P L D 1956 (W (PLP)

It is urged on behalf of the petitioner that such declarations will be judgments falling under section 41 of the Evidence Act, and will be conclusive evidence in criminal proceedings of the existence or non‑existence of the relation ship of husband and wife. It is also urged that such a declaration will be a judgment in rem. Section 41 admittedly deals with the judgment in rem, and the decision of the question as to its being a judgment in rem, will be relevant even for the purpose of deciding whether it falls under section 41 of the Evidence Act. Section 41 runs:‑ "A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or, decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property". The judgment covered by section 41 is one which is delivered in the exercise of one of the four jurisdictions mentioned and either, (1) confers or takes away a legal title or (2) declares a person to be entitled to any legal character or to any specific thing, not as against any specific person but absolutely. It appears to me that in so far as this section mentions the requirements in addition to the judgment being one in exercise of a particular jurisdiction, it only explains the nature and effect of such a judgment. Had the section simply stated that a judgment delivered in the exercise of any of these jurisdictions would be relevant or conclusive as to any matter which is within such special jurisdiction, the effect of the section would not have been different. All judgments delivered in the exercise of these four jurisdictions are judg ments in rem and are conclusive on the point directly adjudi cated upon. It is good, however, that the other requisites are clearly mentioned in the section, for such mention excludes a good deal of discussion to which the section might otherwise have given rise. It is urged by learned counsel that the judgment in the Muni suit filed by the petitioner would be in the exercise of Habib matrimonial jurisdiction. It would be better, however, before considering what is matrimonial jurisdiction, to start with a discussion of what is a judgment in rem, for the decision of that question would influence the decision of the question as to whether such a judgment will be in the exercise of matrimonial jurisdiction. Various definitions of the judgment in rem have been attempted. All have been criticised and it is not necessary to quote them here. I would define a judgment in rem as a judgment which by its own force has a direct effect upon the property or status to which it relates so as to render such property or status in the same condition as the judgment c declares it to be. It may also be defined as a judgment delivered in the exercise of a jurisdiction to bind the properly the status, which is the subject‑matter of the proceedings, itself. It may be explained that ordinarily the jurisdiction a Court extends only to the person before it and does not enable the Court to bind or affect the subject‑matter. If A sues B for possession of property o4 the ground that he is the owner and the Court holds that A is the owner of the property, the judgment does not bind or affect the property. In. spite of this decision, in any other proceeding with respect to the same property, a plea that A is not the owner of the property can be taken unless the parties are the same where the question cannot be reopened on the grounds of res judicata. If, however, the judgment was one in rem, the effect would be that the property to which it relates would become subject to a right in accordance with the judgment. If A is declared to be the owner, ownership will vest m him by the judgment. From the point of view of jurisdiction to bind the subject- matter, proceedings may be divided into three classes:‑ (1) Where there is jurisdiction to bind only the parties; (2) Where there is jurisdiction to bind the interest of a particular person in the subject‑matter; and (3) Where there is full jurisdiction to bind the property or status in dispute. An example of proceedings in class (1) is an ordinary suit for possession of property on the ground of ownership. A decision that A is the owner not only does not bind the property but does not even bind the interest of B who is defendant in the suit. If B in fact had an interest, it would not terminate and in any suit to which A is not a party, the ownership of B can be pleaded. As an example of class (2), I might refer to proceedings for forfeiture of property of a person for violation of a law. The proceedings would have an effect upon the title of such person which would hence‑forth be destroyed so that the title of the person proceeded against could not be alleged in any proceedings whatsoever though the proceedings for forfeiture will not affect title of strangers. Such judgments are quasi in rem, for, though they do not affect a right to property or status without reference to any person, they do affect the said right or status in so far as it relates to a particular person. It will be pertinent to observe here that decrees and orders are also judgments in rem, and section 41 mentions judgments, decrees and orders. Judgments of class (3) are judgments in rem strictly so called. If by such a judgment, a right to property is held to belong to A, the judgment will vest the right in A and will negative the right of everyone else. The title of A would henceforth not remain liable to dispute. I have stated above the nature and fundamental characteris tics of a judgment in rem. It is true, however, that if a judgment binds all persons it must be a judgment in rem, for a judgment that binds all would have the effect of binding