BALAKRISHNA KURUP v. BHARGAVI AMMA — 1983 DIGILAW 303 (KER)

Judgment :- 1. The appellant herein was the petitioner in OP. No. 150 of 1976 of the Munsiff's Court, Tellicherry. The respondent herein was the respondent in the OP. also. OP. No. 150 of 1976 was moved by the appellant for dissolution of marriage. It was filed on 30-7-1976. The wife (respondent in the OP.) filed LA. No. 168 of 1977 on 13-1-1977 under S.10B of the Madras Marumakkathayam Act claiming permanent alimony of Rs. 200 per mensem. A sum of Rs. 40/- was also awarded by way of cost of the proceedings in LA. No. 167/ 77. The appellant filed AS. No. 256 of 1977 before the court of the Subordinate Judge, Tellicherry. The order of the trial court was confirmed. The petitioner in O.P. No. 156 of 1976 (the husband) has come up in second appeal. 2. Appellant's counsel, Mr. T. V. Ramakrishnan, raised only one contention in the second appeal. According to counsel, the application under S.10B of the Madras Marumakkathayam Act was filed by the respondent on 13-1-77, on which day the Madras Marumakkathayam Act stood repealed by the Kerala Joint Hindu Family System Abolition Act 1975 (Act 30 of 1976). Act 30 of 1976 came into force on 1-12-1976. Application No. 168 of 1977 was filed by the respondent in the trial court on 13-1-1977, long after the Madras Marumakkathayam Act 1932 (Act 22 of 1933) stood repealed from the statute book. The trial court had no jurisdiction to consider the matter, much less to grant the relief prayed for. On that short ground, the orders of the courts below are illegal and without jurisdiction and deserve to be annulled. 3. On the other hand, respondent's counsel, Mr. P. V. Madhavan Nambiar, argued that IA. No. 168 of 1977 claiming permanent alimony was filed by the respondent during the pendency of O. P. No. 150 of 1976. The appellant's counsel filed OP. No. 150 of 1976 on 30-7-1976 when the Madras Marumakkathayam Act 1932 (Act 22 of 1933) was in force. On that day, or immediately thereafter, and during the time when the said OP. was pending, an interlocutory application under S.10B of the Madras Marumakkathayam Act was permissible and competent. The fact that during the pendency of the OP. the Madras Marumakkathayam Act, 1932 was repealed, will not alter the situation. On that day, or immediately thereafter, and during the time when the said OP. was pending, an interlocutory application under S.10B of the Madras Marumakkathayam Act was permissible and competent. The fact that during the pendency of the OP. the Madras Marumakkathayam Act, 1932 was repealed, will not alter the situation. Rights have accrued to the respondent to invoke S.10B of the Act claiming permanent alimony. A corresponding liability was also incurred by the appellant in O. P. No. 150 of 1976 for the payment of permanent alimony if the court is moved in that behalf. In this view of the matter, counsel contended that I. A. No. 168 of 1977 was competent and the courts below were justified in granting the relief under S.10B of the Madras Marumakkathayam Act, 1932. 4. After hearing the rival contentions of parties, I should say that the respondent's argument is bound to prevail. In M.S.A. Nos. 2 and 3 of 1979 a similar matter came up for decision before this court. Therein in an Original Petition instituted before the repeal of the Madras Marumakkathayam Act by Kerala Act 30 of 1976, the respondent-wife filed applications under S.10A and 10B of the Act in 1977. It was contended that the applications instituted under S.10A and 10B of the Madras Marumakkathayam Act, after the repeal of the Madras Marumakkathayam Act by Kerala Act 30 of 1976, were not maintainable. Repelling that contention my learned brother. Justice Sri. P. C. Balakrishna Menon observed: "At the time when the Act came into force the proceedings for the dissolution of the marriage between the appellant and the respondent were pending and it was in the pending proceedings that these interlocutory applications were filed for reliefs under S.10A and 10B of the Madras Marumakkathayam Act after its repeal by Act 30 of 1976. It is clear from S.10A that an application for relief thereunder is to be filed in the pending proceedings for dissolution of marriage between the parties. Jurisdiction to order permanent alimony and maintenance is conferred by S.10B on the Court exercising jurisdiction under Chapter II of the Madras Marumakkathayam Act. S.7 to 9 relating to the proceedings for dissolution of marriage are in Chapter II. Jurisdiction to order permanent alimony and maintenance is conferred by S.10B on the Court exercising jurisdiction under Chapter II of the Madras Marumakkathayam Act. S.7 to 9 relating to the proceedings for dissolution of marriage are in Chapter II. Therefore a court exercising jurisdiction for the dissolution of marriage under Chapter II of the Act has jurisdiction to pass an order under S.10B granting permanent alimony and maintenance." The learned judge referred to the decision of a Division Bench of this Court in Gopalakrishnan Nair v. Sarasamma (1979 KLT. 810) and concluded as follows: "there cannot be any doubt that the interlocutory applications for reliefs under Ss.10A and 10B in the pending proceedings under S.7 of the Madras Marumakkathayam Act are maintainable and those applications should also be disposed of as if the repealed Madras Marumakkathayam Act continued to be in force and applied to the pending proceedings." (Emphasis supplied) I respectfully agree with the views expressed by my learned brother Justice Sri. P.C. Balakrishna Menon in M.S.A. Nos. 2 and 3 of 1979. (The decision is reported in 1983 KLT. 998). 