Kanku D/O Dhulabhai Dahyabhai vs Khristi Shanabhai Fulabhai on 3 May, 1963

    Kanku D/O Dhulabhai Dahyabhai vs Khristi Shanabhai Fulabhai on 3/5/1963

JUDGMENT

   N.M. Miabhoy, J.

   1. A decree has been passed by the learned District Judge, Kaira at Nadiad,
in Divorce Suit No. 1 of 1961 on 1st September 1961, by which the learned Judge
has declared the marriage between the petitioner Kanku and the respondent
Shanabhai null and void, subject to the declaration being confirmed by this
Court under Section 20 of the Divorce Act, 1869 (hereafter called 'the Act').
The learned District Judge by his letter, dated 1st March 1962, has sent the
proceedings in the suit to this Court for confirmation. The petition, which was
numbered in the District Court as Suit No. 1 of 19 1, was made by the petitioner
under Section 18 of the Act. It is common ground that the petitioner and the
respondent were married about 14 years ago under Hindu marriage rites. The
petitioner first filed Suit No. 4 of 1960 in the Court of the learned Civil
Judge (Senior Division), Nadiad, under the Hindu Marriage Act, 19SS, for
dissolution of that marriage on the ground that the husband had changed his
religion and had become a Christian since the celebration of the marriage. The
respondent defended that action on the ground that the petitioner and the
respondent were Christians by birth and that, therefore, that Court had no
jurisdiction to deal with the suit under the Hindu Marriage Act, 1955. The
petitioner had alleged in that suit that she was a Hindu; that she was married
with the respondent according to the Hindu rites and that, therefore, she had a
right to file a petition for divorce under the Hindu Marriage Act, 1955. The
learned Civil Judge raised a suitable issue on this controversy and came to the
conclusion that both the petitioner and the respondent were Christians by birth
and that, therefore, he had no jurisdiction to deal with the suit for divorce
under the Hindu Marriage Act, 1955. On this ground, the learned Civil Judge
dismissed the suit of the petitioner. Therefore, the petitioner filed the suit
from which the present confirmation proceedings arise. In this suit, the
petitioner prayed that the above marriage might be declared null and void. The
ground on which the prayer was based was that both the petitioner and the
respondent were Christians at the time of the marriage and as, admittedly, their
marriage was celebrated according to the Hindu rites, the marriage was not
performed in accordance with Section 5 of the Indian Christian Marriage Act,
1872, and that, therefore, it was void under Section 4 of the same Act. The
petitioner did not admit either in the petition or in her evidence that she was
a Christian at the date of the marriage. She still maintained that she was a
Hindu by religion; that her parents were Hindus and that she was born a Hindu.
But, she contended that, though such was the fact, the respondent was estopped
by virtue of the successful contention which the respondent had urged in the
previous Suit No. 4 of 1960 in the Court of the learned Civil Judge (Senior
Division), Nadiad, from contending that she was a Hindu. It is obvious that the
plea of the petitioner that she was a Christian was not based upon a fact, but
upon the alleged principle of estoppel. The learned Judge appears to have
thought such a plea, if proved, would permit him to hold the petitioner a
Christian, whatever may be the true position in fact, and that, that would
enable him to decide the controversy between the parties about the nullity of
the marriage. Therefore, the learned Judge framed the first part of the first
issue as follows: "Whether the respondent is now estopped from contending that
the petitioner was not a Christian by birth?". The respondent denied that the
principle of estoppel applied to the facts of the present case. Just before the
trial, the petitioner filed a Purshis in which she clarified that she was Hindu
by birth, that she was a Hindu at the time when she was married to the
respondent but that she was baptized about two or three years after the marriage
and became a Christian at that point of time. In the evidence, no reference was
made to the petitioner being born a Hindu and being baptized at a later stage.
On the contrary, she stated that her parents were Christians. In the cross-
examination, she said that her deposition in the previous suit that her parents
were Hindus and that she was a Hindu at the time of the marriage was a mistake.
However, her father Dhulabhai gave conflicting testimony. According to him,
though he had become a Christian, he had never been baptized. He deposed that he
was a Hindu, but that he became a Christian because he was told that his son
Ranchhod would be admitted in a Christian School if he became one. He said that,
though he was re-named by a Christian priest, he was not actually baptized
because he had two wives, none of whom became a Christian. There is no reference
in the evidence of the respondent about the religion of the petitioner either at
the time of her birth or at the time of the marriage. The learned Judge has
answered the issue of estoppel in favour of the petitioner and passed a decree
on the basis that both the parties were Christians as the time when the marriage
was celebrated about 14 years ago. We find it difficult to agree with the
learned District Judge that the principle of estoppel applies, much less that a
decree for nullity can be passed on the basis of any such principle. In the
first instance, it is noteworthy that the finding about the religion of the
petitioner is not sought to be obtained on the ground of the principle of res
judicata. The petitioner does not urge that the finding recorded by the learned
Civil Judge (Senior Division) in the previous litigation was concluded by any
such principle. Therefore, it is not necessary for us to examine the position
whether such principle applies and what its effect will be in the present
litigation. Now, it is well known that in order that the principle of estoppel
may apply, it is necessary that there should be a representation by a party and
that another party must act on the faith of that representation. Having regard
to the facts of the case, there is no doubt that no such representation was made
to the petitioner by the respondent, nor did the petitioner act upon any such
representation. There is no allegation that, before the previous suit was filed,
any such representation was made by the respondent. In any case, there is no
doubt that the petitioner never acted upon any such representation. On the
contrary, she opposed that representation and invited a decision of the Court on
the subject. The finding was not merely recorded on any representation made by
the respondent, but was recorded on the evidence which was led by both parties.
Even if the principle of estoppel had applied in this case, we would have found
considerable difficulty in confirming the decree for nullity on the basis of any
such principle. A decree of nullity has the force of a judgment in rem. When the
Court is acting under the Act, it exercises matrimonial jurisdiction. Therefore,
any decree passed by the Court would affect not only the rights and obligations
of the parties to the petition, but also the rights and obligations of the whole
world. In a litigation of this type, the Court should act on the basis of what
it discovers to be the truth and not on the basis of the fact that one party was
prevented from urging an important allegation against the other. But, these
considerations cannot be an impediment in the way of the consideration of the
present case on its own merits, because, it is quite clear from Section 4 of the
Indian Christian Marriage Act, 1872, that, in order that a marriage under that
section may be void, it is not necessary that both the parties should be
Christians. If one of the parties happens to be a Christian, the section would
apply. Therefore, if the respondent was a Christian at the time of the
celebration of the marriage, whatever may be religion which the petitioner
followed at that time, the marriage would be void. But, Mr. Shah contended that
though there was no clear averment in the written statement of the respondent
that he was not a Christian at the time of the marriage, there was no clear
admission also on his part that he was a Christian at the relevant time. Mr.
Shah contended that this omission in the written statement cannot be construed
as any admission on the part of the respondent because there was no clear
averment in the petition itself to the effect that the respondent was a
Christian at the time of the marriage. He contended that, if there was any such
averment in the petition, the omission could have been construed as such an
admission. He invited our attention to the language in which some of the
paragraphs in the written statement were couched and he contended that those
paragraphs read as if the averment of the respondent was that he was a Christian
"now" and not necessarily at the time of the celebration of the marriage. We
have read the evidence given by the respondent. There also he has used the
present tense and said that "he is a Christian". Thus, in our opinion, there is
also no clear evidence in the case to show that, at the time when the marriage
was celebrated, the respondent was a Christian. In order that the marriage may
be void under Section 4 of the Indian Christian Marriage Act, 1872, it is
necessary that at least one of the parties must be a Christian. Having regard to
the fact that there is no proper pleading and proper evidence on the subject, if
we have to decide this case, we will have to frame a suitable issue on the
subject and send it for recording of evidence on the same. Therefore, if we have
to decide the reference at all, we propose to frame the following issue and
refer it to the learned District Judge to record additional evidence on the
subject and send back the record with his finding thereon. But, for the reason,
presently to be mentioned, we cannot do so unless we decide a question of far-
reaching importance, raised by Mr. Shah and which does not appear to have been
raised in the trial Court. Before we undertake an examination of that question,
we may mention that the finding recorded by the learned Judge on one of the
defences urged by the respondent is unassailable and Mr. Shah did not challenge
that particular finding. The defence of the respondent was that there was a
custom in the community to which the parties belong, which enjoined that the
marriages should be celebrated according to the Hindu rites, to whatever
religion the parties belong. The burden of proving the existence of any such
custom was on the respondent. The learned Judge has found that such a custom was
not proved. There is no doubt whatsoever that there is no evidence, worth the
name, on this particular subject. In view of this, the finding was perfectly
justified and, in view of that finding, it is not necessary for us to consider
that question which otherwise it would have been necessary for us to do as to
whether any such custom can override the clear statutory provision embodied in
Section 4 of the Indian Christian Marriage Act, 1872.

