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Advocates
  • Sir Jamshed Kanga, Advocate General, and F.S Tatyarkhan, for the appellant.
  • R.J Mathalone, for the respondent.
  • At the hearing of the appeal, a preliminary objection, was taken on behalf of the respondent, that as the appellant had till then failed to carry out the order of the Court, he was in contempt and that he was not entitled to have his appeal heard until he had purged himself of the contempt.
  • R.J Mathalone in support of the objection:—The appellant has failed to obey the order of the lower Court and is therefore in contempt. The general rule is that a party who is in contempt is not entitled to be heard in appeal or otherwise. See Daniel's Chancery Practice, Volume I, pp. 786-7; Halsbury's Laws of England, Volume VII, p. 82, section 606; Raj Rajeswari Jiu v. Gati Krishna and Curtis v. Curtis. This rule no doubt would not apply if the order which has not been obeyed is appealed from on the question of jurisdiction. Gordon v. Gordon(3) is an authority for that proposition. But here there is no real attack on the ground of jurisdiction. It is not disputed that the Court has jurisdiction to dissolve a Jewish marriage. The real dispute is as to whether the remedy awarded to the respondent is correct under the Jewish law. In Gordon v. Gordon, when a party was heard in appeal irrespective of contempt, the order appealed from was on the face of it found to be made without jurisdiction. In any case I submit this Court has a discretion to allow or not to allow a party who is in contempt to go on with his appeal. One of the consideration which should weigh with this Court in exercising its discretion is whether the disobedience is due to misfortune or wilfulness of the contemnor: see Leavis v. Leavis.
  • Sir Jamshed Kanga showed cause against the objection:—The general rule, no doubt, is that a party who is in contempt is not entitled to be heard but this rule does not apply in a case where a party who has failed to carry out the order appeals against that order on the ground that it was made without jurisdiction: see Oswald on Contempt, 3rd Edition, p. 246; Hill v. Bissel; Chuck v. Cremer and Odell v. Hart.(4) The lower Court has directed the defendant to execute a bill of divorcement after undergoing ceremonies required by the Jewish law. I submit that the lower Court in making this order exceeded its jurisdiction. All that the lower Court was empowered to do was to grant a decree for divorce as was done in Benjamin v. Benjamin.(5) This Court is a Civil Court and not a Court of Ceremonies.
  • Per Curiam:—The Court will hear the appeal on merits.
  • Sir Jamshed Kanga:—The betrothal in this case was a conditional betrothal and as the conditions were not fulfilled the betrothal became void. Under the Jewish law in the case of a conditional betrothal, where the conditions have not been fulfilled, the betrothal is at an end and no further ceremonies are necessary to free the parties from their obligations. In the case of an unconditional betrothal the Jewish law requires that it should be dissolved by a “Get” or Bill of Divorcement. See Dr. Mielzirier's Jewish Law of Marriage and Divorce, pp. 78 and 38; Amram's Jewish Law of Divorce, p. 77. But where the betrothal is made subject to conditions which have not been fulfilled the betrothal is of no legal effect and no Bill of Divorcement is necessary to dissolve the relationship. The betrothal would be void even though the woman would be willing to waive the defect created by the non-fulfilment of conditions (Eben Ha-Ezer, c. 38, v. 24, p. 218). And Dr. Mielziner says at p. 67: “It then sometimes occurred that the consent to a contract of marriage was given on certain conditions, which if not fulfilled, eventually vacated the contract.” To the same effect is Mishna (c. 3, para. 2, p. 313): “Should a man say to a woman, ‘Behold thou art wedded to me on condition that I give thee two hundred zuz’, the betrothment is valid when he pays them”. And Rabbi J.L Kadushin in his Jewish Code of Jurisprudence, 1921, (c. 38, p. 394 of Part iv) is more emphatic on the point. We submit that in this case the learned Judge after finding that there was a conditional betrothal in which the conditions were not fulfilled should have granted
  • (1) “5. A man gives a cent to a woman and says to her: ‘Thou art betrothed to me with this coin on condition that I give you one hundred zuz. When such a condition is fulfilled, the betrothal takes effect as of the date the cent was given to her. (Kidushin 60 a).
  • “6. If the woman, before the fulfilment of the abovenamed condition, has accepted betrothals from another man, and thereafter the condition was complied with by the first man, the betrothal of the second man takes no effect. (L.c).
  • “7. If the man says to her: ‘Thou art betrothed to me with this cent on condition that I give you one hundred zuz within thirty days from now,’ the betrothal takes effect from now on if he has complied with such a condition within the thirty days (L.c).
  • “8. If before the expiration of the thirty days, she accepts-betrothals from another man, she becomes betrothed conditionally until the expiration of the thirty days. If at the end of the thirty days the first man failed to comply with the condition, the betrothal of the second takes effect and the betrothal of the first becomes void and she is not required to obtain a bill of divorce from the first. If within the thirty days the first man has complied with the condition, the betrothal of the first only takes effect and she is not required to obtain a divorce from the second man”. (L.c).
  • a declaration that the betrothal was void and should not have gone further and ordered the defendant to execute a “Get” or Bill of Divorcement. The “Get” is a relic of the past. The Jewish law requires that it should be delivered to the wife with due ceremonies before a Jewish functionary.
  • The defendant has to appear personally before the Rabbis and execute the “Get”. The Court has no power to supervise these ceremonies. If the defendant fails to do what is required the Court cannot depute one of its officers to execute the “Get”. Order XXXI, rule 34, of the Civil Procedure Code, does not apply to this. An execution by the Court's officer would not be valid under the Jewish law. Further the obligation to execute a “Get” is not specifically enforceable by our Courts. See section 21(b) of the Specific Relief Act. See also Lindo v. Belisario.
