George Sebastian vs Molly Joseph on 11 January, 2000

    George Sebastian vs Molly Joseph on 11/1/2000

JUDGMENT

   Arijit Pasayat, C.J.

   1. In this reference under Section 20 of the Indian Divorce Act, 1869 (in
short the Act), confirmation of decree for dissolution of the marriage has been
sought for. Husband as petitioner had file the petition, to declare the marriage
as void, under Section 18 of the Act.

   2. The office records show that the petitioner has since died. In view of the
importance of questions involved, we think it proper to deal with the reference
notwithstanding the fact that the petitioner died.

   3. Husband sought for a decree of nullity of marriage between himself and the
respondent-wife on the ground that the latter was lunatic at the time of
marriage and that her earlier marriage was subsisting at the time of marriage
with him. Concealing the said fact the marriage was solemnised on 5.2.1989. By
way of elaboration it was stated that the wife had been married earlier in the
year 1985 to one Prince Joseph, hailing from Pala. Respondent and her family
members gave an impression that her first marriage lasted for only 22 days,
during which it was noticed that her husband was impotent and incapable of
consummating the marriage. The respondent was continuing to be a virgin and the
said marriage was legally dissolved by the Ecclessiastical Tribunal. It was
later on found out by the petitioner that the respondent was not mentally
normal, and that was one of the reasons why her former husband had left her.
Petitioner was led to believe that a decree for divorce from the District Court,
Thodupuzha in accordance with law had been obtained. But later on it surfaced
that no such decree had been obtained. In these circumstances a prayer was made
for declaration that the marriage was null and void. Respondent filed objections
taking a stand that she was not mentally abnormal, and that she was capable of
understanding and discharging the marital obligations. It was the petitioner who
failed to discharge his duties as a husband. It was further stated that with a
view to obtain more money from her father, the petition had been filed.
Previously learned District Judge, Thodupuzha declared the marriage between the
petitioner and the respondent as null and void on the ground that the first
marriage was subsisting. When the matter was sent for confirmation to this
Court, it was remanded to the Trial Court to conduct an enquiry into the
allegation relating to the subsistence of the former marriage and to pass a
decree in the light of the legal position stated in another judgment (CM. Ref.
No. 5 of 1994). Husband took the matter to the Apex Court. It was observed by
the Apex Court that since the District Judge had disposed of the application for
divorce without any enquiry into the allegations relating to the subsistence of
the former marriage, the High Court was justified in remitting the matter to the
District Court for fresh decision. When the matter was taken up afresh, the
respondent who was represented by Counsel did not participate in the proceeding.
Petitioner was examined as P.W. 1 and a certificate issued by St. Thomas
Cathedral, Palai on 28.6.1997 was brought on record. Petitioner's evidence was
to the effect that he was under the impression that there was dissolution of the
marriage through a Court of Law, while in reality there was no dissolution of
the marriage by a competent Court. Ext. A1 certificate stated that the marriage
between one K. Thomas @ prince and the respondent was solemnised on 21.4.1985
and subsequently the said marriage was declared as a nullity as per the order
dated 12.10.1987 by the Ecclessiastical Tribunal. Taking note of the document,
learned trial Judge found that question of dissolution on the basis of the
decision of the Ecclessiastical Tribunal does not arise. As indicated above the
petitioner is dead and the respondent has not entered appearance inspite of
notice.

   4. Chapter IV of the Act deals with nullity of marriage. Sections 18 and 19
of the Act are relevant for the purpose of the present case. They read as
follows :

     "18. Petition for decree of nullity--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.

     19. Grounds of decree--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."

   5. Present dispute is encompassed by Section 19(4). Essential of valid
marriage between Christians is that any party to it should not have a spouse
living at the time of marriage. Existence of spouse makes second marriage void,
unless earlier marriage was set aside prior to such marriage. When a petition to
declare a marriage null and void is made under Section 19(4), the burden of
proof lies upon the petitioner to prove that the previous marriage of the
opposite party was subsisting with full force and effect, and was not set aside
at the time when marriage between petitioner and respondent took place.
Undisputedly respondent relied upon a verdict of Ecclessiastical Tribunal to
claim dissolution of earlier marriage.

   6. From a bare reference to the different provisions of the Act including
preamble thereof it is apparent that the Act purports to amend the law relating
to divorce of persons professing the Christian religion and to confer upon
Courts which shall include Districts Court and the High Court jurisdiction in
matrimonial matters. In this background, unless the Act recognizes the
jurisdiction, authority or power of Ecclessiastical Tribunal (sometimes known as
Church Court) any order or decree passed by such Ecclessiastical Tribunal cannot
be binding on the Courts which has been recognized under the provisions of the
Act to exercise power in respect of granting divorce and adjudicating in respect
of matrimonial matters. It is well settled that when Legislature enacts a law
even in respect of the personal law of a group of persons following a particular
religion, then such statutory provisions shall prevail and override any personal
law, usage or custom prevailing before coming into force of such Act. From the
provisions of the Act, it is clear and apparent that they purport to prescribe
not only the grounds on which a marriage can be dissolved or declared to be
nullity, but also provided the Forum which can dissolve or declare the marriage
to be nullity. As already mentioned above, such power has been vested either in
the District Court or the High Court. In this background, there is no scope for
any other authority including Ecclessiastical Tribunal /Church Court to exercise
power in connection with matrimonial matters which are covered by the provisions
of the Act.

   7. The above position was succinctly stated by the Apex Court in Molly Joseph
v. George Sebastian, 1997 (1) KLT 1 (SC)=II (1996) DMC 452 (SC).

   8. Dissolution of marriage can only be done by the competent Court in terms
of the Act and dissolution by the Ecclessiastical Tribunal has no effect and
binding force. In other words dissolution of a marriage can only be decreed by
the Court described under the Act and not by any other Forum. Section 4 of the
Act confers an exclusive jurisdiction upon the concerned High Court and District
Court in all matrimonial matters under the Act.

   9. Above being the position, learned District Judge was justified in her
conclusions that the earlier marriage between the respondent and Thomas @ Prince
was subsisting. Consequently, husband was entitled to a decree for divorce in
tern is of Section 19 of the Act.

   The decree is accordingly confirmed, and the reference is accepted.