   2. The main question which Mr. Shah raised was one about the jurisdiction of
the District Court to grant under the Act the relief for nullity of marriage on
a ground which was mentioned in another statute. Mr. Shah contended that a
petition under the Indian Divorce Act for nullity of marriage was not
maintainable on the ground that the marriage was not solemnized in accordance
with Section 4 of the Indian Christian Marriage Act, 1872. He contended that the
proper forum for decision on this subject was the Court of ordinary civil
jurisdiction and not the special Court established under the Act. Normally,
having regard to our finding that a new issue requires to be framed and
additional evidence requires to be taken, we would not have undertaken an
examination of this intricate and difficult question unless a finding was
received on the subject and unless it was established that one of the parties
was Christian at the time when the marriage was celebrated, because it is quite
clear that, if an adverse finding is recorded on this point, the marriage would
not be a nullity and the petition would be dismissed on that ground. But, we are
in the course of confirmation proceedings. The jurisdiction to confirm the
decree arises under Section 20 of the Act. We would have that jurisdiction only
if the learned District Judge was competent to entertain the suit under the Act.
If the suit is not under that Act, then, we have no jurisdiction to confirm the
decree under Section 20 of the Act; nor do we have any power to direct the
learned District Judge to take additional evidence and to record and certify a
fresh finding. Under the circumstance, the jurisdiction of this Court to do so
depends upon a resolution of the above controversy as to whether the learned
District Judge was or was not competent to entertain the petition for nullity of
marriage under the Act. We have already indicated the contentions raised by Mr.
Shah on this point. Mr. Rebello, who appeared on behalf of the petitioner, on
the other hand, opposed those contentions and urged that the present petition
was one under the Act and the Court was competent to grant the relief for
nullity of the marriage on the ground that it was void under Section 4 of the
Indian Christian Marriage Act, 1872.

   3. The question which has got to be decided is whether the District Court has
jurisdiction to entertain a petition and grant a decree for a declaration of
nullity of marriage on the ground that the marriage is void under section 4 of
the Indian Christian Marriage Act, 1872. The Act contains a number of sections
dealing with the question of the jurisdiction. These sections are in Chapter II
of the Act and run from Sections 4 to 9. The important sections which require to
be construed and on the basis of which the question of jurisdiction may have to
be decided are Sections 4 and 7. Section 4 deals with the matrimonial
jurisdiction of High Courts and District Courts. Section 7 enacts the principles
on the basis of which that jurisdiction has to be exercised.

   4. Before we examine the contents of the above two sections, it may be useful
to mention generally some of the main provisions and features of the Act. The
preamble says that the Act is enacted (i) to amend the law relating to divorce
among Christians and (ii) to confer upon certain Courts jurisdiction in matters
matrimonial. The Courts which are given jurisdiction under the Act are the High
Courts and the District Courts (hereinafter referred to as the Court
simpliciter). The decrees which can be passed under the Act are (i) decrees for
dissolution of marriage, (ii) decrees declaring marriages null and void, (iii)
decrees for judicial separation, and (iv) decrees for restitution of conjugal
rights. Power has been given to the Court also to make orders (1) for alimony,
permanent or pendentelite, (2) for settlement, (3) for custody of children, (4)
and, generally, for protection of the interest of husband or wife. The Act
mentions conditions which must be satisfied before any of the decrees or orders
of the aforesaid kind can be made by the Court. Besides the above matters, which
may be described as matters matrimonial, the Act also deals with matters of
procedure, Different procedures have been prescribed for different kinds of
decrees and for different matters brought in the High Court and the District
Court. The Act requires decrees of dissolution and decrees of nullity of
marriage passed by the District Court to be confirmed by the High Court. Thus
the High Court exercises both original and confirmatory jurisdiction, whereas
the District Court has only original jurisdiction. Section 45 provides that,
subject to the provisions of the Act, all proceedings under the Act shall be
regulated by the Code of Civil Procedure.

   5. From the above resume, it is clear that the Act has been conceived and
enacted as a comprehensive measure and provides for both substantive and
adjectival subjects bearing on matters matrimonial. The name of the Act "The
Indian Divorce Act, 1869" does not furnish a true clue to the scope and ambit of
the Act. The Act deals with not only the law of divorce, but, it also deals with
a number of matters relating to the law of marriage.

   6. Section 2 of the Act prescribes general conditions which require to be
satisfied in order to enable the Court to exercise jurisdiction in matters
matrimonial and to entertain petition for the various kinds of decrees and
orders provided for by the Act. That section makes a distinction between three
kinds of decrees (i) decrees for dissolution of marriage; (ii) decrees for
nullity of marriage; and (iii) other decrees. The second paragraph of Section 2
prescribes that either the petitioner or the respondent must be a Christian in
all petitions under the Act. In the case of decree of dissolution for marriage,
that section enacts that, before the Court can exercise jurisdiction, it is
necessary that parties to the marriage must be domiciled in India at the time
when the petition is presented. In the case of decree of nullity of marriage,
the section prescribes as a condition precedent to the exercise of jurisdiction
that the marriage must have been solemnized in India and that the petitioner
must be a resident in India at the time when the petition is filed. The last
paragraph of Section 2 of the Act prescribes that in cases of decrees other than
the decrees of dissolution of marriage or of nullity of marriage, the petitioner
must be a resident of India at the time of filing the petition. Therefore,
Section 2 is an important section which prescribes the condition precedent to be
satisfied before the Court can undertake the performance of the duties cast upon
it by the Act.

   7. Then come Sections 4 to 9 which, as already stated, deal with the subject
of jurisdiction of the Court on which matrimonial jurisdiction is conferred by
the Act. Sections 5 and 6 are temporary in scope. Section 5 deals with the
subject of the enforcement of decrees already passed by the Supreme Court or the
High Courts. Section 6 deals with procedure to be followed in respect of suits
pending in the High Court on the date of the commencement of the Act. Section 8
deals with the extraordinary jurisdiction of the High Court in respect of
matters instituted in the District Court. Section 9 constitutes the High Court a
Court of reference in respect of matters pending in the District Court. The
important sections, however, are Sections 4 and 7 and the question about the
jurisdiction, raised in the present case must of necessity be decided primarily
with reference to the provisions contained in these two sections. Both the
sections deserve to be quoted in full. Section 4 reads as follows:

     The jurisdiction now exercised by the High Courts in respect of divorce a
mensa el thoro, 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: except so far as relates to the granting
of marriage-licenses, which may be granted as if this Act had not been passed.

