The law of divorce of Christian community is governed by Indian Divorce Act, 1869

The law of divorce as far as the members of the Christian community is concerned, is governed by the provisions of the Indian Divorce Act, 1869. Section 2 of the Act provides that the courts authorised by the Act can inter alia pass decrees of nullity of marriage solemnised in India. Section 19 lays down the grounds for declaring a marriage null and void. One of the grounds is lunacy or idiosy of one of the parties to the marriage, at the time of the marriage. When parliament has enacted a law providing for dissolution and for decree of nullity of christian marriage, Eparchial Tribunals cannot adjudicate upon those matters so as to affect the civil rights of the parties to the marriage.

(1986) 3 Crimes 470 : (1986) 23 KerLJ 585

KERALA HIGH COURT

SINGLE BENCH

( Before : Sreedharan, J )

KURIAN — Appellant

Vs.

ALPHONSA AND ANOTHER — Respondent

Criminal M.C. No. 20 of 1986

Decided on : 03-06-1986

Criminal Procedure Code, 1973 (CrPC) – Section 125, Section 482
Divorce Act, 1869 – Section 19, Section 2
Cases Referred

Nanak Chand Vs. Chandra Kishore Aggarwal and Others, AIR 1970 SC 446 : (1970) CriLJ 522 : (1969) 3 SCC 802 : (1970) 1 SCC(Cri) 127 : (1970) 1 SCR 565
Counsel for Appearing Parties

Georse Varehese Kannenthanem and P. Vijaya Bhanu, for the Appellant; S.V. Balaknshna Iyer (Public Prosecutor for State) for 1st Respondent, for the Respondent

ORDER

Sreedharan, J.—The short question that arises for decision in this proceedings is whether a marriage entered into between two members following the Roman Catholic rites, solemnized by a Minister of the Roman Catholic Church will become null and void in law on account of a subsequent declaration by Eparchial Tribunal, that the marriage contracted is invalid due to defect of consent on the part of the lady on account of her mental insanity.

2. Parties to this proceedings are Roman Catholics. The marriage between them was solemnised on 9th November 1980 by a Minister belonging to the Roman Catholic Church at the Sacred Heart Church, Erumapetty. As per the case putlbrth by the wife, they lived together as husband and wife till 14th January 1981. On that day she was taken to a doctor and thereafter left at her house. The husband did not take her back. She was being neglected. Nothing was being given to her for her maintenance. She has further alleged that the husband was keeping Anr. lady as his mistress and so she is entitled to get separate maintenance. With these averments she approached the Judicial I Class Magistrate’s Court, Vadakkancherry claiming maintenance u/s 125 of the Code of Criminal Procedure. She prayed for an order directing her husband to pay monthly maintenance at the rate of Rs. 200.

3. Husband, Petitioner herein, appeared before Court and filed an objection disclaiming his liability to pay maintenance. He admitted the marriage. But contended that there was no cohabitation on account of the insanity of the lady, that they lived together only for 6 days, that on the 6th day he informed the wive’s brother of her insanity, that he came and took her to his house, that thereafter there was no contact between them, that she has sufficient means for her livelihood, that he is not possessed of any means to give maintenance to her and that he is living with Anr. lady whom he considers to be his wife.

4. In support of their respective contentions they gave evidence before the trial Court as P.W. 1 and C.P.W. 1. The husband produced Exts. D-l and D-2, two gift deeds executed by him on 3rd October 1982, by which he effected the transfer of all his properties in favour of his mother and the lady who now lives with him. After considering the entire evidence, the learned Magistrate directed the Petitioner herein to pay a sum of Rs. 100 per month to the Respondent as monthly maintenance from 4th October 1982 the date of the petition.

5. It appears that the Petitioner had filed matrimonial case No. 57/81 before the Eparchial Tribunal, Trichur for getting an order annuling the marriage. The said Tribunal found the marriage between the parties invalid due to defect of consent from the part of the Respondent (lady) due to her mental insanity by its order dated 29th October 1983. This judgment of the Tribunal appears to have been ratified by the Archdiocesan Appellate Tribunal of Ernakulam by judgment dated 8th March 1984.

6. The order of the Judicial I Class Magistrate dated 27th October 1983 was taken in revision before the Sessions Court, Trichur in Crl. R.P. No. 30/84. The Petitioner produced the copy of the judgment of the Eparchial Tribunal as ratified by the Archdiocesan Appellate Tribunal before Court and contended that in view of the decision arrived at by the ecclesiastical Court the order of the Magistrate should be cancelled. The learned Sessions Judge dissmissed the Criminal Revision Petition upholding the order directing the Petitioner to pay maintenance to the Respondent. Hence this Crl. M.C. u/s 482 of the Code of Criminal Procedure.

