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Gopalakrishnan Nair Vs. R. Sarasamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberM.F.A. No. 13 of 1977
Judge
Reported inAIR1980Ker109
ActsHindu Marriage Act, 1955 - Sections 4, 29(2) and 13; Travancore Nair Act, 1100 - Sections 5; Kerala Interpretation and General Clauses Act, 1125 - Sections 4; General Clauses Act, 1897 - Sections 6
AppellantGopalakrishnan Nair
RespondentR. Sarasamma
Appellant Advocate P.N. Sankaranarayana Pillai and; M.P.N. Panicker, Advs.
Respondent Advocate O.V. Radhakrishnan and; Radhamoni Amma, Advs.
DispositionAppeal allowed
Cases ReferredKarim Shah v. Mt. Zinat Bibi
Excerpt:
family - marriage - sections 4, 29 (2) and 13 of hindu marriage act, 1955, section 5 of tranvancore nair act, 1100, section 4 of kerala interpretation and general clauses act, 1125 and section 6 of general clauses act, 1897 - act of 1100 repealed during pendancy of petition for dissolution of marriage under said act - whether repeal affects pending petition so as to terminate it - by virtue of section 29 (2) rights recognized by special enactments are not affected by act of 1955 - said facts shows that right to obtain dissolution of marriage under act of 1100 continues to operate - also by virtue of section 6 of act of 1897 pending proceedings should be disposed of in accordance with repealed act - held, petition under nair act for dissolution of marriage not to be dismissed for reason of..........since such a right has been expressly preserved in tact by sub-section (2) of section 29 of the hindumarriage act, the petition e. r. p. 5/1956filed in the alleppey munsiff's court isperfectly competent and that court hasthe undoubted jurisdiction to entertain thepetition and to pass the necessary orders.on it, as contemplated by section 11 : ofthe travancore ezhava act.' 7. though in view of the full bench decision the controversy as to whether the right to obtain divorce under the ezhava act or the nair act survived must be taken to be settled a further controversy arose as to the scope of such right. whether that right was only to avail of the grounds specified under the said statutes as grounds for divorce or whether it extended to seek such divorce in the forum specified in the.....
Judgment:

Subramonian Poti, J.

1. A question of some importance arises for decision in this case. It concerns the consequence of the repeal by Section 7 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 of the Acts mentioned in the Schedule. One of the Acts so repealed is the Travancore Nair Act 2 of 1100. That Act provides among other things, for dissolution of a marriage solemnised under the Act. It specifies grounds for dissolution of marriage and also prescribes the procedure by which the right to seek dissolution is to be exercised. The court to which proceedings would lie is also specified. The Hindu Marriage Act 1955 provides in Section 13, for dissolution of Hindu Marriages. The grounds for dissolution are specified in this Act and the procedure for seeking dissolution is also specified in the Act. The grounds for dissolution under the Hindu Marriages Act are not identical with the grounds for divorce in the Nair Act 1100.

2. Notwithstanding the commencement of the Hindu Marriage Act 1955 the provisions of the Nair Act 1100 for dissolution of marriage continued to be operative. Now that the Nair Act 1100 has been repealed by Act 30 of 1976 and the repealing Act does not embody any saving provision, the question that arises is whether proceedings pending before courts on the date of such repeal would be saved and the cases could be disposed of as if the Nair Act continued to be in force. The court below before which a petition under Section 5 of the Nair Act for divorce was pending has upheld the preliminary objection raised by the respondent that by the passing of the Kerala Joint Hindu Family System (Abolition) Act 1975 the Nair Act 1100 has ceased to be operative and in the absence of any provision to keep alive the proceedings pending at the time of repeal such proceedings must terminate. Accordingly the petition has been dismissed and this appeal is against that order.

3. The view taken by the court below is supported by a judgment of our learned brother Vadakkel J., in Madhavan Nair v. Radhamony, (1979 Ker LT 61). The learned Judge has referred to an unre-ported decision of one of us, Janaki Amma, J. in C. B. P. No. 1629 of 1976 (Ker). The correctness of the decision of our learned Brother Vadakkel J. has been canvassed in this appeal.