   Section 7 reads as follows:

     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.

   8. Then there is a proviso which need not be quoted as it is not relevant to
the subject in hand.

   9. As the question which is raised before us relates to the jurisdiction of
the District Court, it will be useful if we bear in mind, whilst construing the
aforesaid two sections, that what has got to be ascertained is the jurisdiction
of the District Court to grant a decree for nullity of marriage on a ground
described by the Indian Christian Marriage Act, 1872.

   10. Analysing Section 4, it is crystal clear that the jurisdiction which is
conferred on die District Court is the same as the jurisdiction which is sought
to be retained for the High Court. The section assumes that the High Court
already exercised certain jurisdiction in respect of matters matrimonial. The
section does not make any such assumption in respect of the District Court. The
section does not say in terms that the District Court had previously no
jurisdiction in respect of these matters. We may say that our attention was not
drawn to anything which would establish the existence of any such jurisdiction
in the District Court prior to the enactment of the Act. However, whatever was
the jurisdiction of the District Court prior to the passing of the Act, there is
no doubt whatsoever that that jurisdiction was not retained by the Act. After
the Act, the District Court can possess oaly such jurisdiction which the High
Court possessed before the Act was passed. But the jurisdiction of both the High
Court and the District Court is limited by a qualification. The section says in
express terms that the jurisdiction must be exercised "subject to the provisions
contained in this Act and not otherwise." Therefore, the intention of the
Legislature is quite clear (i) that the High Court and me District Court are to
exercise the same jurisdiction which was formerly exercised by the High Court;
and (ii) that the jurisdiction is to be so exercised in accordancs with the
provisions contained in the Act and not in any other manner. Taerefore, the
extent of the jurisdic tion of the District Court will depend upon the extent of
the jurisdiction possessed by the High Court at the date when the Act was
passed. Now the matters in respset of which the jurisdiction of the High Court
is retained are expressed in the section in the widest possible terms. The
matters mentioned are not only divorce a mensa et thoro, but "all other causes,
suits and matters matrimonial". A proceeding for nullity of marriage will
undoubtedly be included in the above wide expression. Such a pro ceeding will be
either a matrimonial cause or a matter matrimonial. Under the circumstances, in
our judgment, and on the interpretation of Section 4 of the Act, there cannot be
any doubt that the District Court, after the passing of the Act, will have the
same jurisdiction in a cause or matter relating to nullity of marriage which the
High Court possessed at the date when the Act was passed.

   11. That, at once, raises the question as to what jurisdiction the High Court
itself possessed in respect of nullity of marriage at the date when the Act was
passed. The question for consideration is whether the High Court had
jurisdiction to pass a decree for nullity of marriage on the ground that the
marriage in question was void under Section 4 of the Indian Christian Marriage
Act, 1872. Ex hypothesi, the High Court could not have had any such jurisdiction
before the Act was passed because the Indian Christian Marriage Act, 1872, was
not on the statue book on the date on which the Act was passed. Therefore,
unless one is able to hold that the former jurisdiction of the High Court in
respect of matters relating to nullity of marriage was wide enough to include a
power to grant a decree of nullity of marriage on a statutory ground then
existing or created thereafter, one cannot say that the District Court has
acquired jurisdiction under the Act to entertain a petition for nullity of
marriage on the ground that the marriage in question was a nullity under a
statute law. Moreover, even if the High Court did possess such jurisdiction, the
question will have also to be further examined as to whether any change on that
subject is made by the Act because Section 4, as already staged, enacts in
express terms that the jurisdiction of the Court has to be exercised "subject to
the provisions contained in the Act and not otherwise.

   12. Before 1857, in England, the Ecclesiastical Courts and certain high
dignitaries of the Church used to exercise exclusive jurisdiction in respect of
divorce a mensa et thorn, suits for nullity of marriage, suits for restitution
of conjugal rights and for jactitation of marriage (vide Rayden on Divorce, 6th
Edition. 'Historical Introduction'). By the Matrimonial Causes Act, 1857, the
jurisdiction then exercised by the Ecclesiastical Court in England in respect of
matrimonial matters and in respect of all causes, suits and matters matrimonial
was taken away from that Court and was conferred upon a new Court of Record,
called "The Court for Divorce and Matrimonial Causes" and, in 1873, this new
Court became a part of the High Court of England which was established by the
Judicature Act, 1873. Before 1861, the Supreme Court at Bombay exercised the
same Ecclesiastical jurisdiction which the Ecclesiastical Courts exercised in
England in respect of causes and matters matrimonial. It is riot necessary for
us to discuss for the purposes of the present suit the extent of the Ecclesi
astical jurisdiction of the Supreme Court at Bombay. The High Court of Bombay
was established by an Act of Parliament passed in 1861. That Court inherited the
jurisdiction of the Supreme Court of Bombay.

   13. The 9th section of the Act of Parliament for establishing High Courts of
Judicature in India, (24 and 25 Vic. Ch. 104)-provided that the High Courts
shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters Patent
shall grant and direct. Under the authority thus conferred by Parliament, the
35th section of the Letters Patent, provided as follows:

     And we do further ordain that the said High Court of Judicature at Bombay
shall have Jurisdiction in matters Matriomonial between our subjects professing
the Christian religion, and that such Jurisdiction shall extend to the local
limits within which the Supreme Court cow has Ecclesiastieal Jurisdiction.
Provided always that nothing herein contained shall be held to interfere with
the exercise of any Jurisdiction in matters matrimonial by any Court not
established by Royal Charter within the said Presidency lawfully possessed
thereof.

   From the aforesaid clause, it is quite clear that the High Court of Bombay
was conferred jurisdiction, in matters matrimonial, over Her Majesty's subjects
professing the Christian religion. The words "matters matrimonial" have not been
defined in the Act. However, in our judgment, these words are wide enough to
include the matters dealt with by the Indian Divorce Act. As already held, a
petition for declaring a marriage null and void is in respect of a matrimonial
matter and a decree granting such a relief pertains to the jurisdiction of a
matter matrimonial. That such petitions and decrees are included in the
comprehensive expression "matters matrimonial" is quite clear also from the
provisions of the Act which we have summarized above, which includes petitions
and decrees for nullity of marriage. Under the circumstances, in our judgment,
whatever may have been the law governing the marriage of Christians before the
Letters Patent were granted to the High Court of Bombay and whatever limitations
may have been placed on the matrimonial jurisdiction of the Supreme Court, the
jurisdiction of the High Court of Bombay over persons professing the Christian
faith in regard to matrimonial matters, after the grant of the Letters Patent,
was of a wide amplitude and that it was not circumscribed in the manner the
jurisdiction of the English Courts was circumscribed by the Matrimonial Causes
Act, 1857. If we read Section 4 of the Act in conjunction with Clause 35 of the
Letters Patent, prima facie, it would appear that the jurisdiction of the High
Court, Bombay, at the time when the Act was passed in relation tomatrimonial
matters included the power to entertain a petition and to grant a decree for
nullity of marriage. Clause 35 did not de-limit that power by any words of
limitation, nor did it limit the jurisdiction to pass decrees only on grounds
then obtaining, nor did it exclude the jurisdiction to pass decrees on new
grounds created by any statute then existing or to be passed in future. The
clause does not make any specific reference to the grounds on which decrees
relating to matrimonial matters were to be passed. But it may be safely assumed
that the jurisdiction in respect of these matters would be exercised in the same
way at least as it was exercised by the Ecclesiastical Courts and English
Courts. Under the circumstances, in our judgment, the jurisdiction which the
High Court possessed when the Act was passed, included a jurisdiction to
entertain a petition for and to pass a decree for nullity of marriage and that
jurisdiction was preserved in tact subject to the provisions of the Act, by
Section 4 of the Act. Therefore, in deciding the question of jurisdiction, the
following points require to be borne in mind: (i) That the Supreme Court of
Judicature at Bombay had exercised Ecclesiastical jurisdiction; (ii) that that
jurisdiction was inherited by the High Court of Bombay when it was established
by the Act of 1861; (iii) that the High Court was given a jurisdiction over
matrimonial matters by Clause 35 of the Letters Patent; and (iv) that
jurisdiction was not restricted by any limitations as to the grounds on which
the decrees for nullity of marriage were to be passed.

