Mrs. Pramilla Khosla Petitioner v. Captain Rajnish Kumar Khosla

T.P.S Chawla, J.:— In this case a wife has filed a petition under sections 22 and 23 of the Indian Divorce Act 1869. She prays for a decree of judicial separation on the ground of cruelty by the husband. The petition commences with the statement that the parties were married on 9th April 1972 at New Delhi ‘according to Arya Samaj Rites’. In the second paragraph it is said that ‘the petitioner professes the Christian religion while the respondent professes the Hindu religion’. Thereafter, the matrimonial history is narrated with which I am not presently concerned.

2. After being served with the petition, the first thing, the husband did, even before filing his written statement, was to move an application under Order 7 rule 11 and section 151 of the Code of Civil Procedure 1908. This is the application which I have now to decide. The contention of the husband is that, on the face of it, the petition by the wife is not maintainable under the indian divorce act as it admits that the marriage was performed according to Arya Samaj Rites, which is a Hindu form of marriage and postulates that both parties were Hindus. Therefore, according to the husband, the wife can seek relief, if at all, only under the Hindu Marriage Act 1955 and not the Indian Divorce Act, and, hence, the petition should be rejected.

3. In addition, the husband has pleaded in the application that, by her representations and conduct, the wife is estopped from saying that she was or is a Christian, and for that reason also the petition is not maintainable under the indian divorce act. So far as this plea is concerned, it cannot be entertained under Order 7 rule 11 of the Civil Procedure Code as it involves questions of fact on which evidence is necessary. Under that rule, it is well established, and, indeed, even accepted by the husband in his rejoinder, that the court can only look at the averments in the petition and nothing else to ascertain whether ‘it does not disclose a cause of action’.

4. Similar pleas were taken in the written statement subsequently filed by the husband. Proceeding on the mistaken assumption that in her petition the wife had said that she was a Christian at the time of the marriage, the husband now further pleaded that the marriage itself was invalid, because a marriage according to Arya Samaj Rites could not validly be performed unless both parties were Hindus. Actually, all that the wife had said in the petition was that she ‘professes the Christian religion’. She did not say that she was a Christian when the marriage was solemnised. Nor did she say she was a Hindu. She was simply silent on the point.

5. In her replication the wife again said that she ‘is a Christian and thus the petition is maintainable under the indian divorce act’. She denied that she ever represented to the husband or to any one else that ‘she is a Hindu’. Then, the unintelligible statement is made that she ‘claims to be the wife of the respondent under the indian divorce act’. That Act does not deal with marriage but divorce, and it makes no sense to say that she was the wife of the husband under that Act.

6. The reply by the wife to the application of the husband contains the same incomprehensible statement. It repeats many times that she was and is a Christian and never represented otherwise. Yet, it does not specifically say whether she was a Christian or a Hindu at the time of the marriage.

7. In the course of the argument I inquired from counsel for the wife whether she had been converted to Hinduism at the time of, or a little before, the marriage. He was unable to give me any definite reply, and, instead, submitted that, in any event, the marriage must be deemed to be valid because the husband, and his relations and friends, had always treated the lady as his lawful wife. I decided to refrain from pursuing the matter further as, at this stage, I am not concerned with the question whether the marriage was valid or not. No doubt it will have to be one of the issue in the case; but presently, I am concerned only with an application under Order 7 rule 11 of the Civil Procedure Code. Though I have referred to the other pleadings for the purpose of disentagling the controversy, I must now confine my attention to the petition alone.

8. The question it whether, in view of the allegations which it contains, the petition is not maintainable under the indian divorce act. In dealing with that question one must assume the allegations in the petition to be true. No question as to the validity of the marriage arises from the petition itself, as it does not say whether the wife was a Christian or a Hindu at the time of the marriage, and there is a presumption that a ceremony of marriage is valid. That is why, for the moment, the question as to the validity of the marriage has to be ignored.

9. The Preamble to the indian divorce act explains that its purpose is ‘to amend the law relating to the divorce of persons professing the Christian religion’. Section 2 lays down certain conditions for the grant of various kinds of relief under the Act. The second paragraph of that section says:

‘Nothing hereinafter contained shall authorise any court to grant any relief under this Act except where the petitioner or respondent professes the Christian religion.’

Nowhere in the Act is it required that the marriage, in respect of which relief is sought, should have been solemnised in any particular form. It is sufficient that one of the parties is a Christian when the petition is filed: see Sasivaram v. S. Gnanasundari Kamalam, AIR 1954 Madras 1018 (1); Nina Dalal v. Mervanji Pherozshaw Dalal, AIR 1930 Bombay 385 (2) and Mrs. Chandramani Dubey and another v. Rama Shankar Dubey and others, AIR 1951 Allahabad 529 (3). Consequently, it was held in Gobardhan Dass v. Jasadamoni Dassi, ILR 18 Calcutta 252 (4), that a marriage between Hindus, who afterwards became converts to Christianity, could be dissolved under the indian divorce act as the petitioner was a Christian at the time of presenting the petition. That case expressly rules that a decree of dissolution may be passed under that Act though the marriage was not performed according to Christian rites'. Since, here, the petitioner has unequivocally alleged in her petition that she ‘professes the Christian religion’ this requirement of the Act is fulfilled.

