Full Judgment Text
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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
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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
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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
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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
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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.