MATHEW PHILIP Vs. STATE

JUDGEMENT

(1.) This is an appeal under S.39 of the Special Marriage Act, 1954 (hereinafter referred to as the Act) filed by the petitioners before the lower court. Petitioners are husband and wife who married on 28-8-1982 and the marriage was solemnized at St. Thomas Marthoma Church, Koorthamala, Thiruvalla. The husband is a Marthomite and the wife is a Syrian Christian.

(2.) The petitioners alleged that the marriage was registered under S.15 of the Act. According to them, in view of the registration of the marriage under the Special Marriage Act, the marriage shall be deemed to be solemnized under the said Act as provided in S.18 and the provisions regarding divorce provided in the Act are applicable to them. The petitioners filed a joint petition under S.28 of the Act for divorce, stating that they have been living separately for more than an year, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(3.) The lower court heard the maintainability of the petition as a preliminary point. The lower court held that the marriage between the parties was solemnized according to the form prevalent in their community and not under the Act. By the registration of the marriage under the Act, it will only be deemed to be a marriage solemnized under the Act. In order to maintain an application under S.28 of the Act, the marriage must have been solemnized under the Act, and the registration of a marriage under the Act subsequent to the solemnization of marriage in accordance with the customary rites will not be sufficient. So holding the lower court dismissed the petition. In coming to the above conclusion, the lower court followed the decision of the Calcutta High Court reported in Lagna v. Shyamal (AIR 1975 Calcutta 6). The appeal is filed by the petitioners against the above order.