S.K.Mukherjea, J.:-
(1) This appeal concerns an unfortunate marriage of a young couple and its still more unfortunate sequel. Lakshmi sanyal, the appellant before us, a girl of 19, born of respectable parents and of good education might have married the respondent sachit kumar dhar her first cousin only for love, but she married him when she did, largely compelled by circumstances. It appears that the girl is sensltive, all too human, and basically of good nature but lacking in purpose and strength of will. Unhappily for her, she has found no moorings in life.
(2) As is only to be expected, the girl knew her cousin from her early childhood. But it seems that he did not mean much to her until 1958 when on his return from europe they were thrown into close proximity, more by accident than by design. The respondent had become a roman catholic christian in 1952 and developed a certain passion for his adopted faith which he still retains. He seems to have drawn upon the roman catholic church not only for his spiritual sustenance but also for his career. He lectures and writes on christian theology and comparative religion. Through the church he has found many friends at home and abroad.
(3) The parties saw a great deal of each other and fell in love. Some of the love and affection survived the crdeal of marriage. Writing to him shortly after her marriage, she calls herself 'one who always disturbs you, teases you' - and adds 'but there is no way out as we are partners throughout our life and even on death. Is not that so?'
(4) Elsewhere in her correspondence there is a certain wistfulness, a sense of tears in things. She writes : - 'i switched on the radio. An appropriate song was in the air - clouds are gathering upon clouds - do you remember the words ? outside, the sky has become dark, overcast with clouds - no, let me talk of other things or else it will be distressful. Since last night i have been thinking of the beautiful thoughts and words of your letter with a keen feeling of pleasure. I have lost the power of writing. Now my only desire is to talk to you in silence. " again, she writes : dearest, i never knew anyone could be so good, so utterly wonderful until i knew you. But is it necessary to describe my feelings ? by description, i cannot convey my feelings at all. Your beauty, your virtues everything of yours makes me smile and cry at the same moment. What a power you have; what a precious thing i have got; how fortunate i am. The beauty and sincerity of her feelings break through and light up the drab and inept official translation.
(5) This is not the cry of anguish of a girl who has been induced by fraud, coercion and undue influence to marry the man she does not love, as she wishes the court to believe.
(6) There is no mistake that they fell in love or at least, she did. Intimacies took place, and late n 1959 she discovered that she was going to have a baby. She was in a fix. She dared not tell her parents about her predicament. She must marry quickly for that was the only way she could avoid the stigma of an unmarried mother and the bleak future which lay in store for her. The parties stood within the prohibited degrees of consanguinity. How was any marriage possible ? sachit was himself a roman catholic. He had heard or read that such marriages are possible in certain circumstances under the rules of the roman catholic church. He went to father antoine, a roman catholic priest and a lecturer in comparative literature at the jadavpur university. Father antoine knew him well. He also took lakshmi to see him. Father antoine's evidence is, and his evidence has been believed by the learned trial judge, that he told her there were three courses open to her; she could resign herself to the fate of an unmarried mother and bring up her child, she could remain a hindu and marry the respondent with double dispensation obtained from the roman catholic church; the third alternative posed by him was that she could become a roman catholic and marry him with a single dispensation from the church. The parties chose the last course. There is evidence that from december 1958 she started taking religious instructions from father antoine with the object of ultimate conversaon. It may be added that she appears to have evinced some interest in the christian religion, even before she started taking instructions.
(7) On january 5, one l. Ameye, a priest of st. Thomas presbytery applied to the archbishop of calcutta for dispensation regarding the impediment of consanguinity on the ground of 'paucitas; loci' i. E. Non - availability of suitable partners for marriage. The dispensation was granted on january 8. On january 7, the appellant signed in blank the questionnaire in the application for banns kept at the presbytery of st. Ignatius church. It appears from the original document that the answers to the questionna re were puled in not by herself but by others. A certified copy of the questionnaire with the answers was made an exhibit at the trial. From her answers it appears that she is a roman catholic; that she is related to her future husband as a first cousin on her mother's side; that she is baptized at st. Ignatius church. Calcutta on january 29, 1959; her place of residence is ilazaribagh; that she is marrying freely; that it is not known whether her parents agree to the marriage and in answer to the question if parents do not agree to the marriage, why not. It is said, 'the girl is 19'.
(8) None of these answers except for her place of residence transpired to be incorrect. As for consent of parents, it is clear that no one asked for such consent and the question, therefore, did not arise. In fact, it was only after she had left the protection of her parents early on the 29th and had been converted into christianity that father antoine told her father in the afternoon that she had been baptized in the morning and v/as going to marry the respondent on the 30th. Father antoine also told him that she was expecting a child.
