SARAMMA NINAN Vs. NINAN JOHN

JUDGEMENT

(1.) This matter was placed before this Bench because of the following order passed by learned Single Judge on 11/12/2000: "Since the constitutional validity of a statute is involved, list the matter before an appropriate Division Bench, subject to the orders of Hon'ble the Chief Justice, on 9/01/2001."

(2.) When the matter was taken up we wanted to find out from the learned counsel appearing for the petitioner as to how vires of certain provisions of Indian Divorce Act, 1869 (in short the 'Act') can be decided in an original petition filed under Section 10 of the Act. Learned counsel for the petitioner referred to Order XXVIIA of the Code of Civil Procedure, 1908 (in short the 'Code') and Section 113 thereof. Refer- ence was also made to Article 228 of the Constitution of India,' 1950 (in short the 'Constitution'). Reference was also made to a decision of the Apex Court in Ganga Pratap v. Allahabad Bank Ltd., AIR 1958 SC 293, to contend that it is not impermissible to decide the vires in the proceedings at hand. Reference was also made to decisions of Kerala and Bombay High Court in Ammini EJ. v. Union of India, AIR 1995 Ker 252 and Pragati Varghes & Ors. v. Cyril Varghes & Ors; (II) J997DMC 407respectively to urge that vires questions were considered and decided in similar proceedings.

(3.) The .provisions referred to by learned counsel for the petitioner read as fol- lows: ORDER XXVIIA,Civil Procedure Code Suits involving a substantial question of law as to the interpretation of the Constitution or as to the validity of any statutory instrument.