Sree Krishna Chaitanya vs Bhanumathi

Rajamannar, C.J.—This is an application made under Article 228 of the Constitution praying that O. P. No. 18 of 1950, pending on the file

of the Subordinate Judge''s Court at Eluru may be with drawn to this Court and disposed of after deter mining the question of law involved therein.

The said petition was under S. 5 of Madras Act VI of 1949, the Madras Hindu (Bigamy prevention and Divorce) Act. The relief claimed was

dissolution of the marriage of the petitioner with the respondent on the ground of the second marriage of the respondent. One of the defences

raised is that Madras Act VI of 1949 itself is invalid and inconsistent with the Constitution.

In our opinion the case certainly falls under Article 228 of the Constitution and we are satisfied that the case involves a substantial Question of

law as to the interpretation of the Constitution the determination of which is necessary for the disposal of this case. This petition is, however,

strongly opposed on the ground that even if we were to hold that the Act is inconsistent with the Constitution and therefore void under Art 13 of

the Constitution, nevertheless, the petition is sustainable because the second marriage which furnished the petitioner in the petition with it right to

obtain a divorce took place before the coming into force of the Constitution, and therefore the petition was sustainable. In our opinion, this again

involves a substantial question of law as to the interpretation of the Constitution, in particular, Article 13. Reliance was placed by the learned

Counsel for the respondent on the recent decision of the Supreme Court of India in ''Keshavan Madhava Menon v. State of Bombay'' 1951 1 M.

L. J. 370. In that case there were actually proceedings commenced u/s 18(1) of the Indian Press (Emergency Powers) Act, 1931, before the

commencement of the Constitution. The question was whether such proceedings could be proceeded with after the Constitution on the ground that

the material provisions of that Act were inconsistent with Article 19(1)(a) of the Constitution. Their Lordships by a majority held that the

proceedings could be continued. There are observations in the judgment In that case which were relied upon by Counsel for the respondent, but

we do not think that their Lordships purported to finally decide the question whether any proceeding could be commenced after the Constitution

relying upon the provision in an Act which would be declared by the Court to become void after the coming into force, of the Constitution under

Article 13. The following words of Das, J., who delivered the leading judgment appear to suggest that no existing law could be utilised to prevent

the exercise of any fundamental right alter the commencement of the Constitution:

In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of

the fundamental rights.

In any event we consider that this question also may well be disposed of by this Court.

The application is therefore granted, there will be an order accordingly withdrawing O. P. No. 18 of 1950 from the file of the Court of the

Subordinate Judge of Eluru to this Court for the purpose mentioned in this application.