(9) On january 29, she was baptized at st. Ignatius church and on january 30 she married the respondent. The marriage was solemnized by father antoine according to the rules and rites of the roman catholic church.
(10) Immediately after the marriage, the parties left for hazaribagh where the respondent had found employment as a teacher, thanks to the rector of st. Xaviers". In may 1960, a daughter was born. Another daughter was born in 1961. The parties lived happily till 1962 or so it appears from the correspondence on record. There is no question that the parents were fond of the children, if the correspondence is any indication. Then, the respondent says, a change came upon hen. She grew cold and indifferent. In 1963 the parties returned to calcutta to live in the matrimonial home at park lane. Through the efforts of father antoine the appellant found employment in a college where she taught for a short time. She also took the degree of master of arts in english language and literature. In september 1965 she went to live with her parents at hindustan park with her children never to return to the respondent. Later she left for bombay where she lived by herself. The respondent made several attempts at reconciliation. Then he visited her in bombay in april 1966 and tried to persuade her to return. At first it seemed to him that she gave him reasons for hope but later he found she could not make up her mind and wanted further time. In his evidence the respondent said he thought god wanted him to leave her alone. He thought his mission had failed and he returned to calcutta in june 1966.
(11) Soon after his return the present suit was instituted by the appellant in july 1966 by a petition under the indian divorce act for a decree of nullity.
(12) In her petition the appellant says that sometime in 1958 she was criminally assaulted by the respondent at the respondent's house at 5, park lane where she was staying with the respondent's mother. Thereafter the respondent gradually developed a hold on her by threatening to disclose to her parents and friends that she was no more a virgin and the respondent had physical relations with her against her wishes. Under duress, intimidation and undue influence practised upon her between 1957 and august 1959 the respondent had on several occasions intercourse with her against her will as a result whereof she became enceinte in august 1959. She was full of shame and was in fright. On the advice of the respondent she went to father antoine on or about december 30, 1959 and all the facts were placed before him.
(13) On the fraudulent advice of father antoine that the only way out was to become a christian and marry the respondent, the appellant was baptized against her consent as a roman catholic on january 29, 1960 at the church of st. Ignatius. Her consent, if any, was obtained by fraud collusion, duress and undue influence practised upon hearby the respondent and the said father antoine. She denied that she was a resident of st. Xavier's, hazaribagh on january 29 or 30, 1960. The entry in the marriage register that she was resident at the time of the pretended marriage in hazaribagh is false and has been made by fraud and in conspiracy and collusion between the respondent and father antoine.
(14) On january 30, 1960 in fact but not in law the appellant went through a form of christian marriage at the church of st. Ignatius with the respondent. The clergyman officiating at the said marriage was father antoine. The said void marriage was an attempted fraud on the customary law of india and the relevant statutes and her consent, if any, was obtained by fraud, coercion and undue influence practiced upon her by the respondent and the said father antonie.
(15) Soon after the pretended marriage the respondent commenced treating the appellant with mental and physical cruelty without any provocation or reasonable cause resulting in her nervous breakdown and causing her to entertain the apprehension that her life was in danger. The respondent has no love, affection and consideration for the children and treats them with great cruelty and it is dangerous to permit the children to be in his custody and care.
(16) The parties are governed by the dayabhaga school of hindu law.
(17) She has been advised that the said pretended marriage is a nullity inter alia on account of the relationship between the parties. The said marriage is void and not binding in law 3. 4 it would permit incest by marriage between children of two cognates, and is opposed to public policy, customary law and personal law of the parties,
(18) On these allegations the appellant asked for a decree of nullity.
(19) The suit was heard by mr. Justice ghose. By a decree dated september 26, 1967 the learned judge dismissed the suit.
(20) As regards allegations of fraud, duress and undue influence the only particulars which the appellant has pleaded and to which she has deposed are that it was represented to her by father antoine and the respondent that there was no way out for her but to embrace christianity and marry the respandent. Father antoine also told her. She deposed, not to tell her parents anything because they were not likely to understand. Even if her evidence be accepted, though the learned trial judge has disbelieved her, these representations can hardly be held to be fraudulent unless the court is satisfied that the respondent and father antoine who made those representations did not believe them to be true. There is no averment in the petition that father antoine or the respondent knew that those representations were false nor is there any evidence in the behalf. Moreover, an expression of opinion, without more, can hardly be said to constitute fraud. The learned trial judge held that no fraud, duress or coercion was practised on her and we do not see any reason why we should differ from him on this aspect of the case. He accepted the evidence of father antoine whose testimony, in our opinion, was not shaken in the least in cross - examination. Strictly speaking, there was hardly any scope for leading any evidence at the trial on allegations of fraud, coercion or undue influence having regard to the complete absence of material particulars in the pleadings.
