Monjula Bose, J.
1. The suit instituted by Rose Simpson the petitioner under the Indian Divorce Act is primarily for a declaration that her marriage with the respondent is a nullity. The parties profess the Christian religion. In the petition it is, inter alia, alleged that at the time of the impugned marriage on May 7th, 1955, the respondent represented to the petitioner that his prior marriage with the petitioner's eldest sister Agnes Simpson had been lawfully dissolved. Subsequently, in a suit for divorce on charges of adultery, initiated by the petitioner against her husband being Suit No. 9, 1973 (Mrs. Rose Biswas v. Binimoy Biswas) she came to know that the prior marriage of her eldest sister with her husband, the present respondent had not been dissolved. On advice the petitioner obtained leave to withdraw the said suit with liberty to institute appropriate proceedings. The present suit was caused to be filed thereafter. It is contended that inasmuch as the said prior marriage of the respondent was in force at the material time, the subsequent marriage between the petitioner and the respondent is a nullity. The parties have four boys and three girls some of whom were born before the ceremony of marriage. The eldest two daughters aged 26 years and 24 years are married and the youngest daughter is a minor aged 13 years.
2. In the written statement filed by the respondent it is denied that the respondent's earlier marriage was in force at the time of his marriage with the petitioner. It is contended that the present suit is false and frivolous and instituted in collusion and connivance with persons with whom, the petitioner is living in adultery.
3. The issues settled for trial were:--
(1) Is the marriage of the petitioner and the respondent a nullity as alleged in para 11 of the petition
(2) To what relief, if any, is the petitioner entitled
4. The petitioner offered herself for examination. Briefly stated, her evidence is that she was married to the respondent on the 7th May, 1955. The certificate of marriage was tendered as Exbt. A/1. The respondent was previously married first to one Tatini Biswas, and thereafter on June 4, 1947 to her eldest sister Agnes Simpson. At the time of marriage with her, the respondent had represented that he was divorced from Agnes. The certificate of marriage between the respondent and Agnes was tendered as Exbt. B. In 1975, she came to learn that the respondent was only separated from Agnes and that there was no decree of divorce. In cross-examination, she states that Agnes left the respondent before the petitioner married him. Agnes has since remarried and is now residing in Madras. The petitioner's first child by the respondent was born on the 28th Oct., 1950, and the second child was born on Nov. 28th, 1952 before their marriage. This compelled Agnes to leave the respondent. The petitioner left the respondent on Oct. 24, 1972. Prior to the present suit she had filed a suit for divorce against the respondent on the ground of adultery. On legal advice she withdrew the earlier suit although the respondent did not contest the same and thereafter this suit was caused to be filed.
5. The defendant who also came to the box, admitted that he was previously married to the petitioner's eldest sister, Agnes. On Oct. 4, 1954 an order was obtained from the Court of the Metropolitan Magistrate in respect of the said marriage. Papers connected with the said order have been stolen from him. Agnes subsequently married one Mr. Giri in 1955. He had clearly informed the petitioner that his prior marriage with Agnes had been dissolved and had shown her the relevant papers. He had not contested the suit for divorce filed by the petitioner as the petitioner had already left him. The present suit was being contested by him in the interests of the children. In cross-examination he admitted that it was not declared in the marriage certificate Exbt. A/1 that he was a divorcee. He stated that his relationship with the petitioner was legalised by marriage after four issues had been born. The petitioner and he had been living together for 22 years. In answer to questions from the Court he stated that he and Agnes had made a joint declaration in the Court of the Metropolitan Magistrate to the effect that they were divorcing each other and had the liberty to marry again. He admitted that the divorce was made by mutual understanding and not through any legal proceedings.
