V.H. Lopez vs E.J. Lopez on 8 September, 1885

    V.H. Lopez vs E.J. Lopez on 8/9/1885

JUDGMENT

   Wilson, J.

   1. The main question we have to answer upon this reference is, whether a
marriage between a man and his deceased wife's sister, celebrated in Calcutta in
the year 1877, is liable to be declared null and void, under Section 19 of the
Indian Divorce Act, on the ground that the parties are within the prohibited
degrees, both parties being domiciled in British India and resident in Calcutta,
and both being Roman Catholics. It is not found whether either of the parties to
this marriage is the descendant of English ancestors, or of European settlers in
this country other than English, or of native converts to Christianity, or of
mixed race; their names suggest a Portuguese origin. We are bound to presume
every matter of fact in favour of the validity of a marriage, and therefore if
there be rules as to the prohibited degrees which would invalidate a marriage
between persons connected as these were, 'and if those rules be applicable to
any one class of Christians, but not to all Christian^, we must presume, in the
absence of any proof that they did, that the parties did not belong to that
class. In particular, we must presume, so far as that point is material, that
they are not of British descent, or British in any other sense than that of
being domiciled in British India.

   2. The Divorce Act (IV of 1869) applies to all Christians, and Section 19
enacts that a decree declaring a marriage null and void may be made, amongst
other grounds, on the ground "that the parties are within the prohibited degrees
of consanguinity (whether natural, or legal) or affinity." We have to say what
the prohibited degrees applicable to the marriage now in question are, whether
those prohibited by the law of England or by some other rule.

   3. It will be convenient to divide the inquiry into three parts: First, how
would the matter have stood if it depended only upon, the history of British
acquisitions in India, and the Christians of various classes affected thereby,
in the absence of statutory enactment? Secondly, what was the effect of the
legislation prior to the Divorce Act, and what was the state of the law when
that Act was passed? thirdly, what is the effect of that Act upon the prohibited
degrees?

   4. The first branch of the question may be treated very shortly. The
circumstances under which the British power became established in India, and the
effect of those circumstances upon the laws applicable to the people of the
country, have been often considered. It was authoritatively decided in The
Advocate-General of Bengal v. Ranee Surnomoyee Dossee 9 Moore's I.A. 387 and in
other cases, that these circumstances had not been such as to introduce English
law generally into India. And it certainly could not be contended that any of
the rules of English law as to the capacity to marry have ever become law for
the people of India generally. If we limit the inquiry to Christians, we do not
think it could be contended that the history of the British acquisitions has
been such as, without more, to impose the English law of prohibited degrees upon
all Christians in British India. It was held in Abraham v. Abraham 9 Moore's
I.A. 195 that Hindus adopting Christianity do not necessarily change their laws
of property, but may retain their old law, or adopt that of the class to which
they attach themselves, or establish a customary law. And we think the same rule
must be the correct one as to laws of marriage. But their Lordships lay down the
rule only as to "matters with which Christianity has no concern." And we do not
suppose the law could permit native converts (if one can imagine their desiring
such a thing) to choose for themselves some marriage law wholly repugnant to
Christian ideas--converts from Hinduism, for instance, to retain their former
right to marry more wives than one, or converts from Mahomedanism their former
freedom of divorce. With regard to the English men and women who settled here
and their descendants, other consideration would apply. With them we have
nothing to do in the present case.