(21) The answers to the questionnaire in the application for marriage were hardly challenged at the trial nor was it contended that the answers were given without the appellant's knowledge, consent or authority. At the hearing of the appeal it was sought to be urged that the statement made in the application that she was a roman catholic or that she was baptized on january 29 was not a fact on january 7 when she subscribed her signature. That is indisputably so. But the fact remains that she was in fact baptised on january 29 and at the date of marriage, that is to say, on january 30, she was a roman catholic. All the answers except one to which i shall presently refer transpired to be correct and it cannot be said that there was any suppression of facts as they stood at the date of the marriage. There was no suppression because it appears clearly from the answers that she was not baptized till january 29. The only answer which is clearly wrong is that she was a resident of hazaribagh. She left 3or hazaribagh to live with the respondent immediately after the marriage and not before. Be that as it may, an incorrect declaration as regards the place of residence of a party to a marriage is a mere irregularity which does not render the marriage void as is clearly laid down in sub - section (1) of section 77 of the indian christian marriage act (act xv of 1872).
(22) A point which was not taken in the pleadings or at the trial, was raised at the hearing of the appeal. It was argued that at the date of marriage the appellant was a minor within the meaning of the indian christian marriage act. As the consent of her parents had not been given to the marriage it was contended that the marriage was void under the statute as also under the laws of the roman catholic church. In any event, learned counsel argued, the marriage was void under the indian contract act having regard to the fact that she was a minor in the eye of law and therefore, not competent to make a contract.
(23) In section 2 of the indian christian marriage act the word 'minor' has been denned to mean a person who has not completed the age of 21 years and who is not a widower or a widow. The appellant was, therefore, a minor at the relevant date.
(24) Section 4 and section 5 of the act provides : section 4. Every marriage between persons, one or both of whom is or are a christian or christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with sueh provisions shall be void. Section 5. Marriages may be solemnized in india -
(1) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the church of which he is a minister; (2) by any clergyman of the church of scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the church of scotland; (3) by any minister of religion licensed under this act to solemnize marriages; (4) by, or in the presence of, a marriage registrar appointed under this act; (5) by any person licensed under this act to grant certificates of marriage between indian christians, part iii of the act comprising of section 12 to 2g relates to marriages solemnized by ministers of religion licensed under the act. Section 19 provides : section 19.
The father, if living, of any minor, or, if the father be dead, the guardian of the person of such minor, and, in case there be no such guardian, then the mother of such minor, may give consent to the minor's marriage, and such consent is hereby required for the said marriage, unless no person authorised to give such consent, be resident in india.
(25) It was urged by learned counsel for the appellant that as no consent was given to the marriage by the parents of the girl it is hit by section 19. The answer is simple. No doubt, the girl was a minor at the relevant date within the meaning of the act which applies to all christian marriages. But the section can have no application in this case because the marriage was solemnized not by a minister of religion licensed under the act but by a person who had received episcopal ordination as contemplated under subsection (1) of section 5 of the act. The question, therefore, arises whether the marriage of a minor of the age of 19 is prohibited by the rules of the roman catholic church and if so, whether a marriage contracted in spite of such prohibition is void. The rules of marriage of the roman catholic church are to be found in canon law. Canon 88 provides that a person who has completed the 21st year of age is a major; under that age a minor. Canon 1067 provides that a man before completing his 16th year and a girl before compdeting her 14th year cannot contract a valid marriage. In the present case the appellant, a girl of 19, had the legal capacity to contract a valid marriage although she was a minor. The question then arises whether under canon law she required the consent of her parents to validate the marriage.
(26) Canon 1034 enjoins that the pastor must seriously dissuade minor sons and daughters from contracting marriage without the knowledge or against the reasonable wishes of their parents; in case they refuse to obey, he should not assist at their marriage without having first consulted the ordinary. Not only there is no prohibition against marriage of a minor in the absence of the consent of his or her parents but there is also no provision in canon law which enjoins that the marriage of a minor who has reached the age of capacity to contract a marriage shall be void on the ground of lack of consent of his or her parents. In the commentary on canon law by bouscaren, ellis and korth, 4th edition it is said at page 490 - "the validity of the marriage of the minors even against the wishes of their parents, provided they have reached the canonical age, is no longer in question, and has not been since the council of trent. The council of trent, it may be added, had its session in 1545. From the standpoint of canon law the objection to the validity of the marriage on the ground of lack of consent of parents must, therefore, fail.
