Lakshmi Sanyal Vs. Sachit Kumar Dhar
[1972] INSC 211 (8 September 1972)
GROVER, A.N.
GROVER, A.N.
BEG, M. HAMEEDULLAH MUKHERJEA, B.K.
CITATION: 1972 AIR 2667 1973 SCR (2) 122
ACT:
Marriage-Indian Christian Marriage Act, 1872
(15 of 1872)Canon Law--Parties to marriage professing Roman Catholic faith
Solemenisation of marriage by person competent under s. 5(1)Objection to
marriage on ground of lack of consent of parent or guardian as required under
s. 19-Applicability of s. 19 to marriage solemnised by person in category 1 of
section 5--Marriage within prohibited degree of consanguinity-Dispensation by
appropriate under canon law --Availability of ground No. 2 in section 19.
HEADNOTE:
The appellant filed a suit for a declaration
that her marriage with the respondent was null and void and for other reliefs.
The parties professed the Roman Catholic faith.
The marriage was solemnised by a Minister of
the Roman Catholic Church who had received episcopal ordination and was
competent to solemnise the marriage under sub-s. (1) of s. 5 of the Indian
Christian Marriage Act, 1872. The appellant claimed that she was a minor at the
time the marriage was solemnised and the consent of her father or her guardian
was not taken nor did she give her own consent freely to the marriage. Further,
the marriage was void because the parties were within the prohibited degree of
consanguinity. The High Court held that from the standpoint of Canon Law if the
Roman Catholic church the objection to the validity of the marriage on the
ground of lack of consent could not be sustained. The High Court expressed the
view that the consent of the parents was not necessary as' required under s. 19
of the Indian Christian Marriage Act since the marriage was solemnised by a
person failing under s. 5(1), nor was there any provision in the India Divorce
Act. 1869 which rendered a marriage null and void on the ground of minority of
a party. On the question of the marriage being within the prohibited degree of
consanguinity it was found that since the consanguinity between the parties was
of the second degree it was certainly an impediment in the way of the marriage
under the Roman Catholic law; But the impediment could be removed by
dispensation which was granted by the competent authorities of the church; for
that reason the marriage could not be held to be null and void.
Dismissing the appeal,
HELD : (i) The High Court was right in
holding that the provisions of s. 19 of the Christian Marriage Act was not
applicable to the present case since the marriage was solemnised by a person
falling tinder s. 5(1).
The making of separate provisions in Parts
III, V and VI of the Indian Christian Marriage Act relating to marriage of
minors and the requirement of consent of the parents or the guardian shows that
each part is meant to be self--contained. The categories of persons covered by
those parts and the provisions appearing therein cannot be applied to marriages
solemnised by persons falling in categories and 11 mentioned in section 5.In
these two categories a person who can solemnize the marriage cando so only
according to the rules. rites, ceremonies and customs of the particular church
to which the Minister belongs.
123 In other words, if a marriage has to be
solemnised by a Minister belonging to the Roman Catholic Church which fall
within category 1, he is bound to follow only the rules, rites and ceremonies
and customs of the Church to which he belongs and it is not possible to apply
the provisions of Part III to him. Part III only applies to Ministers of
Religion licensed under the Act., Section 19 could not therefore, be applicable
to the marriage of the appellant and the respondent which was solemnized by a
person in category 1 of section 5. [128G-129B] Rev. Father Caussavel v. Rev.
Saure, I.L.R. 19 Mad. 273, referred to.
There is no _provision in the Canon Law which
contains a prohibition against the marriage of a minor in the absence of the
consent of his or her parents It appears that under Canon Law so long as a
minor has reached the age of capacity to contract the marriage can be
solemnized and the lack or absence of consent of the parents or guardian will
not invalidate the marriage. [130B-C] (ii)Once dispensation is granted by the
appropriate authorities the parties cannot be regarded under the Canon Law as
being within the prohibited degrees with the result that ground No. 2 in s. 19
cannot be availed of. The parties, at the time of their marriage, professed
Roman Catholic religion and the question of capacity to marry and impediments
in the way of marriage would have to be resolved by referring to their personal
law. That, for the purpose of deciding the validity of the marriage would be
the law of the Roman Catholic Church, namely, the Canon Law of that Church. If
the parties are related by consanguinity in the secon d degree, that per se, is
an impediment to marriage:
but, under the Canon Law itself it is
dispensable and can be removed by dispensation. [132H] V.H. Lopez v R. J.
