| SooperKanoon Citation | sooperkanoon.com/774148 |
| Subject | Family;Civil |
| Court | Chennai High Court |
| Decided On | Aug-22-1994 |
| Case Number | M.C. No. 30 of 1991 |
| Judge | Srinivasan,; Raju and; A.R. Lakshmanan, JJ. |
| Reported in | AIR1995Mad35; II(1995)DMC562 |
| Acts | Christian Marriage Act, 1872 - Sections 4, 5, 45 to 49 and 66 to 76; Divorce Act, 1869 - Sections 7, 10, 18, 19 and 20 |
| Appellant | Mariasoosai |
| Respondent | Clara Mary |
| Appellant Advocate | Miss V. Uma, amicus Curiae |
| Respondent Advocate | B. Kalyanasundaram, amicus curiae |
| Cases Referred | Sumathi Ammal v. Paul |
Srinivasan, J.
1. This case raises an interesting question of law. The original petition is one filed under S. 4 of the Indian Christian Marriage Act, 1872 by the husband for a decree declaring that the alleged marriage between him and the respondent is null and void and consequently, the respondent is not his legally wedded wife. In the petition, it is stated that he was having intimacy with the respondent for a few months and in order to compel him to marry her, the respondent's parents and relatives, with the help of the police, by force got executed a deed of marriage on paper bearing Rs. 2.50 stamp on the 27th October, 1988 and got it registered in the Office of the Sub-Registrar, Andimadam. According to the provisions of the Indian Christian Marriage Act, 1872, a Christian marriage can be solemnized only in any of the modes prescribed in S. 5 of the said Act. No formality or ceremony was gone through and only an agreement was executed as stated earlier and that too, under compulsion. The registration of the document would not amount to registration of the marriage and therefore, the marriage is null and void.
2. The respondent remained ex parte and the petitioner gave evidence in support of the allegations made in the petition. He has marked the agreement as Exhibit A-1. A perusal of Exhibit A-1 shows that there was no marriage in accordance with the provisions of the Indian Christian Marriage Act. The agreement by itself cannot bring about a valid marriage.
3. The District Judge has accepted the evidence adduced by the petitioner and held that the petitioner was entitled to the relief prayed for by him. But instead of passing a decree for declaring the marriage to be void, the District Judge ordered that the marriage said to have been performed between the petitioner and the respondent was dissolved. It was also added by the District Judge that the decree is subject to confirmation by this Court under S. 20 of the Indian Divorce Act.
4. Both the petitioner and the respondent have not chosen to engage counsel in this proceeding which has come on a reference from the District Court. Hence the Court appointed amicus curiae for the petitioner as well as the respondent. The amicus curiae, who is representing the petitioner, submitted that the petition for declaration that the marriage is void is not maintainable as there is no provision in the Indian Christian Marriage Act enabling a party to file any proceeding before the Court for such a relief. On the other hand, the amicus curiae representing the respondent submitted that the petition was not maintainable in the District Court and the only remedy of the petitioner was to have filed proceedings in this Court. According to him, the High Court has jurisdiction to declare the marriage to be void. He places reliance on the judgment of the Allahabad High Court in Alfred Robert Jones v. Mt. Titli, AIR 1933 Allahabad 122 : : AIR1933All122 . The learned Judge of that Court referred to the judgments of the Calcutta High Court in Gasper v. Gonsavas,1874 13 Beng LR 109 and Lopez v. Lopez, 1886 ILR 12 Cal 706 FB as well as the judgment of the Lower Burma Chief Court in Consterdine v. Smaine, AIR 1918 LB 83 : 47 IC 544 and proceeded to hold that the High Court had jurisdiction to decide very important questions which may arise out of Christian Marriage Act. He said that the various grounds on which the Court can give a decree of nullity in the Divorce Act refer to cases where there has been a marriage validly performed and when questions arise under Ss. 4 and 5 of the Christian Marriage Act the marriage has not been validly performed. He observed that there is a clear distinction between a decree of nullity of a valid marriage and a declaration that the marriage itself is illegal and void and there can be no doubt that there is jurisdiction in the High Court to hear and decide questions under the Christian Marriage Act. But that judgment was reversed on appeal by a Division Bench in Mt. Titli v. Alfred Robert Jones : AIR1934All273 .
