BOOTAN BAI Vs. DURGAPRASAD CHATURA

JUDGEMENT

(1.) THE suit out of which this petition for revision arises was instituted by the non-applicant Durgaprasad against the petitioner Smt. Bootan Bai for restitution of conjugal rights. An objection was taken on behalf of the applicant that in view of section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), the suit was not tenable in the regular civil Court. This objection has been overruled by the trial Court and the petitioner has, therefore, come up in revision.

(2.) SECTION 9 of the Act provides for petitions for restitution of conjugal rights. The petition has to be filed in the principal Court of original civil jurisdiction and has to be decided in accordance with the procedure provided in the Code of Civil procedure (Sections 19 and 21 ). Section 4 of the Act provides that "any other law in force immediately before the commencement of this Act shall cease to apply to hindus in so far as it is inconsistent with any of the provisions contained in this act. "

(3.) PRIOR to the Hindu Marriage Act, 1955, the regular civil Courts had jurisdiction to entertain civil suits for restitution of conjugal rights by virtue of the provisions in section 9 of the Code of Civil Procedure read with the provisions in the Hindu Law. The question is whether a suit would still be maintainable after the promulgation of the Act in 1955 and providing a remedy for restitution of conjugal rights by way of a petition to be decided in accordance with the provisions in the Act. It appears to me that the normal provisions of the Hindu Law read with Section 9 of the Code of Civil Procedure which give a remedy to the spouse by way of a regular suit for restitution of conjugal rights are inconsistent with the provisions contained in section 9 of the Act which give a remedy to the spouse by way of a petition for restitution of conjugal rights. The proceedings under Section 9 of the Act have to be started by way of a petition, the petition has to be filed in the principal Court of original civil jurisdiction i. e. the District Judge, and the defences, which can be raised in such a suit, are restricted by the specific provisions of Section 9. All these provisions are coniradictory or inconsistent with the provisions of normal Hindu Law where the scope for defence would be wider and the suit would lie in the Court of the Civil judge. If the two remedies were allowed to be worked side by side, the possibility of inconsistent decrees cannot be avoided. It appears from the scheme of the Hindu marriage Act that the remedies given in it for restitution of conjugal rights, divorce or judicial separation, or for custody of children, or maintenance, are exclusive remedies which are the only ones available to the parties after the commencement of that Act. It would be unreasonable to hold that the remedy given in Section 9 of the Act is a summary remedy as the decision has the force of a decree (section 23) and is appealable as such (Section 28 ). These decrees will operate as res judicata in any suit in which the same questions arise between the spouses in future. It is incorrect to compare the proceedings under Section 9 of the Act with the provisions deciding an objection to an attachment under Order 21, rule 58 of the Code of Civil Procedure. The latter has been specifically stated to be a summary remedy, subject to the result of a declaratory suit as provided in Order 21, rule 63 of the Code. The remedy provided in Section 9 of the Act is not a summary remedy but is a regular suit between the parties. It appears to me that the jurisdiction of the regular civil Courts to entertain suits regarding matters which have been specially provided for in the Act has been taken away under Section 4 of the Act.