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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.