   14. Now, in so far as the High Court inherited the Ecclesiastical
jurisdiction of the Supreme Court of Judicature, the High Court did not possess
jurisdiction to grant a decree for nullity of marriage on any statutory
provision. The Ecclesiastical Court in England did not possess any such power.
The Matrimonial Causes Act of 1857 also did not in express terms confer any such
power. That Act only conferred the same jurisdiction on the Court of Record
named the Court for Divorce and Matrimonial Causes which was then exercisable by
the Ecclesiastical Court. However, as already mentioned, Clause 35 of the
Letters Patent is couched In wide terms and would prima facie include power to
entertain all matters matrimonial including suits for nullity of marriage.

   15. The next question for consideration is whether the Act itself confers any
express jurisdiction upon the Court to pass decrees for nullity of marriage on a
statutory ground. It is necessary to examine this question because as
alreadymentioned, Section 4 expressly enacts that the Court has to exercise
jurisdiction subject to the provisions of the Act. The relevant sections are
Sections 18 and 19 of the Act which read as follows:

   Section 18:

     Any husband or wife may present a petition to the District Court or to the
High Court, praying that his or her marriage may be declared null and void.

   Seetion 19:

     Such decree may be made on any of the following grounds:

     (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 consanguinity
(whether natural or legal) 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.

   Nothing in this section shall affect the 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".

   16. None of these two sections contains a specific provision conferring
jurisdiction upon the Court to grant a decree for nullity on the ground that the
marriage is void under some statutory provision. Thus the Act itself does not
expressly confer jurisdiction on the Court to pass a decree for nullity of
marriage on the ground of a statutory provision. We will have, later on, to
revert to the above two sections with a view to consider whether even if the
High Court had previously jurisdiction to pass a decree for nullity on a
statutory ground, the provisions of Sections 18 and 19 prohibit or not the
exercise of any such jurisdiction. That, however, is entirely a different aspect
and we propose to consider the "same after we have examined Section 7 of the
Act.

   17. Section 7 enacts that the Court "shall act and give relief on principles
and rules which,... 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." However, these principles and rules are to be
applied subject to the provisions contained in this Act." Section 7 has come up
for judicial interpretation more than once in the High Court of Bombay.
Divergent views have been expressed by several learned Judges regarding the
wisdom of this provision. In Alfred Wilkinson v. Grace Emily Norah Wilkinson and
Anr. AIR. 1923 Bombay 321 at page 338 Marten J. after construing Section 7 made
the following observation:

     ...the construction of the Act which I would adopt shows that the Indian
Legislature dealt with a very difficult question in a most skilful manner, for
by its flexibility it enables all Courts both in India and in England to act on
the same principles, despite the passage of time and the change of
circumstances.

   On the other hand, Chagla, C.J. made the following adverse remarks on the
section in Ramesh Ramanlal Saraiya v. Kusum Madgaokar 50 Bombay Law Reporter 426
at page 434.

     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
to-day that such a provision should find place in the Divorce Act of this
country when India has now become a full-fledged Dominion as sovereign as
England herself.

   18. In the same case, Tendolkar, J. also made similar observations regarding
the wisdom of the same provision. However, Judges are not concerned with the
merits or the demerits of the policy underlying Section7 of the Act. That is for
the Legislature to consider and decide. They are only concerned with the task of
the construction of Section 7. Fortunately, all the aforesaid three Learned
Judges have agreed in the matter of the construction of Section 7. With respect,
the construction put by them is in accordance with the plain language of the
section. The section says in specific terms that, subject to the provisions
contained in the Act, the Court shall act and give relief on the same principles
and rules on which the English Courts act and give relief. All the Learned
Judges, who have had occasion to construe the section, have agreed that the
section has been enacted so that the Indian Law relating to matrimonial matters
and administered by the Court should develop alongside the English law. There
fore, it is quite clear that, when the Act is silent on a point of principle or
rule relating to matrimonial law, it is the duty of the Court to ascertain what
the principle or rule on the same subject in England is and the Court must apply
that English principle and rule "subject to the provisions contained in the
Act." The latter expression has also come up for construction in more than one
Bombay case. The views taken by the learned Judges as regards the interpretation
of that expression reveals a cleavage of opinion, although, in a large majority
of cases, whether one view is accepted or the other the result will be the same.
In.. Wilkinson v. Wilkinson aforesaid Marten J. said that Section 7 is the
dominating section in the Act and that it obliges the Indian Courts to follow
the principles of English Courts. However, Crump, J. said in the same case that
the expression only makes the section residuary to be resorted to only when
there was no express provision on a subject in the Act and has not the effect of
making the provision as overriding the other-provisions of the Act. In Ramesh
Saraiya v. Kusum Madgaokar, Chagla C.J. agreed with the view of Marten J.
expressed in Wilkinson v. Wilkinson. At page 336, Marten J. observed as follows:

     ...the Indian Legislature intended by this clause to ensure reasonable
uniformity between the various High Courts of this country and the English
Courts, and as far as praticable to avoid the scandal of parties being regarded
as married persons in one Indian Province but not in another. I think it also
intended to provide for the then uncertainty of the law on the subject, and for
the possibility that the principles of the English Courts might be modified in
course of time.

   19. Chagla, C.J. expressed the same view by observing in Ramesh Saraiya v.
Kusum Madgaokar that "the object of enacting Section 7 was to make the Indian
Divorce Act flexible and not static and that the intention was that, that law
should develop alongside the English law." Whatever view one takes as to the
nature and the scope of the enactment as to whether it is dominating or
residuary, the correct interpretation of the section appears to be that the
English principles and rules have got to be applied to Indian cases subject to
the provisions of the Act and the effect of the whole of the section appears to
be that, unless the Court finds that its jurisdiction to grant a relief or to
act in a certain manner is expressly negatived by any provision of the Act, the
Indian Court must give effect to the principles and rules administered by the
English Courts. Chagla, C.J. in Ramesh Saraiya v. Kusum Madgaokar at page 434
has expressed the conclusion in the following words:

     In my opinion, Section 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 give the same relief that the English Courts would give on the same facts and
on the same materials.

   In fact, in Ramesh Saraiya v. Kusum Madgaokar it was decided that, though in
a case for dissolution of marriage, the Act did not confer in express terms the
power to grant permanent alimony, the Court derived that power when an English
statute conferred such a power upon the English Court. This result was arrived
at by applying Section 7 to the fact of the case.

