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Kuppu Damayanthi Vs. C. Rama Rao - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 453 of 1965
Judge
Reported inAIR1969AP62
ActsSpecial Marriage Act, 1954 - Sections 24 and 34 (1); Special Marriage Act, 1872 - Sections 2 and 17; Divorce Act, 1869 - Sections 10
AppellantKuppu Damayanthi
RespondentC. Rama Rao
Appellant AdvocateY. Suryanarayana, Adv.
Respondent AdvocateM. Jagannadha Rao, Adv.
Excerpt:
family - validity of marriage - sections 24 and 34 (1) of special marriage act, 1954, sections 2 and 17 of special marriage act, 1872 and section 10 of divorce act, 1869 - appeal against decree declaring marriage of parties to proceeding null and void - petition for nullity filed after long time of marriage - nullity can be granted under section 24 of act if there is no unnecessary delay to the satisfaction of court - held, in event of unnecessary delay marriage cannot be declared null and void. - - whether it was due to the strenuous efforts of the respondent's father to separate husband and wife or due to the alleged waywardness of the parties the marriage itself was not a great success. though the marriage was not a success. 1954. it is only where the court is satisfied that there..........who is already marred is void. section 17 which is important runs as follows: - 'section 17. the indian divorce act shall apply to all marriages contracted under this act, and any such marriage may be declared null or dissolved in the manner therein provided, and for the causes therein mentioned, or on the ground that is contravenes prescribed in clause (1), (2), (3) or (4) of section 2 of this act'. it will be seen that while a marriage solemnized in contravention of clause (1) of section 2 is declared void by section 15, the act is silent regarding the effect of contraventions of clause (2) (3) and (4). since the indian divorce act is made applicable to all marriages contracted under the special marriage act of 1872 we must look to the provisions of the indian divorce act to find out.....
Judgment:

Chinnappa Reddy, J.

1. The appellant (wife) and the respondent (husband) were married under the Special Marriage Act, 1872, on 24-2-1953. before the Registrar of Marriages at Visakhapatnam. They appear to have lived together as man and wife for some time prior to the marriage too. and the appellant had admittedly borne the respondent a son before the marriage. The marriage did not meet with the approval of the parents of the respondent. His father never got reconciled to the marriage and made persistent efforts to get the marriage dissolved by trying to induce the appellant to agree to a divorce but his efforts bore no fruit. Whether it was due to the strenuous efforts of the respondent's father to separate husband and wife or due to the alleged waywardness of the parties the marriage itself was not a great success. The appellant and respondent do not appear to have lived together continuously for any considerable length of time at any stage but they undoubtedly lived together off and on at various places periodically. Though the marriage was not a success. the respondent even as late as in February 1958, appeared to have been quite keen that the appellant should come and live with him and that she should resist attempts by his father to induce her to agree to a divorce. This is evident from Ex. B. 11 (d) letter written by him to the appellant. Some time between the year 1958 and 1960 there was a definite break between the parties. After the break renewed and redoubled efforts were made by the respondent's father to induce the appellant to agree to a divorce but again without any result. Finally on 12-6-1960 the respondent filed the petition giving rise to this appeal. under Section 24 of the Special Marriage Act of 1954 for a declaration that the marriage was null and void. He alleged and it is now undisputed. that he was born on 5-10-1932 and therefore below the age of twenty one years on the date of marriage i.e. 24-2-1953. AS the consent of his father had not been obtained as required by Section 2(3) of the Special Marriage Act , 1872. he claimed that the marriage was a nullity. The learned District Judge of Visakhapatnam granted the declaration prayed for but on appeal Chandra Reddy. C. J. and Gopal Rao Ekbote, J., set aside the decree and remanded the petition for fresh disposal as they were of the view that the learned District Judge had not considered the question whether there has not been any unnecessary or improper delay in instituting the proceeding' Under Section 34(1)(e) of the Special Marriage Act. 1954. it is only where the Court is satisfied that there has been no unnecessary or improper delay that relief under Section 24 could be granted but not otherwise. After remand the learned District Judge holding that there was no unnecessary or improper delay in instituting the proceeding, once more granted the declaration prayed for . The wife has now appealed against the decree of the learned District Judge.

