K. SAROJINI DEVI Vs. A. KRISHNAMOORTHY

JUDGEMENT

(1.) THIS appeal filed under clause 15 of the Letters Patent arose out of proceedings which commenced with the presentation of O.P. No. 254 of 1954 in the City Civil Court. That petition was presented by Krishnamoorthy, the respondent in the appeal before us, under the provisions of the Hindu (Bigamy Prevention and Divorce) Act, Madras Act VI of 1949. The reliefs Krishnamoorthy sought were: (1) dissolution of his marriage with his wife Sarojini Devi, the appellant before us, and (2) the custody of the only child of the marriage, then aged about four. The application was dismissed by the Principal City Civil Judge. Neither of the prayers was granted. Krishnamoorthi appealed (C.M.A. No. 58 of 1956). In disposing of that appeal Ganapatia Pillai, J., upheld the findings of the trial Court and came to the conclusion that, as the wife had been living away from the husband for reasons which could be justified, the dissolution of the marriage asked for by the husband could not be granted. The learned Judge then proceeded to deal with the question of the custody of the child. He directed that the custody of the child should be restored to the father, Krishnamoorthi. It was against that decision that this appeal was preferred by the mother of the child.

(2.) THE question before us is a very limited one, limited only to the question of the custody of the child.

(3.) SUB -Section (3) of Section 5, provides for the dissolution of the marriage should the grounds on which such dissolution was sought be established to the satisfaction of the Court. In this case, the concurrent findings of the Courts were that there was no cause established for the dissolution of the marriage. The question then is, where the Court has refused to dissolve a marriage, has it any jurisdiction to pass any orders for the custody of the children.