Jose vs Alice And Anr. on 28 October, 1988

    Jose vs Alice And Anr. on 28/10/1988

JUDGMENT

   P.C. Balakrishna Menon, J.

   1. The petitioner Jose and the 1st respondent Alice both Roman Catholic
Christians - were married according to their religious rites on 15-1-1981 in the
Santhipuram Church, The marriage was solemnized by a minister of the Roman
Catholic Church according to the rules, rites, ceremonies and customs of the
church. It is not disputed that the minister had received episcopal ordination
and was competent to solemnize the marriage under Sub-section (1) of Section 5
of the Indian Christian Marriage Act, 1872. After marriage the couple resided in
the house of the petitioner for 2 1/2 months. During the course of their stay
together the petitioner suspected the chastity of the wife. According to him she
was pregnant even at the time of the marriage. The pregnancy was terminated at
the instance of the petitioner and the respondent wife was left at her parents'
house. The petitioner thereafter filed an application before the Archdiocesan
Tribunal, Ernakulam to declare the marriage as null and void and the Tribunal by
Ext.D1 decree granted a declaration as prayed for. The matter was taken in
appeal before the Eparchial Tribunal, Trichur and as per its order Ext.D2 the
decision of the Archdiocesan Tribunal declaring the marriage as null and void
was confirmed. The respondent thereafter filed a petition under Section 125(1)
of the Cri. P.C. in the court of the Chief Judicial Magistrate, Trichur against
the petitioner for maintenance. Overruling the contention of the petitioner that
the marriage is null and void, and it has been so declared by the ecclesiastical
tribunals, the learned Magistrate ordered the petitioner to pay maintenance at
the rate of Rs. 200/- per month from the date of the petition. The decision of
the Magistrate was confirmed in revision by the learned Sessions Judge. The
present petition is under Section 482 Cr. P.C. to quash the decision of the
Magistrate and the Sessions Court directing the petitioner to pay maintenance to
the respondent.

   2. According to the petitioner he was not aware of the pregnancy of the
respondent on the date of the marriage and his consent for the marriage was
obtained by fraud in withholding such a vital information. It is for that reason
that the petitioner contended that the marriage is null and void and the
contention was accepted by the acclesiastical tribunals as per Exts. D1 and D2.

   3. Learned Counsel for the petitioner Sri M. I. Joseph has raised two
contentions before us viz. (1) that the marriage solemnized according to the
rules, rites, ceremonies and customs of the church to which the parties belong
had been declared by the acelesiastical tribunals to be null and void as per
Exts. Dl and D2 and the respondent is not his wife entitled to maintenance under
Section 125(1) of the Cr. P.C., and (2) even if the decision of the
acclesiastical tribunals is not to be treated as final and conclusive between
the parties, the courts below should have considered the question of fraud
alleged by the petitioner in extending the consent for the marriage.

   4. A Christian marriage is more a sacrament than a contract and is not
dissoluble except by resort to the statutory provisions in that behalf. In Hyde
v. Hyde and Woodmansee (1866) LR 1 P & D 130 Lord Panzance referring to the
implications of the Christian marriage stated:

     Marriage has been well said to be some thing more than a contract, either
religious or civil - to be an institution. It creates mutual rights and
obligations, as all contracts do, but beyond that, it confers a status. The
position or status of 'husband' and 'wife' is a recognized one throughout
Christendom; the laws of all Christian nations throw about that status a variety
of legal incidents during the lives of the parties, and induce definite rights
upon their offspring. What then is the nature of this institution as understood
in Christendom V Its incidents vary in different countries, but what are its
essential elements and invariable features ? If it be of common acceptance and
existence, it must needs (however varied in different countries in its minor
incidents) have some pervading identity and universal basis. I conceive that
marriage, as understood in Christendom, may for this purpose be defined as the
voluntary union for life of one man and one woman to the exclusion of all
others.

