Louis P. Russell, Acting C.J.
1. This is a petition by one Paulappabin Ramappa Kalkoti who has brought a suit in the Court of the District Judge of Dharwar against his alleged wife one Lea Habgal who is described in the record as an idiot, by her guardian, the Nazir of the District Court of Dharwar.
2. The real question that we have to decide is whether or not this marriage was a marriage at all on account of the idiocy of the respondent at the time of the ceremony, in other words whether the petitioner is not entitled to have his decree- nisi made absolute upon the ground that the marriage was null and void from the beginning.
3. Now in the case which is the well-known case on the point, Elliott v. Gurr (1834) 2 Phill. 16, the distinction between what marriages are void and what are voidable is pointed out, and in dealing with void marriages the Judge says, 'Civil disabilities such as prior marriage, want of age, idiocy and the like make the contract void ah initio-not merely voidable; these do not dissolve a contract already made, but they render the parties incapable of contracting at all; they do not put asunder those who are joined together, but they, previously hinder the junction and if any person under these legal incapacities come together, it is a meretricious, and not a matrimonial, union; and therefore no sentence of avoidance is necessary.'
4. No doubt opinions have varied as to whether marriage according to the Christian religion strictly speaking is a contract, or whether it is not something more than a contract, namely a change of civil status; and the distinction is pointed out in the well-known case of Mordaunt v. Moncreiffe (1875) L.R. 2 P &M.; 16. But it is not necessary for us to decide this question for whichever it is in this case we are of opinion that the respondent was not capable of understanding or giving her consent to what was done. There can be no doubt that if a person is an idiot, at the time of the so called ceremony being gone through, he or she I is not capable of being bound by the transaction in any shape or form.
5. Now the history of this girl and the evidence which has been given has convinced us that she has been what is known as an idiot from the time of her birth. It appears that she was picked up by the road side, taken into the Basel Mission at Dharwar and there kept for some years; and certainly the medical evidence is. clear upon the point that she has always been an idiot.
In consequence however of the circumstances under which this so called marriage was effected, this Court deemed it desirable and necessary to give the Rev. Mr. Warth of the Basel Mission of Dharwar and the Rev. Mr. Kemble of the St. George Mission at Hubli an opportunity of explaining the circumstances under which they brought about this marriage. Mr. Kemble has appeared in this Court, Mr. Warth has not, and has sent us no reason for not doing so.
6. It appears that in July 1905 Mr. Warth himself wrote to the Civil Surgeon at Dharwar saying that this girl was subject to periodical fits of mania, saying also that it was impossible to keep her in the Orphanage with the other girls who were seventy-two in number and asking what steps he should take to have her removed to the Lunatic Asylum.
7. The Civil Surgeon very properly pointed to him in the letter which is put in evidence the proper steps which he ought to take. But no such steps were taken.
8. After some time the Rev. Mr. Kemble wrote a letter to Mr. Warth asking whether he had a girl fit to marry, and on the 5th September 1905, Mr. Warth replied as follows :-
In answer to your letter of yesterday I am sorry to say that for the present we have no girl in our orphanage who would marry a Christian of the wadar caste as in all cases except one the relations would object to such a marriage And the one girl who would be at my free disposal, is, although she would be old enough and being a robust girl, not quite healthy. That means she gets now and then hysterical fits. The only remedy, the doctor says, would be a marriage if she could get a good and reasonable husband who would treat her with goodwill and wisdom. But who would marry such a girl? Any how I believe the doctor's dictum.
The girl was picked up from the road foul years ago and brought to our orphanage. She was a waif, speaks Kanarese and knows a little Marathi, and is now c. a. 18 years old. She was quite a wild girl but has now been a little cultivated although she was not clever enough to learn in school. She knows however now to make the native bread and a little cooking. Of course to marry such a girl would be trial in hop) that the Doctor's dictum might be fulfilled. I think also if a reasonable husband would make her work, it were better to marry her than to let her in orphanage where the work is too easy for her and where she is only getting fat.
Her name is Lea and her home Hangal in the South of the Dharwar District, her former caste Aryan.
10. From that letter it appears prefectly clear that Mr. Worth concealed from Mr. Kemble the fact of this girl's mental condition.
11. We would also point out that that letter certainly in very material points disagrees with the evidence given by Mr. Warth which also is entirely contradictory to the letter which he wrote to the Civil Surgeon in July. In his deposition before the Judge he says, 'no one at Sowardi believed her to be mad.''
12. Then he puts it down to her, having hysterical fits at certain periods.
13. Then it appears that in the month of October the petitioner went to Dharwar and he was married by Mr. Warth to his girl in. the school house at, the Basel Mission.
14. It is extremely to be regretted that Mr. Warth has not appeared here before us, because in the interest of the public generally, we should have wished to know whether the school-room of the Mission has been duly licensed for the performance of marriages. As to that we are entirely in the dark but as a matter of fact it appears it does not affect the present question.
15. Then again we do not find on the record any evidence as to whether this girl really was a Christian at all.
16. According to the letter that Mr. Warth wrote to Mr.' Kemble, it appears that some of his girls would not be willing to marry a Christian of the wadar caste as in all cases but one the relations would object to such a marriage, but he has got this one girl, the respondent.
17. The only assumption we can make is, that reckoning upon her not having any relations, to get rid of her from the Orphanage he arranged this marriage.
18. We have therefore no other alternative but to say that prima facie, at all events, the conduct of the Reverend gentle, man is certainly not such as this or any other Court of Justice could possibly approve of.
19. We must therefore make the decree absolute for the dissolution declaring this so-called marriage a nullity.