  • The form of the “Get” in use among the Jews is given at p. 129 of Dr. Mielziner's book. It says: “I … do hereby consent with my own will, without force, free and unrestrained, to grant a Bill of Divorce to thee, my wife”. How can a person be compelled by force to execute such a document? And supposing he refused to execute it, is he to be confined indefinitely in Jail? An analogy exists in our law in the case of decrees for restitution of conjugal rights. Our Court has recognised that such a decree is “a relic from the barbarous and middle ages”: Bai Parwati v. Ghanchi Mansukh. See also Benjamin v. Benjamin.
  • Mathalone in reply:—The law to be applied in this case is the Jewish law “with such adaptations to the circumstances of the case as justice may require.” See Benjamin v. Benjamin. According to the Jewish law a betrothal is quite different to what it is generally understood to be under modern notions. It is not a mere contract to marry at some future time—it is the very initiation of marriage itself. Under the Jewish law a betrothal is a very solemn ceremony. A betrothed woman is in many respects a married woman. As in the case of marriages a betrothal cannot be dissolved except by a formal “Get” or Bill of Divorcement and so a betrothed woman unless she is freed by a “Get” would be bound for all time. If she has sexual intercourse with any one else it would be adultery. See Mielziner p. 76, para. 38. Conditional betrothments are allowed by Jewish law but there is no text of that law which lays down the general rule that where a woman is conditionally betrothed and the conditions are not fulfilled a deed of divorcement is not necessary to dissolve the betrothal. The passages relied on by the other side in Kadushin's book no doubt seem to indicate that a deed of divorcement would not be necessary, but those passages only refer to the special circumstances mentioned therein. They do not lay down a general rule for all cases. Mielziner p. 81, para. 42, says “A betrothment in regard to whose validity any doubt arises—on account of stipulated conditions which have not been fulfilled is either to be concluded anew according to the prescribed formalities or to be dissolved by a formal divorce”. The result of holding otherwise would be that the respondent may never be able to contract a valid marriage under the Jewish law. The betrothal was performed at Basra according to the Jewish rites and it can only be effectively dissolved in the manner laid down by the Jewish law and I submit that the only effective way under that law is by a deed of divorcement.
  • The Court has the power to compel the husband to execute a “Get”. In Benjamin v. Benjamin, two alternative reliefs were prayed for, viz., that either the defendant should execute a “Get” or that the Court should pass a decree for divorce. The Court adopted the second alternative but it did not hold that it had no power to order the husband to execute a “Get”. In Lindo v. Belisario, the Jewish Bethdin which is a tribunal of the highest authority were of opinion that a man may be compelled to give a divorce to a betrothed woman. This is a proper case in which the appellant should be so compelled.
Judges
  • Sir John Beaumont, C.J
  • Mr. Mirza, J.
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Advocates
  • Sir Jamshed Kanga, Advocate General, and F.S Tatyarkhan, for the appellant.
  • R.J Mathalone, for the respondent.
  • At the hearing of the appeal, a preliminary objection, was taken on behalf of the respondent, that as the appellant had till then failed to carry out the order of the Court, he was in contempt and that he was not entitled to have his appeal heard until he had purged himself of the contempt.
  • R.J Mathalone in support of the objection:—The appellant has failed to obey the order of the lower Court and is therefore in contempt. The general rule is that a party who is in contempt is not entitled to be heard in appeal or otherwise. See Daniel's Chancery Practice, Volume I, pp. 786-7; Halsbury's Laws of England, Volume VII, p. 82, section 606; Raj Rajeswari Jiu v. Gati Krishna and Curtis v. Curtis. This rule no doubt would not apply if the order which has not been obeyed is appealed from on the question of jurisdiction. Gordon v. Gordon(3) is an authority for that proposition. But here there is no real attack on the ground of jurisdiction. It is not disputed that the Court has jurisdiction to dissolve a Jewish marriage. The real dispute is as to whether the remedy awarded to the respondent is correct under the Jewish law. In Gordon v. Gordon, when a party was heard in appeal irrespective of contempt, the order appealed from was on the face of it found to be made without jurisdiction. In any case I submit this Court has a discretion to allow or not to allow a party who is in contempt to go on with his appeal. One of the consideration which should weigh with this Court in exercising its discretion is whether the disobedience is due to misfortune or wilfulness of the contemnor: see Leavis v. Leavis.
  • Sir Jamshed Kanga showed cause against the objection:—The general rule, no doubt, is that a party who is in contempt is not entitled to be heard but this rule does not apply in a case where a party who has failed to carry out the order appeals against that order on the ground that it was made without jurisdiction: see Oswald on Contempt, 3rd Edition, p. 246; Hill v. Bissel; Chuck v. Cremer and Odell v. Hart.(4) The lower Court has directed the defendant to execute a bill of divorcement after undergoing ceremonies required by the Jewish law. I submit that the lower Court in making this order exceeded its jurisdiction. All that the lower Court was empowered to do was to grant a decree for divorce as was done in Benjamin v. Benjamin.(5) This Court is a Civil Court and not a Court of Ceremonies.
  • Per Curiam:—The Court will hear the appeal on merits.
