M MOHANRAJ Vs. VIOLET CHANDRA

JUDGEMENT

(1.) This appeal is preferred under Section 39 of the Special Marriage Act, 1954 (for short'Hie Act'), against the order dated 13-9-1991 made by IheCourlof Civil Judge, K.G.F. (for short 'the Court-below") dismissing the husband's petition for divorce filed against his wife under Section 27 of the Act. Husband is the appellant and wife is the respondent. They arc Indian Christians whose marriage was solemnised under the Indian Christian Marriage Act, 1872 (for short 'the Christian Marriage Act'), according to the Christian Rites in a Church at K.G.F., on 12-2-1982.

(2.) Husband filed the petition under sub-section (1) of Section 27 of the Act in the Court-below seeking a decree for divorce against his wife on the ground that she had deserted him for a continuous period of not less than two years immediately prcccding the presents lion of that petition - a ground for divorce envisaged in clause (b) of that sub-section. Maintainability of that petition for divorce under sub-section (1) Section 27 of the Act having been raised by the wife in her Objection Statement filed thereto, on the plea that her marriage with the appellant not being a marriage under the Act but a Christian marriage under the Christian Marriage Act, the Court-below rejected that petition by upholding the plea of the wife by making an order in that regard. It is that order which is appealed against by the husband in the present appeal.

(3.) Sri B. Veerabhadrappa, learned counsel for the appellant, sought to assail theorder of the Court-below, by which the petition for divorce filed under sub-section (1) of Section 27 of the Act by the appellant-husband against the respondent-wife to dissolve their marriage solemnised under the Christian Marriage Act has been dismissed as not maintainable. According to the learned counsel, notwithstanding the fact that the marriage of the appellant-husband and the respondent-wire had not been solemnised or deemed to have been solemnised under the Act, sub-section (1) of Section 27 of the Act, because of the generality of the words found in its opening part, enables a husband or a wife to present a petition for divorce against other parly even if their marriage had not been solemnised or deemed to have been solemnised under the Act. Further, according to him, when the opening part of sub-section (1) of Section 27 of the Act does not state that tlie petition for divorce to be presented thereunder is respecting a marriage solemnised under the Act as has been stated in Sections 24 and 25 thereof providing for seeking a declaration of a marriage being void or voidable, there can be no valid reason to restrict its application only to a marriage solemnised or deemed to have been solemnised under the Act. Support for his submission was also sought to be derived from the observations made by a learned Judge of the Rajaslhan High Court in deciding the case of Christopher v Mrs. AnneNeelflkantan, reported in AIR 1959 Rajaslhan 133, which read: