George Sebastian Alias Joy vs Molly Joseph Alias Nish on 20 July, 1994

    George Sebastian Alias Joy vs Molly Joseph Alias Nish on 20/7/1994

JUDGMENT

   Thomas, J.

   1. One of the incidental questions surfaced to the fore in this matrimonial
dispute is the relevance of an order of annulment of marriage passed by an
"Ecclesiastical Tribunal." As we cannot dispose of this case without deciding
the said question, we heard counsel on both sides in extenso regarding that
question.

   2. We shall now state as to how the matter came before us. A petition was
filed by one husband for a decree either for divorce or for nullity of his
marriage with the respondent. Parties are Christians, and they belong to Roman
Catholic Church. For the decree of divorce, petitioner alleged that respondent
is guilty of incestuous adultery. For the decree of nullity of marriage
petitioner ad opted two separate grounds. First is that respondent was insane
and continued to be so till the date of marriage. Second is that respondent had
a previous marriage with one Prince Joseph.

   3. A child was born to the respondent in her wedlock with the petitioner and
the child is now with its mother, the respondent.

   4. The petition was stoutly resisted and the respondent described the
allegation regarding incestuous adultery as a cruel story shamlessly concocted
by the petitioner. However, respondent admitted that she was involved in a
previous marriage, but contended that the said marriage was annulled by the
order of the Ecclesiastical Tribunal (or Church Court as it is referred to at
times). According to the respondent, the fact of her previous marriage was made
known to the petitioner and he agreed to marry the respondent with that
knowledge.

   5. Learned District Judge did not conduct any enquiry. He took the view that
"on the admitted pleadings of the parties it is possible to dispose of the
Original Petition without posting the case for evidence." As the respondent
admitted the earlier marriage, learned District Judge found that in the absence
of a decree passed by the civil court in the manner provided in the Indian
Divorce Act, 1869 (for short 'the Divorce Act') the former marriage continued in
spite of the annulment order passed by the Ecclesiastical Tribunal. On the said
premise learned District Judge passed the decree declaring the present marriage
null and void as for the ground envisaged in Section 19(4) of the Divorce Act.

   6. No doubt, as per Section 45 of the Divorce Act, the proceedings thereunder
can be regulated by the Code of Civil Procedure. But it has to be borne in mind
that the said section is subject to the other provisions in the Divorce Act.
Section 47 of the Act requires a petitioner to state that there was no collusion
or connivance between the panics to the marriage. A combined reading of these
two sections indicates that the Court has to be satisfied of the ground of
nullity of marriage (if the petition is for a decree of nullity) in spite of the
admission made by any party in the pleadings. Otherwise, there is a danger that
two parties can colhisively cause a petition to be filed alleging any particular
ground for declaring the marriage null and void and the other side can simply
admit the same and thereby present an admitted version regarding the ground for
nullity. It must also be remembered that if the decree was passed by a District
Judge the same is subject to confirmation by the High Court as provided in
Section 20 of the Divorce Act. All those would suggest that the District Judge
is not to pass a decree of nullity of marriage just after reading the pleadings
of the parties. At any rate, Section 45 of the Divorce Act is not a carte
blanche for dispensing with any enquiry as to the existence of a ground for
nullity of marriage merely because no dispute regarding that ground has been
raised by the other party.

   7. In Preston Jones v. Preston Jones, 1951 AC 391, Lord Mac Dermott had
stated thus: "The jurisdiction in divorce involves the status of the parties and
the public interest requires that the marriage bond shall not be set aside
lightly or without strict enquiry." The aforesaid observation was quoted by a
Full Bench of the Madras High Court with approval in Jean Emeline v. Joseph
Tayler, AIR 1966 Mad 155 and held that the above observation applies to nullity
proceedings as well. We also take the same view.

   8. Shri Mathai M. Paikeday, learned counsel for the respondent contended that
since the Ecclesiastical Tribunal has already annulled the former marriage
between respondent and Prince Joseph long before the present marriage the ground
envisaged in Section 19(4) of the Divorce Act is not available. He further
contended that due weight shall be given by the Court to the personal law of the
parties regarding marriage and the order of the Ecclesiastical Tribunal should
be treated as sufficient to end the former marriage.

