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Whether suit for Dissolution of Muslim marriage is maintainable before Civil judge Junior division?


Civil Revn. Petn. No. 474 of 1961

Decided On: 26.10.1962

Syed Shamsuddin


Munira Begum

Hon’ble Judges: P. Satyanarayana Raju, J.

Citation : AIR 1963 AP 459

1.This revision petition raises the question of the effect of the repeal by a repealing enactment. The question has arisen in the following circumstances.

2. The respondent herein instituted a suit in the Court of the III Assistant Judge, City Civil Court, Hyderabad for dissolution of her marriage with the petitioner on the ground of ill-treatment. While denying the averments made by the respondent, the petitioner pleaded that the Court had no jurisdiction to try the suit. The question of jurisdiction was taken up as a preliminary issue. The learned trial Judge negatived the petitioner’s contention and directed the parties to proceed with the trial of the other issues raised in the suit. Against the finding on the preliminary issue, the petitioner has filed this revision petition.

3. For a better appreciation of the question arising for determination, it is necessary to give the history of the material legislative provision. Under Section 5 of the Shariat Act, 1937, it was provided that “The District Judge may, on petition made by a Muslim Married woman, dissolve a marriage on any ground recognised by Muslim Personal Law.” That Section was repealed by Section 6 of Dissolution of Muslim Marriages Act, 1939. Section 6 reads as follows:

“Section 5 of the Muslim Personal Law (Shariat) Application Act, 1937 is hereby repealed.”

By the Repealing and Amending Act, XXV of 1942 the enactments specified in the First Schedule thereto were repealed to the extent mentioned in column 4 thereof. Under Column 4, is mentioned S. No. 6 of Act VIII of 1939.

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4. It is contended by the learned counsel for the petitioner that, by virtue of the last mentioned provisions under which Section 6 of Act VIII of 1939 was repealed, the original Section 5 of the Shariat Act is revived and that consequently only the District Judge is empowered to entertain a suit of the present nature.

5. The question which arises for determination is whether the Section 5 in the Shariat Act is, by reason of the repeal of Section 6 of the Dissolution of Muslim Marriages Act (Act VIII of 1939), revived and again became operative.

6. It is argued that when the legislature repeals a Repealing Act, the law as it existed under the Act repealed is restored. The following passage from Maxwell’s treatise on Interpretation of Statutes at P. 402 is instructive :

“Where an Act is repealed and the repealing enactment is repealed by another which manifests no intention that the original Act shall continue repealed, the common law rule was that the repeal of the Second Act revived the first ab initio and not merely from the passing of the reviving Act. But this rule does not apply to repealing Acts passed since 1850. Where an Act repealing an whole or in part, a former Act, is itself repealed, the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them.”

The above passage was quoted with approval by their Lordships of the Supreme Court in Ameerun-Nissa Begum v. Mahaboob Begum, MANU/SC/0093/1955 : AIR1955SC352 wherein it was observed as follows:

“It may indeed be said that the present rule is the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English Statute, we can still apply the English Common Law Rule if it appears to us to be reasonable and proper. But even according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment manifests an intention to the contrary.” Where, therefore, the legislature expresses no intention that the original statute be reinstated, the fact that the repealing provision is itself repealed, would not have the effect of restoring the original provision to the Statute book. Naturally, therefore, the question for inquiry is whether the Repealing and Amending Act. XXV of 1942 contains any provision for the revival of the original provision, namely, Section 5 of the Shariat Act. On a reading of the Repealing and Amending Act of 1942, however, it is clear that there is no such provision. On the other hand, there is a provision which provides that the repeal of the repealing Act shall not restore the old provision. Under Section 4 of Act XXV of 1942, it is provided as follows:

“……. nor shall the repeal by this. Act of any enactment revive or restore any jurisdiction, office, custom liability, right title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.”

On the date of the Repealing Act, admittedly, Section 5 of the Shariat Act was not in existence or in force and, therefore, the repeal of Section 6 of Act VIII of 1939 cannot revive or restore the original provision. Even in the absence of the saving provision in Act XXV of 1942, the same result would follow by reason of Section 7 of the General Clauses Act, 1897. That Section reads as follows:

“(1) In any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially re: pealed, expressly to state that purpose.

(2) This Section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887”.

The Shariat Act was passed in the year 1937 and, therefore, the provisions of Section 7 of the General Clauses Act do apply to the said enactment. If so, the position is that as there is no specific provision reviving Section 5 of the Shariat Act, the repeal of Section 6 of Act VIII of 1939 by Act XXV of 1942, has not the effect of reviving the original provision.

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7. The lower Court was therefore right in holding that Section 5 of the Shariat Act, which vested jurisdiction in the District Courts with regard to the dissolution of Muslim marriages, has not been revived. It follows, that the lower Court had jurisdiction to entertain the suit and the contention of the learned counsel for the petitioner to the contrary cannot be sustained.

8 This revision petition is, therefore, dismissed with costs of the respondent. The lower Court will now dispose of the suit on the other issues.

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