Vellinayagi vs T. Subramaniam

Alagiriswami, J.—This is a petition to revise the order of the learned Subordinate Judge of Thanjavur in I.A. 11 of 1966 in O. P. 6 of 1966.

O. P. 6 of 1966 was filed by the present respondent for annulment of his marriage with the petitioner. Along with the original petition No. 6 of

J966, he filed the interlocutory application out of which this civil revision petition arises for condonation of the delay of one year, six months and

twenty four days in presenting the petition. The parties were married on 18-6-1963. The petitioner gave birth to a child on 26-2-1964. The

petitioner intimated to the Municipal authorities on 8-3-1964 disowning the said child. Thereafter he filed the petition for annulment of marriage on

5-1-1966. On behalf of the petitioner (herein) objection was taken that the Court had no jurisdiction to condone the delay in the presentation of

the petition for annulment of the marriage and that the conditions laid down in Section 12(2) of the Hindu Marriage Act were conditions subject to

which alone an application for annulment of a marriage under Clause (d) of Sub-section (1) of Section 12 could be maintained.

The learned Judge thought that the question for decision in the case was whether the petition for excusing the I delay was a bona fide one and

whether the petitioner had not filed the petition u/s 12 on a bona fide mistake of fact. He also thought that in a matrimonial case it would be very

difficult to apply strictly the law of limitation because when the Hindu Marriage Act alone provides for dissolution of the marital tie on the ground of

the wife being proved to have been conceived on the date of the marriage by a person other than the petitioner it would not be possible for the

husband to obtain the relief under any other law and that by excusing the delay no injustice would be caused. I am afraid question of bona fide

mistake of fact does not arise in this case. We are not now concerned with the question whether the requirements of Sub-clauses (i) and (iii) of

Clause (b) of Sub-section (2) of Section 12 are satisfied. We are only concerned with the question whether the requirements of Section 12(2)(b)

(ii) have been satisfied. Sub-clause (ii) of Clause (b) of Sub-section (2) of Section 12 is as follows-

Notwithstanding anything contained in Sub-section (1) no petition for annulling a marriage-

(a) .......

(b) on the ground specified in Clause (d) of Sub-section (1) shall be entertained unless the Court is satisfied-

(i).......(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within the year of such

commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii)......

What is laid down in Sub-clause (ii) is a condition subject to which alone a petition for annulling a marriage could be entertained. It is not a period

of limitation. Section 5 of the Limitation Act cannot apply to this case, because Section 29(3) of the Limitation Act of 1963 provides-

Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit

or other proceeding under any such law.

The wording of Section 12(2) of Hindu Marriage Act is more or less similar to the wording of Section 9 of the Provincial Insolvency Act, which

is as follows-

9(1) A creditor shall not be entitled to present an insolvency petition against a debtor unless......(c) the act of insolvency on which the petition is

grounded has occurred within three months before the presentation of the petition.

A Full Bench of our Court in the decision reported in Chenchurammana v. Arunachalam, ILR 58 Mad 794 AIR 1935 Mad 857, has laid down

that the period of three months fixed in Section 9(1)(c) of the Provincial Insolvency Act is not a period of limitation but is a condition to an

adjudication and accordingly an act of insolvency, which has occurred more than three months prior to the presentation of the petition, is not

available as a ground of adjudication. I may also point out that a Bench of the Bombay High Court in Savlaram Kacharoo Mhatre Vs. Yeshodabai

Savlaram Mhatre, has taken the view that-

Compliance with Section 12(2)(b) of the Hindu Marriage Act 1955, is a condition precedent to the entertainment of a petition u/s 12(1)(d) of the

Act, and therefore, a petition filed beyond the period mentioned in Section 12(2)(b)(ii) of the Act cannot be saved by reason of the provisions of

Section 10 of the General Clauses Act, 1897.

With respect I follow the decision of the Bench. It follows, therefore, that the learned Subordinate Judge had no jurisdiction to allow I.A. 11 of

1966 and condone the delay. The civil revision petition is allowed. I.A. 11 of 1966 will as a consequence stand dismissed. No order as to costs.