M. K. SHAH, J. ( 1 ) AN interesting question which arises in this appeal is - as to whether the parties who at the time of marriage were residents of the former Baroda State which merged into the then Bombay State on 1st August 1949 and which later on 1st May 1960 on bifurcation became part of the State of Gujarat would be governed by the Baroda Hindu Nibandh Act also known as Hindu Act (Act 37 of 1937) (hereinafter referred to as the Baroda Act) or whether they would be governed by the Hindu Marriage Act 1955 (the Act) and the second question which arises is as to whether the provisions contained in the Baroda Act so far as they are inconsistent with any of the provisions of the Act would be overriden by the provisions of the Act. ( 2 ) THE appellant-wife is the original plaintiff who filed a petition against the respondent-husband (original opponent) for restitution of conjugal rights on the ground that the husband had deserted the wife and had thus without reasonable cause withdrawn from her society The husband inter alia contended in his defence that there bad been a divorce between the parties as allowed by custom prevalent in the community of the parties as recorded in the deed of Fargat that is divorce ex. 57 executed on 26th December 1961 and that therefore there was no valid marriage in subsistence between the parties after the said deed and the wife was therefore not entitled to the relief sought. The wifes petition was dismissed on the ground that there was divorce as revealed by the said deed. Her appeal to the District court was also dismissed. The wifes petition was dismissed on the ground that there was divorce as revealed by the said deed. Her appeal to the District court was also dismissed. In second appeal No. 571 of 1966 preferred by her to this court this court by an order dated 5th February 1970 while allowing the appeal and setting aside the decrees of both the courts remanded the matter to the trial court for disposal of the wifes application in accordance with law and the observations made in the judgment of this court which was delivered by J. B. Mehta J. (as he then was) on 5th February 1970 ( 3 ) ON remand the learned trial Judge on further particulars filed by both the parties raised ten issues and on the evidence led before him he came to the conclusion that the husband had proved that there was a custom in their community of getting divorce by executing a Fargat as alleged in para 9 of the particulars filed by the opponent-husband at ex. 170 He also came to the conclusion that the custom was ancient and certain and it had obtained force of law by continuous observance and that the fargat deed was passed by the parties as per that custom of the community. He also came to the conclusion that the wife had failed to prove that the disputed Fargat was null and void under the provisions of secs. 152 and 154 of the Baroda Act by its not being registered in the Nyayadhisi. He also held that the wife had failed to prove that the respondent-husband had without any reasonable excuse withdrawn from the society of the petitioner-wife. He therefore dismissed the petition. ( 4 ) THE matter was carried further up by the wife in appeal to the court of the learned Assistant Judge at Surat. The learned Assistant Judge who heard the said appeal No. 50 of 1972 held that the wife had failed to prove that her marriage was subsisting on the date of the application; while the husband had proved that there was a custom of divorce by mutual consent in their caste. He also negatived the wifes contention that the divorce deed was null and void by virtue of the provisions contained in secs. He also negatived the wifes contention that the divorce deed was null and void by virtue of the provisions contained in secs. 152 and 154 of the Baroda Act on account of the deed not having been registered as required by the Baroda Act. The learned Assistant Judge in this connection held that there was no custom prevalent in the caste for registration of such a deed and though the Baroda Act did provide for fine to be imposed on the parties for not registering the deed of divorce as required under the Baroda Act it did not mean that the divorce would be void for want of registration and would be ineffective. He was further of the opinion that in case of conflict on the question of the effect of non-registration of such a deed of divorce as per customary law between the provisions of the Act and the Baroda Act the provisions of the Baroda Act which were inconsistent with the Act would be ineffective and cannot be taken into consideration for the purpose of arriving at the conclusion that there was no valid divorce. He therefore dismissed the appeal and hence this second appeal by the wife that is the original petitioner. ( 5 ) MR. R. N. Shah the learned Advocate appearing for the appellant wife contends that the lower appellate court after having held that the parties were governed by the Baroda Act erred in holding that the provisions contained in the Baroda Act with regard to registration being inconsistent with the Act would not apply in the instant case and that non-registration even on the basis of the application of the provisions with regard to registration contained in the Baroda Act would not be fatal to the divorce obtained by custom. ( 6 ) MR. Joshi the learned Advocate appearing for the respondent on the other hand contends that the lower appellate court in the first instance erred in holding that the parties would be governed by the Baroda Act. I do not think that there is any substance in the contention of Mr. Joshi in this behalf in view of the clear proposition which emerges from the reading of the Bombay Merged States (Laws) Act 1959 and secs. 29 and 30 of the Act. By virtue of sec. I do not think that there is any substance in the contention of Mr. Joshi in this behalf in view of the clear proposition which emerges from the reading of the Bombay Merged States (Laws) Act 1959 and secs. 29 and 30 of the Act. By virtue of