ANDAL VAIDYANATHAN Vs. ABDUL ALLAM VAIDYA

JUDGEMENT

(1.) The appellant who is a Hindu non-Brahmin was married under the Special Marriage. Act (Act III of 1872) on the 13 May, 1934, to the respondent who was then a Hindu Brahmin. A daughter was born to the parties some two years later. In the mon May, 1944, the respondent became a Mahomedan and called upon his wife to embrace the Mahomedan faith. She refused to do so and consequently the respondent filed a suit in the City Civil Court for a declaration that the marriage between him and the appellant had become dissolved. The principal Judge of the City Civil Court tried the case and came to the conclusion that the provisions of the Special Marriage Act: did not preclude the operation of the personal law of a Mahomedan and therefore, as the appellant bad refused to embrace her husband's religion, the marriage must be deemed to have been dissolved. The defendant has appealed.

(2.) We have no hesitation in stating that the learned Principal Judge misconstrued the relevant provisions of the Special Marriage Act. When these are understood it is abundantly clear that the marriage between the appellant and the respondent could only be dissolved under the provisions of the Indian Divorce Act, 1869.

(3.) The conditions required by Section 2 of the Special Marriage Act were fulfilled in this case and the.marriage was solemnised before the Registrar in accordance with Section 11 of the Act. Section 17 states that the Indian Divorce Act shall apply to all marriages contracted under the Special Marriage Act and any such marriage may be declared null or dissolved in the manner therein provided and for the causes therein mentioned. The section also provides that it may be declared null on the ground that the marriage contravenes one or more of the conditions prescribed in clauses (1), (2), (3) or (4) of Section 2 of the Special Marriage Act. But beyond this it does not go. As we have already indicated, there was no contravention of Section 2.