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Joyce Sumathi Vs. Robert Dickson Brodie - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 418 of 1981
Judge
Reported inAIR1982AP389
ActsSpecial Marriage Act, 1954 - Sections 27; Foreign Marriage Act, 1969 - Sections 4, 5 to 14, 18, 17, 17(6) and 27
AppellantJoyce Sumathi
RespondentRobert Dickson Brodie
Advocates:Shankarrao Bilolikar, Adv.
Excerpt:
.....marriage act read with section 27 of special marriage act seeking divorce - petitioner was an indian citizen and respondent was foreigner - petitioner claimed that they married in bahrain according to foreign marriage act - petitioner came to india after a while and her husband left for london - petitioner stated that she was unable to ascertain whereabouts of respondent for five and half years - petition rejected in lower court on ground that marriage was not registered under section 17 of special marriage act - high court opined that even if marriage was not solemnized in accordance with procedure laid down under sections 5 to 14 of foreign marriage act matrimonial reliefs claimed by petitioner who was indian citizen cannot be denied under special marriage act - evidence on record..........that both the parties are christians and protestants by faith and that the appellant, who is an indian citizen, is ordinarily a resident of the twin cities of hyderabad and secunderabad while the respondent is a citizen of the united kingdom of england. the appellant (petitioner) having passed her intermediate examination and qualified as a higher grade typist, left for bahrain (saudi arabia) and came into contact with the respondent who was working there. they were married on 7-12-1972 in the office of her majesty's political agent at bahrain. the appellant claims that the marriage was performed under the foreign marriage act. from then onwards, both of them lived as husband and wife till, august, 1973 at bahrain when the respondent left for london. as the appellant was then.....
Judgment:

Madhava Reddy, J.

1. This appeal is directed against the order of the Chief Judge, City Civil Court, Hyderabad holding that O. P. No. 457/79 filed by the appellant herein seeking divorce under S. 27 of the Special Marriage Act, is not maintainable.

2. The appellant averred in her petition that both the parties are Christians and Protestants by faith and that the appellant, who is an Indian Citizen, is ordinarily a resident of the twin cities of Hyderabad and Secunderabad while the respondent is a citizen of the United Kingdom of England. The appellant (petitioner) having passed her Intermediate Examination and qualified as a Higher Grade Typist, left for Bahrain (Saudi Arabia) and came into contact with the respondent who was working there. They were married on 7-12-1972 in the office of Her Majesty's Political Agent at Bahrain. The appellant claims that the marriage was performed under the Foreign Marriage Act. From then onwards, both of them lived as husband and wife till, August, 1973 at Bahrain when the respondent left for London. As the appellant was then pregnant, the respondent promised to take her to London and advised her to go back to Secunderabad and stay with her parents till after the delivery of the child. She, therefore, came back to Secunderabad and stayed with her mother. She addressed several letters since then to the respondent. The respondent came over to Secunderabad in February, 1974 and stayed till May, 1974 along with the appellant at Secunderabad. He left India in May, 1974 and thereafter did not return. He thus deserted the appellant (petitioner) as also the child born to them in lawful wedlock. A Xerox copy of the marriage certificate was produced in proof of her marriage, the original being with the respondent. In spite of her best efforts, she was unable to ascertain the whereabouts of the respondent for over 5 1/2 years. She is not even sure whether the respondent, who was a Deep Sea Diver, was alive or not for she did not receive a single letter during this long interval. She, therefore, asserts that the respondent has deserted her and seeks divorce on the ground of desertion.

3. The respondent could not be served in person and substituted service was effected. The respondent did not appear and deny the allegations made against him by the appellant.

4. The appellant examined herself as P. W. 1 and one Miss Hemalatha, a resident of Ishaq Colony, Secunderabad, where the appellant and the respondent lived as wife and husband, as P. W. 2, P. Was 1 and 2 are neighbours. Their oral evidence, which has remained unchallenged by way of cross-examination, together with the marriage certificate. Ex. A-1, establishes all the averments made in the plaint. The learned Chief Judge has referred to the evidence and while not disbelieving it, did not give any finding. Having scrutinised the oral and documentary evidence on record, we are fully satisfied that the marriage between the appellant and the respondent was solemnized and recorded by the office of Her Majesty's Political Agent at Bahrain and thereafter they lived as husband and wife until the respondent left India in May, 1974 except for a brief interval when he went to London from Bahrain. He never returned thereafter to take care of his wife of took her to his home. They never lived together thereafter. He deserted her. We, therefore, hold that there was a marriage between the appellant and the respondent on 7-12-1972 as evidenced by Ex. A-1, Xerox Copy of the marriage certificate. We also further hold that the respondent deserted the appellant for upwards of six years after the child was born during their lawful wedlock. She is, therefore, entitled to a decree for divorce under Section 27 of the Special Marriage Act read with the provisions of the Foreign Marriage Act, 1969.

