Ethirajammal vs S.A. Venkatachariar on 6 January, 1956

    Ethirajammal vs S.A. Venkatachariar on 6/1/1956

JUDGMENT

   Basheer Ahmed Sayeed, J.

   1. This Civil Revision Petition is against the order of the learned
Subordinate Judge of Chingleput in O.P. No. 65 of 1953 filed under the Hindu
Bigamy Prevention and Divorce Act, Act VI of 1949.

   2. The original petition was filed by the husband before the learned
subordinate Judge under Section 5 of the said Hindu Bigamy Prevention and
Divorce Act for a dissolution of the marriage of the petitioner with the
respondent in the said petition. The respondent before the learned Subordinate
Judge took the objection that the Sub-Court had no jurisdiction to hear and
dispose of the original petition. The respondent relied upon Section 5(1) of the
said Act which is to the following effect:

     Either party to a marriage solemnized before or after the commencement of
this Act who has completed eighteen years of age may present a petition to the
Subordinate Judge's Court, the District Court or the City Civil Court, within
the limits of whose jurisdiction the marriage was solemnized or the other party
to the marriage actually and voluntarily resides, praying that the marriage may
be dissolved on the grounds set forth.

   3. It is conceded by the respondent before me that the marriage was
solemnized at Srivilliputtur and it is also conceded by him fairly that the
respondent is also voluntarily and actually residing at Srivilliputtur. This
would certainly give the jurisdiction to the Sub-Court, Ramnad and not to the
Sub-Court at Chingleput if the plain meaning of Section 5(1) is to be taken in
its proper sense. But the learned Counsel for the respondent contends that Sub-
section (4) of Section 5 provides that the procedure provided in the Civil
Procedure Code; 1908, in regard to suits shall be followed so far as it can be
made applicable in all proceedings in any petition presented under Sub-section
(1) or Sub-section (2) and would not give jurisdiction to the Sub-Court, Ramnad.
Though this contention has been upheld by the learned Subordinate Judge of
Chingleput, I do not think I can agree with him. When there is a specific
provision made in the earlier part of the section that jurisdiction only arises
where the marriage has been solemnized or where the party against whom the
relief is sought voluntarily or actually resides, the latter provision in the
same section that the procedure applicable to suits should as far as possible be
made applicable to the petition would not override the specific provision
contained in Sub-clause (1) of the same section. The learned Counsel for the
respondent also invited my attention to the fact that the present Act under
which the original petition has been taken out has been repealed by a later Act
of the Central Legislature, namely, The Hindu Marriage Act of 1955. But the
learned Counsel fairly conceded that there is a saving clause contained in
Section 29 of the Central Act to the effect that all pending proceedings are not
affected. Therefore the repeal of the Act under which the petition has been
taken out does not really affect the present case and that will have to be
disposed of as if the Central Act had not been passed as provided for under
Section 29 of the Central Act.

   4. A further point that was urged on behalf of the learned Counsel for the
respondent was that in so far as there is no saving clause in the State Act, it
should be taken that the Civil Procedure Code alone would apply and not what is
contained in Section 5(1) of the Hindu Bigamy Prevention and Divorce Act. I do
not think that simply because there has been no specific provision to save as
has been set out in the Central Act, the jurisdiction already provided for under
Section 5(1) gets in any way affected. Section 5 of the State Act seems to be
self contained and it has made a specific as well as a general provision. When
there is specific provision, the general provision cannot really override the
specific provision. If there is no saving clause affecting the specific
provision, it should be understood that the Legislature intended that so far as
the territorial jurisdiction is concerned what has been provided under Section
5(1) applied and what has been provided in Section 5(4) merely relates to the
procedure for the hearing and the disposal of the petition as if it was a suit.
It does not affect the main question of jurisdiction. Therefore in this view,
the order of the learned Subordinate Judge has to be set aside and it is hereby
set aside. The learned Subordinate Judge is directed to return the petition to
be presented to the proper Court. So far as this revision is concerned, the
petitioner will be entitled to her costs.