SOPHY AUERBACH Vs. SHIVAPROSAD AGARWALLA

JUDGEMENT

(1.) This is a suit for a declaration that the marriage of the plaintiff to the defendant is null and void, and for an injunction restraining the defendant from claiming the plaintiff as his wife. The material facts are no longer disputed. The plaintiff Sophie Auerbach was a British subject, a Jewess by the religion, domiciled in England. The defendant is a Hindu domiciled in British India. Some time before 14 April 1931, the defendant married a Hindu wife in India according to Hindu rites. That wife is still alive and is still the wife of the defendant according to Hindu law which is the personal law of the defendant.

(2.) On 14 April 1931 the plaintiff went through a form and ceremony of marriage with the defendant in accordance with the French laws at the Mairie du Luxembourg, VIth Arron dissement in Paris, France. Thereafter the defendant and the plaintiff lived together as man and wife, and three sons were born of the union, The plaintiff asserts that at the time of her marriage she was not aware that the defendant had already married a Hindu wife. The plaintiff now asserts that under the French law her marriage to the defendant is null and void, and she prays that the Court declare the said marriage to be a nullity. The plaintiff was converted to Christianity in the year 1943. The defendant contests the suit. He asserts that the marriage solemnised in Paris on 14 April 1931 is a valid marriage according to French laws. He further asserts that the plaintiff has known from before 14 April 1931 that the defendant has an Indian wife married according to Hindu rites; and that the suit is therefore barred by limitation. The defendant also contended that this Court had no jurisdiction to try the suit. It may be noted that neither party has argued that the marriage in France is not valid on the ground that it is a union not recognised as a marriage by the personal law of the defendant and I have not been asked to consider whether the defendant, a Hindu, can according to Hindu law contract a valid marriage with the plaintiff by going through a ceremony before the French Authorities in Paris. At first the plaintiff wished to assert that she was not aware of the defendant's earlier marriage until some date within six years of the institution of the suit. But when the defendant applied for a commission to examine witnesses in Assam for the purpose of proving plaintiff's knowledge at an earlier date, the plaintiff admitted, for the purposes of this suit only, that she was aware of the previous marriage more than six years before the suit was instituted.

(3.) The question of jurisdiction was not pressed. The following issues were framed (1) Is the suit barred by limitation ? (2) Is the marriage solemnized on 14 April 1931 null and void according to French law? (3) To what relief is the plaintiff entitled? Decision: