KUNHAPPU Vs. MADHAVI

JUDGEMENT

(1.) The revision petitioner was the counter petitioner in M. C. 81 of 1964 on the file of the District Magistrate of Tellicherry. The petition was preferred by the wife of the counter petitioner for maintenance for herself, and her minor daughter under S.488 of the Code of Criminal Procedure. The only plea raised by the counter petitioner was that the marriage between him and the petitioner, had been dissolved on 25th December 1960 by executing a receipt. The learned District Magistrate repelled the contention of the counter petitioner and has awarded maintenance to both the petitioners at Rs. 10 and Rs. 7 respectively.

(2.) The only point that was argued before this court is that the marriage no longer subsists, it having been dissolved by the customary mode of passing a receipt. Ext. D1 is the receipt alleged to have been executed by the first petitioner, and the counter petitioner. The execution of the receipt has been denied by the petitioner. Before going into the genuineness or otherwise of the receipt we have to consider the question whether the mode of the divorce by executing a receipt is in vogue among the community to which the parties belong. The parties are marumakkathayies (Thiyyas) governed by the Madras Marumakkathayam Act. Learned counsel stated that the marriage in question was dissolved under the custom prevailing in the community. The Madras Marumakkathayam Act was preceded by the Malabar Marriage Act, and about the practice that was prevalent in the community before the Act, regarding divorce Sir T. Muthuswamy Iyer, the president of the commission appointed to go into the matter has observed that divorce was practically unrestricted and it was to prevent abuse of the freedom of divorce that appropriate provisions were made in the Act. In the Malabar Marriage Act (Act 4 of 1896) it was provided that for divorce either the wife or the husband should present a petition to the District Munsiff and the court would declare the marriage dissolved provided there was no re-approachment within 6 months of the date of the petition. In the Madras Marumakkathayam Act, 1932 (Act 22 of 1933), the provision for divorce is as follows:

(3.) The witnesses cited are Dws. 2 and 3. Their statements are inconsistent and self contradictory. dw. 2 for instance is the scribe of the document. According to him the document was signed in a reading room at Velyod. He did not see the alleged signing nor did he see any of the witnesses placing their signature on the document. According to dw. 3 the document was executed in her house (she was at the time residing with her relation, one Raghavan, but this Raghavan is not examined). dw. 3 would say that the lady signed inside the house; but according to dw. 1 the counter petitioner, the lady came out and after placing her signature went in again. Dws. 4 and 5 were cited mainly to prove the custom; of these, dw. 4 is closely related to the counter petitioner. Neither of them was able to enlighten the court as to the nature of the custom or to give any other valuable information about it. In this state of the evidence no value can be attached to the alleged custom or the receipt stated to have been executed by the parties.