the subject‑matter itself. Whether it be the proper definition or not, it is a correct test of a judgment in rem, that is is a judgment which binds the whole world. The objection to such a definition is that it states the effect and not the true nature of a judgment. While the objection is not without force, it has to be remembered that if the law of a country declares any judgment to be binding on all it would become a judgment in rem. In order to determine whether a judgment is in rem or in personam, I would divide judgments into two categories (1) those that purport to confer or take away a legal character or right to property, and (2) those that declare such character or right. As regards the first category, a judgment that purports to create or terminate a right or status must, if it is given with jurisdiction, be a judgment in rem, unless there be some qualification or limitation of the power of the Court or tribunal to create or terminate such right or status, when the character of the judgment as a judgment in rem will be subject to such qualification or limitation. As regards the second category, such declarations can be made by Civil Courts in the exercise of the ordinary jurisdiction. Since the enactment of the Specific Relief Act, such declarations fall under section 42 of that Act, and, by virtue of section 43 of that Act, bind only the parties, though section 43 is in fact only explanatory and its omission would not have made any difference. However, it is open to the legislature to invest a Court with a special jurisdiction to make a declaration that will affect the subject‑matter itself and will bind all persons. Judgments of probate and admiralty Courts are examples of such special jurisdictions. The declarations granted in those proceedings could very well have been granted by the ordinary Civil Courts in proceedings in personam. A Civil Court may, in the exercise of ordinary jurisdiction, declare the validity of a will or right of a person as executor. The declaration will not be a judgment in rem. If the same declaration is made in the exercise of probate jurisdiction in accordance with the pro visions of Succession Act, the judgment is one in rem. Similarly, a decree that the plaintiff is not the legally wedded wife of the defendant can be granted in an ordinary civil suit. It is not a judgment in rem. But a decree as to nullity of marriage, when granted in exercise of jurisdiction vested in the Court by section 18 of the Divorce Act, is a judgment in rem. So with respect to the second category, if it be claimed that it is a judgment in rem, it will have to be shown that it was intended to make the decision affect directly the subject‑matter or to make it binding on all persons. That will depend on an interpretation of the relevant legal pro visions. Although as I have stated above the effect even of a declaratory judgment, if be a judgment in rem, will be that the person in whose favour a declaration is given will become vested with the status or right which is declared, with respect to declaratory judgments, it has to be shown that they are intended to have that effect by virtue of some law, while judgments in the first category obviously have such effect. Will the judgment in the suit with which I am dealing be a judgment in the exercise of matrimonial jurisdiction? Will it be a judgment in rem? The reliefs prayed for are:‑ (1) a declaration that there is no relationship of husband and wife between the plaintiff and the defendant, or in the alternative, (2) decree for dissolution of marriage. So far as the second relief is concerned, the judgment will fall under the first category mentioned above, and has to be a judgment in rem in so far as it puts an end to the marriage. It will no doubt take away the status of husband and wife. However, as I have already stated the relief of dissolution cannot affect the criminal proceedings, for the question in criminal proceedings will only be whether the defendant was the husband of the plaintiff on the date when the offence under section 498 P. P C. was committed or when the complaint under section 498 was filed, and this question will not be answered by the Civil Court. The only point to consider, therefore, is whether a declaration that the parties are not husband and wife will be a judgment in rem or a judgment in the exercise of matrimonial jurisdiction. This declaration falls under the second category referred to above. It cannot be urged, and it is not urged, that this declaration will amount to an annulment or a dissolution of marriage. If the declaration be on account of divorce, it obviously simply recognises the fact of non‑existence of a marriage and the position is not different in the case of repudiation on attainment of puberty. Such repudiation puts an end to the marriage without the aid of any Court and whe the matter comes to Court, the Court does not dissolve the marriage by its own act but recognises the termination of marriage. The proposition is well established. It is 'sufficient to refer, in this connection, to Muhammad Vakhsh v. The Crown (Pa k. L R 1950 Lah. 227=P L D 1950 Lah. 203), Mafrzuddin Mandal v. Rahima Bibi (A I R 1934 Cal. 104) and Shafa Ullah v. Emperor (A I R 1934 All. 589). Is there any law which confers on such a declaration the status of a judgment in rem? So far as Christians are con cerned the Court can, while exercising jurisdiction under section 18 of the Divorce Act, grant declaration of nullity of marriage and such declarations fall within section 41, being granted in the exercise of matrimonial jurisdiction. That proceedings under the Divorce Act are in