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T.O. Aykut Vs. M.O. Aykut - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1940Cal75
AppellantT.O. Aykut
RespondentM.O. Aykut
Excerpt:
- .....the petitioner has given evidence in which she has stated that she is a professing christian and a roman catholic. she has further stated that she would not marry anybody who was not a roman catholic; prior to their marriage the respondent informed her that he was a roman catholic and he signed a paper to that effect. she also states that when they went to the register office where the form of marriage was celebrated, the respondent swore that he was a roman catholic and she states further that she would never have married him had she known that he was a mahomedan. that information she obtained in england in may 1937 when her passport expired. she then found that in a document purporting to be a marriage certificate which is partly in turkish and partly in english and issued by the.....
Judgment:
ORDER

McNair, J.

1. This is a wife's petition for a decree that her marriage with the respondent may be declared null and void. There is no appearance on behalf of the respondent. The petitioner at the time of the marriage was domiciled in Austria and was an Austrian subject. The respondent was a Turk. The parties went through the form of marriage at the register office in Calcutta on 8th March 1937. The petitioner has given evidence in which she has stated that she is a professing Christian and a Roman Catholic. She has further stated that she would not marry anybody who was not a Roman Catholic; prior to their marriage the respondent informed her that he was a Roman Catholic and he signed a paper to that effect. She also states that when they went to the register office where the form of marriage was celebrated, the respondent swore that he was a Roman Catholic and she states further that she would never have married him had she known that he was a Mahomedan. That information she obtained in England in May 1937 when her passport expired. She then found that in a document purporting to be a marriage certificate which is partly in Turkish and partly in English and issued by the Turkish Consul-General in London the respondents' religion is entered as 'Islam.' This document has been translated and proved. The petitioner states that she had no sexual intercourse with the respondent after she discovered in August 1938 that he was in fact a Mahomedan.

2. Detective Sgt. Clarke has given evidence that he had known the respondent for some time having come into contact with him in connexion with a passport. In February of this year he arrested the respondent for disorderly conduct and the respondent then made a voluntary statement in which, amongst other things, he stated that he was a Mahomedan and that he did not remember whether he stated that he was a Mahomedan or a Christian at the time of his marriage. Mr. R.C. Bonnerjee on behalf of the petitioner has referred me to Section 10, Divorce Act, which provides that a wife may obtain dissolution of her marriage if her husband has since the solemnization of the marriage exchanged his profession of Christianity for the profession of some other religion and he argues that if the alleged husband never professed the Christian religion, there would be even stronger grounds for dissolving the marriage tie. It is clear that the policy of the Act does not contemplate a valid marriage between a Christian and a person professing a religion which is not monogamous. Section 1.9, Divorce Act, provides that a decree for nullity may be made on any of the grounds mentioned and it further provides that nothing in the Section shall affect the jurisdiction of the High Court to make a decree o nullity of a marriage on the ground that the consent of either party was obtained by force or fraud.

3. The High Court has accordingly power to annul a marriage on the ground of fraud, and on the evidence which has been given before me I am satisfied that the consent of the petitioner to the marriage was obtained by fraud with the consequence that the marriage is void. The respondent was served personally with the petition and does not appear to defend. Although the petitioner is domiciled in Austria she has lived and cohabited with the respondent in Calcutta and she was residing in Calcutta within the jurisdiction of this Court at the time when she filed her petition. The Court therefore has jurisdiction to entertain the petition. There will be a decree nisi in terms of the prayer of the petition and the respondent must pay the costs.


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