Lopez, I.L.R. 12 Cal. 706, H. A. Lucas v. Theodoras Lucas, I.L.R. 32 Cal. 187
and Peter Philip Saldanha v. Anne Grace SaLdanha, I.L.R. 54 Bom. 288, Bouscaren
on Canon raw, Manual of Canon Law by Fernando Della Rocca, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 8 (N) of 1971.
Appeal by special leave from the judgment and
order dated July 18, 1969 of the Calcutta High Court from Original Decree No.
115 of 1968.
Vidya DharTilak and K. Rajendra Chowdhry, for
the appellant.
The respondent appeared in person.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Calcutta
High Court arising out of a matrimonial suit No. 17 of 1966 filed by the
appellant against the respondent for a decree declaring that the marriage
between the parties was null and void and asking for custody and care of the
children. alimony pendente life permanent maintenance and other reliefs.
12 4 The facts may first be stated. The
appellant and the respondent are close relations their mothers being real
sisters. It appears that prior to January 30, 1960 they had sexual relations as
a result of which the appellant became enciente (pregnant). The respondent who
was originally a Hindu had got converted to Christianity and professed the
Roman Catholic faith. The appellant who was also a Hindu got converted to that
faith and was baptised on January 29, 1960. On January 30, 1960 one Father
Antoine solemnised the marriage of the parties at the Church of St. Ignatius,
Calcutta. On May 10, 1960 the first child, a daughter, was born to the
appellant. She gave birth to a second child, also a daughter, in October 1961.
It would appear that the appellant left the home of the respondent in the year
1965 and the action out of which the appeal has arisen was filed in July 1966
on the original side of the High Court. It was dismissed by Mr. Justice Ghose
and the appeal under the Letters Patent was also dismissed by the Division
Bench.
In the petition a number of allegations were
made relating to the conduct of the respondent. It was alleged, inter alia,
that it was under duress, intimidation and undue influence that the sexual
relationship started between the appellant and the respondent which ultimately
resulted in the appellant conceiving a child. The conversion to Christianity as
also the performance of the ceremony of marriage were all attributed to fraud,
coercion and undue influence practised by the respondent. It was claimed that
the appellant was a minor at the time the marriage was solemnised and the
consent of her father or her guardian was not taken nor did she give her own
consent freely to the marriage. Further the marriage was void because the
parties were within the prohibited degree of consanguinity. All these
allegations were denied by the respondent. He gave his own version as to how
the intimate relationship between the parties came to be developed and how the
marriage was ultimately solemnised.
The learned trial judge came to the
conclusion that the appellant and the respondent fell in love with each other
which led to their marriage. He did not accept the case of the appellant (hat
any fraud, coercion or undue influence had been practised or employed by the
respondent or that Father Antoine had been guilty of giving fraudulent advice
to the appellant. It was further held that the, marriage had been solemnised by
the proper priest after a dispensation had been obtained from the authorities
of the Roman Catholic Church removing the impediment of consanguinity. It does
not appear from the judgment that the point relating to invalidity of the
marriage on account of absence of consent of the father or the guardian of the
appel125 lant was argued or decided by the, learned trial judge. The Division
Bench endorsed the view of the trial judge about the circumstances in which the
marriage came to be solemnised between the parties. The question of the effect
of the minority of the appellant and the lack of consent of her father or
guardian was allowed to be raised and after referring to the Canon Law of the
Romen Catholic Church it was held that from the standpoint of that law the
objection to the validity of the marriage oil the ground of lack of consent
could not be sustained. The High Court expressed the view that in the present
case the consent of the parents was not necessary as required under s. 19 of
the Indian Christian Marriage Act, 1872, nor was there any provision in the Indian
Divorce Act 1869 which rendered a marriage null and void on the ground of
minority of a party. On the question of the marriage being within the
prohibited degree of consanguinity it was found that since the consanguinity
between the parties was of the second degree it was certainly an impediment in
the way of marriage under the Roman Catholic Law. But the impediment could be
removed by dispensation which was granted by the competent authorities of the
Church. For that reason the marriage could not be held to be invalid or null
and void.
