1. This civil revision petition is filed by sareetha, a well- known film actress of the south Indian screeen agianst an order passed by the learned subordinate Judge , cuddapah ,overruling her objection raised to the enter taining of an application filed by one venkata subbaiah, under section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act) for restitution of conjugal rights with her.
2. Sareetha while studying in a highschool and then hardly aged about sixteen-years and staying with her parents at Madras was alleged to have been given in marriage to the said venkata subbaiah, at Tirupathi on 13-12-1975. Almost immediately thereafter they were separated from each other and have been continuously living apart fromeach othe for these five-years and more. Venkata subbaish had, therefore, filed under section 9 of the Act O.P. No. 1 of 1981 on the file of the subcourt, cuddapah for restitution of conjugal rights with sareetha. Sareetha had taken a preliminary objection to the jurisdiction of the cuddapah sub-court to the entertaining of that application the contention of sareetha was that the petition filed by venkata subbaiah itself showed lack of jurisdiction on the part of cuddapah Court to try the petition and that the sub-court cuddapah ought to have declined jurisdiction. The basis for this objection was an allegation "that the marriage took place at Tirupathi and that the petitioner and respondent last resided together at madras". Sareetha relied upon this statement of venkata subbaiah to say that the cuddapah Court had no jurisdiction to entertain the petition of venkata su bbaiah. It was this preliminary objection taken by sareetha that had been overruled by the cuddapah sub-court, leading sareetha to the filing of this civil Revision petition.
But our Supreme Court called the test as test of arbitrariness and followed it in the subsequent decisions in maneka Gandhi case and the International Air port case , and Ajay Hasia v. Khalid Mujib and Air India v. Nergesh The theory of minimum rationality test which is heavily criticised by seervai in his latest constitutional Law, 3rd Edition page 272 is described by prof. Tribe as requiring all legislation to have "a legislative public purpose or set of purposes based on some conception of general good". (See his American constitutional Law, page 995) Examined from this point of view, it is clear that whether or not section 9 of the Hindu marriage Act suffers from the vice of over-classification as suggested in the preceding paragraph it promotes no legitimate public purpose based on any conception of the general good. It has already been shown that section 9 must thereofe be held to be arbitrary and void as offending art. 14 of the consitution.
40. In the view I have taken of the constitutional validity of section 9 of the Hindu Marriage Act, I declare that section 9 is null and void. As a corollary to that declaration, I hold that O.P. No. 1 of 1981 on the file of subordinate Judge, cuddapah, filed by venkata subbaiah for the relief of restitution of conjugal rights with sareetha is legally incompetent. Accordingly, I prohibit the Court of the subordinate Judge, cuddapah from trying O.P. No. 1/81.
41. The civil Revision petition is allowed, but without costs.