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Vasappan Vs. Sarada - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 92 of 1957
Judge
Reported inAIR1958Ker39
ActsHindu Marriage Act, 1955 - Sections 4, 19 and 29(2); Travancore Ezhava Act, 1100 - Sections 8, 11, 13 and 29
AppellantVasappan
RespondentSarada
Advocates: T.S. Krishnamurthy Iyer, Adv.
DispositionPetition allowed
Cases ReferredMrs. Kamala Nair v. Narayana Pillai
Excerpt:
.....the learned -munsiff appears to have taken the view that the overriding effect of section 4 of the hindu marriage act has been a repeal of the provisions of the travancore ezhava act also, in drawing such an inference he has obviously failed to notice the saving provision contained in the opening portion of section 4 itself. ' the section makes it perfectly clear that the implied repeal contemplated by it can operate only in respect of matters which are not saved by the other provisions of the act. 5/1956 filed in the alleppy munsiff's court is perfectly competent and that court has the undoubted jurisdiction to entertain the petition and to pass the necessary orders on it, as contemplated by section 11 of the travancore ezhava act. the learned munsiff was clearly in error in taking a..........them are residing within the jurisdiction of that court. but a question was raised that since the hindu marriage act (act 25 of 1955) which is a central act, had already come into force, the munsiff's court had ceased to have jurisdiction to entertain an application under section 8 of the travancore ezhava act and that the petition for the dissolution of the marriage between these parties could be entertained only by the district court, as specified in section 19 of the hindu marriage act.the learned district munsiff upheld this objection and passed an order dismissing e. rule p. 5/1956 on the file of his court. the petitioner has challenged the correctness of that order on the ground that the learned munsiff has refused to exercise the jurisdiction vested in him under law.2. the.....
Judgment:

Sankaran, J.

1. This revision petition raises a question of jurisdiction. The parties to this petition are members of the Ezhava community of the State of Travancore which now forms part of Kerala State. The law of marriage governing members of this community is regulated by the provisions of the Travancore Ezhava Act, Act 3 of 1100 M. E. S. 7 of that Act prescribes the different modes in which a marriage could be dissolved. One such mode is by a formal order of dissolution as contemplated by Section 8. That section runs as follows:

''A husband or wife may present a petition for dissolution of the marriage under Section 7, Clause (3), in the Court of the District Munsiff within the local limits of whose jurisdiction the respondent resides, carries on business, or personally works for gain, or if the respondent resides, carries on business or personally works for gain in any place outside Travancore, in the Court of the District Munsiff within whose jurisdiction the petitioner resides, and the petitioner shall in all cases, offer in the petition reasonable compensation to the respondent except where the respondent has changed his or her religion.'

Section 11 of the Act states that 6 months after the service of the copy of the petition under Section 8 on the respondent, if the petition is not withdrawn in the meantime, the Court shall, after determining the amount of compensation, declare in writing the marriage dissolved and that the dissolution shall take place from the date of ordering it. Under Section 8 of the Act, the revision petitioner filed E. R. P. 5/1956 in the Court of the District Munsiff at Alleppy, for an order dissolving his marriage with the respondent.

It is common ground that both of them are residing within the jurisdiction of that Court. But a question was raised that since the Hindu Marriage Act (Act 25 of 1955) which is a Central Act, had already come into force, the Munsiff's Court had ceased to have jurisdiction to entertain an application under Section 8 of the Travancore Ezhava Act and that the petition for the dissolution of the marriage between these parties could be entertained only by the District Court, as specified in Section 19 of the Hindu Marriage Act.

The learned District Munsiff upheld this objection and passed an order dismissing E. Rule P. 5/1956 on the file of his Court. The petitioner has challenged the correctness of that order on the ground that the learned Munsiff has refused to exercise the jurisdiction vested in him under law.

