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P. Kesavan Vs. B. Krishnamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 216 of 1978
Judge
Reported inAIR1985Ker259
ActsHindu Marriage Act, 1955 - Sections 4 and 29(2); Travancore Ezhava Act, 1100; General Clauses Act, 1897 - Sections 6; (Travancore) Interpretation and General Clauses Act, 1125
AppellantP. Kesavan
RespondentB. Krishnamma
Appellant Advocate G. Janardhana Kurup, Adv.
Respondent Advocate M.V. Ibrahimkutty and; V. Ahmedkutty, Advs.
DispositionPetition allowed
Cases ReferredState of Punjab v. Mohar Singh
Excerpt:
family - dissolution of marriage - sections 4 and 29 (2) of hindu marriage act, 1955, travancore ezhava act, 1100, section 6 of general clauses act, 1897 and (travancore) interpretation and general clauses act, 1125 - petition for dissolution of marriage filed under ezhava act after its repeal - rights accrued at time of repeal remains unaffected - wife had been refusing to live together even before repeal - right to file petition thereby accrued before repeal - petition maintainable. - .....(abolition) act, 1975 a petition for dissolution will lie only before the district court under the hindu marriage act, 1955. no mention was made in the objection about the averment that the respondent refused to go and reside with the petitioner when demanded on 16-9-1976. the trial court upheld the preliminary objection and dismissed the petition for dissolution as not maintainable before the munsifs court in view of the repeal of the travancore ezhava act by the kerala joint hindu family system (abolition) act, 1975, holding that the general clauses act cannot come to the rescue of a person who files a petition under a repealed enactment'. the challenge in this civil revision is against the above order of the trial court. the learned judge before whom the civil revision came up for.....
Judgment:

Narendran, J.

1. The short point that arises for consideration in this civil revision is whether after the repeal of the Travancore Ezhava Act, 1100 by the Kerala Joint Hindu Family System (Abolition) Act, 1975 a petition for dissolution of marriage can be filed under Section 8 of Ezhava Act, if before the repeal the wife refused to live with the husband. The decision on the point depends on the questions whether the repeal was a simple repeal and what is the impact of Section 4(c) of the Interpretation and General Clauses Act, 1125 which corresponds to Section 6(c) of the General

Clauses Act, 1897 on the repeal.

2. The petitioner husband in the petition for dissolution of marriage under Section 8 of the Travancore Ezhava Act, 1100 is the petitioner in the civil revision. The petitioner married the respondent while he was in the Air Force. Later, he was discharged from the Air Force and he settled down in his native place. On 16-9-1976 he requested the respondent wife to reside with him, but she refused. Thereafter, on 26-1-1977 he came to know that she got pregnant while he was away in Maharastra serving in the Air Force. On 16-2-1977 the petition for dissolution of marriage was filed before the Munsifs Court under Section 8 of the Travancore Ezhava Act. Before that, the Travancore Ezhava Act was repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975 which came into force on 1-12-1976. The respondent raised a preliminary objection before the trial court that the Munsifs Court has no jurisdiction in the matter as after the repeal of the Ezhava Act by the Kerala Joint Hindu Family System (Abolition) Act, 1975 a petition for dissolution will lie only before the District Court under the Hindu Marriage Act, 1955. No mention was made in the objection about the averment that the respondent refused to go and reside with the petitioner when demanded on 16-9-1976. The trial Court upheld the preliminary objection and dismissed the petition for dissolution as not maintainable before the Munsifs Court in view of the repeal of the Travancore Ezhava Act by the Kerala Joint Hindu Family System (Abolition) Act, 1975, holding that The General Clauses Act cannot come to the rescue of a person who files a petition under a repealed enactment'. The challenge in this civil revision is against the above order of the trial Court. The learned Judge before whom the civil revision came up for hearing, referred the same to a Bench.

3. Sections 4(b) and 29(2) of the Hindu Marriage Act, 1955 read:

'4. Overriding effect of Act.-- Save as otherwise expressly provided in this Act,--

(a).....

(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.'

'29. Savings--(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 solemnized before or after the commencement of this Act.

(3) to (4) .....'

Section 7(2) of The Kerala Joint Hindu Family System (Abolition) Act, 1975 reads :

'7. Repeal.-(1). ....

(2) The Acts mentioned in the Schedule, in so far as they apply to the whole or any part of the State of Kerala, are hereby repealed.'

