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TMI Blog1994 (7) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent in her wedlock with the petitioner and the child is now with its mother, the respondent. 4. The petition was stoutly resisted and the respondent described the allegation regarding incestuous adultery as a cruel story shamlessly concocted by the petitioner. However, respondent admitted that she was involved in a previous marriage, but contended that the said marriage was annulled by the order of the Ecclesiastical Tribunal (or Church Court as it is referred to at times). According to the respondent, the fact of her previous marriage was made known to the petitioner and he agreed to marry the respondent with that knowledge. 5. Learned District Judge did not conduct any enquiry. He took the view that "on the admitted pleadings of the parties it is possible to dispose of the Original Petition without posting the case for evidence." As the respondent admitted the earlier marriage, learned District Judge found that in the absence of a decree passed by the civil court in the manner provided in the Indian Divorce Act, 1869 (for short 'the Divorce Act') the former marriage continued in spite of the annulment order passed by the Ecclesiastical Tribunal. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce Act is not available. He further contended that due weight shall be given by the Court to the personal law of the parties regarding marriage and the order of the Ecclesiastical Tribunal should be treated as sufficient to end the former marriage. 9. In support of the contention Shri Mathai M. Paikeday invited our attention to the judgment of a learned single Judge of this Court (Sankaran Nair, J.) in Leelamma v. Dilip Kumar, (1992) 1 Ker LT 651 : (AIR 1993 Ker 57) learned single Judge did not hold that Canon Law would supercede the statutory law regarding the marriage or any other matter. On the other hand, learned Judge has pointed out, in clear terms, that "in the absence of statutory law Canon Law governs members of the community". A Division Bench of this. Court (P. C. Balakrishna Menon, J. (as he then was) and K. G. Balakrishnan, J.) has held in Jose v. Alice, (1988)i 2 Ker LT 890 : (1989 Cri LJ 1527) that "marriage between the parties creates civil rights and the ecclesiastical tribunals have no jurisdiction to annul marriages involving the civil rights of parties" and concluded that "a Christian marriage can be declared null and void only by a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts and to a certain extent the District Court in relation to the territorial limits. 14. Marriage for Christians is not a contract, but a "sacrament." From the theological point of view, a sacrament is based on the faith that it was instituted by Jesus Christ and entrusted to the Church for the purpose of contributing to the manifestation of ecclesial communian with God (vide A Text and Commentary on the Canon Law by Geoffrey Chapman). All the same, from the practical point of view, a marriage brings new status to the parties as husband and wife and the new status stands recognised by all concerned. As adjunct to it mutual rights and obligations sprout therefrom and they transcend to the realm of civil rights. The parties eventually become the parents of the children born to them and the children become entitled to inheritance etc. Acquisition of this legal status by the parties to a marriage is protected by civil law. A marriage may be solemnised according to the personal law of the parties, or according to custom, or according to the provisions of an enactment. Once the marriage is over, the legal status acquired thereby is legally recognized and thereafter it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... null and void. Some grounds are those covered in the Divorce Act also. But some other grounds are special to the Canon Law. They are the following: Under Canon Law, any marriage entered into by those who are below the prescribed age limit is void (CCEO 800). Marriage contracted between a Christian and a non-christian is void (CCEO 803). Marriage of those in Holy Orders (Diaconate and Priesthood) and those who are bound by a public and perpetual vow of chastity in a religious institute is void (CCEO 804 and CCEO 805). Similarly, marriage between those who are under spiritual relationship is also void (CCEO 811). It must be remembered that none of those grounds is regarded as a ground to nullify the marriage under the Divorce Act. 18. Canon Lau (or personal law of Christians) can have theological or ecclesiastical implications to the parties. But after the Divorce Act came into force a dissolution or annulment granted under such personal law cannot have any legal impact as statute has provided a different procedure and a different code for divorce or annulment. It may be that a decree of divorce or annulment granted by a civil Court cannot compel the ecclesiastical authorities to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; to show that the husband professed Christian faith. Hence the learned Judge took the view that wife's consent was obtained by fraud. 21. To "profess" Christian faith is not analogus to "practice" Christian faith. The word "profess" means, making a declaration or pronouncement that the person concerned has faith in the Christian tenets. Even in Article 25 of the Constitution wherein right to freedom of religion is envisaged the word "profess" is used as having a different connotation from the word "practice". If a person has openly declared that he believed in Christian faith, such person cannot be held guilty of fraud merely because he was not strictly practising doctrinal attributes of a church. Sacerdotal controversies existing as between different denominations of Christian religion are so nice and sometimes involving so abstract nuances that it would be pedantic to depict one who failed to follow all such doctrinal nuances as a heretic and thereby to hold that he committed matrimonial fraud. If the scope of the concept of "fraud" in matrimonial causes is given such a loosely elastic construction, many a marriag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s envisaged in the Divorce Act unless it is in respect of a factor vital to the marriage alliance itself. 25. We are of the view that legal position has been correctly stated in Moore v. Valsa, (1991) 2 Ker LT 504. The observations of Sankaran Nair, J. in Leelamma v. Dilip Kumar,(1992) 1 Ker LT 65I (652) : (AIR 1993 Kerala 57) to the contrary cannot be accepted as the correct exposition of law in this regard. According to us, the observation of Sankaran Nair, J. in the aforesaid decision that the marriage is liable to be declared null and void unless the consent signified is a consent recognised in personal law or Canon Law is too broad a proposition for approval. 26. In this context we have to refer to another recent decision rendered by Rama-krishnan, J. in Sujatha v. Jose Augustine, (1994) 2 Ker LT 4. Learned single Judge has held that "a marriage between a baptised Christian and a person not baptised is void". The said decision was based on Canon 1086 of Canon Law. But in our view a marriage between baptised Christian and a person not baptised is not a nullity under the Divorce Act and therefore cannot be declared as void under the provisions of the Divorce Act. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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