Maria Soosai vs Clara Mary on 22 August, 1994

    Maria Soosai vs Clara Mary on 22/8/1994

JUDGMENT

   Srinivasan. J.

   1. This case raises an interesting question of law. The original petition is
one filed under Section 4 of the Indian Christian Marriage Act, 1872, by the
husband for a decree declaring that the alleged marriage between him and the
respondent is null and void and consequently, the respondent is not his legally
wedded wife. In the petition, it is stated that he was having intimacy with the
respondent for a few months and in order to compel him to marry her, the
respondent's parents and relatives, with the help of the Police, by force got
executed a deed of marriage on paper bearing Rs. 2.50 stamp on the 27th October,
1988 and got it registered in the Office of the Sub Registrar, Andimadam.
According to the provisions of the Indian Christian Marriage Act, 1872, a
Christian marriage can be solemnized only in any of the modes prescribed in
Section 5 of the said Act. No formality or ceremony was gone through and only an
agreement was executed as stated earlier and that too, under compulsion. The
registration of the document would not amount to registration of the marriage
and therefore, the marriage is null and void.

   2. The respondent remained ex parte and the petitioner gave evidence in
support of the allegation made in the petition. He has marked the agreement as
Ex. A-1. A perusal of Ex. A-1 shows that there was no marriage in accordance
with the provisions of the Indian Christian Marriage Act. The agreement by
itself cannot be about a valid marriage.

   3. The District Judge has accepted the evidence adduced by the petitioner and
held that the petitioner was entitled to the relief prayed for by him. But
instead of passing a decree for declaring the marriage to be void, the District
Judge, ordered that the marriage said to have been performed between the
petitioner and the respondent was dissolved. It was also added by the District
Judge that the decree is subject to confirmation by this Court under Section 20
of the Indian Divorce Act.

   4. Both the petitioner and the respondent have not chosen to engage counsel
in this proceeding which has come on a reference from the District Court. Hence
the Court appointed amicus curiae for the petitioner as well as the respondent.
The amicus curiae, who is representing the petitioner, submitted that the
petition for declaration that the marriage is void is not maintainable as there
is no provision in the Indian Christian Marriage Act enabling a party to file
any proceeding before the court for such a relief. On the other hand, the amicus
curiae representing the respondent submitted that the petition was not
maintainable in the District Court and the only remedy of the petitioner was to
have filed proceedings in this Court. According to him, the High Court has
jurisdiction to declare the marriage to be void. He places reliance on the
judgment of the Allahabad High Court in Alfred Robert Jones v. Mt. Titli. A.I.R.
1933 All. 122. The learned Judge of that court referred to the judgments of the
Calcutta High Court in Gasper v. Gonsaves, (1874)13 Beng L.R. 109 and Lopez v.
Lopez. I.L.R. (1886)12 Cal. 706 (F.B.) as well as the judgment of the lower
Burma Chief Court in Consterdine v. Smaine. A.I.R. 1918 L.B. 83:47 I. C. 544 and
proceeded to hold that the High Court had jurisdiction to decide very important
questions which may arise out of Christian Marriage Act. He said that the
various grounds on which the court can give a decree of nullity in the Divorce
Act refer to cases where there has been a marriage validly performed and when
questions arise under Sections 4 and 5 of the Christian Marriage Act the
marriage has not been validly performed. He observed that there is a clear
distinction between a decree of nullity of a valid marriage and a declaration
that the marriage itself is illegal and void and there can be no doubt that
there is jurisdiction in the High Court to hear and decide questions under the
Christian Marriage Act. But that judgment was reversed on appeal by a Division
Bench in Mt. Title v. Alfred Robert Jones. A.I.R. 1934 All. 273.

   5. We have gone through the provisions of the Indian Christian Marriage Act,
1872. Section 4 of the said act reads that every marriage between persons, one
or both of whom is or area Christian or Christians, shall be solemnized in
accordance with the provisions of the next following section; and any such
marriage solemnized otherwise than in accordance with such provisions shall be
void. Under Section 5, marriages may be solemnized in India by the persons
mentioned in that section. There is no provision whatever in the act enabling
any party to approach any court for any relief in connection with any marriage.
The only provisions relating to any proceeding under the Act are found in
Sections 45 to 49 and 66 to 76. While Sections 45 to 49 relate to petitions
where a person whose consent is necessary is insane or unjustly withholds
consent, or where the Marriage Registrar refuses to issue a certificate or where
the Registrar doubts the authority of person forbidding the issue of the
certificate and with regard to the liability for frivolous protest against issue
of certificate, Sections 66 to 76 deal with penalties if a marriage is
solemnized in contravention of Sections 4 and 5. The persons who are responsible
for such solemnisation are liable to penalty under those sections. There is no
other provision in the Act enabling any party to apply for divorce or judicial
separation or restitution of conjugal rights.