  • Sir Jamshed Kanga:—The betrothal in this case was a conditional betrothal and as the conditions were not fulfilled the betrothal became void. Under the Jewish law in the case of a conditional betrothal, where the conditions have not been fulfilled, the betrothal is at an end and no further ceremonies are necessary to free the parties from their obligations. In the case of an unconditional betrothal the Jewish law requires that it should be dissolved by a “Get” or Bill of Divorcement. See Dr. Mielzirier's Jewish Law of Marriage and Divorce, pp. 78 and 38; Amram's Jewish Law of Divorce, p. 77. But where the betrothal is made subject to conditions which have not been fulfilled the betrothal is of no legal effect and no Bill of Divorcement is necessary to dissolve the relationship. The betrothal would be void even though the woman would be willing to waive the defect created by the non-fulfilment of conditions (Eben Ha-Ezer, c. 38, v. 24, p. 218). And Dr. Mielziner says at p. 67: “It then sometimes occurred that the consent to a contract of marriage was given on certain conditions, which if not fulfilled, eventually vacated the contract.” To the same effect is Mishna (c. 3, para. 2, p. 313): “Should a man say to a woman, ‘Behold thou art wedded to me on condition that I give thee two hundred zuz’, the betrothment is valid when he pays them”. And Rabbi J.L Kadushin in his Jewish Code of Jurisprudence, 1921, (c. 38, p. 394 of Part iv) is more emphatic on the point. We submit that in this case the learned Judge after finding that there was a conditional betrothal in which the conditions were not fulfilled should have granted
  • (1) “5. A man gives a cent to a woman and says to her: ‘Thou art betrothed to me with this coin on condition that I give you one hundred zuz. When such a condition is fulfilled, the betrothal takes effect as of the date the cent was given to her. (Kidushin 60 a).
  • “6. If the woman, before the fulfilment of the abovenamed condition, has accepted betrothals from another man, and thereafter the condition was complied with by the first man, the betrothal of the second man takes no effect. (L.c).
  • “7. If the man says to her: ‘Thou art betrothed to me with this cent on condition that I give you one hundred zuz within thirty days from now,’ the betrothal takes effect from now on if he has complied with such a condition within the thirty days (L.c).
  • “8. If before the expiration of the thirty days, she accepts-betrothals from another man, she becomes betrothed conditionally until the expiration of the thirty days. If at the end of the thirty days the first man failed to comply with the condition, the betrothal of the second takes effect and the betrothal of the first becomes void and she is not required to obtain a bill of divorce from the first. If within the thirty days the first man has complied with the condition, the betrothal of the first only takes effect and she is not required to obtain a divorce from the second man”. (L.c).
  • a declaration that the betrothal was void and should not have gone further and ordered the defendant to execute a “Get” or Bill of Divorcement. The “Get” is a relic of the past. The Jewish law requires that it should be delivered to the wife with due ceremonies before a Jewish functionary.
  • The defendant has to appear personally before the Rabbis and execute the “Get”. The Court has no power to supervise these ceremonies. If the defendant fails to do what is required the Court cannot depute one of its officers to execute the “Get”. Order XXXI, rule 34, of the Civil Procedure Code, does not apply to this. An execution by the Court's officer would not be valid under the Jewish law. Further the obligation to execute a “Get” is not specifically enforceable by our Courts. See section 21(b) of the Specific Relief Act. See also Lindo v. Belisario.
  • The form of the “Get” in use among the Jews is given at p. 129 of Dr. Mielziner's book. It says: “I … do hereby consent with my own will, without force, free and unrestrained, to grant a Bill of Divorce to thee, my wife”. How can a person be compelled by force to execute such a document? And supposing he refused to execute it, is he to be confined indefinitely in Jail? An analogy exists in our law in the case of decrees for restitution of conjugal rights. Our Court has recognised that such a decree is “a relic from the barbarous and middle ages”: Bai Parwati v. Ghanchi Mansukh. See also Benjamin v. Benjamin.
  • Mathalone in reply:—The law to be applied in this case is the Jewish law “with such adaptations to the circumstances of the case as justice may require.” See Benjamin v. Benjamin. According to the Jewish law a betrothal is quite different to what it is generally understood to be under modern notions. It is not a mere contract to marry at some future time—it is the very initiation of marriage itself. Under the Jewish law a betrothal is a very solemn ceremony. A betrothed woman is in many respects a married woman. As in the case of marriages a betrothal cannot be dissolved except by a formal “Get” or Bill of Divorcement and so a betrothed woman unless she is freed by a “Get” would be bound for all time. If she has sexual intercourse with any one else it would be adultery. See Mielziner p. 76, para. 38. Conditional betrothments are allowed by Jewish law but there is no text of that law which lays down the general rule that where a woman is conditionally betrothed and the conditions are not fulfilled a deed of divorcement is not necessary to dissolve the betrothal. The passages relied on by the other side in Kadushin's book no doubt seem to indicate that a deed of divorcement would not be necessary, but those passages only refer to the special circumstances mentioned therein. They do not lay down a general rule for all cases. Mielziner p. 81, para. 42, says “A betrothment in regard to whose validity any doubt arises—on account of stipulated conditions which have not been fulfilled is either to be concluded anew according to the prescribed formalities or to be dissolved by a formal divorce”. The result of holding otherwise would be that the respondent may never be able to contract a valid marriage under the Jewish law. The betrothal was performed at Basra according to the Jewish rites and it can only be effectively dissolved in the manner laid down by the Jewish law and I submit that the only effective way under that law is by a deed of divorcement.
  • The Court has the power to compel the husband to execute a “Get”. In Benjamin v. Benjamin, two alternative reliefs were prayed for, viz., that either the defendant should execute a “Get” or that the Court should pass a decree for divorce. The Court adopted the second alternative but it did not hold that it had no power to order the husband to execute a “Get”. In Lindo v. Belisario, the Jewish Bethdin which is a tribunal of the highest authority were of opinion that a man may be compelled to give a divorce to a betrothed woman. This is a proper case in which the appellant should be so compelled.
Judges
  • Sir John Beaumont, C.J
  • Mr. Mirza, J.
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Smart Summary

