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Kanku D/O Dhulabhai Dahyabhai Vs. Khristi Shanabhai Fulabhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR511
AppellantKanku D/O Dhulabhai Dahyabhai
RespondentKhristi Shanabhai Fulabhai
Cases Referred and (Adelide Christiana) Lish v. (David) Lish and Ors. A.I.R.
Excerpt:
- - now, it is well known that in order that the principle of estoppel may apply, it is necessary that there should be a representation by a party and that another party must act on the faith of that representation. in view of this, the finding was perfectly justified and, in view of that finding, it is not necessary for us to consider that question which otherwise it would have been necessary for us to do as to whether any such custom can override the clear statutory provision embodied in section 4 of the indian christian marriage act, 1872. 2. the main question which mr. the act mentions conditions which must be satisfied before any of the decrees or orders of the aforesaid kind can be made by the court. 6. section 2 of the act prescribes general conditions which require to be.....n.m. miabhoy, j.1. a decree has been passed by the learned district judge, kaira at nadiad, in divorce suit no. 1 of 1961 on 1st september 1961, by which the learned judge has declared the marriage between the petitioner kanku and the respondent shanabhai null and void, subject to the declaration being confirmed by this court under section 20 of the divorce act, 1869 (hereafter called 'the act'). the learned district judge by his letter, dated 1st march 1962, has sent the proceedings in the suit to this court for confirmation. the petition, which was numbered in the district court as suit no. 1 of 19 1, was made by the petitioner under section 18 of the act. it is common ground that the petitioner and the respondent were married about 14 years ago under hindu marriage rites. the.....
Judgment:

N.M. Miabhoy, J.

1. A decree has been passed by the learned District Judge, Kaira at Nadiad, in Divorce Suit No. 1 of 1961 on 1st September 1961, by which the learned Judge has declared the marriage between the petitioner Kanku and the respondent Shanabhai null and void, subject to the declaration being confirmed by this Court under Section 20 of the Divorce Act, 1869 (hereafter called 'the Act'). The learned District Judge by his letter, dated 1st March 1962, has sent the proceedings in the suit to this Court for confirmation. The petition, which was numbered in the District Court as Suit No. 1 of 19 1, was made by the petitioner under Section 18 of the Act. It is common ground that the petitioner and the respondent were married about 14 years ago under Hindu marriage rites. The petitioner first filed Suit No. 4 of 1960 in the Court of the learned Civil Judge (Senior Division), Nadiad, under the Hindu Marriage Act, 19SS, for dissolution of that marriage on the ground that the husband had changed his religion and had become a Christian since the celebration of the marriage. The respondent defended that action on the ground that the petitioner and the respondent were Christians by birth and that, therefore, that Court had no jurisdiction to deal with the suit under the Hindu Marriage Act, 1955. The petitioner had alleged in that suit that she was a Hindu; that she was married with the respondent according to the Hindu rites and that, therefore, she had a right to file a petition for divorce under the Hindu Marriage Act, 1955. The learned Civil Judge raised a suitable issue on this controversy and came to the conclusion that both the petitioner and the respondent were Christians by birth and that, therefore, he had no jurisdiction to deal with the suit for divorce under the Hindu Marriage Act, 1955. On this ground, the learned Civil Judge dismissed the suit of the petitioner. Therefore, the petitioner filed the suit from which the present confirmation proceedings arise. In this suit, the petitioner prayed that the above marriage might be declared null and void. The ground on which the prayer was based was that both the petitioner and the respondent were Christians at the time of the marriage and as, admittedly, their marriage was celebrated according to the Hindu rites, the marriage was not performed in accordance with Section 5 of the Indian Christian Marriage Act, 1872, and that, therefore, it was void under Section 4 of the same Act. The petitioner did not admit either in the petition or in her evidence that she was a Christian at the date of the marriage. She still maintained that she was a Hindu by religion; that her parents were Hindus and that she was born a Hindu. But, she contended that, though such was the fact, the respondent was estopped by virtue of the successful contention which the respondent had urged in the previous Suit No. 4 of 1960 in the Court of the learned Civil Judge (Senior Division), Nadiad, from contending that she was a Hindu. It is obvious that the plea of the petitioner that she was a Christian was not based upon a fact, but upon the alleged principle of estoppel. The learned Judge appears to have thought such a plea, if proved, would permit him to hold the petitioner a Christian, whatever may be the true position in fact, and that, that would enable him to decide the controversy between the parties about the nullity of the marriage. Therefore, the learned Judge framed the first part of the first issue as follows: 'Whether the respondent is now estopped from contending that the petitioner was not a Christian by birth?'. The respondent denied that the principle of estoppel applied to the facts of the present case. Just before the trial, the petitioner filed a Purshis in which she clarified that she was Hindu by birth, that she was a Hindu at the time when she was married to the respondent but that she was baptized about two or three years after the marriage and became a Christian at that point of time. In the evidence, no reference was made to the petitioner being born a Hindu and being baptized at a later stage. On the contrary, she stated that her parents were Christians. In the cross-examination, she said that her deposition in the previous suit that her parents were Hindus and that she was a Hindu at the time of the marriage was a mistake. However, her father Dhulabhai gave conflicting testimony. According to him, though he had become a Christian, he had never been baptized. He deposed that he was a Hindu, but that he became a Christian because he was told that his son Ranchhod would be admitted in a Christian School if he became one. He said that, though he was re-named by a Christian priest, he was not actually baptized because he had two wives, none of whom became a Christian. There is no reference in the evidence of the respondent about the religion of the petitioner either at the time of her birth or at the time of the marriage. The learned Judge has answered the issue of estoppel in favour of the petitioner and passed a decree on the basis that both the parties were Christians as the time when the marriage was celebrated about 14 years ago. We find it difficult to agree with the learned District Judge that the principle of estoppel applies, much less that a decree for nullity can be passed on the basis of any such principle. In the first instance, it is noteworthy that the finding about the religion of the petitioner is not sought to be obtained on the ground of the principle of res judicata. The petitioner does not urge that the finding recorded by the learned Civil Judge (Senior Division) in the previous litigation was concluded by any such principle. Therefore, it is not necessary for us to examine the position whether such principle applies and what its effect will be in the present litigation. Now, it is well known that in order that the principle of estoppel may apply, it is necessary that there should be a representation by a party and that another party must act on the faith of that representation. Having regard to the facts of the case, there is no doubt that no such representation was made to the petitioner by the respondent, nor did the petitioner act upon any such representation. There is no allegation that, before the previous suit was filed, any such representation was made by the respondent. In any case, there is no doubt that the petitioner never acted upon any such representation. On the contrary, she opposed that representation and invited a decision of the Court on the subject. The finding was not merely recorded on any representation made by the respondent, but was recorded on the evidence which was led by both parties. Even if the principle of estoppel had applied in this case, we would have found considerable difficulty in confirming the decree for nullity on the basis of any such principle. A decree of nullity has the force of a judgment in rem. When the Court is acting under the Act, it exercises matrimonial jurisdiction. Therefore, any decree passed by the Court would affect not only the rights and obligations of the parties to the petition, but also the rights and obligations of the whole world. In a litigation of this type, the Court should act on the basis of what it discovers to be the truth and not on the basis of the fact that one party was prevented from urging an important allegation against the other. But, these considerations cannot be an impediment in the way of the consideration of the present case on its own merits, because, it is quite clear from Section 4 of the Indian Christian Marriage Act, 1872, that, in order that a marriage under that section may be void, it is not necessary that both the parties should be Christians. If one of the parties happens to be a Christian, the section would apply. Therefore, if the respondent was a Christian at the time of the celebration of the marriage, whatever may be religion which the petitioner followed at that time, the marriage would be void. But, Mr. Shah contended that though there was no clear averment in the written statement of the respondent that he was not a Christian at the time of the marriage, there was no clear admission also on his part that he was a Christian at the relevant time. Mr. Shah contended that this omission in the written statement cannot be construed as any admission on the part of the respondent because there was no clear averment in the petition itself to the effect that the respondent was a Christian at the time of the marriage. He contended that, if there was any such averment in the petition, the omission could have been construed as such an admission. He invited our attention to the language in which some of the paragraphs in the written statement were couched and he contended that those paragraphs read as if the averment of the respondent was that he was a Christian 'now' and not necessarily at the time of the celebration of the marriage. We have read the evidence given by the respondent. There also he has used the present tense and said that 'he is a Christian'. Thus, in our opinion, there is also no clear evidence in the case to show that, at the time when the marriage was celebrated, the respondent was a Christian. In order that the marriage may be void under Section 4 of the Indian Christian Marriage Act, 1872, it is necessary that at least one of the parties must be a Christian. Having regard to the fact that there is no proper pleading and proper evidence on the subject, if we have to decide this case, we will have to frame a suitable issue on the subject and send it for recording of evidence on the same. Therefore, if we have to decide the reference at all, we propose to frame the following issue and refer it to the learned District Judge to record additional evidence on the subject and send back the record with his finding thereon. But, for the reason, presently to be mentioned, we cannot do so unless we decide a question of far-reaching importance, raised by Mr. Shah and which does not appear to have been raised in the trial Court. Before we undertake an examination of that question, we may mention that the finding recorded by the learned Judge on one of the defences urged by the respondent is unassailable and Mr. Shah did not challenge that particular finding. The defence of the respondent was that there was a custom in the community to which the parties belong, which enjoined that the marriages should be celebrated according to the Hindu rites, to whatever religion the parties belong. The burden of proving the existence of any such custom was on the respondent. The learned Judge has found that such a custom was not proved. There is no doubt whatsoever that there is no evidence, worth the name, on this particular subject. In view of this, the finding was perfectly justified and, in view of that finding, it is not necessary for us to consider that question which otherwise it would have been necessary for us to do as to whether any such custom can override the clear statutory provision embodied in Section 4 of the Indian Christian Marriage Act, 1872.