2. The Marriage, as we said, was solemnised on 24-2-1953 and the petition for a declaration that the marriage was null and void was filed on 12-6-1960. The explanation offered by the respondent for this long delay, which has been accepted by the learned District Judge is that almost from the date of marriage, he or those interested in him were trying to secure a divorce peacefully and that he was compelled to file the petition under Section 24 only after those efforts proved fruitless. But, in our opinion, this is no explanation at all. On the contrary, it implies a recognition by the parties of the existence and validity of the marriage which is not valid. We cannot help that the failure of a spouse to induce the other spouse to agree to a divorce is explanatory of the delay in suing for a declaration that a marriage is null and void. It may be said, as indeed it was said by the learned Counsel social conditions require that there should be no rigid insistence on the maintenance of a union which has utterly broken down. It may be so but we cannot ignore that status conferred by marriage and the consequences that flow from it, particularly, after years of cohabitation. The consequences with regard to the children of the marriage, are so serious and far reaching that it will be unjust and improper to give to individuals the choice of challenging the validity of a marriage when they like, As was observed by Hodson L. J. in Llewellyn v. Llewellyn, (1955) 2 All ER 110:

'The Court is not to be used as a place to which people can come for redress just when it suits them.'

In the same case Denning. L. J. after observing that the petitioner 'cannot play fast and lose with marriage in that way' extracted the following passage from Boulting v. Boulting, (1863) 164 ER 1302:

'The Petitioner must feel and suffer under the wrong of which complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance. Such is the beaten track of the decisions. It is impossible to tread too faithfully in footsteps so wisely placed.

3. In the present case the grievance of the respondent, in truth, is not that the marriage is invalid, but that it is unhappy, the remedy which he wanted all these years was a dissolution of the marriage and not a declaration that it was null and void. Having failed in his attempts to induce the respondent to agree to a divorce he is now seeking to get rid of an unhappy marriage though for seven years he was content to recognise it as a valid marriage. We consider that it would be unfair and inequitable to the wife and the children of the marriage to permit him to do so after a lapse of so many years. WE further consider that it is impossible to hold that there has not been any unnecessary or improper delay instituting the proceeding. In fairness to Mr. Ramachandra Reddy, the learned Counsel for the respondent, it must be said that he did not attempt to support the finding of the learned District Judge that there was no unnecessary or improper delay. He urged that under the Special Marriage Act 1872 a marriage was null and void if one of the spouses was below the age of twenty one years and consent of the guardian had not been obtained, that delay or no delay, a party to such a marriage had an unfettered right to obtain a decree declaring a marriage as nullity that the Court had no discretion in the matter and was bound to grant a decree and that although the Special Marriage Act of 1872 was repealed the right to this remedy and such other similar rights were preserved by Section 51(3) of the Special Marriage Act of 1954. According to him Section 34(1)(e) of the Special Marriage Act of 1954 does not apply to marriages solemnized under the Special Marriage Act of 1872 as it will have the effect of curtailing the vested right to the remedy of obtaining a declaration of nullity of marriage.

4. We are unable to accept the argument of Mr. Ramachandra Reddy, In the first place there is no foundation of the assumption that under the Special Marriage Act, 1872 a marriage of the nature described was a nullity and that the Court had no discretion except to declare it so. In the second place we cannot read Section 34(1)(e) as curtailing any vested right to a remedy.

5. Section 2 of the Special Marriage Act of 1872 in so far as it is relevant runs as follows:-

'Section 2, Marriages may be celebrated under this Act x x x x x x x upon the following conditions:-

(1) neither party must, at the time of the marriage, have a husband or wife living;

(2) the man must have completed his age of eighteen years, and the women her age of fourteen years according to the Gregorian calendar.

(3) each party must, if he or she has not completed the age of twenty one years, have obtained the consent of his or her father or guardian to the marriage:

(4) the parties must not be related to each other in any degree of consanguinity or affinity which would, according to any law to which either of them is subject, render a marriage between them illegal.

X X X X X X X X X X X X

Section 15 declares that a marriage, solemnized under the Act, of a person who is already marred is void. Section 17 which is important runs as follows: - 'Section 17. The Indian Divorce Act shall apply to all marriages contracted under this Act, and any such marriage may be declared null or dissolved in the manner therein provided, and for the causes therein mentioned, or on the ground that is contravenes prescribed in Clause (1), (2), (3) or (4) of Section 2 of this Act'. It will be seen that while a marriage solemnized in contravention of clause (1) of Section 2 is declared void by Section 15, the Act is silent regarding the effect of contraventions of clause (2) (3) and (4). since the Indian Divorce Act is made applicable to all marriages contracted under the Special Marriage Act of 1872 we must look to the provisions of the Indian Divorce Act to find out the effect of contraventions of Clause (2) , (3) and (4). Under Section 19 of the Indian Divorce Act a decree for nullity of marriage may be obtained on grounds of (1) impotency (2) consanguinity (3) lunacy or idiocy (4) bigamy and (5) force or fraud. Contraventions of Clause (1) of Section 2 of the Special Marriage Act is the second ground mentioned in Section 19 of the Indian Divorce Act on which a declaration of nullity can be granted. Contraventions of Clauses (2) and (3) are not covered by any of the grounds mentioned in Section 19 of the Indian Divorce Act. Since neither the Special Marriage Act of 1872 nor the Indian Divorce Act has stated the effect of a contravention of Clause (1) of Section 2 of the Special Marriage Act is the second ground mentioned in Section 19 of the Indian Divorce Act on which a declaration of nullity can be granted. Contraventions of Clauses (2) and (3) are not covered by any of the grounds mentioned in Section 19 of the Indian Divorce Act. Since neither the Special Marriage Act of 1872 nor the Indian Divorce Act has stated the effect of a contravention of Clauses (2) and (3) of Section 2 of the Special Marriage Act, we have to be guided by the principles of English Law because Section 7 of the Indian Divorce Act provides that subject to the provisions contained in the Act. Courts should give relief on principles and rules which are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England acts and gives relief'