Judgment Summary (Beaumont, C.J.; Mirza, J.)

Factual and Procedural Background

This appeal arises from a judgment of Mr. Justice Wadia dated 25 September 1930. The trial judge declared that a betrothal entered into at Basra on 5 July 1929 between the plaintiff (a woman) and the defendant (a man, resident of Bombay, acting by proxy) was null and void and not binding on the plaintiff. The trial judge further declared the parties separated and ordered the defendant to execute, within one week, a formal bill of divorcement (a "Get" or "bill of divorcement" according to Jewish law) in favour of the plaintiff under directions of the Jewish Conciliation Committee; costs of the suit were also awarded to the plaintiff.

Procedurally: the defendant (appellant in the appeal) lodged an appeal challenging findings of fact and conclusions of law, and applied for a stay of execution (refused by the Appeal Court). On appeal, the appellant ultimately accepted the trial judge's judgment except insofar as it directed execution of the bill of divorcement. The Appeal Court heard a preliminary objection by the respondent that the appellant was in contempt for failing to execute the bill and so was not entitled to appeal.

Key factual points found by the trial judge and not contested on appeal: in May 1929 the defendant sent his mother and sister to Basra to find a Jewish wife; they selected the plaintiff; on 5 July 1929 a betrothal ceremony "Kaseph Kiddushim" was performed in Basra by proxy; the parties returned to Bombay on 20 July 1929 and the plaintiff refused to proceed to the subsequent "Chuppa" nuptial ceremony because she did not approve of the defendant; the trial judge found the betrothal was made subject to specified conditions (age, appearance, income) which were not fulfilled, and therefore the betrothal was void.

Legal Issues Presented

  1. Whether a party who has disobeyed an order of the trial Court (by failing to execute a bill of divorcement) is disentitled to prosecute an appeal on the ground of contempt, particularly when the order complained of is alleged to be beyond the jurisdiction of the trial Court.
  2. Whether, when a Jewish betrothal ("Kaseph Kiddushim") is declared void because it was conditional and the conditions were not fulfilled, it is necessary for a Court to order the husband to execute a formal bill of divorcement (a "Get") to relieve the woman from the effects of the betrothal.
  3. Whether a civil Court can compel a husband (under penalty of its decree) to execute a Bill of Divorcement that, in form, requires the husband's act to be undertaken "of his own free will, without force".

Arguments of the Parties

Appellant's Arguments

  • The appellant's memorandum of appeal challenged the trial judge's findings of fact and legal conclusions generally, and specifically contended that the trial Court had no jurisdiction to order the defendant to execute a formal bill of divorcement.
  • On hearing, the appellant (through the learned Advocate General) accepted the judgment except for the part directing execution of the bill of divorcement — i.e., the appeal was pursued only on the jurisdictional point concerning the bill of divorcement.
  • The appellant applied for a stay of execution pending appeal, which application was refused by the Appeal Court.
  • It was contended (implicitly by pursuing the appeal) that a declaratory decree that the betrothal was void would be sufficient and a court-ordered bill of divorcement was unnecessary and improper.

Respondent's Arguments

  • The respondent (as advanced by Mr. Mathalone) raised a preliminary objection that the appellant, having failed to execute the bill of divorcement within the time ordered by the trial judge, was in contempt and therefore not entitled to prosecute the appeal.
  • The respondent urged enforcement of the trial Court's order and contemplated contempt proceedings once the appellant could be personally served with the decree.
  • The respondent initially did not concede that a declaratory decree alone would be sufficient to establish conclusively that the betrothal was void (the opinion records that one suggested advantage of a bill of divorcement is that it would give the wife conclusive evidence that the alleged betrothal was void and the defendant had no claim upon the plaintiff).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hill v. Bissel (King L.C.) That a person may move to discharge an order even though he is in contempt for not obeying it — i.e., contempt of an order does not universally disentitle a party from seeking relief on the ground that the order was without jurisdiction. The Court relied on this principle to reject the submission that the appellant's alleged contempt barred him from being heard on his appeal challenging jurisdiction.
Chuck v. Cremer (Cottenham L.C.) Authority supporting the view that a party is entitled to be heard if his object is to get rid of the order or other proceeding which has placed him in contempt. The Court cited this as reinforcing the rule that an appellant in contempt may challenge an order alleged to be without jurisdiction.
Gordon v. Gordon (Court of Appeal) Held that a party in contempt is not prevented from appealing against an order on the ground that the order was made without jurisdiction. The Court applied this precedent to conclude the appellant could be heard on the jurisdictional ground despite alleged contempt.
Benjamin v. Benjamin (Mr. Justice Crump) Holds that the Court has jurisdiction to grant divorce between Jews and that an ordinary civil decree nisi followed by decree absolute is sufficient; a separate bill of divorcement (Get) was not held to be necessary in that case. The Court invoked the reasoning of Benjamin v. Benjamin to support the proposition that a civil court can "untie the knot" by ordinary decree and that a bill of divorcement need not be compelled or required where the Court pronounces dissolution or declares a conditional betrothal void.

Court's Reasoning and Analysis

The reasoning of the Court proceeds in several connected strands. Two judges' reasons are recorded (Beaumont, C.J., and Mirza, J.). Their analyses overlap and reach the same practical conclusion.

