ROSALINE MARY ALIAS VALLI Vs. I. RAVI GNANASELVAM

JUDGEMENT

(1.) The petitioner in O.M.S. No. 45 of 1994 is the appellant in this appeal. The respondent is her husband. The petition was filed under Ss. 18 and 19 of the Indian Divorce Act, 1869, to declare that the marriage between the appellant and the respondent is null and void and for costs. It is the case of the appellant that she was born on 13.8.1972 and therefore she had only completed 16 years by the end of August, 1988 and because of the pressure from the respondent, the appellant got married to the respondent on 7.9.1988 after the appellant was converted to Christianity. As a result of the forgery committed by the respondent, the concerned Priest in the Anthoniyar Church at Tuticorin, gave permission to conduct the marriage and the marriage was also solemnised. It is the case of the appellant that finder Sec. 19 read with Sec. 18 of the Indian Christian Marriage Act, the consent of the father of a minor is a condition precedent for completing a marriage under the Act. Since the consent was not obtained from the father of the appellant, the marriage between the appellant and the respondent has to be declared as null and void. The respondent is alleged to have committed a fraud by changing the year of birth of the appellant in her birth certificate. A notice was served on the respondent on 5 -10 -1994. Since no written statement has been filed on behalf of the respondent, the case was posted in the Undefended Board. On 23 -12 -1994, the learned Judge who has examined PW1 and marked Ex.P1 and P2 in support of the case of the appellant, has however dismissed the petition filed by the appellant on the ground that the appellant is totally silent regarding the alteration of date of birth on the marriage certificate. The learned Judge, in our opinion, has failed to notice that the appellant has not been cross examined and therefore her oral evidence stands uncontroverted and unrebutted. Even though the evidence of PW1 stands uncontroverted the learned Judge has dismissed the petition, which compelled the appellant to file the above appeal. The marriage certificate has been filed now and this certificate coupled with the "certificates proving the date of birth already filed as Ex.Pl and P2 will clearly prove the case of the appellant that there is an alteration in the birth certificate. Since the appellant was admittedly a minor on the date of marriage, namely on 7.9.1988, the coastal of her father ought to have been obtained at per the provisions of Sec. 19 read with Sec. 18 of the Indian Christian Marriage Act, which is a condition precedent for completing a marriage under the Act. Admittedly, in this case, the consent was not obtained from the father of the appellant. Therefore, it is clear that the respondent hat committed a fraud by changing the year of birth of the appellant in her birth certificate and thereby avoiding consent that was legally necessary.

(2.) The respondent is represented by his counsel, Mr. S.Vadivel, and he has not disputed the fact that the appellant was a minor on the date of marriage and the consent of her father was not obtained as required under the provisions of Sec. 19 read with Sec. 18 of the Indian Christian Marriage Act. For the foregoing reasons, we are of the view that the order of the learned Judge cannot stand and it is liable to be set aside and therefore, we set aside the order in O.M.S. No. 45 of 1994 dated 23 -12 -1994 and allow this appeal. Accordingly, there will be a decree in favour of the appellant declaring that the marriage between her and the respondent is null and void. No costs.