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Sudha Alias Gulabi Vs. Sankappa Rai - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 845 of 1962
Judge
Reported inAIR1963Mys245; ILR1963KAR121; (1963)1MysLJ437
ActsConstitution of India - Articles 13, 14 and 245; Madras Aliya Santhana Act, 1949 - Sections 10; Hindu Marriage Act; Indian Divorce Act; Hindu Law
AppellantSudha Alias Gulabi
RespondentSankappa Rai
Appellant AdvocateMohandas N. Hegde, Adv.
Respondent AdvocateGopalkrishna Setty, Adv.
Excerpt:
.....the court shall, on being satisfied after such inquiry as it thinks fit that a marriage which is valid under section 4 was contracted between the parties by order in writing, declare the marriage dissolved. ' 7. it may also be mentioned at this stage that till the 'act' came into force, marriages as well as dissolution of marriages amongst aliyasanthana people were governed by the customary aliyasanthana law which was somewhat akin to marumakkattayam law. it is clearly saved by the rule of classification. the legislature must be presumed to have acted in the interest of the community at large as well as all the sections therein......m. hegde, the learned counsel for the petitioner, it is necessary to refer to section 29(2) of the hindu marriage act, which came into force in the year 1955. that sub-section reads:'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 solemnised before or alter the commencement of this act.'7. it may also be mentioned at this stage that till the 'act' came into force, marriages as well as dissolution of marriages amongst aliyasanthana people were governed by the customary aliyasanthana law which was somewhat akin to marumakkattayam law. under both these systems of law, marriages were essentially contractual in character and not sacrament as under the general.....
Judgment:
ORDER

K.S. Hegde, J.

1. In this revision petition, the validity of Section 10 of the Madras Aliyasanthana Act, 1949 (Madras Act No. IX of 1949) to be referred to hereinafter as the 'Act', is questioned on various grounds.

2. The material facts are as follows: The petitioner and the respondent were married on 10-6-1954. The petitioner begot two children (twins) by the respondent on 8-5-1955. For sometime after their marriage, it is said that their married life ran on smooth lines. Thereafter differences arose between them. Ultimately the respondent filed O. P. No. 17 of 1961 in the Court of the learned District Munsiff, Puttur, under Sections 8 and 10 of the 'Act' for the dissolution of the marriage. The trial Court by its order dated 4-4-1962 has dissolved the marriage.

3. The trial Court did not, and in fact, if the provisions of the 'Act' are valid, could not go into the grounds set out in support of or in opposition to the prayer made in the petition. It proceeded to pass a decree for dissolution after the period mentioned in Section 10 of the 'Act' had expired.

4. As mentioned earlier, the petitioner challenges the validity of Section 10 of the 'Act'. Before proceeding to notice Section 10, it is necessary to refer to Section 8 which says:

'(I) A husband or wife may present a petition for dissolution of the marriage--(a) if the place --

(i) where the marriage was contracted, or (ii) where the respondent or petitioner at the time of the marriage, had a permanent dwelling or actually and voluntarily resided or carried on business or personally worked for gain, or

(iii) where the respondent or petitioner at the time when the petition is presented has a permanent dwelling or actually and voluntarily resides or carries on business or personally works for gain, is situated within the local limits of the jurisdiction of the Court of a District Munsiff, in any such Court:

(b) if such place is not situated within the local limits of the jurisdiction of the Court of any District Munsiff, in the Court of the Subordinate Judge, or if there is no such Court, in the Court of the District Judge, within the local limits of whose jurisdiction such place is situated and

(c) if such place is situated within the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Madras, in the Madras City Civil Court.

(2) The petition shall specify the place where, and the date on which, the marriage was contracted and if the respondent was a minor at the time of the marriage, the name and address of the guardian, if any, with whose consent the marriage was contracted'.

Section 10 reads:

(1) On the motion of the petitioner made, mot earlier than six months, and not later than one year, after the service of the copy of tie petition aforesaid, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied after such inquiry as it thinks fit that a marriage which is valid under Section 4 was contracted between the parties by order in writing, declare the marriage dissolved.

(2) The dissolution shall take effect from the date of the order'.

(5) The territorial jurisdiction of the trial Court was not questioned. Nor was it contended that no marriage valid under Section 4 of the 'Act' had been contracted between the parties. The petitioner's grievance, primarily, is against the law providing for dissolution of marriages contracted under the aliyasanthana law.

(6) Before going into the merits of the contentions advanced by Sri Mohandas M. Hegde, the learned counsel for the petitioner, it is necessary to refer to Section 29(2) of the Hindu Marriage Act, which Came into force in the year 1955. That sub-section reads:

'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 solemnised before or alter the commencement of this Act.'

7. It may also be mentioned at this stage that till the 'Act' came into force, marriages as well as dissolution of marriages amongst aliyasanthana people were governed by the customary aliyasanthana law Which was somewhat akin to Marumakkattayam Law. Under both these systems of law, marriages were essentially contractual in character and not sacrament as under the general Hindu Law. Any of the parties to the marriage could unilaterally get his or her marriage dissolved without going through any formality or without assigning any reason. This custom is the basis of Section 10. But certain new forms and proceedings were introduced under the Act with a view to make dissolution of marriages a formal and serious affair and to restrain the parties from acting on first impulse, but still the marriage could be dissolved at the will of one of the parties to the marriage without assigning any reason whatsoever.

8. Before proceeding to consider the validity of Section 10 we may examine one of the subsidiary contentions advanced by Sri Hegde. He contended that the Court below had no materials before it to come to the conclusion that the marriage, the dissolution of which was sought, was a Hindu Marriage as defined in Section 5 of the Hindu Marriages Act. This objection was not taken in the trial court. This is a question of fact and therefore if there was any substance in that contention it should have been pleaded and proved. Sri Hegde is not correct in his submission that the Court below was incompetent to go into that objection if it had been taken. I asked Sri Hedge to let me know even at this late stage whether it is his client's case that the marriage in question is not a 'Hindu marriage'. He merely pleaded ignorance. Hence there is no substance in the contention that the: marriage in question is not a 'Hindu marriage'.

9. It was next contended by Sri Hegde that the customary law which permitted dissolution of marriages at the sweet will and pleasure of any of the parties to the marriage is against public policy. Sri Hegde did not make it clear as to what that public policy, is. A marriage which is purely contractual in character cannot be said to be perverse against public policy. It is true that it is not desirable that matrimonial ties should be broken at the caprice of one of the parties to the marriage. It is equally true that neither society nor the parties to the marriage will be benefited by yoking together two persons who pull in opposite directions. There is no virtue in making a mockery of married life. Views on this question, as in most other questions, differ. Often times those views are the product of customs, habits and environments. It is not proper to elevate those views to the position of absolute truths.

10. In support of his contention based on public policy Sri Hegde relied on the decision in Keshav Hargovan v. Bal Gandi, ILR 39 Bom 538 : (AIR 1915 Bom 107). That decision does not bear on the point under consideration. The facts established in that case are:- there was a custom in a particular community permitting divorce on the payment of the price fixed. Further, in that community a divorce could be demanded by the guardians of husbands and wives who are minors, if the stipulated price is paid. That is not the position here.

11. Discussions based on the customary aliyasanthana law vis-a-vis public morals are academic in the instant case. We are not dealing with any customary law now. The custom in question has now been codified. No legislative measure can be struck down on the ground that it is opposed to public policy. Legislatures are the custodians of public morals. Public policy is not one of the fundamental laws of the land. If a legislative measure is enacted by a competent legislature and if the same does not run counter to any of the mandatory provisions in the Constitution, then it cannot be held to be invalid on the ground that it is opposed to principles of morality.

12. This takes me to the contention that Section 10 is hit by Article 14 of the Constitution. It was contended that Section 10 of the 'Act' is not in accordance with the specific provisions governing divorces under the Hindu Marriage Act; there is no rational basis for this difference; therefore Section 10 is discriminatory in character and it is hit by Article 14 of the Constitution. In this Country, the law relating to divorce is not uniform. In this regard the Muslims have their own law. The Christians are governed by the Indian Divorce Act. Even amongst the Hindus the divorce laws are not uniform. These differences are the results of past history, difference in culture, etc.

Each of these laws has history of its own. They were not written on clean slates. Diversity is not the same thing as discrimination. No section of the community is shown to have been subjected to hostile discrimination. Discrimination is one thing, classification is another. The object behind any discrimination is to adversely affect the rights of a section of the people or of an individual whereas classification is made with a view to advance the cause of a section of the people without harming the interests of others. Article 14 does not prohibit diversity in laws. It only prohibits discrimination. Its aim is not to achieve rigid uniformity, but to avoid injustice to any citizen in this Country or to any section of the people. That article provides equal treatment under similar circumstances. Different legislations based on different customs cannot be assailed on the basis of Article 14 of the Constitution. It is clearly saved by the Rule of Classification. The legislature must be presumed to have acted in the interest of the community at large as well as all the sections therein.

13. For the reasons mentioned earlier, I am unable to agree that Section 10 of the 'Act' is hit by Article 14.

14. In the result, this petition fails and the same is dismissed. In the peculiar circumstances of this case, the parties are directed to bear their own costs in this court.


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