5. The learned Chief Judge, however, dismissed the petition holding that as the marriage was not registered as envisaged by Section 17 of the Foreign Marriage Act (Act XXXIII of 1969), the appellant is not entitled to any relief under the Special Marriage Act.

6. Applications under the Foreign Marriage Act read with Special Marriage Act, are few and far between. The Foreign Marriage Act, 1969 makes provision for solemnisation of foreign marriages. S. 4 thereof prescribes the conditions relating to solemnisation of foreign marriages in the following terms:

'4. A marriage between parties one of whom at least is a citizen of India may be solemnised under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:-

(a) neither party has a spouse living,

(b) neither party is an idiot or a lunatic,

(c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage, and

(d) the parties are not within the degrees of prohibited relationship;

XX XX XX XX XX XX'

The appellant is an Indian citizen. It is not shown that in the case of the marriage of the appellant and the respondent, any of the conditions are not fulfilled. Therefore, there was no impediment to the solemnization of a marriage between the appellant and the respondent under the Foreign Marriage Act. Section 3 of the Foreign Marriage Act envisages the appointment of Marriage Officers by the Central Government under a Notification. The Central Government is also empowered to appoint such of its diplomatic or consular officers as it may think fit to be Marriage Officers for any foreign country. For solemnizing the marriage under the said Act, notice of the intended marriage has to be given as envisaged by Sec. 5. All notices given under Section 5 are required to be kept in a Marriage notice Book referred to in Section 6. The notice is required to be published in the manner specified in Section 7. Objections, if any, received to the soleminization of the marriage under S. 8 may be disposed of in accordance with S. 10 and if no objections are received, it may be solemnized as laid down in S. 9. Any such marriage, however should not be in contravention of local laws i.e., laws in force of the foreign country where it is solemnized. Section 11(2) authorises the Marriage Officer to refuse solemnization of a marriage under the Act if it be inconsistent with international law or the comity of nations. He is required to record reasons in writing for such refusal. Before the marriage is solemnized under the Act, the parties and three witnesses are required to sign a declaration in the specified form in the presence of the Marriage Officer. That is to be counter-signed by the marriage Officer, at the official house of the Marriage Officer with open doors between the prescribed hours in the presence of the witnesses. There is however no particular form in which the parties may solemnize the marriage. Under S. 13 of the Act it is left to the choice of the parties. After the marriage is so solemnized, a certificate of marriage is issued under S. 14 in the form specified in the third schedule which certificate is required to be signed by the parties to the marriage and three witnesses and such a certificate is required to be entered in the Marriage Certificate Book also. Under s. 15 the marriage so solemnized is declared to be good and valid in law. S. 17 makes provision for registration of foreign marriages solemnized under other laws. S. 17(6) declares that a marriage registered under this section shall, as from the date of registration, be deemed to have been solemnized under the Act. S. 18 declares that the parties in relation to marriages solemnized under the foreign Marriage Act and in relation to any other marriages solelmnized in a foreign country between parties, of whom one at least is a citizen of India, may obtain matrimonial reliefs under the Special Marriage Act, 1954.

Section 18 reads as under :-

'Section 18(1) : Subject to the other provisions contained in this section, the provisions of chapters IV, V, VI and VII of the Special Marriage Act, 1954, shall apply in relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages as solemnized under that Act.

Explanation: - In its application to the marriages referred to in this sub-section. Section 24 of the Special Marriage Act, 1954 shall be subject to the following modifications, namely:-

(i) the reference in sub-section (1) thereof to clauses (a), (b), (c) and (d) of Section 4 of that Act shall be construed as a reference to clauses (a), (b) (c) and (d) respectively of Section 4 of this Act, and

(ii) nothing contained in Section 24 aforesaid shall apply to any marriage -

(a) which is not solemnized under this Act, or

(b) which is deemed to be solemnized under this Act by reason of the provisions contained in Section 17;

Provided that the registration of any such marriage as is referred to in subclause (b) may be declared to be of no effect if the registration was in contravention of sub-section (2) of Section 17.

(2) Every petition for relief under Chapter V or Chapter VI of the Special marriage Act 1954 as made applicable to the marriages referred to in sub-section (1) shall be presented to the District Court within the local limits of whose ordinary Civil Jurisdiction-

(a) the respondent is residing at the time of the presentation of the petition;

(b) the husband and wife last resided together; or

(c) the petitioner is residing at the time of the presentation of the petition; provided that the respondent is at that time residing outside India.

Explanation:- In this section 'District Court' has the same meaning as in the Special Marriage Act, 1954.

(3) Nothing contained in this section shall authorise any Court-

(a) to make any decree of dissolution of marriage, except where-

(i) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or

(ii) the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition;

(b) to make any decree annulling a voidable marriage, except where-

(i) the parties to the marriage are domiciled in India at the time of the presentation of petition; or

(ii) the marriage was solemnized under this Act and the petitioner, being the wife, has been ordinarily resident in India for a period of three years immediately preceding the presentation of the petition;

(c) to make any decree of nullity of marriage in respect of avoid marriage, except where

(i) either of the parties to the marriage is domiciled in India at the time of the presentation of the petition, or

(ii) the marriage was solemnised under this Act and the petitioner is residing in India at the time of the presentation of the Petition;

(d) to grant any other relief under Chapter V or Chapter VI of the Special Marriage Act, 1954, except where the petitioner is residing in India at the time of the presentation of the petition.