On the preliminary contempt point:

  • Beaumont, C.J.: The general rule that a party in contempt cannot be heard has not been applied where the order alleged to have been disobeyed is challenged as beyond the Court's jurisdiction. It would be anomalous to compel compliance with an order that is claimed to be a nullity before permitting challenge. Consequently the preliminary objection that the appellant was in contempt fails and the appeal should be heard.
  • Mirza, J.: Observed that an order made without jurisdiction is a nullity and there can be no contempt of a nullity. Cited authorities (Hill v. Bissel; Chuck v. Cremer; Gordon v. Gordon) to the effect that being in contempt of an order does not bar a person from appealing on jurisdictional grounds. Mirza, J. also considered that the appellant had some justifiable excuse for not complying while the appeal was pending because executing a bill of divorcement might render his appeal ineffective (i.e., it could be irreversible under religious law).

On the legal nature of the betrothal and whether a bill of divorcement is necessary:

  • The Court accepted the trial judge's factual finding that the betrothal ("Kaseph Kiddushim") was conditional and that the conditions were not fulfilled, rendering the betrothal void.
  • The Court reviewed the nature of Jewish betrothal and marriage as explained in the trial judge's judgment and in the evidence (citing authorities such as Mielziner and Professor Ezekiel). It noted that a valid betrothal confers some marital status (preventing the woman from marrying another man) and that a "Get" (bill of divorcement) is traditionally required to free the woman from that status.
  • The Court relied on Jewish legal texts (Eben Ha-Ezer and examples from Rabbi J.L. Kadushin's Jewish Code of Jurisprudence) to the effect that a conditional betrothal which fails the condition is void and need not be followed by a bill of divorcement — an illustrative rule being that where the condition is not fulfilled the betrothal is void and the woman may become betrothed to another without a Get from the first.
  • Beaumont, C.J. reasoned that when the betrothal is void a civil court's declaratory decree that the betrothal is void supplies evidence as good as a bill of divorcement; therefore a Get is not necessary in such a case.
  • Beaumont, C.J. further held that the Court cannot compel a man to execute a bill that, by its form, requires him to declare that he is doing so "of his own free will" when in fact he would be acting under compulsion; nor can the Court physically compel handing over of the document — thus practical and doctrinal objections arise to compelling a religious form by civil decree.
  • Mirza, J. amplified these points: the decree had delegated the form of the bill to the Jewish Conciliation Committee (which the learned judge had not properly empowered), producing extra-judicial delegation issues; the ritualistic aspects require that the husband's act be free and not under compulsion; and Benjamin v. Benjamin supports a civil court pronouncing dissolution or otherwise dealing with Jewish marital incidents without insisting upon a religious Get where unnecessary. He concluded that a court decree declaring a conditional betrothal null rendered any insistence on a Get superfluous.

Remedial adjustment proposed by the Court:

  • Beaumont, C.J. concluded that while the direction to execute a bill of divorcement should be struck out, the Court should, because of the defendant's conduct (which suggested harassment and possible failure to comply), substitute an injunction restraining the defendant from asserting by writing, word or act that he is married or betrothed to the plaintiff or that she is in any way bound to him. Otherwise the declaratory and separation parts of the trial judge's order would remain.
  • Mirza, J. agreed with the Chief Justice's proposed order and reasoning.

Costs: Beaumont, C.J. observed that the appellant's grounds covered a wider area than the point actually argued, but because the appellant succeeded on the point argued (which was contested), the appropriate order was that there be no costs of the appeal.

Holding and Implications

CORE HOLDING: The appeal is allowed in part and the decree of the trial Court is varied.

Specific operative effects of the Court's decision:

  • The trial Court's declaratory finding that the conditional betrothal ("Kaseph Kiddushim") was void and not binding on the plaintiff is upheld.
  • The direction in the trial Court's decree requiring the defendant to execute a formal bill of divorcement (Get) is struck out as unnecessary and improper; the Court cannot properly compel the husband to execute a religious form that must be given freely and physically delivered by him.
  • In substitution for the struck-out direction, the Court ordered an injunction restraining the defendant from asserting in any manner (by writing, word or act) that he is married to or betrothed to the plaintiff or that she is in any way bound to him.
  • There will be no costs of the appeal (the appeal allowed in part but no costs awarded).
  • Formal notation in the record: "Decree varied." (As recorded at the end of the opinion.)

Broader implication: The Court applied existing authorities and Jewish legal texts to hold that a civil declaratory decree can adequately remove the civil/religious effects of a conditional betrothal found to be void, and that compelling execution of a religious bill of divorcement is both doctrinally problematic and practically unworkable. The opinion does not purport to create a novel rule of law beyond applying these existing principles.

Order: Decree varied.

Attorneys (as recorded): For appellant: Messrs Solomon & Co. — For respondent: Messrs Thakordas & Madgavkar.

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    David Sassoon Ezekiel v. Najia Noori Reuben

    Beaumont, C.J:—

    This is an appeal from a judgment of Mr. Justice Wadia, dated September 25, 1930, by which the learned Judge has declared that the betrothal between the plaintiff and the defendant entered into with the minor plaintiff on behalf of the defendant at Basra on July 5, 1929, is null and void and is not binding on the plaintiff. He has further declared that the plaintiff is separated from the defendant and then he has ordered that the defendant do execute a formal bill of divorcement in favour of the plaintiff according to the requirements of the Jewish law within one week from the date of the order by taking such necessary steps and doing all such acts and things as may be necessary according to the directions of the Jewish Conciliation Committee, and has further ordered that the defendant do pay to the plaintiff the costs of the suit.

