The Judgment of the Court was delivered by

Raman Nayar, C.J:— This case has come up before us because the division bench that heard it in the first instance thought that the decision of a full bench of this Court in Vasappan… v. Sarada…Opponent., 1957 Ker LT 977 : (AIR 1958 Ker 39 (FB)) and that of a division bench in Raghavan Indira v. Kesavan Gopinathan, 1968 Ker LT 528 required reconsideration in the light of the decision of a single judge in Vijayamma v. Gangadharan, 1967 Ker LT 115. But, with great respect, I have no doubt whatsoever that 1957 Ker LT 977 : (AIR 1958 Ker 39) (FB) and 1968 Ker LT 528 which held that legal proceedings for the dissolution of a Hindu marriage under a special enactment could be taken in the forum named in that enactment, notwithstanding the passing of the Hindu Marriage Act, were rightly decided, and, with equally great respect I think that 1967 Ker LT 115 which held that in view of Section 19 read with Section 4 of the Hindu Marriage Act such proceedings could be taken only in the District Court, the saving in sub-section (2) of S. 29 applying only to the substantive right to a dissolution, was wrongly decided. Indeed 1968 Ker LT 528 expressly states so.

2. What sub-section (2) of Section 29 of the Hindu Marriage Act expressly saves from the provisions of that Act, including the overriding provision in Section 4, is “any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act”. It is important to note that what is saved is the right to obtain the dissolution (the emphasis is mine) — not the right of dissolution or the grounds for dissolution, and, having regard to the plain language of the statute, as to its purpose, the right saved includes everything necessary, call it substantive, remedial or procedural, to obtain the dissolution. The right prosecuted in this particular case is the right in the Travancore Nayar Act, Sections 4 and 5 by which a marriage may be dissolved by a formal order of dissolution obtained on a petition presented by either spouse in the court of the Munsiff having jurisdiction — the dissolution can be on one or the other of the grounds specified in Section 5. It seems to me abundantly clear that this right to obtain a dissolution on a petition presented in the court of the Munsiff having jurisdiction, on the grounds specified in Section 5, remains unaffected by any of the provisions of the Hindu Marriage Act by reason of the saving in sub-section (2) of S. 29 of that Act, and that the principal contention of the appellant husband in this appeal brought under Section 7 of the Travancore Nayar Act against an order of dissolution made by a Munsiff, namely, that the Munsiff had no jurisdiction to entertain the proceeding, must fail. In this view, I think it unnecessary to embark on a consideration of the question whether the specification of a particular forum confers a substantive or a procedural or a remedial right. As I have already observed, all manner of rights, call them substantive, procedural, remedial, or what you will, — the word “right” is wide enough to take in all of them — are comprehended by the saving so long as they relate to the obtaining of the dissolution. As I have already indicated, to place the other construction on the saving in sub-section (2) of Section 29 of the Hindu Marriage Act, a construction which in my view is an unwarranted restriction on the plain language of that provision, a restriction to the effect that the word “right” is there used only in the sense of the substantive right to a dissolution, would be to defeat the very purpose of the sub-section. The sub-section is only a saving of certain provisions of certain enactments other than the Hindu Marriage Act, and by no stretch of imagination can it be said that its effect is to incorporate the saved provisions in the Hindu Marriage Act. That being so, if the word, “right” in the sub-section is to be read as meaning substantive right, the person for whose benefit the right is saved would be left without a remedy. If Section 5 of the Travancore Nayar Act which confers the right to present a petition for dissolution in the Court of the Munsiff is not saved, then there would be no means by which the person for whose benefit Parliament has gone to all the trouble of enacting the saving could enforce his right. He cannot present his petition for dissolution to the District Court, the forum specified in Section 19 of the Hindu Marriage Act, since that section confers jurisdiction on the District Court only in respect of petitions under that Act and as I have already said, by no stretch of imagination can it be said that a petition for dissolution under the provisions of the Travancore Nayar Act is a petition under the Hindu Marriage Act.