6. Mr. S. K. Bhattacharjee, learned Advocate for the respondent, submitted that under Sections 18 and 19 of the Indian Divorce Act a 'husband' or 'wife' was no doubt given a right to seek declaration of nullity of their marriage prima facie net void, but it was the intention of the legislature that a decree of nullity was not to be granted as a matter of right but in the discretion of the Court. He stressed that the parties had been living together as husband and wife for 22 years and the petitioner had borne respondent 7 children 3 of whom were born after the marriage. He contended, the presumption was always in favour of the validity of a marriage and there was nothing in the Indian Divorce Act which rendered a marriage void ipso jure. He submitted that if a decree declaring the marriage a nullity was passed in the instant case, the children born after the marriage would be labelled 'illegitimate'. Whilst exercising its judicial discretion the Court will consider the effect of the decree on the lives of innocent children, the youngest of whom was a minor and also consider its effect on the two married daughters who have entered new homes. The subsequent marriage of Agnes in 1955, was also a matter for serious consideration for the Court, as rights of third parties not before the Court would be adversely affected by such a decree, if passed. The case of the petitioner being of misrepresentation it was submitted on the authority of the decision Consterdine v. Smaine reported in 41 IC 544 that no degree of deception could be availed to set aside a contract of marriage knowingly made, unless the party imposed upon had been deceived as to the person whom he was to have married. In any event, a marriage induced by fraud would merely be voidable and not void ab initio and only an innocent party who has been the victim of fraud can take advantage of it. Lastly, he urged that the petitioner was estopped by her conduct from seeking redress on a grievance of misreprenentation having admitted in the prior proceedings for divorce that the marriage was valid and after having lived as husband and wife for a span of over 21 years and having enjoyed the benefits of a matrimonial home for long. He also relied on the decision in Kishore Sahu v. Mrs. Snehaprabha Sahu reported in AIR 1943 Nag 185 for the following observations in the judgment:--
'It has always to be remembered that divorce proceedings and proceedings for nullity are not like ordinary civil suits in which the parties are litigating their own rights and seeking decrees to which they are indisputably entitled if the facts they allege are proved. There is no right of divorce, No one is indisputably entitled to a decree of nullity. The Courts have a discretion in every case even when all the necessary facts are clearly proved. The slightest bad faith, any suspicion of collusion, the least want of candour, entitles the Court to stay its hand.'
7. Mr. P. K. Roy, learned Advocate for the petitioner, contended on the other hand that the term 'may' has been incorporated in Section 19 of the Indian Divorce Act in respect of grounds for both void and voidable marriages and grounds (2) and (4) thereof deal with statutory incapacities viz., marriage between persons within prohibited degrees of relationship, or subsistence of earlier' marriage which makes a marriage void ab initio. He contended further that if a marriage is void, the term 'husband or wife' referred to in the said section cannot validate the marriage. The statute applied where either the petitioner or the respondent professed Christianity and there could be instances where the personal law of either party allowed a marriage for a second time. It was in that context the term 'husband or wife' has been used in the section. In India the right to apply for a decree of nullity was given by the statute only to the parties to the marriage, whereas in English Law a third party could seek such a declaration. The use of the expression 'husband or wife', he contended, did not mean that legislative sanction was given to a Christian to marry more than once, contrary to his or her personal law. If. a second marriage was contracted during the subsistence of an earlier marriage the same would not be valid in law and void ab initio. He contended thus that under Section 19 of the Indian Divorce Act, certain marriages could be declared void ipso jure and others were merely voidable. He submitted that AIR 1943 Nag 185 (supra) cited on behalf of the respondent related to a case of impotency and was voidable and the observations made generally in that judgment had no application in the facts of the instant case. In this connection he cited Tolstoy on Divorce 5th Edition page 108 where the law was laid down as follows:--
'A marriage cannot be contracted between the parties one of whom is married at the date of the ceremonial marriage.'
8. He contended that in such cases the Court had no discretion and a decree for nullity in a bigamous marriage could not be withheld. He also cited the following articles from Hals-bury 3rd Edition Vol. 13, at p. 260 :--
Art, 540 'Nature and effect of void marriages -- When marriage is void the Courts regard the marriage as never having taken place and no status of matrimony ever having been conferred- Where marriage is void in law, the purpose of a nullity suit is to place the fact on record by a judgment equivalent to a judgment in rem, but no need for such a decree and nothing in the provisions of the Matrimonial Causes Act, 1973 restating additional grounds for a decree of nullity in respect of voidable marriages celebrated before 1st August 1971 is to be construed as validating any marriage which is by law void but with respect to which a decree of nullity has not been granted'.
