Skip to content


Ethirajammal Vs. S.A. Venkatachariar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1956)2MLJ73
AppellantEthirajammal
RespondentS.A. Venkatachariar
Excerpt:
- - section 5 of the state act seems to be self contained and it has made a specific as well as a general provision......and divorce act, act vi of 1949.2. the original petition was filed by the husband before the learned subordinate judge under section 5 of the said hindu bigamy prevention and divorce act for a dissolution of the marriage of the petitioner with the respondent in the said petition. the respondent before the learned subordinate judge took the objection that the sub-court had no jurisdiction to hear and dispose of the original petition. the respondent relied upon section 5(1) of the said act which is to the following effect:either party to a marriage solemnized before or after the commencement of this act who has completed eighteen years of age may present a petition to the subordinate judge's court, the district court or the city civil court, within the limits of whose jurisdiction.....
Judgment:

Basheer Ahmed Sayeed, J.

1. This Civil Revision Petition is against the order of the learned Subordinate Judge of Chingleput in O.P. No. 65 of 1953 filed under the Hindu Bigamy Prevention and Divorce Act, Act VI of 1949.

2. The original petition was filed by the husband before the learned subordinate Judge under Section 5 of the said Hindu Bigamy Prevention and Divorce Act for a dissolution of the marriage of the petitioner with the respondent in the said petition. The respondent before the learned Subordinate Judge took the objection that the Sub-Court had no jurisdiction to hear and dispose of the original petition. The respondent relied upon Section 5(1) of the said Act which is to the following effect:

Either party to a marriage solemnized before or after the commencement of this Act who has completed eighteen years of age may present a petition to the Subordinate Judge's Court, the District Court or the City Civil Court, within the limits of whose jurisdiction the marriage was solemnized or the other party to the marriage actually and voluntarily resides, praying that the marriage may be dissolved on the grounds set forth.

3. It is conceded by the respondent before me that the marriage was solemnized at Srivilliputtur and it is also conceded by him fairly that the respondent is also voluntarily and actually residing at Srivilliputtur. This would certainly give the jurisdiction to the Sub-Court, Ramnad and not to the Sub-Court at Chingleput if the plain meaning of Section 5(1) is to be taken in its proper sense. But the learned Counsel for the respondent contends that Sub-section (4) of Section 5 provides that the procedure provided in the Civil Procedure Code; 1908, in regard to suits shall be followed so far as it can be made applicable in all proceedings in any petition presented under Sub-section (1) or Sub-section (2) and would not give jurisdiction to the Sub-Court, Ramnad. Though this contention has been upheld by the learned Subordinate Judge of Chingleput, I do not think I can agree with him. When there is a specific provision made in the earlier part of the section that jurisdiction only arises where the marriage has been solemnized or where the party against whom the relief is sought voluntarily or actually resides, the latter provision in the same section that the procedure applicable to suits should as far as possible be made applicable to the petition would not override the specific provision contained in Sub-clause (1) of the same section. The learned Counsel for the respondent also invited my attention to the fact that the present Act under which the original petition has been taken out has been repealed by a later Act of the Central Legislature, namely, The Hindu Marriage Act of 1955. But the learned Counsel fairly conceded that there is a saving clause contained in Section 29 of the Central Act to the effect that all pending proceedings are not affected. Therefore the repeal of the Act under which the petition has been taken out does not really affect the present case and that will have to be disposed of as if the Central Act had not been passed as provided for under Section 29 of the Central Act.

4. A further point that was urged on behalf of the learned Counsel for the respondent was that in so far as there is no saving clause in the State Act, it should be taken that the Civil Procedure Code alone would apply and not what is contained in Section 5(1) of the Hindu Bigamy Prevention and Divorce Act. I do not think that simply because there has been no specific provision to save as has been set out in the Central Act, the jurisdiction already provided for under Section 5(1) gets in any way affected. Section 5 of the State Act seems to be self contained and it has made a specific as well as a general provision. When there is specific provision, the general provision cannot really override the specific provision. If there is no saving clause affecting the specific provision, it should be understood that the Legislature intended that so far as the territorial jurisdiction is concerned what has been provided under Section 5(1) applied and what has been provided in Section 5(4) merely relates to the procedure for the hearing and the disposal of the petition as if it was a suit. It does not affect the main question of jurisdiction. Therefore in this view, the order of the learned Subordinate Judge has to be set aside and it is hereby set aside. The learned Subordinate Judge is directed to return the petition to be presented to the proper Court. So far as this revision is concerned, the petitioner will be entitled to her costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //