1. This is an appeal from the judgment of Mr. Justice N. W. Kemp, declaring that the plaintiff was the lawfully wedded wife of defendant No. 1, that the marriage of defendant No. 1 with defendant No. 2 was void and illegal, and ordering restitution of conjugal rights as between the plaintiff and defendant No. 1.
2. The facts in the case are not in dispute. The parties to the suit are all Roman Catholics, and the respondent (original plaintiff) and appellant No. 1 (original defendant No. 1) are of Goan domicile. On June 9, 1928, appellant No. 1 and the respondent were betrothed at the Church of Dabul as appears from a certificate of betrothal, Exh. Section On the same day appellant No. 1 wrote a letter, Exh. No. 3, to the Vicar of the Church of Dabul, informing him that he had changed his mind and requesting him to stop the reading of the banns. The Parish priest in consequence did not read the banns, .On June 14, 1928, appellant No. 1 and the respondent went through a civil ceremony of marriage before the Registrar of Marriages in Bombay, -see marriage certificate, Exh, B. That marriage was never consummated. The parties did not live together, and appellant No. 1 requested the respondent to treat the marriage as secret. On June 27, 1928, appellant No. 1 went through a form of marriage with appellant No. 2 (original defendant No. 2) at the Church of the Sacred Heart, Igatpuri, see marriage certificate, Exh. F-and thereafter the appellants lived together. On July 6, 1928, a complaint for bigamy was filed by appellant No. 2 against appellant No. 1, who was acquitted on that charge by the Sessions Judge on November 1, 1928. Against that acquittal an appeal has been preferred by Government, That appeal has been heard by my brother and myself immediately before the hearing of the present appeal. In the criminal appeal, the Advocate General appeared for the Government of Bombay, and Mr. Godinho for the accused. In the present case, Mr. Khan, who appeared for the appellants, in addition to his own arguments, adopted the arguments of Mr. Godinho submitted to us in the criminal appeal, and Mr. Baptista, who appeared for the respondent, acted similarly in adopting the arguments of the Advocate General as part of his argument. We reserved our judgments in both cases, and have therefore had the benefit of the arguments of counsel in both before giving our judgments.
3. The appellants contend that the civil marriage of June 14, 1928, was forbidden by the personal law of the parties as being contrary to the canons of the Church of Rome. The decision in this case depends upon the proper construction of Section 88 of the Indian Christian Marriage Act, 1872, which is in these terms:-
Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into.
4. The important questions arising therefore are, what is meant by the personal law of the parties in this section, and what is the precise scope of the section ?
5. The argument for the appellants may be summarised as follows:-
(1) Personal law in India includes law applicable to a community by religion (see Halsbury's Laws of England, Vol. X, page 618, Section 1088; Holland's Jurisprudence, 12th Edn., pages 413-414 ; Mayne's Hindu Law, 9th edn., Sections 48-50). The personal law applicable to Roman Catholics in India is the canon law of the Church of Koine (see Lopez v. Lopez I.L.R. (1885) Cal. 706 and Luoas v. Lucas I.L.R. (1904) Cal. 187.
Clandestine marriages entered into otherwise than in facie eeolesiae have always been abhorrent to the Church of Rome. The Council of Trent (A. D. 1545-1563) in its twenty-fourth session enacted a decree known as the Tametsi decree, which governed the practice of the Church for more than 350 years. The relevant portion of the decree is as follows :-'Those who shall attempt to contract marriage otherwise than in the presence of the pastor (parochus), or of some other priest by permission of said parish priest or of the Ordinary, and in the presence of two or three witnesses, the Holy Synod renders wholly incapable of thus contracting and declares null and void, as it also invalidates and annuls such contracts by the present decree.' This decree bound all Roman Catholics in the countries in which it was promulgated, and rendered null and void marriages entered into by them in such countries otherwise than in the form prescribed. That decree was not promulgated in England owing to the Reformation. It was, however, promulgated in Portugal, and the Portuguese must be deemed to have taken it with them to India as part of their personal law. By the Treaty of Cession (A. D. 1661) by which Bombay was ceded to the English the free exercise of their religion was expressly reserved to the Portuguese. Admitting that the domicile of the parties was Goan, the law of Goa, whatever it might be, was irrelevant, because the Indian Christian Marriage Act of 1872 provided forms for the solemnisation of marriage in India of persons professing the Christian religion, regardless of their domicile, and by Section 88 reserved to them their personal law, which was the canon law. By the Ne Temere decree of August 2, 1907, the Tametsi decree was promulgated all over the world. The canon law was codified in 1917, and the Code came into force on May 19, 1918. From that date this Code is the personal law of Roman Catholics within the meaning of Section 88 of the Indian Christian Marriage Act,-as being the law of the Church of Rome.
(2) The earlier Indian Marriage Acts, 14 & 15 Vic. c. 40 and XXV of 1864, did not apply to Roman Catholics at all, and respected the Treaty of Cession. The Church of Rome was defined for the first time in Section 4 of Act V of 1865. Part V of the Indian Christian Marriage Act of 1872 did not apply to Roman Catholics by reason of Section 88. Unless Section 88 of the Act was intended to embrace any prohibition by personal law even as to the form of the marriage, the Act was ultra vires the Treaty of Cession. The 'free exercise of their religion' means the exercise of it in accordance with the forms which that religion imposes. It would be an interference with the free exercise of religion for the civil power even to permit a marriage in a form not recognised by the religion. The marginal note to Section 88 was incorrect. The section covered any prohibition, including a prohibition as to the form of the marriage.
(3) By Canon 1012 the marriage contract is a sacrament, and there can be no valid marriage contract which is not at the same time a sacrament. Canon 1094 enacts that 'only such marriages are valid as are contracted before the pastor, or the Ordinary of the diocese, or before a priest delegated by either the pastor or the Ordinary, and at least two witnesses, in conformity with the rules laid down in Canons 1095 and 1096'. By Canon 1099 Catholics are bound to observe the form of marriage prescribed by the canon law. The form of the marriage is therefore essential to the validity of the marriage, and the canon law impliedly forbids any marriage which is not a sacramental as well as a contractual marriage. Canon 1016 recognises the right of the civil power to make laws as to the civil effects of matrimony, but only as to the civil effects, and unless the parties marry in the form required by the Church, there is no marriage as required by the canon law. The evidence establishes that the parties themselves did not regard the marriage before the Registrar as being in accordance with their personal law. They knew that if they lived together without a sacramental marriage, it would be a sin. The form of the marriage is part of the personal law of the parties, and by reason of Section 88 of the Act of 1872 the personal law applies. As there has been no sacramental marriage, the parties are not married at all,
(4) The learned Judge had no jurisdiction in this suit to pass a decree for restitution of conjugal rights. Section 32 of the Indian Divorce Act of 1869 requires an application for restitution of conjugal rights to be made by petition, and except upon a petition in a matrimonial suit, such relief cannot be granted.
6. The contentions for the respondent may be summarised as follows:-
(1) Personal law means personal civil law, which in the case of Roinan Catholics in India means the common law of England so far aa circumstances permit. The English law will not recognise a disability to marry imposed by foreign law of a religious or penal character (Halsbury's Laws of England, Vol. XVI, page 283, Section 524). ' Of foreign professions (that is religions) the common law take no knowledge,' (co. Litt. 132b, referred to by Gorell Barnes P. in Chetti v. Chetti  P. 67 The Treaty of Cession, though it preserved to the Portuguese in Bombay the free exercise of their religion, did not preserve to them their laws, or usages having the force of laws, and they are subject to English law so far as the same has been introduced into Bombay and has not since been varied by legislation (see Lopes v. Lopes (1867) 5 B.H.C.R. 172; De Lima v. Fernandez (1841) PO.C. 331 and see Naoroji Beramji v. Rogers (1867) 4 B.H.C.R. 1 and Ilbert's Government of India, 3rd Edn., Chapter IV, page 353, as to the introduction of English law into India). The canon law of the Church of Rome is not recognised in India. Apart from legislation, the common law of England as to marriage was introduced into India, so far as it was applicable to the situation and condition of the English who came to India (Maclean v. Cristall (1849) PO.C. 75. The Indian Christian Marriage Acts deal only with the form, and not with the essence of marriage. There is no evidence that the law of the domicile of the parties in regard to marriage differs from the law in India. Even if there had been, the form of marriage is regulated by the tax loci contract us (see Brook v. Brook (1861) 9 H.L.C. 193 where the distinction between the form of entering into the marriage contract and the essence of the contract is discussed).
(2) Even if the canon law of the Church of Rome is the personal law applicable to the parties, the evidence does not establish that the canon law forbids them to enter into a marriage in accordance with a form which the civil law of India permits. On the contrary, canon 1016 recognises the competency of the civil power to frame laws in regard to marriage at any rate so far as the civil effects of the marriage are concerned. Although the effect of canon 1094 may be to render, in valid in the eyes of the Church a marriage not contracted in accordance with that canon, neither that canon, nor any other canon which has been referred to, forbids parties capable of entering into a contract of marriage with one another to go through a civil ceremony which the law of India permits.
(3) The earlier Indian Marriage Acts applied to Roman Catholics. 14 & 15 Vic. c. 40 was an enabling Act to enable the parties to go before a Registrar 'where one or both of the parties is or are a person or persons professing the Christian religion.' This would include Roman Catholics. Act XXV of 1864 applied to persons 'one of whom is a person or both of whom are persons, professing the Christian religion'. This also would include Roman Catholics. Under this Act a clergyman of the Church of Rome could only celebrate a marriage either as a licensed minister, or as a person licensed to certify under Part V. Act V of 1865 in terms refers to the Church of Rome and to Roman Catholics in h. 4. The Act put all episcopally ordained clergymen, including those of the Church of Rome, on the same footing with clergymen of the Churches of England and Scotland, and it excluded Roman Catholics from Part V.
(4) The preamble to the Indian Christian Marriage Act of 1872 shows that it is an Act ' to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion'. The Act is, therefore, one dealing with the forms of solemnisation of marriage of Christians, including Roman Catholics. It applies to all Christian subjects in India (s. 1). 'Church of Rome ' and ' Roman Catholic ' are defined in Section 3. Part 1 of the Act deals with the person by whom marriages may be solemnised. Section 4 provides that marriages between persons one or both of whom is or are a Christian or Christians shall be solemnised in accordance with the provisions of Section 5. By Section 5 marriages may be solemnised in India by any of the persons therein mentioned, including ' (4) by, or in the presence of, a Marriage Registrar appointed under this Act.' It is submitted that every Christian, including a Roman Catholic, if married in accordance with any one of those permitted forms, is validly married. Part II of the Act deals with the time and place at which marriages may be solemnised. Tins indicates that the whole Act deals only with the ceremony of marriage. Part III deals with the procedure in case of marriages solemnised by ministers of religion licensed under the Act. Part IV deals with the registration of marriages solemnised by ministers of religion. Part V deals with marriages solemnised by or in the presence of a marriage registrar. The argument of the appellants involves the exclusion of Roman Catholics from this part of the Act. If this had been intended, the legislature would have said so in plain terms. The expression 'personal law' in Section 88 refers to capacity to contract and impediments, and not to forms of solemnisation. The legislature intended to save personal law as to capacity and impediments, and therefore by Section 42 the oath of one of the parties is required ' that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage'; similarly Section 51 provides that after the issue of the certificate of the marriage registrar, the marriage may, if there is no lawful impediment, be solemnised between the parties 'according to such form and ceremony as they think fit to adopt.' This in itself indicates that 'personal law' in Section 88 cannot refer to any prohibition as to the form and ceremony of the marriage. Part VI of the Act deals with the marriage of native Christian?. It corresponds with Part V of Act XXV of 1864. Section 65 excludes Roman Catholics from Part VI of the Act as therein provided. Section 65 is in these terms :-
This Part of this Act, except so much of sections sixty-two and and sixty-three as are referred to in section sixty-four, shall not apply to marriages between Roman Catholics. But nothing herein contained shall invalidate any marriage celebrated between Roman Catholics under the provisions of Part V of Act No. XXV of 1864, previous to the twenty-third day of February 1865.It is plain from this section that where the intention was to exclude Roman Catholics from any part of the Act, the Act so provided in terms. They are not excluded from Part V, and Part V applies to them, Part VII of the Act deals with penalties, and Part VIII contains miscellaneous provisions. It is admitted that the marginal note to a section cannot control or affect the clear words of the section. It is submitted that the whole scheme of the Act shows that ' personal law ' in Section 88 refers only t0 capacity and impediments, and not to form.
