SHYLAJA Vs. JAYAMOHANATHILAKAN
HIGH COURT OF KERALA
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(1.) A very short question is raised for determination in this Civil Revision Petition by a Hindu wife governed by the Madras Marumakkathayam Act who married the respondent on 26 4 1970 at Guruvayoor situate in what was originally known as South Malabar and the husband was admittedly governed by the Cochin Makkathayam Thiyya Act, XVII of 1115, for short, the Act. The respondent filed an application under S.14 of the Act for divorce. It was objected to by the revision petitioner on the ground that the Act will not apply to her and the application was not maintainable. Though the points urged before us in detail were not taken in the objection in that the arguments as such were not mentioned therein, the objection was taken that the revision petitioner was not governed by the Act. Counsel for the petitioner elaborated it by inviting our attention to the preamble to the Act as well as to S.2 thereof. From the preamble it is clear that the Act will apply only to Makkathayam Thiyyas. S.2 speaks of "all Thiyyas domiciled in Cochin except the Chittur Taluk who follow Makkathayam and to such Thiyyas, whether so domiciled or not, as have or shall have marital relations with them". "With them "must refer to Thiyyas domiciled in Cochin except the Chittur Taluk who follow Makkathayam. There can be no doubt about it. But it is contended that the expression "such Thiyyas" need not take its colour or form or content from what is stated above those words in the section, and so they need not be Thiyyas who are Makkathayees. It is said, they can be Thiyyas who are Makkathayees or Marumakkathayees or for that matter, Thiyyas who follow any type of law. "Such" is used in the section only for the purpose of completing the expression 'such as' ordinarily used in the English language and is intended in the section Only to link up all Thiyyas who have marital relations with Thiyyas who are Makkathayees. The argument is attractive but is unacceptable when the section is carefully read. If 'such' in the section is given an insignificant role, it appears that the words "whether so domiciled or not" would become redundant and unnecessary, for the acceptance of the argument would mean that all types of Thiyyas, whether Makkathayees or not and whether domiciled or not in Cochin would come within the expression. We should never understand a section in a statute as containing superfluous and unnecessary words nor can we read a section in a manner that would mean that the legislature has repeated in saying the same thing. Every word in the section must be given due effect. So read 'such Thipyas' must mean such Thiyyas as were referred to earlier in the section (Thiyyas domiciled in Cochin except the Chittur Taluk who follow Makkathayam). But the qualification introduced after the words 'such Thiyyas' (whether domiciled or not) would enlarge the scope of the restriction (Thiyyas domiciled in Cochin except the Chittur Taluk who follow Makkathayam) by adding those who are not domiciled in Cochin. This interpretation is in accordance with the preamble too.
(2.) A reading of the section and the preamble is sufficient to negative the contention that has been urged before us on behalf of the respondent, by his counsel. But perhaps it would not be out of place to refer to the wording of S.2 of the Cochin Thiyya Act, VIII of 1107. That section is in these terms:
"It shall apply to all Thiyyas domiciled in Cochin other than those who follow Makkathayam, and to such Thiyyas or others, whether so domiciled or not, as have or shall have marital relation with them."
Here also the expression 'such as' is used but the legislature has chosen to add the words 'or others', which again would have been unnecessary, if the argument of counsel for the respondent is to be accepted.
We may also refer to the wider expression used in S.1(2)(c) of the Madras Marumakkathayam Act, 1932. That section says that that Act shall apply to all Hindu males whether governed by the said law or not, who have contracted or may contract marital alliances with Hindu females governed by the said law. If the intention of those who passed the Act was to include all Thiyyas whether Makkathayees or not, clear expression similar to that employed in S.1(2)(c) of the Madras Marumakkathayam Act, 1932 would have been employed.
(3.) We think counsel for the petitioner is well founded in his contention that the Act does not apply to the revision petitioner. The petition for divorce moved by the counter petitioner before the Trichur Munsiff's Court under S.14 of the Act is not maintainable. We therefore set aside the order under revision and dismiss O. P. No. 143 of 1972 filed by the counter petitioner before the Munsiff's Court, Trichur. We direct the parties to bear their respective costs thought.;
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