(27) Counsel relied on a note in the application for marriage to the effect that
"minors must bring a written statement from their parents or guardian showing that they do not object to the marriage."on the basis of this note. He argued that under the rules, of the roman catholic church no marriage of a minor can be solemnized in the absence of consent of parents. The rules of the roman catholic church as found in canon law do not prohibit such a marriage. The note, therefore, must be regarded as having been inserted ex abundanti cautela and not as a part of the rules of marriage of the roman catholic church.
(28) In this connection reference may be made to section 77 of the indian christian marriage act which specifically provides that whenever any marriage is solemnized in accordance with the provisions of sections 4 and 5, it shall not be void merely on account of any irregularity in respect of any of the following matters, namely : - any statement made in regard to the dwelling of the persons married, or to the consent of any person whose consent to such marriage is required by law. In the present case no consent of the parents was required under section 19 or under the rules of the roman catholic church to validate the marriage. But even if such consent were required, the absence of such consent could not have rendered the marriage void having regard to the express provision of section 77 (1).
(29) Counsel contended that the appellant, a minor, could not enter into a valid contract of marriage and the marriage was, therefore, void under the indian contract act. This argument can be disposed of very shortly. Marriages are governed by special statutes as for example, in this case by the indian christian marriage act and not by the indian contract act. In any event, the appellant was not a minor under the general law of the land, i. E. The indian majority act and could validly enter into a contract. Moreover, it has to be borne in mind that a christian marriage solemnized under the rules and rites of the roman catholic church is a sacrament although no doubt it also partakes of the nature of a contract. It is said in canon 1012 : -
"christ our lord elevated the very contract of marriage between the baptized persons to the dignity of a sacrament. Therefore, it is impossible for a valid contract of marriage between baptized persons to exist without being by that very fact a sacrament."
For all these reasons, the indian contract act can have no application to the marriage.
(30) Counsel relied on a statement of the law in halsbury's laws of england 3rd edition vol. 12 para 420 where it is said that a marriage is void where either party is not of age. He also cited an observation of lord goddard in (1) r. V. Algar 1953 (2) all. E. R. 1389 that
" a marriage is void where there is bigamy, consanguinity, nonage or where it has been celebrated contrary to the requirements of law now collected or enacted in section 25 to section 49 of the marriage act, 1949". In the context of the statute 'non - age' means age below 16. In any event, the marriage act of 1949 has no application in india.
(31) In the indian divorce act, minority of a party to the marriage is not one of the grounds specified in section 19 on which a decree of nullity can be claimed. In (2) gasper v. Gonsalves 13 bengal law reports 109 it was held by pontifex,. 1. That the legislature intended that the grounds mentioned in section 19 of the indian divorce act are exhaustive and should not be construed as being by way of example only. The reason given was that the indian divorce act by section 4 enacts that the matrimonial jurisdiction of this court shall be exercised subject to the provisions in that act contained and not otherwise. The same view was taken by the patna high court (3) lish v. Lish a. I. R. 1923 pat. 301 and the allahabad high court in (4) titli v. Jones a. I. R. 1934 all. 273. In my judgment the ground of minority which is not one of the grounds specified in section 19 cannot be urged in support of a decree of nullity in proceedings initiated by a petition under the indian divorce act.
(32) In this context, the distinction between minority and the age of capacity to contract a valid marriage must not be lost sight of. Wherever there is an element of contract in a marriage, the marriage will be void unless the parties have reached the age of capacity. It is not necessarily void merely because a party is a minor, so long as the minor is competent to contract a marriage. Under canon law, the age of capacity is fourteen for a woman and sixteen for a man. Section 60 of the indian christian marriage act enjoins that no marriage will be certified unless the age of the man is not under eighteen and of woman under fifteen. The section has no application to a roman catholic marriage. The age of capacity for roman catholics is prescribed by canon law.
(33) One of the grounds of attack in the petition is that the parties to the marriage stood within the prohibited degrees of consanguinity.
