Arthur J.H. Collins, C.J.
1. This is a revision petition presented by the Rev. Father A. Caussavel, S.J., against the decision of the District Magistrate of Tinnevelly, discharging an accused person, the Rev. L.M. Saurez, under Section 253, Criminal Procedure Code.
2. The accused was charged under the Indian Christian Marriage Act with solemnizing marriages without authority and without publishing or causing to be affixed notices of such marriage, and thereby committing offences under the said Act.
3. It appears to be admitted that the accused did solemnize two marriages between Roman Catholic Christians according to the Roman Catholic ritual at a chapel at Vellapatti, and did not comply with the provisions of Part III of the Indian Christian Marriage Act. The District Magistrate has found that the accused has received episcopal ordination, and that he is a priest of the Syrian Church under the jurisdiction of the Patriarch of Antioch, and he is also satisfied that the accused is authorized by the Patriarch of Antioch to use the ritual of the Roman Catholic Church. The District Magistrate, therefore, held that the accused was not guilty of an offence under Section 73 of the Act, although he had not given the notices as directed by Part III of the Act.
4. The only question that has to be decided in revision is--was the accused bound to publish the notices provided for in Part III of the Act?
5. The Indian Christian Marriage Act of 1872 modified by Act XII of 1891 enacts (Section 5) that marriages may be solemnized in India-
(i) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the church of which he is a minister;
(ii) by any clergyman of the Church of Scotland, provided that such marriage, be solemnized according to the rules, rites, ceremonies, and customs of the Church of Scotland;
(iii) by any minister of religion licensed under this Act to solemnize marriages;
(iv) by, or in presence of, a Marriage Registrar appointed under the Act;
(v) by any person licensed under this Act to grant certificates of marriage between Native Christians.
6. Part II of the Act enacts the time and place at which marriages may be solemnized, with special provisoes relating to clergymen of the Church of England, Rome, and Scotland.
7. Part III relates to marriages solemnized by ministers of religion licensed under this Act and, as I read the sections, does not apply to marriages solemnized by persons who have received episcopal ordination. It enacts inter alia, that one of the persons intending marriage shall give notice in writing according to a certain form to the minister, and that such minister shall cause the notice to be affixed in some conspicuous part of the church, if the marriage is intended to be solemnized in a church, or if the marriage is intended to be solemnized in a private dwelling, the notice shall be forwarded to the Marriage Registrar of the district.
8. Part IV directs registration of marriages solemnized by ministers of religion, and points out how such registration shall be carried out by clergymen of the Church of England, Rome, and Scotland, respectively, and in Section 32 refers to the case of a marriage solemnized by a person who has received episcopal ordination, but who is not a clergyman of the Church of England, Rome, or Scotland.
9. Parts V and VI do not relate to the matter in question.
10. Part VII is headed 'Penalties' and Section 70 provides a penalty, if any minister of religion licensed to solemnize marriages under the Act willfully solemnizes a marriage under Part III of the Act without a notice in writing***and Section 73 enacts that 'whoever being authorized under this Act to solemnize a marriage,
and not being a clergyman of the Church of England solemnizing a marriage after due publication of banns, or under a license from the Anglican Bishop of the Diocese or a Surrogate duly authorized in that behalf,
or, not being a clergyman of the Church of Scotland solemnizing a marriage according to the rules, rites, ceremonies and customs of that church,
or, not being a clergyman of the Church of Rome solemnizing a marriage according to the rites, rules, ceremonies and customs of that church,
knowingly and wilfully issues any certificate for marriage under this Act, or solemnizes any marriage between such persons as aforesaid, without publishing or causing to be affixed, the notice of such marriage as directed in Part III of this Act, or after the expiration of two month's after the certificate has been issued by him:
or knowingly and wilfully issues any certificate for marriage, or solemnizes a marriage between such persons when one of the persons intending marriage is a minor, before the expiration of fourteen days after the receipt of notice of such marriage, or without sending, by the post or otherwise, a copy of such notice to the Marriage Registrar, or, if there be more Marriage Registrars than one, to the senior Marriage Registrar of the district:
or knowingly and wilfully issues any certificate, the issue of which has been forbidden, under this Act, by any person authorized to forbid the issue:
or knowingly and wilfully solemnizes any marriage forbidden by any person authorized to forbid the same, shall be punished with imprisonment for a term which may extend to four years and shall also be liable to fine.