6. The principles on which the English Courts act in such matters are set out in Halsbury's Laws of England (Hailsham's Edition) Volume XVI page 564 as follows:-

'A marriage under age of consent was not absolutely void, but only voidable by either party on the person underage reaching the age of consent. If the girl under twelve, either party might disaffirm the marriage on her attaining that age, and similarly in the case of a boy under fourteen. If at the age of consent the marriage was affirmed by the parties, it became a valid marriage and not afterwards be questioned by either and cohabitation after the age of consent was reached amounted to an affirmation of the contract.'

7. We must apply these principles as nearly as may be conformable to cases arising under the Special Marriage Act of 1872. The age of consent under the Special Marriage Act is twenty one years. But in the case of a man who has completed the age of eighteen years but not twenty one and in the case of a woman who has completed the age of fourteen years but not twenty one of consent should be that of the father or guardian. IN either case that is, where the spouse or spouses are below the ages of eighteen and fourteen respectively or where the spouse or spouses are above that age but below twenty one years and the consent of the parent or guardian has not been obtained, applying the above stated principles of English Law, we must conclude that such a marriage is not void, but only voidable. It is, therefore, not correct to contend that a contravention of Clause (3) of Section 2 of the Special Marriage Act 1872 renders a marriage void: nor is it correct to say that the Court has no discretion in the matter except to declare the marriage a nullity. That the Court has a large discretion in such matters is recognised by Section 17 of the Act which states that such marriages may be declared null or dissolved. The word 'may' appearing in Section 17 governs all that follows namely, the grounds mentioned in the Indian Divorce Act and contraventions of the conditions prescribed in Clauses (1) (2), (3) or (4) of Section 2 of the Special Marriage Act. The English Courts too have always had wide discretion in cases of dissolution of marriage or declarations of nullity of marriage and delay has always been recognised as one of the grounds on which a decree for dissolution or of nullity of a marriage may be refused. Vide - Johnson v. Johnson, 1901 P. 193 Wilkins v. Reynolds, 1 PD 405 1955-2 All ER 110 etc. The law as stated in Section 17 of the Special Marriage Act is not different.

8. The learned Counsel for the respondent placed reliance upon the case of Dunis v. Donovan, (1830) 162 ER 1165 where Dr. Lushington observed:

'It is true that a very considerable time has elapsed between the period of which this marriage was contracted, and the institution of the present suit but suits of a similar description have been brought after the lapse of at least as long a period. In Johnston and Johnston, upwards of twenty years had intervened between the solemnization of the marriage and the commencement of proceedings, Considering therefore, that the Court has to pronounce only a declaratory sentence, and to determine whether the law has made this marriage null and void, I think the lapse of time offers no bar to the inquiry.'

That was a case where the marriage was solemnized under an Act known by the name of Lord Hardwick's Act which expressly declared all marriages of minors without the consent of guardians absolute nullities. It was not the Law of England previously that such marriages were void nor was it the law of England afterwards because that Act was very soon repealed and replaced by a later Act which declared valid marriages of minors solemnized under Lord Hardwick's Act provided the parties lived together as husband and wife till the passing of the later Act or till the death of either of them. In that case soon after the marriage the parties separated and the wife actually contracted a second marriage as if the earlier marriage was no marriage. It was in those circumstances that the observations of Dr. Lushington were made, We do not think that case has any application here.

