GOPALAKRISHNAN NAIR Vs. R SARASAMMA

JUDGEMENT

(1.) A question of some importance arises for decision in this case. It concerns the consequence of the repeal by S.7 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 of the Acts mentioned in the Schedule. One of the Acts so repealed is the Travancore Nair Act 2 of 1100. That Act provides among other things, for dissolution of a marriage solemnised under the Act. It specifies grounds for dissolution of marriage and also prescribes the procedure by which the right to seek dissolution is to be exercised. The court to which proceedings would lie is also specified. The Hindu Marriage Act 1955 provides in S.13, for dissolution of Hindu marriages. The grounds for dissolution are specified in this Act and the procedure for seeking dissolution is also specified in the Act. The grounds for dissolution under the Hindu Marriage Act are not identical with the grounds for divorce in the Nair Act 1100.

(2.) Notwithstanding the commencement of the Hindu Marriage Act 1955 the provisions of the Nair Act 1100 for dissolution of marriage continued to be operative. Now that the Nair Act 1100 has been repealed by Act 30 of 1976 and the repealing Act does not embody any saving provision, the question that arises is whether proceedings pending before courts on the date of such repeal would be saved and the cases could be disposed of as if the Nair Act continued to be in force. The court below before which a petition under S.5 of the Nair Act for divorce was pending has upheld the preliminary objection raised by the respondent that by the passing of the Kerala Joint. Hindu Family System (Abolition) Act 1975 the Nair Act 111 has ceased to be operative and in the absence of any provision to keep alive the proceedings pending at the time of repeal such proceedings must terminate. Accordingly the petition has been dismissed and this appeal is against that order.

(3.) The view taken by the court below is supported by a judgment of our learned brother Vadakkel J. in Madhavan Nair v. Radhamoni, (1979 KLT 61). The learned Judge has referred to an unreported decision of one of us, Janaki Amma J. in CRP. No. 1629 of 1976. The correctness of the decision of our learned Brother Vadakkel J. has been canvassed in this appeal.