1997 Supreme(P&H) 1083

PUNJAB & HARYANA HIGH COURT
G.C.Garg, J.
Rattna Ram
Versus
Chandigarh Housing Board
Civil Writ Petition No. 1596 of 1984,
Decided On : JULY 18, 1997

A declaratory decree granted by the court on the basis of writing about the divorce before a Panchayat cannot be accepted, to be a valid decree whereby the divorce between the parties can be recognised. A provision having been made in the Act regarding divorce, in view of the provisions of Section 4 of the Act any custom or usage relating to divorce, which even if existed prior to the date of the enforcement of the Act, ceased to have effect and thus a divorce gathering sought to be relied upon in this case, cannot be recognised to be a valid divorce unless it is granted by a court of competent jurisdiction in terms of the provisions made in the Act.

Headnote:

HARYANA HOUSING BOARD ACT - SECTION 74 - REGULATIONS - ALLOTMENT, MANAGEMENT AND SALE OF TENEMENTS - CANCELLATION OF ALLOTMENT - DIVORCE - CUSTOM - HINDU MARRIAGE ACT - SECTION 4, 13, 13-B, 29(2), 3A - INTERPRETATION - VALIDITY OF DIVORCE - JURISDICTION OF COURT - AUTHORITY TO PASS CANCELLATION ORDER - LEGAL EFFECT OF DECLARATORY DECREE - CUSTOMARY LAW - RATTIAGAN'S DIGEST OF CUSTOMARY LAW - APPLICABILITY - BINDING EFFECT OF DECREE - SINGLE MEMBER BOARD - COMPETENCY TO PASS ORDER - JUDICIAL REVIEW.

Fact of the Case:

Petitioner applied for allotment of a house under the Middle Income Group and deposited a sum of Rs. 2,500/-. He was consequently registered. Petitioner got married in the year 1976 and was blessed with a daughter in the year 1979. Petitioner and his wife divorced on 6.1.1980 under custom. Petitioner was allotted M.I.G. (Independent) house on the terms and conditions as detailed in the allotment letter. Petitioner had given an affidavit to the effect that he or his wife or any other dependent relation did not own or freehold or lease hold basis a residential house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula. Petitioner was issued a show cause notice asking him to show cause as to why his allotment be not cancelled and the entire deposit made by him forfeited on the ground that he while accepting the allotment of house No. 2814, Sector 40 -C, Chandigarh, had filed an affidavit to the effect that he or his wife did not own freehold or leasehold Mouse in the Union Territory Chandigarh, and that he had concealed the fact that Smt. Joginder Kaur, had already been alloted house No. 827 Sector 40-A, Chandigarh. Petitioner submitted a reply to the show cause notice mentioning that his marriage stood dissolved on, 6.1.1980 and the affidavit was correct. Petitioner was required to attend the office of the Board, but he never appeared before the Chairman. He therefore, received an order dated 21.3.1984 signed by the Development Officer, for the Chairman, Chandigarh Housing Board, cancelling the allotment of the dwelling unit in his favour and further forfeiting the entire amount deposited by him on the ground that the dissolution of marriage binds only the parties thereto and that the declaratory decree was not binding on the Housing Board.

Finding of the Court:

1. The declaratory decree granted by the court on the basis of writing about the divorce before a Panchayat cannot be accepted, to be a valid decree whereby the divorce between the parties can be recognised. 2. A provision having been made in the Act regarding divorce, in view of the provisions of Section 4 of the Act any custom or usage relating to divorce, which even if existed prior to the date of the enforcement of the Act, ceased to have effect and thus a divorce gathering sought to be relied upon in this case, cannot be recognised to be a valid divorce unless it is granted by a court of competent jurisdiction in terms of the provisions made in the Act. 3. The order impugned in this writ Petition has not been passed by the authority competent to pass the order and is thus clearly illegal and deserves to be set aside on that ground.

Issues: 1. Whether the declaratory decree granted by the court on the basis of writing about the divorce before a Panchayat can be accepted as a valid decree whereby the divorce between the parties can be recognised? 2. Whether a custom or usage relating to divorce, which even if existed prior to the date of the enforcement of the Act, ceased to have effect in view of the provisions of Section 4 of the Act? 3. Whether the order impugned in this writ Petition has been passed by the authority competent to pass the order?

Ratio Decidendi: 1. A declaratory decree granted by the court on the basis of writing about the divorce before a Panchayat cannot be accepted, to be a valid decree whereby the divorce between the parties can be recognised. 2. A provision having been made in the Act regarding divorce, in view of the provisions of Section 4 of the Act any custom or usage relating to divorce, which even if existed prior to the date of the enforcement of the Act, ceased to have effect and thus a divorce gathering sought to be relied upon in this case, cannot be recognised to be a valid divorce unless it is granted by a court of competent jurisdiction in terms of the provisions made in the Act. 3. The order impugned in this writ Petition has not been passed by the authority competent to pass the order and is thus clearly illegal and deserves to be set aside on that ground.

Final Decision: Writ petition allowed, order Annexure P-8, is set aside, but with no order as to costs. However, it shall be open to the respondent-Board to consider the matter afresh in accordance with law, if so advised.