2. The main question which Mr. Shah raised was one about the jurisdiction of the District Court to grant under the Act the relief for nullity of marriage on a ground which was mentioned in another statute. Mr. Shah contended that a petition under the Indian Divorce Act for nullity of marriage was not maintainable on the ground that the marriage was not solemnized in accordance with Section 4 of the Indian Christian Marriage Act, 1872. He contended that the proper forum for decision on this subject was the Court of ordinary civil jurisdiction and not the special Court established under the Act. Normally, having regard to our finding that a new issue requires to be framed and additional evidence requires to be taken, we would not have undertaken an examination of this intricate and difficult question unless a finding was received on the subject and unless it was established that one of the parties was Christian at the time when the marriage was celebrated, because it is quite clear that, if an adverse finding is recorded on this point, the marriage would not be a nullity and the petition would be dismissed on that ground. But, we are in the course of confirmation proceedings. The jurisdiction to confirm the decree arises under Section 20 of the Act. We would have that jurisdiction only if the learned District Judge was competent to entertain the suit under the Act. If the suit is not under that Act, then, we have no jurisdiction to confirm the decree under Section 20 of the Act; nor do we have any power to direct the learned District Judge to take additional evidence and to record and certify a fresh finding. Under the circumstance, the jurisdiction of this Court to do so depends upon a resolution of the above controversy as to whether the learned District Judge was or was not competent to entertain the petition for nullity of marriage under the Act. We have already indicated the contentions raised by Mr. Shah on this point. Mr. Rebello, who appeared on behalf of the petitioner, on the other hand, opposed those contentions and urged that the present petition was one under the Act and the Court was competent to grant the relief for nullity of the marriage on the ground that it was void under Section 4 of the Indian Christian Marriage Act, 1872.

3. The question which has got to be decided is whether the District Court has jurisdiction to entertain a petition and grant a decree for a declaration of nullity of marriage on the ground that the marriage is void under section 4 of the Indian Christian Marriage Act, 1872. The Act contains a number of sections dealing with the question of the jurisdiction. These sections are in Chapter II of the Act and run from Sections 4 to 9. The important sections which require to be construed and on the basis of which the question of jurisdiction may have to be decided are Sections 4 and 7. Section 4 deals with the matrimonial jurisdiction of High Courts and District Courts. Section 7 enacts the principles on the basis of which that jurisdiction has to be exercised.

4. Before we examine the contents of the above two sections, it may be useful to mention generally some of the main provisions and features of the Act. The preamble says that the Act is enacted (i) to amend the law relating to divorce among Christians and (ii) to confer upon certain Courts jurisdiction in matters matrimonial. The Courts which are given jurisdiction under the Act are the High Courts and the District Courts (hereinafter referred to as the Court simpliciter). The decrees which can be passed under the Act are (i) decrees for dissolution of marriage, (ii) decrees declaring marriages null and void, (iii) decrees for judicial separation, and (iv) decrees for restitution of conjugal rights. Power has been given to the Court also to make orders (1) for alimony, permanent or pendentelite, (2) for settlement, (3) for custody of children, (4) and, generally, for protection of the interest of husband or wife. The Act mentions conditions which must be satisfied before any of the decrees or orders of the aforesaid kind can be made by the Court. Besides the above matters, which may be described as matters matrimonial, the Act also deals with matters of procedure, Different procedures have been prescribed for different kinds of decrees and for different matters brought in the High Court and the District Court. The Act requires decrees of dissolution and decrees of nullity of marriage passed by the District Court to be confirmed by the High Court. Thus the High Court exercises both original and confirmatory jurisdiction, whereas the District Court has only original jurisdiction. Section 45 provides that, subject to the provisions of the Act, all proceedings under the Act shall be regulated by the Code of Civil Procedure.

5. From the above resume, it is clear that the Act has been conceived and enacted as a comprehensive measure and provides for both substantive and adjectival subjects bearing on matters matrimonial. The name of the Act 'The Indian Divorce Act, 1869' does not furnish a true clue to the scope and ambit of the Act. The Act deals with not only the law of divorce, but, it also deals with a number of matters relating to the law of marriage.

6. Section 2 of the Act prescribes general conditions which require to be satisfied in order to enable the Court to exercise jurisdiction in matters matrimonial and to entertain petition for the various kinds of decrees and orders provided for by the Act. That section makes a distinction between three kinds of decrees (i) decrees for dissolution of marriage; (ii) decrees for nullity of marriage; and (iii) other decrees. The second paragraph of Section 2 prescribes that either the petitioner or the respondent must be a Christian in all petitions under the Act. In the case of decree of dissolution for marriage, that section enacts that, before the Court can exercise jurisdiction, it is necessary that parties to the marriage must be domiciled in India at the time when the petition is presented. In the case of decree of nullity of marriage, the section prescribes as a condition precedent to the exercise of jurisdiction that the marriage must have been solemnized in India and that the petitioner must be a resident in India at the time when the petition is filed. The last paragraph of Section 2 of the Act prescribes that in cases of decrees other than the decrees of dissolution of marriage or of nullity of marriage, the petitioner must be a resident of India at the time of filing the petition. Therefore, Section 2 is an important section which prescribes the condition precedent to be satisfied before the Court can undertake the performance of the duties cast upon it by the Act.

7. Then come Sections 4 to 9 which, as already stated, deal with the subject of jurisdiction of the Court on which matrimonial jurisdiction is conferred by the Act. Sections 5 and 6 are temporary in scope. Section 5 deals with the subject of the enforcement of decrees already passed by the Supreme Court or the High Courts. Section 6 deals with procedure to be followed in respect of suits pending in the High Court on the date of the commencement of the Act. Section 8 deals with the extraordinary jurisdiction of the High Court in respect of matters instituted in the District Court. Section 9 constitutes the High Court a Court of reference in respect of matters pending in the District Court. The important sections, however, are Sections 4 and 7 and the question about the jurisdiction, raised in the present case must of necessity be decided primarily with reference to the provisions contained in these two sections. Both the sections deserve to be quoted in full. Section 4 reads as follows:

The jurisdiction now exercised by the High Courts in respect of divorce a mensa el thoro, 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.