5. We have gone through the provisions of the Indian Christian Marriage Act, 1872. Section 4 of the said Act reads that every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. Under S.5, marriages may be solemnized in India by the persons mentioned in that section. There is no provision whatever in the Act enabling any party to approach any Court for any relief in connection with any marriage. The only provisions relating to any proceeding under the Act are found in Ss. 45 to 49 and 66 to 76. While Ss. 45 to 49 relate to petitions where a person whose consent is necessary is insane or unjustly withholds consent, or where the Marriage Registrar refuses to issue a certificate or where the Registrar doubts the authority of person forbidding the issue of the certificate and with regard to the liability for frivolous protest against issue of certificate, Ss. 66 to 76 deal with penalties if a marriage is solemnized in contravention of Ss. 4 and 5. The persons who are responsible for such solemnization are liable to penalty under those sections. There is no other provision in the Act enabling any party to apply for divorce or judicial separation or restitution of conjugal rights.
6. Even before the enactment of the Indian Christian Marriage Act, 1872, the Indian Divorce Act, was passed in 1869. That Act was passed to amend the law relating 10 divorce and matrimonial causes. It applied to all persons who profess the Christian religion and it conferred jurisdiction upon certain Courts for matrimonial matters. Section 4 of the said Act provides that the jurisdiction then exercised by the High Courts in respect of divorce a mensa et toro and all other causes, suits and matters of matrimonial, shall be exercised by such courts and by the District Courts subject to the provisions of the Act and not otherwise. It is further stated that except so far as relates to the granting of marriage licence it may be granted as if the Act had not been passed. Thus under S. 4 the jurisdiction of the High Courts was preserved but it was made subject to the provisions of the Act. Section 7 of the said Act reads, 'subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said courts are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. Provided that nothing in this section shall deprive the said courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of occurrence, of the facts on which the claim to relief is founded'. The aforesaid proviso was introduced in the year 1912 by Act 10 of 1912. Section 10 relates to dissolution of marriage on certain grounds specified therein. Section 18 provides for the filing of a petition in the District Court or the High Court for declaring a marriage to be null and void but Sec. 19 specifies the grounds on which such declaration can be sought if any marriage is sought to be declared as null and void under the provisions of the Indian Divorce Act, the grounds set out in Sec. 19 must be satisfied. Sections 17 and 20 of the Act provide for confirmation of a decree for dissolution and decree declaring nullity of marriage respectively.
7. There is no express provision In the Indian Divorce Act enabling a party to get a marriage declared to be void because it has not been solemnized in accordance with the provisions of S. 5 of the Indian Christian Marriage Act, 1872. As there is no express provision in the Divorce Act with reference to such marriages, which are declared by the legislature itself to be void under S. 4 of the Indian Christian Marriage Act, the Court has to resort to the provisions of S. 7 of the Indian Divorce Act. It is only to enable the Court to grant relief in such cases, S. 7 of the Indian Divorce Act has been enacted.
8. Dealing with the scope of S. 7 of the Indian Divorce Act, Chief Justice Chagla, being a member of the Division Bench of the Bombay High Court stated in Ramesh Ramanlal v. Kusum Madgaokar AIR 1949 Bom 1, that the object of enacting the section was to make the Indian divorce law flexible and not static, and the intention was that the law here should develop along side with the English law. The learned Judge further said (at pp. 2-3 of AIR),
'It may seem surprising that it should be left to the Legislature of another country to mould and modify the law of this country. It was surprising enough when India was a Dependency in the Empire. It seems to be even more surprising today that such a provision should find place in the Divorce Act of this country when India has now become a fullfledged Dominion as sovereign as Eng-land herself. In my opinion S. 7 lays down this rule of law that the Court must consider every time it proceeds to act or give relief what is the relevant English law on the subject, and unless it finds that the jurisdiction of the Court to grant the same relief or act in the same manner is expressly negatived by any provision of the Act, it must do so. There must be either a clear negativing of the jurisdiction of the Court or there must be express and unequivocal terms in which the Legislature must have prevented and prohibited the Courts here from acting in the manner in which the English Courts would act or giving the same relief that the English Courts would give on the same facts and on the same materials'
9. A Full Bench of this Court considered the provisions of S. 7 of the Indian Divorce Act, 1869 in Sumathi Ammal v. D. Paul : AIR1936Mad324 :
'It seems to me clear that the intention of S. 7 of Divorce Act, was to prevent the principles and rules on which the Indian Courts were to give relief from being rigidly fixed and that, as has been stated by my learned brother Stone, J., the 'principles and rules' must include principles of law. The decision of the Privy Council in (Iswarayya v. Iswarayya), supports this view. I observe that in ILR 47 Bom 843 : (AIR 1923 Bom 321),this is the view of Martin, J.; S. 7 is an unusual provision in a statute and requires careful examination. It is to be operated 'subject to the provisions contained in the Act' and the meaning of those words has often been discussed. One meaning must be beyond doubt, and that is that the Court cannot give any relief which is contrary to the provisions in the Act'.
