K R NARAYANA PILLAI Vs. LEKSHMIKUTTY AMMA

JUDGEMENT

(1.) This is an appeal by a Nair husband against the order of the learned District Munsiff of Krishnapuram dismissing his application for dissolution of a marriage with his wife, the respondent in this appeal. The application was filed by the husband for dissolution of marriage mainly on the grounds of the wife suffering from incurable disease, of the wife being guilty of habitual cruelty and also of incompatibility of temperament. The application was opposed by the wife who in turn, charged the husband with immorality, drunkenness and cruelty. The learned District Munsiff has put to the delegates the various heads under which divorce was asked for. He has also stated that if the allegations of the husband under the particular heads are held to be established, then the husband would be entitled to obtain a divorce. The delegates have given their opinion on each one of the points put to them in the negative and based on this verdict the learned District Munsiff has dismissed the application of the husband.

(2.) In appeal before us, Mr. T.S. Krishnamurthi Ayyar, the learned counsel for the appellant, contends that the order of the learned District Munsiff is vitiated by defects in procedure. He also contended that some of the points which are really to be decided by the court have been put to the delegates and as such, there is an error in law committed by the learned District Munsiff. In this connection, it is useful to refer to the provisions of the Nair Regulation.11/100 and to the rules framed thereunder in order to appreciate the powers of the High Court in respect of the matters coming up in appeal in such matters. S.7(4) provides for an appeal to the High Court at the instance of an aggrieved party from any decision of the District Munsiff relating to dissolution or award or both except when it relates exclusively to costs. The proviso to S.7(4) states that no appeal shall lie against the decision of the District Munsiff to the dissolution of marriage except on the ground of the decision being contrary to some law or usage having the force of law or of some substantial error or defect in the procedure or any investigation of the case which may have produced error or defect in the decision of the case. It will be seen from the proviso that the jurisdiction of the High Court to entertain an appeal is restricted to the grounds stated in the said proviso.

(3.) R.35 of the rules framed under the said Regulation, provides that after the whole evidence on either side has been taken and the parties have been heard, as required by law relating to the procedure of civil courts for the time being in force, the Munsiff shall proceed to charge the delegates summing up the evidence, specifying the points on which their verdict is required and laying down the law by which the delegates are to be guided. R.36 enjoins on the District Munsiff to record accurate notes of such charge to be kept along with the records of the case. R.37 provides that it is the duty of the District Munsiff to decide all questions of law arising in the course of the trial and it also provides for certain incidental matters being decided by the District Munsiff. R.38 provides for the District Munsiff expressing his opinion on any questions of fact or on any question of mixed law and fact in the course of his summing up. R.39 casts the duty on the delegates of deciding on the facts and certain other matters.