ALFRED ROBERT JONES Vs. MTTITLI

JUDGEMENT

(1.) The petitioner, Alfred Robert Jones, of Bhim Tal near Naini Tal, by his sister, Miss Edith Jones, as his next friend, prays for a decree of nullity of marriage under Section 19(3) and (4), Divorce Act, and under Secs.4 and 5(1), Christian Marriage Act, for a declaration that his marriage to the respondent is void. To the issues formerly struck under the Divorce Act, Section 19, I have added, during the course of the hearing, two other issues under the Christian Marriage Act, namely, No. 7: Was the alleged marriage solemnized according to the rules, rites, ceremonies and customs of the Church of Rome ? (8) Was Father Livesay authorized to perform the ceremony of marriage ?"

(2.) Issue 1 is: "Has this Court jurisdiction to try this suit ?" There can be no doubt that by Secs.4 and 19, Divorce Act, this Court has jurisdiction to hear the petition in so far as the issues under Section 19, Divorce Act, are concerned, namely, "Was the marriage null and void on the ground of the petitioner being an idiot at the time of the said marriage ? and, secondly, "Was the said marriage null and void on the ground that the petitioner's consent was obtained by force or fraud ?" The difficulty arises concerning the jurisdiction of this Court to hear the petition based on the Christian Marriage Act. It is contended by counsel for the respondent that Section 4, Divorce Act, confines the jurisdiction of this Court to petitions under the Divorce Act. Section 4, Divorce Act, reads as follows: The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro and all other causes, suits and matters matrimonial shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained and not otherwise.

(3.) It is argued that because of the. terms of this section the High Court is prohibited from considering questions arising under the Christian Marriage Act, and that therefore there is no jurisdiction in this Court to decide whether there has been a valid marriage in accordance with the Christian Marriage Act. There is little authority on this question. Counsel for the respondent relied upon a decision of a single Judge in the Calcutta High Court in Gasper V/s. Gonsavas (1874) 13 Beng LR 109. That learned Judge decided that the High Court had jurisdiction in a matrimonial suit only under the Divorce Act, and therefore it had no jurisdiction to hear a petition praying for a declaration that the marriage was invalid under the Christian Marriage Act. This case however was decided ex parte. The matter was considered in another case in the Calcutta High Court, Lopez V/s. Lopez (1886) 12 Cal 706 (F B). The Court however in that case did not decide this question as it was unnecessary for the decision of the case. The matter was further considered by a single Judge of the Lower Burma Chief Court in Consterdine V/s. Smaine (1918) 47 IC 544. The learned Judge decided that. the Court had jurisdiction. The Christian Marriage Act became law three years after the Divorce Act. The Divorce Act must have been within the knowledge of the legislature. It is therefore difficult to argue that the High Court had no jurisdiction to decide the very important questions which must arise out of the Christian Marriage Act. If that were so, the Act would be dead. The various grounds on which the Court can give a decree of nullity in the Divorce Act refer to cases where there has been a marriage validly performed Questions arise under Secs.4 and 5, Christain Marriage Act, when the marriage has not been validly performed. There is a clear distinction between a decree of nullity of a valid marriage and a declaration that the marriage itself is illegal and void. There can in my opinion, be no doubt that there is jurisdiction in the High Court to hear and decide questions under the Christian Marriage Act.