Section 7 reads as follows:

Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.

8. Then there is a proviso which need not be quoted as it is not relevant to the subject in hand.

9. As the question which is raised before us relates to the jurisdiction of the District Court, it will be useful if we bear in mind, whilst construing the aforesaid two sections, that what has got to be ascertained is the jurisdiction of the District Court to grant a decree for nullity of marriage on a ground described by the Indian Christian Marriage Act, 1872.

10. Analysing Section 4, it is crystal clear that the jurisdiction which is conferred on die District Court is the same as the jurisdiction which is sought to be retained for the High Court. The section assumes that the High Court already exercised certain jurisdiction in respect of matters matrimonial. The section does not make any such assumption in respect of the District Court. The section does not say in terms that the District Court had previously no jurisdiction in respect of these matters. We may say that our attention was not drawn to anything which would establish the existence of any such jurisdiction in the District Court prior to the enactment of the Act. However, whatever was the jurisdiction of the District Court prior to the passing of the Act, there is no doubt whatsoever that that jurisdiction was not retained by the Act. After the Act, the District Court can possess oaly such jurisdiction which the High Court possessed before the Act was passed. But the jurisdiction of both the High Court and the District Court is limited by a qualification. The section says in express terms that the jurisdiction must be exercised 'subject to the provisions contained in this Act and not otherwise.' Therefore, the intention of the Legislature is quite clear (i) that the High Court and me District Court are to exercise the same jurisdiction which was formerly exercised by the High Court; and (ii) that the jurisdiction is to be so exercised in accordancs with the provisions contained in the Act and not in any other manner. Taerefore, the extent of the jurisdic tion of the District Court will depend upon the extent of the jurisdiction possessed by the High Court at the date when the Act was passed. Now the matters in respset of which the jurisdiction of the High Court is retained are expressed in the section in the widest possible terms. The matters mentioned are not only divorce a mensa et thoro, but 'all other causes, suits and matters matrimonial'. A proceeding for nullity of marriage will undoubtedly be included in the above wide expression. Such a pro ceeding will be either a matrimonial cause or a matter matrimonial. Under the circumstances, in our judgment, and on the interpretation of Section 4 of the Act, there cannot be any doubt that the District Court, after the passing of the Act, will have the same jurisdiction in a cause or matter relating to nullity of marriage which the High Court possessed at the date when the Act was passed.

11. That, at once, raises the question as to what jurisdiction the High Court itself possessed in respect of nullity of marriage at the date when the Act was passed. The question for consideration is whether the High Court had jurisdiction to pass a decree for nullity of marriage on the ground that the marriage in question was void under Section 4 of the Indian Christian Marriage Act, 1872. Ex hypothesi, the High Court could not have had any such jurisdiction before the Act was passed because the Indian Christian Marriage Act, 1872, was not on the statue book on the date on which the Act was passed. Therefore, unless one is able to hold that the former jurisdiction of the High Court in respect of matters relating to nullity of marriage was wide enough to include a power to grant a decree of nullity of marriage on a statutory ground then existing or created thereafter, one cannot say that the District Court has acquired jurisdiction under the Act to entertain a petition for nullity of marriage on the ground that the marriage in question was a nullity under a statute law. Moreover, even if the High Court did possess such jurisdiction, the question will have also to be further examined as to whether any change on that subject is made by the Act because Section 4, as already staged, enacts in express terms that the jurisdiction of the Court has to be exercised 'subject to the provisions contained in the Act and not otherwise.

12. Before 1857, in England, the Ecclesiastical Courts and certain high dignitaries of the Church used to exercise exclusive jurisdiction in respect of divorce a mensa et thorn, suits for nullity of marriage, suits for restitution of conjugal rights and for jactitation of marriage (vide Rayden on Divorce, 6th Edition. 'Historical Introduction'). By the Matrimonial Causes Act, 1857, the jurisdiction then exercised by the Ecclesiastical Court in England in respect of matrimonial matters and in respect of all causes, suits and matters matrimonial was taken away from that Court and was conferred upon a new Court of Record, called 'The Court for Divorce and Matrimonial Causes' and, in 1873, this new Court became a part of the High Court of England which was established by the Judicature Act, 1873. Before 1861, the Supreme Court at Bombay exercised the same Ecclesiastical jurisdiction which the Ecclesiastical Courts exercised in England in respect of causes and matters matrimonial. It is riot necessary for us to discuss for the purposes of the present suit the extent of the Ecclesi astical jurisdiction of the Supreme Court at Bombay. The High Court of Bombay was established by an Act of Parliament passed in 1861. That Court inherited the jurisdiction of the Supreme Court of Bombay.

13. The 9th section of the Act of Parliament for establishing High Courts of Judicature in India, (24 and 25 Vic. Ch. 104)-provided that the High Courts shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters Patent shall grant and direct. Under the authority thus conferred by Parliament, the 35th section of the Letters Patent, provided as follows:

And we do further ordain that the said High Court of Judicature at Bombay shall have Jurisdiction in matters Matriomonial between our subjects professing the Christian religion, and that such Jurisdiction shall extend to the local limits within which the Supreme Court cow has Ecclesiastieal Jurisdiction. Provided always that nothing herein contained shall be held to interfere with the exercise of any Jurisdiction in matters matrimonial by any Court not established by Royal Charter within the said Presidency lawfully possessed thereof.

From the aforesaid clause, it is quite clear that the High Court of Bombay was conferred jurisdiction, in matters matrimonial, over Her Majesty's subjects professing the Christian religion. The words 'matters matrimonial' have not been defined in the Act. However, in our judgment, these words are wide enough to include the matters dealt with by the Indian Divorce Act. As already held, a petition for declaring a marriage null and void is in respect of a matrimonial matter and a decree granting such a relief pertains to the jurisdiction of a matter matrimonial. That such petitions and decrees are included in the comprehensive expression 'matters matrimonial' is quite clear also from the provisions of the Act which we have summarized above, which includes petitions and decrees for nullity of marriage. Under the circumstances, in our judgment, whatever may have been the law governing the marriage of Christians before the Letters Patent were granted to the High Court of Bombay and whatever limitations may have been placed on the matrimonial jurisdiction of the Supreme Court, the jurisdiction of the High Court of Bombay over persons professing the Christian faith in regard to matrimonial matters, after the grant of the Letters Patent, was of a wide amplitude and that it was not circumscribed in the manner the jurisdiction of the English Courts was circumscribed by the Matrimonial Causes Act, 1857. If we read Section 4 of the Act in conjunction with Clause 35 of the Letters Patent, prima facie, it would appear that the jurisdiction of the High Court, Bombay, at the time when the Act was passed in relation tomatrimonial matters included the power to entertain a petition and to grant a decree for nullity of marriage. Clause 35 did not de-limit that power by any words of limitation, nor did it limit the jurisdiction to pass decrees only on grounds then obtaining, nor did it exclude the jurisdiction to pass decrees on new grounds created by any statute then existing or to be passed in future. The clause does not make any specific reference to the grounds on which decrees relating to matrimonial matters were to be passed. But it may be safely assumed that the jurisdiction in respect of these matters would be exercised in the same way at least as it was exercised by the Ecclesiastical Courts and English Courts. Under the circumstances, in our judgment, the jurisdiction which the High Court possessed when the Act was passed, included a jurisdiction to entertain a petition for and to pass a decree for nullity of marriage and that jurisdiction was preserved in tact subject to the provisions of the Act, by Section 4 of the Act. Therefore, in deciding the question of jurisdiction, the following points require to be borne in mind: (i) That the Supreme Court of Judicature at Bombay had exercised Ecclesiastical jurisdiction; (ii) that that jurisdiction was inherited by the High Court of Bombay when it was established by the Act of 1861; (iii) that the High Court was given a jurisdiction over matrimonial matters by Clause 35 of the Letters Patent; and (iv) that jurisdiction was not restricted by any limitations as to the grounds on which the decrees for nullity of marriage were to be passed.

