ORDER
1. This appeal under Section 28 of the Hindu Marriage Act, 1955 is by the plaintiff-husband against the decree, dated 23rd August 1961 passed by Shri P. V. Muzumdar, First Additional District Judge, Indore, in Civil Suit No. 22 of 1960 dismissing the petitioner's claim for restitution of conjugal rights under Section 9 of the Act.
2. The appellant had presented his petition in the Court of the District Judge who, however, transferred the case for trial to the Court of the First Additional District Judge, Indore, in pursuance of a distribution memo dated 1st January 1960. The appellant sought restitution of conjugal rights on the allegation that the respondent had been married to him on 18th June 1941 and that she had left her husband's house some time in the year 1959 without any reasonable cause. It was also alleged that there were five issues born to the parties after the marriage.
3. The respondent denied that she was the married wife of the appellant. She also alleged that she feared physical injury at the hands of the appellant. She further alleged that the appellant's married wife lives with him in his own house.
4. The trial Judge held that the respondent had been the petitioner's keep and that at no time a marriage according to the caste custom was performed. In that view the petitioner was held disentitled to claim restitution of conjugal rights.
5. The learned counsel for the appellant argued that the Additional District Judge had no jurisdiction to try a petition under the Hindu Marriage Act, 1955. It was pointed out that as per Section 3(b) of the Act, 'District Court' means in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. It was further pointed out that the present petition had been filed on 25th July 1960 while the State Government had issued a notification No. 36802-11386-XXI.B dated, 7th December 1960 published in Madhya Pradesh Gazette, dated 23rd December 1960, part 1, page 1936 under Section 3(b) of the Act empowering all the Courts of Additional District Judges to try cases under the Hindu Marriage Act, 1955. It was suggested that as such the subsequent authorization by the State Government could not empower the First Additional District Judge, Indore, to try cases retrospectively.
6. So far as empowering by the State Government under Section 3(b) of the Act is concerned, the contention of the learned counsel for the appellant is not without substance. It is true that the notification has not the effect of empowering the Additional District judges to try cases retrospectively. However, that is not the end of the matter.
7. Section 19 of the Act requires that every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and the wife reside or last resided together. Further on, Section 21 of the Act provides that subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. By virtue of Section 3(b) of the Hindu Marriage Act, 1955, the State Government may have been authorized to empower the courts of the Additional District Judges to try cases under the Act. But by virtue of the fact that the Court trying a case under the Hindu Marriage Act is a civil Court to which the provisions of the Civil Procedure Code are applicable except to the extent as are modified by the specific provisions of the Act, we hare to take into consideration the provisions of the Madh. Pradesh Civil Courts Act. 1958, Section 3 of the said Act classified the different Courts as under :--
'(i) The Court of the District Judge;
(ii) the Court of the Additional District Judge;
(iii) the Court of the Civil Judge (Class I); and
(iv) the Court of the Civil Judge (Class II).' Further on, Section 7 of the said Act provides as under :--
' The Court of the District Judge shall be the Principal Civil Court of original jurisdiction in the civil district,
(2) An additional District Judge shall discharge any of the functions of a District Judge, including the functions of the Principal Civil Court of original jurisdiction, which the District Judge may by general or special order assign to him and in the discharge of such functions he shall exercise the same powers as the District Judge.'