10. The position in law was considered indetail in the background of the history of the law by a Full Bench in George Swamidoss Joseph v. Mrs. Harriet Joseph, : AIR1955Mad341 . Govinda Menon, J., said that even if Indian Divorce Act is silent on a particular topic or subject then the Courts in India shall give relief on principles and rules prevalent in England for the time being. The learned Judge pointed out that the Indian Act was founded mainly, if not solely, upon the English Act and one does not feel that it is incongruous to keep pace with the changes that are made from time to time in the parent law. It is worthwhile to refer to the relevant passage in the judgment of Mack, J. which reads thus (para 12 of AIR) :
'..... At the time the Indian Divorce Act was enacted in 1869 it followed the lines of the existing English Divorce Act. In fact it would appear that in England decrees for nullity were passed in absolute form straightway until the Matrimonial Causes Act of 1873, obviously intended to rectify a defect on some abuse coming to notice, required a decree of nullity in England also to be in decree nisi form on the same footing as a decree for nisi for dissolution. There has been no corres-ponding statutory amendment to the Indian Divorce Act, which, however, under S. 7, requires High Courts and District Courts, subject to the above provisions of the Indian Divorce Act, to act and give relief on principles and rules which in their opinion are as nearly as may be conformable to the principles and rules on which the Courts for Divorce and Matrimonial Causes in England for the time being act and give relief. Stone and Mockett, JJ. in Ammal v. Paul : AIR1936Mad324 took the view that the Courts in India were under S. 7 bound to follow any change in principles or rules on which the Court for Divorce and Matrimonial Causes in England for the time being acted and gave relief, provided that it involved no contravention of a specific provision of the Indian Divorce Act. There is no specific prohibition against a decree for nullity being in nisi form. It does not appear to us to make any difference whether the modification in rules and principles contemplated in S. 7 of the Indian Divorce Act is effected in England either by judicial decision or by statute or by the evolution of administrative practice and procedure or by rules or orders made such as those referred to for instance in S. 16 of the Indian Divorce Act. As it appears to us, the only criterion is whether such a change in rule or principle contravenes specifically a provision of the Indian Divorce Act or any provision of the Code of Civil Procedure made applicable under S. 45 subject to the provisions of the Act, if it does, the Courts of India cannot apply it. If it does not, as we understand S. 7, which was a legislative provision to make the practice on the matrimonial side obtaining in India, so far as possible, in contemporaneous accord with that prevailing in England, the change in rule or principle has to be applied by the Indian Courts. Section 7 of the Act has been preserved by the Application of Laws Order of 1950 and is still valid law. There is no suggestion that it is in any way ultra vires of the Constitution. Although S. 7 requires in the domain of divorce changing English rules and principles within the scope of the Indian Divorce Act to be adopted by the Indian Courts, we can see nothing in the altered position of India after the attainment of Independence, which renders that mandatory obligation imposed on Courts inoperative, although they do of course require satisfactory evidence placed before them of altered rules and principles which govern the practice of a Court of matrimonial causes in England.'
