JACINTHA KAMATH Vs. K PADMANABHA KAMATH

JUDGEMENT

(1.) This appeal under S. 28 of the Hindu Marriage Act, 1955, to be hereinafter referred to as 'the HM Act', is preferred against the order dt. 29-11-1991 made by the Court of Civil Judge at Udupi, to be hereinafter referred to as 'the trial Court', dismissing a petition under S. 13 of the HM Act seeking dissolution of a Christian marriage by a decree of divorce, as unmaintainable.

(2.) The appellant and the respondent here were respectively the petitioner and the respondent in the petition before the trial Court. The marriage of the petitioner, who was a Christian, and the respondent, who was a Hindu, was solemnised on 17-3-1977 at St. Lawrence Church, Moodubelle, by the Paris Priest of that Church by adoption of Christian form of marriage. When the Christian wife of the said marriage, which was evidenced by the Certificate of Marriage dt. 7-7-1991 issued by the Paris Priest of the above Church, presented before the trial Court a petition under S. 13(1) of the HM Act against her Hindu husband seeking dissolution of their marriage by a decree of divorce on the grounds available thereunder, that petition is dismissed as unmaintainable by an order dt. 29-11-1991 of the trial Court. It is that order which is appealed against in the present appeal by the Christian wife.

(3.) Sri G. S. Visweswara, learned counsel for the appellant-Christian wife, assailed before us, rather strenuously, the correctness of the trial Court's order, by which the petition filed by the Christian wife under S. 13 of the HM Act against her Hindu husband has been dismissed as unmaintainable. According to him, the HM Act, when, by its provision in S. 2, says that the HM Act applies to any person, who is a Hindu, and when, by its provision in S. 13 providing for divorce of a marriage, does not restrict its availability to a Hindu marriage, there can be no valid reason as to why its availability cannot be extended to a Christian marriage of which one of the parties is a Hindu. Further, according to him, the decision of a learned Judge of the Delhi High Court in Mrs. Pramilla Khosla v. Rajnish Kumar Khosla reported in AIR 1979 Delhi 78 supported his submission.