(5) The argument of the appellants that if Part V of the Act applies to Roman Catholics, it is ultra vires by reason of the Treaty of Cession is unsustainable. Roman Catholics are not compelled to marry before a Registrar, they are merely permitted to do so. That is not an interference with the free exercise by them of their religion, They may marry in their own Church '& they choose.
(6) There is no evidence, and it is not suggested, that the parties to the marriage before the Registrar wore incapable of contracting a marriage with one another, or that there was any impediment to such a marriage,--apart from the question of. the form of the marriage. The marriage was, therefore, valid.
(7) The marriage before the Registrar could not, as suggested in the evidence, be conditional upon another ceremony, for the Act itself makes it a valid and binding marriage.
(8) As to the argument that the learned Judge had no jurisdiction to pass a decree for restitution of conjugal rights in an ordinary original side suit, no objection was taken in the written statement, no issue was raised, and the point was not taken before him. It is admitted that the necessary facts were proved, and that the Court could have granted a decree if there had been a petition in a matrimonial suit. The fact that the relief was prayed for in a plaint and not in a petition does not deprive the Court of jurisdiction.
7. The above being the arguments and contentions of the parties, I now proceed to state the conclusions at which I have arrived, The expression ' personal law' is often used by jurists to denote either the lex domicilii or the law of a person's nationality. Thus, in Westlake's Private International Law, 7th Edn., it is stated at page 6 that 'the latter' (personal law) 'was anciently the lex domicilii, and to a great extent is so still, but the modern tendency is to substitute political nationality for domicile as the test of personal law, so far as possible' ; and again at page 40 ' whenever the operation of a personal law is admitted in England, the domicile of the person in question, and not his political nationality, is considered to determine such personal law.' So far as the English Courts are concerned, the meaning of personal law is discussed in Ogden v. Ogden  P. 46 58 and the question is also discussed by Sir Gorell Barnes P. in Chetti v. Chetti  P. 67 84. In the present case, however, we are concerned not with the meaning which is attached to the expression ' personal law ' in England, but as to the meaning which it has in India in an Act relating to the solemnisation of marriage of Christians in India. Mayne in discussing personal law in Hindu Law and Usage draws attention at p. 54 of the 9th Edn. to the fact that ' In India there is no lex loci, every person being governed by the law of the personal status.' In the Chapter on the application of English law to natives of India in Ubert's Government of India occurs this passage at p, 359 :-
It will have been observed that Warren Hastings' rule and the enactments based upon it apply only to Hindus and Mahomedans. There are, of course, many natives of India who are neither Hindus nor Mahomedans, such as the Portuguese and Armenian Christians, the Parsees, the Sikhs, the Jains, the Buddhists of Burma and elsewhere, and the Jews. The tendency of the courts and of the legislatures has been to apply to these classes the spirit of Warren Hastings' rule and to leave them in the enjoyment of their own family law, except; so far as the have shown a disposition to place themselves under English law.
I think that this passage accurately represents the tendency of the Courts and of the legislature in India. In Westlake's Private International Law, 7th Edn., in discussing at pages 11 and 12 the different laws under which persons lived in Europe in the same city in the dark ages, the tendency is recognised in the statement: 'It was just as now in India, where Europeans.. Hindoos and Mahometans have their respective family or religious laws.' In Lopez v. Lopez I.L.R. (1885) Cal. 706 a case in which the parties were Roman Catholics and the question one of prohibited degrees, the Full Bench said (p. 731) :-
The result is that in our opinion the prohibited degrees for the parties to this marriage were not the degrees prohibited by the law of England, but those prohibited by the customary law of the class to which they belong, that is to say, the law of the Roman Catholic church as applied in this country.
The Court thus held that the personal law of the parties applied, and that that law was the law oil the Roman Catholic Church. In Lucas v. Lucas I.L.R. (1904) Cal. 187 Pratt J. cited with approval at p. 194 a passage from Rattigan's Law of Divorce which is in the following terms:-
In Rattigan's Law of Divorce the subject is summarised thus at page 136:-' (a) If both parties are domiciled in India, there being no express law In British India which defines ' the prohibited degrees of consanguinity or affinity,' each case must be decided by reference to the personal law of the parties to the marriage, i.e., to the customary law of the class to which such persons belong'.
In this case Lopez v. Lopez, above cited, was referred to, and Pratt J. held that as the husband ' was married while in full communion with that church, he must be regarded for the time being as governed by the law of the class known as Roman Catholics, and his subsequent apostacy will not affect the validity of that marriage,' that is to say, his personal law at the time of his marriage was the law of the Roman Catholic Church. In the present case the evidence establishes that the law of the community to which the parties belong is the canon law of the Church of Rome. It is plain from the definitions in Section 3 of the Act of 1872 that this Act relates to the solemnisation of marriage of Christians of various communities, including the community of Roman Catholics. I think that the words ' the personal law applicable to either of the parties' in Section 88 clearly refer to the personal law of the religious community to which either of the parties belong. In my opinion on the evidence in this case the personal law applicable is the canon law of the Church of Home.
8. The next question arising is whether, assuming that the canon law forbids the marriage of the parties except in the form prescribed by that law, Section 88 of the Act of 1872 covers such a prohibition. In my opinion it clearly does not. The distinction between the forms of entering into the contract of marriage and the essentials of the contract itself has long been recognised by lawyers. This distinction was emphasised by Lord Campbell in Brook v. Brooke (1861) 9 H.L.C. 193 in these terms (p. 207):-
But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractns, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Although the form of celebrating the foreign marriage may be different from those required by the law of the country of domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated.
9. Again, in commenting upon the case of Simonin v. Mallao (1860) 29 L.J.P. & M. 97 Lord Campbell at p. 218 said :-
The objection to the validity of the marriage in England was merely that the forms prescribed by the Code Napolean for the celebration . of a marriage in France had not been observed. But there was no law of France, where the parties were domiciled, forbidding a conjugal union between them ; and if the proper forms of celebration had been observed, this marriage by the law of France would have been unimpeachable.
