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Smt. Prema and ors. Vs. M. Ananda Shetty and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 616 and 2113 of 1972
Judge
Reported inAIR1973Kant69; AIR1973Mys69; (1973)1MysLJ7
ActsHindu Marriage Act, 1955 - Sections 4(1), 5, 7, 25 and 29(2); Madras Aliyasanthana Act, 1949 - Sections 4, 8 and 10
AppellantSmt. Prema and ors.
RespondentM. Ananda Shetty and ors.
Appellant AdvocateH.G. Hande, Adv.
Respondent AdvocateTukaram S. Pai, Adv.
DispositionPetition dismissed
Excerpt:
.....declare the marriage dissolved. it goes without saving that one of the well-established principles of hindu law or any other personal law dealing with family relations, validity of marriage depends upon the conditions attached thereto by custom of the community to which the parties belong. section 7(1) of the hindu marriage act does no more than declare statutorily one of the said principles already well-established in personal law governing hindus. we are therefore clearly of the opinion that the benefit of section 25 of the hindu marriage act is not available in respect of dissolution of marriage under the madras aliyasanthana act......between the parties governed by the said act and the effect, if any, thereon, of the provisions of hindu marriage act, 1955 concerning dissolution.2. in both the oases, parties belong to the community called bunts in south kanara who are governed by the aliyasanthana law. they are therefore governed by the madras aliyasanthana act, 1949.3. in each of these cases the petitioner is the husband and he made an application to the court of munsiff having jurisdiction under section 8 of the aliyasanthana act. under the said section, either a husband or wife may present a petition for dissolution of the marriage; no orders are passed thereon immediately. under section 9, a copy of the petition has to be served on the respondent at the cost of the petitioner. under section 10, on the motion of.....
Judgment:

Narayana Pai, C.J.

1. These two Civil Revision Petitions raise a common question of law relating to the provisions of the Madras Aliyasanthana Act governing the dissolution of marriage between the parties governed by the said Act and the effect, if any, thereon, of the provisions of Hindu Marriage Act, 1955 concerning dissolution.

2. In both the oases, parties belong to the community called Bunts in South Kanara who are governed by the Aliyasanthana Law. They are therefore governed by the Madras Aliyasanthana Act, 1949.

3. In each of these cases the petitioner is the husband and he made an application to the Court of Munsiff having jurisdiction under Section 8 of the Aliyasanthana Act. Under the said section, either a husband or wife may present a petition for dissolution of the marriage; no orders are passed thereon immediately. Under Section 9, a copy of the petition has to be served on the respondent at the cost of the petitioner. Under Section 10, on the motion of the petitioner made not earlier than six months, and not later than one year, after the service of the copy of the petition aforesaid, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied after such inquiry as it thinks it fit that a marriage which is valid under Section 4 was contracted between the parties, by order in writing, declare the marriage dissolved.

4. It was argued before the Munsiff that after the coming into force of the Hindu Marriage Act. 1955, the provisions of Chapter II of the Madras Aliyasanthana Act dealing with marriage and its dissolution cease to be operative as being inconsistent with the corresponding provisions of the Hindu Marriage Act. It was also contended that in one of the cases the marriage had been performed In what is described as sacramental form by a priest in a temple according to what is described in general terms as a Hindu custom.

5. The Munsiff overruled the objections and made an order of dissolution under Section 10 in one of the cases and in the other declared that as the period of six months under Section 10 has expired, the petitioner-husband was at liberty to make an application under Section 10.

6. In the Revision Petitions presented against the orders, the same contentions were urged before Mr. Malimath, J. As he considered the question raised to be of great public importance, he has referred both the revision petitions to Division Bench for disposal.

7. Before proceeding to discuss the legal position, it should be recorded that there is not and cannot be any dispute that the parties to these proceedings are governed by Aliyasanthana Law and therefore the provisions of the Madras Aliyasanthana Act 1949 apply to them.

8. The case of the petitioners as presented by Mr. Hande on behalf of one of them, is that the marriage must be related to Sections 5 and 7 of the Hindu Marriage Act. and therefore they cannot be regarded as marriages valid under Section 4 of the Aliyasanthana Act which alone could be dissolved under Sections 8 and 10 of the said Act.