   5. In examining the second branch of the inquiry, as to the effect of the
legislation prior to the Divorce Act, it will be convenient to begin with the
charter under which the Supreme Court was constituted in 1774. By the 22nd
section of that Charter the Court "shall be a Court of Ecclesiastical
Jurisdiction, and shall have full power to administer and execute within and
throughout the said provinces, districts, or countries called Bengal, Behar, and
Orissa, and towards and upon our British subjects there residing, the
Ecclesiastical law, as the same is now used and exercised in the Diocese of
London in Great Britain, so far as the circumstances and occasions of the said
provinces and people shall admit or require," with power to entertain all suits
belonging to the Ecclesiastical Courts. Like powers were given to the Bombay and
Madras Courts by their Charters. These Courts had power to entertain suit's for
nullity of marriage and (subject to the qualification contained in the above
section) they were to decide them according to the law of England. The persons
subject to the jurisdiction were British subjects residing in Bengal, Behar, and
Orissa. There has been at various times much discussion as to the meaning of
"British subject" in the legislation of a hundred years ago. The general result
may be stated with sufficient accuracy by saying that "British subject" meant,
not subject of the British Crown, but British subject of the Crown, as
distinguished from native of India, whether subjects of the King of England or
not, a class which would certainly not have included the parties to the present
case. With their marriages the Supreme Court would deal under its Charter; its
jurisdiction was personal on the one hand it extended to the whole province, on
the other hand it was everywhere limited to British subjects.

   7. To ascertain the marriage law for Christians not falling within the
description of British subjects, and the tribunals to administer it, we must
look in another direction. Side by side with the Supreme Court sitting in
Calcutta, there were the Company's Courts in the Mofussil, and they also had
jurisdiction in questions of marriage. Here in Bengal it is not necessary to go
further back than 1793, and the group of Regulations of that year dealing with
the various classes of Mofussil Courts. Regulation III of that year, dealing
with Zilla and City Courts, says in Section 7: "All natives and other persons,
not British subjects, are amenable to the jurisdiction of the Zilla and City
Courts"; and Section 8 empowers those Courts to take cognisance of "all suits
and complaints respecting the succession or right to real or personal property,
land-rents, revenues, debts, accounts, contracts, partnerships, marriage, caste,
claims to damages for injuries and generally of all suits of a civil nature in
which the defendant may come within any of the description of persons mentioned
in Section 7." Similar provisions were made by other Regulations as to Courts of
other grades. Many. changes were from time to time made in the organisation of
the Civil Courts of the Company, but nothing was ever done, so far as we can
learn, which narrowed the matrimonial jurisdiction of the Mofussil Courts
generally, in respect either of persons or subject-matter. How carefully the
Regulations were framed with respect to persons is very apparent from Section 17
of the Regulation, already mentioned, III of 1793. That section, in general
terms, forbids the Zillah Court of the 24-Pergunnahs to entertain suits relating
to land in Calcutta or against persons resident in Calcutta. If this had stood
alone there would have been no express provisions for dealing with questions as
to marriages between persons other than British subjects residing in Calcutta.
Not being British subjects they would not be within the terms of the clause in
the Supreme Court's Charter, which gave ecclesiastical jurisdiction; being
resident in Calcutta they would not be subject to the Zillah Court. Accordingly
Section 17 concludes with a proviso that "the provisions contained in this
section are not to be construed to extend to preclude the Court of Dewany
Adawlut of the Zillah of the 24-Pergunnahs entertaining any suit concerning
marriage or caste in which no money or other valuable thing may be demanded or
decreed, although the cause of action shall have arisen, or the defendant may
reside, or shall have resided at the time the suit commenced, within the limits
of the town of Calcutta."

   8. The precise nature of the matrimonial jurisdiction conferred upon these
Courts, whether it was co-extensive with that of the Ecclesiastical Court in
England, or wider or narrower, we do not think it necessary to examine. What is
essential is that they had authority to hear and decide suits relating to
marriage, including of course questions as to the validity of marriage and
therefore 'questions as to the capacity of persons to marry. The law to be
applied by those Courts to cases of marriage not specifically provided for was '
justice, equity, and good conscience" (Section 21). In the case of Abraham v.
Abraham already cited the Privy Council, speaking of the law of property to be
applied to converts from Hinduism to Christianity, say that they think--This
case fell to be decided according to the Regulation which prescribes that the
decision shall be according to equity and good conscience. Applying, then, this
rule to the decision of the case, it seems to their Lordships that the course
which appears to have been pursued in India in these cases, and to have been
adopted in the present case, of referring the decision to the usages of the
class to which the convert may have attached himself, and of the family to which
he may have belonged, has been most consonant both to equity and good
conscience." We think the same principle applies equally, to questions of
marriage amongst Christians other than British; and that equity and good
conscience prescribed the referring of the decision to the usages of the class
to which the parties belonged.