10. Again in Sottomayor v. De Barros (1877) 3 P & D. 1 Cotton L.J., in delivering the judgment of the Court of Appeal, said (p. 5):-
The law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicile; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage,...this, in our opinion, imposes on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons both at the time of their marriage subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnised.
11. A comment is made upon this part of the judgment in that case by the Court of Appeal in Ogden v. Ogden at pp. 73 and 74, where it is suggested that the question there referred to was rather a question of illegality than of incapacity. But in Ogden v. Ogden the distinction between form and essence is emphasised in the judgment at p. 58 in these terms:-
It is desirable, therefore, to avoid the confusion which appears to have arisen sometimes between the consideration of the principles which have been laid down for determining the validity of a marriage where the ceremony alone was in question, and of those which have been considered, in determining whether it was lawful for the parties to intermarry at all.
12. In the present case, it is not the lex domicilii of the parties which has to be considered, but the personal law applicable to them by their religion. And as in cases where it becomes necessary to have regard to the lex domieilii, a Court would consider in, that connection, not questions relating to the form of the ceremony, but those matters which rendered a marriage between the parties illegal, or forbade a conjugal union between them, I think that this should equally be the case where the personal law applicable to Christians by reason of their belonging to a particular religious community comes up for consideration. In my opinion it is impossible to suppose that the legislature in an Act dealing with the forms of marriage of Christians could by Section 88 have intended to enable parties who had gone through a form of marriage permitted by the Act to rely upon a prohibition as to form imposed by their personal law so as to invalidate the marriage. The whole scheme of the Act of 1872, in my judgment, indicates that it is an Act dealing with the forms of solemnisation of marriage. This was the opinion expressed by the Full Bench decision in In re Kolandaivelu I.L.R. (1917) Mad. 1030. The Court in that case said with reference to the Act (p. 1039):-
The Act however is only concerned with the forms in which the marriage is to be solemnized, and does not deal with objections to the validity of the marriage.
13. With that opinion I agree. In the Full Bench judgment in Lopez v. Lopez, after referring to certain provisions of the Act of 1872, including Section 88, the Court said (p. 729) :-
There can be no doubt as to the object of the changes made by this Act ; the object clearly was to secure that there should be nothing in the rules as to the celebration of Christian marriage tending to indicate, or suggest, that any particular rule as to prohibited degrees applied to any particular marriage.
14. I think it is plain that the Full Bench in that case regarded this Act as an Act dealing with the forms of marriage. I do not myself think that the words used in Section 88 justify the limitation suggested in the marginal note, that the personal law applicable is the personal law as to prohibited degrees. I think that the expression ' personal law' in that section would include any-personal law, apart from any personal law as to the form of the marriage, which forbade either of. the parties to enter into a contract of marriage with one another. In my opinion the prohibition contemplated by the section would certainly not extend to a prohibition and to the form of the marriage. So to hold might render parts of the Act entirely nugatory. Where it is intended to exclude a particular religious community from any part of the Act, the community is excluded in express terms, as is the case with Roman Catholics in Section 65 with regard to Part VI of the Act. Roman Catholics are not expressly excluded from Part V of the Act. Accordingly, even if it were established that by the canon law appellant No. 1 and the respondent were prohibited from going through the form of marriage before the Registrar, I should hold that Section 88 did not cover such a prohibition, and that that marriage wan valid and binding upon them-If, contrary to my opinion, the true view were that Section 88 does cover a prohibition as to the form of marriage. I should nevertheless hold that on the evidence in this case such a prohibition has not been established. Father Fortuny admitted in his evidence that there was no impediment as far as he was aware to the plaintiff And defendant No. 1 marrying one another. He stated that by canon law marriage is a sacrament, and that the two parties administer the sacrament to each other, not the priest. He also said that by reason of canon 1094. which lays down the form of marriage, the marriage in this case before the Registrar was not valid. He admitted, however, that the Roman Catholic Church does not interfere with the laws of the civil Government, and that the Indian Christian Marriage Act of 1.872 does not interfere with the practice of Roman Catholicism. He stated that in conscience Catholics cannot go before the Registrar, and that if they marry before the Registrar, they can be married afterwards before the Church. He does not say that canon law forbids a civil marriage, and no such canon has been referred to. On the contrary, the competency of the civil power to enact laws in regard to marriage so far at any rate as the civil effect of marriage is concerned is recognised by canon 1016. The argument of the appellants is that canon 1094 impliedly forbids a marriage not in the form therein prescribed. I do not think that any such implication is necessarily involved in that canon. In the absence of evidence that a civil marriage which the law of the land permits is expressly forbidden by canon law, I hold that the prohibition which the appellants seek to rely upon has not been established.
15. As to the contention that the parties themselves did not regard the marriage before the Registrar as binding, that it was a conditional marriage, and subject to the performance of a religious ceremony, the evidence does not, in my opinion, establish this, even if it were permissible in law. The plaintiff in her evidence said that defendant No. 1 first suggested the civil marriage, that he did not give her to understand that the civil marriage was a farce or a nullity, and that the marriage was not conditional on anything. Defendant No. 1 in his evidence, though he stated that the plaintiff did not come to live with him as she did not think the marriage was complete without the religious ceremony, said in cross-examination that he asked the plaintiff to keep the marriage secret, and that she said that she would, although it hurt her feelings. In this state of the evidence it appears to me impossible to hold that there was any agreement between the parties that the marriage between them was not to be regarded as a marriage, and was conditional upon a subsequent religious ceremony. Even if such an agreement had been made, it would, in my opinion, have been of no effect in law, the parties having gone through a ceremony which by the Act of 1872 is a valid and binding marriage.
16. Lastly, I am of opinion that there is no substance in the contention that the learned Judge had no jurisdiction to pass a decree for restitution of conjugal rights. By cl. 35 of the Letters Patent of 1865, matrimonial jurisdiction was, as regards Christians, conferred upon the High Court, that is to say, upon every Judge of the High Court. The Act which now confers jurisdiction is the Indian Divorce Act of 1869, by Section 4 of which it is provided that:-
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.