11. It is contended by the counsel for the petitioner, that the accused has brought himself under this section, by neglecting to publish and causing to be affixed the notice of such marriage as directed by Part III of the Act, and consequently is liable to imprisonment for four years and also fine.
12. I cannot assent to this contention. The Act authorizes a person episcopally-ordained to solemnize a marriage according to the rules, rites, ceremonies and customs of the church of which he is a minister. It directs (Section 10) with certain provisions, within what hours such marriages shall be solemnized. It directs (Section 32) that if such person, although episcopally-ordained, is not a clergyman of the Church of England, Rome, or Scotland, how he shall register such marriage. The Act is silent as to notices of marriage being given or published by such a person, and it would be contrary to the ordinary rules of construing a statute to hold, that although no obligation is imposed to publish notices of marriage, yet a penalty is incurred if such notices are not published--the penal section uses the words 'the notice' and not 'a notice' of such marriage as directed in Part III; and holding, as I do, that Part III only applies to ministers of religion licensed under the Act, and not to episcopally-ordained persons, I think the District Magistrate was right in discharging the accused and I would dismiss this revision petition.
Benson, J.
13. I think that the order of the District Magistrate was right, and that it was so for the reasons stated by him.
14. The learned Counsel for the petitioner does not, as I understand, now press the contention that the Rev. Father Saurez is guilty of an offence punishable under Section 68 of the Indian Christian Marriage Act, 1872 (as amended by Act II of 1891). The question, as I understand it, that we have to decide is this: Assuming that Father Saurez has received episcopal ordination in the Grasco-Syrian Church of Malabar, is he liable to a penalty under Section 73 of the Act because he solemnized a marriage between Christians without having published a notice as directed in Part III of the Act? I think the answer to this question must be in the negative. Part I of the Act relates to the persons by whom marriages may be performed and Section 5 enumerates them by classes. In some the right is recognized independently of appointment under the Act; in others the right is recognized as a consequence of licence, or appointment, under the Act. Under the former head are the first two classes in Section 5, viz.-
(i) Any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the church of which he is a minister--'under this class would fall ordained clergymen of the English, Irish, Roman or Syrian Churches;
(ii) any clergyman of the Church of Scotland, provided, etc.,' as before; under the second head fall the remaining three classes, viz.;
(iii) any minister of religion licensed under this Act to solemnizemarriages;
(iv) a Marriage Registrar appointed under this Act,' or any person in his presence (Section 38);
(v) any person licensed under this Act to grant certificates of marriage between Native Christians.
15. Sections then follow authorizing Government to license or appoint persons of these last three classes.
16. Parts III to VI then deal with the three classes licensed or appointed under the Act.
17. Part III deals with class 3, viz., ministers of religion licensed under the Act.
18. Parts IV and V deal with marriages by, or in the presence of, Registrars, and Part VI deals with the marriages of Native Christians.
