1. This appeal arises out of a suit for dissolution of a marriage. The appellant is the wife and the respondent is the husband and the appellant's allegation in the plaint is that she and her husband are 'Nairs' of Travancore and are governed by the 'Marumakathayam Law' as modified by the Nair Act of Travancore and that is the personal law of the parties. The ground for dissolution of marriage is desertion, legal cruelty and incompatibility of temperament, and in the jurisdiction clause the appellant avers that the parties are residing within the jurisdiction of this Court and this Court has jurisdiction to try the suit. When the matter came before Mr. Justice Coyajee, he took the view that in view of Section 19 of the Hindu Marriage Act, 1955, this Court had no jurisdiction to try the suit and therefore he ordered that the suit should be transferred to the City Civil Court which according to him was the only forum which could entertain this suit. The learned Judge took this view because in his opinion the Hindu Marriage Act of 1955 applied to the parties.
2. Now, undoubtedly, that Act applies to the plaintiff and the defendant because that Act applies to every Hindu. Under Section 19 of that Act the Legislature has provided :
'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 solemnized or the husband and wife reside or last resided together.And 'District Court' has been defined as: 'In any area in which there is a City Civil Court, that Court'; and inasmuch as there is a City Civil Court in Bombay, if Section 19 applied, undoubtedly the proper forum for the plaintiff's suit would be the City Civil Court and not the High Court. But Section 19 confers jurisdiction upon the City Civil Court with regard to every petition under the Act. and the contention of Mr. Iyer for the appellant before us is that her suit is not under the Act, she has not come to this Court on a petition for dissolution of marriage which falls under the Act, but she has come for a dissolution of the marriage under the Marumakathayam Law which gives his client a right to have a dissolution of marriage. Section 29(2) in terms saves customs and special enactments which give a right to a party to obtain dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. Therefore, reading Section 29(2) and Section 13 which sets out the grounds on which divorce can be obtained, the position seems to be this. Where a Hindu had already a right of divorce under his customary law or under any special enactment, that right is saved. But, as is well known, the majority of Hindus living in this country had no right of divorce and that right of divorce was for the first time conferred upon them by this law, and therefore when a Hindu is exercising the new right given to him by this law and seeks dissolution of marriage, he can only apply under Section 13, and when he does apply under Section 13 then the forum for hearing his petition is fixed by Section 19 as the City Civil Court. But the appellant is a Hindu who had a right of divorce before this Act was passed, that right is saved as pointed out under Section 29(2), and therefore, when she approaches this Court she is not asserting a right conferred upon her by the Act, she is not presenting a petition under the Act, she is not relying on the grounds mentioned in Section 13, but she is asserting a right which she says she has under a customary law or a special enactment which was antecedent to the Hindu Marriage Act. Therefore, in our opinion, Section 19 has no application to this suit.
3. If Section 19 has no application, then it is clear that this Court has matrimonial jurisdiction, and the matrimonial jurisdiction would depend upon the residence of the parties. There is an averment in para. 20 of the plaint that the parties reside within the jurisdiction of this Court and that averment is not controverted by the defendant and therefore this Court has jurisdiction.
4. We are thankful to Mr. Sorabjee who assisted this Court as amicus curiae.
5. The result is that the appeal will be allowed, the order of Mr. Justice Coyajee set aside, and the suit will be heard on merits. Costs of the appeal costs in the cause.
6. Appeal allowed.