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1971 DIGILAW 346 (MAD)

N. Thangappan v. Subadra

1971-04-30

G.RAMANUJAM

body1971
ORDER. — The petitioner herein filed an application O.P. No. 436 of 1967 under section 7 of the Madras Marumak-kattayam Act, 1932, hereinafter referred to as the Madras Act, for dissolution of his marriage with the respondent on the ground that the respondent was suffering from chronic disease from her childhood and that it was not possible for the petitioner to have a married life with her. That petition was resisted by the respondent contending that she is not suffering from any disease or illness. She in her turn filed I.A. No. 4481 of 1968 for permanent alimony at the rate of Rs. 75 per month under section 10-B introduced in the Madras Act by the Kerala Act XXVI of 1958, hereinafter referred to as the Kerala Act, and I.A. No. 4482 of 1968 for Rs. 200 for the expenses of the litigation. In the application for alimony the petitioner contended that an application for alimony under section 10-B introduced by the Kerala Act will not lie, as the Kerala Act had no application within the Madras State. The main O. P. for dissolution of marriage as well as the said applications filed by the respondent for permanent alimony and for the cost of the litigation were disposed by a common judgment. The Lower Court held that under section 9 of the Madras Act the petitioner is entitled to have an order for dissolution of marriage as the petition for dissolution has not been withdrawn within 6 months after the service of the petition on the respondent. On the question whether the respondent is entitled to any permanent alimony, it has held that under section 10-B introduced in the Madras Act by the Kerala Act she is entitled to the same and fixed the rate of permanent alimony at the rate of Rs. 30 per month. The Lower Court also ordered a sum of Rs. 50 towards legal expenses of the respondent. This revision is however, directed only against the order passed by the Lower Court in I.A. No. 4481 of 1968 directing the petitioner to pay a permanent alimony at the rate of Rs. 30 per month to the respondent. Hence the only question that arises for consideration in this revision is whether the respondent is entitled to invoke the provisions in section 10-B which have been introduced in the Madras Act by the Kerala Legislature. 2. 30 per month to the respondent. Hence the only question that arises for consideration in this revision is whether the respondent is entitled to invoke the provisions in section 10-B which have been introduced in the Madras Act by the Kerala Legislature. 2. According to the Lower Court the amendments introduced by the Kerala Act after the Reorganisation of States would apply to all persons who are governed by or entitled to invoke the original Act. The learned Counsel for the petitioner questions the correctness of that view. It is contended by Mr. M. K. Nambiyar, learned Counsel for the petitioner that the law applicable to the parties herein is only Madras Marumakkattayam Act, 1932 as enacted by the Madras Legislature, that subsequent amendments made by the Kerala Legislature in that Act in its application to certain areas which are now in Kerala State but originally formed part of the composite State of Madras, cannot be made applicable to the residuary State of Madras, that the amendments introduced by the Kerala Legislature will be operative only within the State of Kerala and not in relation to persons residing within the Madras State and governed by the provisions of Madras Act as passed by the Madras Legislature. It is pointed out that so far as Madras Act is concerned it does not made a provision for any permanent alimony being granted by a Court in a proceeding for dissolution of marriage, that the new right created by section 10-B introduced by the Kerala Act cannot be operative in the Madras State, and that the Madras Act without the said amendment alone will be applicable in that area. 3. It is seen that before the enactment of the Madras Marumakkattayam Act, 1932 by the Madras Legislature the personal law of the Hindus who were governed by the Marumakkattayam was mostly customary, that it was for the first time the customary law relating to marriage, guardianship, intestate succession, family management and partition was codified under that Act and that, the Act has been made applicable to all the Hindus in the then Presidency of Madras who are governed by the Maru-makkattayam law of inheritance and to all Hindus outside the said Presidency governed by the said law in respect of the properties within it. Even after the States Reorganisation Act, 1956, the said Madras Act continues in force and applies to all Hindus in the present State of Madras, who are governed by the Marumakkattayam law of inheritance, and all Hindus outside that State, governed by that law in respect of pro-perties within the State. Under sections 119 and 120 of the States Reorganisation Act, the Madras Act which is a law made by composite State continues to apply to those areas which were originally in the composite State of Madras but subsequently added to the