8. The provision in Section 7(2) ofthe Madhya Pradesh Civil Courts Act, 1958 ison the same lines as Section 23 of the MadhyaBharat Civil Courts Act 1949 and as such altogether different from the provisions of the C.P.Civil Courts Act, 1917. Under the C. P. Actthe Court of the Additional District Judge wasnot a separate entity but a part and parcel ofthe district court. The additional Judge wasmerely additional to the court of the DistrictJudge. But, under the present Act the Courtof the Additional District Judge is a separateentity from that of the Court of the DistrictJudge. However, the Court of the AdditionalDistrict Judge can perform all the functions ofa principal civil Court of original jurisdictionin case it is so empowered in that behalf bythe District Judge by way of ageneral or a special order. In theinstant case, the District Judge, Indore by adistribution memo, dated, 1st of January 1960had empowered the First Additional DistrictJudge, Indore to try all cases under the Hindu Marriage Act, 1955. This power conferred by Section 7 (2) of the Madhya Pradesh Civil Courts Act, 1958 is in addition to the power conferred on the State Government by virtue of Section 3(b) of the Hindu Marriage Act, 1955. Therefore, so far as the Additional District Judges in a Civil district are concerned, they can certainly be empowered to perform the functions of a principal civil Court of original jurisdiction if they are so empowered by a general or a special order of the District Judge. We are of opinion that the objection of the appellant that the First Additional District Judge, Indore had no jurisdiction to try the suit is without any substance, whatsoever. In this connection we might mention the case of Dharam Sheela Bai Ram Dayal v. Ram Dayal Bhatnagar, 1961 M. P. LJ 979 ; (1961 (2) Cri LJ 236) decided by Khan and Shiv Dayat JJ. holding that the Additional District Judge can perform the functions of a principal Civil Court of original jurisdiction in case he is so empowered by a general, or special order issued by the District Judge under Section 7 (2) of the Madhya Pradesh Civil Courts Act, 1958. We are in agreement with the view expressed by our learned brothers. The case of Janak Dulari v. Narain Dass AIR 1959 Punj 50 relied on by the learned counsel for the appellant is clearly distinguishable on the ground that the provisions of the Punjab Courts Act are slightly different and. the view taken by the learned Judge turned on the special provisions of that Act. This was what the learned Judge observed :--
'It is also laid down that the Court of Additional District Judge is not a division Court of the Court of District Judge. Thus the Punjab Courts Act does not contemplate a Court of Additional District Judge. The Court of Additional District Judge, therefore, cannot be considered to be a Civil Court of original jurisdiction under the Hindu Marriage Act particularly when Section 20 lays down that there shall be only one District Judge in each district and Section 24 provides that the Court of District Judge shall be deemed to be district Court or principal Civil Court of original jurisdiction in the district.
It is true that under Section 21(2) an Additional Judge is authorised to discharge the functions of a District Judge and in the discharge of these functions he exercises the same powers as the District Judge but this section does not refer to a Court of Additional District Judge and the Supreme Court has held that the Court of Additional Judge is a distinct Court. Speaking for myself I always consider the Court of Additional District Judge to be a Court of Additional Judge under the Punjab Courts Act and that when a case was transferred to it by the District Judge then the Additional District Judge exercised the same powers as the District Judge as provided in Section 21 (2) of the Punjab Courts Act.
In view of some observations of theSupreme Court, I feel some difficulty inconsidering this position to be correct. Thematter is important and in my opinion it should be decided by a larger Bench'
This order of reference was made by a Single Judge and the reference came up for hearing before a Division Bench.
9. It is pertinent to note the provisions of Section 21 of the Punjab Courts Act (No. 6 of 1918). It is as under :--
'(1) When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judges as may be necessary.
(2) An Additional Judge so appointed shall discharge any of the functions of a district Judge which the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge.'
Further on, Section 24 of the Punjab Courts Act provides that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the district. The view of the learned Judges of the Division Bench was based on the fact thai as per Section 18 of the Punjab Courts Act the classes of civil courts constituted were (i) the Court of the District Judge; (ii) the Court of the Additional Judge; and (iii) the Court of the Subordinate Judge. Therefore, according to the special provisions of the said Punjab Courts Act, the Court of the Additional District Judge was not an entity distinct and separate. It was for that reason that the learned Judges distinguished the provisions of the Punjab Courts Act from similar provisions in other enactments in other States. Therefore, according to the special provisions of the said Act, an Additional Judge would be a part and parcel of the Court of the District Judge, who would be empowered to try such cases and exercise such powers as the State Government might confer on him or the District Judge might delegate to him by a special assignment under Section 21(2) of the Act. This provision is certainly different from the provisions of Sections 6 and 7 of the Madhya Pradesh Civil Courts Act, 1958 according to which the Court of the Additional District Judge is a distinct and separate entity and he does not function merely as an Additional Judge to the District Court. The view taken by our learned brothers Khan and Shiv Dayal JJ. in the case referred to above, therefore, appears to be perfectly justified on the proper interpretation of the provisions of the Madhya Pradesh Civil Courts Act, 1958 and we see no reason to differ from that view.