Learned counsel for the appellant has sought
to raise a number of points but ultimately the only contentions which have been
seriously pressed and which require decision are confined to two matters. The
first is whether the marriage was invalid and void because the appellant was a
minor at the time the marriage was solemnised and admittedly the consent of her
father or guardian had not been taken. The second is that the parties were
within the prohibited degree of consanguinity and therefore under s. 19 of the
Divorce Act a decree declaring that the marriage was null and void ought to
have been granted.
The Indian Divorce Act 1869 was enacted to
amend the law relating to divorce and matrimonial causes of persons professing
the Christian religion. Section 18 provides that any husband or wife may
present a petition to the District Court or the High Court praying that his or
her marriage may be declared null and void. Section 19 says that such a decree
may be made on any of the four grounds. Ground No. 2 is that the parties are
within the prohibited degree of consanguinity (whether natural or legal) or
affinity. The other Act with which we are concerned is the Indian Christian
Marriage Act 1872 (Act 15 of 1872) which was enacted to consolidate and amend
the law relating to the solemnization in India of the marriages of persons
professing the Christian religion. Section 3 contains the interpretation 126
clause. "Minor" is defined to mean a person who has not completed the
age of twenty-one years and who is not a widower or a widow. Provisions have
been made in Parts 111, V and VI in respect of those marriages where one or
both of the parties happen to be minors. In Part III the marginal heading of
which is "Marriages solemnized by Ministers of Religion licensed under
this Act", s. 19 lays down that the father, if living, of a minor or if he
be dead, his guardian and if there be no guardian then the mother of the minor
may give consent to the minor's marriage. Such consent is required unless no
person authorised to give the same be resident in India. It has been provided
in ss. 20, 21 and 22 how the person whose consent to the marriage is required
under s. 19 can prohibit the issue of the certificate by any Minister and what
the Minister has to do if such a notice is issued prohibiting the marriage.
Part V contains provisions relating to marriages solemnized by or in the
presence of a Marriage Registrar. Section 44 therein applies the provisions of
s. 19 to every marriage under that Part, either of the parties to which is a
minor. Any person whose consent to such marriage would be required can enter a
protest in the manner prescribed. When such protest has been entered no
certificate shall be issued until the Marriage Registrar has examined into the
matter and is satisfied that the certificate should be issued. Part VI relates
to marriage of Indian Christians which can be certified under that Part on fulfillment
of the conditions given in s. 60. The first condition is that the age of the
man intending to be married shall not be under 1 8 years and the age of the
woman' intending to be married shall not be under 15 years. Certain penalties
are prescribed in Part VII. Under s. 68 whoever not being authorised to
solemnize a marriage does so in the absence of a Marriage Registrar shall be
punished with imprisonment which may extend to 10 years etc. and shall also be
liable to fine. Under s. 70 any Minister of Religion solemnizing a marriage
with a minor under Part III without notice or within 14 days after notice
knowingly and wail fully is to be punished with imprisonment for a term which
may extend to 3 years and shall also be liable to fine. Section 71 gives the
punishments for a Marriage Registrar who among others commits the offence of
solemnizing the marriage when one of the parties is a minor before the
expiration of 14 days after the receipt of notice of such marriage or without
doing the other acts mentioned in subs. (3) of that section. Section 77 to the
extent it is material may be reproduced S.77 "Whenever any marriage has
been solemnized in accordance with the provisions of sections 4 & 5 it
shall not be void merely on account of any irre127 gularity in respect of any
of the following matters, namely, :
(1) any statement made in regard to the
dwelling of the persons married, or to the consent of any person whose consent
to such marriage is required by law :
(2).........................." It has
been necessary to set out in some detail the provisions of the Indian Christian
Marriage Act because it has been strenuously argued on behalf of the appellant
that since the consent of her father was not taken under s. 19 when she was
admittedly a minor the marriage was null and void. It has been pointed out that
even though the heading of Part III in which s. 19 occurs confines the
provisions therein to marriages solemnized by the Minister of Religion licensed
under the Act, s. 19 is of general application and whenever a Christian
marriage is solemnized by any priest or Minister its provisions would be
applicable. Emphasis has also laen laid on the fact that in ss. 12, 13 and 14
the words "Minister of Religion" have been specifically used whereas
they do not appear in ss. 15, 18, 19, 20, 21. and
22. Indeed in s. 20 the word used is
"any Minister" and this section empowers the person whose consent to
a marriage is required under s. 19 to prohibit the issue of a certificate by
any Minister. Section 21 uses words "Such Minister" which it is
suggested has reference to any Minister in s. 20.
