N THANGAPPAN Vs. SUBADRA

JUDGEMENT

(1.) THE petitioner herein filed an application O. P. No. 436 of 1967 under Section 7 of the Madras Marumakattayam Act 1932, herein after referred to as the Madras act, for dissolution of his marriage with the respondent on the ground that the respondent was suffering from chronic disease from her childhood and that it was not possible for the petitioner to have a married life with her. That petition was resisted by the respondent contending that she is not suffering from any disease or illness. She in her turn filed I. A. 4481 of 1968 for permanent alimony at the rate of Rs. 75 per month under Section 10-B introduced in the Madras Act by the kerala Act 26 of 1958, hereinafter referred to as the Kerala Act, and I. A. 4482 of 1968 for Rs. 200 for the expenses of the litigation. In the application for alimony the petitioner contended that an application for alimony under Section 10-B introduced by the Kerala Act will not lie, as the Kerala Act had no application within the Madras State. The main O. P. for dissolution of the marriage as well as the said applications filed by the respondent for permanent alimony and for the cost of the litigation were disposed by a common judgment. The lower court held that under Section 9 of the Madras Act the petitioner is entitled to have an order for dissolution of the marriage as the petition for dissolution has not been withdrawn within six months after the service of the petition on the respondent. On the question whether the respondent is entitled to any permanent alimony, it has held that under S. 110-B introduced in the Madras Act by the Kerala Act she is entitled to the same and fixed the rate of permanent alimony at the rate of Rs. 30 per month. The lower court also ordered a sum of Rs. 50 towards legal expenses of the respondent. This revision is, however, directed only against the order passed by the lower court in I. A. 4481 of 1969 directing the petitioner to pay a permanent alimony at the rate of Rs. 30 p. m. to the respondent. Hence the only question that arises for consideration in this revision is whether the respondent is entitled to invoke the provisions in Section 10-B which have been introduced in the madras Act by the Kerala Legislature.

(2.) ACCORDING to the lower court the amendments introduced by the Kerala Act after the reorganisation of States would apply to all the persons who are governed by or entitled to invoke the original Act. The learned counsel for the petitioner questions the correctness of that view. It is contended by Mr. M. K. Nambiar, learned counsel for the petitioner, that the law applicable to the parties herein is only madras Marumakattayam Act, 1932, as enacted by the Madras Legislature, that the subsequent amendments made by the Kerala Legislature in that Act in its application to certain areas which are now in Kerala State but originally formed part of the composite State of Madras, cannot be made applicable to the residuary state of Madras, that the amendments introduced by the Kerala Legislature will be operative only within the State of Kerala and not in relation to persons residing within the State of Madras and governed by the provisions of Madras Act as passed by the Madras Legislature. It is pointed out that so far as Madras Act is concerned it does not make a provision for any permanent alimony being granted by a court in a proceeding for dissolution of marriage, that the new right created by Section 110-B introduced by the Kerala Act cannot be operative in the Madras state, and that the Madras Act without the said amendment alone will be applicable in that area.

(3.) IT is seen that before the enactment of the Madras Marumakattayam Act, 1932, by the Madras Legislature the personal law of the Hindus who were governed by the Marumakattayam was mostly customary, that it was for the first time that the customary law relating to marriage, guardianship, intestate succession, family management and partition was codified under that Act and that the Act has been made applicable to all Hindus in the then Presidency of Madras who are governed by the Marumakattayam law of inheritance and to all Hindus outside the said presidency governed by the said law in respect of the properties within it. Even after the States Reorganisation Act 1956, the said Madras Act continues in force and applies to all Hindus in the present State of Madras, who are governed by the Marumakattayam law of inheritance, and all Hindus outside that State, governed by that law in respect of properties within the State. Under Sections 119 and 120 of the States Reorganisation Act, the Madras Act which is a law made by the composite State continues to apply to those areas which were originally in the composite State of Madras but subsequently added to the Kerala State, with such modifications and adaptations which the Kerala Legislature might think fit to make. In this case after the Reorganisation Act the Kerala Act introduced Ss. 10-A and 10-B to the Madras Act in its application to the areas within the Kerala State. The kerala Legislature, of course, has the power to legislate in respect of persons and properties within the State of Kerala and continue to be governed by the Madras act even after the States Reorganisation Act. But it has no power to legislate in respect of persons and properties within the State of Madras and governed by the madras Act as passed by the Madras Legislature. Therefore, when the petitioner filed an application under Section 7 of the Madras Act seeking to enforce his rights under the Madras Act in the lower court, the respondent cannot invoke the rights conferred under Section 10-B which have been introduced by the Kerala legislature in respect of (1) Hindus in the State of Kerala who are governed by marumakattayam law of inheritance or (2) Hindus outside that State governed by that law in respect of properties within that State. Section 50 of the Madras Act provides that the provisions of the Act will not affect any rule of Marumakattayam law, custom or usage, except to the extent expressly laid down in that Act. The learned counsel for the petitioner seems to be right in his contention that there being no rule m of Marumakattayam law either by custom or usage recognising a right of the wife to get permanent alimony in the case of dissolution of marriage, the respondent cannot enforce a provision which was not in the Madras Act as passed by the Madras Legislature and assert her rights to get a permanent alimony based on the amended provisions in Section 10-B introduced by the kerala Act.