Molly Joseph @ Nish vs George Sebastian @ Joy on 18 September, 1996

    PETITIONER:

MOLLY JOSEPH @ NISH

 Vs.

RESPONDENT:

GEORGE SEBASTIAN @ JOY

DATE OF JUDGMENT: 18/09/1996

BENCH:

N.P. SINGH, S.B. MAJUMDAR

ACT:

HEADNOTE:

JUDGMENT:

    O R D E R

     This appeal has been filed on behalf of the wife for setting aside the
judgment of the Special Bench of the Kerala High Court, directing the District
Judge to conduct enquiry into the allegations relating to the subsistence of a
former marriage of the appellant and then to pass a decree accordance with law.
A petition was filed by the respondent- husband before the District Judge for a
declaration that (i) the marriage with the appellant is nullity on the ground he
marriage between the appellant and one Prince Joseph was subsisting on the date
the appellant married the respondent; (ii) the appellant was insane and
continued to be so till the date of marriage. That application was contested by
the appellant saying that although she had married earlier with aforesaid Prince
Joseph, the said marriage was annulled by the order of the Ecclesiastical
Tribunal (Church Court as it is referred to at times). It was also asserted on
her behalf that previous marriage was known to the respondent and inspite of
that he agreed to marry the appellant. The learned District Judge did not
conduct any enquiry and he declared the marriage between the appellant and the
respondent a nullity merely on basis of the pleadings of the parties. According
to him, as the appellant had admitted the earlier marriage and as there was no
decree of any Civil Court in accordance with the provisions of the Indian
Divorce Act, 1869 (hereinafter referred to as the 'Divorce Act') the former
marriage continued inspite of annulment order passed by the Ecclesiastical
Tribunal, and the marriage had to be declared a nullity because of Section 19(4)
of the Divorce Act. As required by Section 20 read with Section 17 of the
aforesaid Act the order of the District Judge was placed before a Bench of three
Judges presided over by Justice K.T. Thomas (as he then was) for confirmation.
The High Court held:

     "Canon Law (or personal law of

     Christians) can have theological or

     acclesiastical implications to the

     parties. But after the Divorce Act

     came into force a dissolution or

     annulment granted under such

     personal law cannot have any legal

     impact as statute has provided a

     different procedure and a different

     code for divorce or annulment."

     This appeal is against the aforesaid judgment of the High Court.

     The preamble of the Divorce Act says: "Whereas it is expedient to amend

     the law relating to the divorce of

     persons professing to Christian

     religion, and to confer upon

     certain Courts jurisdiction in

     matters matrimonial; it is hereby

     enacted as follows............."

     Section 3(4) defines 'Court' to mean the High Court or the District Court,
as the case may be. Section 4 provides: Matrimonial jurisdiction of High

     Courts to be exercised subject to

     Act.

     Exception - The jurisdiction now

     exercised by the High Courts in

     respect of divorce a mensa et toro,

     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 10 enables any husband to present a petition to the District Court
or to the High Court, praying that his marriage may be dissolved on the ground
that his wife has, since the solemnization thereof, been guilty of adultery. A
wife may also present a petition to the District Court or to the High Court for
dissolution of the marriage on the grounds mentioned therein. In view of Section
17 every decree for dissolution of marriage made by the District Judge shall be
subject to confirmation by the High Court. The said Section requires that cases
for confirmation of decree for dissolution of marriage shall be heard by a Bench
comprising of three Judges. It also vests power in the High Court, if it thinks
necessary, to direct further enquiry or additional evidence to be taken. Chapter
IV deals with nullity of marriages. In view of Section 18 any husband or a 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. Section 19 prescribes the
grounds on which a marriage can be declared to be nullity. Section 19 provides:
"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 maks decrees of nullity of

     marriage on the ground that the

     consert of either party was

     obtained by force or fraud."

     Every decree of nullity of marriage made by the District Judge shall be
subject to confirmation by the High Court because of Section 20 and provisions
of Section 17, clauses one, two, three and four, shall, mutatis mutandis be
applicable.