3. It is said that sub-section (3) of Section 29 of the Hindu Marriage Act which provides for the continuance and determination of certain classes of pending proceedings, including proceedings for dissolution of marriage, as if that Act had not been passed, implies that, after the passing of that Act, proceedings for dissolution can be instituted, and proceedings so instituted determined, only under the provisions of that Act — something that would make sub-sec. (2) of the section nugatory. It is added that, at any rate, sub-section (3) implies that the saving in sub-section (2) does not extend to legal proceedings for dissolution; else there were no need to include pending proceedings for dissolution within the scope of the saving in sub-section (3). Assuming that to be so, I do not know what compulsion there can be to forsake the plain meaning of one provision of a statute for the implication of another; and that, mind you, not for furthering but for defeating the purpose of the provision. But, in fact, I do not think that sub-section (3) carries any such implication. It only plays in relation to the overriding provision in Section 4 the rule played by Section 6 of the General Clauses Act in relation to a repeal in so far as certain kinds of proceedings pending at the commencement of the Act are concerned, and saves such a proceeding from the overriding effect Section 4 might have over the law under which the proceeding was brought. Such a proceeding can be continued and determined under the law under which it was brought as if the Hindu Marriage Act had not been passed — Section 6 of the General Clauses Act it will be remembered does not in terms apply to an overridden enactment. It might be that to some extent pending proceedings for dissolution come within the saving in both sub-section (2) and sub-section (3), but this overlapping cannot mean that the saving in sub-section (2) does not apply to the right to take legal proceedings for obtaining a dissolution.

4. The only other matter for decision is the plea of res judicata taken by the appellant husband. As we have seen, this appeal is against an order of dissolution made by a Munsiff on a petition presented by the wife under Section 5 of the Travancore Nayar Act. Before that, the husband had obtained a decree for restitution of conjugal rights on a petition presented to the District Court under sub-section (1) of S. 9 of the Hindu Marriage Act. Sub-section (2) of that section lays down that,

“Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.”

5. It is said on behalf of the husband that the decree for restitution passed by the District Court is res judicata with regard to the grounds urged by the wife before the Munsiff's Court in support of petition for dissolution. That cannot be so. For, the grounds on which the Munsiff has granted the order of dissolution are habitual cruelty and incompatibility of temperament. Even if you assume that the habitual cruelty of Section 5 of the Travancore Nayar Act has the same content as the cruelty of Cl. (b) of sub-section (1) of Section 10 of the Hindu Marriage Act, incompatibility of temperament is not a ground under the provisions of the Hindu Marriage Act either for judicial separation or for nullity of marriage or for divorce. Therefore, the decree for restoration of conjugal rights passed by the District Court involves no decision on the question of incompatibility of temperament, a matter which was not and could not have been in issue before that court. There is also the circumstance, that, for the purposes of a petition under Section 5 of the Travancore Nayar Act, the Munsiff's Court is a court of exclusive jurisdiction; the District Court has no jurisdiction whatsoever. That being so, I do not think that the decision of the District Court can be res judicata in a matter where the Munsiff's Court has exclusive jurisdiction and the District Court has none, although, ordinarily, the latter is no doubt a superior court. I see no substance whatsoever in the plea of res judicata.

6. Having regard to the very limited scope of an appeal under Section 7(4) of the Travancore Nayar Act, the appellant has, very properly raised no other contention.

7. I dismiss the appeal with costs.

8. Govindan Nair, J.:— I agree.

9. Mathew, J.:— A Division Bench, doubting the correctness of the decision of the Full Bench in 1957 Ker LT 977 : (AIR 1958 Ker 39 (FB)) and the Bench decision following it in 1968 Ker LT 528 has referred the appeal for decision to a Full Bench, and that is how the matter has come up before us.

10. These decisions hold that even after the coming into force of the Hindu Marriage Act, 1955, (hereinafter called the Act), the forum for filing an application for dissolution of a Hindu Marriage on the grounds mentioned in the Travancore Nayar Act, 1100 (for short, the Nayar Act) is the Munsiff's Court. The correctness of these decisions depends upon the answer to the question whether the words “any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage” occurring in Section 29(2) of the Act would take in the forum provided by the Nayar Act for filing an application for dissolution of a Hindu marriage.

11. It is not disputed that the provisions in the Nayar Act relating to the dissolution of marriage ceased to have effect by virtue of Section 4(b) of the Act. Section 4(b) reads:

“Save as otherwise expressly provided in this Act,—

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.”

12. But S. 29(2) of the Act says,

“Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.”

