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B. Ignatius Anthoney Jayaraj Vs. Immy Margaret Florence - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberCivil Referred Case No. 2 of 1977
Judge
Reported inAIR1978Kant69; ILR1978KAR459
ActsIndian Divorce Act, 1869 - Sections 18, 19, 19(1), 19(2), 19(3) and 19(4)
AppellantB. Ignatius Anthoney Jayaraj
Respondentimmy Margaret Florence
Advocates:M.P. Eswarappa, Adv.
Excerpt:
- karnataka stamp act, 1957.[k.a. no. 34/1957]. section 2(e) & 2 (mn): [h.v.g. ramesh, j] duly stamped & market value held, when the words duly stamped and market value are clearly explained in the act and based on that if the registering authority comes to a conclusion as to what would be the proper market value and accordingly insists on the party to make such payment and on such payment, registers the document, the same would not in any way come in the way of the right of the party much less it can be treated as it is in violation of the provisions of the registration act . on facts, held, after amendment of section 45a and section 45b, the stand taken by the respondent authorities insisting upon the petitioners to deposit the amount as per the market value cannot be found fault..........day, had inherited this jurisdiction from the ecclesiastical courts. ultimately, by statute the high courts have inherited their jurisdiction direct from the supreme courts. thus the power to make decrees of nullity of marriage on the ground of duress or fraud was inherited by the supreme courts from the ecclesiastical courts and the high courts inherited that power from the supreme courts. this court has, therefore, clear jurisdiction to entertain this petition.' we may also incidentally refer to a decision of this court reported in d. michael raju v. sarah janaki (1973) 1 mys lj 414 from which it is clear that a petition for declaration of nullity of marriage on the ground of fraud was entertained and disposed of by this court. we have therefore no hesitation in taking the view that.....
Judgment:

V.S. Malimath, J.

1. The petitioner and the respondent are Indian Christians. The petitioner filed a petition for a declaration that the marriage between him and the respondent is null and void on the ground of fraud by invoking Sections 18 and 19 of the Indian Divorce Act, 1869 (hereinafter called the 'Act'). The learned District Judge, holding that the fraud alleged by the petitioner has been proved, made a decree nisi of nullity of marriage, which has come up for confirmation before us.

2. The question for consideration is as to whether the learned District Judge who has made the decree nisi of nullity of marriage had jurisdiction to entertain the petition for declaration of nullity of marriage on the ground of fraud. Section 18 of the Act provides that any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void. The grounds on which such a decree can be made are stated in Section 19 which provides that a decree of nullity of marriage may be made on the following grounds:

(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;

(3) that either party was a lunatic or idiot at the time of the marriage;

(4) That the former husband or wife of. either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

It is further provided in Section 19 that nothing in the Section shall affect the jurisdiction of the High Court to make decrees ot nullity of marriage on the ground that the consent of either party was obtained by force or fraud. It is clear from the reading of Sections 18 and 19 together that the District Court and the High Court have concurrent jurisdiction for entertaining a petition for nullity of marriage on the grounds stated in sub-secs. (1) to (4) of Section 19 of the Act.

3. So far as the decree of nullity ot marriage on the ground of force or fraud is concerned, the same can be obtained only by presenting a petition to the High Court which has a residuary jurisdiction to deal with a petition for dissolution of marriage on the ground that consent of either party was obtained by force or fraud. This view of ours receives full support from a decision of the Andhra Pradesh High Court reported in T. Saroja David v. Christie Francis : AIR1966AP178 , wherein Justice Jaganmohan Reddy has observed as follows (at p. 179):

'It may be observed that in so far as dissolution of marriage and nullity of marriage on the specific grounds stated in Section 19 are concerned both the District Court and the High Court have concurrent jurisdiction and when the case is one for declaration of nullity of marriage on the ground of force or fraud, the exclusive jurisdiction of the High Court is saved. In order to understand what this jurisdiction is, it is necessary to refer to the history of that jurisdiction. Originally, the Ecclesiastical Courts in England were empowered to deal with matrimonial matters. The Supreme Courts in India which were administering the English law as it was on a particular day, had inherited this jurisdiction from the Ecclesiastical Courts. Ultimately, by statute the High Courts have inherited their jurisdiction direct from the Supreme Courts. Thus the power to make decrees of nullity of marriage on the ground of duress or fraud was inherited by the Supreme Courts from the Ecclesiastical Courts and the High Courts inherited that power from the Supreme Courts. This Court has, therefore, clear jurisdiction to entertain this petition.' We may also incidentally refer to a decision of this Court reported in D. Michael Raju v. Sarah Janaki (1973) 1 Mys LJ 414 from which it is clear that a petition for declaration of nullity of marriage on the ground of fraud was entertained and disposed of by this Court. We have therefore no hesitation in taking the view that the District Court has no jurisdiction to entertain a petition for declaration of nullity of marriage on the ground that the consent of either party to the marriage was obtained by force or fraud. As the learned District Judge had no jurisdiction to entertain the petition, we cannot confirm the decree nisi passed by him.

4. For the reasons stated above, we set aside the decree nisi passed by the learned District Judge and direct return of the petition to the petitioner for presentation to the proper court.

5. Order accordingly.


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