   9. A series of Acts, beginning with Act XI of 1836 and ending with Act VI of
1843, put an end to the exemption of British subjects from the jurisdiction of
the Mofussil Courts in all civil matters. The effect would seem to have been to
give the Mofussil Courts a jurisdiction, in one sense concurrent with that of
the Supreme Court, over questions of marriage between British Christian subjects
in the Mofussil; but, be this as it may, it could not alter the law applicable
to either class of Christians.

   10. The next legislation bearing upon the question is in 1851, the Act 14 and
15 Vict., c. 40. That Act provided a new method of marrying in India for any
Christians who chose to adopt it, marriage before a Marriage Registrar. The
Registrar might by Section 2 issue the necessary certificate, "provided no
lawful impediment according to the law of England" were shown to his
satisfaction; and one of the parties had under Section 6 to make a declaration
that there was no impediment of kindred or affinity. This is the first express
reference to impediments of kindred or affinity in connection with Indian
marriages, and the first mention of the English law in connection with Christian
marriages, between any but British 11:42 AM 12/26/200711:42 AM
12/26/2007subjects in the narrower sense of the term.

   11. Then came the Charter Act of 1861, 24 and 25 Viet., c. 104, under which
the High Courts were formed. By Section 9 of that Act each High Court was to
have, amongst other things, such "matrimonial jurisdiction" as might be granted
by Letters Patent; and subject to the Letters Patent, and to the legislative
powers of the Governor-General in Council, each High Court was to "have and
exercise all jurisdiction and every power and authority whatsoever in any manner
vested in any of the Courts in the same Presidency abolished under this Act."
The Supreme Courts were amongst the Courts abolished. The first Charter of this
Court in 1862, by Section 35, gave the Court "jurisdiction in matters
matrimonial between our subjects professing the Christian religion," and such
jurisdiction was to "extend to the local limits within which the Supreme Court
now has ecclesiastical jurisdiction," that is to say, Bengal, Behar, and Orissa.
The present Charter of 1865 is substantially to the same effect; the Charters of
the other High Courts are similar. The jurisdiction of the High Court in matters
matrimonial was thus expressly extended to all Christian subjects of the Crown
within the province; nothing is said about the matrimonial law to be
administered.

   12. It was strongly contended before us that the effect of this extension of
the matrimonial jurisdiction of the High Courts, over all Christian subjects,
was to make all Christian marriages thenceforth subject to the law administered
by the Supreme Court, from which the jurisdiction was transferred, that is to
say, the law of England, "so far as the circumstances and occasions of the said
provinces and people shall admit or require"; and that the only further question
to be considered was, whether the English law of prohibited degrees was such as
those circumstanced admitted of required--a question which might have been one
of much difficulty. And if this had been the case of a new and exclusive
jurisdiction established over persons not previously provided with a definite
law and with tribunals to administer it, there would have been much force in the
contention. But, as has been shown, the Regulations determined the law to be
applied to non-British Christian-marriages and provided tribunals to administer
it, just as the Charter of the Supreme Court did for British Christians. In the
High Court Charter the same section, Section 35, which gives this Court its
matrimonial jurisdiction, contains a proviso, "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
Presidency; and the words which occurred in the Supreme Court Charter, requiring
the Court to administer the English ecclesiastical law, are omitted from our
Charter. The conclusion seems clear that, in extending the matrimonial
jurisdiction over new persons, it was not intended to alter the matrimonial law
by which those persons were governed.

