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G. Madhavan Nair Vs. S. Radhamony and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 1484 of 1977
Judge
Reported inAIR1979Ker152
ActsHindu Marriage Act, 1955 - Sections 4, 29 and 29(2); Travancore Nair Act - Sections 4 and 5; Kerala Joint Family System (Abolition) Act, 1975 - Sections 7(2)
AppellantG. Madhavan Nair
RespondentS. Radhamony and anr.
Appellant Advocate P. Kesavan Nair and; N. Balakrishna Pillai, Advs.
Respondent Advocate Krishnan Nair, Adv.
DispositionPetition dismissed
Cases ReferredKrishna Pillai v. Subhadra Amma
Excerpt:
family - dissolution of marriage - sections 4, 29 and 29 (2) of hindu marriage act, 1955, sections 4 and 5 of travancore nair act and section 7 (2) of kerala joint family system (abolition) act, 1975 - petition for dissolution of marriage under sections 4 and 5 for mental derangement and incompatibility of temperament by husband - lower court dismissed petition - revision petition - law laid down in general terms applies to all cases of dissolution of marriage that require closer scrutiny and further examination - confining same to proceedings to obtain dissolution of marriage on basis of right in that behalf conferred by special enactments and saved by section 29 (2) - where order of dissolution of marriage not passed prior to repeal of special enactment such order cannot be passed..........(abolition) act, 1975, which came into force on 1-12-1976. this is the order under revision.2- the hindu marriage act, 1955, is in force from 18-5-1955. it, as seen from its preamble, was enacted 'to amend and codify the law relating to marriage among hindus.''a codifying statute is one which purports to state exhaustively the whole of the law upon a particular subject, the draftsman attempting to subsume in his code both the pre-existing statutory provisions (as in a consolidation act) and also the common law rules relating to the matter.' (maxwell on interpretation of statutes, 12th edition p. 25).the hindu marriage act, 1955, is, there-fore, exhaustive on the law relating tomarriage among hindus including nairs. the result of codification of law on any subject is that the provisions.....
Judgment:
ORDER

George Vadakkel, J.

1. The revision petitioner is the husband of the 1st respondent. Their marriage was on 4-12-1975. A child was born to them, as stated in the let respondent's objections on 30-10-1976; a son. Alleging mental derangement and incompatibility of temperament, and invoking Sections 4 and 5 of the Travancore Nair Act, 1100, the petitioner on 27-8-1976 filed a petition in the lower court for dissolution of his marriage to the 1st respondent. That court on 14-3-1977 dismissed this petition stating that it has abated or lapsed on account of the repeal of the Travancore Nair Act, 1100, by Section 7 (2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, which came into force on 1-12-1976. This is the order under revision.

2- The Hindu Marriage Act, 1955, is in force from 18-5-1955. It, as seen from its preamble, was enacted 'to amend and codify the law relating to marriage among Hindus.'

'A codifying statute is one which purports to state exhaustively the whole of the law upon a particular subject, the draftsman attempting to subsume in his code both the pre-existing statutory provisions (as in a consolidation Act) and also the common law rules relating to the matter.' (Maxwell on interpretation of Statutes, 12th Edition P. 25).

The Hindu Marriage Act, 1955, is, there-fore, exhaustive on the law relating tomarriage among Hindus including Nairs. The result of codification of law on any subject is that the provisions contained in the Code will have an overriding effect over any law in respect of the matters dealt with in the Code. This rule finds expression in Section 4 of the Hindu Marriage Act, 1955, whereunder that Act is to have an overriding effect over any other law in force at the commencement of that Act, and any such law 'shall cease to have effect in so far as it is inconsistent with any of the provisions contained' in that Act. That Act in effect supersedes all existing laws, statutory and customary, on marriage among Hindus. However, this is subject to the express saving provisions contained in that Act, and Section 29 therein deals with 'savings'.

3. Section 29(2) of the Hindu Marriage Act, 1955, reads:--

'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 solemnized before or after the commencement of this Act.'

About this provision, a Full Bench of this Court said as follows :

'It is important to note that what is saved is the right to obtain the dissolution -- the emphasis is mine --not the right at 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. The right prosecuted in this particular case is the right in the Travancore Nayar Act, Sections 4 and 5, by which a marriage may be dissolved by a formal order of dissolution obtained on a petition presented by either spouse in the court of the Munsiff having jurisdiction -- the dissolution can be on one or the other of the grounds specified in Section 5. It seems to me abundantly clear that this right to obtain a dissolution on a petition presented in the court of the Munsiff having jurisdiction, on the grounds specified in Section 5, remains unaffected by any of the provisions of the Hindu Marriage Act by reason of the saving in Sub-section (2) of Section 29 of that Act, and that the principal contention of the appellant husband in this appealbrought under Section 7 of the Travancore Nayar Act against an order of dissolution made by a Munsiff, namely, that the Munsif had no jurisdiction to entertain the proceeding, must fail.' (Krishna Pillai v. Subhadra Amma (1970 Ker LT 442 at p. 444) : (AIR 1971 Ker 44 at pp. 45, 46) (FB)).

4. Section 4 of the Nair Act, 1100, conferred on either party to a Nair marriage the right to obtain dissolution of his or her marriage by mutual consent evidenced by a registered instrument as also by a formal order of dissolution passed by a District Munsiff's Court on the grounds mentioned in section thereof, viz., insanity, incurable disease, impotence, incompatibility of temperament, habitual cruelty, adultery or change of religion. The question that arises for consideration here is, as to how long would the right to obtain dissolution of a Hindu marriage recognized by custom 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 recognizing 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 a special enactment.

