1. This is a suit for nullity of a marriage under the following circumstances. The respondent when a Hindu was married to a Hindu. The respondent changed his religion being converted to Christianity. No steps were taken by him to dissolve his marriage, but he then went through a form of marriage with the petitioner also a Christian. The petitioner now brings this suit on the ground of bigamy of her husband, he having a wife alive at the time lie went through the form of marriage with her.
2. The first defence raised is that the petitioner has no rights under the Indian Divorce Act because it is alleged that she does not profess the Christian religion. This is based on a resolution of the particular sect to which she belongs, in effect ex-communicating her. In my judgment although she may be ex-communicated by the sect or the church to which she belongs, she does not thereby1 cease to profess Christianity. The question of profession of Christianity is a question of her own action and not of the action of her Church. It is to be observed that the petitioner was the daughter of a Christian and no doubt was baptised as a Christian. I cannot see how it can be said that she ceases to profess the Christian religion because her church disapproving of her conduct have ex-communicated her.
3. The second defence raised is that at the time of this marriage there was no existing marriage of the respondent it being alleged that by reason of his conversion his then existing marriage became dissolved. That is not the law. It is quite clear from the Native Converts Marriage Dissolution Act (XXI of 1866) that the conversion to Christianity of one of two married Hindus does not dissolve the marriage. That Act provides for means to obtain dissolution of the marriage by application to the Court first of all for restitution of conjugal rights and then after the lapse of a year for dissolution of the marriage if conjugal rights are refused. Other wise the conversion to Christianity of one of two spouses has no effect on the existing marriage.
4. It follows that the decree that the marriage is a nullity is correct and must be confirmed with costs.
5. I have felt some doubt with regard to the first question raised by this petition, whether the petitioner can be said to have been professing the Christian religion at the time she presented it, within the meaning of Section 2 of the Indian Divorce Act. My hesitation arises from the facts, evidenced by the resolution of ex-communication referred to by my Lord, that she had repudiated the authority of governing body of the Christian denomination, to which she belonged, and that she was by the resolution deprived of the spiritual privileges of the Christian faith in the only form, in which, so far as it appears, she has ever possessed them. The reply suggested is that, notwithstanding her withdrawal or exclusion from a particular denomination, she can still be heard to say that she professes an unsectarian Christianity. These words of the Act have always been difficult of interpretation; and it is with some hesitation that I accept the suggestion made on her behalf. It is some justification for doing so that there is nothing before us as to her admission or re-admission to Hinduism, which presumably was originally her faith or that of her parents, and nothing to show whether such re-admission or admission is possible; and there is further the fact that the policy of the law appears to require the application of the words of Section 2 to what may be a substantial class of persons in this country those who have abandoned a particular sect, but who still remain unattached to any religion other than Christianity.
6. In these circumstances I do not feel justified in dissenting from the judgment just delivered.
7. I agree with the judgment of the learned Chief Justice. In my opinion the religion of a person is what the person professes and does not require recognition by the other persons belonging to that religion. A Hindu who professes to be a Hindu though he may be ex-communicated by all the existing Hindu castes is still a Hindu though probably he is subject to great social inconvenience. In this respect I do not think that there is anything peculiar to Christianity. If a person says that he is a Christian, though he does not belong to the existing Christian churches, he is still a Christian. Probably his creed is different from the existing creeds and he is subject to social inconvenience in respect of the performance of marriage and burials. Still he would be a Christian.