Article 541 : 'In cases of void marriages neither delay nor conduct constitutes a bar to a decree.'
9. Mr. Roy next cited Bromley's Family Law 2nd Edition pp. 54-55 where it is laid :--
'Void marriage is strictly speaking a contradiction in terms as no marriage at all, and parties never acquired the status of husband and wife owing to some impediment.'
10. Next cited was the following passage from G. J. Hall's Divorce Law and Practice p. 170:--
'No answer to a suit for nullity that bigamous marriage brought about by fraud or misrepresentation if void ipso jure.'
11. Dixon's 3rd Edition, and Ratti-gans Law of Divorce was also cited tor similar propositions.
12. Last cited was Pritchards 'Law and Practice of Divorce and Matrimonial Causes' 2nd Edition for the following passage at p. 22:--
'Civil disabilities like prior marriage, lack of consent, render parties incapable of contracting marriage at all and Courts' inclination to support marriage cannot be given effect to'
and 'Canonical disabilities such as consanguinity, affinity and certain corporal infirmities make a marriage voidable whereas civil disabilities, such as prior marriage, want of age, idioacy and the like make the contract void ab initio and not merely voidable as they render the parties incapable of contracting at all. Such a union is a meretricious one and not a matrimonial union and therefore no sentences of avoidance necessary. Further in suits for nullity the Court is bound to act with peculiar caution since question of legitimacy involved. There is strong distinction between nullity at common law where there is husband and wife living at the date of marriage and nullity by reason of impotency or nullity by reason of statutable enactments'.....
13. Mr. Roy also cited the following English decisions in support of his contentions.
(a) Bateman v. Bateman reported in C1898) 78 LT 472 was cited for the proposition that where the former spouse was alive and the earlier marriage subsisted the Court had no discretion as to the relief to be granted but to hold the marriage void ab initio.
(b) Hayward v. Hayward reported in 1961 (1) All ER 236 was cited for the proposition that there cannot be any estoppel against nullity based on a bigamous marriage.
14. William Hudson v. Mrs. K. M, Webster reported in AIR 1937 Mad 565 was also cited for the proposition that no Christian can remarry another person during the lifetime of an earlier Spouse unless previous marriage was set aside, and any subsequent marriage would be no marriage at all, and void ab initio.
Mr. Roy contended that law as promulgated by the Indian Statute was the same as the English law on the subject.
15. He submitted finally that the Court having no discretion in the matter is not called upon to determine the consequences of the decree to the children born of bigamous marriages and Section 21 of the Act dealing with children of annulled marriages had no application in the facts of the case.
16. Mr. Bhattacharya for the respondent, submitted in reply that the English doctrines and law were not applicable to native Christians which admittedly the parties are. In support of this proposition he cited a decision of this Court in Lopez v. Lopez reported in (1886) ILR 12 Cal 706 (FB). In that case a suit for restitution of conjugal rights was instituted by the wife and the husband resisted the suit, inter alia, on the ground that his marriage with the petitioner at Calcutta in 1877 was a nullity, inasmuch as she was his deceased wife's sister and thus came within the prohibited degrees under the personal law of Roman Catholics and a dispensation from the proper ecslesiastical authority was necessary to validate a 'marriage between a man and the sister of his deceased wife. It was contended therein that the marriage came within the mischief of Section 19(2) of the Act as the parties are within the prohibited de-gees of consanguinity or affinity. A Full Bench of this Court considered the gradual development of the matrimonial jurisdiction of the Courts in India and construing the relevant statute including the Indian Divorce Act held that the words 'consanguinity, whether natural or legal', also referred to relationship by adoption, a concept unknown to English law. The Court held by promulgating the Indian Divorce Act, the legislature did not intend to apply English law of divorce to all Christians in India.