9. The next question is whether Clause (e) of sub-section (1) of Section 34 of the Special Marriage Act of 1954 has the effect of abridging or curtailing any right to remedy which the respondent possessed under the Act of 1872. That a Law of Limitation is a law relating to procedure is undoubted. That the legislature is competent to prescribe periods of limitation for causes for which there were no periods of limitation earlier cannot be disputed, having regard to the recent judgment of the Supreme Court in Syed Yousuf Yar Khan v. Syed Muhammad Yar Khan, : [1967]2SCR318 . IT is only in recognition of this principle that whenever a later Act prescribed a shorter period of limitation than an earlier Act care is always taken to provide for what may be termed as 'a period of grace' within which actions likely to be extinguished by reason of the new enactment may be brought. Therefore, when the special Marriage Act of 1872 was repealed and the Special Marriage Act of 1954 was enacted, a period of limitation could well have been prescribed within which actions for declarations of nullity of marriage could be brought and none could have questioned it. If, instead of prescribing any absolute period of limitation the Court is given the discretion to consider the question of delay with reference to the facts and circumstances of each case, surely that cannot be a cause for grievance. Further as contended by Mr. Suryanarayana, learned Counsel for appellant, the provision contained in Section 34(1)(e) of the Special Marriage Act of 1954 has nothing to do with the right of the party. It concerns the power of the Court. It prescribes the manner in which the discretion which the matrimonial Court always possessed should be exercised. The remedy of a party to seek a declaration of nullity of marriage is still available to him. That right has not been abridged or curtailed in any manner.

10. Sri Ramachandra Reddy, relies on sub-section (3) of Section 51 of the Special Marriage Act, 1954. It will be useful to extract the whole of Section 51 which runs as follows:-

'51. Repeals and savings:(1) The Special Marriage Act (1872)(III of 1872). and any law corresponding to the Special Marriage Act, 1872, in force in any Part B State immediately before the commencement of this Act are hereby repealed.

(2) Notwithstanding such repeal-

(a) all Marriage Act, 1872 (III of 1872) or any such corresponding law shall be deemed to have been solemnized under this Act.

(b) All suits and proceedings which, when this Act comes into operation, are pending in any Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act.

(3) The provision of sub-section (2) shall be without prejudice to the provisions contained in Section 6 of the General Clauses Act 1897 (X of 1897). which shall also apply to the repeal of the corresponding law as if such corresponding law had been as enactment.'

11. Clause (a) of sub-section (2) expressly states that all marriages solemnized under the Special Marriage Act, of 1872 shall be deemed to have been solemnized under the Act of 1954. IT necessarily follows that all actions and appeals must be instituted and decided in accordance with the provisions of the Special Marriage Act of 1954. The provisions of the Act of 1954 are made applicable even to pending proceedings by clause (b) of sub-section (2). Sub-section (3) makes the provision of Section 6 of General Clauses Act applicable.

12. Sub-section (3) of Section 51 of the Special Marriage Act of 1954 read along with Section 6 of the General Clauses Act preserves 'vested rights' e.g. a marriage validly solemnized under the Act of 1872 cannot be declared invalid because it contravenes some provisions of the Act of 1954. To illustrate, a marriage of a girl under the age of twenty one years but above the age of fourteen could be validly solemnized under the Act of 1872 provided the father or guardian consented to it. But under the Act of 1954 such a marriage cannot be solemnized at all. The effect of sub-section (3) of Section 51 of the Act of 1954 is to preserve the validity of such marriages solemnized under the Act of 1954. The learned Counsel for the respondent urges that all rights of action which the parties had under the old Act are also preserved by Section 51(3). We may at once rights point out that there is no need to preserve any such rights of action because the Act of 1954 has also made provision for identical remedies. The real question is whether the right of remedy which a party had under the old Act has in any manner been curtailed by Section 34(1)(e) of the new Act. We are of the definite opinion that it has not been. We have already pointed that neither the prescription of a period of limitation not the vesting of discretion in the Court can amount of the abridgment of any right of remedy, The learned Counsel referred us to the cases of Ramakrishna Chetty v. Subbaraya Iyer, ILR 38 Mad 101= (AIR 1916 Mad 607) and Girdharilal Son & Co. v. Kappini Gounder, 1938-2 Mad LJ 44 = (AIR 1916 Mad 607) in support of the proposition that a right of action is averted right, which proposition we are not inclined to dispute but which will advance the respondent's case no further. The learned Counsel also referred us to Garuikapati v. Subbiah Choudhary, : [1957]1SCR488 and Hoosein Kasam Dada v. State of Madhya Pradesh, : 1983(13)ELT1277(SC) both of which are cases of abridgment of vested rights of appeal and are not of any assistance in arriving at a conclusion in the present case.

13. In the light of the foregoing discussion we reverse the finding of the Lower Court and hold that there has been unnecessary or improper delay in Instituting the proceeding disentitling the respondent to the decree of nullity of marriage. The decree of the Lower Court is set aside and the appeal is allowed with costs. Advocate's fee is fixed at Rs. 150/-

14. After the appeal was heard and judgment reserved, the respondent filed a 'Memo' purporting to withdraw his petition for a declaration that the marriage was null and void. We rejected the memo by our order dated 21-9-1967.

15. Appeal allowed.


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