4. The Hindu Marriage Act 1955 provided in Section 4 for the overriding effect of the Act in certain cases. Section 4 of the Hindu Marriage Act, 1955 read thus.

'4. Save as otherwise expressly provided in 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.'

We are here concerned not with 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 the Act. Therefore Section 4(a) has no application. Clause (b) of Section 4 of the Act rendered any law in force immediately before the commencement of the Act inoperative in so far as such Act was inconsistent with any of the provisions contained in the Hindu Marriage Act 1955. But this was expressly subject to provision 'Save as otherwise expressly provided in the Act.' Therefore in examining the question whether any provisions of a special enactment ceased to have effect because of the provisions of the Hindu Marriage Act 1955, two questions have to be examined and they are (1) whether the provision in the enactment is inconsistent with the provisions in the Hindu Marriage Act (2) If so is there any express provision otherwise in the Act which keeps alive such law despite the inconsistency. Section 29(2) of the Hindu Marriage Act provides thus :

'29 (1) .....

(2) 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 be-fore or after the commencement of this Act.

(3) & (4) .....'

The express provision in the sub-section would save the rights recognised by custom conferred by any special enactment to obtain the dissolution of Hindu marriage. Therefore if there was a special enactment in force which conferred a right to obtain dissolution, the provision with regard to dissolution of marriages under the Hindu Marriage Act would not affect such right. The field of operation of the right to dissolution conferred under the Hindu Marriage Act was restricted in its scope by reason of Section 29(2) of the Act. It was operative in all cases other than those to which Section 29(2) would apply. In other words the right to obtain dissolution under the Hindu Marriage Act did not extend to cases where provision has been made for that purpose in special enactments. In such cases the special enactment would continue to operate. The words 'nothing contained in this Act shall be deemed to affect any right' in Sub-section (2) of Section 29 of the Act clearly indicate the limited scope of Section 13 of the Hindu Marriage Act, limited in the sense that it will not override the provisions in special enactments conferring right to obtain dissolution of Hindu marriage. In that view the provisions of the Nair Act which conferred a right to obtain dissolution of marriage on certain specific grounds and by resort to a specific procedure would remain in force not because such right was conferred by Section 29(2) but Section 29(2) limits the operation of Section 13 to cases other than those covered, among other laws by Nair Act 1100. In that view Section 4(b) will not be applicable, for, that renders any law inoperative only in so far as it is inconsistent with any provision contained in the Act. Nair Act is not inconsistent with any provision contained in the Hindu Marriage Act, for, Section 13 limited in its operation to cases other than those covered by Section 29(2) would not be inconsistent with cases covered by Section 29(2). In other words the provisions of Nair Act concerning the right to obtain dissolution of marriage are not inconsistent with Section 13 of the Act.

5. The continuance of rights of parties to seek dissolution under Nair Act is not because of any right conferred by Hindu Marriage Act but because of the special provision in the Act that the provision regarding dissolution of marriages under that Act would not apply to cases governed by special enactments. The Nair Act ceased to be operative by reason of its subsequent repeal by Act 30 of 1976. Till then petitions for divorce could be filed under the Nair Act, tried and disposed of. That was a right available to parties because relevant provisions of that Act were in force as stated earlier. They were in force by their own right and not because of any provision in any other enactment. When once the Nair Act is repealed and proceedings under the Act are pending on the date of such repeal whether they could be continued under that Act has to be decided with reference to the provisions of the repealing statute read along with Section 4 of the Inter-pretation and General Clauses Act 1125, corresponding to Section 6 of the General Clauses (Central) Act 1897. Section 4 of the Interpretation and General Clauses Act 1125 provides for the effect of repeal. That reads thus:

4. 'Effect of repeal -- Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.'

Unless a different intention appears the repeal will not affect any legal proceeding or remedy in respect of any right and such proceeding or remedy may be continued or enforced as if the repealing Act had not been passed. It may be that the repealing statute indicates an intention expressly or impliedly to keep alive proceedings under the provisions repealed. It may be that it indicates an intention not to keep alive the proceedings which are pending. In either case there would not be any difficulty. The intention must necessarily be decisive. But there may be cases where the repealing Act is silent. No contrary intention appears in such a case. The silence in the repealing Act cannot be taken to be an indication of a contrary intention. Those are cases of simple repeal. In such cases if the court finds that no contrary intention is indicated in the repealing enactment the position would be that pending proceedings would survive as if the repealed provision continued to be in force. The Supreme Court in Baliah v. Income-tax Officer, Madras, (AIR 1969 SC 701) observed in para 5 of the judgment thus :

'The principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clause Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section'.

