SREE KRISHNA CHAITANYA Vs. BHANUMATHI

JUDGEMENT

(1.) THIS is an applicationmade under Article 228 of the Constitution prayingthat O. P. No. 18 of 1950, pending on the file of theSubordinate Judge's Court at Eluru may be withdrawn to this Court and disposed of after determining the question of law involved therein. Thesaid petition was under S. 5 of Madras Act VI of1949, the Madras Hindu (Bigamy prevention andDivorce) Act. The relief claimed was dissolutionof the marriage of the petitioner with the respondent on the ground of the second marriage ofthe respondent. One of the defences raised is thatMadras Act VI of 1949 itself is invalid and inconsistent with the Constitution.

(2.) IN our opinion the case certainly falls under Article 228 of the Constitution and we are satis -fied that the case involves a substantial Question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of this case. This petition is, however, strongly opposed on the ground that even if we were to hold that the Act is inconsistent with the Constitution and therefore void under Art 13 of the Constitution, nevertheless, the petition is sus -tainable because the second marriage which fur -nished the petitioner in the petition with ft right to obtain a divorce took place before the coming into force of the Constitution, and therefore the petition was sustainable. In our opinion, this again involves a substantial question of law as to the interpretation of the Constitution, in particular, Article 13. Reliance was placed by the learned Counsel for the respondent on the recent decision of the Supreme Court of India in 'Keshavan Madhava Menon v. State of Bombay' 1951 1 M. L. J. 370. In that case there were actually proceedings commenced under Section 18(1) of the Indian Press (Emergency Powers) Act, 1931, before the commencement of the Constitution. The question was whether such proceedings could be proceeded with after the Constitution on the ground that the material provisions of that Act were inconsistent with Article 19(1)(a) of the Constitution. Their Lordships by a majority held that the proceedings could be continued. There are observations in the judgment In that case which were relied upon by Counsel for the respondent, but we do not think that their Lordships purported to finally decide the question whether any proceeding could be commenced after the Constitution relying upon the provision in an Act which would be declared by the Court to become void after the coming into force, of the Constitution under Article 13. The following words of Das, J., who delivered the leading judgment appear to suggest that no existing law could be utilised to prevent the exercise of any fundamental right alter the commencement of the Constitution: 'In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights.' In any event we consider that this question also may well be disposed of by this Court.