We may now deal with the scheme of s. 5 which
read with s. 4 is the most material section and all the other provisions which
have been made in the Act, particularly, in the different Parts have to be read
in the light of s. 5.
Section 5 gives five categories of persons by
whom marriages of Christians can be solemnized in India. The first is of any
person who has received episcopal ordination. The only condition laid down is
that he must solemnize the marriage according to the rules, rites, ceremonies
and customs of the Church of which he is the Minister. It may be mentioned that
in the present case the marriage was solemnized by Father Antoine who was a
Minister of Roman Catholic Church and about whom it has not been disputed that
he had received episcopal ordination and was competent to solemnize the
marriage under sub-s. (1) of s. 5. The second category is of Clergyman of the
Church of Scotland who has to solemnize the marriage according to the rules,
rites, ceremonies and customs of that Church. The next three categories,
namely, 3, 4 and 5 are of those who have been licensed or appointed under the
Act. In category 3 fall Ministers of Religion licensed under the Act to
solemnize the marriages. Category 4 128 consists of persons licensed under the
Act to grant the certificate of marriage between the Indian Christians. Part
III contains provisions relating to marriages solemnized by Ministers of
Religion licensed under the Act, namely, category 3. Part IV directs
registration of marriages solemnized by a Minister of Religion. It points out
how it is to be done by the Clergyman of England, Rome and Scotland. It also
deals with the case of a marriage solemnized by a person who had received
Episcopal ordination but who is not a Clergyman of the Church of England, Rome
or Scotland. Part V relates to marriages solemnied by or in the presence. of
Marriage Registrar which obviously pertains to category 4. It is noteworthy
that so far as the last three categories are concerned express and elaborate
provisions have been made when a minor is to be married. In cases of marriages
solemnized by persons 'belonging to categories 1 and 4 the provisions are
intended to ensure that the consent of the parents or the guardian should be
obtained when a minor is going to get married. A minor would mean according to
the definition given in s. 3, a person who has not completed the age of twenty
one years.
With regard to a marriage solemnized by the
person in category 5 dealt with in Part VI it is provided by s. 61 (as stated
before) that one of the conditions to be fulfilled is that 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. According to 'the proviso
to that section no marriage can be certified under Part VI when either of the
parties intending to be married has not completed his or her 18th year unless
such consent as is mentioned in s. 19 has been given to the intended marriage
or unless it appears that there is no person living or authorised to give such
consent. It is apparent that in s. 60 the age of minority when consent of the
father or the guardian is necessary is 18 years whereas in ss. 19 and 44
appearing in Parts III and V a person who has not completed the age of 21 years
has been treated as a minor in whose case consent of the parents or the
guardian is necessary.
The making of separate provisions in Parts
III, V and VI relating to marriage of minors and the requirement of consent of
the parents or the guardian shows that each Part is meant to be self contained.
