P. Rajagopalan, O.C.J.
1. This appeal filed under clause 15 of the Letters Patent arose out of proceedings which commenced with the presentation of O.P. No. 254 of 1954 in the City Civil Court. That petition was presented by Krishnamoorthy, the respondent in the appeal before us, under the provisions of the Hindu (Bigamy Prevention and Divorce) Act, Madras Act VI of 1949. The reliefs Krishnamoorthy sought were: (1) dissolution of his marriage with his wife Sarojini Devi, the appellant before us, and (2) the custody of the only child of the marriage, then aged about four. The application was dismissed by the Principal City Civil Judge. Neither of the prayers was granted. Krishnamoorthi appealed (C.M.A. No. 58 of 1956). In disposing of that appeal Ganapatia Pillai, J., upheld the findings of the trial Court and came to the conclusion that, as the wife had been living away from the husband for reasons which could be justified, the dissolution of the marriage asked for by the husband could not be granted. The learned Judge then proceeded to deal with the question of the custody of the child. He directed that the custody of the child should be restored to the father, Krishnamoorthi. It was against that decision that this appeal was preferred by the mother of the child.
2. The question before us is a very limited one, limited only to the question of the custody of the child.
3. Taking the scheme of Madras Act VI of 1949, it seems clear to us that, where the Court refuses to dissolve the marriage, it has no jurisdiction at all to issue any orders about the custody of the child of that marriage. Provision for the issue of orders for the custody of child or children of the marriage is made in Section 5(8) of the Act, the relevant portion of which is:
The Court when ordering the dissolution of a marriage under this Section, may also make suitable provision.
(ii) for the custody, guardianship, maintenance and education of the minor children, if any born of the dissolved marriage.
4. Sub-Section (3) of Section 5, provides for the dissolution of the marriage should the grounds on which such dissolution was sought be established to the satisfaction of the Court. In this case, the concurrent findings of the Courts were that there was no cause established for the dissolution of the marriage. The question then is, where the Court has refused to dissolve a marriage, has it any jurisdiction to pass any orders for the custody of the children.
5. The opening words of Sub-Section (8) of Section 5 specifically refer to the occasion when jurisdiction to provide for the custody of the children can arise, that is, when the Court orders the dissolution of a marriage. Again, in sub-clause (ii), the custody for which the Court has to provide is for the custody of the minor children if any, born of the dissolved marriage. Now in this case there is no dissolved marriage. The marriage is still subsisting. The Court declined to dissolve the marriage. There is, therefore, no question of providing for the custody of the minor children born of a dissolved marriage. We are of opinion that, when the. Court refused to grant the prayer of the dissolution of marriage, the Court had no jurisdiction thereafter to go into the question of the arrangements to be made for the custody of the children of the undissolved marriage.
6. In the view we have taken we do not consider it necessary to go into the merits of the case, that is, whether the interests of the child require the custody being with the father or with the mother. How this question could be decided in appropriately framed proceedings under the Guardians and Wards Act we are not called upon to consider in these proceedings.
7. On the short ground that the Court had no jurisdiction to provide for the custody of the child when the marriage was not dissolved, we allow the appeal. It is true that this aspect was not considered by the learned Judge; nor was it made one of the specific grounds in the memorandum of appeal. But, nevertheless since the issue involved is one of jurisdiction, we have considered that question first.
8. The order of the learned Judge in so far as it directed the custody of the child to the father is set aside. The order of the learned Judge confirming the decree of the lower Court refusing the dissolution of the marriage is not the subject-matter of this appeal.
9. The appellant will be entitled to her costs from the respondent in the Letters Patent Appeal.