1. This is a petition to revise the judgment of the Special First Glass Magistrate, Devakottai, in Calendar Case No. 76 of 1944, by which he has acquitted the first and third accused in that case. The 1st accused was baptised a Roman Catholic and married his first wife in a Roman Catholic Church. The complainant P.W. 1 is a protestant and in 1930, after the death of his first wife, the 1st accused married her in a Protestant Church, the ceremony being performed by a Protestant Pastor. Two children were born of the marriage. On 19th May, 1942, the complainant executed a release deed Ex. 1, in favour of the 1st accused--the relevance of this deed will appear later. On 16th September, 1943, the 1st accused married the 2nd accused in a Roman Catholic Church, the ceremony being performed by the 3rd accused, a Roman Catholic Priest. Thereafter on 14th December, 1943, P.W. 1 filed a complaint in the Court of the Joint Magistrate of Ramnad charging the 1st and 2nd accused with the offence of bigamy punishable under Section 494 of the Penal Code, and the 3rd accused with abetment of the offence.
2. Section 494 of the Indian Penal Code reads:
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished, etc.
3. The marriage between the 1st accused and the complainant in 1930 was a marriage solemnised under the provisions of the Indian Christian Marriage Act (Act XV of 1872). Section 1 of that Act states that the Act ' extends to the whole of British India ' and Section 4 provides that:
Every marriage between persons one or both of whom is (or are) a Christian or Christiansj shall be solemnised in accordance with the provisions of the next following section; and any such marriage solemnised otherwise than in accordance with such provisions shall be void.
4. It is not disputed that the marriage between the accused and the complainant was solemnised in accordance with the provisions of Section 5 of the Act. A marriage solemnised under the provisions of the Indian Christian Marriage Act subsists so that any second marriage by either of the parties to the first marriage during the lifetime of the other party is void unless the marriage has been dissolved under the provisions of Section 10 of the Divorce Act or declared null and void under Section 18 on any of the grounds set out in Section 19. It may be conceded, howeyer, that a person accused of an offence under Section 494, I.P. Code, may plead in his defence that the first marriage was null and void even though he has not obtained a declaration to that effect under Section 18 of the Divorce Act. In the present case the 1st and 3rd accused raised two defences: First that the marriage of the 1st accused to the 2nd was not in any case void because the release deed--Ex. I--executed by the complainant operated as a dissolution of the marriage between the 1st accused and herself according to the custom of the community to which they both belonged; and, secondly, that the marriage in 1930 was not a valid marriage by reason of the provisions of Section 88 of the Indian Christian Marriage Act. The and accused was discharged on the ground that there was no proof that she knew of the 1st accused's previous marriage and her case is not before me.
5. The learned Magistrate has not specifically found that the release deed operated as a dissolution of marriage so that the marriage between the 1st and 2nd accused was not void; but he has treated it as a point in favour of the first accused. It might perhaps have been taken into consideration on a question of sentence, but it should not have been allowed to affect the question whether the 1st accused had committed the offence charged or not. The custom is not of course a part of the personal law of the parties which invalidates the marriage ab initio, and there is nothing in the Indian Divorce Act which permits the dissolution of a legal marriage between Christians by virtue of any custom applicable to either or both of the parties to the marriage. The marriage of the 1st accused to the 2nd accused was not, therefore, a valid marriage simply by reason of the release deed executed by the complainant.
6. The point then has now been reached that if the marriage between the 1st and 2nd accused is not void it can only be because the earlier marriage between the 1st accused and the complainant was not a valid marriage by reason of the provisions of Section 88 of the Indian Christian Marriage Act. Section 88 of the Act reads:
Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into.