sec. 5 of the Bombay Merged States (Laws) Act 1950 the enactments specified in the first column of the Fifth Schedule continue in force in the merged States as if they were enacted by the State Legislature until they were altered repealed or amended by the said Legislature or any other competent authority and the Baroda Hindu Nibandh Act 1937 that is Baroda Act - is one of the enactments set out in the first column of the fifth Schedule. Till repealed altered or amended the said Baroda Act would continue as if it was enacted by the Bombay State Legislature with which State the Baroda State merged and later the Gujarat State Legislature of which State the former Baroda State territory has formed part after the bifurcation. The Act was enacted later in 1955 and at that time the Baroda Act and several other enactments operating in the same field were in force in different States. But by sec. 30 of the Act several enactments were repealed by express provision contained in the said section. Some of the repeals were Bombay Prevention of Hindu Bigamous Marriages Act 1946 Bombay Hindu Divorce Act 1947 Saurashtra Prevention of Hindu Bigamous Marriages Act 1950 and Saurashtra Hindu Divorce Act 1959 Be it noted that the Baroda Act which continued by virtue of the provision contained in sec. 5 of the Bombay Merged States (Laws) Act 1950 in the territory of the former Baroda State was not repealed by sec. 30 and therefore as held by a Division Bench of this court consisting of Divan and V. R. Shah JJ. (as they then were) in Letters Patent Appeal No. 9 of 1953 decided on 11th November 1965 the Baroda Act continues in force in the territory of the former Baroda State as if it had been enacted initially by the Bombay State Legislature until the Act was altered repealed or amended as provided in sec. (as they then were) in Letters Patent Appeal No. 9 of 1953 decided on 11th November 1965 the Baroda Act continues in force in the territory of the former Baroda State as if it had been enacted initially by the Bombay State Legislature until the Act was altered repealed or amended as provided in sec. 5 of the Bombay Merged States (Laws) Act 1950 There is a finding of fact of both the lower courts as also there is an admission that the parties in the instant case were natives of the former Baroda State and they would therefore be governed by the Baroda Act. ( 7 ) BUT Mr. Joshi in the alternative contends that there is implied repeal of the Baroda Act by virtue of the enactment of the Act. Mr. Joshi has taken me through a passage on Cases of repeal by necessary implication by Bindra on Interpretation of Statutes 6 Edition at page 781. It is true if the provisions of the earlier Act are plainly repugnant to a subsequent statute or if the two Statutes standing together would lead to wholly absurd consequences or if the entire subject matter of the first is taken away by the second then alone the same may be treated as repealed by implication. In my opinion in the instant case there is as scope for any such contention so far as the two statutes that is the Baroda Act and the Act are concerned firstly because the subsequent statute that is the Act contains specific provisions for repeal. Where there are express and specific provisions for repeal setting out names of the earlier statutes which are repealed there would hardly be any scope for an argument that there is repeal by necessary implication. Again reading the two statutes that is the Baroda Act and the Act it cannot be said that any of the three conditions mentioned by Bindra in the said passage are satisfied in the instant case. ( 8 ) I shall therefore go the second part of Mr. Shahs contention viz. that the lower appellate court erred in law in holding that because of inconsistency between the two Acts with regard to registration the provisions contained in the Baroda Act with regard to registration would be ineffective and cannot be resorted to for the purpose of formulating an argument as was canvassed by Mr. Shahs contention viz. that the lower appellate court erred in law in holding that because of inconsistency between the two Acts with regard to registration the provisions contained in the Baroda Act with regard to registration would be ineffective and cannot be resorted to for the purpose of formulating an argument as was canvassed by Mr. bean that because the deed of divorce was not registered as provided in the Baroda Act there was no valid divorce between the parties and the marriage was subsisting between them. A reference will have to be made to the provisions contained with regard to custom and registration in the Baroda Act to appreciate this point. Section 152 provides that husband or wife may obtain divorce outside court if such divorce is permissible in their caste. Sub-sections (2) and (3) on which much reliance is placed by Mr. Shah read thus (2) a divorce obtained under customary rules must be registered in court by husband and wife or either of them. (3) Such divorce would become operative from such date as may be determined by the court at the time of registration of divorce. Sub-sec. (4) provides for the procedure for registration which may be as mentioned in Schedule 5 and Schedule 5 first of all defines the word Nyayadhishi before whom registration is to be made and it inter alia provides that if both the husband and wife are adult then local Nayayadhishi would be the proper Nyayadhishi. It then provides that on receiving application for registration for divorce obtained outside the court the judicial authority has first of all to satisfy itself that the divorce has been obtained as per prevalent caste custom. It also provides that thereafter if there is any objection from any of the parties that is the husband and the wife then whatever evidence they give should be recorded and thereafter he should pass proper order as to whether divorce should be registered or not and at the time of passing order for registration he can also state in the order the date from which