13. The appellant contends that Sec. 29(2) has not got the effect of resurrecting all the provisions of the Nayar Act relating to the dissolution of marriage which ceased to have effect by virtue of Section 4(b) of the Act, but only of saving the provision which touches the right to obtain the dissolution of a Hindu marriage under that Act. In other words, the contention is that the words “any right ………… conferred by any special enactment to obtain the dissolution of a Hindu marriage” connote only the substantive right to obtain the dissolution of a Hindu marriage under the Nayar Act, and not the forum in which the right is to be enforced, or the procedure by which it is enforced.

14. The arguments for the appellant might be stated as follows: If it was intended to save by Section 29(2) all the provisions relating to the dissolution of marriage in the Nayar Act or the other special enactments, there was no difficulty for the legislature to have said so specifically. A right to obtain the dissolution of a Hindu marriage under the Nayar Act arises when any one of the grounds mentioned in Section 5 of that Act comes into existence. The right springs from the facts constituting the grounds mentioned in Section 5. Therefore Section 29(2) only saved the grounds mentioned in Section 5 of the Nayar Act as they alone give the right to obtain the dissolution of a Hindu marriage. Proof of any one of those grounds means proof of the right to obtain the dissolution of marriage. There can be no right to obtain the dissolution of a marriage under the Nayar Act dissociated from the grounds mentioned in Section 5. The provisions in the Nayar Act as regards the forum for the dissolution of a marriage and the procedure to be followed for it ceased to have effect by virtue of Section 4(b) of the Act. They were not resurrected by Section 29(2). The right to obtain the dissolution of a marriage, must inhere in a person before he comes to court. In other words, the facts constituting the ground or grounds which give rise to the right to obtain the dissolution must exist before he comes to the court. The court does not create the right to obtain the dissolution of a marriage. The process of adjudication is only for ascertaining whether the person has the right to obtain the dissolution. It is the Nayar Act that has created the right to obtain the dissolution of a Hindu marriage when any one of the grounds mentioned in Section 5 of that Act exists. The function of the Court, as in most other cases, is only declaratory. The court only sets its imprimatur upon the pre-existing legal rights of the parties. A judgment, as Mr. Black points out has in general ‘nothing whatever to do with the means of enforcing the liability which it declares’.

“Its declaratory, determinative, and adjudicatory function is its distinctive characteristic ……………… it is the fact that it constitutes an official, final, binding, and unchallengeable declaration of the rights of the parties, constituting res judicata, which gives it its character in the judicial process.” (See ‘Declaratory Judgments’ by Borchard, page 8).

“When a court decides that A is guilty of fraud, that A owes Rs. 1,000, that A is the owner of disputed property and not B, that A is entitled to a fee simple under a will, that B must specifically perform a contract made with A, that a deed on the record creates a cloud on A's title and shall be cancelled, that A's marriage to B is void — in all these cases the court's judgment performs the function of determining, establishing, fixing and declaring the existence of a legal relation. This is true, whether or not the judgment is followed by a decree ordering the defendant to do something — to pay the judgment, to rescind the contract, to perform the contract, to cancel the deed. That is an independent direction, an implementation, collateral to the main determination that the obligation exists …………… All these judgments perform a declaratory function, whether or not they carry an order of execution, a so-called coercive decree.”

(See ‘Declaratory Judgments’ by Borchard, page 20).

15. Section 29(3) of the Act says:

“Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.”

16. The appellant argues that as the purpose of Section 29(2) is to save only the right to obtain the dissolution of a Hindu marriage as distinguished from the forum in which the right is to be enforced or the procedure to be followed therein, it was necessary to provide for the continuance of the applications for dissolution of marriage pending at the commencement of the Act, and that was why Section 29(3) saved applications for dissolution of marriage also. While Section 29(2) is concerned with saving the right to obtain the dissolution of marriage under the special enactments, Section 29(3) deals not only with pending applications for dissolution of marriage but also with applications for declaration of nullity of marriage, and judicial separation. Assuming that Section 6 of the General Clauses Act would have come into play even if Section 29(3) was not enacted, that would have saved only pending applications for declaration of nullity of marriage and judicial separation, as ex hypothesi by Section 29(2) the entire provisions in the special enactments relating to dissolution of marriage were saved, and that would have been an indication of a different intention within the meaning of Section 6 of the General Clauses Act so far as pending applications for dissolution of marriage are concerned. Even if it be assumed that the entire provisions dealing with dissolution of marriage in the special enactments are saved by Sec. 29(2), the provisions in those enactments relating to declaration of nullity of marriage and judicial separation ceased to have effect by virtue of Section 4(b), and were not restored by Section 29(2), and therefore, if pending applications in respect of those matters have to be continued after the Act, it was necessary to have made a provision in that behalf as it is doubtful whether Section 6 of the General Clauses Act would apply. If Section 29(2) saved the entire provisions of the Nayar Act dealing with dissolution of marriage including the provisions as regards the forum for filing an application for dissolution of marriage and the procedure therefor, why, it is asked, it was necessary to provide for the continuance of pending applications for dissolution of marriage in Section 29(3)? The appellant argues that it was because the right, to obtain the dissolution of marriage alone, as distinguished from the forum and the procedure to be followed therein, that was saved by Section 29(2) that it became necessary to provide in Section 29(3) of the Act for the continuance of the applications for dissolution of marriage pending at the commencement of the Act.