   Lord Romer referring to the above passage of Lord Penzance stated in
Nachimson v. Nachimson (1930) P 217 at page 239:

     The only words in this definition that create any difficulty are the words
'for life'. Lord Penzance's judgment was given in the year 1866 at a time
therefore when the Matrimonial Causes Act of 1857 had been in operation for
several years, and at a time when in most Christian countries a marriage could
be dissolved for various causes. It seems clear therefore that in deciding
whether any particular union of one man and one woman is for life, the fact that
the union is made dissolube in certain events by the laws of the country where
it is entered must be disregarded. This is in precise accordance with the
statement made by Lord Brougham in (1835) 2 Clause & F. 488 that dissolubility
or indissolubility is not of the assence of the contract of marriage.

   5. The Indian Divorce Act, 1869 as its preamble shows was passed "to amend
the law relating to the divorce of persons professing the Christian religion,
and to confer upon certain Courts jurisdiction in matters matrimonial". Section
18 of the Act enables the husband or the wife to present a petition to the
District Court or the High Court praying that his or her marriage may be
declared as null and void. Section 19 enumerates the grounds on which the court
may pass a decree of nullity of marriage. There are four grounds mentioned in
the main part of the section. Those grounds are : (1) impotency of the
respondent at the time of marriage and at the time of the institution of the
suit; (2) prohibited degrees of consanguinity or affinity between the parties;
(3) that either party was a lunatic or idiot at the time of the marriage; and
(4) that the respondent had a former spouse living and the marriage with the
former spouse was in force at the time of the marriage. Apart from the four
grounds mentioned above the section preserves the exclusive jurisdiction of the
High Court to pass decrees of nullity of marriage on the ground that the consent
of either party was obtained by force or fraud. A petition for declaration of
nullity of marriage on any of the four grounds mentioned in the main part of
Section 19 can be filed either in the High Court or in the District Court. But,
any decree of nullity of marriage passed by the District Judge shall be subject
to confirmation by the High Court as provided for in Section 20 of the Act.

   6. Jaganmohan Reddy, J. in T. Saroja David v. Christie Francis considering
Sections 18 and 19 of the Indian Divorce Act stated at page 179:

     It may be observed that in so far as dissolution of marriage and nullity of
marriage on the specific grounds stated in Section 19 are concerned both the
District Court and the High Court have concurrent jurisdiction and when the case
is one for declaration of nullity of marriage on the ground of force or fraud,
the exclusive jurisdiction of the High Court is saved. In order to understand
what this jurisdiction is, it is necessary to refer to the history of that
jurisdiction. Originally, the eccelesiatical Courts in England were empowered to
deal with matrimonial matters. The Surpeme Court in India which was
administering the English law as it was on a particular day, had inherited this
jurisdiction from the Ecclesiastical Courts. Ultimately, by statute the High
Courts have inherited their jurisdiction direct from the Supreme Courts. Thus
the power to make decrees of nullity of marriage on the ground of duress or
fraud was inherited by the Supreme Courts from the Ecclesiastical Courts and the
High Courts inherited that power from the Supreme Courts. This Court has,
therefore, clear jurisdiction to entertain this petition.

   The above passage was quoted and followed by a Full (special) Bench of the
Karnataka High Court in B. Ignatius Anthoney Jayaraj v. Immy Margaret Florence
AIR 1978 Kant 69. Malimath, J. as he then was on behalf of the Full Bench stated
at page 70:

     So far as the decree of nullity of marriage on the ground of force or fraud
is concerned, the same can be obtained only by presenting a petition to the High
Court which has a residuary jurisdiction to deal with a petition for dissolution
of marriage on the ground that consent of either party was obtained by force or
fraud. This view of ours receives full support from a decision of the Andhra
Pradesh High Court reported in T. Saroja David v. Christie Francis .

   7. Marriage between the parties creates civil rights and the ecclesiastical
tribunals have no jurisdiction to annul marriages involving the civil rights of
parties. In J. F. S. Eric D'Souza v. Florence Martha a Full Bench of the Delhi
High Court held at p. 277:

     The ecclesiatical law under which the marriage was dissolved by the Church
cannot, however, affect or govern the Civil Law.