   13. The next Act is one of the Indian Legislature, Act XXV of 1864. That Act
dealt exhaustively with the modes in which Christian marriages could take place.
These were : Marriages before a registrar, under 14 and 15 Vict. C. 40; by a
clergyman of the Church of England, according to the rites, rules, ceremonies
and customs of that church; by a clergyman of the Church of Scotland, according
to the rites, rules, ceremonies and customs of that church; by a licensed
minister, under the Act itself and by a person authorised to certify Native
Christian marriages, under Part V of the Act. As to marriage by licensed
ministers, the Act contained provisions as to legal impediments according to the
law of England, exactly similar to those enforced by 14 and 15 Vict, c. 40, in
the case of marriage before a Registrar. As to marriages of Native Christians,
the certificate was only to be granted, provided "the man and the woman shall
not stand to each other within the prohibited degrees of consanguinity or
affinity."

   14. Great stress was laid upon this Act and the 14 and 15 Vict., c. 40,
during the argument, as showing that both the Imperial Parliament and the Indian
Legislature intended that the English rules as to the prohibited degrees should
be the law for, all Christians in India. We agree in thinking that those, Acts
were almost certainly passed under the supposition that such was the law, and
that this is probably why the rules of procedure in the case of certain modes of
marriage were framed as they were. And any one who has studied the history of
this subject outside this statute book will know that at that period this
opinion was entertained and expressed by persons of high authority. But we can
find nothing in those Acts which can be said, either expressly or by reasonable
inference, to enact or declare the law in this sense. Oh the contrary, Section
21 of 14 and 15 Vict., c. 40, expressly declares that the Act is not to
invalidate any marriage which "under the laws for the time being in force in
India might have been there solemnized in case this Act had not been passed."
And, however strongly these Acts may seem to show an opinion that the English
law as to the prohibited degrees was in force for all Christians in India,
subsequent legislation may, with equal correctness, be said to indicate another
view of the question.

   15. Under the Act of 1864 obviously a clergyman of the Church of Rome could
only celebrate a marriage either as a licensed minister, or as a person licensed
to certify under Part V. The Roman Catholic clergy objected to this Act, as we
learn from the objects and reasons of the amending Act, upon certain points
connected with registration, and the hours for celebrating marriages. We learn
from the speech of the member who had charge of the amending Bill that they
objected also to their clergy having to be licensed by the State, and to the
provisions as to prohibited degrees. On the latter point it was urged that there
were classes of Christians in Southern India who were compelled by social
circumstances to marry within the degrees prohibited by English law; to remove
the latter grievance was one of the objects of the fresh legislation. Act V of
1865 was accordingly passed, and it made two material changes. It put all
especially ordained clergymen, including of course those of the Church of Rome,
on the same footing with the clergy of the Churches of England and Scotland, and
it excluded Roman Catholics from Part V. The effect was to allow Roman Catholics
to have their marriages solemnized by their own clergy, according to the rites
of their church, nothing being said one way or the other about prohibited
degrees; and to prevent Native Roman Catholics from marrying under Part V. This
Act had certainly no tendency to impose the English law on persons not
previously subject, to it; the object was to avoid doing so.

   16. This was the state of legislation bearing upon the question prior to the
passing of the Divorce Act in 1869. And we think that up to that time the
English prohibited degrees had never become law for Christians in India
generally.