7. It is contended for the accused that the personal law of the 1st accused who was baptised a Roman Catholic is the Canon Law of the Church of Rome and that the Canon Law forbids the marriage of a Roman Catholic with a Protestant without a dispensation and forbids absolutely the marriage of a Catholic with a Protestant in a Protestant Church by a Protestant Pastor. For the complainant it is argued that ' personal law ' in Section 88 does not mean the whole of the personal law of the party or parties applicable to marriage but only such parts of the personal law as prohibit any marriage between the parties. The personal law contemplated, it is said, if Section 88 is construed in its proper context and having regard to the Act as a whole, is that part of the personal law which relates to impediments which prohibit the marriage of the parties absolutely, such impediments as that given as the marginal note to Section 88 that the parties are ' within prohibited degrees' of consanguinity or impediments of a like absolute character such as idiosy, impotence, or infancy. In support of his argument learned Counsel for the complainant relies on the decision of the Bombay High Court in Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288. The contention put forward for the accused is supported mainly on the ground that, according to the ordinary rules of construction, ' the personal law applicable to either of the parties ' will not bear the restricted meaning put on the words by the complainant.
8. Before considering Saldanha v. Saldanha I.L.R.(1929) 54 Bom. 288 it will be convenient to refer to an earlier decision of the Calcutta High Court in Lopez v. Lopez I.L.R.(1885)Cal. 706 . In Lopez v. Lopez I.L.R.(1885)Cal. 706 it was pleaded by the defendant in a suit for restitution of conjugal rights that his marriage to the plaintiff was null and void as she was his deceased wife's sister. The case turned on whether the English law with regard to prohibited degrees applied or the personal law of the defendant who was a Roman Catholic. If the English law, as it then stood, applied, the marriage was null and void; but under the personal law of the defendant, which was held to be the Canon Law, a valid marriage could be contracted if a dispensation had been granted. It was held that the defendant's personal law applied and, in the absence of evidence, the dispensation was presumed, The case is not precisely in point. What was decided was; first, that the personal law of the party with regard to prohibited degrees was the personal law of the community to which the party belonged and not the personal law of English Christians on the footing that the personal law of English Christians had become the personal law of all Christians domiciled in India; and secondly, that the personal law of a Roman Catholic governing religious matters is the Canon law. The question, however, of the scope of Section 88 was not considered. The case decided no more than that a marriage solemnised under the Indian Christian Marriage Act is invalid if the relationship of the parties to it is within the prohibited degrees according to the personal law of either of the parties.
9. Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288 is more directly in point. In that case two Roman Catholics were married in due form under the Christian Marriage Act before a Registrar in accordance with the provisions of part V of the Act. Shortly afterwards, the husband was married again to another woman in a Catholic Church by a Catholic priest. The wife of the first marriage brought a suit for a declaration of the validity of her first marriage and for restitution of conjugal rights and at the same time the husband was prosecuted for bigamy. The suit was decreed for the plaintiff but in the criminal case the husband was acquitted. The defendants appealed against the decree in the civil suit and the Provincial Government appealed against the acquittal of the husband in the criminal case. Both appeals were heard by a Bench of the Bombay High Court which consisted of Blackwell and Kemp Justices. The argument advanced for the husband was that he was governed by the Canon Law which forbade Roman Catholics to marry otherwise than ' In facie ecclesiae' so that his first marriage was invalid under the provisions of Section 88 of the Indian Christian Marriage Act. The learned Judges agreed in dismissing the civil appeal and in allowing the appeal of the Government against the acquittal of the husband. Blackwell, J., held that Section 88 did not cover any prohibition as to the form of marriage and drew attention in regard to the law of marriage to the distinction between the lexi loci contractus and the lex domicilii. He pointed out that it was impossible to suppose that the legislature in an act dealing with the forms of marriage of Christians could by Section 88 have intended to enable parties to rely upon a prohibition as to form imposed by their personal law so as to invalidate the marriage. He concluded that the expression ' personal law ' in Section 88 as not limited to the personal law as to prohibited degrees but would include any personal law apart from any personal law as to the form of marriage, which forbade either of the parties to enter into a contract of marriage with one another. Kemp, J., considered that the Canon Law did not in fact prohibit the marriage. He also expressed the opinion that although the personal law referred to in Section 88 of the Indian Christian Marriage Act is to be found, as far as Catholics are concerned in the Canon Law, Lopez v. Lopez I.L.R.(1885)Cal. 706 was no authority for the proposition that the expression ' personal law ' incorporates the whole of that personal law.