11. As the section refers to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief; it is necessary to refer to the English law on the subject and at the same time, we must bear in mind that the law in England cannot be imported into the provisions of the Indian Divorce Act, if it is contrary to the provisions of the said Act. In Halsbury's Laws of England, Fourth Edition, at page 258 in paragraph 529, it is stated that no action or other proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby and the High Court may make binding declarations of right whether or not any consequential relief is or could be claimed. In para 531 it is stated that if anyone persistently and falsely alleges marriage with another, a course of conduct known as jactitation of marriage, the latter may obtain in a suit for jactitation of marriage a decree of perpetual silence, and only the person complaining that he has been so misrepresented can present such a petition and it is now rare procedure. It is further stated that a suit for jactitation is the only case in which a matrimonial suit can as of right, be proceeded with without prima facie proof of a marriage de facto, for the object of the suit of jactitation is to prove that no valid marriage subsists between the parties.
12. In Consterdine v. Smaine, 47 IC 544 : (AIR 1918 LB 83), a single Judge of the Lower Burma Chief Court held that S.4 of the Divorce Act does not preclude the Court from considering the provisions of Ss. 4 and 5 of the Christian Marriage Act and declaring a particular marriage void as not having been solemnized in accordance therewith. We have already referred to the ruling of the Division Bench in Mr. Titli v. Alfred Robert Jones : AIR1934All273 . In that case, Mukerji, J. said :--
'This Act does not empower the High Court to declare a marriage null and void on the ground that the ceremonies necessary for a marriage enjoined by the Church have not been performed. The reason is simple and is this Section 4 of the Divorce Act does not allow the High Court to exercise its matrimonial jurisdiction otherwise than under the rules laid down in the Act. The Act nowhere confers on the High Court a jurisdiction to hear a case for a declaration that a certain marriage is void because of non-observance of the essential rites of the Church. A suit based on the ground of non-observance of essential ceremonies must, therefore, be instituted in an ordinary Court of original civil jurisdiction, namely, in the Court of a Munsif or a Subordinate Judge, according to the pecuniary and territorial jurisdiction of such Court.'
13. The question arose directly in Kanku v. Shanabhai Fulabhai, ILR 1967 Guj 1003. The majority opined that the petition for declaring the marriage as nullity on the ground that it contravened Section 4 of the Indian Christian Marriage Act was not maintainable. Justice Miabhoy, who formed the minority, expressed a contrary view. The reasoning adopted by the said learned Judge appears to be sound and proper. While referring to Section 7 of the Indian Divorce Act, the learned Judge said that the expression 'principles and rules' used in the section is not restricted only to the principles and rules enunciated and applied by the Judges in England and it includes the principles and rules enacted by the statute law. The learned Judge also made a reference to the decision of this Court in Sumathi Ammal v. Paul : AIR1936Mad324 . The learned Judge observed:--
'In our judgment having regard to the fact that the principle underlying S. 7 is to confer a wide jurisdiction on the Indian Court in matters matrimonial and specially having regard to the fact that S. 7 is to be found under the heading 'jurisdiction', it would not be proper to interpret the word 'act' narrowly in such a way as to exclude jurisdiction of the Court to grant relief on a ground which comes to be enacted for the first time by law passed by the Indian legislature after the Act was passed.'