14. Now, in so far as the High Court inherited the Ecclesiastical jurisdiction of the Supreme Court of Judicature, the High Court did not possess jurisdiction to grant a decree for nullity of marriage on any statutory provision. The Ecclesiastical Court in England did not possess any such power. The Matrimonial Causes Act of 1857 also did not in express terms confer any such power. That Act only conferred the same jurisdiction on the Court of Record named the Court for Divorce and Matrimonial Causes which was then exercisable by the Ecclesiastical Court. However, as already mentioned, Clause 35 of the Letters Patent is couched In wide terms and would prima facie include power to entertain all matters matrimonial including suits for nullity of marriage.

15. The next question for consideration is whether the Act itself confers any express jurisdiction upon the Court to pass decrees for nullity of marriage on a statutory ground. It is necessary to examine this question because as alreadymentioned, Section 4 expressly enacts that the Court has to exercise jurisdiction subject to the provisions of the Act. The relevant sections are Sections 18 and 19 of the Act which read as follows:

Section 18:

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.

Seetion 19:

Such decree may be made on any of 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.

Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud'.

16. None of these two sections contains a specific provision conferring jurisdiction upon the Court to grant a decree for nullity on the ground that the marriage is void under some statutory provision. Thus the Act itself does not expressly confer jurisdiction on the Court to pass a decree for nullity of marriage on the ground of a statutory provision. We will have, later on, to revert to the above two sections with a view to consider whether even if the High Court had previously jurisdiction to pass a decree for nullity on a statutory ground, the provisions of Sections 18 and 19 prohibit or not the exercise of any such jurisdiction. That, however, is entirely a different aspect and we propose to consider the 'same after we have examined Section 7 of the Act.

17. Section 7 enacts that the Court 'shall act and give relief on principles and rules which,... as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.' However, these principles and rules are to be applied subject to the provisions contained in this Act.' Section 7 has come up for judicial interpretation more than once in the High Court of Bombay. Divergent views have been expressed by several learned Judges regarding the wisdom of this provision. In Alfred Wilkinson v. Grace Emily Norah Wilkinson and Anr. AIR. 1923 Bombay 321 at page 338 Marten J. after construing Section 7 made the following observation:.the construction of the Act which I would adopt shows that the Indian Legislature dealt with a very difficult question in a most skilful manner, for by its flexibility it enables all Courts both in India and in England to act on the same principles, despite the passage of time and the change of circumstances.

On the other hand, Chagla, C.J. made the following adverse remarks on the section in Ramesh Ramanlal Saraiya v. Kusum Madgaokar 50 Bombay Law Reporter 426 at page 434.

It may seem surprising that it should be left to the Legislature of another country to mould and modify the law of this country. It was surprising enough when India was a Dependency in the Empire. It seems to be even more surprising to-day that such a provision should find place in the Divorce Act of this country when India has now become a full-fledged Dominion as sovereign as England herself.

18. In the same case, Tendolkar, J. also made similar observations regarding the wisdom of the same provision. However, Judges are not concerned with the merits or the demerits of the policy underlying Section7 of the Act. That is for the Legislature to consider and decide. They are only concerned with the task of the construction of Section 7. Fortunately, all the aforesaid three Learned Judges have agreed in the matter of the construction of Section 7. With respect, the construction put by them is in accordance with the plain language of the section. The section says in specific terms that, subject to the provisions contained in the Act, the Court shall act and give relief on the same principles and rules on which the English Courts act and give relief. All the Learned Judges, who have had occasion to construe the section, have agreed that the section has been enacted so that the Indian Law relating to matrimonial matters and administered by the Court should develop alongside the English law. There fore, it is quite clear that, when the Act is silent on a point of principle or rule relating to matrimonial law, it is the duty of the Court to ascertain what the principle or rule on the same subject in England is and the Court must apply that English principle and rule 'subject to the provisions contained in the Act.' The latter expression has also come up for construction in more than one Bombay case. The views taken by the learned Judges as regards the interpretation of that expression reveals a cleavage of opinion, although, in a large majority of cases, whether one view is accepted or the other the result will be the same. In.. Wilkinson v. Wilkinson aforesaid Marten J. said that Section 7 is the dominating section in the Act and that it obliges the Indian Courts to follow the principles of English Courts. However, Crump, J. said in the same case that the expression only makes the section residuary to be resorted to only when there was no express provision on a subject in the Act and has not the effect of making the provision as overriding the other-provisions of the Act. In Ramesh Saraiya v. Kusum Madgaokar, Chagla C.J. agreed with the view of Marten J. expressed in Wilkinson v. Wilkinson. At page 336, Marten J. observed as follows:.the Indian Legislature intended by this clause to ensure reasonable uniformity between the various High Courts of this country and the English Courts, and as far as praticable to avoid the scandal of parties being regarded as married persons in one Indian Province but not in another. I think it also intended to provide for the then uncertainty of the law on the subject, and for the possibility that the principles of the English Courts might be modified in course of time.

19. Chagla, C.J. expressed the same view by observing in Ramesh Saraiya v. Kusum Madgaokar that 'the object of enacting Section 7 was to make the Indian Divorce Act flexible and not static and that the intention was that, that law should develop alongside the English law.' Whatever view one takes as to the nature and the scope of the enactment as to whether it is dominating or residuary, the correct interpretation of the section appears to be that the English principles and rules have got to be applied to Indian cases subject to the provisions of the Act and the effect of the whole of the section appears to be that, unless the Court finds that its jurisdiction to grant a relief or to act in a certain manner is expressly negatived by any provision of the Act, the Indian Court must give effect to the principles and rules administered by the English Courts. Chagla, C.J. in Ramesh Saraiya v. Kusum Madgaokar at page 434 has expressed the conclusion in the following words:

In my opinion, Section 7 lays down this rule of law that the Court must consider every time it proceeds to act or give relief what is the relevant English law on the subject and unless it finds that the jurisdiction of the Court to grant the same relief or act in the same manner is expressly negatived by any provision of the Act, it must do so. There must be either a clear negativing of the jurisdiction of the Court or there must be express and unequivocal terms in which the Legislature must have prevented and prohibited the Courts here from acting in the manner in which the English Courts would act or give the same relief that the English Courts would give on the same facts and on the same materials.

In fact, in Ramesh Saraiya v. Kusum Madgaokar it was decided that, though in a case for dissolution of marriage, the Act did not confer in express terms the power to grant permanent alimony, the Court derived that power when an English statute conferred such a power upon the English Court. This result was arrived at by applying Section 7 to the fact of the case.

20. There is some difference of opinion between the different High Courts as to whether Section 7 refers to only substantive law or procedural law or both In Abbott v. Abbott and Crump, (1869) 4 Beng. L.R. (O.C.J), 54, the view was taken that Section 7 did not apply to points of procedure, but that it applied to the general principles and rules on which English Courts acted and gave relief. In Ramsay v. Boyle (1903) I.L.R. 30 Calcutta 489, this case was followed by Chief Justice Maclean. In A.v.B., I.L.R. 22 Bombay 612, a Division Bench of the Bombay High Court refused to apply the principles and rules regulating English procedure and expressed the opinion that the principles and rules in Section 7 were quasi substantive rather than mere adjectival law. However, there is perfect unanimity amongst all learned Judges that Section 7 applies the substantive English law relating to matrimonial matters to Indian conditions and, fortunately, in this case, we have not to consider the question whether procedural law is or is not included in Section 7.

21. The next question to which we have to address ourselves is to ascertain what the English law on the same subject is. The Matrimonial Courts, Act, 1857, did not contain any provision for grant of a decree for nullity of marriage on a statutory ground. The Act which was in force In England when the present suit was filed was the Matrimonial Causes Act of 1950, Section 8 of which is important. The relevant part of Section 8 is as follows.

Section 8, Sub-section (1):

In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the ground-.. .. ... ... ...

