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David Sassoon Ezekiel Vs. Najia Noori Reuben - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtMumbai
Decided On
Case NumberO.J.C. Appeal No. 47 of 1930 and Suit No. 1257 of 1930
Judge
Reported in(1931)33BOMLR725
AppellantDavid Sassoon Ezekiel
RespondentNajia Noori Reuben
Excerpt:
.....of order-order appealed from as bad for want of jurisdiction-party in contempt can prosecute appeal--jewish law--'kaseph kiddushim'--betrothal with conditions--breach of conditions-necessity for 'get' or bill of divorcement. ;the general rule that party in contempt is not entitled to be heard does not apply to a case in which the order, for the breach of which contempt is alleged, is challenged on the ground of want of jurisdiction. ;among jews, where there is a 'kaseph kiddushim', i.e., a betrothal ceremony, which is subject to conditions which are not fulfilled, it is not necessary, in order to get rid of the effects of the betrothal, to have a 'get' or a formal bill of divorcement. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic..........is separated from the defendant and then he has ordered that the defendant do execute a formal bill of divorcement in favour of the plaintiff according to the requirements of the jewish law within one week from the date of the order by taking such necessary steps and doing all such acts and things as may be necessary according to the directions of the jewish conciliation committee, and has further ordered that the defendant do pay to the plaintiff the costs of the suit.2. the first point taken by mr. mathalone, on behalf of the respondent, is that inasmuch as the defendant has not executed the bill of divorcement within the time required by the order he is in contempt and is not entitled to present this appeal. no doubt the general rule is that a party in contempt is not entitled to.....
Judgment:

Beaumont, C.J.

1. This is an appeal from a judgment of Mr. Justice Wadia, dated September 25, 1930, by which the learned Judge has declared that the betrothal between the plaintiff and the defendant entered into with the minor plaintiff on behalf of the defendant at Basra on July 5, 1929, is null and void and is not binding on the plaintiff. He has further declared that the plaintiff is separated from the defendant and then he has ordered that the defendant do execute a formal bill of divorcement in favour of the plaintiff according to the requirements of the Jewish law within one week from the date of the order by taking such necessary steps and doing all such acts and things as may be necessary according to the directions of the Jewish Conciliation Committee, and has further ordered that the defendant do pay to the plaintiff the costs of the suit.

2. The first point taken by Mr. Mathalone, on behalf of the respondent, is that inasmuch as the defendant has not executed the bill of divorcement within the time required by the order he is in contempt and is not entitled to present this appeal. No doubt the general rule is that a party in contempt is not entitled to be heard, but that rule has never been applied to a case in which the order, for the breach of which contempt is alleged, is challenged on the ground of want of jurisdiction; and the grounds of appeal in this case do assert that the learned Judge had no jurisdiction to order the defendant to execute a formal bill of divorcement. It would certainly be a strange thing if a party directed to do an act by an order beyond the competence of the Court to pass, and therefore in law no order, were compelled to do the act before he could challenge the order. I think, therefore, the preliminary objection fails and this appeal should be heard.

3. The memorandum of appeal and a further memorandum containing additional grounds of appeal which were lodged by the appellant challenged the whole of the findings of fact and the conclusions of law arrived at by the learned Judge, but on the hearing of the appeal the learned Advocate General on behalf of the appellant has accepted the judgment except in so far as it directs the defendant to execute a formal bilk of divorcement. It is not necessary, therefore, for this Court to consider all the interesting questions which are covered by the judgment, For the purposes of our decision the facts can be set out very shortly. In May 1929, the defendant, who is a resident of Bombay and a member of the Jewish community, sent his mother and sister to Basra with a view to finding him a wife also of the Jewish community. After certain negotiations the mother and sister selected the plaintiff as a suitable wife, and on July 5, 1929, the ceremony of betrothal known as the 'Kaseph Kiddushim' was gone through in Basra, the defendant acting by means of a proxy. According to the evidence, under the Jewish law a Jewish marriage consists of two parts, viz., the betrothal ceremony known as the 'Kaseph Kiddushim' and a further ceremony known as 'Chuppa', that is, a ceremony of nuptials. After the betrothal ceremony had been gone through the parties returned to Bombay, and on their arrival there on July 20, 1929, the plaintiff declined to marry the defendant as she did not approve of him. On June 24, 1930, this suit was filed, and it was heard on September 15.

4. The plaintiff's case was that the betrothal ceremony was entered into by her subject to certain specified conditions relating to the age, personal appearance, and income of the defendant, and that she stipulated that unless she was satisfied that those conditions were fulfilled the betrothal ceremony should be void, and she should not be compelled to go through the further 'Chuppa' ceremony. The learned Judge found as a fact that the plaintiff's case as to the imposition of conditions was proved and that the betrothal ceremony was in fact entered into subject to certain conditions, the character of which I have mentioned, and that those conditions had not been fulfilled. The point, therefore, which we have to consider is whether, when you have a betrothal ceremony subject to conditions which have not been fulfilled, it is necessary, in order to get rid of the effects of that ceremony, to have a formal bill of divorcement.