17. The jurisdiction, therefore, must be exercised subject to the provisions of the Act, and not otherwise. It is plain from Section 7 that a petition under the Act is regarded as a suit. Section 46 provides that 'the forms set forth in the Schedule to this Act, with such variations as the circumstances of each case require, may' (not 'must') 'be used for the respective purposes mentioned in such Schedule,' There is no form of petition in the Schedule for restitution of conjugal rights. By Section 47 statements in every petition under the Act must be verified in the manner required by law for the verification of plaints. The Court Fees Act, 1870, second schedule, Article 20, requires that every petition under the Indian Divorce Act, except a petition under Section 44, shall bear a court-fee stamp of Rs. 20. In the present case, the prayer for relief is contained, not in a petition in a suit, entitled 'Matrimonial Jurisdiction', but in a plaint in an ordinary original side suit. That plaint bears a court-fee stamp of Eh. 20. The jurisdiction to grant a decree for restitution of conjugal rights is contained in Section 32 of the Indian Divorce Act, which is as follows :-
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.' .ft is admitted that the necessary facts were proved to justify a decree if the relief had been claimed in a petition in a suit entitled 'Matrimonial Jurisdiction.
18. It is also admitted that the Judge trying this suit was the Judge who was for the time being in charge of matrimonial suits under directions of the Chief Justice. In my opinion the facts that the relief claimed in this case was not claimed in a petition, and that the suit was not entitled 'Matrimonial Jurisdiction,' arc mere technical defects in no way going to the root of the jurisdiction. In my judgment, in a suit of this particular character, the suit being one for a declaration that the plaintiff was the lawfully wedded wife of defendant No. 1 and for an order for restitution of conjugal rights, the prayer in the plaint asking for restitution of conjugal rights can properly be treated as a petition; and inasmuch as the necessary facts were proved to justify such an order, as was admitted, the learned Judge, in my opinion, had jurisdiction to pass the order, and the fact that the suit was not headed 'Matrimonial Jurisdiction' is immaterial.
19. Accordingly, after very careful consideration, 1 am of opinion for the reasons above given that this appeal should be dismissed with costs to be paid by appellant No. 1.
K. Kemp, J.
20. This is an appeal, in which the actual points to be decided, though, important to the community more particularly concerned, appear to me to fall within a very small compass. The parties to the appeal are Roman Catholics, and the material facts, which may be shortly stated, all occurred within the short space of three weeks. On June 9, 1928, appellant No. 1, Peter Philip Nery Saldanha, age 24, and the respondent Anne Grace Saldanha (Nazareth), age 30, appeared before the Roman Catholic Vicar at Dabul Parish Church as parties to an intended marriage, signing a declaration to the effect that or their free will they promised marriage and that there was no impediment thereto. On the same evening Saldanha wrote a letter to the Vicar which runs as follows :-
With reference to the instructions given you this afternoon for reading the banns of the proposed marriage between Anne Grace Assucena Nazareth and myself, please note that I have changed my mind, owing to various important circumstances which were considered since then. I, therefore, request you to atop the reading of the banns as I am not willing to marry Miss Nazareth.
21. This decision, however, was not in fact adhered to, and whatever the reason that brought about the further change of intention may have been, the parties went through a civil form of marriage before the Marriage Registrar at Bombay on June 14, 1928. They did not, however, live together thereafter as man and wife and I think it was probably the intention of both to go through a religious ceremony before they settled down in this manner. On June 27, 1928, Saldanha went through a marriage ceremony with Olive De'Souza, appellant No. 2. age 21, at the Church of Sacred Heart, Igatpuri. A rumour as to Saldanha's intention to perform this ceremony appears to have reached the respondent in Bombay on the morning of the same day and her brother therefore wired to the Vicar of the Parish Church, Father Fortuny, informing him of the above facts. No reply baing received, a further wire was sent later in the day asking for definite information as to whether the marriage had taken place. Neither of these wires was received by Father Fortuny in time to interfere with the ceremony. On the following day Olive De'Souza's attention was drawn to a notice in the Times of India to the effect that Saldanha had only a fortnight before been married to the respondent. After inquiries she filed a complaint against him before the First Class Magistrate at Igatpuri. Committed for trial thereafter on a charge under Section 495, Indian Penal Code, Saldanha was eventually acquitted on November 2, 1928, by the Sessions Judge, Nasik. On November 7, 1928, the respondent filed the present suit against Saldanha and Olive De'Souza for a declaration that she was his lawfully wedded wife and that the marriage solemnised at Igatpuri was invalid, and for an order for restitution of conjugal rights N. W. Kemp-I., before whom the suit was tried, decreed the claim. The defendants appeal, and the main point that arises for consideration is, whether the marriage solemnised before the Registrar on June 14, 1928, was valid in law, the ground on which it is attacked being, in short, that the personal law by which the parties are governed insists on a formal religious ceremony in the presence of the priest. I may here mention that Government appealed from the acquittal of the accused in the criminal case above mentioned and both appeals came before this Bench sitting first on the Appellate Side and thereafter on the Original Side. We have, therefore, had the advantage of the full arguments addressed to us in the first instance by the Advocate General and Mr. Godinho in the criminal appeal, and those arguments hare been adopted by counsel on each side in the present appeal. When, therefore, I refer in this judgment to the arguments put forward on the one side or the other in regard to the points of law involved I must be taken to include arguments advanced in the criminal appeal and adopted by counsel here.
22. With regard to the ceremony by which a marriage is solemnised, there is, I think, ample authority for saying that all questions relating thereto are ordinarily to be decided by the law of the place where the marriage is celebrated, i.e., lex loci' contradua. It is unnecessary to cite the numerous authorities to this effect, and it will be sufficient to quote the observations of Lord Dunedin in delivering the judgment of the Privy Council in the recent case of Berthiawme v. Dastous (1929) 43 T.L.R. 607 :-
If there is one question better settled than any other in international law, it is that as regards marriage-putting aside the question of capacity-locus regitactnm. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted in the place of the parties' domicil would be considered a good marriage. These propositions are too well fixed. to need much quotation.