   17. The Divorce Act applies to all Christians, whether Native or European.
Section 4 says that: "The jurisdiction now exercised by the High Courts in
respect of divorce a memo, et there, 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 says that: "Subject to the provisions
contained in this Act, the High Courts and District Courts shall, in all suits
and proceedings thereunder, 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." The Act then proceeds to deal
with a number of subjects, of which the most important are dissolution of
marriage, nullity of marriage, judicial separation, protection orders,
restitution of conjugal rights, settlements, and the custody of children.
Dealing with nullity of marriage, Section 18 says that "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"; and Section 19 says that--"such
a decree may be made," amongst other grounds, on the ground "that the parties
are within the prohibited degrees of consanguinity (whether natural or legal) or
affinity." The words in brackets, "whether natural or legal," qualifying the
word "consanguinity "point, apparently, to consanguinity by adoption, so as to
prevent a Native Christian, who has been adopted, on the one hand from marrying,
say, the daughter of his adoptive father, and, on the other hand, from marrying
a woman too nearly related to him by birth.

   18. It seems convenient here, before considering the construction of the
Divorce Act, to refer to the subsequent Act of 1872. That Act repeals both the
14 and 15 Vict., c. 40, and Act V of 1865. It re-enacts the provisions of these
Acts about marriages before registrars, and marriages before licensed ministers,
with this exception: Under the earlier Acts the registrar or the minister had to
satisfy himself that there was no "lawful impediment according to the law of
England," and one of the parties had to declare that there was no "impediment of
kindred or affinity"; under the new Act the words "according to the law of
England" are left out, the minister or registrar is to be satisfied that there
is no "lawful impediment", and the same declaration as before is required. In
Part VI the Act of 1872 re-enacts the former provisions about marriages of
Native Christians, omitting all reference to the prohibited degrees. But Section
88 says: "Nothing in this Act shall be deemed to validate any marriage which the
personal law applicable to either of the parties forbids him or her to enter
into." There can be no doubt as to the object of the changes made by this Act;
the object clearly was to secure that there should be nothing in the rules as to
the celebration of Christian marriage tending to indicate, or suggest, that any
particular rule as to prohibited degrees applied to any particular marriage.

   20. We now come to the third branch of the inquiry, what the prohibited
degrees, mentioned in Section 19 of the Divorce Act, are. Those words, or
similar words, were, as has been seen, used in the 14 and 15 Vict., c. 40, and
in the Acts of 1864 and 1865; and there are no doubt strong reasons for saying
that, in the Acts prior to the Divorce Act, the words "the prohibited degrees"
meant those prohibited by the, law of England. And the consideration then arises
that if certain words are used in a certain sense in a series of Acts, the same
sense ought ordinarily to be given to the same words in a subsequent Act dealing
with "the same subject. This is a rule of construction not lightly to be
departed from; and it must be admitted that Section 7 of the Divorce Act,
referring to English law, adds some force to the contention that the language of
the Divorce Act is the language of the English law.

   21. But there are reasons on the other side of much greater weight tending to
show that, whatever may have been the meaning of the prohibited degrees in the
earlier Acts, they mean, in the Divorce Act, not the degrees prohibited by the
law of England, but the degrees prohibited by the law applicable to the parties
to the marriage. The Divorce Act and the Acts of 1864 and 1865 are in pari
materia in the sense that they both deal with marriage; but they deal With it
from different points of view, and for different purposes, the earlier Acts
treating primarily of the form of marriage, the Divorce Act of its dissolution
and kindred subjects. And in Section 19 of the Divorce Act itself we find the
words "consanguinity whether natural or legal." These words seem to refer to
relationship by adoption, an idea unknown to the law of England; they therefore
tend to negative the view that the language of the section is the language of
the English law.

   22. There are two reasons of a broader kind, and of much greater importance.
The English law of prohibited degrees, as has been shown, was not applicable to
Christians generally when the Divorce Act was passed; the application of the
English rules to all Christians would be a most momentous change in the marriage
law of the large majority of Christians in India, such as we ought not to hold
to have been made, unless the intention of the Legislature to make the change
has been expressed in unmistakable language; and that has certainly not been
done.