   9. In support of the contention Shri Mathai M. Paikeday invited our attention
to the judgment of a learned single Judge of this Court (Sankaran Nair, J.) in
Leelamma v. Dilip Kumar, (1992) 1 Ker LT 651 : (AIR 1993 Ker 57) learned single
Judge did not hold that Canon Law would supercede the statutory law regarding
the marriage or any other matter. On the other hand, learned Judge has pointed
out, in clear terms, that "in the absence of statutory law Canon Law governs
members of the community". A Division Bench of this. Court (P. C. Balakrishna
Menon, J. (as he then was) and K. G. Balakrishnan, J.) has held in Jose v.
Alice, (1988)i 2 Ker LT 890 : (1989 Cri LJ 1527) that "marriage between the
parties creates civil rights and the ecclesiastical tribunals have no
jurisdiction to annul marriages involving the civil rights of parties" and
concluded 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 Divorce Act."
Learned counsel made a plea for reconsideration of the ratio in Jose v. Alice,
(1988) 2 Ker LT 890 : (1989 Cri LJ 1527).

   10. The Divorce Act was passed to amend the law relating to divorce as well
as matrimonial causes and for granting reliefs to parties professing Christian
religion. Despite the nomenclature of the Act it contains not only provisions
for divorce, but other provisions touching other matrimonial matters as well.

   11. A short survey of history as to how the statute came into being may be of
some advantage to decide the question. From the middle of the 12th century
ecclesiastical Courts were recognised as having exclusive jurisdiction in
matters of marriage and divorce. Since the Church of Rome was the supreme
ecclesiastical authority in England, the ecclesiastical Courts applied Canon Law
in matrimonial causes. Christian marriage was indissoluble, but divorce a mensa
et thoro (in the nature of the present day judicial separation) was granted for
certain cases. After 1857 divorce by judicial process in England came into
operation for the first time by virtue of the Matrimonial Causes Act, 1857.
(Vide Halsbury's Laws of England -

     Vol. 13 -- 4th Edition at page 244). By the said Act the jurisdiction till
then exercised by ecclesiastical Courts in England was conferred upon a new
Court called "The Court for Divorce and Matrimonial Causes."

   12. In India, till 1861 "the Supreme Court at Bombay" exercised the
jurisdiction which ecclesiastical Courts exercised in England. When the High
Court of Bombay was established, jurisdiction of the Supreme Court at Bombay in
such matters was inherited by the High Court of Bombay. Later when British
Parliament passed an Act for establishing High Courts at different centres in
India, such jurisdiction was passed over to such High Courts also in accordance
with the territorial limits. The Divorce Act, 1869 was passed "to amend the law
relating to the divorce of persons professing Christian religion and to confer
upon certain Courts jurisdiction in matters matrimonial."

   13. The above is the background for introduction of statutory law in
matrimonial causes relating to persons professing Christian faith. Jurisdiction
earlier exercised by ecclesiastical Courts has, by a process of evolution,
reached the High Courts and to a certain extent the District Court in relation
to the territorial limits.

   14. Marriage for Christians is not a contract, but a "sacrament." From the
theological point of view, a sacrament is based on the faith that it was
instituted by Jesus Christ and entrusted to the Church for the purpose of
contributing to the manifestation of ecclesial communian with God (vide A Text
and Commentary on the Canon Law by Geoffrey Chapman). All the same, from the
practical point of view, a marriage brings new status to the parties as husband
and wife and the new status stands recognised by all concerned. As adjunct to it
mutual rights and obligations sprout therefrom and they transcend to the realm
of civil rights. The parties eventually become the parents of the children born
to them and the children become entitled to inheritance etc. Acquisition of this
legal status by the parties to a marriage is protected by civil law. A marriage
may be solemnised according to the personal law of the parties, or according to
custom, or according to the provisions of an enactment. Once the marriage is
over, the legal status acquired thereby is legally recognized and thereafter it
is a concern of the law. When there is a statute governing the area, the statute
has primacy over any personal law in that regard.

   15. Section 18 of the Divorce Act enables a party to present a petition for a
declaration that the marriage is null and void. Section 19 lists four grounds
for passing such a decree; (1) That the respondent was impotent at the time of
the marriage and at the time of the institution of the suit. (2) That the
parties are within the prohibited degrees of conseguinity or affinity. (3) That
either party was a lunatic or idiot at the time of the marriage. (4) That the
former husband or wife of either party was living at the time of the marriage,
and the marriage with such former husband or wife was then in force. In the
second paragraph of Section jurisdiction of the High Court to make decrees of
nullity of marriage (on the ground that the consent of either party was obtained
by force or fraud) has been preserved. The Divorce Act does not envisage any
other ground for anulling a marriage.