23. Apart from any question that may arise in the present case in connection with the personal law of the parties concerned, it is admitted, that all the conditions necessary for the due solemnisation of marriage under Part V of the Indian Christian Marriage Act 1872 were properly fulfilled and the marriage thus solemnised before the Registrar in Bombay would be valid in law. I need not, I think, refer to the question whether there is anything in the law of the domicile of the parties which, by imposing any personal incapacity or attaching any illegality, would render the marriage invalid, for the simple reason that, though the evidence would seem to show that the domicile of the parties was and is Goa, there is no reliable evidence of what the law of Goa is on this point. I do not, in saying this, overlook the somewhat vague statement made by the plaintiff in cross-examination to the effect that in Goa they ' have to get a civil marriage certificate before the religious ceremony can be performed.' It is at the best not a statement from which the appellants could derive assistance.
24. The sole point, therefore, on which any doubt can be entertained is that which arises under Section 88 of the Act. The section runs as follows :-
Nothing is this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to eater into.
25. The marginal note to the section runs as follows:-
Non-validation of marriages within prohibited degrees.
26. There being in the present case no question of the parties being within the prohibited degrees, it is clear that if the section were to be construed by reference to the marginal note it would not avail the appellants. It is, however, well established that marginal notes must not be referred to for the purpose of either limiting or extending the words of the Act itself, and; although it does not follow that the marginal note in the present case does not in fact show the real drift of the section, I agree that for the present purpose it should be entirely disregarded.
27. The argument put forward by the appellants and based on this section is that the personal law applicable to the parties is the canon law of the Church of Rome, and that under that law they are prohibited from marrying otherwise than in accordance with the prescribed form and ceremony in the presence of the priest. On the first part of the above argument, viz., that the personal law contemplated, in Section 88, as far as the parties hereto are concerned, is the Canon law of the Church of Rome, the Full Bench case of Lopes v. Lopez I.L.R. (1888) Cal. 706 is relied on. That was a case of a suit for restitution of conjugal rights between two East Indian Roman Catholics, domiciled in British India and resident in Calcutta, where the respondent husband contended that the marriage was invalid on the ground that the parties were within the prohibited degrees, the petitioner being in fact his deceased wife's sister. If the law of England applied, it was admitted that the marriage would be invalid. The sole question, therefore, that arose for determination was whether the prohibited degrees applicable to the marriage there in question were those prescribed by the law of England or by some other rule. Dealing with this question, in the first place, apart from actual legislation, the Court came to the conclusion that there was nothing in the history of the British acquisitions in India to suggest that the English law of prohibited degrees was imposed on all Christians in British India. They then proceeded to consider the effect of the legislation and, after showing from a detailed examination of the provisions of the Supreme Court Charter and the Bengal Regulation that there was no justification for holding that this state of affairs had, at any rate up to the year 1851, been in any way altered, they commented on the effect of the statute 14 & 15 Vic. c. 40 and Act XXV of 1864 as follows (p. 727):-
And, however strongly these Acts may seem to show an opinion that the English law as to the prohibited degrees was in force for all Christians in India, subsequent legislation may, with equal correctness, be said to indicate another view of the question.
28. The effect of the subsequent legislation referred to, viz., the Marriage Acts of 1865 and 1872 coupled with the Divorce Act of 1869, was thus summed up (p. 731).-
And the Acts of 1865 and 1S72 show clearly that during the period between those two dates, it was the settled purpose and policy of the Legislature not to extend the English rules as to prohibited degrees, by legislation, to persons not already governed by them, hut to leave them under the law to which on other grounds they might be found subject.
29. The final conclusion at which the Court arrived is stated on the same page in these words :-
The result is that in our opinion the prohibited degrees for the parties to this marriage were not the degrees prohibited by the law of England, but those prohibited by the customary law of the class to which they belong, that is to say, the law of the Roman Catholic church as applied in this country.
30. I have described in some detail the trend of reasoning adopted in the Full Bench case in order to bring out the fact that, although the Court examined most closely and carefully the spirit and the letter of previous legislation and the meaning of b. 88 of the Act of 1872, they did so from one point of view only, and with the sole object of deciding the question of the prohibited degrees. This fact, to my mind, requires emphasis for the reason that I have understood' the case to be relied on, as above indicated, for the general proposition that the personal law referred to in Section 88 of the Act is, so far as Roman Catholics are concerned, in all respects the Canon law, and that any marriage which would for any reason be invalid in the eyes of that law must also be held invalid in a civil Court. The opening sentence of the judgment of Wilson J,, when the case returned for final decision by the original appeal Bench (at p. 732), to the effect that it had been laid down by the Full Bench that the validity of the marriage in question was to be determined by the law of the Church of Rome should, to my mind, be read in the light of the facts of the case, and was not intended to imply that the law of the Church of Rome was, where Roman Catholics were concerned, the deciding factor on all points as to the validity of a marriage celebrated under the Indian Christian Marriage Act. In other words, although the personal law referred to in Section 88 of the Act is to be found, as far as the Catholics are concerned, in the Canon law, the above case is, in my opinion, no authority for the proposition that the expression ' personal law ' incorporates the whole of that Canon law.
31. Evidence as to the Canon law of the Church of Rome, in so far as it is argued to be material to the present case, was given by Father Fortuny, the Parish Priest, who performed the second marriage at Igatpuri. He deposed as one who had studied the subject and produced a text book, being Vol. V of ' A Commentary on Canon Law' by the Rev. P. Chas. Augustine, O.S.B D.D., Professor of Canon law. The book referred to purports to contain all the canons relating to marriage included in a Code of Canon Law, which, I understand from the evidence of Father Fortuny, was promulgated by Pope Benedict XV, in the year 1918. I gather, though the evidence on this and other important points in connection with the Canon law is unfortunately far from clear, that prior to this codification the Canon law was largely, if not entirely, to be found in various Council and pontifical decrees the extent of its application being apparently somewhat uncertain, and depending, at any rate in countries preponderantly non-catholic, on proof of local promulgation. In view of the codification to which we have been referred, and which we are told has been in force since 1918, there would appear to be no need to discuss the earlier Tridentine discipline directed against clandestine marriages and requiring the marriage ceremony to take place in facie ecolesiae. The canon in which are embodied the present provisions directed against clandestinity is Canon 1094. The material portion of this Canon, when translated from the Latin, runs as follows :-
Only such marriages are valid as are contracted before the pastor,..,and at least two witnesses etc.