Kerala State, with such modifications and adaptations which the Kerala Legislature might think fit to make. In this case after the Reorganisation Act the Kerala Act introduced sections 10-A and 10-B to the Madras Act in its application to the areas within the Kerala State. The Kerala Legislature, of course, has the power of legislate in respect of persons and properties within the State of Kerala and continue to be governed by the Madras Act even after the States Reorganisation Act. But it has no power to legislate in respect of persons and properties within the State of Madras and governed by the Madras Act as passed by the Madras Legislature. Therefore, when the petitioner filed an application under section 7 of the Madras Act seeking to enforce his rights under the Madras Act in the Lower Court, the respondent cannot invoke the rights conferred under section 10-B which have been introduced by the Kerala Legislature in respect of (1) Hindus in the State of Kerala who are governed by Marumakkattayam law of inheritance or (2) Hindus outside that State governed "by that law in respect of properties within that State. Section 50 of the Madras Act provides that the provisions of the Act will not affect any rule of Marumakkattayam law, custom or usage, except to to the extent expressly laid down in that Act. Section 50 of the Madras Act provides that the provisions of the Act will not affect any rule of Marumakkattayam law, custom or usage, except to to the extent expressly laid down in that Act. The learned Counsel for the petitioner seems to be right in his contention that there being no rule of Marumak-kattyam law either by custom or usage recognising a right of the wife to get permanent alimony in the case of dissolution of marriage, the respondent cannot enforce a provision which was not in the Madras Act as passed by the Madras Legislature and assert her rights to get a permanent alimony based on the amended provisions in section 10-B introduced by the Kerala Act. 4. Section 10-B of Kerala Act XXVI of 1958 in so far as it is relevant for the purpose of this case is set out: "Permanent alimony and maintenance: (1) Any Court exercising jurisdiction under this Chapter may on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and the other property of the applicant and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent." As already pointed out the right to get a permanent alimony was not recognised either by custom and usage or under the Madras Act as passed by the Madras Legislature. Such a right was for the first time, conferred by the said statutory provision made by the Kerala Legislature. 5. Such a right was for the first time, conferred by the said statutory provision made by the Kerala Legislature. 5. In Kochunni v. State of Madras and Kerala1the Supreme Court has laid down that the Madras Marumakkattayam Act of 1932 whereunder the members of the Malabar tarwad were given a right to enforce partition of tarwad properties or to have them registered as impartible as provided by the Madras Legislature in 1955 will not have extra-territorial operation so as to affect the Sthanis or their estates in Kerala State in respect of properties situate in the quondam Cochin State. In Jagir Kaur v. Jaswant Singh2, the scope of the words ‘resides’ and ‘last resided’ in section 488 (8) of the Code of Criminal Procedure, came to be considered, and it was held that the words must be understood with some limitation so that the jurisdiction conferred by that section does not extend to places outside India, as otherwise the operation of the section would extend to areas over which the Indian Legislature has no legislative control, and that when section 488 (8) speaks of a District where a person last resided with his wife, it can only mean where he last resided with his wife in any district in India other than Jammu and Kashmir. The principle laid down by Their Lordships of the Supreme Court in that case is that the law made by a Legislature should have operation only within the territories over which it has legislative control, and that even if the legislative provision purports to be wide in its amplitude, it has to be understood in a limited sense so as to have operation within its territories. In this case the Kerala Act XXVI of 1958 which brought in certain amendments to the Madras Marumakkattayam Act of 1932 cannot be said to have amended the Madras Act in its application to Madras State. The amendment can have a limited operation restricted to the areas within the legislative control of the Kerala Legislature. If the amendments introduced by the Kerala Act is deemed to be operative in all places, where the Madras Marumakkattayam Act operates, it will mean that the Kerala Legislature is empowered to pass a law in respect of territories not subject to its legislative control. If the amendments introduced by the Kerala Act is deemed to be operative in all places, where the Madras Marumakkattayam Act operates, it will mean that the Kerala Legislature is empowered to pass a law in respect of territories not subject to its legislative control. That will normally offend Article 245 of the Constitution, for the Kerala Legislature cannot make a law having an extra-territorial jurisdiction. 