MOLLY JOSEPH @ NISHversusGEORGE SEBASTIAN @ JOY

                        MOLLY JOSEPH @ NISH                                A
                                     v.
                      GEORGE SEBASTIAN @ JOY

                           SEPTEMBER 18, 1996

                [N.P. SINGH AND S.B. MAJMUDAR, JJ.]                        B

        Indian Divorce Act, 1869 :

       Sections 17, 19(4), 20-Maniage annuled by order or Ecclesiastical
Tribunal-Validity of-Held: When a Legislature enacts a law even in respect C
of the personal law of a group of persons following a pa1ticular religion, the
statutory provisions shall prevail and ovenide any personal law usage or
custom prevailing before coming into force of such Act-District Cowt or
High Cowt vested with the power-No other auth01ity including Ecclesiastical
Tribunal could exercise power in connection with matlimonial matters
 covered by the Aci-Distlict Judge disposed of the application for divorce D
 without any enquiry into the allegations relating to the subsistence of the
fonner maniage-H.ence High Court justified in remitting the matter to the
Distlict Judge for decision in accordance with law.

     Lakshmi Sanyal v. Sachit Kumar Dhar, AIR (1972) SC 2667     =[1973)   E
2 SCR 122, referred to.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8782 of
1994.

     From the Judgment and Order dated 20.7.94 of the Kerala High
                                                                            F
Court in C.M.R. No. 5 of 1994.

     Vernhese Kalliath, Shaju Francis, C.N. Sreekumar, K.M.K. Nair, S.
Balakrishnan and M.T. George for the appearing parties.

        The following Order of the Court was delivered :
                                                                           G
      This appeal has been filed on behalf of the wife for setting aside the
judgment of the Special Bench of the Kerala High Court, directing the
District Judge to conduct enquiry into the allegations relating to the
subsistence of a former marriage of the appellant and then to pass a decree
in accordance with law. A petition was filed by the respondent-husband H
                                    497
    498                  SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.

A before the District Judge for a declaration that his marriage with the
    appellant is a nullity on the ground (i) the marriage between the appellant
    and one Prince Joseph was subsisting on the date the appellant married
    the respondent; (ii) the appellant was insane and continued to be so till
    the date of marriage. That application was contested by the appellant
    saying that although she had married earlier with aforesaid Prince Joseph,
B   the said marriage was annulled by the order of the Ecclesiastica1 Tribunal
    (Church Court as it is referred to at times). It also asserted on her behalf
    that previous marriage was known to the respondent and inspite of that he
    agreed to marry the appellant.

C         The learned District Judge did not conduct any enquiry and he
    declared the marriage between the appellant and the respondent a nullity
    merely on basis of the pleadings of the parties. According to him, as the
    appellant had admitted the earlier marriage and as there was no decree of
    any Civil Court in accordance with the provisions of the Indian Divorce
D   Act, 1869 (hereinafter referred to as the 'Divorce Act') the former mar-
    riage continued inspite of annulment order passed by the Ecclesiastical
    Tribunal, and the marriage had to be declared a nullity because of Section
    19(4) of the Divorce Act. As required by Section 20 read with Section 17
    of the aforesaid Act the order of the District Judge was placed before a
    bench of three Judges presided over by Justice K.T. Thomas (as he then
E   was) for confirmation. The High Court held:

               "Canon Law (or personal law of Christians) can have theologi-
            cal or acclesiastical implications to the parties. But after the
            Divorce Act came into force a dii:solution or annulment granted
            under such personal law cannot have any legal impact as statute
F
            has provided a different procedure and a different code for divorce
            or annulment."

    This appeal is against the aforesaid judgment of the High Court.

G           The preamble of the Divorce Act says :

             "Whereas it is expedient to amend the law relating to the divorce
             of persons professing to Christian religion, and to confer upon
             certain Courts jurisdiction in matters matrimonial; it is hereby
H            enacted as follows ........."
                MOLLY JOSEPH v. GEORGE SEBASTIAN                      499

Section 3(4) defines 'Court' to mean the High Court or the District Court,   A
as the case may be. Section 4 provides
                                I
                                        :

            "Matrimonial jurisdiction of High Courts to be exercised sub-
        ject to Act.

        Exception - the jurisdiction now exercised by the High Courts in B
        respect of divorce a mensa et toro, and in 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; except so far as relates to the granting of
        marriage-licenses, which may be granted as if this Act had not been C
        passed."

Section 10 enables any husband to present a petition to the District Court
or to the High Court, praying that his marriage may be dissolved on the
ground that his wife has, since the solemnization thereof, been guilty of
adultery. A wife may also present a petition to District Court or to the D
High Court for dissolution of the marriage on the grounds mentioned
therein. In view of Section 17 every decree for dissolution of marriage made
by the District Judge shall be subject to confirmation by the High Court.
The said Section requires that cases for confirmation of decree for dissolu-
tion of marriage shall be heard by a Bench comprising of three Judges. It
also vests power in the High Court, if it thinks necessary, to direct further E
enquiry or additional evidence to be taken. Chapter IV deals with nullity
of marriages. In view of Section 18 any husband or a 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. Section 19 prescribes the grounds
on which a marriage can be declared to be nullity. Section 19 provides :      F
            "Grounds of decree - Such decree may be made on any of the
        following grounds : -

        (1) that the respondent was impotent at the time of the marriage
            and at the time of the institution ofthe suit;                   G
        (2) that the parties are within the prohibited degrees of consan-
            guinity (whether natural or legal) or affinity;

        (3) that either party was as lunatic or idiot at the time of the
            marriage;                                                        H
    500                   SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A            (4) that the former husband of wife or either party was living al .
                 the time of the marriage, and the marriage with such former
                 husband or wife was then in force.