17. In the Bench decision in 1968 Ker LT 528 the Court quoted with approval the following commentary on Section 29(3) in Mulla's Hindu Law.

“Section 30 repeals a number of special enactments under which marriage could be annulled or divorce granted. Proceedings adopted by parties under any of those enactments and pending at the date of commencement of the present Act are expressly saved by this sub-section. Such proceedings may be continued and determined as if this Act had not been passed.”

18. If the effect of Section 29(3) is only to save the applications filed under the enactments repealed by Section 30 and pending at the commencement of the Act, it is difficult to understand why Section 29(3) was not enacted as a proviso to Section 30. In the Full Bench decision of the Bombay High Court in AIR 1958 Bom 116 the Court assumed that Section 6 of the General Clauses Act would save the rights acquired under the Acts repealed by Section 30. If Section 29(3) was intended to save the applications filed under the Acts repealed by Section 30 and pending at the commencement of the Act, it is doubtful whether Section 6 of the General Clauses Act would save the rights acquired under the Acts repealed by Section 30, for Section 29(3) would be an indication of a different intention within the meaning of Section 6. (See the decision of the Supreme Court in The Union Of India v. Madan Gopal Kabra, 25 ITR 58 at p. 69 - (AIR 1954 SC 158 at p. 162)). Or, to put it in other words, if Section 29(3) is intended to save the applications filed under the Acts repealed by Section 30, Section 6 of the General Clauses Act will not be attracted to save the rights acquired under the repealed Acts, as Section 29(3) would be an indication of an intention by the legislature to exclude the operation of Section 6 of the General Clauses Act. Besides, if as assumed in the Full Bench case of the Bombay High Court, Section 6 of the General Clauses Act applies, why should there be a separate provision like Section 29(3) to continue the pending applications under the repealed Acts? Therefore, Sec. 29(3) was intended only to save the applications filed under the provisions of the special enactments which ceased to have effect by virtue of Section 4(b) and pending at the commencement of the Act. And but for the provisions of Section 29(3), at any rate, the applications for declaration of nullity of marriage and judicial separation would have lapsed, when the Act came into force. Now, what is the implication that arises from the inclusion of applications for dissolution of marriage filed under the special enactments and pending at the commencement of the Act in Section 29(3)? If applications for declaration of nullity of marriage or judicial separation cannot be filed under the provisions of any special enactment after the coming into force of the Act for the reason that the provisions in the special enactments dealing with those matters ceased to have effect by virtue of Section 4(b) and were not resurrected by Section 29(2), the conclusion must follow that what was saved by Section 29(2) is only the right or the provision in the Nayar Act touching the right to obtain the dissolution of a marriage on the grounds mentioned in Section 5 of the Nayar Act, and not the provisions as regards the forum or the procedure which ceased to have effect by virtue of Section 4(b); and therefore, no application for dissolution of marriage on the grounds mentioned in Section 5 of the Nayar Act can be filed in the forum prescribed by the Nayar Act after the Act has come into force.

19. Section 13 of the Act provides that any marriage solemnized, whether before or after the commencement of the Act, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the grounds mentioned in the section; and Section 19 prescribes the forum in which such petitions should be filed. The appellant argued that if the grounds for dissolution mentioned in Section 5 of the Nayar Act have been saved, it would follow that a marriage solemnized can be dissolved by a petition under the Act alleging these grounds. When the right to the dissolution of a Hindu marriage on the grounds mentioned in Section 5 of the Nayar Act has been saved, a petition alleging those grounds is a petition contemplated by Section 13 of the Act, and therefore, by Section 19 also. In other words, by saving the right to obtain the dissolution on the grounds mentioned in Section 5 of the Nayar Act, the grounds would become incorporated in the Act for the purpose of preserving the right conferred under the special enactment to obtain the dissolution of marriage.