   It was a case where the respondent wife had addressed a letter to His
Holiness Pope Paul VI for grant of a dispensation dissolving the marriage
between the petitioner and herself on the ground of non-consummation. The Church
after investigation had granted the prayer dissolving the marriage and a
communication to that effect had been issued to the petitioner from the
Chancellor of the Archdiocese of Delhi. Sreedharan, J. in Kurian v. Alphonso
1986 Ker LJ 585 has taken the view that when Parliament has enacted a law
providing for dissolution and for a decree of nullity of Christian marriage,
Eparchial Tribunals have no jurisdiction to adjudicate upon such matters so as
to affect the civil rights of the parties to the marriage. The learned Judge has
followed the following observation of Lord Blackburn in Re V. Alexander H.
Mackonochie v. The Hon. Lord Panzance and John Martin (1880-1) 6 AC 424:

     I think that there is authority for saying that the temporal Court,
proceeding in prohibition to restrain excess of jurisdiction in the court of
Ecclesiastical, is not bound by a decision of even the highest Court of Appeal
in ecclesiastical matters.

   8. Asobserved by Jaganmohan Reddy, J. in Saroja David's case (supra) the
Jurisdiction of ecclesiatical courts had been inherited by High Court and by
virtue of the provisions contained in Sections 18 and 19 of the Indian Divorce
Act, jurisdiction to declare nullity of marriage has been conferred on the
District Court and the High Court. We, therefore, hold that the decisions of the
Archdiocesan Tribunal and the Eparchial Tribunal do not in any way affect the
civil rights of the parties arising out of the marriage between them duly
solemnized in accordance with Section 5(1) of the Indian Christian Marriage Act,
1872 by a minister of the church who had received episcopal ordination.

   9. The next question is whether the courts below were right in directing
payment of maintenance to the respondent without considering the question of
validity of the marriage. According to the petitioner his consent for the
marriage was obtained by fraud suppressing the pregnancy of the respondent
through some other person. Counsel for the petitioner relies on the decision of
the Supreme Court in Yamunabai Anantrao v. Anantrao Shivaram (1988) 1 Ker LT 416
: (1988 Cri LJ 793) in support of the proposition that unless the marriage is
valid, the respondent is not the wife entitled to claim maintenance under
Section 125 of the Cr. P.C. The case before the Supreme Court arose out of
proceedings under Section 125 of the Cr. P.C. instituted by a Hindu woman for
maintenance against the respondent said to be her husband. There was a marriage
between the parties at a time when the respondent had his wife living and the
marriage between them was subsisting. The Supreme Court construing Section 11 of
the Hindu Marriage Act held that there was no valid marriage between the parties
to the proceedings and the expression "wife" in Section 125 of the Cr. P.C.
would mean a lawfully wedded wife including also a divorced wife within the
meaning of the section. It is held at page 418 (of Ker LT) : (at P. 795 of Cri
LJ):

     The marriages covered by Section 11 are void ipso jure, that is, void from
the very inception, and have to be ignored as not existing in law at all if and
when such a question arises. Althogh the section permits a formal declaration to
be made on the presentation of a petition, it is not essential to obtain in
advance such a formal declaration from a court in a proceeding specifically
commenced for the purpose.

   This decision was followed by the Supreme Court in Bakulabai v. Gangaram
(1988) 1 Ker LT 413.

   10. Section 11 of the Hindu Marriage Act declares any marriage solemnized
after the commencement of the Act to be null and void if it contravenes any one
of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the
Act. The section itself contains a declaration of invalidity of the marriage and
when the question arises the court is bound to consider whether a person
claiming to be the wife is the legally wedded wife of the respondent. The Indian
Divorce Act does not contain any such declaration. It has only conferred
jurisdiction on the courts specified in Section 18 to pass a decree declaring
the marriage between the parties as null and void for any of the grounds
mentioned in Section 19. A statutory declaration as found in Section 11 of the
Hindu Marriage Act is absent in the Indian Divorce Act, 1869 and the exclusive
jurisdiction of the High Court to declare invalidity of marriage on the ground
of consent obtained by force or fraud cannot be exercised by any other court or
tribunal. The concurrent jurisdiction of the District Court in regard to the
four grounds mentioned in Section 19 is also subject to confirmation by the High
Court under Section 20 of the Act. The decision of the Supreme Court in
Yamunabai's case 1988 Cri LJ 793 (supra) confirming the Full Bench decision of
the Bombay High Court in Yamunabai v. Anantrao 1983 Cri LJ 259 does not apply to
the present case where the question of validity of the marriage between the
parties is to be adjudged in accordance with the Indian Divorce Act. The
decision of a learned single Judge of this Court in Moni v. State (1987) 1 Ker
LT 34 was also relating to the validity of the marriage under Section 11 of the
Hindu Marriage Act and has no application to a case where the validity of the
marriage has to be considered with reference to Section 19 of the Indian Divorce
Act.

