Pothuru Suryanarayana vs Pojhuvu Savitramma

Satyanarayana Raju, J.—This appeal arises out of an application filed u/s 5 clause (1) and snivels, (b) and (d), Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949), for dissolution of the marriage of the Appellant with the Respondent, who are husband and wife respectively.

The facts which have given rise to this appeal are as follows:

The Appellant filed an application u/s 5 Clause (1) and sub-Clause s (b) and (d) of Act VI of 1949 alleging inter alia that he was married to the Respondent nearly 3 1/2 years before the date of tire petition, that she lived with him for two years, there after she went away to her parents'' house, tier father having come and taken her promising to ''send her back shortly, that in fact he never sent her back but that all of a sudden some months later, the Respondent returned and it was found that she was pregnant. Subsequently registered notices were exchanged between the Appellant and the Respondent and the petition was filed for dissolution of the marriage.

The Respondent filed a counter on 10-11-1951 repudiating the allegations made by the Appellant.

On the same date the enquiry was adjourned to of 24-11-1931. P. W. 1 was examined on 3-3-1952. On 16-4-1952 the learned Subordinate Judge dismissed the petition *holding that the Appellant failed f to establish that the Respondent was the concubine of any man or that she was leading the life of a pros statute that the Appellant also failed to establish a case u/s 5 (1) (d) of Madras Act VI of 1949. (Against the judgment of the learned Subordinate Judge dismissing his application for dissolution of the marriage, the Appellant preferred the above appeal in this Court.

During entire pendency of the appeal, C.M.P. Nos. 937/and 938 of 1955 were taken out by the, Respondent for interim maintenance and for directing the Appellant to pay the expenses for conducting the appeal. An order was made by one of us (at Satyanarayana Raju J.) on 7-3-1955 directing the Appellant to deposit certain amounts towards interim maintenance and also a sum of Rs. 75/- towards the expenses for conducting the appeal.

the appeal came up for hearing before us on 7-9-1955 and on that date it was represented to us that the amounts payable as per the order in C. M. P. Nos. 937 and 938 of 1955 had not been paid by the Appellant to the Respondent. The learned Counsel for the Respondent raised a preliminary point that the appeal could not be heard until the amounts directed to be paid by the aforesaid order were paid. By our order dated 7-9-1955, we gave Anr. chance to the Appellant to pay the amounts directed to be paid in C. M. P. Nos. 937 and 938 of 1955 on or before 22-9-1955. It is now represented to us that the amounts were paid before that date. It therefore becomes unnecessary for us to consider the preliminary point raised by the learned Counsel for the Respondent.

The substantial point raised in the appeal is that the mandatory provisions of Rule 9 of the Madras Hindu (Bigamy Prevention and Divorce) Rules have not been complied with and that the noncompliance with the provisions of that rule amounts to a failure to exercise the jurisdiction vested in the Court.

In exercise of the powers conferred by Section 6, Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949), the Madras Hindu (Bigamy Prevention and Divorce) Rules were made. Rule 9 of the said rules provides that after framing issues, the Court shall adjourn the hearing of any petition under Sub-section (1) or sub-s. (2) of Section 5 of the Act for a period of not less than four months and may require evidence thereon, if it sees fit to do so. In Madhavarao v. Chinnammi, 1955 AP WR 431 (A), one of us (the learned Chief Justice) and Bhimasankaram J. held:

It is to be observed that the Act does not provide for a decree nisi to be followed by a decree absolute as in a case governed by the Indian Divorce ''Act which adopts in that regard substantially the procedure followed in England. The policy underlying the fixing of time is to give tire parties an opportunity for reconciliation

In the present case, no issues were framed and the trial commenced on 3-3-1952. It is, there-'' fore, clear that the mandatory provisions of Rule 9, have not been complied with and it fellows that the judgment of the learned Subordinate Judge must be set aside . We, therefore, set aside the judgment of the learned Subordinate Judge and direct him to re-entertain the petition and dispose it of in accordance with law. In the circumstances there will be no order as to costs in this appeal. The costs of the lower Court will follow and abide the result. The Appellant will be untilled to a refund of the court-fee paid on the memorandum of appeal