   20. There is some difference of opinion between the different High Courts as
to whether Section 7 refers to only substantive law or procedural law or both In
Abbott v. Abbott and Crump, (1869) 4 Beng. L.R. (O.C.J), 54, the view was taken
that Section 7 did not apply to points of procedure, but that it applied to the
general principles and rules on which English Courts acted and gave relief. In
Ramsay v. Boyle (1903) I.L.R. 30 Calcutta 489, this case was followed by Chief
Justice Maclean. In A.v.B., I.L.R. 22 Bombay 612, a Division Bench of the Bombay
High Court refused to apply the principles and rules regulating English
procedure and expressed the opinion that the principles and rules in Section 7
were quasi substantive rather than mere adjectival law. However, there is
perfect unanimity amongst all learned Judges that Section 7 applies the
substantive English law relating to matrimonial matters to Indian conditions
and, fortunately, in this case, we have not to consider the question whether
procedural law is or is not included in Section 7.

   21. The next question to which we have to address ourselves is to ascertain
what the English law on the same subject is. The Matrimonial Courts, Act, 1857,
did not contain any provision for grant of a decree for nullity of marriage on a
statutory ground. The Act which was in force In England when the present suit
was filed was the Matrimonial Causes Act of 1950, Section 8 of which is
important. The relevant part of Section 8 is as follows.

   Section 8, Sub-section (1):

     In addition to any other grounds on which a marriage is by law void or
voidable, a marriage shall be voidable on the ground-

.. .. ... ... ...

   22. Thereafter, the section mentions four grounds on the basis of which a
decree for nullity can be passed. Therefore, Section 8 provides in express terms
that a decree for nullity can be passed in English on a ground mentioned in any
statute. The question for consideration is whether this provision should or
should not be applied by the Court in India.

   23. Now, the expression "principles and rules" used in Section 7 of the Act
has not been restricted only to me principles and rules enunciated and applied
by the Judges in England. There can be no doubt that expression includes the
principles and rules enacted by the statute law. In Saraiya's case, the
provision contained in English statute was applied and it was held that the
Indian Court had jurisdiction to make an order for permanent alimony by virtue
of the fact that such jurisdiction was conferred by the English statute on the
English Court. Under the circumstances, in our judgment, Section 7 of the Act,
read with Section 8 of the Matrimonial Causes Act, 1950, gives jurisdiction to
the Indian Court to grant a decree for nullity of marriage on a statutory
ground. This of course would be subject to there being anything contrary in the
Act itself.

   24. But before we examine the question whether there is anything to the
contrary in the Act, we may refer to the expression to "act and give relief
"used in Section 7 of the Act. The question for consideration is whether this
expression excludes from its purview a new ground for divorce or nullity of
marriage. The use of the two words "to act and givev relief in juxtaposition
with each other has led to an argument that the English principles and rules
have got to be applied only in the matter of granting relief and similar other
things and that those words exclude the addition of a new ground for granting a
matrimonial relief. In other words, the argument is that a new ground which
comes to be added in England either as a result of statutory provision or
judicial decision cannot be made the basis by the Indian Court for giving
matrimonial relief, if the ground is not included in the Act itself. Such an
argument was considered in Ramesh Saratya, v. Kusum Madgaokar and was left open
by both the learned Judges who constituted the Division Bench. Chagla, C.J. at
page 439 says as follows:

     A decree for dissolution is the relief which a Court grants on certain
grounds. The grounds are mentioned in Section 10 of the Divorce Act. It may be-I
am not deciding this question-that under Section 7 it would not be open to the
Court to add to or change those grounds.

   Tendolkar, J. whilst also leaving the question open however, chose to
express, though tentatively, the view that a new ground for granting matrimonial
relief cannot be added under Section 7. At page 441, the learned Judge made the
following observations:

     Mr. Taraporewala contends that if the principles and rules of English law
had to be introduced for the purpose of granting relief, then grounds either for
nullity of marriage or for divorce not recognised under the Indian Divorce Act
would be introduced into the Indian law. I must resist the temptation of
expressing an opinion on this somewhat fascinating question because it does not
arise for decision before us. Prima facie, with the qualification that I feel
inclined to place on the interpretation of Section 7, vizthat it cannot be
utilised for the purpose of inventing a cause of action for a litigant, I would
be inclined to think that such grounds could not be introduced into India. But
if they have to be as a result of what I consider to be the correct
interpretation of Section 7, that is a consequence which to my mind has got to
be faced; and that cannot deter us from putting the correct construction on
Section 7 of the Indian Divorce Act.

   Therefore, the question has not been finally decided in Ramesh Saraiya v.
Kusum Madgaokar The expression 'act' used in Section 7 should not be construed
ejusdem generis, with the expression relief. That expression has a different
connotation from the expression relief. That expression, in our judgment, should
be construed in a wide sense inasmuch as the intention behind Section 7 appears
to be to bring the Indian law relating to matrimonial matters concerning the
Christians abreast the law developing in England. The expression 'act' in our
judgment would include a power to grant relief on a cause of action. In
Wilkinson v. Wilkinson Marten, J. made the following pertinent observations at
page 336 of the report relating to the scope and ambit of Section 7 which would
show that a new ground is not excluded from the jurisdiction of the Court.

     It cannot be said that 'principles' referred to in Section 7 do not include
such a vital principle as the foundation of jurisdiction itself.

   25. Then there is a decision of the Madras High Court in Sumathi Ammal v.
Paul reported in (1935) I.L.R. 59 Madras 518 in which an argument similar to the
one which appealed to Tendolkar J. was nagatived. In that case, in dealing with
the argument that a certain interpretation may import into Indian law a ground
for divorce contrary to the provi sions of the Indian Divorce Act, the Learned
Judge after pointing out the provisions contained in the Act were different from
those which were dealt with as grounds for divorce in England and that as such
those grounds would be contrary to the provisions of the Indian Divorce Act,
made the following observations:

     Had there not been a provision to the contrary, we could have followed even
that important change.

   26. In this connection, it is important to notice that if the Court gets
jurisdiction to grant a relief for nullity of marriage, on the ground that it is
void under Section 4 of the Indian Christian Marriage Act, the jurisdiction is
derived by the Court not by virtue of any statutory ground recognised by the law
of England, but the Court will be granting a decree on a ground created by the
Indian statute itself. The only question would be whether the Court established
by the Act will or will not have jurisdiction to grant that relief simply
because there is no specific reference to that particular ground in the Act
itself. Having regard to Section 8 of the Matrimonial Causes Act, 1950, already
referred to, there is no doubt whatsoever that if similar legislation had been
brought on the statute book in England, then the Matrimonial Court in England
will have jurisdiction to grant the decree for nullity of marriage on the new
statutory ground. In our judgment, having regard to the fact that the principle
underlying Section 7 is to confer a wide jurisdiction on the Indian Court in
matters matrimonial and specially having regard to the fact Section 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.

   27. 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
negative the jurisdiction of the Court to grant a relief on a ground other than
those mentioned in Section 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 Section 10,
does not embody in it the ground on which the petition is to be made. The right
to make a petition for nullity of marriage is conferred in Section 18 in general
terms. The right of the petitioner to make such a petition is not made dependent
upon any ground. Therefore, Section 18 does not impose any restrictions on the
right of a spouse to present a petition for nullity of marriage. Turning to
Section 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 Section 7 is that there must be some specific and pos tive
prohibition contained in the Act which prevents a Court form 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
Section 10 of the Act, with which we are not concerned, on a consideration of
the provisions of Sections 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 including an
implied prohibition, we do not find anything in the language of Sections 18 and
19 which can enable us to read therein an implied prohibition to grant relief on
a new statutory ground.