   11. In Santhakumari v. Padmanabhan 1985 Ker LT 42 a learned Judge of this
Court held that in proceedings under Section 125 of the Cr. P.C. the Magistrate
is bound to consider the factum and validity of the marriage between the
parties. It was a case where the factum fo marriage was itself in dispute and
the Sessions Judge in revision had dismissed a petition for maintenance
directing the parties to have the dispute settled by a civil court. It was in
that context that the learned Judge held that the factum and validity of the
marriage are to be decided in the same proceedings arising out of the petition
instituted under Section 125 Cr. P.C. It was not a case to which the Indian
Divorce Act applied and no question of exclusive jurisdiction of the courts
mentioned in Section 18 of the said Act arose for decision in that case. The
decision of a Division Bench of this Court in Amina v. Hassan Koya 1985 Ker LT
596 (1985 Cri LJ 1996) relating to the validity of a Mohammedan marriage at a
time when the woman was pregnant through some other person had necessarily to be
based on the Muslim Law on the subject in the absence of any statutory
provision. The learned Judges held that the marriage is void under the
Mohammedan Law and the woman is not entitled to maintenance as she is not a wife
within the meaning of S. l25 Cr. P.C. This decision also is not an authority for
a case like this where the validity of the marriage is to be adjudged in the
light of Section 19 of the Indian Divorce Act.

   12. A recent decision of a single Judge of this Court in Gabriel Antony v.
Thressya Gracy (1987) 1 Ker LT 690 : 1987 Cri LJ 688 relates to a claim for
maintenance by wife against her husband under Section 125(1) of the Cr,P.C. The
parties in that case are Indian Christians and the Indian Divorce Act, 1869 is
applicable to them, The husband raised a contention that his consent for
marriage was obtained by fraud in that the wife had concealed her pregnancy at
the time of marriage. Accordingly it was contended that the marriage was null
and void and the petitioner is not entitled to claim maintenance under Section
125(1) Cr. P.C. as a "wife" against the respondent. The learned Judge considered
the different grounds for a decree of nullity of marriage enumerated in Section
19 of the Indian Divorce Act and held that grounds 2 and 4 viz. the parties
being within the prohibited degree of consanguinity and the subsistence of an
earlier valid marriage would ipse jure invalidate the marriage even without
resort to the provisions of Section 18 of the Act. The other grounds viz.
impotency, lunacy or idiocy and want of a valid consent, according to the
learned Judge, are all matters which require an adjudication by the court under
Section 19 of the Act. The reason mentioned is that in regard to ground (1)
impotency at the time of filing of the application is as crucial as impotency at
the time of marriage arid hence no court can treat or declare a marriage as null
and void on that ground other than the court before which an application can be
filed under Section 18 of the Act. But in regard to the 2nd and 4th grounds
mentioned in Section 19 viz, the prohibited degree of consanguinity and the
subsistence of an earlier marriage, the parties cannot improve the position and,
even if they agree, cannot validate the marriage. Hence according to the learned
Judge the marriage is void ipse jure. The learned Judge at page 695 (of Ker LT)
: (at P. 692 of Cri LJ) states:

     12. If the initial defect is not curable by subsequent concurrence, as in
the case of subsistence of an earlier marriage, or in the case of a marriage
between parties within prohibited degree of consanguinity, the marriage is void
irrespective of whether the same is avoided or not by other party concerned. But
if that defect is curable by concurrence the marriage becomes void only if it is
avoided as in the case of insanity at the time of marriage, or want of voluntary
consent for the marriage. So the word "void" in Section 19 is susceptible to the
above two connotations depending upon the context. Therefore, the purposeful
interpretation is that such a marriage is null and void when the aggrieved
spouse elects to avoid it.

