P KESAVAN Vs. B KRISHNAMMA

JUDGEMENT

(1.) The short point that arises for consideration in this civil revision is whether after the repeal of the Travancore Ezhava Act, 1100 by the Kerala Joint Hindu Family System (Abolition) Act, 1975 a petition for dissolution of marriage can be filed under S.8 of the Ezhava Act, if before the repeal the wife refused to live with the husband. The decision on the point depends on the questions whether the repeal was a simple repeal and what is the impact of S.4(c) of the Interpretation and General Clauses Act, 1125 which corresponds to S.6(c) of the General Clauses Act, 1897 on the repeal.

(2.) The petitioner husband in the petition for dissolution of marriage under S.8 of the Travancore Ezhava Act, 1100 is the petitioner in the civil revision. The petitioner married the respondent while he was in the Air Force. Later, he was discharged from the Air Force and he settled down in his native place. On 16-9-1976 he requested the respondent wife to reside with him, but she refused. Thereafter, on 26-1-1977 he came to know that she got pregnant while he was away in Maharastra serving in the Air Force. On 16-2-1977 the petition for dissolution of marriage was filed before the Munsiff's Court under S.8 of the Travancore Ezhava Act. Before that, the Travancore Ezhava Act was repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975 which came into force on 1-12-1976. The respondent raised a preliminary objection before the Trial Court that the Munsiff's Court has no jurisdiction in the matter as after the repeal of the Ezhava Act by the Kerala Joint Hindu Family System (Abolition) Act, 1975 a petition for dissolution will lie only before the District Court under the Hindu Marriage Act, 1955 No mention was made in the objection about the averment that the respondent refused to go and reside with the petitioner when demanded on 16-9-1976. The Trial Court upheld the preliminary objection and dismissed the petition for dissolution as not maintainable before the Munsiff's Court in view of the repeal of the Travancore Ezhava Act by the Kerala Joint Hindu Family System (Abolition) Act, 1976, holding that 'The General Clauses Act cannot come to the rescue of a person who files a petition under a repealed enactment'. The challenge in this civil revision is against the above order of the Trial Court. The learned Judge before whom the revision came up for hearing, referred the same to a Bench.

(3.) S.4(b) and 29(2) of the Hindu Marriage Act, 1955 read: