Vrijkunvar Jivraj vs Kothari Pitambar Panachand

Chhatpar, J.—The record and proceedings of this case were called for by this High Court on receipt of a pamphlet issued by one Amritlal

Malukchand of Jamnagar dated 27-3-52. In this pamphlet attention is drawn of the leaders of Jain community to a case of divorce in which a

decree was obtained by the parties to the present case. This Court called for the case in revision and issued notice to the parties and to the

Advocate General as well.

The Plaintiff Vrijkunvar Jivraj of Vanthali filed a suit in the Court of the Civil Judge, Senior Division, Jamnagar, for divorce against her husband

on the ground that owing to her in health and being unable to perform marital duties, she had decided to renounce the world and lead the life of a

Jain Sadhvi. She had already obtained a deed of divorce from her husband and she prayed for a formal decree of divorce. She stated in the plaint

that she was married to the Defendant Kothari Pitambar Panachand about 19 years before and that the last 15 years she was not keeping in good

health, which had considerably deteriorated during the last 7 years. The Defendant has been residing in Uzambus in Belgium Kongo for nearly 20

years, although he was originally a resident of Vanthali in Saurashtra. The Plaintiff was also residing with him for many years in Uzambus. She

stated that she had no longer any desire to and could not lead a normal life of a wife and wanted to turn herself to religious meditation and live the

life of a pure Sadhvi similar to that led by Jain Sadhus. She had obtained a divorce deed from her husband dated 19-3-51 and prayed for a decree

of divorce.

The suit was filed on 7-12-51. It was transferred to the Joint Judge Mr. S.P. Parekh, who himself, we are informed, is a Jain. The Defendant

filed his written statement on 24-12- 51 practically admitted the case. Issues were framed on 10-1-52 and the principal issue was whether the

Plaintiff could under the law obtain a divorce. The case was fixed for hearing on 20-1-52. On that day the Plaintiff and some of her witnesses were

examined and the case was fixed for arguments on 18-2-52 but was not taken up on that day. At Plaintiff''s request it was adjourned, for recording

evidence of Plaintiff''s other witnesses to prove custom, to 4-3-52. On 4-3-52 an application was filed for examining some other witnesses and

such witnesses were actually examined on that day and after the case was over, the learned Judge gave his judgment granting a decree for divorce

on the basis of a custom prevailing in the Jain community to which the parties belong entitling the wife to a divorce under the circumstances

narrated by her in her evidence and those of the other witnesses. The evidence recorded shows some instances where Jain wives desiring to

forsake the marital life and embrace asceticism were permitted to leave their husbands who subsequently remarried. On this evidence, which we

need not discuss in detail, the learned Civil Judge was apparently satisfied that there was a custom in the Jain community by which wives could be

permitted to sever marital relations entirely with, their husbands and become Sadhvis. The decree was passed on 5-3-52. We are informed that on

19-3-52 the Defendant was re-married. No appeal was filed nor was any regular revision application made to this Court. Amritlal Malukchand

published a pamphlet attaching thereto a copy of the judgment in the case drawing the attention of the leaders of the Jain community to this

judgment and suggesting that this was a collusive decree and that there was no such custom in the community.

We have heard the learned Advocate General and the learned Advocates for the parties appearing in the case. In the first place it appears to us

strange that the leading members of the Jain community did not think it fit to intervene while the case was pending for nearly 3 months in the Court

at Jamnagar. The parties in the lower Court were represented by Advocates and even after the decree was passed none of the leaders thought it fit

to file appropriate proceedings to set aside the decree, if they were of opinion that the decree was collusive and that there was no such custom of

divorce recognised by the Jain community nor did these leaders take any steps to prevent the Defendant from re-marrying. The case was filed at

Jamnagar, a commercial city, having a large population and the parties were represented by advocates. It is difficult to believe that the members of

the Jain community were oblivious of the filing of the suit, and it was ultimately left to this Amritlal Malukchand to issue a pamphlet, copy of which

was sent to this Court. As the matter was peculiar, this Court thought it fit to examine the record and proceedings.

We have gone through the entire case very carefully. We are of the opinion that the evidence of custom brought on the record if adduced in a

contested case, where a custom of this nature is sought to be proved for the first time, would not be sufficient to establish such a custom. But the

question arises whether we should interfere in the exercise of our revisional or supervisional jurisdiction in the present case. In view of the two

Privy Council rulings of 1949 one in - AIR 1949 156 (Privy Council) and the other in - AIR 1949 239 (Privy Council) , and the recent ruling of

the Supreme Court in - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , discussion at pp. 27 and 28(C), it appears we have no

jurisdiction u/s 115, CPC to interfere, as the question decided is one of fact only. But undoubtedly we have jurisdiction under Article 227 of the

Constitution of India to interfere in our supervisional jurisdiction in matters both judicial and administrative. In my judgment in - ''Bavalal Jadavji v.

Jivanlal Gopalji AIR 1951 Sau 43(D) I held after reviewing judicial precedents that the powers of superintendence now enjoyed by the High Court

under the present Constitution include interference in both administrative and judicial matters; but that does not mean that the High Court should

invoke these powers in every case where the Court finds some error of law or fact in the proceedings of the lower Courts and Tribunals. In the

concluding paragraph of my judgment I observed that the decision in that case rested upon appreciation of facts only and the case could not be

said to be an entire negation of justice or leading to the infliction irreparable injury to the infliction of an irreparable injury to induce the ""High'' Court

to interfere.

Now it is discretionary for the High Court to interfere in the exercise, of its revisional or supervisional jurisdiction and the High Court would be

most reluctant to interfere when the rights and interests of third parties are affected. In the present case the Defendant has remarried and the

honour of an innocent lady is involved, in case we interfere. If we set aside the decision, and remand the case for re-trial, our decision may have

the effect of converting an honourable wife into a concubine, as bigamous marriages are prohibited by law in Saurashtra, and if a child has been

conceived our judgment may have the effect of branding its innocence with illegitimacy. It would be against the conscience of this Court to

jeopardise the honour of an innocent lady and the possible effect on any child conceived by this time. We, therefore, decline to interfere and let the

matter rest as it is. But we must observe that the judgment of the lower Court should be considered as of poor merit as a precedent in support of

any such custom in any future litigation where such custom is set up. Papers may, therefore, be filed. There will be no order as to costs.

Baxi, J.

I agree.