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Gobardhan Dass Vs. Jasadamoni Dassi and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal252
AppellantGobardhan Dass
RespondentJasadamoni Dassi and anr.
Excerpt:
dissolution of marriage - non-christian marriage--conversion to christianity--divorce act (iv of 1869), sections 2 and 17--native converts marriage dissolution act (xxi of 1866), sections 4, 5, 7, 8, 9, 10, 15 and 16. - .....the provisions of act xxi of 1866. section 4 of this act says:4. if a native husband change his religion for christianity, and if in consequence of such change his native wife, for the space of six continuous months, desert or repudiate him, he may sue her for conjugal society.5. if a native wife change her religion for christianity, and if in consequence of such change her native husband, for the space of six continuous months, desert or repudiate her, she may sue him for conjugal society.section 7 provides how the suit is to be commenced: sections 8, 9 and 10 provide for issue and service of citations: section 15 directs that in the case of a female respondent, the matter should be adjourned for a year so see whether she persists in her refusal to live with the petitioner. and then.....
Judgment:

W. Comer Petheram, Kt., C.J.

1. This matter comes before us under Section 17 of Act IV of 1869 for confirmation of the decree nisi made by the District Judge of Bankura for the dissolution of the marriage of the parties to those proceedings. The petitioner and respondent were originally Hindus by religion, and were married in this country whilst professing the Hindu faith. After their marriage they both became converts to Christianity. On the 18th of December 1889 the petitioner presented a petition to the District Judge of Bankura for the dissolution of his marriage on the ground of his wife's adultery with the correspondent, and the learned Judge, holding the adultery established, made a declaration to the following effect: 'It is hereby declared that the marriage of the petitioner, Gobardhan Dass, a native convert, with Jasadamoni Dassi, the respondent, is hereby dissolved subject to the confirmation of the order by the High Court under Section 17 of the Act.'

2. A doubt having been raised as to whether the petitioner was entitled to a decree for the dissolution of his marriage which was not performed according to Christian rites, we have considered the question carefully, and we have come to the conclusion that there is nothing in Act IV of 1869 or in any other Act to exclude him from the benefit of its provisions.

3. The second Section of Act IV of 1869 runs thus:

This Act shall extend to the whole of British India, and (so far only as regards British subjects within the dominions hereinafter mentioned) to the dominions of Princes and States in India in alliance with Her Majesty.

Nothing hereinafter contained shall authorize any Court to grant any relief under this Act, except in cases where the petitioner professes the Christian religion and resides in India at the time of presenting the petition; or to make decrees of dissolution of marriage except in the following cases: (a) where the marriage shall have been solemnized in India; or (b) where the adultery, rape or unnatural crime complained of shall have been committed in India; or (c) where the husband has, since the solemnization of the marriage, exchanged his profession of Christianity for the profession of some other form of religion; or to make decrees of nullity of marriage except in cases where the marriage has been solemnized in India.

4. The petitioner unquestionably professed the Christian religion at the time of presenting his petition. Therefore, unless it can be said that his previous marriage became ipso facto dissolved by his or their conversion to Christianity, the marriage relationship previously contracted must be regarded as subsisting, in respect of which he would, as a person professing Christianity at the time of presenting his petition, be entitled to seek under the Act a dissolution on the ground of his wife's adultery. That a previously contracted marriage is not dissolved by the mere fact of the conversion of the one or the other party to Christianity is clear from the provisions of Act XXI of 1866. Section 4 of this Act says:

4. If a native husband change his religion for Christianity, and if in consequence of such change his native wife, for the space of six continuous months, desert or repudiate him, he may sue her for conjugal society.

5. If a native wife change her religion for Christianity, and if in consequence of such change her native husband, for the space of six continuous months, desert or repudiate her, she may sue him for conjugal society.

Section 7 provides how the suit is to be commenced: Sections 8, 9 and 10 provide for issue and service of citations: Section 15 directs that in the case of a female respondent, the matter should be adjourned for a year so see whether she persists in her refusal to live with the petitioner. And then Section 16 provides: 'At the expiration of such adjournment the petitioner shall again appear in Court and shall prove that the said desertion or repudiation had continued up to the time last hereinbefore referred to, and if the points mentioned in the twelfth and this section of this Act shall be proved to the satisfaction of the Judge; and if the respondent on being interrogated by the Judge or Commissioners, as the case may be, again refuse to cohabit with the petitioner, the respondent shall be taken to have finally deserted or repudiated the petitioner, and the Judge shall, by a decree under his hand and sealed with the seal of his Court, declare that the marriage between the parties is dissolved.

5. It is clear therefore that a non-Christian marriage is not dissolved by the mere fact of the conversion of one or both the parties to Christianity. That being so, and the petitioner being a Christian at the time of presenting his petition, and it being found that the respondent has committed adultery, we think Act IV of 1869 applies. We accordingly confirm the decree made by the District Judge.


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