Esther Marie Jackson vs Frederick Ormond Layland Jackson on 22 December, 1911

    Esther Marie Jackson vs Frederick Ormond Layland Jackson on 22/12/1911

JUDGMENT

   Chamier, J.

   1. This is a suit by Esther Marie Jackson for a declaration that her marriage
with Frederick Ormond Layland Jackson is null and void.

   2. The parties, who are Chistians, were married in Allahabad, on the 12th of
January, 1910. The respondent, who had been married to another woman, had
obtained in the Calcutta High Court a decree nisi for dissolution of that
marriage, and the decree had been made absolute on the 6th of December, 1909. He
believed that on the decree being made absolute, he was free to marry again and
he assured the present petitioner that all the necessary formalities had been
complied with. I find it proved that respondent's former wife was alive when the
parties were married.

   3. On the above facts the petitioner claims to be entitled to a declaration
that her marriage with the respondent is null and void.

   4. Section 19 of the Indian Divorce Act provides that such a declaration may
be made at the instance of a wife on the ground that the former wife of the
husband was living at the time of the marriage, and the marriage with such
former wife was then in force. Section 57 of the Act provides that when six
months after the date of a High Court dissolving a marriage have expired, and no
appeal has been presented against such decree to the High Court in its appellate
jurisdiction or when any such appeal has been dismissed, but not sooner, it
shall be lawful for the respective parties to the marriage to marry again as if
the prior marriage had been dissolved by death. Provided that no appeal to His
Majesty in Council has been presented against any such decree. There is no
appeal to His Majesty in Council against a decree nisi for dissolution of a
marriage (see Section 56), therefore there can be no doubt that the "decree of a
High Court dissolving a marriage" referred to in Section 57 is the decree
absolute not the decree nisi. The Section was construed in this way by Sir James
Hannen in the case of Warter v. Warter (1890) L.R. 15 P.D. 152; 59 L.J. P. and
M., 87, where one Taylor had obtained in the Calcutta High Court a decree
absolute for dissolution of his marriage on the 27th of November, 1879, and the
divorced wife was married to Colonel Warter on the 3rd of February, 1880. Three
days later Colonel Warter made a will in favour of his wife. In April, 1881, on
the advice of a solicitor, Colonel and Mrs. Warter were re-married at a registry
office. Colonel Warter having died without re-executing his will or making
another the question arose whether the marriage of April, 1881, revoked the
will. It was held that the marriage of February, 1880, was null and void, and
therefore the marriage of April, 1881, was valid and revoked the will. SIR JAMES
HANNEN said:--"The Indian law, like our own, does not completely dissolve the
tie of marriage until the lapse of a specified time after the decree. This is an
integral part of the proceedings by which alone both the parties to the marriage
can be released from their incapacity to contract a fresh one." Following this
decision I hold that the respondent's marriage with his former wife was still in
force when he went through the form of a marriage with the petitioner.

   5. I find an issues that the petitioner professes the Christian religion, and
that the marriage between her and the respondent is null and void.

   6. I make a declaration accordingly. The respondent will pay the petitioner's
costs.