2. The parties to this petition are Hindus and hence there can be no doubt that they are governed by the provisions of the Hindu Marriage Act, 25 of 1955. But that does not mean that the provisions of the special statute by which they were governed on the date when the Hindu Marriage Act came into force, have been completely abrogated by the Hindu Marriage Act. The learned - Munsiff appears to have taken the view that the overriding effect of Section 4 of the Hindu Marriage Act has been a repeal of the provisions of the Travancore Ezhava Act also, In drawing such an inference he has obviously failed to notice the saving provision contained in the opening portion of Section 4 itself. That section is in the following terms:

'Save as otherwise expressly provided to this Act--

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;

(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 provisions contained in this Act.'

The section makes it perfectly clear that the implied repeal contemplated by it can operate only in respect of matters which are not saved by the other provisions of the Act. Such saving provisions are contained in Section 29 of that Act, Sub-section (2) of Section 29 is relevant to the question at hand. The sub-section is as follows :

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

The Travancore Ezhava Act is a special enactment coming within the scope of this subsection. That special enactment has conferred a right on the parties to a marriage recognised by that Act, to have the marriage dissolved by presenting a petition to the District Munsiff's Court in the manner specified by Section 8 of that Act. Sections 8 and 11 of that Act make it clear that the right to have recourse to the Munsiff's Court for getting an order of dissolution of the marriage has also been conferred on the parties to a marriage.

Since such a right has been expressly preserved intact by Sub-section (2) of Section 29 of the Hindu Marriage Act, the petition E. R. P. 5/1956 filed in the Alleppy Munsiff's Court is perfectly competent and that Court has the undoubted jurisdiction to entertain the petition and to pass the necessary orders on it, as contemplated by Section 11 of the Travancore Ezhava Act. The learned Munsiff was clearly in error in taking a contrary view and in dismissing that petition on the ground that he has no jurisdiction to entertain it.

No doubt, Section 13 of the Hindu Marriage Act has provided for the dissolution of a Hindu Marriage, on any of the grounds specified in that section. Section 19 of that Act will be attracted only when the petition for dissolution of the marriage is filed under Section 13. This is made clear by Section 19 which runs as follows :

'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 solemnised or the husband and wife reside or last resided together.'

The petition filed by the husband in the present case was obviously not one under Section 13 of the Hindu Marriage Act, but was one under Section 8 of the Travancore Ezhava Act. In this view of the matter also it is clear that there is no justification for invoking Section 19 of the Hindu Marriage Act for determining the Court competent to entertain the petition, A similar question arose for the consideration of the Bombay High Court in Mrs. Kamala Nair v. Narayana Pillai, 59 Bom LR 536: (AIR. 1958 Bom 12) (A).

There the parties were Nayars and the petition was one under the provisions of the Nayar Act of Travancore, for the dissolution of the marriage between the parties to that petition. It was ruled in that case that the right of divorce conferred by the provisions of the Travancore Nayar Act was saved by Sub-section (2) of Section 29 of the Hindu Marriage Act and that therefore the petition for dissolution of the marriage could only be deemed to be one filed in exercise of that right and could not be deemed to be a petition filed under the provisions of the Hindu Marriage Act.

It was also held that Section 19 of that Act could not be invoked for determining the Court competent to entertain the petition. However, it was held that the petition for dissolution of the marriage could be entertained on the original side of the Bombay High Court in view of its special matrimonial jurisdiction and also of the uncontroverted averment that the parties-were both residing within the jurisdiction of that Court.

No such special circumstances arise for consideration in the present case where the petition for dissolution of the marriage is unquestionably one filed under Section 8 of the Travancore Ezhava Act. The Alleppy Munsiff s Court has the undoubted jurisdiction to entertain that petition. Accordingly we hold that the petition has to be disposed of by that Court in accordance with the provisions of the Travancore Ezhava Act.

3. In the result this revision petition is allowed in the manner indicated above, and the lower Court's order dismissing the petition E. R. P. 5/1956 is set aside. In the circumstances of this case we make no order for costs of this petition.


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