22. Thereafter, the section mentions four grounds on the basis of which a decree for nullity can be passed. Therefore, Section 8 provides in express terms that a decree for nullity can be passed in English on a ground mentioned in any statute. The question for consideration is whether this provision should or should not be applied by the Court in India.

23. Now, the expression 'principles and rules' used in Section 7 of the Act has not been restricted only to me principles and rules enunciated and applied by the Judges in England. There can be no doubt that expression includes the principles and rules enacted by the statute law. In Saraiya's case, the provision contained in English statute was applied and it was held that the Indian Court had jurisdiction to make an order for permanent alimony by virtue of the fact that such jurisdiction was conferred by the English statute on the English Court. Under the circumstances, in our judgment, Section 7 of the Act, read with Section 8 of the Matrimonial Causes Act, 1950, gives jurisdiction to the Indian Court to grant a decree for nullity of marriage on a statutory ground. This of course would be subject to there being anything contrary in the Act itself.

24. But before we examine the question whether there is anything to the contrary in the Act, we may refer to the expression to 'act and give relief 'used in Section 7 of the Act. The question for consideration is whether this expression excludes from its purview a new ground for divorce or nullity of marriage. The use of the two words 'to act and givev relief in juxtaposition with each other has led to an argument that the English principles and rules have got to be applied only in the matter of granting relief and similar other things and that those words exclude the addition of a new ground for granting a matrimonial relief. In other words, the argument is that a new ground which comes to be added in England either as a result of statutory provision or judicial decision cannot be made the basis by the Indian Court for giving matrimonial relief, if the ground is not included in the Act itself. Such an argument was considered in Ramesh Saratya, v. Kusum Madgaokar and was left open by both the learned Judges who constituted the Division Bench. Chagla, C.J. at page 439 says as follows:

A decree for dissolution is the relief which a Court grants on certain grounds. The grounds are mentioned in Section 10 of the Divorce Act. It may be-I am not deciding this question-that under Section 7 it would not be open to the Court to add to or change those grounds.

Tendolkar, J. whilst also leaving the question open however, chose to express, though tentatively, the view that a new ground for granting matrimonial relief cannot be added under Section 7. At page 441, the learned Judge made the following observations:

Mr. Taraporewala contends that if the principles and rules of English law had to be introduced for the purpose of granting relief, then grounds either for nullity of marriage or for divorce not recognised under the Indian Divorce Act would be introduced into the Indian law. I must resist the temptation of expressing an opinion on this somewhat fascinating question because it does not arise for decision before us. Prima facie, with the qualification that I feel inclined to place on the interpretation of Section 7, vizthat it cannot be utilised for the purpose of inventing a cause of action for a litigant, I would be inclined to think that such grounds could not be introduced into India. But if they have to be as a result of what I consider to be the correct interpretation of Section 7, that is a consequence which to my mind has got to be faced; and that cannot deter us from putting the correct construction on Section 7 of the Indian Divorce Act.

Therefore, the question has not been finally decided in Ramesh Saraiya v. Kusum Madgaokar The expression 'act' used in Section 7 should not be construed ejusdem generis, with the expression relief. That expression has a different connotation from the expression relief. That expression, in our judgment, should be construed in a wide sense inasmuch as the intention behind Section 7 appears to be to bring the Indian law relating to matrimonial matters concerning the Christians abreast the law developing in England. The expression 'act' in our judgment would include a power to grant relief on a cause of action. In Wilkinson v. Wilkinson Marten, J. made the following pertinent observations at page 336 of the report relating to the scope and ambit of Section 7 which would show that a new ground is not excluded from the jurisdiction of the Court.

It cannot be said that 'principles' referred to in Section 7 do not include such a vital principle as the foundation of jurisdiction itself.

25. Then there is a decision of the Madras High Court in Sumathi Ammal v. Paul reported in (1935) I.L.R. 59 Madras 518 in which an argument similar to the one which appealed to Tendolkar J. was nagatived. In that case, in dealing with the argument that a certain interpretation may import into Indian law a ground for divorce contrary to the provi sions of the Indian Divorce Act, the Learned Judge after pointing out the provisions contained in the Act were different from those which were dealt with as grounds for divorce in England and that as such those grounds would be contrary to the provisions of the Indian Divorce Act, made the following observations:

Had there not been a provision to the contrary, we could have followed even that important change.

26. In this connection, it is important to notice that if the Court gets jurisdiction to grant a relief for nullity of marriage, on the ground that it is void under Section 4 of the Indian Christian Marriage Act, the jurisdiction is derived by the Court not by virtue of any statutory ground recognised by the law of England, but the Court will be granting a decree on a ground created by the Indian statute itself. The only question would be whether the Court established by the Act will or will not have jurisdiction to grant that relief simply because there is no specific reference to that particular ground in the Act itself. Having regard to Section 8 of the Matrimonial Causes Act, 1950, already referred to, there is no doubt whatsoever that if similar legislation had been brought on the statute book in England, then the Matrimonial Court in England will have jurisdiction to grant the decree for nullity of marriage on the new statutory ground. In our judgment, having regard to the fact that the principle underlying Section 7 is to confer a wide jurisdiction on the Indian Court in matters matrimonial and specially having regard to the fact Section 7 is to be found under the heading 'jurisdiction', it would not be proper to interpret the word 'act' narrowly in such a way as to exclude jurisdiction of the Court to grant relief on a ground which comes to be enacted for the first time by law passed by the Indian Legislature after the Act was passed.

27. That brings us to an examination of the question as to whether there is anything in the provisions of the Act which would exclude the ground of the relief for nullity of marriage on the aforesaid statutory ground. We have already set out Sections 18 and 19 of the Act which appear to be relevant for this purpose. At a previous stage of the judgment, we have examined those sections from a different angle with a view to find out whether those sections contain any ground for the grant of the decree of nullity of marriage on a statutory ground. Now, we have to examine the sections from a different angle with a view to discover whether there is anything in those sections which negative the jurisdiction of the Court to grant a relief on a ground other than those mentioned in Section 19. Now, in this connection, the two sections must be read together. Section 18 only gives a right to a husband or a wife to present a petition for a decree for nullity of marriage. That section, unlike Section 10, does not embody in it the ground on which the petition is to be made. The right to make a petition for nullity of marriage is conferred in Section 18 in general terms. The right of the petitioner to make such a petition is not made dependent upon any ground. Therefore, Section 18 does not impose any restrictions on the right of a spouse to present a petition for nullity of marriage. Turning to Section 19, we find that the section deals with the power of the Court to pass a decree for nullity of marriage and it mentions certain specific grounds on which such a decree can be passed. However, it is important to notice that the section is couched in permissive language. The section does not in specific terms prohibit a decree to be passed on any ground other than those mentioned in the section. On the contrary, the second paragraph of that section implies that one ground not mentioned in that section can be a ground for grant of a decree of nullity of marriage by a High Court. As we have already pointed out that the correct interpretation of the expression 'subject to the provisions contained in this Act used in Section 7 is that there must be some specific and pos tive prohibition contained in the Act which prevents a Court form exercising jurisdiction or granting relief and unless there is some such express provision in the Act itself, the English principles and rules are to be applied. In our judgment, whatever view one may entertain regarding the provisions contained in Section 10 of the Act, with which we are not concerned, on a consideration of the provisions of Sections 18 and 19, we cannot come to the conclusion that they contain express provision to the effect that a decree of nullity cannot be granted by the special Court mentioned in the Act on a statutory ground enacted after the Act was passed. Moreover, even if we were to interpret the aforesaid expression as including not merely an express prohibition, but including an implied prohibition, we do not find anything in the language of Sections 18 and 19 which can enable us to read therein an implied prohibition to grant relief on a new statutory ground.