   6. Even before the enactment of the Indian Christian Marriage Act, 1872, the
Indian Divorce Act, was passed in 1869. That Act was passed to amend the law
relating to divorce and matrimonial causes. It applied to all persons who
profess the Christian religion and it conferred Jurisdiction upon certain courts
for matrimonial matters. Section 4 of the said Act provides that the
jurisdiction then exercised by the High Courts in respect of divorce a mensa et
toro and all other causes, suits and matters matrimonial, shall be exercised by
such courts and by the District Courts subject to the provisions of the Act and
not otherwise. It is further stated that except so far as relates to the
granting of marriage licence it may be granted as if the Act had not been
passed. Thus under Section 4 the jurisdiction of the High Courts was preserved
but it was made subject to the provisions of the Act. Section 7 of the said Act
reads, "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. Provided that nothing in this section shall deprive the said courts of
jurisdiction in a case where the parties to a marriage professed the Christian
religion at the time of occurrence of the facts on which the claim to relief is
founded." The aforesaid proviso was introduced in the year 1912 by Act 10 of
1912. Section 10 relates to dissolution of marriage on certain grounds specified
therein. Section 18 provides for the filing of a petition in the District Court
or the High Court for declaring a marriage to be null and void, but Section 19
specifies the grounds on which such declaration can be sought if any marriage is
sought to be declared as null and void. Under the provisions of the Indian
Divorce Act, the grounds set out in Section 19 must be satisfied. Sections 17
and 20 of the Act provide for confirmation of a decree for dissolution and
decree declaring nullity of marriage respectively.

   7. There is no express provision in the Indian Divorce Act enabling a party
to get a marriage declared to be void because it has not been solemnized in
accordance with the provisions of Section 5 of the Indian Christian Marriage
Act, 1872. As there is no express provision in the Divorce Act with reference to
such marriages, which are declared by the legislature itself to be void under
Section 4 of the Indian Christian Marriage Act, the court has to resort to the
provisions of Section 7 of the Indian Divorce Act. It is only to enable the
court to grant relief in such cases, Section 7 of the Indian Divorce Act has
been enacted.

   8. Dealing with the scope of Section 7 of the Indian Divorce Act, Chief
Justice Chagla, being a member of the Division Bench of the Bombay High Court
stated in Ramesh Ramanlal v. Kasum Madgaokar A.I.R. 1948 Bom. 1, that the object
of enacting the section was to make the Indian Divorce Law flexible and not
static and the intention was that the law here should develop alongside with the
English law. The learned Judge further said,

     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
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.

   9. A Full Bench of this Court considered the provisions of Section 7 of the
Indian Divorce Act, 1869 in Sumathi Animal v. D. Paul A.I.R. 1936 Mad. 324
(F.B.) and observed thus:

     It seems to me clear that the intention of Section 7 Divorce Act, was to
prevent the principles and rules on which the Indian Courts were to give relief
from being rigidly fixed and that, as has been stated by my learned brother
Stone, J., the principles and rules must include principles of law. The decision
of the Privy Council in Iswarayya v. Iswarayya, 61 M.L.J. 367. supports this
view. I observe that in 47 Bom. 843, this is the view of Martin, J., Section 7
is an unusual provision in a statute and requires careful examination. It is to
be operated 'subject to the provisions contained in the Act' and the meaning of
those words has often been discussed. One meaning must be beyond doubt, and that
is that the court cannot give any relief which is contrary to the provisions in
the Act.

   10. The position in law was considered in detail in the background of the
history of the law by a Full Bench in George Swamidoss Joseph v. Mrs. Harriet
Joseph 68 L.W. 199. Govinda Menon, J. said that even if Indian Divorce Act is
silent on a particular topic or subject then the Courts in India shall give
relief on principles and rules prevalent in England for the time being. The
learned Judge pointed out that the Indian Act was founded mainly, if not solely,
upon the English Act and one does not feel that it is incongruous to keep pace
with the changes that are made from time to time in the parent law. It is
worthwhile to refer to the relevant passage in the judgment of Mack, J. which
reads thus:

     ...At the time the Indian Divorce Act was enacted in 1869 it followed the
lines of the existing English Divorce Act. In fact it would appear that in
England decrees for nullity were passed in absolute form straightaway until the
Matrimonial Causes Act of 1873, obviously intended to rectify a defect on some
abuse coming to notice, required a decree of nullity in England also to be in
decree nisi form on the same footing as a decree for nisi for dissolution. There
has been no corresponding statutory amendment to the Indian Divorce Act, which,
however, under Section 7, requires High Courts and District Courts, subject to
the above provisions of the Indian Divorce Act, to act and give relief on
principles and rules which in their opinion are as nearly as may be conformable
to the principles and rules on which the courts for Divorce and Matrimonial
causes in England for the time being act and give relief. Stone and Mockett, JJ.
in Ammal v. Paul 59 Mad. 518:43 L.W. 312 took the view that the courts in India
were under Section 7 bound to follow any change in principle or rules on which
the court for Divorce and Matrimonial Causes in England for the time being acted
and gave relief, provided that it involved no contravention of a specific
provision of the Indian Divorce Act. There is no specific prohibition against a
decree for nullity being in nisi form. It does not appear to us to make any
difference whether the modification in rules and principles contemplated in
Section 7 of the Indian Divorce Act is effected in England either by Judicial
decision or by statute or by the evolution of administrative practice and
procedure or by rules or orders made such as those referred to for instance in
Section 16 of the Indian Divorce Act. As it appears to us, the only criterion is
whether such a change in rule or principle contravenes specifically a provision
of the Indian Divorce Act or any provision of the Code of Civil Procedure made
applicable under Section 45 subject to the provisions of the Act, if it does,
the courts of India cannot apply it. If it does not, as we understand Section 7,
which was a legislative provision to make the practice on the matrimonial side
obtaining in India, so for as possible, in contemporaneous accord with that
prevailing in England, the change in rule or principle has to be applied by the
Indian Courts. Section 7 of the Act has been preserved by the Application of
Laws Order of 1950 and is still valid law. There is no suggestion that it is in
any way ultra vires of the Constitution. Although Section 7 requires in the
domain of divorce changing English rules and principles within the scope of the
Indian Divorce Act to be adopted by the Indian Courts we can see nothing in the
altered position of India after the attainment of Independence, which renders
that mandatory obligation imposed on Courts inoperative, although they do of
course require satisfactory evidence placed before them of altered rules and
principles which govern the practice of a court of matrimonial causes in
England.