the exercise of matrimonial jurisdiction is not matter of any doubt. The Act confers a special jurisdiction and section 4 of that Act specifi cally refers to jurisdiction in matrimonial matters. However, a declaration of non‑existence of marriage granted in an ordinary suit by the Court is not a judgment in the exercise of matrimonial jurisdiction merely because it relates to a marriage. It is just a declaration under section 42 of the Specific Relief Act Matrimonial jurisdiction, it must be understood, is a special jurisdiction. If a declaration be of a kind which can be granted by an ordinary Civil Court, and it be claimed that it is in fact in exercise of a special jurisdiction, reference has to be made to some law which creates such jurisdiction. In the case of Christians, and in respect of marriages under the Special Marriage Act, the legislature has created a special jurisdiction for matri monial causes which enables the Court to make binding pronouncement as to existence of marriage but there is no similar jurisdiction given to Courts in other cases. I have defined judgments in rem as those which bind or directly effect the subject‑matter. A judgment in the exer cise of matrimonial jurisdiction is a judgment in rem the subject‑matter of which is the matrimonial relation and it is an essential attribute of matrimonial jurisdiction that the Court should have the authority to bind or directly affect the matrimonial relation. Has the Court in the present case the authority to bind the matrimonial relation? In case of a decree for dissolution of marriage, the authority to affect the relationship is obvious. Unless the Court had such authority the marital tie could not be severed. But with respect to a declaration in an ordinary suit, there is no provision of law granting such authority to the Court. The Court just makes a declaration as to status which only creates a res‑judicata between the parties and the declaration is not different in nature from that made in suit by A against B for declaration regarding ownership of property. The declaration of ownership does not in fact make A the owner if he was not the owner before, and similarly the declaration of an unmarried state does not make the plaintiff an unmarried person. Learned counsel for the petitioner has relied upon Kanhya Lall and others v. Radha Churn and others (VII S. W. R. 338) for the proposition that a decree as to non‑existence of marriage is a judgment in rem. The question that arose directly for consideration in that case was whether a decision that a person had been adopted by another was a judgment in rem. It was held that it was not a judgment in rem. During the course of the discussion as to the nature of a judgment in rem, the learned judges observed: " So if a marriage between Muhammadans were set aside upon the ground of con sanguinity or affinity, as for instance, in the case of a Muhammadan that the marriage was with the sister of another wife then living, the decree would be conclusive that the marriage had been set aside, and that the relationship of husband and wife had ceased, if it ever existed; but it would be no evidence as against third parties, for example, in a question of inheritance, ,that the two ladies were sisters " Learned counsel urges that in this paragraph a declaration as to non‑existence of a valid marriage has been regarded as a judgment in rem. It is clear, however, from the words " that the relationship of husband and wife had ceased "that the learned judges regarded the marriage as valid and continuing till it was put an end to by decree of Court. If the assumption that the marriage existed till it was set aside by decree of Court was correct, the judgment would be .one annulling a marriage and I would have no objection to its being a judg ment in rem. I have already said that a judgment by which a marriage is annulled or dissolved is a judgment in rem, for the judgment by its own force affects status. (Whether, truly speaking such a judgment, apart from any special jurisdiction, is only quasi in rem is a matter which does not arise for consideration in the present case). I do not with all respect agree that the assumption is correct but the learned judges were not concerned with the question as to whether a marriage with wife's sister was one that required setting aside. They assumed it to be so. In the present case, we are concerned with a declaration founded on the exercise of option of puberty. I have already referred to a number of cases in support of the proposition that for the exercise of option of puberty no decree of Court is needed and in fact this proposition is not contested. There is no doubt that even in a case of exercise of option of puberty, there is a dissolution of marriage in the sense that a marriage, which would be valid but for the exercise of this option, has been dissolved. But the dissolution takes place by act of party as in the case of a divorce and before the suit for declaration is filed. the parties are no longer spouses. In so far as the relief on the basis of alleged divorce is concerned, it cannot be contended that it is a dissolution. The result then of this discussion is that the proceeding in the Civil Court cannot have any effect upon the criminal proceedings, for so far as the decree for dissolution is con cerned, it terminates marriage on the date of decree and so far as the decree as to non‑existence of marriage is concerned, it will not be a judgment in rem. There is no ground for stay of proceedings. The criminal Court must determine the issues as to marriage itself, This application is dismissed. A. H. Application dismissed