(4) Nothing contained in sub-section (1) shall authorise any Court to grant any relief under this Act in relation to any marriage in foreign country not solemnized under it, if the grant of relief in respect of such marriage (whether on any of the grounds specified in the Special Marriage Act, 1954, or otherwise) is provided for under any other law for the time being in force.'

7. The present petition is filed under S. 18 of the Foreign Marriage Act read with S. 27 of the Special Marriage Act seeking divorce. That petition was rejected as not maintainable only on the ground that the marriage was not registered under S. 17 of the Foreign Marriage Act. Of course if a marriage is registered under S. 17 of the Foreign Marriage Act, whether or not it is solemnized under the Act, in view of sub-sec. (6) of S. 17, the marriage so registered shall, as from the date of registration, be deemed to have been solemnized under the Act. In view of the deeming provision, the registration absolves the parties of proving that the marriage was in fact solemnized in accordance with the provisions of the Foreign Marriage Act. S. 18 of the Foreign Marriage Act undoubtedly applies to all marriages solemnized under that Act. As rightly observed by the learned Chief Judge, City Civil Court, a marriage solemnized under the Foreign Marriage Act has to be registered before a Marriage Officer in accordance with the procedure laid down by Ss. 5 to 14 and must ultimately result in the issuance of a certificate of marriage. However no marriage officer appears to have been appointed in Bahrain, Saudi Arabia, and it is not established that any of the steps envisaged by the above provisions were taken before the marriage was solemnized between the parties so as to treat it as a marriage solemnized under the Act, much less were any steps taken to get the said marriage registered under Sec. 17 of the Act so as to attract the deeming provision contained in sub-section (6) of S. 17. However, merely because the marriage was not solemnized in accordance with the procedure laid down under Sections 5 to 14 of the Foreign Marriage Act, the matrimonial reliefs claimed by the appellant herein, who is an Indian citizen, cannot be denied to her under the Special Marriage Act, 1954.

8. In view of the averments in petition, which have remained uncontroverted, there can be little doubt that she is an Indian citizen. The Marriage Certificate, Ex. A-1 also shows that the appellant is an Indian citizen and Christian by faith and that her marriage with the respondent was solemnized at the office of the British Political Agent, Bahrain, in the District of the British Political Agency, at Bahrain according to the provisions of the Foreign Marriage Act, 1892. Though it is not a Foreign Marriage solemnized in accordance with the procedure laid down under Ss. 5 to 14 of the Foreign Marriage Act, 1969 (Act XXXIII of 1969) and registered under S. 17, it is marriage solemnized in a foreign country between parties of whom at least one (the appellant) is a citizen of India. It is not shown that the conditions relating to the solemnization of foreign marriages are contravened. Sec. 27 of the Foreign Marriage Act declares that 'nothing in this Act shall in any way affect the validity of a marriage solemnized in a foreign country otherwise than under this Act.' The marriage of the appellant with the respondent was solemnized in the British Political Agency, Bahrain under the Foreign Marriage Act, 1892 and it was so certified by the British Political Agency, Bahrain. There can, therefore, be no doubt that the marriage between the parties was a valid marriage. It is also established that the appellant being an Indian citizen was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition for divorce, out of which this appeal arises, and is still residing in India.

9. Section 18 of the Foreign Marriage Act makes provision for granting matrimonial reliefs under the Special Marriage Act, 1954 not only in relation to marriages solemnized under the Foreign marriage Act but also in relation to any marriage solemnized in a foreign country between parties of whom one at least is a citizen of India. The provisions of the Special marriage Act, 1954, apply in relation to marriages solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under the Foreign Marriage Act, 1969. The learned Chief Judge has overlooked this aspect and proceeded to hold that the petition is not maintainable merely because the marriage in question was not solemnized in accordance with the provisions of the Foreign Marriage Act. The appellant being an Indian citizen is as much entitled to maintain a petition under the Special marriage Act as any party to a marriage which was solemnized under the Foreign Marriage Act, 1969.

10. We, therefore, set aside the order of the learned chief Judge, City Civil Court, Hyderabad and found that the petition for divorce made under S. 27 of the Special marriage Act read with Sec. 18 of the Foreign Marriage Act is maintainable. The evidence on record establishes that the respondent has deserted the appellant without justifiable cause for a period of over three years immediately preceding the presentation of the petition for divorce which constitutes a valid ground for the appellant to seek divorce. The appellant is, therefore, entitled to a decree for divorce as prayed for.

11. In the result, this appeal succeeds and is accordingly allowed. As the respondent has not chosen to appear and contest at any stage, there will be no order as to costs.

12. Appeal allowed.


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