6. In Halsbury’s Laws of England, Volume 36, third edition at page 429 it is stated: “The persons to whom statutes apply: The persons on whom a particular statute is intended to operate are to be gathered from the language and purview or that statute but the presumption is said to be that Parliament is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance, and with no other conduct. In other words, the extent of a statute and the limits of its application, are prima facte the same.” 7. In MacLeod v. Attorney-General for Mew South Wales1, the Judicial Committee had to construe the scope of section 54 of the Criminal Law Amendment Act, 1883 (46 Vict. No. 17) which ran as follows: “Whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for 7 years.” 8. Their Lordships held that the words “whosoever and wheresoever” must be intended to apply to those actually within the jurisdiction of the Legislature and that there was consequently no jurisdiction in the Colony to try a person for the offence of bigamy alleged to have been committed in the United States of America. Their Lordships were of the opinion that if a wider construction is applied to the statute so as to comprehend all persons all over the world, the statutory provision would have been beyond the jurisdiction of the Colony of New South Wales to enact such a law, that the jurisdiction of that Colony to enact a law should be confined with their own territories and that the maxim which has been more than once quoted “Extra territorium jus dicenti impune non paretur ” would be applicable to such a case. Having regard to the principle that a Legislature can make a law so as to have operation within its own territories, the amending law made by the Kerala Act cannot have any operation within the territories of the Madras State, where the Madras Marumakkattayam Act of 1932 is applicable, as otherwise, the Kerala Legislature would be making a law with extra-territorial operation, which it cannot do. 9. The learned Counsel for the respondent, however, refers to the decision in Venkataraman v. Janaki2, as supporting his stand that the personal law of the parties will continue to operate wherever they are, and that the parties here being admittedly governed by the Marumak-kattayam law will be bound by the amending law passed by the Kerala Legislature. In that case, Venkataramana Rao, J., expressed the view that the personal law of a person in all matters will continue to govern him and that he cannot get rid of it however fixed his determination was, and that it must only be done in a mode recognised by law relying on the following passage of Mayne in his book on Hindu Law: “A man cannot alter the law applicable to himself by a mere declaration that he is not a Hindu. He can only alter his existing status by becoming a member of such a religion as would destroy that status and give him a new one.” No exception can be taken to the principle laid down in that case that the personal law of the parties cannot be got rid of except by legislation or in a mode recognised by law. But in this case there are two personal laws in operation; one is the Madras Marumakkattayam Act of 1932 applicable to all Hindus within its territories governed by Marumakkattayam law of inheritance and the other a different personal law that is the Madras Marumakkattayam Act, 1932 as amended by the Kerala Act, which is in operation only in respect of Hindus living within Kerala State and governed by the Marumakkattayam law. If the respondent’s contention were to be accepted, all Hindus governed by Marumakkattayam law of inheritance will be governed by two pieces of legislation, one made by the Madras Legislature and another made by the Kerala Legislature. Such cannot be the situation. If the respondent’s contention were to be accepted, all Hindus governed by Marumakkattayam law of inheritance will be governed by two pieces of legislation, one made by the Madras Legislature and another made by the Kerala Legislature. Such cannot be the situation. Under sections 119 and 120 of the States Reorganisation Act, 1956 the Madras Marumakkattayam Act of 1932 will continue to have operation in territories which have been taken away from the composite State of Madras and added to the Kerala State subject to such adaptations and modifications as may be made by the Kerala Legislature in relation to such territories. Therefore, the modifications made by the Kerala Legislature to the Madras Marumakkattayam Act of 1932 can have effect only in relation to the territories which have come within its legislative ‘control. 10. On a due consideration of the matter I am clearly of the view that the rights of parties before me have to be governed by the provisions of the Madras Marumakkattayam Act without the amendment made by the Kerala Act, and that the respondent is not entitled to claim permanent alimony on the basis of section 10-B of the Kerala Act XXVI of 1958. The Civil Revision Petition is, therefore, allowed but, in the circumstances without costs. V.S. ------------ Revision allowed.