14. Turning to Ss. 18 and 19, the learnedJudge said :--
'That brings us to an examination of the question as to whether there is anything in the provisions of the Act, which would exclude the ground of the relief for nullity of marriage on the aforesaid statutory ground. We have already set out Sections 18 and 19 of the Act which appear to be relevant for this purpose. At a previous stage of the judgment, we have examined those sections from a different angle with a view to find out whether those sections contain any ground for the grant of the decree of nullity of marriage on a statutory ground. Now, we have to examine the sections from a different angle with a view to discover whether there is anything in those sections which negatives the jurisdiction of the Court to grant a relief on a ground other than those mentioned in S. 19. Now, in this connection, the two sections must be read together. Section 18 only gives a right to a husband or a wife to present a petition for a decree for nullity of marriage. That section, unlike S. 10, does not embody in it the grounds on which the petition is to be made. The right to make a petition for nullity of marriage is conferred in S. 18 in general terms. The right of the petitioner to make such a petition is not made dependent upon any ground. Therefore, S. 18 does not impose any restrictions on the right of a spouse to present a petition for nullity of marriage. Turning to S. 19, we find that the section deals with the power of the Court to pass a decree for nullity of marriage and it mentions certain specific grounds on which such a decree can be passed. However, it is important to notice that the section is couched in permissive language. The section does not in specific terms prohibit a decree to be passed on any ground other than those mentioned in the section. On the contrary, the second paragraph of that section implies that one ground not mentioned in that section can be a ground for grant of a decree of nullity of marriage by a High Court. As we have already pointed out that the correct interpretation of the expression 'subject to the provisions contained in this Act'' used in S. 7 is that there must be some specific and positive prohibition contained in the Act which prevents a Court from exercising jurisdiction or granting relief and unless there is some such express provision in the Act itself, the English principles and rules are to be applied. In our judgment whatever view one may entertain regarding the provisions contained in S. 10 of the Act, with which we are not concerned, on a consideration of the provisions of Ss. 18 and 19, we cannot come to the conclusion that they contain express provision to the effect that a decree of nullity cannot be granted by the special Court mentioned in the Act on a statutory ground enacted after the Act was passed. Moreover, even if we were to interpret the aforesaid expression as including not merely an express prohibition, but as including an implied prohibition, we do not find anything in the language of Ss. 18 and 19 which can enable us to read therein an implied prohibition to grant relief on a new statutory ground.'
15. Miabhoy, J. referred to the judgment of the Allahabad Bench in Mt. Titli's case, AIR 1934 Allahabad 273 : : AIR1934All273 and expressed his disagreement in the following words :--
'With great respect, we cannot agree with the above reasoning. Whilst we agree with the view that the matrimonial jurisdiction must be exercised in accordance with the provisions of the Act, we cannot agree with the observation that there is nothing in the Act which confers such a jurisdiction to entertain a petition on the above ground. With respect, the learned Judge has not noticed the provisions of S. 7 at all. There is no reference to that section in his judgment. Therefore, we cannot agree with the reasoning given by Mukerji, J. for reaching the conclusion he did. However, Sulaiman, C.J. does refer to S.7, but he disposes off the question in the following way:--
'Section 7 of the Act did not confer any additional jurisdiction, but merely provided what principles and rules were to be followed, when a suit was properly entertained. x x x x x The grounds on which a suit can be entertained under the Divorce Act are indicated in S. 19. The principles and the rules which are to be followed may, under S. 7, be as nearly as may be conformable to the principles and rules on which the Courts in England Act.'
Perhaps, in 1934, when the case was decided, there was no provision in the English law conferring jurisdiction to grant a decree for nullity of marriage on a statutory ground and, therefore, the matter was not discussed in that light. However, we are not in agreement with the observation of the learned Judge that S. 7 does not confer any additional jurisdiction. In our judgment, in so far as S. 7 enacts that action is to be taken on English principles and rules by the Indian Court and not merely in the matter of granting of relief, that section lays down that the Indian Court shall exercise the same jurisdiction which the English Courts enjoy at the time when the question arises.'
With respect, we agree,
16. Once it is held that S. 7 of the Indian Divorce Act enables the Court to declare a marriage to be null and void as it offends the provisions of Ss. 4 and 5 of the Indian Christian Marriage Act, it follows that the original petition is maintainable. On the facts of this case, there is no difficulty in holding that the marriage is void. Hence, the District Judge has jurisdiction to pass, the decree.
17. The District Judge has passed a decree nisi subject to confirmation by this Court. Of course, there is no express provi-sion in the Indian Divorce Act for confirmation of a decree passed otherwise than under S. 10 and S. 18 of the Act. The only provisions as already mentioned are found in Ss. 17 and 20. But as pointed out by the Full Bench in George Swamidoss Joseph's case, : AIR1955Mad341 (supra), the usual procedure in matrimonial causes is to pass a decree nisi subject to confirmation by the High Court. That procedure is not unknown and that is normally followed in English Courts Hence, there is nothing wrong in the District Court passing a decree nisi, subject to confirmation by this Court.
18. As we have found on the merits that the so-called marriage between the petitioner and the respondent is void as it was not solemnized in accordance with the provisions of the Indian Christian Marriage Act, 1872, the decree passed by the District Court is confirmed.
19. Order accordingly.