   28. Mr. Shah, the Learned Counsel for the respondent, argued that whatever
jurisdiction the High Court might have exercised on this subject previously, the
present jurisdiction on the same subject of the High Court was circumscribed by
the provisions of the Act and that, unless power was found within the four
corners of the Act, to exeicise such jurisdiction, the High Court would not have
any such power and consequently the District Court, a fortiori would not have
any similar power. This argument was based upon the expression "subject to
provisions contained in this Act and not otherwise" used in Section 4 of the
Act. Emphasis was laid on the prohibitory nature of the language and especially
upon the difference between the language used in Section 4 and that used in
Section 7. Whereas Section 7 says that the English principles and rules are to
be applied 'subject to the provisions contained in the Act', Section 4 in
addition states that jurisdiction is not to bd exercised otherwise than in the
manner contained in the Act. We are in agreement with the subsmission of Mr.
Shah that the jurisdiction conferred upon the Court in Section 4 has got to be
exercised subject to the provisions of the Act and not in any other manner and
that the true meaning of this expression is that the jurisdiction is to be
exercised only in accordance with the provisions contained in the Act and not in
any other manner. But, we are not in agreement with his further submission that
there is no provison, other than Section 4, in the Act which deals with the way
in which the jurisdiction is to be exercised. Moreover, in our judgment, Section
7 is as much a provision contained in the Act as any other provision. If the
true meaning of Section 7 is that the English priniciples and rules are to be
applied by Indian Courts, then, that section is direcctly brought into play by
virtue of the aforesaid expression contained in Section 4 itself. As Section 7
is a part of the Act itself, if, as a result of the construction thereof, it is
held that the Indian Court has got to apply the English rules and principles,
then, the Indian Court will be exercising jurisdiction in accordance with the
provisions of the Act and not otherwise if it applies English rules and
principles.

   29. We may now examine the cases which were cited at the bar. Some cases
cited at the bar deal with the subject in hand. The cases reveal a conflict of
views. In the case of E.L. Gasper v. W. Gonsalves (1874) 13 Beng. L.R. 109 the
view was taken that the Court has no jurisdiction to grant a decree for nullity
of marriage on a ground other than that mentioned in Section 19. Unfortunately,
the report of this case is not available in the local library and, therefore, we
do not know the reasons which appealed to the learned Judges who decided the
case to take this view. This decision has been relied upon in some of the
subsequent decisions in which the same view has been taken.

   30.The next case in which exactly the same question arose for decision is the
case of Mt. Titlt v. Alfred Robert Jones, . The case was decided by a Division
Bench consisting of Sulaiman C.J. and Mukerji J. The decision was that the Court
has no jurisdiction to grant decree for nullity of marriage on the ground that
the marriage was void under Section 4 of the Indian Christian Marriage Act and
that the petition for such a relief should be filed in the ordinary Civil Court.
The principal judgment was delivered by Mukerji J. The reasons for the above
view are to be found in the judgment of Mukerji J. at page 275. The judgment
proceeds on the basis that the matrimonial jurisdiction of the High Court is to
be exercised in accordance with the provisions of the Divorce Act of 1869 and in
accordance with that Act alone. As already pointed out, we are in agreement with
this view. Having said so, the learned Judge proceeds to discuss the matter as
follows:

     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.

   31. 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 Section 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 Section 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 x The grounds on which a suit can be entertained under
the Divorce Act are indicated in Section 19. The principles and the rules which
are to be followed may, under Section 7, be as nearly as may be conformable to
the principles and rules on which the Courts in England act.

   32. 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 Section 7 does not confer any additional jurisdiction. In our
judgment, in so far as Section 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. We have already given our reasons for reaching this conclusion
which conclusion is supported by the observation made by Marten, J. in Wilkinson
v. Wilkinson already quoted. In our judgment, there cannot be any doubt that,
even on a point of jurisdiction, the English rules and practice must apply by
virtue of the provisions contained in Section 7.

   33. In Lish v. Lish and Ors. A.I.R. 1923 Patna 301 Bucknill J. held that the
jurisdiction of the High Court in matters matrimonial was only such jurisdiction
as was comprised within the provisions of the Indian Divorce Act. In that case,
a wife asked for a declaration that her marriage with one Charles Lish was valid
and lawful. The learned Judge first examined the submission of the counsel that
the matrimonial jurisdiction which was conferred by Clause 27 of the Letters
Patent constituting the High Court of Judicature at Patna conferred an
unrestricted jurisdiction in all matters matrimonial in the High Court including
jurisdiction to grant a declaration of the aforesaid kind. Though the learned
Judge did not reach a definite conclusion on this submission, he examined the
legal position on the assumption that such was the law, but he concluded that
whatever might have been the legal position before the enactment of the Indian
Divorce Act, the position was altered by that enactment. This is what the
learned Judge observed:

     The Learned Counsel urged that at that date it was probable that there
existed in that High Court an unrestricted matrimonial jurisdiction and that at
that date a suit such as the present one brought in this Court could have been
there entertained. However that may be the Indian Divorce Act (IV of 1869),
clearly altered the position as to jurisdiction so far as High Courts
established prior to the date of the enactment are concerned. This Act, which
came into operation on the 1st of April 1869, declared in its Preamble that it
was expedient to amend the law relating to the divorce of persons professing the
Christian religion and to confer upon certain Courts jurisdiction in matters
matrimonial and it proceeds later to define the nature of those matters which
are to be regarded as matrimonial and in respect of which Courts are to have
jurisdiction." Then the learned Judge quotes Section 4 of the Act and proceeds:
"It is not contended here (indeed it is a matter of common ground) that there is
anything in the Indian Divorce Act which definitely contemplates that a suit
asking for a declaration of validity of a marriage conies within its purview.

   34. The learned Judge then refers to Section 7 of the Act and mikes the
following observations:

     This section, however, to my mind, merely indicates the pincioies upon
which the Courts shall generally act and in no way enlarges the scope of the
jurisdiction as defined in those sections of the Act where jurisdiction is
expressly categorized. It is, I gather, admitted that had the Letters Patent
establishing the Patna High Court been promulgated in the year 1868 there could
have been doubt whatever that its jurisdiction (whatever it may have been
before) would have been limited by this Section 4 of the Indian Divorce Act; but
it is suggested that as the Letters Patent establishing this Court only came
into effect in 1916, the words, "matters matrimonial".

     as used in clause 27, may be construed as contemplating a larger
jurisdiction than that to which at any rate High Courts existing prior to the
Indian Divorce Act of 1869 were by that Act restricted. I have very little
hesitation in coming to the conclusion that they cannot. In my view, although it
is possible to read into the phrase "matters matrimonial" a very broad meaning,
yet when we find that expression is identical with that used in the Indian
Divorce Act, is not unreasonable to suppose that the meanings in both the Act
and the Letters Patent should be properly construed as consonant and identical.

   35. With great respect, we cannot agree with the observation that Section 7
cannot deal with the question of jurisdiction and that the meaning of the
expression 'matters matrimonial' used in the Letters Patent must be restricted
to matters speiifically mentioned in the Act only. In our judgment, for the
reasons already given, Section 7 is wide enough to include the jurisdiction of
the matrimonial Court.

   36. In the case of Consterdine v. Smaine A.I.R. 1918 L.B. 83- 471. C. 544,
the same view which we have taken above was taken. Unfortu nately, the report of
that case also is not available in the local library and, therefore, we do not
know the reasons which appealed to the learned Judges to reach that conclustion.
That case is referred to in Mt. Titli v. Alfred Robert Jones already cited. The
deci sion is disposed off by Mukerji, J. on the ground that he is not prepared
to accept the view expressed in that case as the correct one.

