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Jiviben Vs. Patel Dahyalal Lakhudas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 474 of 1981
Judge
Reported inAIR1984Guj6; (1983)2GLR871
ActsHindu Marriage Act, 1955 - Sections 13(2); Marriage Laws (Amendment) Act, 1976
AppellantJiviben
RespondentPatel Dahyalal Lakhudas
Advocates: C.V. Jani, Adv.
Excerpt:
- - in my view, if the three conditions set out above are satisfied, it would not be proper to reject the application on the ground that repudiation of the marriage was done before the amendment, i......can present a petition for that purpose. these provisions, as they existed before amendment by the marriage laws (amendment) act, 1976, were found by the legislature to be inadequate. it also found that there were frequent violations of the provisions of the child marriage restraint act; and, therefore, it was necessary to confer a right of repudiation on girls who are subject to such marriages. to achieve these objects, s. 13 was amended. relevant part of the amended section reads as under :' 13 (1) ... ... ... ... ..(2) a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground(i)to (iii) ... ... ... .... (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated.....
Judgment:

1. to 3. xx xx xx

4. Next question is, whether repudiation which was made before Cl . (iv) of sub-section (2) Of S. 13 came to be inserted into the Act can be availed of thereafter. Section 13 provides for dissolution of a marriage by a decree of divorce on the grounds stated therein. Sub-section (2) thereof enumerates additional grounds on which a wife can present a petition for that purpose. These provisions, as they existed before amendment by the Marriage Laws (Amendment) Act, 1976, were found by the legislature to be inadequate. It also found that there were frequent violations of the provisions of the Child Marriage Restraint Act; and, therefore, it was necessary to confer a right of repudiation on girls who are subject to such marriages. To achieve these objects, S. 13 was amended. Relevant part of the amended section reads as under :

' 13 (1) ... ... ... ... ..

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground

(i)to (iii) ... ... ... ....

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen, years.'

Explanation :- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage- Laws (Amendment) Act, 1976.' If a wife now proves in her petition (i) that her marriage was solemnized before she attained the age of fifteen years, (fl) that she has repudiated the marriage after attaining that age and (iii) that she has repudiated the same before attaining the a would be of eighteen years, she would entitled to get a decree of divorce; of course, subject to other provisions of the Act. The explanation to only makes it clear that this 'provision will apply even if the marriage was solemnized be-! fore the commencement of the Marriage Laws (Amendment) Act of 1976. The nature of the provision contained in S. 13, the object with which it was amended and the language employed by the Legislature, in my opinion, do not justify construing Clause (iv) of sub-see. (2) narrowly and reading into it a further condition or a limitation that repudiation should have taken place after the commencement of the amending Act. No 1 doubt, such a petition, under the Act, could not have been filed earlier; but that would be no test for deciding whether the ground which existed earlier can now be availed of or not. In my view, if the three conditions set out above are satisfied, it would not be proper to reject the application on the ground that repudiation of the marriage was done before the amendment, I. therefore, hold that the Court below was not right in dismissing the petition and it ought to have allowed the same.

5. XX XX XX

6. Appeal allowed.


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