28. Mr. Shah, the Learned Counsel for the respondent, argued that whatever jurisdiction the High Court might have exercised on this subject previously, the present jurisdiction on the same subject of the High Court was circumscribed by the provisions of the Act and that, unless power was found within the four corners of the Act, to exeicise such jurisdiction, the High Court would not have any such power and consequently the District Court, a fortiori would not have any similar power. This argument was based upon the expression 'subject to provisions contained in this Act and not otherwise' used in Section 4 of the Act. Emphasis was laid on the prohibitory nature of the language and especially upon the difference between the language used in Section 4 and that used in Section 7. Whereas Section 7 says that the English principles and rules are to be applied 'subject to the provisions contained in the Act', Section 4 in addition states that jurisdiction is not to bd exercised otherwise than in the manner contained in the Act. We are in agreement with the subsmission of Mr. Shah that the jurisdiction conferred upon the Court in Section 4 has got to be exercised subject to the provisions of the Act and not in any other manner and that the true meaning of this expression is that the jurisdiction is to be exercised only in accordance with the provisions contained in the Act and not in any other manner. But, we are not in agreement with his further submission that there is no provison, other than Section 4, in the Act which deals with the way in which the jurisdiction is to be exercised. Moreover, in our judgment, Section 7 is as much a provision contained in the Act as any other provision. If the true meaning of Section 7 is that the English priniciples and rules are to be applied by Indian Courts, then, that section is direcctly brought into play by virtue of the aforesaid expression contained in Section 4 itself. As Section 7 is a part of the Act itself, if, as a result of the construction thereof, it is held that the Indian Court has got to apply the English rules and principles, then, the Indian Court will be exercising jurisdiction in accordance with the provisions of the Act and not otherwise if it applies English rules and principles.

29. We may now examine the cases which were cited at the bar. Some cases cited at the bar deal with the subject in hand. The cases reveal a conflict of views. In the case of E.L. Gasper v. W. Gonsalves (1874) 13 Beng. L.R. 109 the view was taken that the Court has no jurisdiction to grant a decree for nullity of marriage on a ground other than that mentioned in Section 19. Unfortunately, the report of this case is not available in the local library and, therefore, we do not know the reasons which appealed to the learned Judges who decided the case to take this view. This decision has been relied upon in some of the subsequent decisions in which the same view has been taken.

30.The next case in which exactly the same question arose for decision is the case of Mt. Titlt v. Alfred Robert Jones, reported in : AIR1934All273 . The case was decided by a Division Bench consisting of Sulaiman C.J. and Mukerji J. The decision was that the Court has no jurisdiction to grant decree for nullity of marriage on the ground that the marriage was void under Section 4 of the Indian Christian Marriage Act and that the petition for such a relief should be filed in the ordinary Civil Court. The principal judgment was delivered by Mukerji J. The reasons for the above view are to be found in the judgment of Mukerji J. at page 275. The judgment proceeds on the basis that the matrimonial jurisdiction of the High Court is to be exercised in accordance with the provisions of the Divorce Act of 1869 and in accordance with that Act alone. As already pointed out, we are in agreement with this view. Having said so, the learned Judge proceeds to discuss the matter as follows:

This Act does not empower the High Court to declare a marriage null and void on the ground that the ceremonies necessary for a marriage enjoined by the Church have not been performed. The reason is simple and is this. Section 4 of the Divorce Act does not allow the High Court to exercise its matrimonial jurisdiction otherwise than under the rules laid down in the Act. The Act nowhere confers on the High Court a jurisdiction to hear a case for a declaration that a certain marriage is void because of non-observance of the essential rites of the Church. A suit based on the ground of non-observance of essential ceremonies must, therefore, be instituted in an ordinary Court of original civil jurisdiction, namely, in the Court of a Munsif or a Subordinate Judge, according to the pecuniary and territorial jurisdiction of such Court.

31. With great respect, we cannot agree with the above reasoning. Whilst we agree with the view that the matrimonial jurisdiction must be exercised in accordance with the provisions of the Act, we cannot agree with the observation that there is nothing in the Act which confers such a jurisdiction to entertain a petition on the above ground. With respect, the learned Judge has not noticed the provisions of Section 7 at all. There is no reference to that section in his judgment. Therefore, we cannot agree with the reasoning given by Mukerji J. for reaching the conclusion he did. However, Sulaiman C.J. does refer to Section 7, but he disposes off the question in the following way:

Section 7 of the Act did not confer any additional jurisdiction, but merely provided what principles and rules were to be followed, when a suit was properly entertained, x x x x x x The grounds on which a suit can be entertained under the Divorce Act are indicated in Section 19. The principles and the rules which are to be followed may, under Section 7, be as nearly as may be conformable to the principles and rules on which the Courts in England act.

32. Perhaps, in 1934, when the case was decided, there was no provision in the English law conferring jurisdiction to grant a decree for nullity of marriage on a statutory ground and, therefore, the matter was not discussed in that light. However, we are not In agreement with the observation of the learned Judge that Section 7 does not confer any additional jurisdiction. In our judgment, in so far as Section 7 enacts that action is to be taken on English principles and rules by the Indian Court and not merely in the matter of granting of relief, that section lays down that the Indian Court shall exercise the same jurisdiction which the English Courts enjoy at the time when the question arises. We have already given our reasons for reaching this conclusion which conclusion is supported by the observation made by Marten, J. in Wilkinson v. Wilkinson already quoted. In our judgment, there cannot be any doubt that, even on a point of jurisdiction, the English rules and practice must apply by virtue of the provisions contained in Section 7.

33. In Lish v. Lish and Ors. A.I.R. 1923 Patna 301 Bucknill J. held that the jurisdiction of the High Court in matters matrimonial was only such jurisdiction as was comprised within the provisions of the Indian Divorce Act. In that case, a wife asked for a declaration that her marriage with one Charles Lish was valid and lawful. The learned Judge first examined the submission of the counsel that the matrimonial jurisdiction which was conferred by Clause 27 of the Letters Patent constituting the High Court of Judicature at Patna conferred an unrestricted jurisdiction in all matters matrimonial in the High Court including jurisdiction to grant a declaration of the aforesaid kind. Though the learned Judge did not reach a definite conclusion on this submission, he examined the legal position on the assumption that such was the law, but he concluded that whatever might have been the legal position before the enactment of the Indian Divorce Act, the position was altered by that enactment. This is what the learned Judge observed:

The Learned Counsel urged that at that date it was probable that there existed in that High Court an unrestricted matrimonial jurisdiction and that at that date a suit such as the present one brought in this Court could have been there entertained. However that may be the Indian Divorce Act (IV of 1869), clearly altered the position as to jurisdiction so far as High Courts established prior to the date of the enactment are concerned. This Act, which came into operation on the 1st of April 1869, declared in its Preamble that it was expedient to amend the law relating to the divorce of persons professing the Christian religion and to confer upon certain Courts jurisdiction in matters matrimonial and it proceeds later to define the nature of those matters which are to be regarded as matrimonial and in respect of which Courts are to have jurisdiction.' Then the learned Judge quotes Section 4 of the Act and proceeds: 'It is not contended here (indeed it is a matter of common ground) that there is anything in the Indian Divorce Act which definitely contemplates that a suit asking for a declaration of validity of a marriage conies within its purview.

34. The learned Judge then refers to Section 7 of the Act and mikes the following observations:

This section, however, to my mind, merely indicates the pincioies upon which the Courts shall generally act and in no way enlarges the scope of the jurisdiction as defined in those sections of the Act where jurisdiction is expressly categorized. It is, I gather, admitted that had the Letters Patent establishing the Patna High Court been promulgated in the year 1868 there could have been doubt whatever that its jurisdiction (whatever it may have been before) would have been limited by this Section 4 of the Indian Divorce Act; but it is suggested that as the Letters Patent establishing this Court only came into effect in 1916, the words, 'matters matrimonial'.

as used in clause 27, may be construed as contemplating a larger jurisdiction than that to which at any rate High Courts existing prior to the Indian Divorce Act of 1869 were by that Act restricted. I have very little hesitation in coming to the conclusion that they cannot. In my view, although it is possible to read into the phrase 'matters matrimonial' a very broad meaning, yet when we find that expression is identical with that used in the Indian Divorce Act, is not unreasonable to suppose that the meanings in both the Act and the Letters Patent should be properly construed as consonant and identical.