    The first point taken by Mr. Mathalone, on behalf of the respondent, is that inasmuch as the defendant has not executed the bill of divorcement within the time required by the order he is in contempt and is not entitled to present this appeal. No doubt the general rule is that a party in contempt is not entitled to be heard, but that rule has never been applied to a case in which the order, for the breach of which contempt is alleged, is challenged on the ground of want of jurisdiction: and the grounds of appeal in this case do assert that the learned Judge had no jurisdiction to order the defendant to execute a formal bill of divorcement. It would certainly be a strange thing if a party directed to do an act by an order beyond the competence of the Court to pass, and therefore in law no order, were compelled to do the act before he could challenge the Order. I think, therefore, the preliminary objection fails and this appeal should be heard.

    The memorandum of appeal and a further memorandum containing additional grounds of appeal which were lodged by the appellant challenged the whole of the findings of fact and the conclusions of law arrived at by the learned Judge, but on the hearing of the appeal the learned Advocate General on behalf of the appellant has accepted the judgment except in so far as it directs the defendant to execute a formal bill of divorcement. It is not necessary, therefore, for this Court to consider all the interesting questions which are covered by the judgment. For the purposes of our decision the facts can be set out very shortly. In May 1929, the defendant, who is a resident of Bombay and a member of the Jewish community, sent his mother and sister to Basra with a view to finding him a wife also of the Jewish community. After certain negotiations the mother and sister selected the plaintiff suitable wife, and on July 5, 1929, the ceremony of betrothal known as the “Kaseph Kiddushim” was gone through in Basra, the defendant acting by means of a proxy. According to the evidence, under the Jewish law a Jewish marriage consists of two parts, viz., the betrothal ceremony known as the “Kaseph Kiddushim” and a further ceremony known as “Chuppa”, that is, a ceremonv of nuptials. After the betrothal ceremony had been gone through the parties returned to Bombay, and on their arrival there on July 20, 1929, the plaintiff declined to marry the defendant as she did not approve of him. On June 24, 1930, this suit was filed, and it was heard on September 15.

    The plaintiff's case was that the betrothal ceremony was entered into by her subject to certain specified conditions relating to the age, personal appearance, and income of the defendant, and that she stipulated that unless she was satisfied that those conditions were fulfilled the betrothal ceremony should be void, and she should not be compelled to go through the further “Chuppa” ceremony. The learned Judge found as a fact that the plaintiff's case as to the imposition of conditions was proved, and that the betrothal ceremony was in fact entered into subject to certain conditions, the character of which I have mentioned, and that those conditions had not been fulfilled. The point, therefore, which we have to consider is whether, when you have a betrothal ceremony subject to conditions; which have not been fulfilled, it is necessary, in order to get rid of the effects of that ceremony, to have a formal bill of divorcement.

    The nature of the betrothal ceremony is discussed by the learned Judge in his judgment and I can take his statement as being accurate. He says:—

    “It is the plaintiff's case further, that even if it is held that the betrothal was not subject to a condition and was valid and complete, the marriage is still incomplete, as the essential final ceremony of ‘Chuppa’ or the nuptials was not performed. The defendant, however, contends that the ‘Kaseph Kiddushim’ is the operative part of the ceremony, and that the ceremony of ‘Chuppa’ or the nuptials is not essential to constitute a valid marriage and that the ‘Kaseph Kiddushim’ ceremony establishes the marital relationship between the parties and confers conjugal rights upon them without the performance of ‘Chuppa’ ceremony. It is true that under the Hebrew law a betrothal is something more than a mere promise to marry. In fact it is the very initiation of the marriage. The betrothed parties, according to Dr. Mielsiner, ‘are in some respects regarded as married, though not yet entitled to the marital rights, nor bound to fulfil any of mutual duties of conjugal life as long as the marriage was not consummated by the nuptials.’ The effect of a valid betrothal is that the betrothed woman cannot marry any other man and an only be separated from the man to whom she is betrothed by a legal divorce. On the other hand, the woman is entire mistress of her property, both for the purposes of use and disposition; and the man to whom she is betrothed is not obliged to maintain her, nor can he inherit any of her property, if after the betrothal she died intestate. Professor Ezekiel stated in his examination-in-chief that the ‘Kaseph Kiddushim’ is a ceremony or a consecration by which the woman becomes the wife of the man, but in cross-examination he admitted that the betrothed woman acquired the status of a wife only in so, far as she could not marry any other man until she was divorced, and further that she could not be compelled to go through the ‘Chuppa’ ceremony. It comes to this, according to him, that she is a wife, but at the same time she cannot be compelled to live with the betrothed man as his wife.”

    So that it is clear that the betrothal ceremony, if it is a valid ceremony, is something more than a betrothal between Christians, and is not a mere contract which the parties can set aside at will, but confers some of the rights and obligations of the married state. The effect of imposing conditions in respect of the betrothal ceremony appears from one of the Jewish books, Eben Ha-Ezer, Chapter, 38, Verse 24. It is there stated:—

    “(Should a man say to a woman, ‘Be thou betrothed to me), on condition that I am rich and he was found to be poor or that I am poor’ and it was subsequently ascertained that he was rich …” (Then various other forms of conditions are mentioned and the Work goes on): “in all these and similar cases, the betrothal is void even though the woman declares she was resolved to be betrothed to the man, notwithstanding his misrepresentation”

    That statement is not challenged by either of the parties and it is admitted that the betrothal being in this case proved to have been upon conditions not fulfilled is void. It was suggested in the lower Court and was at first argued in this Court, though the point was subsequently abandoned, that unless the conditions were in a particular form they were of no effect. Rabbi J.L Kadushin in his work, Jewish Code of Jurisprudence, 1921, states that the conditions must conform to certain specific rules, but the illustrations, which he subsequently gives, seem to ignore the rules which he pays are essential. The illustrations Nos. 7 and 8 given by the learned author are worth noticing, because they exactly cover the point which we have to decide. He states:—

    “7. If the man says to her: ‘Thou art betrothed to me with this cent on condition that I give you one hundred, zuz within thirty days from now,’ the betrothal takes effect from now on if he has complied with such a condition within the thirty days. (L.c).

