SURENDRA NATH DUTT Vs. MALATI

JUDGEMENT

(1.) In this case the learned District Judge of the 24-Parganas by his order, dated 17th September 1911, has directed that the marriage of the petitioner, Surendra Nath Dutt, with his wife, Malati alias Baby Dutt, be dissolved subject to confirmation by the High Court. The matter has accordingly come before us under Section 17, Divorce Act, for confirmation of the order passed by the learned Judge. The admitted facts of the case are as follows : Surendra Nath Dutt went through a form of marriage in 1919 with a lady named Indubala Das. This marriage appears to have been solemnized according to Hindu rites but, in spite of this fact, the petitioner and Indubala went through a further form of marriage on 3 August 1920, under the provisions of Act 3 of 1872. On 2 September, 1938, Indubala Das, on the allegation that she had become a convert to Islam, filed a Plaint in the Court of the third Munsif of Alipore in which she asked for a declaration to the effect that her marriage with Surendra Nath Dutt stood dissolved by reason of her conversion to Islam and disinclination on the part of her husband to be converted to Islam. The case was uncontested before the learned Munsif and, on 21 September 1938, Indubala obtained an ex parte decree which purported to dissolve the marriage relationship between the parties to the suit. Towards the end of 1939 the petitioner was introduced to the respondent and a marriage was arranged between them. On 18 January 1940, the parties went through a form of marriage under Act 3 of 1872 and, on 1 August of the same year, the petitioner filed a petition for divorce in the Court of the District Judge of Mymensingh on allegations to the effect that the respondent had committed adultery on various occasions with the co-respondent, Jyoti Prakash alias Thandu Ghose. In paras. 1 and 2 of his petition he alleged that he had been lawfully married to Malati Dutt on 18 January 1940, and that he was domiciled in British India. These statements were admitted by the respondent in para. 4 of her written statement which was filed on 3 January 1941.

(2.) In the meantime the respondent, Malati Dutt, had applied to this Court in its extraordinary original civil jurisdiction under Clause 13, Letters Patent, read with Section 8, Divorce Act, to the effect that the pending divorce suit might be transferred to the High Court to be tried with a maintenance suit which had been filed by her against her husband. A rule with reference to this matter was issued by Panekridge J. on 14 August 1940, and this rule was heard by Sen J, on 3 September 1940. The learned Judge by his order directed that the suit should be transferred from Mymensingh to Alipore to be heard by the District Judge of the 24-Parganas and further ordered that a writ of commission should issue authorising the District Judge of Mymensingh to examine certain witnesses at Mymensingh the commission being made returnable to the Court of the District Judge of the 24-Parganas. Certain objections were raised before the learned District Judge of Mymensingh with reference to the question whether Sen J. had jurisdiction to issue the commission and a complaint was also made to the effect that the respondent's counsel was not allowed a sufficient opportunity to cross-examine the witnesses. These objections were overruled by the learned District Judge and the records of the divorce suit were duly transmitted to Alipore. A further objection was taken at Alipore as regards the jurisdiction of that Court to try the suit and this point was decided against the respondent on 10 February 1941. This Court was then moved under Section 115, Civil P.C., against the order of the learned District Judge of the 24-Parganas, dated 10 February 1941. The matter was heard in due course by Mukherjea and Roxburgh JJ. who held on 22nd May 1941 that "it is not a case of a lack of inherent jurisdiction. The utmost that can be said is that the jurisdiction was not invoked or exercised in the right way."

(3.) The learned Judges further expressed the opinion that as no final order had yet been passed in the suit "it would be open to the petitioner to raise this question of jurisdiction if she is so advised if any decree for dissolution of marriage is at all passed in this case and the matter comes up for confirmation before this Court under the provisions of the Divorce Act."