S. 4(c) of the Interpretation and General Clauses Act, 1125 which corresponds to Section 6(c) of The General Clauses Act, 1897 reads :

'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) to (b).....

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

4. The law relating to marriage (including dissolution of marriage) of the Ezhavas of Travancore, was contained in The Travancore Ezhava Act 3 of 1100 M. E., for short the Ezhava Act. Under Section 8 of the Ezhava Act, a petition for dissolution of marriage had to be filed before the Munsifs Court. The Hindu Marriage Act, 1955 is an Act 'to amend and codify the law relating to marriage among Hindus'. Section 4 of the Hindu Marriage Act provides for the overriding effect of the Act. Though as per Section 4(b) any other Act which was in force before the commencement of the Act to the extent the same was inconsistent with any of the provisions of the Act would cease to have effect, in view of the fact that Section 4 is 'save as otherwise expressly provided in this Act' and of the savings contained in S, 29(2) of the Act, the right to obtain a dissolution of a Hindu Marriage conferred by any special enactment would not be affected by the Act. The net result was that in spite of the enactment of the Hindu Marriage Act, 1955 the right to obtain a dissolution of a Hindu Marriage conferred as per the special enactment in force at the time of the enactment of the Hindu Marriage Act, 1955 continued to be there without any change. This right was not only a mere right for dissolution but included the procedure and forum i.e. everything necessary, for getting the relief. In coming to the above conclusion we are fortified by Full Bench decisions of this Court in Krishna Pillai v. Subhadra Amma, 1970 KLT 442 : (AIR 1971 Ker 44) and Vasappan v. Sarada, 1957 Ker LT 977 : (AIR 1958 Ker 39). So, in spite of the Hindu Marriage Act, 1955 the dissolution of an Ezhava marriage could be had by moving a petition for the same under Section 8 of the Ezhava Act before a Munsifs Court. Then the further question is what is the effect of the repeal of the Ezhava Act by the Kerala Joint Hindu Family System (Abolition) Act, 1975 on the right to obtain a dissolution of an Ezhava marriage, when the right to dissolution accrued before the repeal of the Ezhava Act. The repeal of the Ezhava Act by Section 7(2) of the Abolition Act, 1975 is a simple repeal i.e. a repeal not coupled with any condition. In this case, the repealing Act did not also contain a re-enactment of the provisions of the repealed Act. In such cases the question is whether the repeal manifests an interest to destroy the rights already accrued and the liabilities incurred under the repealed Act. The clue is there in Section 4(c) of the Interpretation and General Clauses Act, 1125 which corresponds to Section 6(c) of the General Clauses Act, 1897. All rights already accrued at the time of the repeal under the repealed enactment are preserved in the case of a simple repeal, i.e. a repeal where an intention to the contrary cannot be gathered from the repealing Act. The General Clauses Act does not extend the duration of the repealed Act, it does not enlarge its scope also. Only the right accrued and liabilities incurred are preserved as they were under the repealed Act to enable the initiation of proceedings and their continuance under the repealed Act by excluding them from the operation of the repeal. The net result is that as far as these rights and liabilities are concerned, the proceedings can be commenced and continued under the repealed Act as if it is still in force. Incidentally, it has to be pointed out that if the repealed Act was a temporary statute nothing can be done beyond the life the Act had when it was repealed.

5. In coming to the above conclusions we find support from the decision of the Supreme Court in State of Punjab v. Mohar Singh, AIR 1955 SC 84 wherein it has been held :

'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 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 line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. The Court cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. The provisions of Section 6 of the General Clauses Ac t will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid down in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute, which is of a temporary nature automatically expired by efflux of time.'

(Paras 7 and 8)

6. In this case, the right for dissolution of marriage accrued to the petitioner before the repeal of the Ezhava Act by the Abolition Act, 1975. So, in view of Section 4(c) of the Interpretation and General Clauses Act, 1125 the petition for dissolution of marriage has to be filed before the Munsifs Court under Section 8 of the Ezhava Act. Even though the Ezhava Act stands repealed, in view of Section 4(c) of the Interpretation and General Clauses Act, 1125 it is resurrected for the limited purpose of the prosecution of the petition for dissolution. In this view of the matter, the learned Munsifrefused to exercise a jurisdiction vested inhim by dismissing the petition for dissolutionholding that he has no jurisdiction to entertainthe same.

7. In the result, we allow this civil revision and direct the trial Court to retake the petition for dissolution of marriage filed by the petitioner on the file and try and dispose of the same in accordance with law. No costs.


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