the divorce will become operative and it is lastly provided that the order so passed has to be treated as an order from which an appeal lies. It would be thus seen that merely obtaining a divorce as per the caste custom is not sufficient in law to put an end to the matrimonial status between the parties. There is a mandate that a divorce so obtained outside the court in accordance with the customary rules must be registered in court by husband and wife or either of them. It would become operative only from the date as has been determined by the court at the time of registration of the divorce. The procedure for registration provides that the court may refuse to register a divorce if of an inquiry about the divorce having been obtained according to the caste custom the court is not satisfied about it and on objection from any of the parties and taking evidence the court comes to the conclusion that it would not be proper to grant divorce. It is evident that obtaining divorce per custom ipso facto does not operate as the severence of the matrimonial status between the parties. It comes into operation on registration effective from a date as ordered by the court. It may be noted that the schedule which prescribes the procedure forms part of the Act and it would also be significant to note that sec. 153 provides that if the divorce so obtained outside the court in accordance with sec. 152 is not registered within 15 days then the husband and wife or either of them or if either of them is a minor their father mother or guardian shall be liable to a fine unto Rs. 50. 00. The lower appellate court has not considered the relevant provisions on the subject before recording a finding that the effect of non-registration is not fatal and that beyond the liability for paying fine of Rs. 50. 00 there is no other consequence. On analysis of the relevant sections and the Schedule it is clear that registration is a must and without registration the divorce obtained by custom does not become operative and effective. ( 9 ) THE lower appellate court on a cursory glance at these provisions came to the conclusion that as there were no provision for registration of divorce by caste custom in the Act similar provisions contained in the Baroda Act were inconsistent and therefore ineffective. The lower appellate court has not stated its reason for arriving at this conclusion. ( 9 ) THE lower appellate court on a cursory glance at these provisions came to the conclusion that as there were no provision for registration of divorce by caste custom in the Act similar provisions contained in the Baroda Act were inconsistent and therefore ineffective. The lower appellate court has not stated its reason for arriving at this conclusion. Presumably the lower appellate court has relied on sec. 4 on which Mr. Joshi also vehemently relies for the coming to the conclusion that that section has an over riding effect on the provision with regard to the customary divorce contained in the Baroda Act and that therefore the provisions contained in the Act will prevail with regard to divorce by custom over the provisions contained in this behalf in the Baroda Act. Sec. 4 reads thus :-"4 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 made 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". ( 10 ) THE argument of Mr. Joshi is that that part of the Baroda Act (which Act was in force immediately before the commencement of the Act) viz. the provisions relating to registration contained in sec. 152 shall cease to have effect because they are inconsistent with the similar provisions with regard to divorce outside court contained in sec. 29 (2) of the Act which provides that the provisions in the Act shall not affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage whether solemnised before or after the commencement of the Act. The proposition formulated by Mr. Joshi is that a custom in the community of the parties as established by the material on record is that the parties could have divorced by mutual consent by executing a deed of Fargat and there is no necessity in such a ease either to refer the matter to the Panch or to go in for registration of the document. Joshi is that a custom in the community of the parties as established by the material on record is that the parties could have divorced by mutual consent by executing a deed of Fargat and there is no necessity in such a ease either to refer the matter to the Panch or to go in for registration of the document. This right therefore of getting divorce by mutual consent without any necessity of registration of the document embodying divorce is recognised by custom and as provided in sec. 29 other provisions contained in the Act will not affect this right. Therefore Mr. Joshi submits any provisions contained in the Baroda Act regarding such divorce by consent obtained by execution of a deed of Fargat requiring such deed to be registered and the divorce being operative and the powers of the court to register a document or to refuse it and the divorce being effective and operative only from the date fixed by the court being inconsistent With the provisions contained in the Act will cease to have effect so far as the inconsistent part is concerned on the coming into force of the Act as provided in sec. 4 (b ). ( 11 ) I am unable to uphold this contention of Mr. Joshi. Sec. 4 begins with the expression Save as otherwise expressly provided in this Act and therefore if there are express provisions appearing elsewhere in the Act then the provisions contained in sec. 4 (a) and (b) of the Act will not have an overriding effect. Sec. 29 (2) contains express provisions to the effect that 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 solemnised before or after the commencement of this Act. The Baroda Act is a special enactment which was in force and which continued in force at the time and after the enactment of the Act. This Act that is the Baroda Act does recognise the right of the parties to obtain divorce