   37. The case of Alfred Robert Jones v. Titli alias Tereza was originally
tried by Young, J. and his judgment is reported in I.L.R. 55 Allahabad 185. In
that case Young, J. took the same view as we have taken above. The learned
Judge, after quoting Section 4 of the Indian Divorce Act and after noticing the
argument of the Learned Counsel that that section in terms prohibited the Court
from considering questions arising under the Indian Christian Marriage Act,
1872, and after mentioning the two cases of Lopez v. Lopez and Consterdine v.
Smaine already referred to, proceeds to decide the question of the jurisdiction
of the Court in the following way:

     The Indian Christian Marriage Act became law three years after the Indian
Divorce Act. The Indian Divorce Act must have been within the knowledge of the
Legislature. It is therefore difficult to argue that the; High Court had no
jurisdiction to decide the very important questions which must arise out of the
Indian Christian Marriage Act. If that were so, the Act would be dead. The
various grounds on which the Court can give a decree of nullity in the Divorce
Act refer to cases where has been a marriage validly performed. Questions arise
under Sections 4 and 5 of the Indian Christian Marriage Act when the marriage
has not been validly performed. There is a clear distinction between a decree of
nullity of a valid trurriag; and a declaration that the marriage itself is
illegal and Void There can, in my opinion, be no doubt that there is
jurisdiction in the High Court to hear and decide questions under the Indian
Christian Marriage Act.

   38. In our judgment, the reasons given by the learned Judge are not valid and
cannot be supported. If as a result of the of the Indian Divorce Act, the
conclusion is reached that the Indian Court has got no jurisdiction to deal with
a matrimonial matter of the aforesaid kind, then, the assumption of jurisdiction
by that Court on the grounds mentioned by the learned Judge cannot be justified
Moreover, the observation that, if the jurisdiction were not to be exercised,
then, the Indian Christian Marriage Act would be a dead letter, cannot be
justified. As pointed out in the judgment of Mukerji J. in the same case when it
went in appeal, the jurisdiction can be exercised by a Court having ordinary
civil jurisdiction.

   39. On the whole, after giving a careful consideration of all the pros and
cons of the case, we have come to the conclusion that the Court has got
jurisdiction to entertain a petition praying for a decree of nullity of marriage
on the ground that it is void under Section 4 of the Indian Christian Marriage
Act, 1872, and that it has got the power of granting such a decree by virtue of
the provisions contained in Section 7 of the Act and the present state of the
law in England as embodied in Section 8 of the Matrimonial Causes Act, 1950,
which, in express terms, gives jurisdiction to the Matrimonial Division of the
High Court of England to grant a decree for nullity of marriage on a statutory
ground.

   40. Having regard to our aforesaid conclusion, in our judgment, the matter
must be remanded to the District Court for affording a chance to the parties to
lead fresh evidence and for certification of finding on the following issue:

     Does the petitioner prove that the respondent was a Christian at the time
of the celebration of her marriage with him?

   41. The learned District Judge shall record additional evidence on the
aforesaid issue and certify his finding to this Court within two months from the
date of the receipt of the record. Cost of remand shall be cost in appeal.

   BAKSHI, J.

   42. This is a reference under Section 20 of the Indian Divorce Act, 1869
(hereinafter referred to as the Act) for confirmation of the decree of nullity
of marriage passed by the learned District Judge, Kaira, at Nadiad, in Divorce
Suit No. 1 of 1961. The ground on which the prayer for declaring the marriage
null and void was based is that the petitioner and the respondent were Christian
by faith at the time of their marriage and as their marriage was performed
according to Hindu rites, the marriage was void under Section 4 of the Indian
Christian Marriage Act, 1872, which provides that every marriage between
person"?, one or both of whom is or are a Christian or Christians, shall be
solemnized in accordance with the provisions contained in Section 5 of the same
Act and any such marriage solemnized otherwise than in accordance with such
provisions shall be void. Such a ground for obtaining a decree for nullity of
marriage is not included in Section 19 of the Act which enumerates the grounds
on which such a decree may be made. It is, therefore, obvious that unless the
provisions of Section 7 of the Act which enables the Court to act on principles
followed by English Divorce Courts in such matters, can legitimately be called
in aid, the Court functioning under the Act, will have no jurisdiction to pass a
decree for nullity on the ground which is urged by the petitioner. Thus this
reference involves a decision on the question whether the Court functioning
under the Act has jurisdiction to pass a decree of nullity of marriage on a
ground not contained in Section 19 of the Act but recognised as a valid ground
by the law prevailing in England on the subject.

   43. This would lead us to an examination of the relevant provisions of the
Act. The preamble of the Act mentions two objects for the enactment, namely (1)
to amend the law relating to the divorce of persons professing the Christian
religion and (2) to confer upon certain Courts jurisdiction in matters
matrimonial. The first relevaat section of the Act is Section 4 which runs as
under:

     The jurisdiction now exercised by the High Courts in respect of divorce a
mensa et hora 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 except so far as relates to the granting
of marriage licenses, which may be granted as if this Act had not passed.

   44. The language of Section 4 of the Act is unambiguous and in clear words
shows that the jurisdiction in matrimonial matters has to be exer cised subject
to the provisions of the Act and not otherwise. In other words, Section 4 of the
Act does not enable the Court to exercise jurisdiction otherwise than in
accordance with the provisions of the Act. If therefore, there is any provision
in the Act relating to a particular subject it is that provision which would
prevail and govern the exercise of jurisdiction by the Court on that subject.

   45. In this context it is necessary to refer to Section 7 of the Act whica
empowers the Court to act on principles of English Divorce Courts. That section
provides that-

     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 Courts for
the Divorce and Matrimonial Causes in England for the time being acts and gives
relief.

   46. The present controversial issue has arisen on account of the peculiar
provision in this section which 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. The section provides that the Courts in India shall, in all suits
and proceedings under the Act, give relief according to those principles and
rules which may be found to be conformable to the principles and rules obtaining
in the Courts haying matrimonial jurisdiction in England. Reading the section by
itself, it would at first sight appear that the principles and rules of English
Law on the subject would apply to all matrimonial causes tried by Courts in
India under the Act unless such application of the principles of English law was
expressly barred and prohibited by some provision in the Act. On this reasoning
it is possible to contend with some force, that a ground recog nised by the
Courts in England for declaring a marriage null and void which does not find a
place in the Act but which is not expressly prohibited by any provision of the
Act, would provide a valid cause of action to sustain a petition for nullity of
marriage before a Court in India functioning under the Act. In order to examine
the validity of this argument, it would be necessary to refer to some of the
other provisions of the Act. It would be necessary to see whether there are any
sections in the Act which deal with the topic of nullity of marriage and what is
the extent of their appli cation. Chapter IV of the Act deals with the subject
of nullity of marriage and contains four sections. Section 18 deals with
petitions for a decree of nullity of marriage and is as follows:

     Any husband or wife may present a petition to the District Court or to the
High Court, praying that his or her marriage may be declared null and void.

   47. Section 19 provides for the grounds on which a decree for nullity of
marriage can be made. That section is as under:

     Such decree may be made on any of the following grounds:

     (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 consangunity
(whether natural or legal) 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.

     Nothing in this section shall affect the 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.