   16. The grounds enumerated and envisaged in Section 19 are exhaustive for
nullifying a marriage. A Court is not empowered to go outside the contours of
the Divorce Act for granting a decree of divorce or a decree of nullity. This is
clear from Section 4 of the Divorce Act. The relevant portion reads thus:

     "The jurisdiction now exercised by the High Courts in respect of divorce a
mensa ettoro, and in all other causes, suits and matters matrimonial shall be
exercised by such Courts and by the District Courts subject to the provisions in
this Act contained and not otherwise."

   The message contained in Section 4 is, therefore, unambiguously clear
particularly with the words "and not otherwise" that the Court cannot exercise
jurisdiction outside the boundaries fixed in the Divorce Act. The aforesaid
position was considered by the Gujarat High Court in Kanku v. Shanabhai,
Fulabhai, ILR (1967) Guj 1003. A majority has stated, relying on Section 4 of
the Divorce Act, that the grounds set out in Section 19 are exhaustive.

   17. Canon Law of the Roman Catholic Church has covered certain other grounds
also for declaring the marriage void. (We are not considering in this case the
personal law relating to the members of other denominations of the Christian
Church). Various grounds have been formulated in the Canon Law for declaring a
marriage null and void. Some grounds are those covered in the Divorce Act also.
But some other grounds are special to the Canon Law. They are the following:
Under Canon Law, any marriage entered into by those who are below the prescribed
age limit is void (CCEO 800). Marriage contracted between a Christian and a non-
christian is void (CCEO 803). Marriage of those in Holy Orders (Diaconate and
Priesthood) and those who are bound by a public and perpetual vow of chastity in
a religious institute is void (CCEO 804 and CCEO 805). Similarly, marriage
between those who are under spiritual relationship is also void (CCEO 811). It
must be remembered that none of those grounds is regarded as a ground to nullify
the marriage under the Divorce Act.

   18. Canon Lau (or personal law of Christians) can have theological or
ecclesiastical implications to the parties. But after the Divorce Act came into
force a dissolution or annulment granted under such personal law cannot have any
legal impact as statute has provided a different procedure and a different code
for divorce or annulment. It may be that a decree of divorce or annulment
granted by a civil Court cannot compel the ecclesiastical authorities to
solemnise a second marriage for any one of the parties thereto. It is open to
such authority to insist that until the spiritual bond is also snapped through
the steps envisaged in the Canon Law they would not perform or celebrate such
second marriage. But the converse is not the legal position. In other words,
when the ecclesiastical Court grants annulment or divorce the church authorities
would still continue under disability to perform or solemnise a second marriage
for any of the parties until the marriage is dissolved or annulled in accordance
with the statutory law in force in this regard. Personal law the relevance only
to the above extent vis-a-vis the statutory law. In other words, personal law
sunds clipped to the extent statutory law has stepped.

   19. Nonetheless there is some relevance for personal law or Canon Law even in
the legal domain of matrimonial causes. Supreme Court has recognised the above
limited utility of personal law in the domain of statutory law in matrimonial
causes. In Lakshmi Sanyal v. S. K. Dhar, AIR 1972 SC 2667 the question involved
was whether a marriage between children of two sisters could be declared null
and void on the ground envisaged in Section 19(2) of the Divorce Act. Their
Lordships noticed that the church Court has granted dispensation to the spouses
concerned in regard to the range of prohibition of degree of consanguinity or
affinity. As the expression "prohibited degree of consanguinity or affinity" has
not been defined in the Divorce Act or in any other statutory law applicable to
Christian community, the Court was persuaded to resort to external aid.
Accordingly, the order of dispensation of prohibition granted by an
ecclesiastical authority in accordance with Canon Law was recognized by the
Supreme Court as the law governing the members of that community. The above is
the indication of the limited scope of application of personal law of Christians
vis-a-vis the statutory law.

   20. In Leelamma v. Dilip Kumar, (1992) 1 Ker LT 651 : (AIR 1993 Ker 57)
Sankaran Nair, J. has taken the view that fraud envisaged in Section 19 of the
Divorce Act would include an error concerning quality of a person and that even
a representation that the party is a Christian would amount to fraud if that
party was not a Christian by faith. In that case, learned single Judge noted
that there was no "iota of evidence" to show that the husband professed
Christian faith. Hence the learned Judge took the view that wife's consent was
obtained by fraud.

