K. Radha Krishnan Nayyar Vs. Smt. Radha - Court Judgment

Sethi, J.

1. The following important questions of law which are likely to affect a number of cases under the Hindu Marriage Act, have been referred to us for adjudication :

1) What is the scope of Section 21 of the Act so far as the persons who were not subject to the State Act at the time of their marriage are concerned?

2) Whether the persons whose marriages have been solemnized under the Central Act No. XXV of 1955 can seek any relief within the State of Jammu and Kashmir under this Act?

3) Whether the persons who were governed by the State Act at the time of their marriage can get a relief in any other court in the country under the provisions of the Central Act?

2. Put briefly the facts giving rise to the appeal are : that the parties to the petition were married at Madras -- admittedly, beyond the territorial jurisdiction to which the J. & K. Hindu Marriage Act, 1980 (hereinafter referred to as the State Act) applies. The appellant-husband filed a petition for dissolution of marraige by a decree of divorce under Section 13 of the State Act in the Court of District Judge, Jammu, who, vide the order impugned herein, dismissed the same by holding that he had no territorial jurisdiction to decide the case.

3. We have heard learned counsel for the appellant but no one has appeared for the respondent despite service.

Point No. I

4. Section 21 of the State Act specifies the courts to which the petitions under that Act are required to be presented and reads :

'Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction--

i) the marriage was solemnized, or

ii) the respondent, at the time of the presentation of the petition, resides, or

iii) the parties to the marriage last resided together, or

iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.'

Reliance is placed upon Sub-section (iv) of Section 21 of the State Act to urge that as the petitioner-appellant was residing within the State of Jammu and Kashmir at the time of the presentation of the petition and the respondent outside the territories to which that Act extends, the court at Jammu had the jurisdiction to grant the relief.

5. The history of legislation regarding the law relating to the Hindu Marriage Act in the State of Jammu and Kashmir, is that vide State Act No. VIII of 1955, Central Act No. XXV of 1955, was made applicable to the State subject, however, to the other provisions of that Act and to the modifications specified in the schedule. According to the schedule Sub-section (2) of Section 2 was omitted and in Section 3, Clause (b) was substituted by a new definition of the District Court. In Section 8 for the words 'State Government' the words 'Government of Jammu and Kashmir' were substituted and in Section 17 for 'Indian Penal Code' words 'Ranbir Penal Code' were substituted. In Section 21, instead of 'Code of Civil Procedure, 1908', the 'Code of Civil Procedure, 1977' was substituted. Sub-section (4) of Section 29 and whole of the Section 30 was omitted. The application of Central Act No. XXV of 1955 was, therefore, made with modifications, additions and alterations with the result that the subsequent amendments and in the Central Act were not ipso facto made applicable in the State of Jammu and Kashmir. Such a course of applying the Central Act in the State of Jammu and Kashmir was termed as 'Application of the Central Statute by adoption'. Sutherland in his treatise 'Statutory Constructions' 3rd Edn. Section 4802, says that 'whenever the legislature of a State adopts the statute in force in the centre or in any other State, this is known as adoption of Staute by reference. Both the statutes were deemed to be in pari materia i.e. pertaining to the same subject matter. They relate to the same class of persons or things and for the same purpose and object.' Sutherland further elucidates the position in Section 5208 of his book, that a statute of specific reference incorporates the provisions referred to from the statutes as of the time of adoption without subsequent amendments, unless the legislature has expressly or by considering the implications shown its intention to incorporate the subsequent amendments within the statute. A statute which refers to the law of a subject generally adopts the law on the subject as of the time, the law is invoked.

6. With the change of time and experience noted by different courts in the country, the Central Act was suitably amended from time to time but such amendment could not be made applicable in the State with the result that the new State Act No. IV of 1980, was enacted to amend and codify the law relating to marriage among Hindus and came into force in the State on 14-4-1980. Sub-section (2) of Section 1 of the State Act makes it applicable to whole of the State of Jammu and Kashmir to the persons as specified in S, 2 of the said Act.