10. Except for the fact that it is not in every respect on all fours with the present case I should be content to follow Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288 and say no more. In Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288 however both parties were Catholics and the marriage was before a Registrar; in the present case one of the parties was baptised a Catholic while the other was a Protestant and the marriage was solemnised in a Protestant Church. In Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288 therefore, the objection to the marriage in the eyes of the Church or according to the Canon Law could be nothing more than an objection to the form of the marriage. As Kemp, J., pointed out prior to the marriage before the Registrar there was nothing in the personal law of the parties which forbade their marriage. In the present case there is not only the question of the form of the marriage in a Protestant Church and so not in facie ecclesiae, but the marriage was between a Catholic and a Protestant which is forbidden by the Canon Law without a dispensation. Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288 governs the facts of the present case to this extent, that the marriage between the first accused and the complainant is not invalid merely because it was solemnised in a Protestant Church. The question remains whether a marriage between a Catholic and a Protestant without a dispensation is void according to the personal law applicable to Catholics so that, under the provisions of Section 88, it cannot be validated by anything in the Indian Christian Marriage Act. Although in Saldanha v. Saldanha I.L.R.(1929)54 Bom. 288 only the form of the marriage was in question, the view expressed by Kemp, J., with which I respectfully agree, that Section 88 relates to impediments to marriage and that not all the impediments enumerated in the Canon Law are necessarily attracted by the section, affords guidance for the construction of the section as a whole. The words ' Nothing in this Act shall be deemed to validate any marriage' presuppose that the marriage is not merely forbidden by the personal law of a party but that it is, according to that personal law, a nullity. Is then the impediment under the Canon Law to the marriage of a Catholic and a Protestant without a dispensation an impediment covered by the expression ' personal law ' in Section 88, and does the impediment, according to the Canon Law, render a marriage between a Catholic and a Protestant no marriage at all?
11. A Christian or Christians can only contract a legal marriage in India under the provisions of the Indian Christian Marriage Act. All the provisions of the Act apply to Christians of all denominations except Part VI, which deals with the marriage of native Christians, and which it is stated ' shall not apply to marriages between Roman Catholics ' except ' so much of Sections 62 and 63, as are referred to in Section 64.' Section 88 is the last section of the Act and appears in part VIII which is headed ' Miscellaneous.' Now it would certainly be surprising, haying regard to the scheme of the Act and the position of Section 88, in it, if the provisions of Section 88 should make it impossible for a Catholic and a Protestant to marry at all except in accordance with the provisions of the Canon Law. This cannot have been contemplated by the legislature, and the difficulty is obviated if an interpretation is put on the section which, in my opinion, does no violence to the words used, namely, that, as the marriage to attract the provisions of Section 88 must be a nullity according to the personal law of a party, that part of the personal law of the parties only is contemplated by the section which relates to absolute impediments to any marriage at all between the parties, even marriage according to the rites of their own churches, impediments such as prohibited degrees of consanguinity or affinity.
