THENKU VEERIAH Vs. TAMISETTI NAGIAH

JUDGEMENT

(1.) This appeal raises an important and interesting question of law in regard to the interpretation of Clause 4 of Section 2 of the Hindu Married Womens Right to Separate Residence and Maintenance Act (XIX of 1946) hereinafter referred to as the Act. The section in so far as it is relevant runs as follows : "Notwithstanding any custom or law to the contrary, a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely : X X X X X (4) if he marries again; "This Act was made applicable to Hyderabad State on 7-2-1953.

(2.) The suit out of which this appeal arises was filed by the respondent on 12-4-1951 for restitution of conjugal rights against his wife, the 2nd appellant herein. One of the contentions raised by the wife was that as the husband had married again in 1951 (though prior to the Act being made applicable to Hyderabad State), he was not entitled to maintain the suit. The Dt. Judge of Karimnagar overruled this objection without any discussion in the following sentence : "Ho cannot be deprived of the decree merely because he has married another woman now." The learned Advocate for the appellants contended that Clause (4) of Section 2 was declaratory in nature and had retrospective operation and that the words "marries again" are merely descriptive of the position of the husband as a twice married man and do not exclude a husband who had taken a second wife before the Act came into operation. In support of this view, he relied on the Bench decision of the Madras High Court, in Nagendramnia v. Raniakotayya, AIR 1954 Mad 713, and the decision of the Hyderabad High Court in Varalakshmi v. Viramulu, AIR 1956 Hyd 75. The correctness of the Bench decision in AIR 1954 Mad 713 was canvassed in the Full Bench decision in Palaniswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337. The order of reference was made by Govinda Menon and Krishnaswami Nayudu JJ. The learned Chief Justice who delivered the Full Bench judgment held that the words "if he marries again" mean "if he contracts a marriage after the Act".

(3.) The view taken by Krishnaswami Nayudu J. in Sidda Setty v. Muniamma, AIR 1953 Mad 712 and by the Nagpur and Bombay High Courts in Mt. Sukhri Bai v. Pokhalsingh, AIR 1950 Nag 33 and Laxmibai v. Waman Rao, AIR 1953 Bom 342, was accepted and the decision in Lakshmi Animal v. Narayanaswami, AIR 1950 Mad 321 and AIR 1954 Mad 713, were overruled. The learned Judges of the Hyderabad High Court in AIR 1956 Hyd 75, followed the decisions of the Madras High Court in AIR 1950 Mad 321 and AIR 1954 Mad 713 and the view of Panigrahi C. J. in Anjani Devi v. Krishna Chandra, AlR 1954 Orissa 117 and of the Judicial Commissioner of Vindhya Pradesh in Baijnath Dharamadass v. Hiraman Ram Rasik, AIR 1951 Vindh-Pra 10 in preference to the view expressed by the Nagpur and Bombay High Courts in the cases referred to supra and that of the Allahabad High Court in Ratan Chand v. Mt. Kalawati. (S) AIR 1955 All 364.The learned advocate for the appellants relied upon the Full Bench decision of the Andhra PRADESH High Court in Subbarayudu v. State, (S) AIR 1955 Andhra 87 and contended that the Bench decision of the Madras High Court pronounced before 5-7-1934 is binding on this Court and that we should follow it even though it was subsequently overruled by the Full Bench decision in AIR 1956 Mad 337. In Salmonds Jurisprudence, 10th, Edn, page .189, it is stated as follows : "A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. "So, the effect of the Full Bench decision in AIR 1956 Mad 337 is to deprive the Bench decision in AIR 1954 Mad 713 of all authority as a precedent and to render it null and void. If this view is correct, the Bench decision has no binding force on this Court and the decision of Krishnaswami Nayudu J. pronounced prior to 5-7-1954 and approved by the Full Bench subsequent thereto remains to be considered by this Court. As it is only a decision of a single Judge, it is not binding upon a Bench of this Court. The question will, therefore, have to be considered only on the language of the enactment. As there is considerable divergence of authority on the question and as the question involved is one of considerable importance, we consider it necessary that the whole question may be considered by a Full Bench.