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1968 DIGILAW 39 (KER)

RAGHAVAN INDIRA v. KESAVAN GOPINATHAN

1968-02-21

M.S.MENON, P.GOVINDA NAIR

body1968
Judgment :- 1. This petition seeks to revise the order of the Munsiff of Karunagapally in E. A. No. 4 of 1966. That was a petition for the dissolution of the marriage of the petitioner, Gopinathan to the respondent, Indira, under S.8 of the Travancore Ezhava Act III of 1100. The Munsiff allowed the petition and dissolved the marriage. 2. The respondent, Indira, is the petitioner before us. The sole contention urged on her behalf is that the Munsiff of Karunagapally had no jurisdiction to order the dissolution of the marriage in view of the Hindu Marriage Act, 1955, and the decision of Madhavan Nair, J. in Vijayamm v. Gangadharan,1967 KLT.115. 3. S.7 of the Travancore Ezhava Act, III of 1100 says: "Marriage is dissolved only in one of the following ways: (i) by the death of either party; or (ii) by mutual consent evidenced by a registered instrument; or (iii) by a formal order of dissolution as hereinafter provided." The provision for obtaining a formal order of dissolution is embodied in S.8 of the Act. That section is in the following terms: "A husband or wife may present a petition for dissolution of the marriage under S.7 Clause (iii), in the Court of the District Munsiff within the local limits of whose jurisdiction the respondent resides, carries on business or personally works for gain, or if the respondent resides, carries on business or personally works for gain in any place outside Travancore, in the Court of the District Munsiff within whose jurisdiction the petitioner resides, and the petitioner shall, in all cases, offer in the petition reasonable compensation to the respondent except where such respondent has changed his or her religion: Provided that the wife shall herself be competent to apply for divorce if she has completed sixteen years of age" 4. S.9 of the Act deals with the determination of reasonable compensation and S.10 with the service of a copy of the petition on the respondent. S.11 the section under which the order of dissolution was passed reads as follows: "Six months after the service of the copy as aforesaid if the petition is not withdrawn in the meantime, the Court shall after determining the amount of compensation declare in writing the marriage dissolved. The dissolution shall lake effect from the date of the order declaring it. The dissolution shall lake effect from the date of the order declaring it. So far as it decrees payment of compensation, such order shall be executable and appealable as a decree under the Code of Civil Procedure, on payment of court fees on the amount adjudged or claimed, as the case may be". 5. It is common ground that the court of the District Munsiff of Karunagappalli is the proper court under S.8 of the Travancore Ezhava Act, III of 1100. The only contention urged on behalf of the wife is that the forum must be determined not under S.8 of the Travancore Ezhava Act, III of 1100, but under S.19 of the Hindu Marriage Act, 1955. 6. S.19 of the Hindu Marriage Act, 1955, reads as follows: "Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together." It is agreed that if this section applies to the case, the proper court will be not the court of the District Munsiff of Karunagapalli but the court of the District Judge of Quilon. 7. S.19 of the Hindu Marriage Act, 1955 makes it quite clear that it applies only to petitions presented under that Act. We are not concerned in this case with a petition presented under that Act. What we have is a petition presented under S.8 of the Travancore Ezhava Act, III of 1100. And there is nothing in the Hindu Marriage Act, 1955, which provides that petitions under the Travancore Ezhava Act, III of 1100, should be deemed by any legal fiction to be petitions presented under the Hindu Marriage Act, 1955. 8. What we have is a petition presented under S.8 of the Travancore Ezhava Act, III of 1100. And there is nothing in the Hindu Marriage Act, 1955, which provides that petitions under the Travancore Ezhava Act, III of 1100, should be deemed by any legal fiction to be petitions presented under the Hindu Marriage Act, 1955. 8. S.4 of the Hindu Marriage Act, 1955, provides for the over-riding effect of the, provisions of that Act in the following terms: "Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is mads in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." In view of this section there can be no doubt that the provisions of the Travancore Ezhava Act, III of 1100, with respect to matters like divorce will not survive the passing of the Hindu Marriage Act, 1955, in the absence of an express provision like the one embodied in sub-section (2) of S.29 of the Hindu Marriage Act, 1955. That sub-section provides for the continuance of special enactments like the Travancore Ezhava Act, III of 1100, and reads as follows: "Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act." 9. A Full Bench of this Court, Vasappan v. Sarada,1957 KLT. 977, has specifically ruled that sub-section (2) of S.29 saves S.8 of the Travancore Ezhava Act, III of 1100, and that the right to file a petition under that section is unaffected by the passing of the Hindu Marriage Act, 1955. See also the Full Bench decision in Chellappan Nair v. Madhan Amma,1960 KLT. 1146. 10. Both the decisions of the Full Bench in Vasappan v. Sarada,1957 KLT. 977, and the decision of Madhavan Nair J. in Vijayamma v. Gangadharan,1967 KLT 115, were cited in the order dismissing CRP. No 887 of 1967. See also the Full Bench decision in Chellappan Nair v. Madhan Amma,1960 KLT. 1146. 10. Both the decisions of the Full Bench in Vasappan v. Sarada,1957 KLT. 977, and the decision of Madhavan Nair J. in Vijayamma v. Gangadharan,1967 KLT 115, were cited in the order dismissing CRP. No 887 of 1967. Raman Nayar J. said: "Dismissed in view of the full bench decision in 1957 KLT 977 which, it would appear, was not brought to the notice of the learned judge who decided 1967 KLT. 115. Obviously the full bench read the word 'right' in S.29 (2) of the Hindu Marriage Act to include also a remedial right, and with great respect, I think it was right." 11. The decision of Madhavan Nair, J. in Vijayamma v. Gangadharan, 1967 KLT. 115, seems to be based on a misapprehension of the scopes and intent of sub-section (3) of S.29. That sub-section is in the following terms: "Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed." 12. S.29 deals with savings and S.30 with repeals. They must be read together. It should also be noted that the Travancore Ezhava Act, III of 1100 is not one of the enactments repealed by S.30 of the Hindu Marriage Act, 1955. Speaking generally, a repeal like the one embodied in S.30 without a saving will obliterate the repealed enactments from the statute-book as completely as if they had never been passed. Sub-section (3) avoids that contingency as far as pending applications under those enactments are concerned. 13. Mulla's commentary on sub-section (3) of S.29 is instructive. "S. 30 repeals a number of special enactments under which marriage could be annulled or divorce granted. Proceedings adopted by parties under any of those enactments and pending at the date of commencement of the present Act are expressly saved by this sub-section. Such proceedings may be continued and determined as if this Act had not been passed. (Hindu law, 13th Edition, page 750). 14. Proceedings adopted by parties under any of those enactments and pending at the date of commencement of the present Act are expressly saved by this sub-section. Such proceedings may be continued and determined as if this Act had not been passed. (Hindu law, 13th Edition, page 750). 14. The order sought to be revised refused to follow the decision of Madhavan Nair J. in Vijayamma v. Gangaharan, 1967 KLT. 115, in view of the Full Bench decision in Vasappan v. Sarada, 1957 KLT. 977. The learned Munsiff was right in doing so. 15. In the light of what is stated above we must hold that the District Munsiff of Karunagappalli had jurisdiction to pass the order that he passed, that Vijayamma v. Gangadharan, 1967 KLT. 115, was wrongly decided and that this petition should be dismissed. We do so; but in the circumstances of the case without any order as to costs.