JOSE Vs. ALICE & ANOTHER

JUDGEMENT

(1.) THE petitioner Jose and the 1st respondent Alice both Roman Catholic Christians -were married according to their religious rites on 15 -1 -1981 in the Santhipuram Church. The marriage was solemnized by a minister, of the Roman Catholic Church according to the rules, rites, ceremonies and customs of the church. It is not disputed that the minister had received episcopal ordination and was competent to solemnize the marriage under sub -section (1) of sec. 5 of the Indian Christian Marriage Act, 1872. After, marriage the couple resided in the house of the petitioner for 21/2 months. During the course of their stay together the petitioner suspected the chastity of the wife. According to him she was pregnant even at the time of the marriage. The pregnancy was terminated at the instance of the petitioner and the respondent wife was left at her parents' house. The petitioner thereafter filed an application before the Arch diocesan Tribunal, Ernakulam to declare the marriage as null and void and the Tribunal by Ext. D1 decree granted a declaration as prayed for. The matter was taken in appeal before the Eparchial Tribunal, Trichur and as per its order Ext. D2 the decision of the Archdiocesan Tribunal declaring the marriage as null and void was confirmed. The respondent thereafter filed a petition under sec. 125(1) of the Criminal Procedure Code in the court of the Chief Judicial Magistrate, Trichur against the petitioner for maintenance. Overruling the contention of the petitioner that the marriage is null and void, and it has been so declared, by the ecclesiastical tribunals, the learned Magistrate ordered the petitioner to pay maintenance at the rate of Rs. 200/ - per month from the date of the petition. The decision of the Magistrate was confirmed in revision by the learned Sessions Judge. The present petition is under sec. 482 Crl. P.C. to quash the decision of the Magistrate and Sessions Court directing the petitioner to pay maintenance to the respondent. According to the petitioner he was not aware of the pregnancy of the respondent on the date of the marriage and his consent for the marriage was obtained by fraud in withholding such a vital information. It is for that reason that the petitioner contended that the marriage is null and void and the contention was accepted by the ecclesiastical tribunals as per Exts. D1 and D2.

(2.) LEARNED counsel for the petitioner Sri. M.I. Joseph has raised two contentions before us viz. (1) that the marriage solemnized according to the rules, rites, ceremonies and customs of the church to which the parties belong had been declared by the ecclesiastical tribunals to be null and void as per Exts. D1 and D2 and the respondent is not his wife entitled to maintenance under sec. 125(1) of the Crl P.C., and (2) even if the decision of the ecclesiastical tribunals is not to be treated as final and conclusive between the parties, the courts below should have considered the question of fraud alleged by the petitioner in extending his consent for the marriage.

(3.) THE Indian Divorce Act, 1869 as its preamble shows was passed "to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial". Sec. 18 of the Act enables the husband or the wife to present a petition to the District Court or the High Court praying that his or her marriage may be declared as null and void. Sec. 19 enumerates the grounds on which the court may pass a decree of nullity of marriage, There are four grounds mentioned in the main part of the section. Those grounds are: (1) impotency of the respondent at the time of marriage and at the time of the institution of the suit; (2) prohibited degrees of consanguinity or affinity between the parties; (3) that either party was a lunatic or idiot at the time of the marriage; and (4) that the respondent had a former spouse living and the marriage with the former spouse was in force at the time of the marriage. Apart from the four grounds mentioned above the section preserves the exclusive jurisdiction of the High court to pass decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. A petition for declaration of nullity of marriage on any of the four ground's mentioned in the' main part of sec. 19 can be filed either in the High Court or in the District Court. But, any decree of nullity of marriage passed by the District Judge shall be subject to confirmation by the High Court as provided for in sec. 20 of the Act.