Chellappan Nair vs Madhavi Amma and Another

M. S. Menon, J.—The petitioner in Divorce Petition No. 7 of 1957 of the District Court of Trivandrum is the petitioner before us. By that petition he sought a dissolution of his marriage to the 1st respondent u/s 13 of the Hindu Marriage Act, 1955. The lower court held that he was not entitled to invoke that section and that his only remedy was u/s 5 of the Travancore Nayar Act, II of 1100. Section 13 of the Hindu Marriage Act, 1955, provides that any marriage solemnised, whether before or after the commencement of that Act, may, on a petition presented by either the husband or the wife be dissolved by a decree of divorce on any one of the grounds enumerated in that section. Section 5 of the Travancore Nayar Act, II of 1100, reads as follows :

A husband or wife may, notwithstanding anything contained in the Civil Courts Regulation, present a petition for dissolution of the marriage, u/s 4, Clause (iii), in the court of the District Munsiff within the local limits of whose jurisdiction the respondent resides, carries on business, or personally works for gain, or, if the respondent resides, carries on business or personally works for gain in any place outside Travancore, in the Court of the District Munsiff within whose jurisdiction the petitioner resides, on any of the following grounds, namely, insanity, incurable disease, impotency, incompatibility of temperament, habitual cruelty, adultery or change of religion :

Provided that the wife shall herself be competent to apply for divorce if she has completed sixteen years of age.

Section 30 of the Hindu Marriage Act, 1955, repealed the enactments specified in that section. The Travancore Nayar Act, II of 1100, is not one of them.

Sub-section (2) of section 29 of the Hindu Marriage Act, 1955 provides:

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 solemnised before or after the commencement of this Act.

The lower court has apparently misunderstood the scope and effect of this provision. The fact that an existing right has been saved in a new enactment does not by itself mean that the rights conferred by the new enactment are unavailable to a party entitled to the benefit of the saving.

Bindra sketches the real effect of sub-section (2) quite correctly when he says:

It saves the right of the dissolution of marriage recognised by any custom or conferred by any special enactment not repealed by this Act. Thus a Hindu marriage may be dissolved under Sec. 13 of the Act or under any special enactment or according to any custom applicable to the parties." (The Hindu Marriage Act, Page 563).

To the same effect is the commentary of Gopalakrishnan to that sub-section :

This clause saves the validity of customs recognizing the right to dissolve marriages, as well as the right conferred by any special enactment to obtain dissolution of marriage solemnized before or after the commencement of this Act.

In such cases, the parties may have three modes of dissolution of their marriages --

(1) under Sec. 13 of this Act,

(2) under custom,

(3) under any special enactment such as the Madras Marumakkathayam Act, 1933." (The Hindu Marriage Law, Page 186).

The lower court relied on Kamala Nair Vs. Narayana Pillai Kumaran Nair, . Our attention was also drawn to 1957 K. L. T. 977. Neither of these decisions afford any support for the conclusion reached by the court below. They are only authorities for the proposition that if a petitioner invoked a particular Act his rights and remedies should be resolved according to the provisions of that Act and not that of any other enactment.

In the light of what is stated above this petition has to be allowed, and we do so. The respondents were not present either in person or through counsel, and we make no order as to costs. Sri. N. Sudhakaran acted as amicus curiae at our request and drew our attention to all the factors which are relevant for the decision of this case. We record our appreciation of the assistance given by him.