             Nothing in this section shall affect the jurisdiction of the High
             Court to make decrees of nullity of marriage on the ground that
B            the consent of either party was obtained by force or fraud."

    Every decree of nullity of marriage Ql.ade by the District Judge shall be
    subject to confirmation by the High Court because of Section 20 and
    provisions of Section 17, clauses one, two, three and four, shall, mutatis
C   mutandis be applicable.

         From a bare reference to the different provisions of the Act including
  preamble thereof it is apparent that Divorce Act purports to amend the
  law relating to divorce of persons pr.ofessing the Christian religion and to
D confer upon courts which shall include District Court and the High Court
  jurisdiction in matrimonial matters. In this background, unless the Divorce
  Act recognises the jurisdiction, authority or power of Ecclesiastical
  Tribunal (sometimes known as Church Court) any order or decree passed
  by such Ecclesiastical Tribunal cannot be binding on the courts which have
  been recognised under the provisions of the Divorce Act to exercise power
E in respect of granting divorce and adjudicating in respect of matrimonial
  matters. It is well settl.ed that when legislature enacts a law even in respect
  of the personal law of a group of persons following a particular religion,
  then such statutory provisions shall prevail and override any personal law,
  usage or custom prevailing before coming into force of such Act. From the
p provisions of the Divorce Act it is clear and apparent that they purport to
  prescribe not only the grounds on which a marriage can be dissolved or
   declared to be nullity, but also provided the forum which can dissolve or
   declare the marriage to be nullity. As already mentioned above, such power
   has been vested either in the District Court or the High Court. In this
  background, there is no scope for any other authority including Ecclesias-
G tical Tribunal (Church Court) to exercise power in connection with
  matrimonial matters which are covered by the provision of the Divorce Act.
  The High Court has rightly pointed out that even in cases were Ecclesias-
   tical Court purports to grant annulment or divorce the Church authorities
  )\'ould still continue to be under disability to perform or solemnize a second
H marriage for any of the parties until the marriage is dissolved or annulled
                MOLLY JOSEPH v. GEORGE SEBASTIAN                        501

in accordance with the statutory law in force.                                  A

       The learned counsel appearing for the appellant placed reliance on
the judgment of this Court in the case of Lakshmi Sanyal v. Sachit Kumar
Dhar, AIR (1972) SC 2667 = [1973] 2 SCR 122, in support of his stand
that inspite of the provisions of the Divorce Act and procedures prescribed     B
therein for dissolution of marriage or declaration of a marriage to be
nullity, Ecclesiastical Tribunal can also dissolve a marriage. In that case,
this Court was considering whether a marriage could be declared a nullity
on the ground that the parties were within the prohibited degrees consan-
guinity which is a ground for declaring a marriage to be nullity under
Section 19(2) of the Divorce Act. In that connection, It was said :             C

            ''The Second point relates to the effect of the marriage between
        the parties within the prohibited degree of consanguinity. The
        Indian Divorce Act or the Indian Christian Marriage Act do not
        give any definition of what the prohibited degrees are. It has been D
        urged on behalf of the appellant that assuming the Canon Law had
        to be looked at for finding the prohibited degrees it has been found
        that the appellant and the respondent being children of real sisters
        fell within those degress. Section 19 of the Divorce Act lays down
        in categorical terms that a marriage may be declared null and void,
        inter a/ia, where the parties are within the prohibited degree of E
        consanguinity. There is no exception contained in ground No. 2 in
        the said section It is not open it has been contended, to the courts
        to the travel beyond S. 19 or the provisions of the Divorce Act to
        discover whether such an impediment which renders the marriage
        null and void ab initio can be removed by a dispensation granted F
        by the competent authority of the Roman Catholic Church

         The question of capacity to marry and[ impediments in the way of
         marriage would have to be resolved by referring to their personal
         law. That, for the purpose of deciding the validity of the marriage,
         would be the law of the ~oman Catholic Church, namely the Canon        G
         law of that Church."

      From the judgment aforesaid it is apparent that this Court having
said that Section 19(2) makes a marriage between the parties within the
prohibited degrees of consanguinity a ground for declaring the marriage to      H
    502                   SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R

A be nullity, pointed out that the Divorce Act does not give definition was to
    what are the prohibited degrees. Thereafter it was said that for that limited
    purpose personal law has to be looked into. Accor-<ling to us, on basis of
    the aforesaid judgment of this Court it cannot be held that. any declaration
    of marriage to be void by Ecclesiastical Tribunal shall be binding on the
    District Court or the High Court. Such Ecclesiastical Tribunal cannot
B   exercise a power parallel to the power of the District Court or the High
    Court which have been vested in the District Court and the High Court by
    the provisions of the Divorce Act. Section 18 provides that 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. In that
C   event, it excludes the jurisdiction and authority of any other Tribunal or
    Court including Ecclesiastical Tribunal (Church Court).

         As the District Judge had disposed of the application for divorce
    without any enquiry into the allegation relating to the subsistence of the
    former marriage, the High Court was justified in remitting the matter to
D   the District Judge for fresh decision in accordance with law. We find no
    reason to interfere with the said order. The appeal is accordingly dis-
    missed. No costs.

           Criminal Appeal No. 447 of 1994.

E                                     ORDER

          In view. of the order passed in C.A. No. 8782/94 the appeal is
    dismissed.

    G.N.                                                   · Appeals dismissed.