32. Under Canon 1099, all persons baptised in the Catholic Church are bound to observe the form above prescribed. The appellants' case rests practically entirely on the above two canons, coupled with Canon 1012, the translation of which is as follows :-
The Lord Christ himself has raised the marriage contract between baptised persons to the dignity of a sacrament, .and hence there can be no valid marriage contract between baptized persons which is not at the same time a sacrament.
33. It is argued on this that the ceremony before the Registrar in the present case is, as far as the Canon law is concerned, an entire nullity. Assuming that that is so,-and I think the evidence before us supports this contention,-what is the result The only result; as far as I can gather, is that the Church will refuse to recognise the marriage. Mr. Godinho in the criminal case and Mr. Khan in the civil appeal were at pains to point out that this amounts to a forbidding of the marriage within the meaning of Section 88. Speaking for myself I am unable to agree. It is admitted in the first place that, although the Code of Canon law lays down (Canon 1035) that ' All can contract marriage who are not forbidden to do so by law ', and proceeds thereafter at once to deal in great detail with the various impediments to marriage (Uanons 1042 to 1080)-which I take to mean the various facts and circumstances contemplated by the qualification contained in Canon 1035-clandes-tinity finds no place among these impediments. The impediments so carefully described and classified seem to me to cover' everything which can possibly be argued to forbid the parties entering upon a particular or any marriage. I do not wish to be taken as saying that every circumstance described in this Code of Canon law as an impediment would ipso facto form a ground for questioning a marriage under Section 88 of the Act. But I certainly find the greatest difficulty in accepting the argument that the provision against clandestinity, using that word merely in the sense of failure to perform the marriage in facie ecelesiae, forbids the marriage. It is urged by the appellants that one cannot expect to find clandestinity among impediments inasmuch as it is not strictly an impediment at all, the marriage thus attempted being, as before stated, a mere nullity. The more this is insisted on the more clear does it appear to me that the appellants are out of Court. I do not think that any useful purpose would be served by my examining the various other Canons discussed at great length in argument, but I might perhaps draw attention to Canon 1016, which admits that in the law of marriage due regard must be paid to the competency of the civil power concerning the merely civil effects of matrimony ; and Canon 1137 which lays down that a marriage null for want of form, to become valid, must be contracted again according to the prescribed form. The civil effects consequent on matrimony are no concern of the Canon Law, and it seems to no that, where the civil law lays down that certain acts give rise to a definite civil status, it is no answer to say that the Canon law refuses to recognise that civil status.
34. Once it is admitted,-as it must be,-that there was, at the time of the disputed marriage, nothing whatever in the personal law of the parties forbidding them to marry each other, no assistance can, in my judgment, be derived by the appellants from Section 88 of the Act. The Act itself was not concerned with any thing but the form of solemnisation. This is clear from the preamble : '' Whereas it is expedient to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion.' Had it been the intention of the legislature that the forms prescribed should not apply to Roman Catholics, or indeed to any class of Christiana whose personal law could be said to insist on a particular ceremony, it would have been simpler and more natural to exclude such persons altogether from the operation of an Act, the aim of which was purely to prescribe forms of solemnisation. So far from doing this, however, the Act definitely applies to Roman Catholics, with this significant feature that they are in terms specifically excluded from the operation of Part VI.
35. But even assuming for a moment,-contrary to my own clear opinion,-that Section 88 can be construed as meaning that nothing in the Act shall be deemed to validate any marriage solemnised by a ceremony which the personal law of the parties forbids them to perform, I cannot, as I have already indicated, see that the canon law actually forbids the performance, for what it is worth, of the ceremony here in question. Canon 1137, already referred to, appears to me distinctly to contemplate such a contingency, the marriage here being, on the appellants' argument, under Canon law ' null for want of form.' In such a case, it must, in order to become valid, be contracted again according to the prescribed form. And I think this same Canon is material to be considered in connection with the somewhat strained argument put forward to the effect that, if the parties married in a way which the Church refused to recognise, the result would be that, living thereafter as man and wife, they would be regarded by the Church as living in sin-which is certainly forbidden. On the facts of the present case there would seem to be no room for the application of this argument, as the parties did not live together as man and wife. But in any case it would be the subsequent conduct of the parties and not the ceremony performed that would be regarded by the Church as sinful, and any such sin could be avoided by the performance of a religious ceremony in the manner laid down in Canon 1137. That ceremony may be required before the Church recognizes the parties as man and wife, but, as I have stated before, the Church has no concern with the civil effects of matrimony, and it is with the validity of the marriage under the civil law that we are concerned.
36. I have not thought it 'necessary to refer to the further argument put forward on behalf of the appellants to the effect that the Indian Christian Marriage Act of 1872 should be so construed as not to interfere with the enjoyment by Roman Catholics of the free exercise of their religion. This argument is based on the rights said to have been reserved to ' the inhabitants of the island of Bombay' under the treaty by which that island was ceded to the British Crown in the year 1661 as part of the dower of Catherine of Bragaimi. Whether the parties to the present suit, whose domicile, parents and antecedents all appear to be purely Goan, can or cannot reasonably claim to be persons designated in a treaty, 250 years old, as 'inhabitants of' the island of Bombay,' I can in any event see nothing in the Act in question to suggest that the free exercise of this religion is in any way interfered with. I cannot agree that the permission given to any one who chooses to take advantage of it, to marry in the presence of the Registrar can be described as an interference with his religion or with the exercise of that religion by any one else, especially when it is appreciated that any form or ceremony acceptable to the parties may be adopted, nothing in the nature of a nuptial blessing is given by the Registrar and the marriage may even be solemnised by a Roman Catholic priest: see Sections 51 and 54 (2nd paragraph). Indeed Father Fortuny himself in his evidence stated :-
The Indian Ohristiuu Marriage Act 38712 does not interfere with practice of Roman Catholics. In conscience Catholics cannot go to Registrar, If they marry before Registrar, they can be married afterwards before the Church.