   The learned Judge has given a purposive interpretation of the word "void"
occurring in Section 18 (wrongly stated as Section 19) to come to the above
conclusion that in regard to grounds in respect of which the parties cannot
condone, the marriage is void even without a declaration to that effect and in
regard to the other grounds the marriage is only voidable at the option of
either of the parties and can be declared void by a decree of court under
Section 19 of the Act.

   13. Section 18 enables either the husband or the wife to present a petition
to the District Court or the High Court praying that his or her marriage may be
declared null and void. Section 18 only gives an option to the parties to
approach the court for a declaration of nullity of marriage on any of the
grounds mentioned in Section 19 of the Act. Sections 18 and 19 make it
abundantly clear that a decree of nullity of marriage is contemplated only on
presentation of a petition by either of the parties to the marriage. The statute
does not declare a marriage void even if any of the grounds in Section 19 is
attracted. The statute confers jurisdiction on the District Court or the High
Court to declare a marriage null and void. The jurisdiction inherited from the
ecclesiastical courts referred to by Jaganmohan Reddy, J. is thus dealt with
under the statute and the latter part of Section 19 merely preserves the
jurisdiction of the High Court to make decrees of nullity of marriage on the
ground that the consent of either party for the marriage was obtained by force
or fraud. It is only optional for the parties to make an application under
Section 18 of the Act and a decree declaring the marriage null and void can be
passed only on presentation of such a petition by either of the parties to the
marriage. There is, therefore, no scope for extending the principle of purposive
interpretation when the section only authorises the court to pass a decree
declaring the marriage as null and void. The learned Judge at page 695 (of Ker
LT) : (at P. 692 of Cri LJ) states that the word "void" in Section 19 shall,
subject to the context, mean "voidable" as well. The word "void" does not appear
in Section 19. It appears only in Section 18 and that section provides only for
a petition by the husband or the wife praying that his or her marriage may be
declared null and void. Section 19 authorises the court to pass a decree of
nullity on any of the grounds mentioned therein. The marriage becomes null and
void only on me passing of a decree of nullity by the court. The effect of such
a decree, if passed, is that the marriage is rendered null and void ab initio.
If either of the parties does not choose to file a petition as contemplated by
Section 18, the marriage is not rendered void even if any of the grounds capable
of invalidating the marriage is present and available to the parties to have
recourse to the procedure established by the Act. When Section 18 gives only an
option to the parties to present a petition for a decree declaring the marriage
null and void, it cannot be said that the marriage is void ipse jure for the
reason of ground 2 or 4 mentioned in Section 19 of the Act. It is also not
correct to say that these grounds do not postulate any adjudication. These are
grounds to be established on facts proved and it cannot be said that Section 19
of the Act is capable of rendering the marriage void without recourse to an
adjudicatory process. We therefore hold that a Christian marriage can be
declared null and void only by a decree of court as provided for in Sections 18
and 19 of the Indian Divorce Act and the marriage is not rendered void for any
of the grounds enumerated in Section 19.

   14. When the marriage is solemnized by a minister of the church in accordance
with Sub-section (1) of Section 5 of the Indian Christian Marriage Act, it
should be presumed that the marriage is valid and the minister had satisfied
himself that the parties had voluntarily given consent for the marriage. A
Christian marriage is a sacrament and it cannot be dissolved except by recourse
to the procedure under Section 18 and on one or the other of the grounds
mentioned in Section 19 of the Indian Divorce Act. In the absence of a decree of
nullity of marriage, the Magistrate exercising the jurisdiction under Section
125 of the Cr. P.C. is bound to accept the marriage as valid. The Code itself
provides for cancellation of an order for maintenance where such cancellation is
found necessary in consequence of any decision of a competent civil court (vide
Section 127(2) of the Cr. P.C.).