The categories of persons covered by those Parts and the provisions appearing
therein cannot be applied to marriages solemnized by persons falling in
categories I and II. Moreover in the aforesaid 2 categories (1 and 2) a person
who can solemnize the carriage can do so only according to the rules, rites
ceremonies and customs of the particular Church to which the Minister or the
Clergyman belongs. In other words if a marriage has to be solemnized by a
Minister belonging to the Roman Catholic Church which will fall within category
the is bound to follow only the rules, rites and ceremonies and customs of the
Church to which he belongs and it is not possible to apply the provisions 129
of Part III to him. It may be mentioned that after a careful analysis of the
scheme of the Indian Christian Marriage Act it was held in Rev. Father
Caussavel v. Rev.Saurez(1) that Part III only applies to Ministers of Religion
licensed under the Act. Section 19 could not, therefore, be applicable to the
marriage of the appellant and the respondent which was solemnized by a person
in category 1 of s. 5. Moreover as demonstrated by s. 60 there seems to be no
uniform provision that consent must be obtained of the parents or the guardian
when a person is above 18 years of age but below 21. Section 60 clearly
recognises the fact that if a marriage is to be certified under Part VI the
consent would be required only if either of the parties has not completed his
or her 18th year. Part VII which deals with penalties shows that persons
solemnizing a marriage without authority or not in accordance with what is
provided are liable to severe punishment by way of imprisonment as well as
fine. Thus every care is taken to ensure that the solemnization of the marriage
as provided by s. 5 may be done by persons who were authorised to do so and in
accordance with the rules and customs of the Church to which such persons
belong under categories 1 and 2 and in accordance with the provisions of the
Act by the Minister of Religion or the Marriage Registrar or a person licensed
under the Act falling in categories 3, 4 and 5 as the case may be. Even with
regard to solemnization of marriage to which ss. 19 44 and 60 are applicable
there is no provision that such marriages would be null and void.
All that happens is that if the penal
provisions are breached a person solemnizing a particular marriage will be
liable to punishment. Section 77 says that whenever any marriage has been
solemnized in accordance with the provisions of ss. 4 and 5 it shall not be
void merely on account of the irregularity in respect of the five matters set
out therein, one of which is contained in sub-section (1) and which relates ,to
the consent of any person whose consent to such marriage is required by law. It
has been argued on behalf of the appellant that s. 77 presupposes that a
marriage would be void if consent to such marriage as required by law has not
been obtained and it is only a mere irregularity in respect of it which will
not render it void.
In the view that we have expressed it is
unnecessary to consider the true scope and ambit of s. 77. In our judgment the
High Court was right in holding that the provisions of s. 19 of the Christian
Marriage Act will not be applicable to the present case since it was solemnized
by a person falling under s. 5(1) and we have to examine the Canon Law for
determining the true position about the solemnization of a marriage of a person
who is below 21 years of age.
(1) T.L.R. 19 Mad. 273.
10-L348 Sup cl /73 130 Under Canon 88 of the
Roman Catholic Church a person who has completed 21st year of age is a major;
under that age, a minor. Canon 1067 lays down that a man before completing his
16th year and a girl before completing her 14th year cannot contract a valid
marriage. Canon 1934 enjoins that a pastor must senously dissuade minor sons
and daughter from contracting marriage without the knowledge or against the
reasonable wishes of their parents. There is no provision in the Canon Law
which contains a prohibition against the marriage of a minor in the absence of the
consent of his or her parents. it appears that under Canon Law so long as a
minor has reached the age of capacity to contract which, as stated before, is
16 years in case of a man and 14 years in case of a girl the marriage can be
solemnized and the lack or absence of consent of the parents or guardian will
not invalidate the marriage. It is wholly unnecessary to refer to the English
law on the subject. There the point is governed mainly by the provisions
contained in the Marriage Act 1949 which has no applicability here. For all the
reasons mentioned before we are in entire agreement with the view expressed by
the High Court that the marriage of the appellant with the respondent could not
be held to be null and void on the ground that since the appellant was below 21
years of age the consent of her father was not obtained.
