AILEAN ANANDRAO CHITNAVIS Vs. A. S. CHITNAVIS

JUDGEMENT

(1.) THIS matter comes before us under Section 17, Divorce Act, for confirmation of the decree nisi passed on a petition for dissolution of marriage. The petition is founded on an allegation of marriage with adultery. The petitioner, the wife, is a Christian now resident in Scotland domiciled by virtue of her marriage with the respondent, in India, the respondent's domicile at all material times being Betul in the Hoshangabad Civil Division where the petition was filed. The marriage is proved by a certificate dated 10th August 1927. It took place while the parties were residing at Edinburgh where the respondent had gone for educational purposes. The respondent lived with the petitioner and a son was born. In 1929 the petitioner and the respondent came to India and were living together. Later on the petitioner went to Scotland, her country of origin, in 1934; and in 1935 the respondent married again and it is not disputed that from that marriage the respondent has two sons.

(2.) THE question is whether, seeing that the respondent is a Hindu and as such can marry more than one wife without an offence, there is any ground for giving, the petitioner the relief she seeks. It is pointed out that under Section 10, Divorce Act, a sharp distinction is made between bigamy with adultery and a second marriage with adultery, and that the second case can only apply where a marriage, while the marriage in question is subsisting, is lawfully contracted. If the party marrying is not entitled to have more than one wife, the second marriage would be bigamous. It is also pointed out that it had been held in Seinapatti v. Seinapatti AIR 1932 Lah 116 that where the marriage is in Christian form and a second marriage takes place, while the first Christian wife is living, with a Hinduin a Hindu form though the second marriage does not amount to bigamy it amounts to a second marriage and that if that marriage is consummated the consummation vis-a-vis the first wife amounts to adultery and forms a ground for divorce on the petition of the first wife. See also Sir Hari Singh Gour's Penal Law of India, para. 5983, Edn. 5, The above case has been relied on by the learned Judge. Although there is a distinction between that case and this in that there the marriage took place in a Christian church whereas in this case it took place in a Registrar's office still we find as in that case so in this, bearing in mind all the circumstances of this case, that the marriage took place on what may be called a monogamous basis. In all the circumstances therefore we are of the opinion that the decree nisi should be confirmed. The petitioner is entitled to get her costs in both the Courts from the respondent.