37. I ought, perhaps, before leaving this part of the case, to refer to the case of Parapano v. Happaz  Sec 165 a decision of the Privy Council, to which our attention was drawn. It was cited, 1 think, more with a view of showing the length to which the civil Courts may be said to have gone in paying regard to the canons of the Roman Catholic Church, when in conflict with the rules of the ordinary civil law, than as a decision bearing in any way on the matters here in question. It was an appeal from the Supreme Court of Cyprus, and related to the estate of a deceased Roman Catholic Ottoman subject, resident at the time of his death in Cyprus, the contest being between his widow and children on the one hand, claiming the whole estate, and the collateral relations on the other, admitting that the widow was entitled to one-third, but claiming the remaining two-thirds for themselves on the ground that the children were illegitimate.
38. Under the Cyprus Courts of Justice Order, 1882, the Court, in an action in which the defendants were Ottoman subjects, had to apply the Ottoman law (i.e. the law which was in force in Cyprus on July 13, 1878, as altered and modified from time to time by Cyprus statute law). The only statute bearing on the point in dispute was one which provided that the property of a deceased should devolve on all his legitimate children. The question that arose was by what law,-Christian or Mahomedan,-the legitimacy of a Christian Ottoman subject in Cyprus was to be ascertained. There is, in my opinion, in this case little that is of the slightest assistance to us here. The decision appears to have been based on a consideration of the special facts of the case, viewed in the light of the policy followed by the Turkish conquerers of Cyprus, of allowing non-Mahomedan sects to be governed by their own laws in divers matter connected with religious and domestic life. The conclusion ultimately reached, that the canonical doctrine of the legitimation of children by subsequent marriage governed the case, seems to have been a pure finding of fact.
39. Another point was argued, viz., that in any event the marriage before the Registrar was conditional on the subsequent performance of a religious ceremony. I am unable to accept this somewhat startling suggestion. The parties of their own free will went through the ceremony which the law provided as one of the methods of solemnising their marriage, and whatever condition they may have contemplated in their own minds as one which should be fulfilled before actual consummation took place, the fact remains that they were legally and unequivocally married from the moment the ceremony was completed.
40. There is, however, one other point in connection with one of the reliefs claimed in the plaint and decreed, as to which it is argued that the Court had no jurisdiction. It is the prayer for restitution of conjugal rights. This is a point which was unfortunately not raised at the hearing of the suit, the reason possibly being that the defendant husband's counter-claim for a declaration of nullity would be subject to the same objection. The only question that appears to have been gone into before the learned Judge was whether facts sufficient to justify such a decree had been proved. As to this the facts were clear, and it is admitted that, if the first marriage is held to be valid, the husband had, without reasonable excuse, withdrawn from the society of his wife. The point raised is based on a technicality of procedure, but it is argued that the objection goes to the root of the jurisdiction of the Court. Ordinarily an application for restitution of conjugal rights, whore- the parties are Christians, is made on the Matrimonial Side by a petition under Section 32 of the Indian Divorce Act. That was an Act to amend the law relating to divorce and matrimonial causes in India, the preamble of which recites that it is expedient to amend the law relating to the- divorce of persons professing Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial. Suction 4 of the Act lays down that the jurisdiction now exercised by the High Courts in all cases, suits and matters matrimonial shall be exercised by such Courts 'subject to the provisions of the Act and not otherwise.' In Gasper v. Gonsalves (1874) 13 Beng. L.R. 109 in a suit filed on the Original Side for a declaratory decree that the plaintiff was a feme sole Pontifex J. held that, in view of Section 4 of the Indian Divorce Act, he had no jurisdiction to entertain the suit. But the reason of the decision was not that the application ought to have been made by a petition under the Indian Divorce Act, but that the facts were not such as would entitle the plaintiff under the Indian Divorce Act to a declaration of nullity. To have granted such an application would, of course, have been an exercise of jurisdiction in a matrimonial matter covered by the Indian Divorce Act, otherwise than in accordance with the provisions of that Act. Here the matter is entirely different, and the appellant's only complaint is that this application ought to have been made by a petition on the Matrimonial Side. As to the form in which the application should be made I feel no difficulty and would be prepared at this stage- to treat the plaint as a petition if necessary. Indeed it will be noticed that the Divorce Act itself, though laying down in Section 10 that the proper procedure, when dissolution of marriage is desired, is to present a petition, refers in Section 15 to a 'suit' filed for that purpose. But the question whether this particular relief can be given in a suit filed under the ordinary original civil jurisdiction raises a somewhat different point. I doubt, however, whether it is in the circumstances of any real substance. The High Court consists of the Chief Justice and Judges (see Section 2 of the High Courts Act, 1861 and Section 101(2) of the Government of India Act, 1915) and it is in the High Court as so constituted that the jurisdiction conferred by these Acts and by the Letters Patent vests. Such jurisdiction, therefore, could, I think, be exercised by any of the Judges, subject to any rules framed under Section 13 of the Charter Act or Section 108 (1) of the Act of 1915. Indeed High Court Rule 63 definitely provides as follows :-
Any Judge of the High Court may, subject to any rules of Court, exercise in Court or in Chambers all or any part of the jurisdiction vested in the High Court on its Original Side.
41. Certain Judges are appointed by the Chief Justice to sit on the Original Side, and with regard to those Judges at any rate I doubt whether, if the matter rested there, it could be suggested that the matrimonial jurisdiction of the High Court could not be exorcised by any one of them when sitting on the Original Side.
42. It is urged, however, that there is in fact a Judge specially appointed by the Chief Justice to exercise the matrimonial jurisdiction, and that he alone, sitting for that purpose, can exercise it. It so happens that the Judge thus appointed was the Judge who tried the present case. But that is a mere accident and I am, speaking for myself, inclined to think that in circumstances such as those of the present case the position would be the same even if he had not been so appointed.
43. The jurisdiction is there, and the restriction in practice in the exercise of it to one particular Judge rests on grounds of convenience and is a mere rule of procedure, and in a proper case, where it would be a great inconvenience and hardship to drive parties to further proceedings before another Judge, I think it would be open to a Judge to exercise the jurisdiction vested in him. In this connection I would emphasise the observations made by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (1921) 24 Bom. L.R. 682 :-
All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose.
44. I think this is a case where, having regard to all the circumstances, the learned Judge was justified in exercising the jurisdiction.
45. I agree, therefore, that the appeal should be dismissed with costs, to be paid by appellant No. 1.