20. As against these arguments it is contended that the right conferred by the Nayar Act to obtain the dissolution of a Hindu marriage includes not only the right strictly so called, but also the entire provisions in that enactment relating to the dissolution of marriage, including those relating to the forum and the procedure to be followed in the forum. It is argued that the words “any right …… conferred by any special enactment to obtain the dissolution of a Hindu marriage” include within their scope the right to obtain an adjudication by the court designated by the Nayar Act under the procedure prescribed by it, that a right becomes crystallised only when a court makes an adjudication about its existence, and that before that there is only a prophecy.

21. The difficulty, here is to find out the sense of the words “any right …………conferred by any special enactment to obtain the dissolution of a Hindu marriage”, and not to draw the dividing line between substantive right and procedure. That a case should be filed in a particular forum normally appertains to procedure does not admit of much doubt. (See Ram Karan v. Ram Das, AIR 1931 All 635) The word ‘right’ is a coat of many colours. And in the context, does it not mean the right to obtain the dissolution of marriage in the forum and under the procedure for ascertaining the facts and the law as prescribed by the special enactments?

“These are two essential elements of the judicial function. This function has, by no means, as is sometimes assumed, a purely declaratory character.

The judicial decision is clearly constitutive as far as it orders a concrete sanction to be executed against an individual delinquent. But it has a constitutive character also, as far as it ascertains the facts conditioning the sanction. In the world of law, there is no fact ‘in itself’, no ‘absolute’ fact, there are only facts ascertained by a competent organ in a procedure prescribed by law. When attaching to certain facts certain consequences the legal order must also designate an organ that has to ascertain the facts in the concrete case and prescribe the procedure which the organ, in so doing, has to observe. The legal order may authorise this organ to regulate its procedure at its own discretion; but organ and procedure by which the conditioning facts are to be ascertained must be — directly or indirectly — determined by the legal order, to make the latter applicable to social life. It is a typical layman's opinion that there are absolute, immediately evident facts. Only by being first ascertained through a legal procedure are facts brought into the sphere of law or do they, so to speak, come into existence within this sphere. Formulating this in a somewhat paradoxically pointed way, we could say that the competent organ ascertaining the conditioning facts legally ‘creates’ these facts. Therefore, the function of ascertaining facts through a legal procedure has always a specifically constitutive character. If, according to a legal norm, a sanction has to be executed against a murderer, this does not mean that the fact of murder is ‘in itself’ the condition of the sanction. There is no fact ‘in itself’ that A has killed B, there is only my or somebody else's belief or knowledge that A has killed B. A himself may either acquiesce or deny. From the point of view of law, however, all these are no more than private opinions without relevance. Only the establishment by the competent organ has legal relevance.” (See ‘General Theory of Law and State’ by Hans Kelsen, pages 135 and 136).”

22. I have extracted this long passage from the book of this eminent writer to indicate the correct angle from which perhaps the meaning of the words in Section 29(2) should be understood. The significance of Section 29(2) is to be gathered not by taking the words therein and a dictionary, but by looking at the general scheme of the legislation. This is eminently a case where, as Justice Holmes said, ‘the meaning of the words must be felt rather than proved’. (See United States v. Johnson, (1911) 221 US 486).

23. The argument of the appellant drawn from the implication of Section 29(3) is powerful; but it is doubtful whether the Act provides for a petition for dissolution of marriage on the grounds mentioned in Section 5 of the Nayar Act.

24. The question, here, is one relating to procedure; and I see no practical injustice in following the Full Bench decision. Although it is impossible to, lay down any precise rules according to which the power of overruling or reconsidering a decision will be exercised, it is only in plain cases where serious inconvenience or injustice would follow from perpetuating an erroneous construction that the Court will exercise the power. (See the observations of Lord Wright in Admiralty Commissioners v. Valverda (Owners), 1938 AC 173). I am not sure that the construction placed upon Section 29(2) of the Act by the Full Bench decision is erroneous; but I am certain that no injustice or inconvenience would result from following the decision. I agree that the appeal should be dismissed.

25. Appeal dismissed.