AKLEMANNESSA BIBI Vs. MAHOMED HATEM

JUDGEMENT

(1.) The plaintiff instituted the suit, out of which this appeal arises, in the Court of the Second Munsif at Atia upon the allegation that the first defendant was his lawfully married wife, that the other defendants had brought her under their influence and prevented her from coming to Ma house and that he was accordingly entitled to a decree for restitution of conjugal rights. The relief claimed in the plaint was valued at Rs. 49. The defendants resisted the plaintiff's claim on the ground that there had been no valid marriage, hut they did not take exception to the valuation of the suit. Two issues were raised in the Court of first instance, namely, first, whether defendant No. 1 was the lawfully married wife of the plaintiff, and secondly, whether the plaintiff was entitled to the enforcement of conjugal rights prayed for. The learned Munsif found that there was no valid marriage between the plaintiff and the first defendant and dismissed the suit. The plaintiff appealed to the Subordinate Judge, who held upon the evidence that the plaintiff did marry the first defendant in the nika form, and made a decree in favour of the plaintiff.

(2.) The defendants have appealed to this Court, and on their behalf, the decision of the Court below has been assailed, on two grounds, namely, first, that the learned Subordinate Judge ought to have maintained the decree of dismissal made by the Court of first instance, inasmuch as the Munsif had no jurisdiction to try a suit for restitution of conjugal rights; secondly, that the judgment of the Subordinate Judge is defective, inasmuch as he has not found that the formal requirements of a Mahomedan marriage were complied with. We shall deal with each of these objections separately.

(3.) As to the first contention raised by the learned vakil for the appellant, he concedes that it was not taken in the Court of first instance; nor was it taken is the grounds of appeal to the Subordinate Judge, and, so far as we can gather from the judgment, the only question which appears, to have been discussed before him, was whether there had been a valid marriage between the parties; the defendants, however, assert that, although not taken in the memorandum of appeal, the ground was urged before the Subordinate Judge that the Munsif had no jurisdiction to try the suit, and they produce affidavits in support of their allegation; the plaintiff, on the other hand, denies that any such point was argued before the lower Appellate Court. We have, however, allowed the point to be argued, as it is one of general importance, and does not require the investigation of any facts for its decision. As pointed out by their Lordships of the Judicial Committee in Ledgard V/s. Bull (1886) I.L.R. 9 All. 191; L.R. 13 I.A. 134, 145, "when a Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot by their mutual consent convert it into a proper judicial process." In a later case Meenakshi Naidoo V/s. Subramaniya Sastri (1887) I.L.R. 11 Mad. 26; L.R. 14 I.A. 160, 167, their Lordships pointed out that, where an appeal had been heard without objection, though no appeal was allowed by law, the judgment must be reversed, for "no amount of consent could confer jurisdiction, where no jurisdiction exists." In a still later case, Raja Har Narain Singh V/s. Chaudhurain Bhagwant Kuar (1891) I.L.R. 13 All. 300; L.R. 18 I.A. 55, 58, their Lordships pointed out that though an objection relating to jurisdiction might not have been taken in any of the Subordinate Courts, it might be successfully taken even before the ultimate Court of Appeal, for "the Statute is there, and the Judges were bound to take judicial notice of it." We shall now proceed to examine whether the objection to the jurisdiction of the Munsif is well founded.