The second point relates to the effect of the
marriage between the parties within the prohibited degree of consanguinity. The
Indian Divorce Act or the Indian Christian Marriage Act do not give any
definition of what the prohibited degrees are. It ha.,, been urged on behalf of
the appellant that assuming the Canon Law had to be looked at for finding the
prohibited degrees it has been found that the appellant and the respondent
being children of real sisters fell within those degrees. Section 19 of the
Divorce Act lays down in categorical terms that a marriage may be declared null
and void, inter alia, where the parties are within the, prohibited degree of
consanguinity. There is no exception contained in ground No. 2 in the said section.
It is not open, it has been 'contended, to the courts to travel beyond s. 19 or
the provisions of the Divorce Act to discover whether such an impediment which
renders the marriage null and void atinitial can be removed by a dispensation
granted by the competent authority of the Roman Catholic Church. The High Court
followed the decision of a full bench of the Calcutta High Court in V. H. Lopez
v. R. J. Lopez(1) in which it was held that the prohibited degrees for the
purpose of the marriage were those which were prohibited by the customary law
of the Church to which the parties belonged. in that case also the parties were
Roman Catholic and the ceremony of marriage was solemnized by the (1) I.L R.12
Cal. 706.
131 Clergyman competent to solemnize the marriage.
Although no evidence of dispensation having been obtained to remove the
obstacle to the marriage on the ground of affinity which was the case there had
been produced the court presumed that such a dispensation had been duly
obtained from the fact that the marriage was solemnized by a Clergyman of the
Roman Catholic Church who was competent to do so. According to the decision in
H. A. Lucas v. Theodoras Lucas(1) the courts in India win not disallow a Roman
Catholic of Indian domicile who had received the necessary dispensation from
marrying his deceased wife's sister who by the law of her own Church, which was
Armenian in that case, may be incapable of contracting the marriage. The
husband's capacity rendered the marriage valid in law. The effect of s. 88 of
the Indian Christian Marriage Act was considered in Peter Philip Saldanha v.
Anne Grace Saldanha(2). That section provides that nothing in the 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. In the Bombay case the parties
were Roman Catholic of Goan domicile and their marriage had been solemnized
before the Registrar of Marriages in Bombay. A question arose whether such a
marriage was forbidden by the personal law of the parties as being contrary to
the Canons of the Church of Rome. After examining the scheme of the Indian
Christian Marriage Act Blackwell J., who delivered the judgment of the High
Court said that the whole Act deals only with the ceremony of marriage. The
argument that Parts III, IV and V involved the exclusion of Roman Catholics
from Part V of the Act was repelled on the ground that if that had been
intended the legislature would have said so. It was observed that the
expression "personal law" in s. 88 refers to the capacity to contract
and impediments and not the forms of solemnization. In the present case both
the parties are domiciled in India and at the time of the solemnization of
their marriage they professed Roman Catholic religion. The question of capacity
to marry and impediments in the way of marriage would have to be resolved by
referring to their personal law. That, for the purpose of deciding the validity
of the marriage, would be the law of the Roman Catholic Church,namely, the
Canon law of that Church.
In the well known work of Bouscaron on Canon
Law, Part V relates to marriage. According to Canon 1012 it is impossible for a
valid contract of marriage between baptized persons to exist " without
being by that very fact a sacrament". it has been described as a sacred
contract.
Canon 1020 provides that a pastor who has the
right to assist at the marriage shall carefully (1) I.L.R. 32 Cal. 187.
(2) I.L.R. 54 Bom. 288.
132 investigate whether there is any obstacle
to the celebration of the marriage. Among other things he must ask both the man
and the woman broadly whether they are under any impediment, Canon 1035 lays
down that all persons who are not prohibited by law can contract marriage. Any
impediment, it is stated in this book at page 492, may be broadly defined as a
circumstance which renders a marriage either illicit or invalid. This is
followed by classifications of impediments. Number 7 among them is dispensable
or non-dispensable, according as it can or cannot be removed by dispensation.