5. The nature of the betrothal ceremony is discussed by the learned Judge in his judgment and I can take his statement as being accurate. He says:

It is the plaintiff's case further, that oven if it is held that the betrothal was not subject to a condition and was valid and complete, the marriage is still incomplete, as the essential final ceremony of 'Chuppa or the nuptials was not performed. The defendant, however, contends that the 'Kaseph Kiddushim' is the operative part of the ceremony, and that the ceremony of 'Chuppa' or the nuptials is not essential to constitute a valid marriage and that the 'Keseph Kiddushim' ceremony establishes the marital relationship between the parties and confers conjugal rights upon them without the performance of 'Chuppa' ceremony. It is (SIC) that under the Hebrew law a betrothal is something more than a mere promise to marry. In fact it is the very initiation of the marriage. The betrothed parties, according to Dr. Miel-siner, 'are in some respects regarded as married, though not yet entitled to the marital rights, nor bound to fulfil any of mutual duties of conjugal life as long as the marriage was not consummated by the nuptials.' The effect of a valid betrothal is that the betrothed woman cannot marry any other man and can only be separated from the man to whom she is betrothed by a legal divorce. On the other hand, the woman is entire mistress of her property, both for the purposes of use and disposition; and the man to whom she is betrothed is not obliged to maintain her, nor can he inherit any of her property, if after the betrothal she died intestate. Professor Ezekiel stated in his examination-in-chief that the 'Kaseph Kiddushim' is a ceremony or a consecration by which the woman becomes the wife of the man, but in cross-examination ho admitted that the betrothed woman acquired the status of a wife only in so far as she could not marry any other man until she was divorced, and further that she could not be compelled to go through the 'Chuppa' ceremony. It comes to this, according to him, that she is a wife, but at the same time she cannot be compelled to live with the betrothed man as his wife'.

6. So that it is clear that the betrothal ceremony, if it is a valid ceremony, is something more than a betrothal between Christians, and is not a mere contract which the parties can set aside at will, but confers some of the rights and obligations of the married state. The effect of imposing conditions in respect of the betrothal ceremony appears from one of the Jewish books, Eben Ha-Ezer, Chapter 38, Versa 24. It is there stated:-

(Should a man say to a woman, 'Be thou betrothed to me), on condition that I am rich and he was found to be poor or that I am poor' and it was sub-sequently ascertained that he was rich...' (Then various other forms of conditions are mentioned and the Work goes on): 'in all these and similar cases, the betrothal is void even though the woman declares she was resolved to he betrothed to the man, notwithstanding his misrepresentation'.

7. That statement is not challenged by either of the parties and it is admitted that the betrothal being in this case proved to have been upon conditions not fulfilled is void. It was suggested in the lower Court and was at first argued in this Court though the point was subsequently abandoned, that unless the conditions were in a particular form they were of no effect. Rabbi J. L. Kadushin in his work, Jewish Code of Jurisprudence, 1921, states that the conditions must conform to certain specific rules, but the illustrations, which he subsequently gives, seem to ignore the rules which he says are essential. The illustrations Nos. 7 and 8 given by the learned author are worth noticing, because they exactly cover the point which we have to decide. He states:-

7. If the man says to her: 'Thou art betrothed to me with this cent on condition that I give you one hundred zuz within thirty days from now,' the betrothal takes effect from now on if he has complied with such a condition within the thirty days. (I.C.).

8. If before the expiration of the thirty days, she accepts betrothals from another man, she becomes betrothed conditionally until the expiration of the thirty days. If at the end of the thirty days the first man failed to comply with the condition, the betrothal of the second takes effect and the betrothal of the first becomes void and she is not required to obtain a bill of divorce from the first...(L.c.)