9. Now, Section 5 of the Hindu Marriage Act merely lays down certain conditions to be fulfilled before two parties can contract a marriage such as prohibited degrees of relationship end prohibition against bigamy, etc. Section 7 of the Hindu Marriage Act reads:

'7 (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and bind when the seventh step is taken'.

10. The rule of law which is declared by this section is the one incorporated in Sub-section (1) viz. that a Hindu marriage will be lawful if it is solemnised in accordance with the customary rites and ceremonies of either of the parties. It goes without saving that one of the well-established principles of Hindu Law or any other personal law dealing with family relations, validity of marriage depends upon the conditions attached thereto by custom of the community to which the parties belong. Such custom will include rules of prohibited degrees, rules as to the number of wives permitted to a male, rules as to the nature of the ceremony and rules as to the manner in which the marriages are to be solemnised or performed. Section 7(1) of the Hindu Marriage Act does no more than declare statutorily one of the said principles already well-established in personal law governing Hindus.

11. Once that position is reached, the source of validity of marriage of the parties to these proceedings is the law as stated in Section 4 of the Madras Aliyasanthana Act. The central point in Section 4 of the Aliyasanthana Act is that a conjugal union of an Aliyasanthana female with a male belonging to the same community or a male not belonging to such community and whether governed by the Aliyasanthana Law or not, but being a Hindu or Jain is declared legal for all purposes if the parties to the union are not related to each other in such degree of consanguinity or affinity that conjugal union between them is prohibited by any custom or usage of the community to which they belong, and has been openly solemnized in accordance with the customary ceremonies prevailing in the community to which the parties belong or recognised by the community as a valid marriage.

12. The first argument therefore that the marriage between the parties must be regarded as one solemnized under the Hindu Marriage Act or within the scope of the said Act so as to attract only the provisions of the said Act in regard to the dissolution fails.

13. Now coming to Section 4(1)(b) of the Hindu Marriage Act what it states is,

'Save as otherwise expressly provide ed in this Act.--

'(a) .....

(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 pro-visions contained in this Act'.

So far as solemnization of the marriage is concerned. what we have discussed above is enough to show that there is no inconsistency between the provisions of the two statutes.

14. So far as dissolution is concerned, the relevant provision of the Hindu Marriage Act is Sub-section (2) of Section 29 which reads thus:

'Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act'.

15. Section 4 opens with the words 'Save as otherwise provided'; the said Section 4 is one of the section contained in the Act and according to Section 29(2), nothing contained in the Act including Section 4 shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain dissolution of a Hindu marriage. The clear effect of the language is that the provisions as to dissolution contained in Madras Aliyasanthana Act which is a special enactment. are not affected by anything contained in the Hindu Marriage Act. The said right under the Madras Act exists end continues to be available to parties governed by the said Madras Act.

16. To the same effect are the decisions of the Full Bench of the Kerala High Court reported in Ayyappan Karup v. Parukutty Amma, : AIR1971Ker44 (PB); Kamala Nair v. Naravana Pillai, : AIR1958Bom12 and Edamma v. Hussainappa, : AIR1965AP455 .

17. In C. R. P. 616/72. an additional point has been urged by Mr. U. L. Naravana Rao. learned Counsel for the petitioner, that in any event alimony as provided under Section 25 of the Hindu Marriage Act. 1955, should have been ordered. Though the matter is not dealt with in the order sought to be revised. Mr. Narayana Rao states that an interlocutory application was made for the purpose has been dismissed by the Munsiff. Now, as already pointed out. the dissolution of the marriage in this case is one made under Section 10 of the Madras Aliyasanthana Act. Under Section 25 of the Hindu Marriage Act alimony could be ordered only by a Court exercising jurisdiction under the said Act. We are therefore clearly of the opinion that the benefit of Section 25 of the Hindu Marriage Act is not available in respect of dissolution of marriage under the Madras Aliyasanthana Act.

18. Both the revision petitions are therefore dismissed.


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