We have already observed that the repeal under Section 7 of Act 30 of 1976 was a simple repeal without providing for any saving. Hence any proceeding under the repealed Act must continue as if the repealed Act was in force

6. Soon after the Hindu Marriage Act came into force a controversy arose on the scope of Section 4(b) and Section 29(2) of the said Act in the courts of the State, There were special statutes like Travancore Ezhava Act and Travancore Nayar Act in force in the State which granted parties right to obtain dissolution on grounds different from that recognised under the Hindu Marriage Act. A Full Bench of this Court is Vasappan v. Sarada, (1957 Ker LT 977) had occasion to examine the scope of the provisions of the Travancore Ezhava Act concerning the right to dissolution of marriage in the context of the Hindu Marriage Act. Dealing with this question Sankaran J. speaking for the Full Bench said thus :

'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 specialenactment coming within the scope ofthis sub-section. That special enactmenthas conferred a right on the parties to amarriage recognised by that Act, to havethe marriage dissolved by presenting apetition to the District Munsiff's Court inthe manner specified by Section 8 of thatAct. Sections 8 and 11 of that Act makeit clear that the right to have recourse tothe Munsiff's Court for getting an orderof dissolution of the marriage has alsobeen conferred on the parties to amarriage. Since such a right has been expressly preserved in tact by Sub-section (2) of Section 29 of the HinduMarriage Act, the petition E. R. P. 5/1956filed in the Alleppey Munsiff's Court isperfectly competent and that Court hasthe undoubted jurisdiction to entertain thepetition and to pass the necessary orders.on it, as contemplated by Section 11 : ofthe Travancore Ezhava Act.'

7. Though in view of the Full Bench decision the controversy as to whether the right to obtain divorce under the Ezhava Act or the Nair Act survived must be taken to be settled a further controversy arose as to the scope of such right. Whether that right was only to avail of the grounds specified under the said statutes as grounds for divorce or whether it extended to seek such divorce in the forum specified in the said statutes and in the manner prescribed in the said statutes was the subject of controversy, A learned Judge of this Court in Vijayamma v. Gangadharan, (1967 Ker LT 115) took the view that such right extended only to seek to avail of grounds of dissolution in the special statute. That would mean that a person who sought dissolution under the Travancore Nair Act and who if he was bound by the Nair Act in the choice of the forum would have to resort to the Munsiff's Court was entitled to rely upon the grounds of dissolution but was not to move ft petition before the Munsiff's Court. The provisions of Hindu Marriage Act 1955 contemplated moving a petition for dissolution before the District Court. That would certainly give rise to an anomaly, tor, a District Court under the provisions of the Hindu Marriage Act was no doubt a court which could entertain a petition for dissolution of marriage but that was a petition contemplated under the provisions of the Hindu Marriage Act and not the provision under the Nair Act. This anomaly was noticed. A Division Bench of this Court in Raghavan Indira v. Kes-van Gopinathan, (1968 Ker LT 528) noticed that there was nothing in the Hindu Marriage Act 1955 which provides that petitions under the Travancore Ezhava Act should be deemed by any legal fiction to be petitions presented under the Hindu Marriage Act, 1955, The Division Bench did not agree with the view taken by the learned single Judge expressed in Vijayamma v. Gangadharan, (1967 Ker LT 115). In view of such different views expressed by this Court the matter came up before a Full Bench in Ayyappan Kurup Krishna Pillai v. Purukutty Amma Subhadra Amma, (1970 Ker LT 442). Raman Nayar, C. J. said in that case thus:

'It is important to note that what is saved is the right to obtain the dissolution-- the emphasis is mine-- not the right of dissolution or the grounds for dissolution, and having regard to the plain language of the statute, as to its purpose, the right saved includes everything necessary call it substantive remedial or procedural to obtain the dissolution..... As I have already observed, all manner of rights, call them substantive, procedural, remedial, or what you will,-- the word 'right' is wide enough to take in all of them -- are comprehended by the saving so long as they relate to the obtaining of the dissolution.'