7. The important question of law to be determined in the case is as to whether the forum of jurisdiction is to be determined with reference to the parties or the solemnisation of marriage between them or on the basis of their residence, under Section 21 of the State Act. Section 21 of the State Act corresponds to Section 19 of the Central Act and the words, 'residing outside the territories to which this Act extends' used in both the sections is explicit in terms and without any ambiguity.' In other words, the provisions of Section 21 of the Act shall apply or required to be applied to the parties with reference to their solemnisation of the marriage. If the marriage between two Hindus, whether residents of the State or not, is solemnised within the territorial jurisdiction to which the State Act extends, the forum for presentation of the petition under the State Act shall be determined under Section 21 of the Act but not otherwise. If any other interpretation is put to the said section, disastrous results may follow resulting in the failure of justice on account of contradictory judgments and decrees. In a case where a non-State subject is married to a person who is governed by the provisions of the State Act, the forum of jurisdiction for seeking the relief under the Act cannot be left to the discretion of the parties inasmuch as they may choose to approach the different courts, one governed by the Central Act and the other by the State Act. In that event passing of the conflicting judgments and decrees cannot be ruled out/ This Court in that event may not be in a position even to consolidate the proceedings or transfer the same from one court to another to avoid conflicting judgments. The forum for getting relief under the Act has, therefore, to be chosen keeping in view the place of solemnization of the marriage between the parties irrespective of their permanent residence or domicile. If the marriage is solemnized within the State the provisions of Section 21 would be applicable and if the respondent at that relevant time was residing outside the territories of the State the petitioner may be justified in presenting the petition in any court in the State where he or she is living. A perusal of Sub-section (2) of Section 1 of the two Acts would clearly show that the State Act is intended to be made applicable to the State of Jammu and Kashmir whereas the Central Act extends to whole of India except this State and 'applies also to Hindu domicile in the territories to which this Act extends, who are outside the said territories'. It is pertinent to note that the latter words used in Sub-section (2) of the Central Act as referred to hereinabove have been omitted by the State Act in Sub-section (2) of Section 1. 'Domicile' has nowhere been defined either under the State Act or the Central Act but it denotes the relationship between a person and a particular territorial unit possessing his own system of law which is different from nationality or citizenship. It determines a person's personal status and the law applicable to him in the matters such as majority or minority, marriage, divorce and succession. A person can acquire a domicile of his choice by a conscientious act. Mere residence at a particular place is not the only test to determine the domicile and the court is required to consider the quality and character of residence for determining the domicile of a citizen. The territorial jurisdiction of the State Act is, however, applicable to all the Hindus, Budhists, Jains and Sikhs who have been specified in Section 2 of the Act irrespective of their residence or domicile. Point No. 1 is, therefore, decided by holding that Section 21 of the Act is applicable to persons specified in Section 2 of the State Act whose marriage is solemnized within the State of Jammu and Kashmir irrespective of their domicile.

Point No. 2

8. As held while deciding point No. 1, that the State Act is applicable to the persons specified in Section 2 of the State Act irrespective of their domicile, but having regard and with reference to the place of solemnization of their marriage, it follows the irresistible conclusion that Central Act No. XXV of 1955 shall be applicable to the persons specified in Sub-section (2) of Section 1 of the Central Act and they may choose the forum under Section 21 of the State Act for seeking any relief within the State of Jammu and Kashmir if the marriage was solemnised within the territories of the State but not otherwise. In case where the marriage has been solemnised outside the State of Jammu and Kashmir, the forum for filing the petition has to be determined under Section 19 of the Central Act.

Point No. 3

9. In view of the finding on point No. 1 it is held that the persons who were governed by the State Act at the time of marriage and whose marriage was solemnised within the State of Jammu and Kashmir, can get a relief only in the State and not in any other Court in the country under the Central Act unless both the parties have settled and have become domicile of a place to which the State Act is not applicable but the Central Act aplies. In that case, the provisions of Sub-section (iv) of Section 21 of the State Act and Sub-section (iv) of Section 19 of the Central Act would not apply. For the purpose of attracting the provisions of Sub-section (iv) and the applicability of the Central and the State Acts, the place of solemnization of the marriage, is important and relevant.

10. We, however, feel that in view of the two provisions of the Acts referred to herein-above and despite our judgment, cases may arise in which it may become very difficult to determine the jurisdiction of the court for the purposes of seeking a relief under the Hindu Marriage Act. Both the Acts deal with the same subject-matter and the persons governed by it. There does not appear to be any justification for enacting two different laws on the same subject-matter without there being any material change, addition or modification for the purposes of governing similarly situated persons in a federal set up as we have in our country. There does not appear to be any constitutional bar for not making a uniform law governing the marriages of Hindus throughout the country and prescribing uniform procedure for getting the relief under one enactment. It is high time that the State legislature or the present administration may see the desirability of making the Central Act applicable to the whole of the State with all amendments made up to date or to be made in future. The comparative study of both the enactments show that there is no basic difference of the aims and objects sought to be achieved by both the enactments and as such sooner the Central Act is made applicable, the better it would be, to avoid conflict of judgments and for the settlement of the confusion created on account of the applicability of the two statutes in relation to marriages of Hindus living in the country without there being any difference in their basic concept of the religion.

11. On facts we find that the marriage ofthe parties in this appeal was solemnised atMadras, a place where the State Act is notapplicable, and the appellant was not justifiedin approaching the State Courts underSection 21(iv) of the State Act. The trial Court hasrightly dismissed the petition on the ground ofjurisdiction. This appeal is also dismissed. Nocosts.