7. It is common case that parties are christians following the Roman Catholic rites and that the marriage between them was solemnised by a minister belonging to the Roman Catholic Church on 9th November 1980 in the Sacred Heart Church, Erumapetty in accordance with the custom and law applicable to them. Under the Canon Law the Minister who conducts the marriage has to ascertain the will of the parties to the marriage and get their concent for solemnising the same. As in the case of any other marriage, for a valid marriage under the Canon Law also the parties must express matrimonial consent. They are not even allowed to use equivalent signs when they are able to speak. Christian marriage being a sacrament administered by the contracting parties, it follows that the latter must manifest their consent in the presence of each other in such a way and at such a distance that the act can be perceived by the senses (Canon 1088). Clause 2 of this Canon expressly requires the use of words because they are the usual means of human communication. Thus as per the Canon Law, before a marriage is solemnised by the Minister, he has to take the consent of the parties to the marriage. All these formalities and ceremonies were gone through for solemnising the marriage between the Petitioner and Respondent on 9th November 1980.

8. The Petitioner had no case before the trial Court that the Respondent herein had no capacity to give consent for the marriage on account of insanity. As C.P.W.l, he had not stated before Court that the lady was a lunatic at the time of the marriage. No independent evidence was let in by him to substantiate a case that the Respondent herein was a lunatic or idiot at the time of the marriage. Therefore the learned Magistrate was perfectly justified in finding the existence of a valid marriage between the parties.

9. When the Court finds the existence of a valid marriage on account of its solemnisation by a competent Minister of the Roman Catholic Church, can that marriage be annulled by a decree or the Eparchial Court? Whatever be the jurisdiction of Eparchial Tribunal in ecclesiastical matters it cannot affect the civil rights of the parties. Rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal.

10. The law of divorce as far as the members of the Christian community is concerned, is governed by the provisions of the Indian Divorce Act, 1869. Section 2 of the Act provides that the courts authorised by the Act can inter alia pass decrees of nullity of marriage solemnised in India. Section 19 lays down the grounds for declaring a marriage null and void. One of the grounds is lunacy or idiosy of one of the parties to the marriage, at the time of the marriage. When parliament has enacted a law providing for dissolution and for decree of nullity of christian marriage, Eparchial Tribunals cannot adjudicate upon those matters so as to affect the civil rights of the parties to the marriage. In Rev. Alexander H. Mackonochie v. The Hon. Lord Penzance and John Martin Law Reports 1880 AC 24, Lord Blackburn observed:

I think that there is authority for saying that the temporal Court, proceeding in prohibition to restrain excess of jurisdiction in the Court of Ecclesiastical, is not bound by a decision of even the highest Court of Appeal in ecclesiastical matters.

11. Section 125 of the Code of Criminal Procedure is applicable to all persons irrespective of the case or creed to which they belong. Personal law cannot over-ride the provisions contained in Section 125. The intention of the Parliament in enacting the ‘ said provision has to be given effect to and the personal law necessarily has to yield. As observed by their Lordships of the Supreme Court in Nanak Chand Vs. Chandra Kishore Aggarwal and Others, .

The provisions of Section 125 of the Code are applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.

12. The marriage between the Petitioner and the Respondent was solemnised in accordance with the custom and the religious rites of the community to which they belong. It is a legal marriage. Such a legal marriage has not been declared null and void by any competent Court in accordance with the law laid down by Parliament. Therefore all the legal consequences of the said valid marriage must be recognised by the Court. The decision of the Eparchial Tribunal cannot affect the legal rights and obligations of the parties to the said marriage.

13. The Petitioner admits that he is staying with Anr. lady by name Dolly. The evidence before Court prove beyond doubt that the Petitioner has got sufficient means to maintain the counter Petitioner. Exts. D-1 and D-2 were executed by the Petitioner with ulterior motive to see whether the rights of the Respondent could be defeated. The courts below have directed the Petitioner to pay a sum of Rs. 100 only per month to the Respondent for her maintenance. Considering the status and the financial position of the parties the said amount cannot be stated to be excessive.

In view of what has been stated above, I find no ground to interfere with the orders passed by the courts below.

The result, therefore is, this petition fails and it is accordingly dismissed.