17. The following passage from Court's Penal Law of India (8th Edition) at p. 3487 was also cited and relied on :
'Indian converts. -- But the case of Indian converts to Christianity stands on a different footing. Being natives of India, they are members of a community where polygamy is the rule, monogamy an exception. The fact that they are converts to Christianity does not imply any necessary religious obligation of monogamy. For, as observed by Innes, 3. a profession of Christianity does not ipso facto impose any such obligation, although doubtless the tendency of Christianity is adverse to polygamy'.
18. I have given my anxious thoughts to the respective submissions made on behalf of the parties. The specific point which arises in the case as to the interpretation of Section 19 of the Act is not free from difficulty. It is therefore necessary for this Court to consider the aspect of nullity in all its comprehensive aspects.
19. I may now refer to the relevant provisions of the Indian Divorce Act,
Section 7. 'Court to act on principles of English Divorce Court -- Subject to the provisions contained in the Act the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief:--
Section 18. Petition for decree of nullity:-- Any husband or wife may present a petition to the District Court or to the High Court praying that his or her marriage may be declared null and void.
Section 19. Grounds of decree --Such decree may be made on any of the following grounds:--
(1) That the respondent was impotent at the time of the marriage and.....
(2) That the parties are within the prohibited degrees of consanguinity.
(3) That either party was a lunatic or idiot at the time of marriage.....
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
Section 21. Children of annulled marriage. -- Where a marriage is annulled on the ground that a former husband or wife was living and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who, at the time of the marriage, was competent to contract.
Section 57. Liberty to parties to marry again. -- When six months after the date of an order of a High Court confirming the decree for a dissolution of marriage made by a District Judge have expired.
Or when six months after the date of any decree of a High Court dissolving a marriage have expired and no appeal has been presented against such decree to the High Court in its appellate jurisdiction.
Or when any such appeal has been dismissed.
Or when in the result of any such appeal any marriage is declared to be dissolved.
But not sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death; Provided that no appeal to (the Supreme Court) has been presented against any such order or decree.
When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but no sooner, it shall be lawful for the respective parties to the marriage to marry again as if the prior marriage had been dissolved by death.
20, It is significant to note that both under Sections 10 and 18 of the Indian Divorce Act it is the 'husband' or 'wife' who are alone competent to institute proceedings for divorce and nullity. It therefore appears, that a matrimonial status is conferred on them by the mere fact of solemnisation of the marriage. The expression 'wife' according to the Dictionary means a woman joined in marriage to a man. Websters New International Dictionary, Second Edition defines 'wife' inter alia to mean a woman united to a man in lawful wedlock. Thus it is clear that the legislature in its wisdom thought fit to give the status of a 'husband' and a 'wife' to such parties postulating by the said term a subsisting marriage. It appears to me that marriages which may be declared a nullity For contravening the provisions of Section 19 of the Act may be invalid but not necessarily void ab initio.
21. The other aspect of the matter is that in Section 19 of the Indian Divorce Act it is provided that where the stated grounds exist the Court 'may' grant a decree declaring the marriage to be a nullity. The legislature did not use the directory or mandatory word 'shall' in the section and in my opinion the discretion of Court to grant a decree for divorce and/or to declare a marriage to be a nullity remains unfettered. It is significant that the selfsame expression 'may' has been incorporated in Section 10 of the Act, and Section 13 thereof dealing with dismissal of petitions for divorce specifically provide that in certain circumstances such a petition 'shall' be dismissed by the Court notwithstanding the grounds for divorce. It is settled! law that it is entirely in the discre-tion of the Court to grant or refuse to grant a decree for divorce or nullity.