35. With great respect, we cannot agree with the observation that Section 7 cannot deal with the question of jurisdiction and that the meaning of the expression 'matters matrimonial' used in the Letters Patent must be restricted to matters speiifically mentioned in the Act only. In our judgment, for the reasons already given, Section 7 is wide enough to include the jurisdiction of the matrimonial Court.

36. In the case of Consterdine v. Smaine A.I.R. 1918 L.B. 83- 471. C. 544, the same view which we have taken above was taken. Unfortu nately, the report of that case also is not available in the local library and, therefore, we do not know the reasons which appealed to the learned Judges to reach that conclustion. That case is referred to in Mt. Titli v. Alfred Robert Jones : AIR1934All273 already cited. The deci sion is disposed off by Mukerji, J. on the ground that he is not prepared to accept the view expressed in that case as the correct one.

37. The case of Alfred Robert Jones v. Titli alias Tereza was originally tried by Young, J. and his judgment is reported in I.L.R. 55 Allahabad 185. In that case Young, J. took the same view as we have taken above. The learned Judge, after quoting Section 4 of the Indian Divorce Act and after noticing the argument of the Learned Counsel that that section in terms prohibited the Court from considering questions arising under the Indian Christian Marriage Act, 1872, and after mentioning the two cases of Lopez v. Lopez and Consterdine v. Smaine already referred to, proceeds to decide the question of the jurisdiction of the Court in the following way:

The Indian Christian Marriage Act became law three years after the Indian Divorce Act. The Indian Divorce Act must have been within the knowledge of the Legislature. It is therefore difficult to argue that the; High Court had no jurisdiction to decide the very important questions which must arise out of the Indian Christian Marriage Act. If that were so, the Act would be dead. The various grounds on which the Court can give a decree of nullity in the Divorce Act refer to cases where has been a marriage validly performed. Questions arise under Sections 4 and 5 of the Indian Christian Marriage Act when the marriage has not been validly performed. There is a clear distinction between a decree of nullity of a valid trurriag; and a declaration that the marriage itself is illegal and Void There can, in my opinion, be no doubt that there is jurisdiction in the High Court to hear and decide questions under the Indian Christian Marriage Act.

38. In our judgment, the reasons given by the learned Judge are not valid and cannot be supported. If as a result of the of the Indian Divorce Act, the conclusion is reached that the Indian Court has got no jurisdiction to deal with a matrimonial matter of the aforesaid kind, then, the assumption of jurisdiction by that Court on the grounds mentioned by the learned Judge cannot be justified Moreover, the observation that, if the jurisdiction were not to be exercised, then, the Indian Christian Marriage Act would be a dead letter, cannot be justified. As pointed out in the judgment of Mukerji J. in the same case when it went in appeal, the jurisdiction can be exercised by a Court having ordinary civil jurisdiction.

39. On the whole, after giving a careful consideration of all the pros and cons of the case, we have come to the conclusion that the Court has got jurisdiction to entertain a petition praying for a decree of nullity of marriage on the ground that it is void under Section 4 of the Indian Christian Marriage Act, 1872, and that it has got the power of granting such a decree by virtue of the provisions contained in Section 7 of the Act and the present state of the law in England as embodied in Section 8 of the Matrimonial Causes Act, 1950, which, in express terms, gives jurisdiction to the Matrimonial Division of the High Court of England to grant a decree for nullity of marriage on a statutory ground.

40. Having regard to our aforesaid conclusion, in our judgment, the matter must be remanded to the District Court for affording a chance to the parties to lead fresh evidence and for certification of finding on the following issue:

Does the petitioner prove that the respondent was a Christian at the time of the celebration of her marriage with him?

41. The learned District Judge shall record additional evidence on the aforesaid issue and certify his finding to this Court within two months from the date of the receipt of the record. Cost of remand shall be cost in appeal.

BAKSHI, J.

42. This is a reference under Section 20 of the Indian Divorce Act, 1869 (hereinafter referred to as the Act) for confirmation of the decree of nullity of marriage passed by the learned District Judge, Kaira, at Nadiad, in Divorce Suit No. 1 of 1961. The ground on which the prayer for declaring the marriage null and void was based is that the petitioner and the respondent were Christian by faith at the time of their marriage and as their marriage was performed according to Hindu rites, the marriage was void under Section 4 of the Indian Christian Marriage Act, 1872, which provides that every marriage between person'?, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions contained in Section 5 of the same Act and any such marriage solemnized otherwise than in accordance with such provisions shall be void. Such a ground for obtaining a decree for nullity of marriage is not included in Section 19 of the Act which enumerates the grounds on which such a decree may be made. It is, therefore, obvious that unless the provisions of Section 7 of the Act which enables the Court to act on principles followed by English Divorce Courts in such matters, can legitimately be called in aid, the Court functioning under the Act, will have no jurisdiction to pass a decree for nullity on the ground which is urged by the petitioner. Thus this reference involves a decision on the question whether the Court functioning under the Act has jurisdiction to pass a decree of nullity of marriage on a ground not contained in Section 19 of the Act but recognised as a valid ground by the law prevailing in England on the subject.

43. This would lead us to an examination of the relevant provisions of the Act. The preamble of the Act mentions two objects for the enactment, namely (1) to amend the law relating to the divorce of persons professing the Christian religion and (2) to confer upon certain Courts jurisdiction in matters matrimonial. The first relevaat section of the Act is Section 4 which runs as under:

The jurisdiction now exercised by the High Courts in respect of divorce a mensa et hora 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 passed.

44. The language of Section 4 of the Act is unambiguous and in clear words shows that the jurisdiction in matrimonial matters has to be exer cised subject to the provisions of the Act and not otherwise. In other words, Section 4 of the Act does not enable the Court to exercise jurisdiction otherwise than in accordance with the provisions of the Act. If therefore, there is any provision in the Act relating to a particular subject it is that provision which would prevail and govern the exercise of jurisdiction by the Court on that subject.

45. In this context it is necessary to refer to Section 7 of the Act whica empowers the Court to act on principles of English Divorce Courts. That section provides that-

Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Courts for the Divorce and Matrimonial Causes in England for the time being acts and gives relief.

46. The present controversial issue has arisen on account of the peculiar provision in this section which refers to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. The section provides that the Courts in India shall, in all suits and proceedings under the Act, give relief according to those principles and rules which may be found to be conformable to the principles and rules obtaining in the Courts haying matrimonial jurisdiction in England. Reading the section by itself, it would at first sight appear that the principles and rules of English Law on the subject would apply to all matrimonial causes tried by Courts in India under the Act unless such application of the principles of English law was expressly barred and prohibited by some provision in the Act. On this reasoning it is possible to contend with some force, that a ground recog nised by the Courts in England for declaring a marriage null and void which does not find a place in the Act but which is not expressly prohibited by any provision of the Act, would provide a valid cause of action to sustain a petition for nullity of marriage before a Court in India functioning under the Act. In order to examine the validity of this argument, it would be necessary to refer to some of the other provisions of the Act. It would be necessary to see whether there are any sections in the Act which deal with the topic of nullity of marriage and what is the extent of their appli cation. Chapter IV of the Act deals with the subject of nullity of marriage and contains four sections. Section 18 deals with petitions for a decree of nullity of marriage and is as follows:

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.

47. Section 19 provides for the grounds on which a decree for nullity of marriage can be made. That section is as under:

Such decree may be made on any of 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 consangunity (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.

Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

48. Section 20 requires every decree of nullity of marriage to be confirmed by the High Court and Section 21 relates to children of an annulled marriage. These are the specific provisions, in the Act relating to nullity of marriage. It will be observed that the District Court has been invested under Section 18 with the jurisdiction to entertain a petition for decree of nullity of marriage and Section 19 of the Act provides for the making of such a decree on the grounds enumerated therein. Sections 18 and 19, therefore, cumulatively provide for die forum for instituting a petition and the grounds for granting a decree for nullity of marriage. There is thus a specific provision in the Act dealing with the topic of nullity of marriage and which provides for the making of a decree, the grounds on which such a decree can be passed and the forum for the institution and trial of such petitions. Section 4 of the Act, to which reference has already been made, does not empower the Court functioning under the Act to exercise jurisdiction otherwise than under the rules contained in the Act. Section 7 of the Act does not relate to the jurisdiction of the Court to entertain a petition for nullity of marriage or provide the grounds for passing a decree in such matters and cannot, therefore, confer any additional jurisdiction or supply grounds outside the provisions of the Act. The grounds on which such a suit can be entertained are specifically enumerated in Section 19 of the Act and it is only after a proper petition disclosing any one or more of the grounds stated in that section, is instituted that the occasion for the application of the principles and rules of the matrimonial Courts of England can arise. It therefore follows that a petition for nullity of marriage under Section 18 can be entertained provided it complies with Section 19 and is based on one or more of the grounds mentioned therein.

49. If the grounds for nullity of marriage permissible under the English law but not enumerated in Section 19 were permitted to be availed of in a petition under Section 18, it would mean that that branch of English law is incorporated in and made a part of the Indian Divorce Act, inspite of the fact that the Indian Act makes a specific provision on the subject. Section 7 of the Act itself makes the application of the principles of English law subject to the provisions contained in the Act. What is limited and made 'subject to' the provisions of the Act is the application of die principles of English law and it would be an incorrect approach to the question to look for a specific provision in the Act which excludes and negatives the applicability of those principles. If such an approach is adopted, it would make the principles of English law all pervasive in their applicability throughout all the stages of any section under the Act and in all matters on which the Act makes a specific provision.

50. In view of the clear language of Sections 4 and 7, the operation of both of which is made subject to the provisions of the Act, it is unnecessary to refer in detail to decide cases on this subject. In the case of Ramesh Ramanlal Saraiya V. Kmum Madgaokar reported in 50, B.L.R. at page 426, there are some observations which appear to lend support to the view urged by the petitioner. At page 434, Chagla C.J. has observed that,-

The object of enacting this section was to make the Indian divorce law flexible and not static. The intention was that the law here should develop alongsids with the English law. It may seem surprising that it should be left to the Legislature of another country to mould and modify the law of this country. It was surprising enough when India was a Dspendency in the Empire. It seems to be even more surprising today that such a provision should find place in the Divorce Act of this country when India has now become a full-fledged Dominion as sovereign as England herself. In my opinion Section 7 lays down this rule of law that the Court must consider every time it proceeds to act or give relief what is the relevant English law on the subject and unless it finds that the jurisdiction of the Court to grant the same relief or act in the same manner is expressly negatived by any provision of the Act, it must do so. There must be either a clear negativing of the jurisdiction of the Court or there must be express and unequivocal terms in which the Legislature must have prevented and prohibited the Courts here from acting in the manner in which the English Courts would act or giving the same relief that the English Courts would give on the same facts and on the same materials.

51. But in the last paragraph of the judgment, the ground on which the relief was granted in that case has been clearly stated at page 439 in the following words by Chagla C.J.:

A decree for dissolution is the relief which a Court grants on certain grounds. The grounds are mentioned in Section 10 of the Divorce Act. It may be I am not deciding this question that under Section 7 it would not be open to the Court to add to or change those grounds. But it is entjrly a different thing to say that once a decree for dissolution is passed or a decree for nullity is passed the Court is not entitled to grant the same relief which the Court in England can grant or would grant; and the subsequent legislation makes this position clear. A declaratory Act was passed in 1940. That was done for removal of doubts, and it was provided that in considering what were the grounds on which a decree for the dissolution of any marriage may be granted by the High Court in England and what were the principles and rules on which, in the exercise of its jurisdiction to make decrees for the dissolution of a marriage, and, as incidental thereto, to make orders as to damages, alimony or maintenance, custody of children and costs, the High Court in England for the time being acts and gives relief, certain amendments effected by the Matrimonial Causes Act, 1937, were to be taken into account. This Act clearly shows the distinction between grounds on which a dissolution of marriage may be granted which are incidental to decrees for dissolution of marriage. Therefore, relief in the nature of alimony is really a relief which is incidental to the passing of the decree in the suit which is a decree for dissolution or a decree for nullity. I, therefore, agree with the learned Judge below that this Court has jurisdiction to grant permanent alimony consequent upon the passing of a decree for nullity and this power and jurisdiction is derived not from Section 37 but from Section 7 of the Act. The ommission of the Legislature to provide for this under Section 37 does not in any way militate against the power of this Court to follow the principle and rule followed in England and to give the necessary relief under Section 7 of the Act.

52. The observations of Chaga C.J. quoted above show that the question whether it was open to the grounds for dissolution of a marriage by virtue of Section 7 of the Act was not decided. In the same case, Tendolkar, J. has expressed as follows:

It is also contended by him that this section appears under the general heading 'jurisdiction' and the principles and rules of the English Courts which are contemplated by this section are principles and rules dealing with jurisdiction only. I am unable to agree with either of those contentions to hold that the relief must first be found in the Act itself is to my mind doing violence to the language of the section. The words used in the section are not 'in giving relief the Court shall act,' the words are 'act and give relief, 'so that it is for the purpose of giving relief itself that the principles and rules of English law have got to be applied. Similarly, the fact that Section 7 appears under the general heading 'jurisdiction', to my mind, does not limit the plain words of that section to principles and rules dealing with jurisdiction only. The words are general and they must apply to all cases of giving relief. I am, however, of opinion that before a Court can act or give relief under this section there must be a litigant who is entitled to invoke the Jurisdiction of the Court to grant him relief, in other words, a litigant who has a proper cause of action under the Indian Divorce Act It is only when a litigant who has a cause of action comes to a Court that the Court can act or give relief to him; and, therefore, I am not inclined to read these words as including the application of the principles and rules of English law to the creation of a cause of action, but only to the granting of reliefs where a litigant has a cause of action given to him under the Act.

53. It would thus appear that the decision of the Bombay High Court reported in 50 B.L.R. 426, has not finally decided the question at issue which is before us nor are there any conclusive observations therein which run contrary to the view expressed by me in this judgment. The view I am taking is in consonance with the view taken in the following authorities, namely, Mt. Titli v. Alfred Robert Jone : AIR1934All273 and (Adelide Christiana) Lish v. (David) Lish and Ors. A.I.R. 1923 Patna 301.

53.1 It has also to be borne in mind that when we read Sections 18 and 19 together, the latter section provides a cause of action to the petitioner on which a petition for nullity of marriage can be founded. If we read both these sections together, it appears clear that Section 19 is exhaustive of all the grounds on which a petition for nullity of marriage can be based. While Section 7 entitles the Court to act or give relief to the petitioner on principles and rules on which the Court for Divorce and Matrimonial Causes in England act and give relief, that section -cannot supply an additional cause of action for instituting a petition for nullity of marriage under the Indian Divorce Act.

54. For all these reasons, it must be held that the petitioner was not entitled to rely and base his petition on any of the grounds not enumerated in Section 19 of the Indian Divorce Act. It is not disputed that the ground on which the present petition is not one of the grounds included in Section 19. That being so, the petition founded on such a ground was not maintainable and the learned trial Judge had no power to pass a decree under the Act. There is, therefore, no valid decree before us which can be confirmed under Section 20 of the Act. In my view therefore the rule issued in this reference should be discharged.

MODY, J.

55. I had the advantage of reading the judgments of my learned brothers Miabhoy J. and Bakshi J. With respect, I agree with the view taken by brother Bakshi J. in his judgment for the reasons set out therein.

56. I am also of the opinion that the petition in the reference before us in not sustainable under the provisions of Sections 18 and 19 of the Indian Divorce Act and the rule issued is liable to be discharged.

P.C. No orders are passed on these proceedings in accordance with the view of the majority. Each party to bear its own costs.


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