12. That this view is correct appears in my opinion, from a consideration of the question from the point of view of whether the Canon Law does in fact forbid a Catholic and a Protestant to enter into a marriage, on a proper construction of these words in their context in Section 88 of the Act. The marriage which under Section 88 will be invalidated if the personal law applicable to either of the parties forbade them to enter into it is a marriage which, but for the personal law of the parties is a legal and valid marriage according to the law of India. For such a marriage to be deemed not to be valid, however the scope of Section 88 is regarded, it is clear that the personal law of a party must not only forbid the party to enter into the marriage but must hold such a marriage not to be a legal marriage but to be null and void ab initio. But does the Canon Law forbid a Roman Catholic to enter into a marriage with a Protestant except after a dispensation has been granted and in a Catholic Church in this sense? I do not think that it does and certainly it was not proved in this case that it does. Father Kalathil, Professor of Theology in the St. Paul's Seminary at Trichinopoly gave evidence for the defence as D.W. 9. He referred in his examination-in-chief to Canons 1094, 1060, 1061, 1325, 1099 and other Canons and stated no doubt that a Catholic and a Protestant could not enter into a valid marriage except under a dispensation from the Church got under Canon 1061. But it is clear that what he meant was that they could not enter into a valid marriage in the eyes of the Church. In his cross-examination he said that he was not informed about any prior marriage of the first accused; and then, and this shows clearly that he was not contending for the position that the 1st accused was at liberty to marry another woman because the earlier marriage was forbidden by the Canon Law, ' The civil powers are competent to legislate as regards the effects of matrimony.' A marriage, as has already been pointed out, must be a nullity according to the personal law of either of the parties to it before any question of its being validated by reason of anything contained in the Christian Marriage Act can arise; and, for the reasons given, I do not think that tha Catholic Church holds a marriage between a Catholic and Protestant solemnised in any of the ways provided by the Indian Christian Marriage Act to be a nullity as a Civil Marriage by virtue of the Canon Law and I am quite clear that it has not been proved that the Catholic Church holds such a marriage to be a nullity. This supports the conclusion, reached' by other means, that the expression ' personal law ' in Section 88 means the personal law of either party which relates to absolute impediments to any marriage between the parties. All that was intended to be done or was done as is pointed out in Lopez v. Lopez I.L.R.(1885)12 Cal. 706 by the changes introduced by the Indian, Divorce Act of 1869 and the Indian Christian Marriage Act of 1872 taken with Section 88 of the latter Act was to provide that the law applicable to such absolute prohibition of any marriage between parties as prohibited degrees of consanguinity or affinity was not the personal law of Christians in England but the personal law applicable to either of the parties. Section 88 of the Indian Christian Marriage Act in my judgment has no wider scope.
13. It follows from what has been said above that the marriage between the 1st accused and the complainant was a legal and valid marriage, that it was subsisting when the 1st accused married the 2nd accused and that the marriage of the 1st accused with the 2nd accused was void by reason of its taking place during the life of the complainant. This being so, the 1st accused committed the offence defined in Section 494 of the Penal Code, and the judgment of the Special first Class Magistrate of Devakottai acquitting him was wrong. With regard to the third accused his acquittal necessarily followed on the finding of the Magistrate that the first accused had not committed bigamy; but the Magistrate also found that there was no proof that he knew that the complainant was alive when the marriage of the 1st accused with the 2nd was performed. In view of his defence to the charge and the written statements filed by him it may seem that it would not have affected his conduct even if he had known that P.W. 1 was alive. On the finding of fact, however, he was in any event entitled to be acquitted of the offence of abetment of bigamy, and, as I am sitting in revision, I am not disposed to interfere. It does not affect the case against the 3rd accused, but I may perhaps observe that it seems not improbable that the marriage of the 1st accused with the second was in fact permitted and performed because of the custom in the community to which the 1st accused belonged, in respect of which there was evidence, to regard a release deed such as Ex. I as constituting a valid dissolution of the marriage between the parties. The extreme claim made that the marriage between the 1st accused and the complainant was invalid even as a civil marriage according to the Canon Law was possibly an afterthought.
14. With regard to the 1st accused I am quite clear, for the reasons given above, that he should have been convicted of an offence under Section 494 of the Indian Penal Code and that the order of the First Class Magistrate of Devakottai acquitting him was wrong. In the exercise of my revisional jurisdiction, however, I cannot myself convict the accused. I can only order a retrial. The principle involved in this case is important, but I do not think that it is necessary to take a serious view of the offence committed by the first accused. He seems to have thought that he was entitled to marry again because of the release deed according to the custom of his caste, and it also seems to have been the opinion of his spiritual advisers that he was entitled to marry again. In the circumstances, it does not seem to me necessary or desirable that the first accused should be put on his trial again, and I understand that a retrial of the case is not desired by the petitioner. All that is desired is that the principle should be established that in the circumstances of this case the offence of bigamy was committed. If, however, a retrial is not directed, the only alternative is to dismiss the petition.
15. The petition is therefore dismissed, but I would make it clear that it is dismissed only for the reason that in the special circumstances of this case a retrial is neither necessary nor desirable.