JORDAN DIENGDOH Vs. SWARANJEET SINGH CHOPRA

JUDGEMENT

(1.) The wife hashed this appeal. Her E prayer to declare her marriage with the respondent a millity on the ground of impotency of the respondent was declined by the learned single judge. She was, however, granted a decree of judicial separation on the ground of cruelty.

(2.) The marriage between the parties was solemnized 'at Delhi on 14th October 1975 under the Indian Christian Marriage Act, 1872 (tor short hereinafter referred to as 'the Act'). The wife. professes the Christian religion and comes from Meghalaya. The Railway Traffic Service through a competitive examination. She Came to Delhi to join her duties in May 1975 and was residing at the Railway Rest House, New Delhi. Per chance tha partis thet at the Y. W. C A., New Delhi. They developed Friendship and got married. It is alleged that the parties could not many in the Church as the husband was not a Christian and they), therefore, decided to have a civil marriage. Though the parties got married under the Act. the wife claims that she was always under the mistaken belief that the marriage was performed under the Special Marriage Act, 1954. However, nothing turns oh this except that the wife alleges that certain mandatory requirements for the solemnization of the marriage under the. Act were not complied with which make the marriage, under the Act, as null and void. In short, she says, there was. no marriage under 'the Act, and the parties are not husband and wife.

(3.) The prevent petition has been filed under Ss. 18, 19 and 22 of the Indian Divorce Act, 1869. Under S. 18, any husband or wife may present a petition praying that his or her marriage may be declared null and void. S. 19 gives the grounds on which such a decree can be passed. S.22 deals with a decree of judicial separation on grounds like adultery, cruelty or desertion. No decree of nullity can, therefore, be granted unless there exists any one of the grounds stated in S. 19. At the time of framing of the issues in the present case, an issue was sought to be raised that the marriage officer had no jurisdiction to perform the marriage under the Act for the reason that notice of the intended marriage postulated by S. 38 of the Act did not comply with the requirements of that section, and further that the provisions of Ss. 41, 42 and 51 of the Act had been violated which were mandatory and the marriage officer was thus not competent to perform the marriage between the parties under the Act. F R. . Aggarwal, J., did not frame any such issue, and observed that such a ground would not be available under S. 18 of the Indian Divorce Act and further that Ss. 18 and 19 contemplated a marriage between the parties under the Act and that if the allegation was that there had been no valid marriage' between the parries then the relief sought would be outside the purview of S. 18 of the Indian Divorce Act. It appears, this argument was again raised at the time of the final hearing of the petition, but the learned single judge (N. N. Goswamy, J.) also declined to frame any additional issue. He relied upon s Division Bench decision of the Allahabad High Court in Mst. Titly v. Alfred Robert John (AIR 1934 All. 273) (1). A Full Bench of this court in J. F. S Eric D'Souza v. Florence Martha (AIR 1980 Delhi 275(2) has clearly stated that S. 19 of the Indian Divorce Act sets 'out the only grounds on which a marriage covered by the Act can be declared null and void. Reference may also be made. to a Full Bench decision of the Gujarat High Court in Kanku v. Shanabhai (1968) 9 Gujarat Law Reporter (511) (3). It Was held (by majority) that a petition under the Indian Divorce Act for nullity of a marriage was not maintainable on the ground that the marriage was not solemnized in accordance with S. 4 of the Act. A contention was raised that the proper forum for decision on this subject was the court of ordinary civil jurisdiction and not the special court established under the Indian Divorce Act. Bakshi, J., speaking for the majority, observed :-