8. To us it seems to be beyond doubt that by reason of Section 29(2) of tha Hindu Marriage Act the right to obtain dissolution under the Nair Act continues to be operative. The scope of the right has already been, as we have observed, defined by the Full Bench as including not only the right to avail of the grounds but also the procedure. If so, when the Nair Act was repealed and the repealing Acf did not indicate any intention to the contrary Section 4 of the Interpretation and General Clauses Act operated to keep alive the petitions which had been filed under the Nair Act. They will have to be continued as if the Nair Act continued to be in force for the purpose.

9. We may now advert to the decision of our learned brother Vadakkel J. That, we may observe, was a case where the petition for dissolution of marriage was filed on 27-8-1976, prior to the date on which the Kerala Joint Hindu Family System (Abolition) Act 1975 came into force. That so came into force on 1-12-1976. Therefore what the learned Judge was concerned with was the application of Section 4 (e) of the Interpretation and General Clauses Act and not Section 4 (c), Section 4 (c) would arise for application only in cases where the proceedings had not been instituted before the repeal. In that case the question would be whether the right would survive. On the facts of the case before the learned Judge that question did not arise. We are mentioning this because the learned Judge posed the question to be decided thus:

'The question that arises for consideration here is, as to how long would the right to obtain dissolution of a Hindu marriage recognised by customs or conferred by a special enactment like the Travancore Nair Act 1100, continue to be saved-- is it that such right is saved indefinitely, and remains saved even after the custom recognising such right is abrogated by enactment of a statute in that behalf or the special enactment conferring such right is abrogated by repeal thereof, or, only till the abrogation of the custom or the repeal of the special enactment. And a further question arises as regards the impact of the abrogation of the custom or the repeal of the special enactment on proceedings pending in court for dissolution of Hindu marriage on the basis of customary right or statutory right conferred by special enactment'

On the facts of the case before the learned Judge only the second question arose for decision.

10. The learned Judge observed in para 5 of the Judgment thus:

'It is as if the right to obtain dissolution of a Hindu marriage, recognised by custom or conferred by a special enactment like the Travancore Nair Act, 1100, i. e. everything necessary to obtain dissolution-- the grounds therefor available under the custom or stated in the special enactment and the machinery available under the custom or that provided in the special enactment in that behalf-- become incorporated in the Hindu Marriage Act 1955, and would remain as if so incorporated till the custom recognising such a right is abrogated or so long as the special enactment conferring the right is on the statute book.'

With great respect, we are afraid this may not be the proper construction of Section 29(2) of the Hindu Marriage Act Section 29(2) did not operate to incorporate into the Hindu Marriage Act any provision of the Nair Act or any right recognised thereunder. That section only limited the operation of the provisions of Section 13 of the Hindu Marriage Act (for that matter other provisions too) to cases other than those contemplated by Section 29(2) of the Act, cases in which, as we have said earlier, provisions had been made ia the special enactments. The provisions of the Hindu Marriage Act would not apply to such cases by reason of Section 29(2). That provision cannot be read as incorporating any provision of or right under the special enactment into the Hindu Marriage Act. The learned Judge further finds-

'Chapter II of the Travancore Nair Act, 1100, which deals with Nair Marriage and its dissolution was overridden by the Hindu Marriage Act 1955. Thereafter the right conferred by Chapter II of the first mentioned statute to obtain dissolution of a Nair marriage on the grounds and in the manner stated therein can be enforced only in view of the saving of that right by Section 29(2) of the latter mentioned Act The subsequent formal repeal of the already overridden provisions of Chapter n of the Nair Act, 1100, would not attract. Section 6 of the General Clauses Act, 1897, to those provisions, especially when the effect of such is that the right conferred by those provisions which was saved by Section 29(2) of the Hindu Marriage Act, 1955, is no more so saved'.

