WILLIAM HUDSON Vs. MRSKMWEBSTER

JUDGEMENT

(1.) This is a petition by Mr. William Hudson praying that the ceremony of marriage which he celebrated with the respondent on 20 April 1935, should be declared null and void on the ground that at the time of such celebration of marriage there was in full force and existence a marriage between the respondent and Mr. Webster at that time, The petitioner was previously married and his wife, who was the sister of the respondent, died in February 1934. Later in that year the petitioner contemplated marriage with the respondent. He knew from his relationship by marriage with her and the fact that she had stayed with himself and his wife on a number of occasions that she had gone through a ceremony of marriage with Mr. T.A. Webster. The respondent had left Mr. Webster some time before February 1934 and was living with the petitioner, and his then wife. The respondent had told him that a previous wife of Mr. Webster whom that gentleman at the time he went through a ceremony of marriage with the respondent believed to be dead, and whom he had not seen for more than seven years, had been discovered to be alive at the time of the ceremony of marriage between the respondent and Webster and was still alive in the year 1934 or thereabouts. The petitioner, some time later in 1934 consulted a lawyer in Bangalore and I understand, was accompanied by the respondent when he went to seek his advice. The facts of the matter were put before the lawyer who advised that a marriage between the petitioner and the respondent could not amount to a criminal offence, but it would be advisable to await the result of proceedings which wore then being taken in the Court of the learned Judicial Commissioner at Ajmer by Mr. Webster to obtain a declaration that his marriage with the respondent was null and void.

(2.) The petitioner in his evidence says that before the mon March, 1935 the respondent, having received either a letter or a, telegram, purported to read out to him that the Court of the Judicial Com. missioner at Ajmere had declared that her marriage with Mr. Webster was, to use the word adopted by the petitioner when in the witness box, cancelled; on 20 April following, the parties to this petition went through a ceremony of marriage at the Richmond Town Methodist Episcopal Church, Bangalore Cantonment. According to the petition they are both Anglo. Indians and profess the Christian religion. The learned Counsel on behalf of the petitioner, to whom I am indebted for a very able argument, at the outset stated and correctly stated the position at law that a ceremony of marriage ordinarily constituting a binding marriage between the parties subsists unless and until it is set aside on one or other of the grounds which justify annulling or setting aside a marriage. That contention was made in regard to the ceremony of marriage celebrated between the respondent and Mr. Webster. But it applies equally in regard to the ceremony of marriage between the petitioner and the respondent in this petition. I am asked to decree that the marriage between the petitioner and the respondent is null and void and I can do so only when evidence is placed before me which proves the allegations which are made supporting the petition and which proves facts justifying the making of such a decree. The petitioner bringing this petition must shoulder the onus cast upon him to prove what he sets out to allege and if he fails to produce the evidence justifying the relief sought, it follows that the petition must be dismissed. The petitioner himself is the only witness who has been called. He told me that whilst he was aware of the earlier marriage ceremony between the respondent and Mr. Webster before he went through the marriage ceremony with her, she informed him that that earlier marriage had been cancelled or, in other words set aside. No evidence whatever was called before me to prove to my satisfaction of the existence of the marriage between the respondent and Mr. Webster and the only evidence at the moment of that marriage is the testimony given by the petitioner of what he had been informed by the respondent or that such a marriage having taken place, it was subsisting at the time of the marriage ceremony between the petitioner and the respondent. On the contrary he adds further, what suggests that such marriage with Mr. Webster was not a valid marriage, that at the time it took place Mr. Webster's previous wife was still alive; no one has suggested here that the first marriage of Mr. Webster has ever been set aside. Mr. Thyagarajan has contended that the position in India is different to the position in England, regarding marriages. He concedes that this is the position in England; before a valid marriage can be celebrated both parties to such marriage must be either single or divorced or a widow or a widower and then only are they competent to enter into a valid marriage. If at the time of celebration of the marriage ceremony one or other of the parties had a spouse living, the earlier marriage not having been set aside, the later marriage is void ab initio, in other words, it is no marriage at all. But he contends that that position is not what exists in India and he bases his argument upon the wording of Secs.18 and 19, Indian Divorce Act of 1869. These two sections run as follows: 18. Any husband or wife may present a petition to the District Court or to the High Court praying that his or her marriage may be declared null and void. 19. Such decree may be made on any of the following grounds: . . . . . . . (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force.

(3.) Mr. Thyagarajan concedes that in England a party to a marriage of which the other party is incompetent to join in the celebration of a valid ceremony because of the existence of a previous husband or wife, is entitled without any recourse to any Court to marry any one else because that particular marriage is not in law a marriage at all. Frequently in England it is done. Sometimes a person, whom I will call an innocent party to a bigamous marriage, does go to the Court for a declaration that the bigamous marriage is null and void. That is for the purpose of precaution or record or evidence. But the bigamous marriage is non-existent and without any recourse to the Court it cannot be said that it exists unless and until a decree is passed declaring it to be null and void. The learned counsel for the petitioner says that he bases his contention of the difference in this country upon the wording particularly of Section 19 set out above, the wording being that the former husband or wife of either party was living at the time of the marriage. The word marriage he says, means the marriage between the parties to the bigamous marriage and use of the word marriage indicates that it is a binding marriage until the contrary is declared by a competent Court. The section goes on to say and the marriage with such former husband or wife was then in full force." Unless the marriage is a valid marriage it cannot be a marriage which is in full force. I have had pointed out to me Section 19 makes no difference between the grounds upon which application can be made to the Court to declare a marriage null and void. Of the four grounds therein mentioned, the first is impotency, a ground on which a marriage is not void ab initio but void at the instance of the injured party. The other grounds are grounds upon which in England the marriage is void ab initio and it is argued that having these four grounds grouped together indicates, that the intention of the Legislature was that they should all be treated in the same way, namely, that since the first, namely the ground of impotency is voidable and not void, it must follow that they are all in the same category. I have listened very attentively to his very able argument but I cannot accept that as the correct position. I have already said that the parties to this petition are Christians and no Christian can marry another person in the lifetime of an earlier spouse unless the previous marriage has been set aside. That is a personal law to the individual in England. I see no grounds to find it is different in India. If it were so, then a marriage celebrated in India between two British European Christians would be governed by different principles to a marriage between the same parties celebrated in England. Mr. Thya. garajan agrees that the Christian Marriage Act of 1872 provides machinery for marriages in this country between two Christians. Section 88 of that Act is as follows: Nothing in this Act shall be deemed to validate any marriage if the personal law applicable to either of the parties forbids him or her to enter into it.