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 Secs.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 Secs.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.) This is a section that appears in the Part which deals with jurisdiction, and undoubtedly Section 7 confers jurisdiction upon the Court of the nature and character provided in that section. The Courts in India are empowered to act and give relief on the principles and rules which prevail in England, not only which prevailed at the time when the Divorce Act was passed in 1869 but which may prevail from time to time subsequently. The section does not deal with procedural matters because Section 45 of the Act which appears in the Part headed "Procedure" expressly deals with procedure and provides that all proceedings under the Act between party and party shall be regulated by the Civil P. C.. It really deals with matters of substantive law and not adjective law, and, therefore, according to the principles and rules prevailing in England, even substantive law can be altered and modified under this section. Mr. Taraporewala has argued that it is only in giving relief that the principles and rules on which the English Court of Divorce and Matrimonial Causes acts that should be taken into consideration. Mr. Taraporewala says that as far as the relief itself is concerned, that relief must be expressly found in the statute, and when the Court here proceeds to grant that relief, then it must observe and conform to the rules and the principles of the English Court. That contention, in my opinion, is entirely untenable in view of the plain language of the section itself. The section does not speak that in giving relief the Court should act on principles and rules of the English Courts, but it directs the Courts here to act and to give relief on principles and rules prevailing in England. Of course, the section is prefaced by the opening words "subject to the provisions contained in this Act," and, therefore, it is not open to the Court here to give any relief or to act in any manner which is contrary to or inconsistent with any provision contained in the Act. The object of enacting this section was to make the Indian divorce law flexible and not static. The intention was that the law here should develop alongside with the English law. It may seem surprising that it should be left to the Legislature of another country to mould and modify the law of this country. It was surprising enough when India was a Dependency in the Empire. It seems to be even more surprising today that such a provision should find place in the Divorce Act of this country when India has now become a full-fledged Dominion as sovereign as England herself. In my opinion Section 7 lays down this rule of law that the Court must consider every time it proceeds to act or give relief what is the relevant English law on the subject, and unless it finds that the jurisdiction of the Court to grant the same relief or act in the same manner is expressly negatived by any provision of the Act, it must do so. There must be either a clear negativing of the jurisdiction of the Court or there must be express and unequivocal terms in which the Legislature must have prevented and prohibited the Courts here from acting in the manner in which the English Courts would act or giving the same relief that the English Courts would give on the same facts and on the same materials.