   48. Section 20 requires every decree of nullity of marriage to be confirmed
by the High Court and Section 21 relates to children of an annulled marriage.
These are the specific provisions, in the Act relating to nullity of marriage.
It will be observed that the District Court has been invested under Section 18
with the jurisdiction to entertain a petition for decree of nullity of marriage
and Section 19 of the Act provides for the making of such a decree on the
grounds enumerated therein. Sections 18 and 19, therefore, cumulatively provide
for die forum for instituting a petition and the grounds for granting a decree
for nullity of marriage. There is thus a specific provision in the Act dealing
with the topic of nullity of marriage and which provides for the making of a
decree, the grounds on which such a decree can be passed and the forum for the
institution and trial of such petitions. Section 4 of the Act, to which
reference has already been made, does not empower the Court functioning under
the Act to exercise jurisdiction otherwise than under the rules contained in the
Act. Section 7 of the Act does not relate to the jurisdiction of the Court to
entertain a petition for nullity of marriage or provide the grounds for passing
a decree in such matters and cannot, therefore, confer any additional
jurisdiction or supply grounds outside the provisions of the Act. The grounds on
which such a suit can be entertained are specifically enumerated in Section 19
of the Act and it is only after a proper petition disclosing any one or more of
the grounds stated in that section, is instituted that the occasion for the
application of the principles and rules of the matrimonial Courts of England can
arise. It therefore follows that a petition for nullity of marriage under
Section 18 can be entertained provided it complies with Section 19 and is based
on one or more of the grounds mentioned therein.

   49. If the grounds for nullity of marriage permissible under the English law
but not enumerated in Section 19 were permitted to be availed of in a petition
under Section 18, it would mean that that branch of English law is incorporated
in and made a part of the Indian Divorce Act, inspite of the fact that the
Indian Act makes a specific provision on the subject. Section 7 of the Act
itself makes the application of the principles of English law subject to the
provisions contained in the Act. What is limited and made 'subject to' the
provisions of the Act is the application of die principles of English law and it
would be an incorrect approach to the question to look for a specific provision
in the Act which excludes and negatives the applicability of those principles.
If such an approach is adopted, it would make the principles of English law all
pervasive in their applicability throughout all the stages of any section under
the Act and in all matters on which the Act makes a specific provision.

   50. In view of the clear language of Sections 4 and 7, the operation of both
of which is made subject to the provisions of the Act, it is unnecessary to
refer in detail to decide cases on this subject. In the case of Ramesh Ramanlal
Saraiya V. Kmum Madgaokar reported in 50, B.L.R. at page 426, there are some
observations which appear to lend support to the view urged by the petitioner.
At page 434, Chagla C.J. has observed that,-

     The object of enacting this section was to make the Indian divorce law
flexible and not static. The intention was that the law here should develop
alongsids with the English law. 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 Dspendency 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 full-fledged Dominion as
sovereign as England herself. In my opinion Section 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.

   51. But in the last paragraph of the judgment, the ground on which the relief
was granted in that case has been clearly stated at page 439 in the following
words by Chagla C.J.:

     A decree for dissolution is the relief which a Court grants on certain
grounds. The grounds are mentioned in Section 10 of the Divorce Act. It may be I
am not deciding this question that under Section 7 it would not be open to the
Court to add to or change those grounds. But it is entjrly a different thing to
say that once a decree for dissolution is passed or a decree for nullity is
passed the Court is not entitled to grant the same relief which the Court in
England can grant or would grant; and the subsequent legislation makes this
position clear. A declaratory Act was passed in 1940. That was done for removal
of doubts, and it was provided that in considering what were the grounds on
which a decree for the dissolution of any marriage may be granted by the High
Court in England and what were the principles and rules on which, in the
exercise of its jurisdiction to make decrees for the dissolution of a marriage,
and, as incidental thereto, to make orders as to damages, alimony or
maintenance, custody of children and costs, the High Court in England for the
time being acts and gives relief, certain amendments effected by the Matrimonial
Causes Act, 1937, were to be taken into account. This Act clearly shows the
distinction between grounds on which a dissolution of marriage may be granted
which are incidental to decrees for dissolution of marriage. Therefore, relief
in the nature of alimony is really a relief which is incidental to the passing
of the decree in the suit which is a decree for dissolution or a decree for
nullity. I, therefore, agree with the learned Judge below that this Court has
jurisdiction to grant permanent alimony consequent upon the passing of a decree
for nullity and this power and jurisdiction is derived not from Section 37 but
from Section 7 of the Act. The ommission of the Legislature to provide for this
under Section 37 does not in any way militate against the power of this Court to
follow the principle and rule followed in England and to give the necessary
relief under Section 7 of the Act.

   52. The observations of Chaga C.J. quoted above show that the question
whether it was open to the grounds for dissolution of a marriage by virtue of
Section 7 of the Act was not decided. In the same case, Tendolkar, J. has
expressed as follows:

     It is also contended by him that this section appears under the general
heading "jurisdiction" and the principles and rules of the English Courts which
are contemplated by this section are principles and rules dealing with
jurisdiction only. I am unable to agree with either of those contentions to hold
that the relief must first be found in the Act itself is to my mind doing
violence to the language of the section. The words used in the section are not
"in giving relief the Court shall act," the words are "act and give relief, "so
that it is for the purpose of giving relief itself that the principles and rules
of English law have got to be applied. Similarly, the fact that Section 7
appears under the general heading "jurisdiction", to my mind, does not limit the
plain words of that section to principles and rules dealing with jurisdiction
only. The words are general and they must apply to all cases of giving relief. I
am, however, of opinion that before a Court can act or give relief under this
section there must be a litigant who is entitled to invoke the Jurisdiction of
the Court to grant him relief, in other words, a litigant who has a proper cause
of action under the Indian Divorce Act It is only when a litigant who has a
cause of action comes to a Court that the Court can act or give relief to him;
and, therefore, I am not inclined to read these words as including the
application of the principles and rules of English law to the creation of a
cause of action, but only to the granting of reliefs where a litigant has a
cause of action given to him under the Act.

   53. It would thus appear that the decision of the Bombay High Court reported
in 50 B.L.R. 426, has not finally decided the question at issue which is before
us nor are there any conclusive observations therein which run contrary to the
view expressed by me in this judgment. The view I am taking is in consonance
with the view taken in the following authorities, namely, Mt. Titli v. Alfred
Robert Jone A.I.R. 1934 Allahabad page 273 and (Adelide Christiana) Lish v.
(David) Lish and Ors. A.I.R. 1923 Patna 301.

   53.1 It has also to be borne in mind that when we read Sections 18 and 19
together, the latter section provides a cause of action to the petitioner on
which a petition for nullity of marriage can be founded. If we read both these
sections together, it appears clear that Section 19 is exhaustive of all the
grounds on which a petition for nullity of marriage can be based. While Section
7 entitles the Court to act or give relief to the petitioner on principles and
rules on which the Court for Divorce and Matrimonial Causes in England act and
give relief, that section -cannot supply an additional cause of action for
instituting a petition for nullity of marriage under the Indian Divorce Act.

   54. For all these reasons, it must be held that the petitioner was not
entitled to rely and base his petition on any of the grounds not enumerated in
Section 19 of the Indian Divorce Act. It is not disputed that the ground on
which the present petition is not one of the grounds included in Section 19.
That being so, the petition founded on such a ground was not maintainable and
the learned trial Judge had no power to pass a decree under the Act. There is,
therefore, no valid decree before us which can be confirmed under Section 20 of
the Act. In my view therefore the rule issued in this reference should be
discharged.

   MODY, J.

   55. I had the advantage of reading the judgments of my learned brothers
Miabhoy J. and Bakshi J. With respect, I agree with the view taken by brother
Bakshi J. in his judgment for the reasons set out therein.

   56. I am also of the opinion that the petition in the reference before us in
not sustainable under the provisions of Sections 18 and 19 of the Indian Divorce
Act and the rule issued is liable to be discharged.

   P.C. No orders are passed on these proceedings in accordance with the view of
the majority. Each party to bear its own costs.