   21. To "profess" Christian faith is not analogus to "practice" Christian
faith. The word "profess" means, making a declaration or pronouncement that the
person concerned has faith in the Christian tenets. Even in Article 25 of the
Constitution wherein right to freedom of religion is envisaged the word
"profess" is used as having a different connotation from the word "practice". If
a person has openly declared that he believed in Christian faith, such person
cannot be held guilty of fraud merely because he was not strictly practising
doctrinal attributes of a church. Sacerdotal controversies existing as between
different denominations of Christian religion are so nice and sometimes
involving so abstract nuances that it would be pedantic to depict one who failed
to follow all such doctrinal nuances as a heretic and thereby to hold that he
committed matrimonial fraud. If the scope of the concept of "fraud" in
matrimonial causes is given such a loosely elastic construction, many a marriage
would ever remain on the brink of annulment and the stability of family would be
its prima casualty.

   22. "Fraud" envisaged in the second paragraph Section 19 of the Divorce Act
has to be understood from the point of view of matrimonial matters. Fraud
understood in the Law of Contract may not be a safe guide. In the Indian
Contract Act active concealment of a fact with intent to induce another person
to enter into a contract is sufficient to constitute fraud (Section 17). In the
Explanation to the Section it is made clear that mere silence as to the facts
likely to affect the willingness of a person to enter into a contract is not
fraud. But this clarification is subject to a rider that if circumstances are
such that it is the duty of the person keeping silence to speak, then, even
silence may amount to fraud. Such a wide connotation is not importable to
matrimonial causes.

   23. A Division Bench of this Court (Thomas and Sankaran Nair, J.I.) has held
in Moore v. Valsa, (1991) 2 Ker LT 504 that the concept of fraud in the Contract
Act. is of wider amplitude than in relation to matrimonial causes. The
boundaries of concept of fraud cannot be stretched as wide as including
concealment of every fact. The Division Bench observed that "it h'as to be borne
in mind that at the time of negotiation or courtship, parties might try to
project themselves in the best possible form. Some amount of exaggeration in
representation is often experienced to make him or her acceptable to the other
as a spouse. Mere concealment or overstatement of facts by itself does not
invalidate a marriage". At the same time, the Division Bench pointed out that
the prestine view that scope of fraud in matrimonial law has a narrow radius
need not rigidly be adhered to in modern times.

   24. Over the years legislature liberalised the grounds for dissolution in
matrimonial causes and thereby opened wider vision and perspective. This change
had corresponding effect on the courts as they adopted more pragmatic approach
in construing the grounds for dissolution or annulment of marriage. In a way a
more liberal outlook was adopted by the courts in recent years. This trend
gained approval from the apex court in Reynold Rajamani v. Union of India, AIR
1982 SC 1261. Nonetheless a mis-statement or over-statement about one's-quality
or qualification would not amount to fraud as envisaged in the Divorce Act
unless it is in respect of a factor vital to the marriage alliance itself.

   25. We are of the view that legal position has been correctly stated in Moore
v. Valsa, (1991) 2 Ker LT 504. The observations of Sankaran Nair, J. in Leelamma
v. Dilip Kumar,(1992) 1 Ker LT 65I (652) : (AIR 1993 Kerala 57) to the contrary
cannot be accepted as the correct exposition of law in this regard. According to
us, the observation of Sankaran Nair, J. in the aforesaid decision that the
marriage is liable to be declared null and void unless the consent signified is
a consent recognised in personal law or Canon Law is too broad a proposition for
approval.

   26. In this context we have to refer to another recent decision rendered by
Rama-krishnan, J. in Sujatha v. Jose Augustine, (1994) 2 Ker LT 4. Learned
single Judge has held that "a marriage between a baptised Christian and a person
not baptised is void". The said decision was based on Canon 1086 of Canon Law.
But in our view a marriage between baptised Christian and a person not baptised
is not a nullity under the Divorce Act and therefore cannot be declared as void
under the provisions of the Divorce Act. Such a marriage, if properly
solemnised, would imbibe all attributes of a valid marriage. Theological faith
of one of the parties does not matter in the validity of a marriage. The dictum
to the contrary contained in Sujatha v. Jose Augustine, (1994) 2 Ker LT 4 is,
therefore, not correct and it stands overruled.

   27. Our conclusion is the legal position laid down by the Division Bench in
Jose v. Alice, (1988) 2 Ker LT 890, vis-a-vis the Canon Law is the correct
position and requires no change.

   The decree of nullity passed by the learned District Judge has to be set
aside and we do so. We direct the District Judge to conduct an enquiry into the
allegation relating to the subsistance of the former marriage and pass a decree
in the light of the legal position set forth above.