22. Reading the provisions of the Indian Divorce Act it does not appear to the Court that the intention of the Legislature is to declare, a marriage during the subsistence of a prior marriage ipso facto void. In that case it would not have been necessary to provide for declaring such marriage null and void through proceedings in Court. Mr. P. K. Roy has relied on Lila Gupta v. Laxmi Narain reported in : 3SCR922 in support of his contentions. In that case the Supreme Court held that a marriage contracted in contravention of or violation of the proviso to Section 15 of the Hindu Marrigae Act not being in pari materia with Section 57 of the Indian Divorce Act was not void but merely invalid, and thus observed that it was not necessary to examine the correctness of the ratio of the decisions cited for the proposition that certain marriages are void ab initio under Section 57 of the Indian Divorce Act. In my opinion, the said decision does not conclude the question so far as the Indian Divorce Act is concerned. On the contrary, observations in the said judgment though made in the context of the Hindu Marriage Act appear to apply with equal force to the Indian Divorce Act. The relevant observations of the majority decision at p. 1364 are as follows: --
'It would be all the more hazardous in the case of marriage laws to treat a marriage in breach of a certain condition void even though the law does not expressly provide for it. Craies on Statute Law 6th Edition pages 263 and 264 may be referred to with advantage: 'The words in this section are negative words, and are clearly prohibitory of the marriage being had without the the prescribed requisites, but whether the marriage itself is void.....is a question of very great difficulty: It is to be recollected that there are no words in the Act rendering the marriage void and I have sought in vain for any case in which a marriage has been declared null and void unless there were words in the statute expressly, so declaring it (emphasis supplied).....From this examination of these Acts I draw two conclusions. First, that there never appears to have been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer a nullity, unless such nullity was declared in the Act. Secondly, that, viewing the successive marriage Acts, it appears that prohibi-tory words without a declaration of nullity, were not considered by the legislature to create a nullity'.
23. Pathak J. delivering a separate judgment noting the above, observed at p. 1359:--
'It is contended that the question of whether a marriage is a nullity invites particular considerations, and the ordinary norms of construction will not suffice. I find it difficult to dispute that the question of the validity of a marriage deserves an especial care, and the greatest caution must be exercised before a marriage is declared void. But I do not find it possible to admit that unless the statute specifically declares a marriage to be a nullity, it cannot be pronounced so by the courts. To my mind, the intrinsic evidence provided by the language of the statute, the context in which the provision finds place, and the object intended to be served is of equal validity.'
24. In this connection a reference may also be made to the relevant provisions of the Indian Christian Marriage Act of 1372, which provides machinery for marriages in this country between two Christians, and which Act does not declare a marriage during the existence of a former spouse to be a nullity. Section 60 of the Act provides:--
'Every marriage between Indian Christians applying for a certificate, shall.....be certified under this part if the following conditions be fulfilled, and not otherwise:--
(1) The age of the man intending to be married shall not be under 18 years and the age of the woman intending to be married shall not be under 15 years.
(2) Neither of the persons intending 10 be married shall have a wife or husband still living;
(3) In the presence of.....'
25. Section 60 of the Act further, provides for penalties under the Indian Penal Code to be imposed for false oath or declaration in procuring marriage certificates and Section 88 of the Act enacts:--
Section 88. 'Non-validation of marriages within prohibited degrees -- 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'.
The aforesaid section clearly indicates that when parties stand within the prohibited degrees of consanguinity or affinity such a marriage would be invalid. There is nothing in the Indian Christian Marriage Act to indicate that another marriage during the lifetime of a former spouse is void ipso jure and a nullity. Section 60 thereof merely enacts that unless the conditions set out therein are satisfied no certificate shall be issued, whereas the penal provisions thereafter provide for consequences of false declarations.
26. There being no direct decision on the point namely the interpretation of the words 'husband' or 'wife' and 'may' as enacted in Sections 18 and 19 of the Indian Divorce Act, the similarity and differences in the phraseologly in different marriage Acts have to be considered to determine whether a marriage which offends any of the grounds enumerated in Section 19 of the Indian Divorce Act is void de jure or ab initio. The Special Bench decision of the Nagpur High Court in my view supports the contention that Sections 10, 18 and 19 of the Indian Divorce Act are not mandatory and do not make marriages in contravention thereof void ab initio. The English Text Books and decisions cited in my view are not of much assistance in determining the scope and effect of Sections 10, 18 and 19 of the Indian Divorce Act in the modern context. The said Sections 18 and 19 of the Indian Divorce Act are not in pari materia with Section 11 of the Hindu Marriage Act and Section 24 of the Special Marriages Act, both the latter statutes enact in respect of void marriages that:--
'any marriage solemnised under the Act at the instance of any (sic) (party) thereto (as contrary to expression 'wife or 'husband' shall be null and void and may be so declared by a decree of nullity, if contravening any of the provisions of the Act', (emphasis mine).
