B SIVANANDY Vs. P BHAGAVATHYAMMA

JUDGEMENT

(1.) THIS Letters Patent Appeal arises out of the suit O. S. No. 66 of 1956 (Sub Court, nagarcoil) filed by the respondent herein for restitution of conjugal rights. Her suit was decreed by the trial Court as prayed for and the present appellant preferred to this Court A. S. No. 84 of 1958 which was dismissed by Jagadisan, J. The present appeal is by the defeated defendant.

(2.) THE plaintiff's case is that she was married to the defendant in 1944 according to the custom and Hindu Sastras when she was 13 years old and the defendant was 17 years old, that after she attained age her nuptial ceremony was celebrated in the house of the defendant, that she lived with the defendant for sometime thereafter and that subsequently she was sent over to her parent's house. Her further case is that thereafter she has been staying in her parents' house and that despite repeated requests and all efforts on her part to join her husband and live with him, the latter has been, evading to take her back giving all kinds of lame excuses. As all attempts on her part to join her husband proved futile she filed the present suit. 2a. The defendant, the appellant herein, resisted the suit raising all kinds of dishonest and untenable pleas. As will presently appear from the judgment it is plain that the defendant is a thoroughly unscrupulous person and has no regard for truth whatsoever. In his written statement in one breath he totally denied the factum of the marriage itself while at the same time he admitted that a 'form of marriage' was undergone. Obviously enough he also raised a plea that the marriage is invalid on the ground that at the time of the marriage lie was a minor and his guardian, i. e. , his father, had not consented to the marriage. He even went to the extent of casting aspersions upon the chastity and moral conduct of the plaintiff alleging that she was living with one Paradesi Velar. But he did not have the courage to persist in this dishonest plea in the course of the trial and no evidence was let in on this aspect of the matter.

(3.) EVEN though he raised several objections in his written statement regarding the validity of the marriage, in the course of the trial he relied upon the following points only: (1) no marriage whatsoever took place between the parties; (2) the marriage is void under the Travancore Child Marriage Restraint Act, as the defendant was aged 15 at the time of the marriage; (3) the usual ceremonies of the marriage offering a holy fire, kannikadhanam, sapthapathi etc. , were not performed. The learned trial Judge had no hesitation in negativing these frivolous contentions of the defendant. On appeal in addition to the points already urged in the trial Court the defendant raised an objection that after the Hindu Marriage Act of 1955 (hereinafter called the Act) came into force a suit for restitution of conjugal rights was not maintainable, that the plaintiff's only remedy was to file an application for restitution of conjugal rights Under Section 9 of the Act and that in any event the plaintiff was not entitled to this relief on the ground of undue delay in instituting the proceeding within the meaning of Section 23 (1) (d ). The State government had issued a notification dated 29-1-1957, conferring jurisdiction in the Courts of the Subordinate judges to entertain applications and proceedings under the Act in the manner as in the District Courts, Jagadisan, J. took the view that if this objection about the form of the proceeding had been raised by the defendant in the trial Court itself the plaintiff would have taken steps to convert the suit, into an application long before the case was taken up for trial and that the appellant was therefore not entitled to raise this question of jurisdiction at that belated stage. The learned Judge also took the view that the fact that the matter was disposed of in a regular suit and not in the form of an application as prescribed Under Section 9 did not render the decision of the Sub Court a nullity and that it was merely a matter of form. On the facts of this case we agree with the view taken by the learned judge that the decree of the learned Subordinate judge is not a nullity.