   11. As the section 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; it is necessary to refer to the English law on the subject and at the
same time, we must bear in mind that the law in England cannot be imported into
the provisions of the Indian Divorce Act if it is contrary to the provisions of
the said Act. In Halsbury's Laws of England, Fourth Edition at page 258 in
paragraph 529 it is stated that no action or other proceeding is open to
objection on the ground that a merely declaratory judgment or order is sought
thereby and the High Court may make binding declarations of right whether or not
any consequential relief is or could be claimed. In para. 531 it is stated that
if anyone persistently and falsely alleges marriage with another, a course of
conduct known as jactitation of marriage, the latter may obtain in a suit for
jactitation of marriage a decree of perpetual silence, and only the person
complaining that he has been so misrepresented can present such a petition and
it is now a rare procedure. It is further stated that a suit for jactitation is
the only case in which a matrimonial suit can, as of right, be proceeded with
without prima facie proof of a marriage de facto, for the object of the suit of
jactitation is to prove that no valid marriage subsists between the parties.

   12. In Consterdine v. Smaine 47 I.C. 544, a single Judge of the Lower Burma
Chief Court held that Section 4 of the Divorce Act does not preclude the court
from considering the provisions of Sections 4 and 5 of the Christian Marriage
Act and declaring a particular marriage void as not having been solemnized in
accordance therewith. We have already referred to the ruling of the Division
Bench in Mr. Titli v. Alfred Robert Jones A.I.R. 1934 All. 273. In that case,
Mukerji, J. said:

     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.

   13. The question arose directly in Kanku v. Shanabhai Fullabhoi I.L.R. 1967
Guj. 1003. The majority opined that the petition for declaring the marriage as
nullity on the ground that it contravened Section 4 of the Indian Christian
Marriage Act was not maintainable. Justice Miabhoy, who formed the minority,
expressed a contrary view. The reasoning adopted by the said learned Judge
appears to be sound and proper. While referring to Section 7 of the Indian
Divorce Act, the learned Judge said that the expression "principles and rules"
used in the section is not restricted only to the principles and rules
enunciated and applied by the Judges in England and it includes the principles
and rules enacted by the statute law. The learned Judge also made a reference to
the decision of this Court in Sumathi Ammal v. Paul A.I.R. 1936 Mad.

   324. The learned Judge observed:

     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.

   14. Turning to Sections 18 and 19, the learned Judge said:

     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 section which
negatives 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 grounds 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 positive
prohibition contained in the Act which prevents a court from 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 as 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.

   15. Miabhoy, J. referred to the judgment of the Allahabad Bench in Mr.
Titli's case. A.I.R. 1934 All. 2 73 and expressed his disagreement in the
following words:

     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. 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.'' 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, insofar 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.

   With respect, we agree.

   16. Once it is held that Section 7 of the Indian Divorce Act enables the
court to declare a marriage to be null and void as it offends the provisions of
Sections 4 and 5 of the Indian Christian Marriage Act, it follows that the
original petition is maintainable. On the facts of this case, there is no
difficulty in holding that the marriage is void. Hence, the District Judge has
jurisdiction to pass the decree.

   17. The District Judge has passed a decree nisi subject to confirmation by
this Court. Of course, there is no express provision in the Indian Divorce Act
for confirmation of a decree passed otherwise than under Section 10 and Section
18 of the Act. The only provisions as already mentioned are found in Sections 17
and 20. But as pointed out by the Full Bench in George Swamidoss Joseph's case,
68 L.W. 199, the usual procedure in matrimonial causes is to pass a decree nisi
subject to confirmation by the High Court. That procedure is not unknown and
that is normally followed in English Courts. Hence, there is nothing wrong in
the District Court passing a decree nisi, subject to confirmation by this Court.

   18. As we have found on the merits that the so-called marriage between the
petitioner and the respondent is void as it was not solemnized in accordance
with the provisions of the Indian Christian Marriage Act, 1872, the decree
passed by the District Court is confirmed.