So that the learned author states that if the betrothal is void it is not necessary to have a bill of divorcement. It was held in the case of Benjamin v. Benjamin (1925) 28 Bom. L.R. 328 by Mr. Justice Crump that this Court has jurisdiction to grant divorce between Jews, and the learned Judge held that in such a case an ordinary decree nisi followed by a decree absolute was sufficient and that it was not necessary to have a bill of divorcement. I think that the reasoning of that case would apply to the case of a valid betrothal in so far as the betrothal goes beyond an ordinary contract and cannot be set aside by a mere act of the parties. I think the Court would have jurisdiction to untie the knot by the ordinary decree of the Court, and that it would not be necessary, any more than in the case of a decree for divorce, to have any bill of divorcement. But Mr., Mathalone says that inasmuch as the betrothal in this case was void the Court cannot decree any formal divorce because there is nothing upon which the decree can operate. That no doubt is true, but it is equally true that there is in fact nothing upon which the bill of divorcement can operate. The only suggested advantage in the bill of divorcement is that it would confer upon the wife conclusive evidence that in fact the alleged betrothal was void and that the defendant had no claim upon the plaintiff. In my opinion the decree of a Court of competent jurisdiction declaring the betrothal void supplies the wife with evidence quite as good as a bill of divorcement. I think, therefore, that the betrothal being void it is not necessary to have a bill of divorcement. I think further that there is a good deal of force in the contention of the learned Advocate General that the Court cannot compel the husband to execute a bill of divorcement. It appears from the form of such a bill of divorcement, at page 129 of Mielziner's Jewish Law of Marriage and Divorce, that the husband states therein: 'I...do hereby consent, with my own will, without force, free and unrestrained, to grant a Bill of Divorce,..' It is clear that the Court cannot order a man to state that he does a thing of his own free will, when in fact he is doing it under compulsion. Moreover, it appears from the evidence that the bill of divorcement to have any effect must be handed over by the husband to the wife, and the Court cannot compel the husband physically to hand over the document to the wife. I think. therefore, that the appeal must succeed to the extent that the order made by the trial Court must be varied by striking out the direction upon the husband to execute a bill of divorcement. But as the defendant has, I think, throughout these proceedings shown every desire to harass the plaintiff, and as I am not satisfied that he will carry out the terms of the order, I think that the Court should substitute for the order to execute the bill of divorcement an injunction to restrain the defendant from asserting in any manner whether by writing, word or act that he is married or betrothed to the plaintiff or that she is in any way bound to him. There will be that variation in the order, otherwise the order will stand.

8. As regards the costs of the appeal, the grounds of appeal covered a much wider area than the point which was actually argued. On the other hand, the appellant has succeeded on the point argued which point was not conceded by the respondent. I think the proper order will be that there be no costs of the appeal.

Mirza, J.

9. A preliminary point has been taken in this appeal on behalf of the respondent that the appellant has committed contempt of Court and should not be heard. Mr. Justice Wadia ordered the appellant within seven days of the date of his judgment to execute in favour of the respondent a formal bill of divorcement in accordance with the directions to be given by the Jewish Conciliation Committee, which is said to arrange the formalities of a divorce among the Jews in Bombay. The decree was made on September 25, 1930. The appellant filed this appeal on September 30, 1930, one of the grounds taken being that the Court had no jurisdiction to order the defendant to execute a bill of divorcement. The appellant thereafter moved the Appeal Court for a stay of execution pending the disposal of the appeal. The Appeal Court refused the application. The seven days allowed by the decree have since expired but the appellant has failed to execute the bill of divorcement as directed by Mr. Justice Wadia to do. The respondent contemplates taking proceedings in contempt against the appellant, but to be able to do so it is necessary that the appellant should be personally served with the Court's order of which he is said to be in contempt. The decree has long since been ready for being served, but has remained unserved as the appellant cannot be found and his whereabouts are unknown even to the attorneys who represent him in this appeal. It is clear that having failed before the Appeal Court in his application for stay the appellant has deliberately kept himself out of the way of the respondent to avoid being served with the trial Court's order. Possibly he realises that if he does comply with the trial Court's order, the main object with which he has filed this appeal would be frustrated as the bill of divorcement he would execute might be held to be effective against him whatever may be the result of this appeal. Whatever may be the motive for the appellant's non-compliance with the order, his conduct seems to amount to a contempt of the Court's order, and he would seem to have no answer to such a charge if it were made after properly serving him with the Court's order, except that the order was without jurisdiction and 'Should be discharged. The question before us is whether the contempt committed by the appellant is such as to disentitle him from being heard on this appeal.

10. It may be noted that the contempt complained of is not a eon-tempt of any order made by this Court, although Mr. Mathalone's argument seemed to imply that the appellant, in view of the dismissal of his application for stay by this Court, is defying this Court by his present conduct; but the contempt is a contempt of the trial Court's order against which the appellant has appealed to this Court inter alia on the ground that the trial Court had no jurisdiction to make the order.

11. It is clear on the authorities that an order which is made without jurisdiction is a nullity. There can, therefore, be no contempt of such an order. A person whose case is that an order which he has disobeyed was without jurisdiction can be heard on that point although he may at the time be in contempt of that order. There is no need in such a case to require the party in contempt to purge himself of the contempt as a condition for being heard. In Hill v. Bissel (1730) Mos 258 King L.C. observed: 'You may move to discharge an order, though you are in contempt for not obeying it.' So also in Chuck v. Gremer (1846) 47 E.R. 820, Cottenham L.C. has observed that a party is entitled to be heard if his object is to get rid of the order or other proceeding which has placed him in contempt. In Gordon v. Gordon [1904] P. 163 the Court of Appeal has held that a party who is in contempt is not prevented from appealing against an order on the ground that the order was made without jurisdiction.