     From a bare reference to the different provisions of the Act including
preamble thereof it is apparent that Divorce 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 matters. In this background, unless the Divorce Act recognises
the jurisdiction of Ecclesiastical Tribunal (sometimes known as Church Court)
any order or decree passed by such Ecclesiastical Tribunal cannot be binding on
the courts which have been recognised under the provisions of the Divorce 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 starutory provisions shall prevail and override any personal
law, usage or custom prevailing before coming into force of such Act. From the
provisions of the Divorce Act it is clear and apparent that they purport to
prescribe not only the grounds 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 backgroud, there is no
scope for any other authority including Ecclesiastical Tribunal (Church Court)
to exercise power in connection with matrimonial matters which are covered by
the provisions of the Divorce Act. The High Court has rightly pointed out that
even in cases where Ecclesiastical Court purports to grant annulment or divorce
the Church authorities would still continue to be under disability to perform or
solemnize a second marriage for any of the parties until the marriage is
dissolved or annulled in accordance with the statutory law in force. The learned
counsel appearing for the appellant placed reliance on the judgment of this
Court in the case of Lakshmi Sanyal v. Sachit Kumar Dhar, AIR 1972 SC 2667 =
(1973) 2 SCR 122, in support of his stand that inspite of the provisions of the
Divorce Act and procedures prescribed therein for dissolution of marriage or
declaration of a marriage to be nullity, Ecclesiastical Tribunal can also
dissolve a marriage. In that case, this Court was considering whether a marriage
could be declared a nullity on the ground that the parties were within the
prohibited degrees of consanguinity which is a ground for declaring a marriage
to be nullity under Section 19(2) of the Divorce Act. In that connection, it was
said: "The second point relates to the

     effect of the marriage between the

     parties within the prohibited

     degree of consanguinity. The Indian

     Divorce Act or the Indian Christian

     Marriage Act do not give any

     definition of what the prohibited

     degrees are. It has been urged on

     behalf of the appellant that

     assuming the Canon Law had to be

     looked at for finding the

     prohibited degrees it has been

     found that the appellant and the

     respondent being children of real

     sisters fell within those degrees.

     Section 19 of the Divorce Act lays

     down in categorical terms that a

     marriage may be declared null and

     void, inter alia, where the parties

     are within the prohibited degree of

     consanguinity. There is no

     exception contained in ground No.2

     in the said section. It is not

     open, it has been contended, to the

     courts to travel beyond S.19 or the

     provisions of the Divorce Act to

     discover whether such an impediment

     which renders the marriage null and

     void ab initio can be removed by a

     dispensation granted by the

     competent authoriby of the Roman

     Catholic

     Church.............................

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

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

     ............... The question of

     capacity to marry and impediments

     in the way of merriage would have

     to be resolved by referring to

     their personal law. That for the

     purpose of deciding the validiay of

     the marriage, would be the law of

     the Roman Catholic Church namely,

     the Canon law of that Church."

     From the judgment aforesaid it is apparent that this Court having said that
Section 19(2) makes a marriage between the parties within the prohibited degrees
of consanguinity a ground for declaring the marriage to be nullity, pointed out
that the Divorce Act does not give definition as to what are the prohibited
degrees Thereafter it was said that for that limited purpose personal law has to
be looked into. According to us, on basis of the aforesaid judgment of this
Court it cannot be that any declaration of marriage to be void by Ecclesiastical
Tribunal shall be binding on the District Court or the High Court. Such
Ecclesiastical Tribunal cannot exercise a power parallel to the power of the
District Court or the High Court which have been vested in the District Court
and the High Court by the provisions of the Divorce Acts Section 18 provides
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. In
that event, it excludes the jurisdiction and authority of any other Tribunal or
Court including Ecclesiastical Tribunal (Church Court).

     As 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
Judge for fresh decision in accordance with law. We find no reason to interfere
with the said order. The appeal is accordingly dismissed. No costs.