In Canon 1040 which relates to dispensations it is stated at page 499 that a
dispensation is a relaxation of law in a particular case.
Canon 1076 provides that in the direct line
of consanguinity, marriage is invalid between all the ancestors and
descendants. In the collateral line, it is invalid up to the third degree. It
is common ground that the consanguinity between the parties to the marriage in
the present case is of the second degree and Therefore it was an impediment in
the way of the marriage under the Canon law.
It is, however, not disputed that
dispensation can be granted in case of consanguinity in the second degree (vide
Canon 1052) by the appropriate authorities of the Church. The only case where
dispensation cannot be granted is where the impediment is of the first degree which
is an absolute bar Canons 80 to 86 deal with dispensations. The general
principle underlying dispensation is "He who makes the law can dispense
from the law; as can also his successor or superior and any person to whom any
of these may give the faculty". In Manual of Canon Law by Fernando Della
Rocca of the University of Rome, it is stated at page 61 that the obligation of
observing the law ceases by reason of exemption properly so called obtained by
privilege or dispensation.
The question is whether after dispensation
has been granted by the competent authority of the Roman Catholic Church the
parties who are within the prohibited degree of consanguinity can still be
regarded as within those degrees.
The prohibition in the matter of marriage
between the parties on the ground of consanguinity is itself created by the
Canon Law so far as the Roman Catholics are concerned.
If the parties are related by consanguinity
in the second degree that per se is an impediment to marriage but under the
Canon Law itself it is dispensable and can be removed by dispensation. After
dispensation it cannot be said that under the Canon Law any impediment or
prohibition exists.
The parties will, therefore, not be within
the prohibited degree of consanguinity. Ground No. 2 in s. 19 of the Indian
Divorce Act will, in these circumstances, not be applicable. The argument on
behalf of the appellant that ground No. 2 in s. 19 133 does not contemplate or
envisage the removal of the prohibition by a particular authority doing a
particular act, namely, dispensation cannot be accepted. Since the prohibited
degrees are not indicated in the Indian Divorce Act and it is the Canon Law to
which one has to turn in cases where the parties are Roman Catholics, it is to
the provisions of that law that resort must be had for discovering whether the
parties at the time of solemnization of the marriage were within the prohibited
degree of consanguinity. In our judgment once dispensation is granted by the
appropriate authorities the parties cannot be regarded under the Canon law as
being within the prohibited degrees with the result that ground No. 2 in s. 19
cannot be availed of. As a matter of fact in V. H. Lopez v. E. J. Lopez(1) it
was laid down as long ago as the year 1885 A.D. that the prohibited degrees
mentioned in s. 19 of the Indian Divorce Act did not necessarily mean the
degrees prohibited by the Law of England. For finding out prohibited degrees it
was the customary law of the class to which the parties belonged. In that case
the law of the Roman Catholic Church was applied because the par-ties belonged
to that Church.
It was further held that where a man and a
woman intended to become husband and wife and a ceremony of marriage was
performed between them by the Clergyman competent to perform a valid marriage
the presumption in favour of everything necessary to give validity to such a
marriage was one of very exceptional strength and unless rebutted by evidence
strong distinct, satisfactory and conclusive must prevail.
In the subsequent decision H. A. Lucas v.
Theodore Lucas(1) the earlier decision in Lopez v. Lopez(1) was referred to and
followed. Our attention has not been drawn by the learned counsel for the
appellant to any contrary decision and we consider that the law was correctly
enunciated in Lonez v. Lopez(1) on the effect of dispensation which held the
field for all these years on the question that once dispensation has been
obtained from the appropriate authorities of the Roman Catholic Church a
marriage between the parties who are within the prohibited degrees of
consanguinity is not null and void and no decree for nullify can be granted
under s. 19 of the Indian Divorce Act in such cases.
For the above reasons the appeal fail-; and
it is dismissed.
The parties are left to bear their own costs
in this Court.
K.B.N.
(1) I.L.R. 12 Cal. 706.
Appeal dismissed.
(2) I.L.R. 32 Cal. 187.
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