10. The other aspect of the argument on behalf of the husband is based on section 7 of the Act. That section enjoins that in all suits and proceedings under the Act, the court shall act and give relief on principles and rules which in its opinion ‘are as nearly as may be conformable to the principles and rules on which the court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. For over a hundred years it has been a settled principle of English law that it will not recognise or grant any relief in respect of a marriage which is not monogamous. Such a marriage has been defined as ‘the voluntary union for life of one man and one woman, to the exclusion of all others’: see Hyde v. Hyde and Woodmansee, (1861 — 73) All E.R Rep. 175 (5) and Brinkley v. Attorney-General, (1886 — 90) All. E.R Rep. 255 (6). It is well known that marriage, according to general Hindu law, was not monogamous. Hindu was free to acquire a plurality of wives. On the part of the man it was not a union with ‘one woman to the exclusion of all others’. Therefore, English law would not recognise a Hindu marriage nor grant any relief in respect of it.

11. Section 7 requires the same principle to be applied by the court exercising jurisdiction under the indian divorce act. For that reason, in Thapita Peter v. Thapita Lakshmi and another, ILR 17 Madras 235 (7), the court refused to dissolve a marriage performed according to Hindu rites. It was pointed out that in Gobardhan Dass v. Jasadamoni Dassi, ILR, 18 Calcutta 252, the attention of the court had not been drawn to section 7, and that case was expressly dissented from.

12. The decision of the Madras High Court in Thapita Peter's case caused South Indian Christians to make certain representations. Acceding to their demand, the effect of that decision was partially avoided by an amending Act of 1912 which added a proviso to section 7. The proviso now makes it clear that, notwithstanding section 7, the court is not to be deprived of jurisdiction ‘in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded’. But the proviso has no application to the present case as it requires that both parties should have professed the Christian religion at the time of the commission of the matrimonial offence: see Amar Nath (A.N John) v. Mrs. Amar Nath (Mrs. Paggy John), AIR 1948 Lahore 126 (8) and the same case at page 129. Here, the husband was a Hindu throughout. Nevertheless, the proviso does show that in a case to which it applies, relief can be had under the indian divorce act in respect of any kind of marriage, whether monogamous or not.

13. With regard to a marriage performed according to Arya Samaj Rites the position was not altogether clear. In Dr. Niranjan Das Mohan v. Mrs. Ena Mohan and others, AIR 1943 Calcutta 145 (9), a decree of dissolution was granted under the indian divorce act in respect of such a marriage because it was found as a fact on the evidence produced in the case ‘that an Arya Samaj marriage is monogamous’. Therefore, it was held that section 7 did not bar relief.

14. In Amar Nath (A.N John) v. Mrs. Amar Nath (Mrs. Paggy John), AIR 1948 Lahore 125, no evidence had been led to establish the nature of an Arya Samaj marriage, and the case was remitted to the District Judge to record evidence on the point. After the case came back to the High Court, the husband, who was the petitioner, admitted that his marriage with the respondent was polygamous as he had a previous wife living when it was solemnised. It was thus apparent that he had ‘no intention of entering into a monogamous marriage’ and so his petition was dismissed: see Mr. Amar Nath (A.N John) v. Mrs. Amar Nath (Mrs. Paggy John), AIR 1948 Lahore 129. The question whether an Arya Samaj marriage is monogamous was not decided. One of the judges, Mr. Justice Cornelius, went on to hold that since divorce was unknown to Hindu law a Hindu marriage could not at all be dissolved under the indian divorce act. Neither of the other two judges forming the Full Bench said anything in support of that view, and it seems untenable having regard to the proviso to section 7 and the fact that section 2 requires only one party to be a Christian. Nor have I been shown any other authority expressing a like opinion.

15. However, the whole position has been radically altered by the Hindu Marriage Act 1955, which, by section 2 (a), applies to Arya Samajists. A Hindu marriage has now been rendered monogamous by that act, as section 5 makes it a condition that ‘neither party has a spouse living at the time of the marriage’. The bar to relief emanating from English law by virtue of section 7 of the Indian Divorce Act no longer operates. Relief can now be had under that Act in respect of a Hindu marriage provided, of course, one of the parties professes the Christian religion when the petition is filed. That condition, as I have already said, is fulfilled in this case.

16. This does mean that, in respect of a Hindu marriage, relief can be had both under the Hindu Marriage Act and the Indian Divorce Act if one of the parties is a Christian when proceedings are commenced, though why anyone should wish to resort to the older Act when a more modern and liberal one is available I cannot divine. But that is the present legal position, as I understand it. No doubt it is fraught with numerous possibilities of conflicting proceedings where, for example, one spouse resorts to one Act and the other to the other. The remedy, however, lies in the hands of the Legislature.

17. The conclusion which I reach is that there is nothing appearing on the face of the petition by the wife, in this case, which makes it not maintainable under the indian divorce act. The husband's application is, therefore, dismissed. Having regard to the fact that the law was not entirely clear on the points raised, and the decided cases furnished no clear-cut answer, I will make no order as to costs.

Application dismissed.