5. Counsel for the appellant referred to the decision in Sakharan v. Manikchand Motichand Shah (AIR. 1963 SC. 354) and contended that the respondent herein had only a mere right existing on the date of Kerala Act 30 of 1976 to take advantage of the provisions of the statute repealed (The Madras Marumakkathayam Act) and it is not "a right accrued" within the meaning of the usual saving clause. Counsel also brought to my notice the decision in M. S. Shivananda v. The Karnataka State Road Transport Corporation (AIR. 1980 SC. 77) wherein at page 81, Justice Sri Sen, on behalf of the Bench observed as follows: "The distinction between what is, and what is not a right preserved by the provisions of S.6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of", or liberty to apply for, acquiring a right. In Director of Public Works v. Ho Po Sang, (1961) 2 All ER. 721 (PC) Lord Morris speaking for the Privy Council, observed: "It may be, therefore, that under some repealed enactment, a right bias been given, but that, in respect of it, some investigation or legal proceeding is necessary. In Director of Public Works v. Ho Po Sang, (1961) 2 All ER. 721 (PC) Lord Morris speaking for the Privy Council, observed: "It may be, therefore, that under some repealed enactment, a right bias been given, but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should be or should not be given. On a repeal the former is preserved by the Interpretation Act. The latter is not." (Emphasis supplied.) 6. When does, a right "accrue" or a "liability" is incurred? It has been dealt with by a Full Bench of this Court in Echuma Amma v. Devassy (1970 KLT. 204). The Full Bench has quoted with approval the relevant passages from Maxwell on Interpretation of Statutes including the decision of the Privy Council in Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) I All ER. 457). The statement of law regarding the "distinction between an investigation in respect of a right", and "an investigation which is to decide whether some right should be or should not be given to conclude as to whether rights are preserved or not", succinctly laid down by Lord Morris in Director of Public Works v. Ho Po Sang (1961) 2 All ER. 721 (PC) and quoted with approval by the Supreme Court in Shivananda's case (AIR. 1980 SC. 77), was reiterated and explained in Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) I All ER. 457 (PC). In my opinion, on the date when the appellant filed the OP. i. e. on 30-7-1976, in the language of the judicial Committee of the Privy Council in the above case, the respondent had, as against the appellant, "something more than a mere hope or expectation that she had in truth a "right" within the meaning of S.6 of the General Clauses Act, although that right might be called inchoate or contingent". On the facts of this case, it will not be correct to say that the respondent "had only a mere right to take advantage" of the provisions of the Madras Marumakkathayam Act. The decision reported in Sakharam's case (AIR. 1963 SC. On the facts of this case, it will not be correct to say that the respondent "had only a mere right to take advantage" of the provisions of the Madras Marumakkathayam Act. The decision reported in Sakharam's case (AIR. 1963 SC. 354) and decisions of similar import are distinguishable. In this view of the matter, the disposal of OP. No. 156 of 1976 on 12-2-1977 as also IA. No. 168 of 1977 filed by the respondent dated 13-1-1977, though on 19-7-1977 could only be under the Madras Marumakkathayam Act the repealed enactment. The application filed by the respondent, I A. No. 168 of 1977, on 13-1-1977 was legally and properly disposed of by the courts below and they were legally entitled to do so. There is no error of jurisdiction or error of law in the courts below awarding a sum of Rs. 90/- per mensem as permanent alimony. The judgment of the courts below are justified and do not call for any interference. 7. Counsel for the appellant then contended that the appellant is not in service now and that this subsequent event should be taken note of. The appellant is reported to have retired from service on 1-4-1982. This is a matter for verification. If this be so and if the appellant has any remedy open to him in law, nothing that is said herein will disable him to put forward, this subsequent event before the appropriate forum for claiming appropriate relief, if he is entitled to do so in law. 8. The Miscellaneous Second Appeal is dismissed. There shall be no order as to costs.