Chunder, J.:— This Rule was issued at the instance of Capt. A.C Smyth against an order of a Presidency Magistrate of Calcutta allowing a monthly maintenance of Rs. 100 to the opposite party, Mrs. Hannah Smyth, under s. 488 of the Code of Criminal Procedure.
The point at issue is, whether the parties are husband and wife. According to Mr. Das, appearing on behalf of the petitioner husband, a Roman Catholic like Capt. Smyth could not marry Mrs. Smyth, because she was one professing the Jewish faith at the time of the marriage. According to him, under s. 4 of the Indian Christian Marriage Act (XV of 1872), a marriage in which one of the parties is a Christian has got to be solemnized according to the Indian Christian Marriage Act, and s. 5 lays down by whom or where such marriages may be solemnized. One of the persons before whom such a marriage can be solemnized is a Marriage Registrar appointed under the Act. The parties were no doubt married before such a Marriage Registrar. His contention is that though the marriage may be solemnized under Christian Marriage Act, he validity of the marriage, in view of s. 88 of the Act, must be determined by the personal law of the parties. Section 88 runs thus:—
Nothing in this Act shall he deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into.
It would appear from the decisions in the cases of V.H Lopez v. E.J Lopez; Peter Philip Saldanha v. Anna Grace Saldanha and Gnanasoundari v. Nallathambi, and in Claudia Jude…Plaintiff; v. Lancelot Jude…Defendant.(4) that the prohibition referred to there in s. 88 must be an absolute impediment or a total incapacity according to the personal law and not an impediment or incapacity which is dependent upon the fact that the marriage is a sacrament or on the form of marriage, i.e, solemnization of the marriage amongst the followers of a particular religion and those who do not profess it, one not allowed to be solemnized by ministers of a particular faith. In the present case, it would appear that no such absolute impediment or incapacity has been proved. On the other hand, the evidence of Father Fanandes would go to show that, in view of Canon 1016, there may be no such absolute impediment. Under the circumstances, it has not been shown, as far as evidence goes in the present case, that the marriage in the present case is prohibited according to personal law of the parties. Therefore, the Magistrate could pass the order of maintenance that he has done, and under the circumstances the order of the Magistrate must be upheld.
The Rule is discharged.
Rule discharged.
Roxburgh, J.:— I agree.
A.C.R.C