    “8. If before the expiration of the thirty days, she accepts betrothals from another man, she becomes betrothed conditionally until the expiration of the thirty days. If at the end of the thirty days the first man failed to comply with the condition, the betrothal of the second takes effect and the betrothal of the first becomes void and she is not required to obtain a bill of divorce from the first … (L.c).”

    So that the learned author states that if the betrothal is void it is not necessary to have a bill of divorcement. It was held in the case of Benjamin v. Benjamin by Mr. Justice Crump that this Court has jurisdiction to giant divorce between Jews, and the learned Judge held that in such a case an ordinary decree nisi followed by a decree absolute was sufficient and that it was not necessary to have a bill of divorcement. I think that the reasoning of that case would apply to the case of a valid betrothal in so far as the betrothal goes beyond an ordinary contract, and cannot be set aside by a mere act of the parties. I think the Court would have jurisdiction to untie the knot by the ordinary decree of the Court, and that it would not be necessary, any more than in the case of a decree for divorce, to have any bill of divorcement. But Mr. Mathalone says that inasmuch as the betrothal in this case was void the Court cannot decree any formal divorce because there is nothing upon which the decree can operate. That no doubt is true, but it is equally true that there is in fact nothing upon which the bill of divorcement can operate. The only suggested advantage in the bill of divorcement is that it would give the wife conclusive evidence that in Ezekiel fact the alleged betrothal was void, and that the defendant had no claim upon the plaintiff. In my opinion the decree of a Court of competent jurisdiction declaring the betrothal void supplies the wife with evidence quite as good as a bill of divorcement. I think, therefore, that the betrothal being void it is not necessary to have a bill of divorcement. I think further that there is a good deal of force in the contention of the learned Advocate General that the Court cannot compel the husband to execute a bill of divorcement. It appears from the form of such a bill of divorcement, at page 129 of Mielziner's Jewish Law of Marriage and Divorce, that the husband states therein: “I… do hereby consent, with my own will, without force, free and unrestrained, to grant a Bill of Divorce…” It is clear that the Court cannot order a man to state that he does a thing of his own free will, when in fact he is doing it under compulsion. Moreover, it appears from the evidence that the bill of divorcement to have any effect must be handed over by the husband to the wife, and the Court cannot compel the husband physically to hand over the document to the wife. I think, therefore, that the appeal must succeed to the extent that the order made by the trial Court must be varied by striking out the direction upon the husband to execute a bill of divorcement. But as the defendant has, I think, throughout these proceedings shown every desire to harass the plaintiff, and as I am not satisfied that he will carry out the terms of the order, I think that the Court should substitute for the order to execute the bill of divorcement an injunction to restrain the defendant from asserting in any manner whether by writing, word or act that he is married or betrothed to the plaintiff or that she is in any way bound to him. There will be that variation in the order, otherwise the order will stand.

    As regards the costs of the appeal, the grounds of Beaumont appeal covered a much wider area than the point which was actually argued. On the other hand, the appellant has succeeded on the point argued which point was not conceded by the respondent. I think the proper order will be that there be no costs of the appeal.

    Mirza, J.:—A preliminary point has been taken in this appeal on behalf of the respondent that the appellant has committed contempt of Court and should not be heard. Mr. Justice Wadia ordered the appellant within seven days of the date of his judgment to execute in favour of the respondent a formal bill of divorcement in accordance with the directions to be given by the Jewish Conciliation Committee, which is said to arrange the formalities of a divorce among the Jews in Bombay. The decree was made on September 25, 1930. The appellant filed this appeal on September 30, 1930, one of the grounds taken being that the Court had no jurisdiction to order the defendant to execute a bill of divorcement. The appellant thereafter moved the Appeal Court for a stay of execution pending the disposal of the appeal. The Appeal Court refused the application. The seven days allowed by the decree have since expired but the appellant has failed to execute the bill of divorcement as directed by Mr. Justice Wadia to do. The respondent contemplates taking proceedings in contempt against the appellant, but to be able to do so it is necessary that the appellant should be personally served with the Court's order of which he is said to be in contempt. The decree has long since been ready for being served, but has remained unserved as the appellant cannot be found and his whereabouts are unknown even to the attorneys who represent him in this appeal. It is clear that having failed before the Appeal Court in his application for stay the appellant has deliberately kept out of the way of the respondent to avoid being served with the trial Court's order. Possibly he realises that if he does comply with the trial Court's order, the main object with which he has filed this appeal might be frustrated as the bill of divorcement he would execute might be held to be effective against him whatever may be the result of this appeal. Whatever may be the motive for the appellant's non-compliance with the order, his conduct seems to amount to a contempt of the Court's order, and he would seem to have no answer to such a charge if it were made after properly serving him with the Court's order, except that the order was without jurisdiction and should be discharged. The question before us is whether the contempt committed by the appellant is such as to disentitle him from being heard on this appeal.