We are afraid that this may not be the correct statement of the law. That is because, as we have indicated, it is not as if the provisions of the Nair Act have been overridden as assumed by the learned Judge. Overriding is provided for under Section 4(b), but Section 4 (b) would not be operative because of Section 29(2). Therefore in regard to the provision for dissolution of marriage there was no overriding by reason of Section 4 (b). The provision In the special enactment continued to operate and the question was one of simple repeal of Nair Act 1100.

11. Reference has been made by our learned brother Vadakkel, J. to the decision in C. R. P. 1629 of 1976 (Ker), a decision rendered by one of us, Janaki Amma J. That was a case where the main question was whether the law relating to dissolution of marriage that had to be applied to the case of a party to whom the Cochin Marumakkathayam Act repealed by Act 30 of 1976 applied would be the law in force on the date of marriage of the parties. It was contended there that the law in force on the date of a marriage must determine the law applicable to the parties throughout their lifetime, a proposition which did not appeal to the court in that case. Since by a separate concurring judgment Janki Amma J., has explained the order in C. R. P. 1629 of 1976, I do not think that it is necessary to notice that decision any further.

12. It follows that we have respectfully to dissent from the view expressed by our learned brother Vadakkel J., in Madhavan Nair v. Radhamony (1979 Ker LT 61)

13. We may in this context refer to a decision of the High Court of Lahore in Karim Shah v. Mt. Zinat Bibi, (AIR 1941 Lab 175). That arose in more or less similar circumstances. Section 5 of Shariat Act 26 of 1937 gave a right of dissolution of a Muslim marriage by conferring a special jurisdiction on the District Judge of the powers of a Qazi under Mohommedan law on the grounds permitted by that law. That was repealed by the Dissolution of Muslim Marriages Act 8 of 1939. Despite the repeal a petition pending before a Court of the District Judge under the law repealed was disposed of by that judge. In appeal it was contended that such disposal was without jurisdiction inasmuch as the provision under which the petition could have been entertained by the District Judge stood repealed on the date of consideration of the petition by the District Judge. Dealing with this question the Division Bench considered the provisions is Section 6(c) of the General Clauses Act as keeping alive the proceedings under the repealed Act to be disposed of in accordance with the provisions of that Act. The position here is more or less the same.

14. The result is that we set aside the order of the court below and direct the court to entertain the petition for divorce in its file, deal with it and dispose it of in accordance with law. No costs.

P. Janaki Amma, J.

15. I agree that the appeal has to be allowed. I may, however, add a few words in view of the reference to C. R. P. No. 1629 of 1976 (Ker) disposed of by me, in Madhavan Nair v. Radhamony (1979 Ker LT 61). C. R. P. No. 1629 of 1976 arose in connection with an application for dissolution of marriage filed under Section 7 (b) of the Cochin Marumakkathayam Act, 1113 (not Cochin Nair Act as mentioned by Sri Vadakkel J.). The petition was dismissed by the District Judge on the ground that the marriage took place not under that Act but under the Hindu Marriage Act Pending revision the Cochin Marumakkathayam Act was repealed by Kerala Act 30 of 1976. One of the contentions raised was that in cases where the marriage was held under the Cochin Marumakkathayam Act the parties thereto retained even after the repeal of the Act, the right to have a formal order of dissolution of the marriage by filing a petition for that purpose without assigning any grounds for such dissolution. The views which have been referred to by Sri. Vadakkel J. in his judgment were expressed by me while disposing of the above plea. While disposing of the revision petition, the approach made was to find out whether the right to get divorce by filing a petition was an abstract or inchoate right whether it was a right which accrued to the parties on the date of marriage itself and whether after the petition was dismissed the right would survive in the light of the repeal of the Act. Though Section 29(2) of the Hindu Marriage Act and Section 4 of the Interpretation and General Clauses Act 1125 were referred in the above connection I had not approached the question in the light of the reasoning in the Full Bench decision in Vasappan T. Sarada (1957 Ker LT 977) and Ayyappankurup Krishna Pillai v. Purukutty Amma, Subhadra Amma (1979 Ker LT 442 (FB)) as those rulings were not referred to. Neither was Karim Shah v. Mt. Zinat Bibi (AIR 1941 Lah 175) cited. Probably the conclusion might have been different if the above decisions had been adverted to. That aspect, however, does act call for examination here.


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