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1977 DIGILAW 84 (KER)

LEELA v. RADHAKRISHNAN

1977-03-30

K.K.NARENDRAN, P.SUBRAMONIAN POTI

body1977
Judgment :- 1. S.15 of the Cochin Nair Act 29 of 113 (hereinafter referred to as the Act) provides for filing of a petition for dissolution of the marriage and S.17 provides for an order to be passed on such petition. The revision before us is one against an order passed under S.17 of the Act on a petition by the husband for dissolution. That the person who presented the petition is the husband of the counter petitioner therein is admitted. That they were married is also admitted. If so S.15 provides that the husband can leek dissolution of such marriage without showing any grounds and on the expiry of 6 months after the service of the copy of such petition on the wife the court has to declare the marriage dissolved if the petition is not withdrawn in the meantime. That has been done by the court below and that is challenged in this revision. 2. It is said that the marriage in this case took place under the Hindu Marriage Act and therefore any dissolution must be governed by the provisions of the Hindu Marriage Act. It is very difficult to understand this plea. The parties are, it is agreed, governed by the provisions of the Cochin Nair Act. If so S.15 applies to the dissolution of any marriage between the parties who are governed by the Act. Therefore no question as to how the marriage was conducted arises. 3. It is a misconception to speak of a marriage under the Hindu Marriage Act. That Act does not prescribe any particular form of marriage. S.7 is the relevant section. Sub-section (1) of that section recognises solemnization of marriages in accordance with the customary rites and ceremonies of either party thereto. Therefore in the case of parties governed by special statutes relating to marriage the rites and ceremonies performed by them in accordance with those Acts are recognised as valid requisites for marriages properly solemnised. Sub-section (2) refers to rites and ceremonies including the saptapadi. It is evident that S.7 does not prescribe any mode of marriage recognised under the Hindu Marriage Act but only provides for treating all marriages conducted in accordance with customary rites and ceremonies as valid marriages. Sub-section (2) refers to rites and ceremonies including the saptapadi. It is evident that S.7 does not prescribe any mode of marriage recognised under the Hindu Marriage Act but only provides for treating all marriages conducted in accordance with customary rites and ceremonies as valid marriages. That is why we said that to speak of marriages under Hindu Marriage Act as different from one under the Cochin Nair Act is the result of misunderstanding of the provisions of the Hindu Marriage Act. 4. On the evidence the court below has found that even the requirements of a marriage under the Act have been satisfied since the marriage has been performed by presentation of cloth by the bridegroom to the bride, a point on which we see no reason to interfere in revision. Of course as we indicated, even a contrary view would not have made any difference is the light of the perspective from which we have considered S.15 of the Act. 5. The only other point urged is that in view of the operation of the Kerala Joint Family System (Abolition) Act, 1975 a petition for divorce must stand dismissed. This is based on S.7 (2) of that Act which provides for repeal of certain Acts one of which is the Cochin Nair Act. It is said that since the Act is repealed and this revision was pending at the time the order for dissolution must go. That an order for dissolution has been passed is not in dispute. The revisional jurisdiction of this Court has been resorted to on the ground that there is error of jurisdiction in the order. At any rate that alone can justify resort to the revisional jurisdiction. It is not as if the order, for that reason, will have to be reopened. The repeal of the Cochin Nair Act will not operate to nullify the order of divorce passed prior to its repeal. The fact that a revision is pending will not in any way be sufficient to reopen that order. Hence this ground also must be found against. 6. In the circumstances we see no reason to allow the revision. 7. There is an appeal filed by the wife who is the revision petitioner in the accompanying revision against the determination of the compensation. Such compensation has been determined at Rs. 3000/-that being the maximum. Hence this ground also must be found against. 6. In the circumstances we see no reason to allow the revision. 7. There is an appeal filed by the wife who is the revision petitioner in the accompanying revision against the determination of the compensation. Such compensation has been determined at Rs. 3000/-that being the maximum. There can be no case that it should be more. Possibly the plea is that if the parties are governed by Hindu Marriage Act the compensation could be more. But the petition is one under the Cochin Nair Act and the parties are subject to the application of S.15 of the Act. As we have held the parties are governed by that Act and the provisions of that Act apply in the matter of determination of compensation. 8. In fairness to counsel Sri. Seshadri we should advert to the contention urged by learned counsel that the decision in Ayyappa Kurup Krishna Pillai v. Parukutty Amma Subhadra Amma 1970 KLT 442 requires reconsideration. This Court held in that decision that S.29 (2) of the Hindu Marriage Act 1955 saved the right to obtain dissolution on a petition under S.5 of the Travancore Nayar Act 1100. Similar would be the case of a petition under S.15 of the Cochin Nair Act. According to learned counsel Sri. Seshadri S.29 (2) does not save the provisions of statutes like Travancore Nayar Act and Cochin Nayar Act for dissolution of marriage. We see no reason to doubt the correctness of the Full Bench decision. The plea does not appeal to us. In the result, the revision and appeal are both dismissed. Parties are directed to suffer costs.