5. Section 29(2) of the Hindu Marriage Act, 1955, is not a provision analogous to Section 6 of the General Clauses Act, 1897, in that it has no reference to any acquired, accrued or vested right to have one's marriage dissolved by previous operation of any law. The provision in general terms saves the customary and statutory right to obtain dissolution of a Hindu marriage, irrespective of when that marriage took place, before or after the commencement of the Hindu Marriage Act, 1955, and certainly therefore, irrespective of whether such a right has been acquired by anyone, or has accrued and has become vested in any one before the date of commencement of that Act. Itis as if the right to obtain dissolution of a Hindu marriage, recognized by custom or conferred by a special enactment like the Travancore Nair Act, 1100, i. e., everything necessary to obtain dissolution -- the grounds therefor recognized by 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. From the moment the custom is abrogated and the special enactment is repealed, there is no such right recognized by custom nor any such right conferred by that special enactment to attract Section 29(2) or for that provision to operate upon. Thereafter, the provisions of the Code -- the Hindu Marriage Act, 1955 --which is intended to contain a full and complete statement of the law of Hindu marriage, alone would govern dissolution of Hindu marriage, and the rights of parties as regards any one of the matters in respect of which provision is made therein have to be ascertained and determined with reference to those provisions.

6. To consider the second question formulated above, it is necessary to notice Section 29(3) of the Hindu Marriage Act, 1955, which reads:--

'Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.'

As regards this provision the Full Bench in Krishna Pillai v. Subhadra Amma (1970 Ker LT 442 at p. 445) : (AIR 1971 Ker 44 at p. 46) said as follows:--

'It only plays in relation to the overriding provision in Section 4 the role played by Section 6 of the General Clauses Act in relation to a repeal in so far as certain kinds of proceedings pending at the commencement of the Act are concerned, and saves such proceeding from the overriding effect Section 4 might have over the law under which the proceeding was brought. Such a proceeding can be continued and determined under the law under which it was brought as if the Hindu Marriage Act had not been passed --Section 6 of the General Clauses Act it will be remembered does not in terms apply to an overridden enactment. It might be that to some extent pending proceedings for dissolution come within the saving in both Sub-section (2) and Sub-section (3) but this overlapping cannot mean that the saving in Sub-section (2) does not apply to the right to take legal proceeding for obtaining a dissolution.'

Section 29(3) governs only proceedings pending on 18-5-1955 and the case on hand is not one such. Section 6 of the General Clauses Act, 1897 (Section 4 of the interpretation and General Clauses Act, 1125) does not apply to an overridden enactment, as stated in the above passage, but only to a repealed enactment. 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 II 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 repeal is that the right conferred by those provisions which till then was saved by Section 29(2) of the Hindu Marriage Act, 1955, is no more so saved. If Section 29(2) were not in that Act, would, on subsequent repeal of the Travancore Nair Act, 1100, Section 6 of the General Clauses Act, 1897, be attracted to the provisions in Chapter II of the Travancore Nair Act, 1100? I think, the answer is, No. I suppose the answer would be same when Section 29(2) ceases to operate upon those provisions by reason of repeal of those provisions. Even otherwise the conjoint effect of Sections 4(b), 29(2) and 29(3) ofthe Hindu Marriage Act, 1955, is such that it suggests a different intentionon the part of a competent legislature -- the Parliament. This legislative intent appears to have been to save the right conferred by a special enactment only so long as that enactment is in force in contrast to the clear indication given by Section 29(3) which in relation to the status repealed by Section 30 of the Hindu Marriage Act, 1955, does the function of Section 6 of the General Clauses Act, 1897. The result is : proceedings under the provisions in Chapter II of the Travancore Nair Act, 1100, for dissolution of marriage and pending at the time of its repeal lapse.

7. The learned counsel for the respondent relied on the decision in C. R. P. No. 1629 of 1976 (Ker). In this case, the court of first instance, as held in that case, wrongly construing the provisions of the Cochin Nair Act, 1113, dismissed the petition for dissolution of marriage. This order was passed prior to the repeal of the Cochin Nair Act, 1100. That order was taken up in revision to this Court. Before the revision came up for disposal the above said Act was repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975. Taking the view that law generally leans in favour of continuance of marital relationship, that nobody has a vested right to have his marriage dissolved according to the law in force at the time of his marriage even after its repeal, that dissolution of marriage is governed by the law in force at the tune dissolution takes effect and that in the absence of a saving clause in the repealing statute proceedings under the repealed Act can be continued only till the repeal takes effect and not thereafter, this Court held that-

'In cases of refusal of the court to order a dissolution of marriage, it is not open to the appellate court or re-visional court to continue the proceedings so as to order dissolution under the repealed law. In such cases the court loses its jurisdiction to apply the law as a result of the repeal............In the instant case, as the application for divorce was dismissed, the marriage still subsists and it can be dissolved only according to the law in force at present.'

The propositions stated a little too broadly and the law laid down in general terms as applying to all cases ofdissolution of marriage may, require a closer scrutiny and further examination, but confining the same to proceedings to obtain dissolution of a Hindu marriage on the basis of a right in that behalf conferred by special enactments and saved by Section 29(2) of the Hindu Marriage Act, 1955, with respect, I agree that where an order of dissolution of marriage has not been passed prior to the repeal of the special enactment, such an order cannot be passed thereafter except in accordance and conformity with the provisions of the Hindu Marriage Act, 1955, be it that the matter is pending in the court of first instance, or in the appellate court, or in the revisional court.

8. I dismiss this revision petition without any order as to costs.


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