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1990 Supreme(J&K) 56
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
K.K. Gupta,R.P. Sethi, JJ.
K. Radha Krishan Nayyar - Appellant
Versus
Radha - Respondent
CIMA No. 116/1988
Decided On : 23 October, 1990
Advocate For Appellant: J.L. Sehgal
Advocate For Respondent: Nemo
The territorial jurisdiction for seeking relief under the Hindu Marriage Act is determined by the place of solemnization of the marriage, irrespective of the parties' residence or domicile.
Headnote:
HINDU MARRIAGE ACT - SCOPE OF SECTION 21 - APPLICABILITY TO PERSONS NOT SUBJECT TO STATE ACT AT TIME OF MARRIAGE - JURISDICTION OF COURTS - INTERPRETATION OF SECTION 21(IV) - CONFLICT OF LAWS - UNIFORMITY OF LAW - DESIRABILITY OF MAKING CENTRAL ACT APPLICABLE TO WHOLE OF STATE.
Fact of the Case:
The appellant-husband filed a petition for dissolution of marriage by a decree of divorce under Sec. 13 of the State Act in the Court of District Judge, Jammu, who dismissed the same by holding that he had no territorial jurisdiction to decide the case. The marriage was solemnized at Madras, beyond the territorial jurisdiction of the State Act.
Finding of the Court:
Section 21 of the State Act is applicable to persons specified in Sec. 2 of the State Act whose marriage is solemnized within the State of Jammu and Kashmir irrespective of their domicile. Central Act No. XXV of 1955 shall be applicable to the persons specified in sub-sec. (2) of Sec. 1 of the Central Act and they may choose the forum under Sec. 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. 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 applies.
Issues: 1) Scope of Sec. 21 of the Act for persons not subject to the State Act at the time of their marriage. 2) Whether 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 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 provisions of the Central Act?
Ratio Decidendi: The territorial jurisdiction of the State Act is applicable to all the Hindus, Bhudhists. Jains and Sikhs who have been specified in Sec. 2 of the Act irrespective of their residence or domicile. The place of solemnization of the marriage is important and relevant for determining the jurisdiction under the Hindu Marriage Act. There is no 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. It is desirable to make the Central Act applicable to the whole of the State with all amendments made up to date or to be made in future to avoid conflict of judgements and confusion.
Final Decision: The appeal is dismissed. No costs.
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 Sec. 21 of the Act so for 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 Sate 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 provisions of the Central Act?
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 marriage by a decree of divorce under Sec. 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.
We have heard learned counsel for the appellant but no one has appeared for the respondent despite service.
Sec 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 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 the 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 ordinarily have heard of him if he were alive."
Reliance is placed upon sub-sec, (iv) of Sec. 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.
The history of legislation regarding the law relating to the Hindu Marriage Act in the State pf 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 schedue sub-sec. (2) of Sec. 2 was omitted and in Sec. 3, Cl. b) was substituted by a new definition of the Disitrict court. In Sec. 8 for the words "State Government" the words "Government of Jammu and Kashmir" were substituted and in Sec, 17 for "Indian Penal Code" words "Randir Penal Code of were substituted. In Sec. 21, instead of Code of Civil procedure, 1908", the Code of Civil Procedure, 1977" was substituted. Sub. Sec. (4) of Sec. 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 made 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. Sec. 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 Statute by reference. Both the statutes were deemed to be in parimareria i.e. Pertaining to the same subject matter. They relate to the same class of pers