   15. The Supreme Court in Lakshmi Sanyal v. Sachit Kumar Dhar approving the
dictum in Lopez v. Lopez (1886) ILR 12 Cal 706 (FB) stated at page 133 (of SCR)
: (at P. 2673 of AIR:

     It was further held that where a man and a woman intended to become husband
and wife and a ceremony of marriage was performed between them by the Clergyman
competent to perform a valid marriage the presumption in favour of everything
necessary to give validity to such a marriage was one of very exceptional
strength and unless rebutted by evidence strong, distinct, satisfactory and
conclusive must prevail. In the subsequent decision H. A. Lucas v. Theodoras
Lucas 1905-ILR 32 Cal 187 the earlier decision in Lopez v. Lopez 1886-ILR 12 Cal
706 (FB) was referred to and followed.

   Referring to Sub-section (1)(a) of Section 125 Cr. P.C. the Supreme Court in
Yamunabai's case (supra) stated at page 419 (of (1988) 1 Ker LT 416) : (at p.
796 of 1988 Cri LJ 793):

     6. The attempt to exclude altogether the personal law applicable to the
parties from consideration also has to be repelled. The section has been enacted
in the interest of a wife, and one who intends to take benefit under, Section
125(1)(a) has to establish the necessary condition, namely, that she is the wife
of the person concerned. This issue can be decided only by a reference to the
law applicable to the parties. It is only where an applicant establishes her
status or relationship with reference to the personal law that an application
for maintenance can be maintained. Once the right under the section is
establised by proof of necessary conditions mentioned therein, it cannot be
defeated by further reference to the personal law.

   There is no dispute that the marriage in the present case was solemnized in
accordance with the personal law applicable to the parties. The minister who had
received episcopal ordination and had solemnized the marriage in accordance with
Sub-section (1) of Section 5 of the Indian Christian Marriage Act of 1872 should
be presumed to have ensured that the parties had given free consent for the
marriage and such presumption will hold the field until the High Court passes a
decree of nullity of marriage on the ground of force or fraud in obtaining the
consent.

   16. Pathak, J. as he then was in his concurring judgment in Lila Gupta v.
Laxmi Narain quotes the following observation of Dr. Lushington in Catterall v.
Sweetman (1845) 9 Jur 951 at p. 954:

     The words in this section are negative words, and are clearly prohibitory
of the marriage being had without the prescribed requisites, but whether the
marriage itself is void...is a question of very great difficulty. It is to be
recollected that there are no words in the Act rendering the marriage void, and
I have sought in vain for any case in which a marriage has been declared null
and void unless there were words in the statute expressly so declaring it....
From this examination of these Acts I draw two conclusions. First, that there
never appears to have been a decision where words in a statute relating to
marriage, though prohibitory and negative, have been held to infer a nullity,
unless such nullity was declared in the Act. Secondly, that, viewing the
successive marriage Acts, it appears that prohibitory words, without a
declaration of nullity, were not considered by the legislature to create a
nullity.

   The above passage found in Craies on Statute Law, 6th Edn., pages 263 and 264
is quoted with approval by Desai, J. at page 1354.

   17. For the aforesaid reasons we hold that "the 1st respondent is the wife of
the petitioner entitled to claim maintenance against him under Section 125(1) of
the Cr. P.C. The social purpose of Section 125 of the Cr. P.C. is to prevent
vagrancy and destitution. As observed by Varghese Kalliath, J. in Amina's case
1985 Cri LJ 1996 (Ker) (supra), the section is not intended to punish a husband
or parent for his neglect, but to compel those who have a social and moral
obligation to pay maintenance to those who are unable to support themselves. The
Supreme Court in Mohammed Ahammed Khan v. Shah Bano Begum .

     The liability imposed by Section 125 is founded upon the individual's
obligation to the society to prevent vagrancy and destitution. That is the moral
edict of the law and morality cannot be clubbed with religion.

   We see no ground to quash the impugned orders of the courts below. The
Crl.M.C. is accordingly dismissed.