Court had jurisdiction and the necessary inquiry should be-made for the purposes of fixing the amount. Before us also Mr. Taraporewala has contended that the Court has no jurisdiction to grant permanent alimony to the wife in a suit where a decree is passed for nullity of marriage.

(2.) IN order to understand and fully appreciate the submission made by Mr. Taraporewala it is necessary to consider the scheme of the INdian Divorce Act. The Act was passed in 1869 at a time when the jurisdiction of the Ecclesiastical Courts in England which used to deal with matrimonial cases had come to an end and that jurisdiction had been vested in the Court for Divorce and Matrimonial Causes by the passing of the Matrimonial Causes Act in 1857. Part II of the INdian Divorce Act deals with the jurisdiction of the Courts. Part III deals with dissolution of marriage on the grounds stated in Section 10.Part IV deals with nullity of marriage and enables the Court to pass a decree on the grounds stated in Section 19.Part V deals with judicial separation and a decree for judicial separation. Part VII deals with restitution of conjugal rights and part IX deals with alimony. Section 36 deals with alimony pendente lite and it is clear that under that section in terms the Court has been given the power to award alimony pendente lite in suits for dissolution of marriage and also for nullity of marriage. Then we come to Section 37 which deals with permanent alimony and that section gives the power to the High Court and to the District Judge after confirmation of the decree to grant permanent alimony only in those cases where a decree is passed declaring the marriage to be dissolved or a, decree for judicial separation. Section 37 does not enable or entitle the Court to grant permanent alimony where it passes a decree for nullity of marriage, and Mr. Taraporewala's contention is that looking at Sections 36 and 37 it is perfectly clear and patent that the Legislature did not intend to confer upon the Courts here the jurisdiction to award permanent alimony in cases of nullity of marriage. Mr. Taraporewala points out that Section 36 which deals with alimony pendente lite in terms gives the power to the Court even in eases of nullity of marriage. Section 37 which deals with permanent alimony restricts that power only to cases of dissolution of marriage and of judicial separation, and Mr. Taraporewala contends that the Legislature by expressly dealing with two classes of cases where permanent alimony can be granted has by implication and a necessary implication excluded the jurisdiction of the Courts to award permanent alimony in the third class of cases, viz. eases of nullity of marriage. If Sections 36 and 37 stood alone in the Act, I think Mr. Taraporewala's argument would be irresistible and unanswerable. The well-known maxim expressio unius est exclusio alterius would apply to a case like this. But we have a section in the Act to which I shall presently refer, Section 7, which, as some Judges have pointed out, contains unusual provisions and, as other Judges have pointed out, contains remarkable provisions. There can be no doubt that Section 7 seems hardly to have any parallel in any other INdian legislation. Section 7 is in these terms: Subject to the provisions contained in this Act, the High Courts, and. District Courts shall, in all suits and proceedings hereunder, not and give relief on principles and rules which, in the opinion of the said Courts, arc, as nearly as may be, conformable to the principles and rules on which, the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.

(3.) THE question that, therefore, arises for determination and decision is whether, when in 1907 the English Court was given the jurisdiction of granting permanent alimony in nullity suits, by reason of Section 7 this Court also obtained the jurisdiction to grant permanent alimony in those cases. It is clear that Section 37 does not contain any express prohibition against the Court granting permanent alimony in nullity cases. All that we find in Section 37 is an omission to do so, and as I have pointed out that omission is explicable on historical grounds because of the state of the law in England in 1869. If my reading of Section 7 is correct and the object of the Legislature was to provide elasticity and the development of Indian law along with the English law, then I see no reason why when the English rules and principles were modified and English Courts assumed to themselves the jurisdiction of granting permanent alimony in nullity cases the Courts here also should not possess the same jurisdiction and the same power.