K.C. Chunder, J.
1. This rule was issued at the instance of Capt. A. C. Smyth against an order of a Presidency Magistrate of Calcutta, allowing a monthly maintenance of Rs. 100 to the opposite party Mrs. Hannah Smyth tinder Section 488, Criminal P. C.
2. The point at issue is whether the parties are husband and wife. According to Mr. Das appearing on behalf of the petitioner husband, a Roman Catholic like Capt. Smyth could not marry Mrs. Smyth because she was one professing the Jewish Faith at the time of the marriage. According to him, under Section c, Indian Christian Marriage Act (XV  of 1872), a marriage in which one of the parties is a Christian has got to be solemnised according to the Indian Christian Marriage Act, and Section 5 lays down by whom or where such marriages may be solemnised. One of the persons before whom such a marriage can be solemnised is a Marriage Registrar appointed under the Act. The parties were no doubt married before such a Marriage Registrar. His contention is that though the marriage may be solemnised under Indian Christian Marriage Act, the validity of the marriage in view of Section 88 of the Act must be determined by the personal law of the parties. Section 88 runs thus :
'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.'
It would appear from the decisions in the cases of V.H. Lopez v. E.I. Lopez, 12 Cal. 706 (F.B.), Peter Philip Saldanha v. Anne Grace Saldanha, 54 Bom. 288 : (A.I.R. (17) 1930 Bom. 105) and Gnana Soundari v. Nauthambi alias Jokiam Jebamalai, A.I.R. (32) 1945 Mad. 516 : (47 Cr. L. J. 421) and also from the decision in Suit No. 1126 of 1944 of Lodge J. (O. S.) decided on 9-3-1945 that the prohibition referred to there in Section 88 must be an absolute impediment or a total incapacity according to the personal law and not an impediment or incapacity which is dependant upon the fact that the marriage is a sacrament or on the form of marriage, re-solemnization of the marriage amongst the followers of a particular religion and those who do not profess it are not allowed to be solemnised by ministers of a particular faith. In the present case, it would appear that no such absolute impediment or incapacity has been proved. On the other hand, the evidence of Father Farnandes would go to show that in view of canon 1016 there may be no such absolute impediment. Under the circumstances, it has not been shown as far as evidence goes in the present case that the marriage in the present case is prohibited according to personal law of the parties. Therefore, the Magistrate could pass the order of maintenance that he has done, and under the circumstances the order of the Magistrate must be upheld.
3. The rule is discharged.
4. I agree.