19. The Act prescribes (Sections 12 and 38) that when a marriage is intended to be solemnized by a minister of religion licensed under the Act, or by a Marriage Registrar appointed under the Act, due notice must be given and must be published in a formal manner, but there is no similar obligation imposed, when the marriage is intended to be solemnized by a person who has received episcopal ordination, or by a minister of the Church of Scotland. Section 5 merely says that such person must solemnize the marriage 'according to the rules, rites, ceremonies and customs' of the church to which he belongs. Part VII prescribes penalties in connection with the Act. Penalties are prescribed for solemnizing a marriage without being authorized to do so by the Act, and for solemnizing marriages at other than the hours prescribed, or in the absence of witnesses. Penalties are also prescribed if a minister of religion, licensed under the Act, solemnizes a marriage without having received a notice, and if a Marriage Registrar commits certain offences against the Act; and then follows Section 73 which enacts that 'whoever being authorized under this Act to solemnize a marriage, and not being a clergyman of the Church of England* * * * or of Scotland * * * * or of Rome * * * * solemnizes any marriage * * * * without publishing or causing to be affixed, the notice of such marriage as directed in Part III of this Act' * * * * shall be liable, etc. It is urged for the prosecution that Father Saurez is liable under this section, inasmuch as he has solemnized a marriage without notice, and is not one of the persons excepted. I do not think that this is so. As already observed, the Act nowhere imposes on a person who has received episcopal ordination the duty of receiving, or of publishing a notice of an intended marriage, though this duty is expressly imposed on ministers of religion licensed under the Act, and on Marriage Registrars appointed under the Act. The imposition of a penalty is correlative to the imposition of a duty, and if no obligation exists there can be no penalty for its breach. But it is argued that the section itself, by prescribing the penalty, impliedly imposes the obligation. In order that the section should be so construed its terms should be such as to convey the intention in a clear and unambiguous manner, but it cannot be said that this is so in the present case. The words 'as directed in Part III' refer, on their face, to Part III, but that part deals only with the procedure to be adopted by 'ministers of religion licensed under the Act.' There is no ground whatever for supposing that Section 13 refers to a larger class than Section 12, for it expressly refers back to that section by the employment of the word 'such notice,' i.e., the notices which under Section 12 must be given by the candidate for marriage to the minister of religion licensed under the Act. If the words in Section 73 had been 'a notice of such marriage as directed in Part III' there might be some ground for contending that the words 'as directed in Part III' merely mean 'in accordance with a procedure similar to that directed in Part III,' but the use of the word 'the' before 'notice' precludes this construction, and refers us back to the notice prescribed in Section 12, that is, the notice which the candidate for marriage presents to the minister of religion licensed under the Act. It was suggested that the words of Section 73 could not refer to the latter class of minister, because a penalty was previously imposed by Section 70 on such a minister solemnizing a marriage without notice. I observe, however, that Section 70 provides a penalty for solemnizing a marriage 'without notice' that is, without having received a notice, as required by Section 12, whereas Section 73 provides a penalty for solemnizing a marriage without publishing the notice. Thus Section 73 finds an appropriate subject and application in the minister of religion licensed under the Act, and is, in fact, necessary as a supplement to Section 70 in order to provide a complete sanction for the obligations imposed by Part III on such ministers. It may be also observed that the words 'See Sections 12 and 38' after, the heading in Schedule I, which contains the form of notice under Part III, point to the fact that it was intended to apply to those sections only. Had it been intended to apply to Section 73 also, I would have expected a reference to be made to that Section, as well as to Sections 12 and 38. In my opinion, then, Section 73 does not require that a person who has received episcopal ordination (and who is not one of the classes specially excepted by that section) should publish a notice of any marriage which he intends to solemnize. Section 73 is a highly penal section, and must be construed strictly, and in favour of the liberty of the subject. If it is asked why an exception is made in favour of such persons, it may, perhaps, be suggested that the Legislature regarded the control which is exercised, or which is supposed to be exercised, by the Bishops in such churches as a sufficient safeguard. Under Section 5 such a person is allowed to solemnize a marriage only provided he does so ' according to the rules, rites, ceremonies and customs of the church of which he is a minister.' Under Section 10 he can solemnize a marriage only during certain hours, and under Section 32 he is bound to register the marriage in a prescribed manner. In the present case Father Saurez alleges that he has registered the marriage. It is admitted that he used the Boman ritual, but he says that he had the permission of his Bishop to do so. There is nothing to show that a marriage solemnized with this ritual under sanction of a Bishop of the Syrian Church is not solemnized according to the 'rules, rites, ceremonies and customs' of the Syrian Church of which Father Saurez is an ordained minister. Father Saurez apparently had the approval of his own ecclesiastical superiors. The prosecution was instituted by a priest of a rival church. In my opinion the District Magistrate was justified in refusing to proceed with the prosecution. I would dismiss the petition.