12. Apart from challenging the order of the trial Court as a nullity, the appellant, in my opinion, has had some justifiable excuse for not wanting to carry out the trial Court's order while the appeal was pending. The bill of divorcement, if executed, would, in my opinion, have the effect until the religious law applicable to Jews in matters of divorce of nullifying the 'Kaseph Kiddu-shim' ceremony by which the parties were betrothed. It is doubtful in my judgment whether the appellant, though he might be successful in the appeal on merits, could be restored to his former position under the 'Kaseph Kiddushim', if he had already executed a bill of divorcement in accordance with Jewish rites.

13. The appellant, in my opinion, is entitled to be heard on this appeal.

14. Many points were taken in the grounds of appeal, but the , learned Advocate General on behalf of the appellant has abandoned all grounds except the ground relating to the Court's jurisdiction to pass an order requiring the appellant to execute a bill of divorcement according to Jewish rites. The appellant does not now object to the part of the decree of the lower Court whereby it is declared that the betrothal between the respondent and the appellant is void and not binding on the respondent and that the respondent is separated from the appellant. The Advocate General has urged that the declaratory part of the decree should be deemed to be sufficient in this case and that the other part of the decree which requires the appellant to execute a bill of divorcement is both unnecessary and improper.

15. The learned Judge did not settle the form of the bill of divorcement which the appellant was required to execute. He left the form to be determined by the Jewish Conciliation Committee of Bombay. No liberty to apply is reserved by the decree. It is difficult to see what the Court would do in such a case in execution of the decree if the appellant and the Conciliation Committee did not agree on the form of the bill of divorcement, or the Conciliation Committee, who are not parties to the suit, declined to act in the matter. This part of the decree seems to me to be extra-judicial in so far as it purports to delegate to the Conciliation Committee the power to determine the form of the bill of divorcement.

16. If the bill of divorcement is to be in the form set out in Mielziner's book on Jewish law, fresh difficulties would seem to arise in execution. According to this form the appellant would have to declare that he is executing the bill of divorcement of his free volition when he would be doing it under the compulsion of the Court's decree. The matter seems to me to be so much intermixed with ritual, and there are so many details more or less of an archaic nature to be attended to, that no Court should compel a party to execute a bill of divorcement under the Jewish religious law. The spirit as well as the letter of the Jewish law in this matter seem to require that the bill of divorcement on the part of the man should be free from any outside compulsion such as would be implied in a Court's decree. There seems to be the less justification for compelling an unwilling person to execute a bill of divorcement under the Jewish law when it has been held that the Court has power to pronounce a divorce in Jewish cases as in other cases. In Benjamin v. Benjamin (1925) 28 Bom. L.R. 328 Crump J. granted a decree nisi for dissolution of marriage where the parties were Jews. The learned trial Judge has felt a doubt whether he can properly grant a divorce in the present case where the marriage had not been completed by the 'Chuppa' ceremony. As the effect of the 'Kaseph Kiddushim' ritual is to consecrate the woman to the man and make the ritual of 'Get' or bill of divorcement necessary before the woman could marry another, it would seem that the ruling in Benjamin v. Benjamin could apply to a case of 'Kaseph Kiddushim' as much as to a completed marriage.'

17. In this case there is no need, in my opinion, to pass a decree nisi for divorce. The learned Judge has rightly come to the conclusion that the betrothal ceremony, which was gone through at Basra, was a conditional betrothal, and had become null and void as the conditions on which the respondent had betrothed herself to the appellant were not fulfilled. A direct text is quoted in Rabbi J. L. Kadushin's Jewish Code of Jurisprudence 1921, 4 Ch. 894, to the effect that in the case of a conditional betrothal it is permissible to a woman under the Jewish religious law to affiance herself to a second man while time is given to the first betrothed man to comply with the condition which has been imposed on him under his betrothal. Should the first betrothed man fail to comply with the condition under his betrothal within the stipulated time, his betrothal becomes void and the second betrothal can take effects, although there is no bill of divorcement from the man who was first Conditionally betrothed. It is clear from this text that there is no need for a bill of divorcement where a conditional betrothal has become null and void by failure on the part of the man to fulfil the conditions of the betrothal. Where a betrothal is declared by the Court to be null and void, as in the present case, it would be superfluous, in my opinion, to insist upon a bill of divorcement from the appellant.

18. I agree with the order proposed by the learned Chief Justice.


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