outside the court according to customary rules of the caste in any case where such divorce is permissible under the rules i. e. under sec. 152 (1 ). This Act that is the Baroda Act does recognise the right of the parties to obtain divorce outside the court according to customary rules of the caste in any case where such divorce is permissible under the rules i. e. under sec. 152 (1 ). But the right of getting divorce outside the court according to customary rules so recognised is not an absolute right but is conditioned by certain restrictions and unless the requirements laid down in sub-secs. (2) and (3) are fulfilled the divorce will not become operative and effective. Sub-sec. (2) makes it obligatory on the parties to register the divorce so obtained by customary rules in court. Sub-sec. (4) prescribes the procedure which has to be followed for the purpose of registration in court which procedure is mentioned in Schedule 5 and Schedule 5 as earlier stated casts a duty on the court when an application for registration is made to ascertain and satisfy itself that the divorce has been obtained as per customary caste rules. It has also to take into consideration the objections if any lodged by any of the spouses and to record evidence if they adduce and then it has to pass proper order as to whether divorce should be registered or not and if it orders registration then it has to state in the order the date on which the divorce becomes operative and as sub-section (3) of sec. 152 provides such divorce will become operative from the date as determined by the court at the time of registration of the divorce. The special enactment viz. the Baroda Act does not recognise an absolute right to obtain divorce outside court as per customary rules of the caste or community. But the right conferred on obtaining such divorce is subject to conditions contained in sub-secs. (2) to (4) of sec. 152. It is true apparently the provision contained with regard to registration etc. in the Baroda Act would be inconsistent with the provision contained in the At which recognises right of the party for customary divorce without any condition. However as the provisions of sec. 4 are subject to express provision elsewhere in the Act and as sec. 152. It is true apparently the provision contained with regard to registration etc. in the Baroda Act would be inconsistent with the provision contained in the At which recognises right of the party for customary divorce without any condition. However as the provisions of sec. 4 are subject to express provision elsewhere in the Act and as sec. 29 (2) expressly provides that nothing contained in the 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 solemaised before or after the commencement of the Act and as the Baroda Act is such a special enactment which would be applicable to the parties in the instant case by virtue of the fact that they were residents of the former Baroda State the provisions contained in sec. 152 with regard to getting divorce outside the court will prevail over the provisions contained in the Act. to get customary right of divorce. Sec. 29 has the over riding effect over sec. 4 for two reasons. Firstly sec. 4 is subject to the express provisions contained elsewhere and secondly sec. 29 (2) in terms provides that nothing contained in the Act shall be deemed to affect the rights mentioned in that section. The lower appellate court therefore in my opinion erred in holding that the provisions contained in the Baroda Act being inconsistent with the provisions of the Act the same cannot be taken into consideration for the purposes of arriving at the conclusion whether there was a valid divorce or not. The court also erred in interpretation of the provisions with regard to registration and in holding that the effect of non-registration would not be fatal to the divorce obtained as per caste custom. Unless the document embodying divorce is presented for registration before the court and the court after satisfying itself with regard to the divorce having been obtained as per the caste custom etc orders it to be registered and fix a date from which the divorce becomes operative the divorce remains inoperative and ineffective as in the instant case with the result that the marriage between the parties still subsists inspite of the husband having obtained the divorce as per the caste custom. ` Setting aside of the finding of the lower appellate court with regard to point No. 1 and recording a finding that the marriage between the parties was subsisting on the date of the application would not make any difference so far as the final order to be passed in the appellant-wifes petition and in the second appeal is concerned. As held by the trial court the wife had failed to prove that the husband had without any reasonable cause withdrawn from the society of the wife of course this finding was based on two grounds firstly because as held by the trial court the wife was living in adultery in the absence of the husband and secondly because the husband had proved that there was a valid divorce. The second ground in view of the above discussion will not be available. But that will not affect the first ground and the finding would remain the same. The lower appellate court while considering the question whether the divorce was validly taken has referred to the admission of the wife as contained in a letter ex. 140 which contains an admission on her part with regard to the circumstances under which the last two sons were born to her. As held by the lower appellate court on the basis of this letter it was clear that she gave birth to two sons through somebody and not the respondent-husband. There is no material on record justifying the conclusion that the husband had without any reasonable excuse withdrawn from the society of the wife. In this view of the matter the wifes petition is bound to fail. . . . . . . . . . . . . . . . [ Rest of the judgment is not material for the reports. ] Appeal dismissed. .