   23. And the Acts of 1865 and 1872 show clearly that during the period between
those two dates, it was the settled purpose arid policy of the Legislature not
to extend the English rules as to prohibited degrees, by legislation, to persons
not already governed by them, but to leave them under the law to which on other
grounds they might, be found subject. The Divorce Act was passed in the middle
of this period, and we know, as matter of history, that it was under discussion
in and before 1865. To construe the Divorce Act as applying the English law to
all Christians in India would, therefore, be to attribute to the Legislature, an
intention directly in conflict with what we know to have been their settled
purpose at the time when the Act was prepared and passed.

   24. The result is that in our opinion the prohibited degrees for the parties
to this marriage were not the degrees prohibited by the law of England, but
these prohibited by the customary law of the class to which they belong, that is
to say, the law of the Roman Catholic church as applied in this country.

   25. There is one other point to which we think it right to refer. Section 5
of the Act of 1872 enacts, as did the Act of 1865, that "marriage may be
solemnized in India (1) by any person who has received episcopal ordination,
provided that the marriage be solemnized according to the rules, rites,
ceremonies and customs of the church of which he is a minister." It was argued
that the words "rites, rules, ceremonies and customs" here used include rules as
to capacity to marry, and make those rules in each case depend upon the law of
the church whose minister performs the marriage. That argument would lead by a
short process to the same conclusion at which we have arrived upon this
reference. The construction of those words is difficult; we are not prepared to
express all unanimous opinion upon it; and it is unnecessary that we should deal
with it.

   26. With this statement of our opinion the case must go back to the Division
Bench to be considered.

   Wilson, J.

   27. We have now to decide this appeal in accordance with the law laid down by
the Full Bench, that the validity of the marriage in question is to be
determined by. the law of the Church of Rome.

   28. It is clear in this case that the parties intended to become husband and
wife, and that a ceremony of marriage was performed between them by a clergyman
competent to perform a valid marriage. But the woman being the sister of the
deceased wife of the man, it is clear upon the evidence that, according to the
rule of the Church of Rome, a dispensation from the proper Ecclesiastical
authority was necessary to its validity, while without such dispensation it
would be invalid.

   29. If in such a case the burden of proving a dispensation lay upon the
appellant, who supports the marriage, we should have no hesitation in saying it
was not proved. If the burden of proof was the other way, and the point was one
to be decided upon the balance of evidence, we might probably have come to the
same conclusion. But the presumption in favour of everything necessary to give
validity to a marriage is one of very exceptional strength. The law on the
subject was fully considered by the House of Lords in the case of Piers v. Piers
2 H.L.C. 331. The question in that case was as to the validity of a marriage.
The parties had intended to become husband and wife, and a ceremony of marriage
had bean performed between them by a clergyman qualified1 to marry them. The
validity of the marriage in the place where it was performed depended upon
whether a special license had been previously obtained from the Bishop of the
diocese. The evidence against the issue of any such license was at least as
strong as in the present case; but it was held that the presumption must
prevail, the Lord Chancellor, Lord Cottenham, cites and adopts the language of
Lord Lyndhurst in an earlier ease, that the evidence to rebut the presumption
must be "strong, distinct, satisfactory and conclusive." Lord Brougham says that
it must be "clear, distinct and satisfactory." Lord Campbell used similar
expressions, and added, as his opinion "that a presumption of this sort, in
favour of a marriage, can only be negatived by disproving every reasonable
possibility. I do not mean to say that you must show the impossibility of any
supposition which can be suggested, to support the validity of the marriage; but
you must show that this is most highly improbable and that it is not reasonably
possible.

   30. Following the principle laid down in that case, we think we are bound to
presume in the present case that the dispensation had been obtained which was
necessary to remove the obstacle to this marriage on the ground of affinity.

   31. We accordingly hold that the marriage was not liable to be annulled on
the ground that this parties to it were within the prohibited degrees.

   32. The decree of the Court of First Instance will be set aside, and the case
will go back for the trial of the other issues arising in it.

   33. The appellant will have her costs of this appeal and also her costs in
the Court below of the trial of the issues which have been tried.