27. In the aforesaid construction of the Indian Divorce Act, in my view the Court is empowered to exercise its discretion and the same should not be exercised in favour of the petitioner in the facts of the instant case for the following reasons:--
(a) The parties entered into the impugned marriage by voluntary consent and no fraud and or misrepresentation vitiating consent were alleged or proved;
(b) The parties having associated as husband and wife for over 21 years (i.e. since May 1955) and having three issues by such association it would be inequitable, unfair and against all accepted canons of public polity to uphold the case of the petitioner which does not appear to be bona fide;
(c) A decree declaring the marriage as a nullity would result in extreme prejudice, hardship and social ignominy to the issues of the marriage;
28. It is unfortunate that the present proceedings were caused to be instituted inviting the Court's decision in a background where the petitioner herself has not come to Court with clean hands. The reality of the situation is when she married the respondent, she was already the mother of his children and such marriage was solemnised by the free consent of parties,
29. In this connection I may refer to the following decisions:--
In Apted v. Apted and Bliss reported in 1930 P. 246 (260) it was held that the governing consideration in all esses of discretion must be the interest of the community at large in maintaining the sanctions of honest matrimony. In considering this aspect not only the interest of the children must be taken into account, but the future of the guilty party, and the chances of the parties coming together.
In Blunt v. Blunt reported in 1943 AC 517, the House of Lords laid down the following guiding principles for the exercise of judicial discretion in matrimonial matters:--
(i) the position and interest of any children of the marriage:
(iii the interest of the party with whom the petitioner has been guilty of misconduct and the prospect of future marriage;
(iii) The possibility of reconciliation between the spouses;
(iv) The interest of the petitioner and the necessity for enabling her to remarry;
(v) the interests of the community at large, judged by maintaining true balance between respect for the binding security of marriage and the social consideration which makes it contrary to public policy to maintain a union which has utterly broken down;
It has been recently pointed out in Masarati v. Masarati (1969) 1 WLR 393 that in principle the factors to be considered in the exercise of the discretion may remain constant but the weight to be attached to the individual factors may vary greatly with the passing of time.
30. This Court is of the view that as enjoined by Section 7 of the Indian Divorce Act the above principles of English Divorce Courts are attracted also to suits for a declaration of nullity and there can be no different guage for exercising the Court's discretionary powers in divorce or in suits for declaration of nullity.
31. Whatever may be the respective contention of the parties in law, and it appears to me that substantial arguments can be urged on behalf of either side. The present controversy however is concluded on facts on the evidence adduced. The petitioner has not been able to prove that at the time when she was married to the respondent a prior legal marriage between the latter and the elder sister of the petitioner was subsisting. It has been brought in evidence of the plaintiff that the respondent was originally married to one Tatini Biswas and there is no evidence to show how this marriage came to an end by 1947 when the respondent married Agenes the elder sister of the petitioner. The only evidence on record is Exbt. 'B' the marriage certificate recording the marriage between the respondent and Agnes the elder sister of the petitioner. This by itself is no evidence of the fact that the prior marriage between the respondent and Tatini Biswas came to an end by 1947. In the absence of any positive evidence the description of the respondent as a widower is of no consequence, particuarly, as in Ex. A/1 the description of widower is admitted to be an erroneous one. The case of the petitioner is that when she was married there was already a valid and subsisting marriage between her husband and her elder sister. In my view the petitioner has failed to prove and/or substantiate this case which is her only cause of action and therefore this petition must fail. Before a Court can be asked to declare a marriage to be a nullity, strict proof of a prior legal marriage is necessary and the Court cannot go by presumptions and admissions.
32. For the reasons stated above I hold that the marriage impugned in these proceedings has not been proved to he a nullity and I answer issue No. 1 in the negative.
33. In the facts and circumstances of the case and even otherwise the petitioner is not entitled to any discretionary relief in her favour. There will only be a decree for custody of the minor daughter in terms of prayer (b) of the petition. The respondent does not oppose the same. Each party to pay and bear their own costs.