Maleparambil Shanti @ Eliyamma vs Panakkachalil Thamasikkum ... on 14 March, 2000

    Maleparambil Shanti @ Eliyamma vs Panakkachalil Thamasikkum Ambatt Joy @ Methew
on 14/3/2000

JUDGMENT

   Arijit Pasayat, C.J.

   1. This is a reference under Section 20 of the Indian Divorce Act, 1869 (in
short the 'the Act'). Application was filed by the wife before the Family Court,
Kozhikode under Section 19 of the Act on the ground that respondent had a wife
living at the time of solemnization of the marriage with her on 23.3.1996.
Existence of wife at the time of marriage was pleaded to be a ground to affect
validity of the marriage. Though the respondent accepted that he was earlier
married, he took the stand that the same has been nullified by the Eparchial
Tribunal.

   2. Learned Judge of Family Court, Kozhikode was of the view that declaration
of dissolution of marriage by the Eparchial Tribunal is of no consequence as the
said Tribunal has no jurisdiction to annul the marriage. Such power is only
conferred on Courts as indicated in the Act itself. Accordingly the marriage
solemnised between her and respondent was held to be void.

   3. Heared learned Counsel for the parties. In view of the accepted position
that there was an earlier marriage, the only question that needs to be
adjudicated is whether the dissolution of the marriage, if any, by the Eparchial
Tribunal is of any consequence. A Full Bench of this Court in George Sebastian
v. Molly Joseph, 1994 (2) KLT387=II (1995) DMC 168 (DB), held that the rights
flowing out of a legal marriage among Christians cannot be interfered with by
Eparchial Tribunal and the marriage cannot be dissolved except by resort to the
provisions under the Indian Divorce Act. The view of the Apex Court in Molly
Joseph v. George Sebastian, 1997 (1) KLT1 (SC)=II (1996) DMC 452 (SC), has put
the controversy beyond any shadow of doubt.

   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 pf 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 District Court and the High Court jurisdiction in
matrimonial mattrers. In this background unless the Act recognises 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 have been recognised 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 whew 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. In view of the accepted position that there is no nullification of the
marriage solemnized earlier, inevitable conclusion is that the respondent had a
wife living at the time of marriage between the applicant and respondent, and
earlier marriage was in force. That being the position the prayer for
dissolution of the marriage in terms of Section 19 of the Act has to be
accepted, and has been rightly accepted.

   We, therefore, confirm the decree for dissolution of the marriage passed by
learned Judge of Family Court, Kozhikode. Reference is accepted.