10. It was further pointed out by the learned counsel for the appellant that the Punjab view is based on the view as expressed in the Supreme Court case of Kuldip Singh v. State of Punjab, AIR 1956 SC 391. In this connection we may observe that the view of Their Lordships of the Supreme Court is necessarily based on the special provisions of the Punjab Courts Act, particularly Sections 18and 21, as is clear from the following observations of Their Lordships ;--
'As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed. The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction. We hold therefore that the Court of the Additional Judge is not a division Court of the Court of the District Judge but a separate and distinct Court of its own.'
It was for that reason that Their Lordships of the Supreme Court laid down that the order passed by the Additional Judge hearing an appeal under Section 47G-B of the Criminal Procedure Code was without jurisdiction as the Judge was merely Additional Judge not specifically empowered in that behalf. The same considerations, in our opinion, arc wholly inapplicable to 'the special provisions of the Madhya Pradesh Civil Courts Act, 1958 which stand on a different footing. For this reason we are unable to apply the reasoning of the learned Judges of the Division Bench of the Punjab High Court to the provisions of the Madhya Pradesh Civil Courts Act, 1958. We therefore, hold that by virtue of the general order, dated 1st January 1960 passed by the District Judge Indore, the Court of the First Additional District Judge, Indore had the jurisdiction and the power to try all cases under the Hindu Marriage Act, 1955,
11. Coming to the next question whether the respondent was the married wife of the appellant, we may observe that the appellant's own testimony as P. W. 1 disproves his case of a marriage according to any statutory provision or a caste custom. The appellant in his petition alleged that he had married the respondent in Natra form of marriage, which is prevalent among community. According to him, the Natra marriage took place at Indore and at that time the respondent was living at village Abhaypur. Further, he stated that he performed the Natra with the respondent after 3 years of the respondent's shifting to Indore. Further, he stated that the respondent stayed with him for about 3 years without any Natra marriage being performed. The only proof of Natra marriage according to him was the execution of Ex. P-1, which is a divorce deed executed by the respondent's former husband, Amarsingh.
12. The witness further stated that the only ceremony he performed about Natra marriage was the execution of a divorce deed, dated 15th April 1944 by the respondent's former husband, Amarsingh. He also admitted that after he had brought the respondent to Indore, she was staying with him and nobody knew of her presence. When Amarsingh came to know of that, he raised dispute and as a result of the same a divorce deed was executed by Amarsingh after accepting some compositionmoney from the appellant. Further on, hestated that besides getting this divorce deedexecuted, he did not perform any of the casteceremony regarding Natra marriage at anytime. Therefore, from his own deposition thecase of a Natra marriage is totally belied. Theonly fact established is that he had kept therespondent as a concubine without performingany marriage according to the caste custom.Not a single witness has been adduced inevidence to show that the caste people wereinvited for any ceremony regarding Natramarriage.
13. However, the learned counsel for the appellant urged that it is not proved as to what ceremonies are actually required for a Natra marriage. In our opinion, it was for the appellant to have established the fact of a valid marriage according to the caste custom before he could claim restitution of conjugal rights. It is to be noted that restitution of conjugal rights can be claimed regarding a married wife and not a mistress or a concubine. As laid down by a Division Bench of the Madras High Court in Deivanai Achi v. R. M. Al. Ct. Chidambaram Cheltiar, (AIR 1954 Mad 657) a Hindu marriage must be according to Shastras or according to the special custom prevalent amongst any particular community. Any form of marriage not recognised either by the Hindu Shastras or by the caste custom cannot be considered to be a marriage according to the Hindu Law. The marriage may also be solemnized according to any statutory provision prevalent in any territory. But unless one of these things is established, it cannot be said that there has been a valid marriage, which is necessary for applicability of the provisions relating to restitution of conjugal rights, judicial separation and divorce under the Hindu Marriage Act, 1955. Therefore, to conclude, we are of opinion that the trial Judge was right in holding that the respondent is not the married wife of the appellant and as such (the appellant) is not entitled to restitution of conjugal rights.
14. The decree under appeal being correct, we see no reason to interfere with the same. Accordingly, it is dismissed with costs. Counsel's fee in this Court Rs. 50, if certified.