    It may be noted that the contempt complained of is not a contempt of any order made by this Court, although Mr. Mathalone's argument seemed to imply that the appellant, in view of the dismissal of his application for stay by this Court, is defying this Court by his present conduct; but the contempt is a contempt of the trial Court's order against which the appellant has appealed to this Court inter alia on the ground that the trial Court had no jurisdiction to make the order.

    It is clear on the authorities that an order which is made without jurisdiction is a nullity. There can, therefore, be no contempt of such an order. A person whose case is that an order which he has disobeyed was without jurisdiction can be heard on that point although he may at the time be in contempt of that order. There is no need in such a case to require the party in contempt to purge himself of the contempt as a condition for being heard. In Hill v. Bissel, King L.C observed: “You may move discharge an order, though you are in contempt for not obeying it.” So also in Chuck v. Cremer Cottenham L.C has observed that a party is entitled to be heard if his object is to get rid of the order or other proceeding which has placed him in contempt. In Gordon v. Gordon the Court of Appeal has held that a party who is in contempt is not prevented from appealing against an order on the ground that the order was made without jurisdiction.

    Apart from challenging the order of the trial Court as a nullity, the appellant, in my opinion, has had some justifiable excuse for not wanting to carry out the trial Court's order while the appeal was pending. The bill of divorcement, if executed, would, in my opinion, have the effect under the religious law applicable to Jews in matters of divorce, of nullifying the “Kaseph Kiddushim” ceremony by which the parties were betrothed. It is doubtful in my judgment whether the appellant, though he might be successful in the appeal on merits, could be restored to his former position under the “Kaseph Kiddushim”, if he had already executed a bill of divorcement in accordance with Jewish rites.

    The appellant, in my opinion, is entitled to be beard on this appeal.

    Many points were taken in the grounds of appeal, but the learned Advocate General on behalf of the appellant has abandoned all grounds except the ground relating to the Court's jurisdiction to pass an order requiring the appellant to execute a bill of divorcement according to Jewish rites. The appellant does not now object to the part of the decree of the lower Court whereby it is declared that the betrothal between the respondent and the appellant is void and not binding on the respondent and that the respondent is separated from the appellant. The Advocate General has urged that the declaratory part of the decree should be deemed to be sufficient in this case and that the other part of the decree which requires the appellant to execute a bill of divorcement is both unnecessary and improper.

    The learned Judge did not settle the form of the bill of divorcement which the appellant was required to execute. He left the form to be determined by the Jewish Conciliation Committee of Bombay. No liberty to apply is reserved by the decree. It is difficult to see what the Court would do in such a case in execution of the decree if the appellant and the Conciliation Committee did not agree on the form of the bill of divorcement, or the Conciliation Committee, who are not parties to the suit, declined to act in the matter. This part of the decree seems to me to be extra-judicial in so far as it purports to delegate to the Conciliation Committee the power to determine the form of the bill of divorcement.

    If the bill of divorcement is to be in the form set out in Mielziner's book on Jewish law, fresh difficulties would seem to arise in execution. According to this form the appellant would have to declare that he is executing the bill of divorcement of his free volition when he would be doing it under the compulsion of the Court's decree. The matter seems to me to be so much intermixed with ritual, and there are so many details more or less of an archaic nature to be attended to, that no Court should compel a party to execute a bill of divorcement under the Jewish religious law. The spirit as well as the letter of the Jewish law in this matter seem to require that the bill of divorcement on the part of the man should be free from any outside compulsion such as would be implied in a Court's decree. There seems to be the less justification for compelling an unwilling person to execute a bill of divorcement under the Jewish law when it has been held that the Court has power to pronounce a divorce in Jewish cases as in other cases. In Benjamin v. Benjamin Crump, J. granted a decree nisi for dissolution of marriage where the parties were Jews. The learned trial Judge has felt a doubt whether he can properly grant a divorce in the present case where the marriage has not been completed by the “Chuppa” ceremony. As the effect of the “Kaseph Kiddushim” ritual is to consecrate the woman to the man and make the ritual of “Get” or bill of divorcement necessary before the woman can lawfully marry another, it would seem that the ruling in Benjamin v. Benjamin could be applied to of “Kaseph Kiddushim” as much as to a completed marriage.

    In this case there is no need, in my opinion, to pass a decree nisi for divorce. The learned Judge has rightly come to the conclusion that the betrothal ceremony, which was gone through at Basra, was a conditional betrothal, and had become null and void as the conditions on which the respondent had betrothed herself to the appellant were not fulfilled. A direct text is quoted in Rabbi J.L Kadushin's Jewish Code of Jurisprudence, 1921, Part IV, Chapter XXXVIII, page 394, to the effect that in the case of a conditional betrothal it is permissible to a woman under the Jewish religious law to affiance herself to a second man while time is given to the first betrothed man to comply with the condition which has been imposed on him under his betrothal. Should the first betrothed man fail to comply with the condition under his betrothal within the stipulated time, his betrothal becomes void and the second betrothal can then take effect, although there is no bill of divorcement from the man who was first conditionally betrothed. It is clear from this text that there is no need for a bill of divorcement where a conditional betrothal has become null and void by failure on the part of the man to fulfil the conditions of the betrothal. Where a betrothal is declared by the Court to be null and void, as in the present case, it would be superfluous, in my opinion, to insist upon a bill of divorcement from the appellant.

    I agree with the order proposed by the learned Chief Justice.

    Attorneys for appellant: Messrs Solomon & Co.

    Attorneys for respondent: Messrs Thakordas & Madgavkar.

    Decree varied.
    B.K.D
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