(34) What are the prohibited degrees of consanguinity or affinity is neither defined nor indicated in the indian divorce act or in the indian christian marriage act. It is held by a full bench of this court in (5) lopez v. Lopez i. L. R. 12 calcutta 706 that the prohibited degrees mentioned in section 19 of the indian divorce act do not necessarily mean the degrees prohibited by the law of england. In that case, the parties to the marriage were roman catholics with portuguese names but domiciled in india. It was not known whether they were of english or of any other european descent or of native or of mixed parentage. The marriage in question was between a man and his deceased wife's sister which was prohibited by the law of england and also by the law of the roman catholic church. Under the law of the roman catholic church such marriage was permissible on obtaining dispensation from ecclesiastical authorities. There was no dispute that the marriage had been solemnized under the rules and rites of the roman catholic church. But there was no evidence that dispensation had been granted. The court held that the prohibited degrees for the parties to the marriage were those prohibited by the customary law of the class to which they belonged, that is to say, the law of the roman catholic church as applied in this country. It was also held that as the parties were roman catholics and the ceremony of the marriage was performed between them by a clergyman compete it to perform a valid marriage, the court was bound to presume that a dispensation necessary to remove the obstacle to the marriage on the ground of affinity had been obtained.
(35) In the present case, the parties are domiciled in india and are of indian parentage. At the date of the marriage they were christians of the roman catholic persuasion. It is true they were converts but as was observed by the full bench in lopez v. Lopez (supra) the law could not permit native converts to choose for themselves some marriage law repugnant to christian ideas. In the present case it must be held that the parties by their conversion into christianity as practised by the roman catholic church adopted the marriage law of that church in india as a part of their personal law, the more so, when they chose to have the marriage solemnized by a minister of religion of the roman catholic church according to the rules and rites of that church. In that view of the matter it must be held that the marriage is governed by the law of marriage of the roman catholic church, that is to say, the canon law on the subject.
(36) Canon 1016 says :
"the marriage of baptized persons is governed not only by divine law but also by canon law. Without prejudice to the competency of the civil power as regards the civil effects of such marriage."
(37) Canon 1035 provides that all persons who are not prohibited by law can contract marriage. There are certnia impediments to marriage. An impediment has been broadly defined as a circumstance which renders a marriage either invalid or illicit. An impediment implies a prohibition. Consanguinity up to the third degree is an impediment. Canon 1076 provides that in the direct line of consanguinity marriage is invalid between all the ancestors and descendants, legitimate or natural. In the collateral line it is invalid up to the third degree inclusive. Judged by this canon, the consanguinity between the parties to the marriage is of the second degree and is, therefore, an impediment. Under canon law impediment of the first degree is an absolute bar and no dispensation can be granted in that behalf. As regards impediments of the second degree, dispensation may be granted. In lopez v. Lopez (supra) the validity of the rule and practice of dispensation was recognized and upheld by this court.
(38) Learned counsel relied on halsbury's laws of england vol. 19 para 1258 where it is said that the marriage solemnized between persons within the prohibited degrees of consanguinity or affinity is void. He also relied on certain english decisions in support of that proposition. The proposition is not disputed.
(39) In relying on the laws of england and english decisions learned counsel perhaps overlooked that under the laws of england the appellant and the respondent do not stand within prohibited degrees of consanguinity, as will appear from section 1 of the marriage act, 1949 read with the first schedule thereto. It will also appear from hah: - uryis laws of england, 3rd edition, vol. 19 para 1258 p. 753 that first cousins may lawfully intermarry. In footnote (c) at page 753 there is a statement that previously dispensations from the church of rome were necessary for marriages between first cousins and this is still the law in some countries.
(40) In england prohibited degree of consanguinity are defined by statute. In india they are not. For a party to a marriage the prohibited degrees of consanguinity have to be determined by his or her personal law. In this case, as i have said, the personal law of the parties, for the purpose of marriage, is the law of the roman catholic church in india. As dispensation has been granted in this case the marriage must be held to be valid under the law of the roman catholic church by which the marriage is governed.
(41) A point was taken that the application for dispensation was not made by the appellant herself but by father ameye. There is no evidence that the application was made with the appellant's knowledge or consent. It was said that since the marriage was prima facie within the prohibited decrees of consanguinity under the law of the roman catholic church, it is for the respondent to satisfy the court that dispensation was granted in a proper manner on a proper application.
(42) Every presumption which is necessary to validate a marriage duly solemnized is to be made. The legal position is the same under canon law. Canon 1014 provides that marriage enjoys the favour of the law; hence, in doubt, the validity of marriage is to be upheld until the contrary is proved.
(43) In lopez v. Lopez (supra) whore there was no evidence at all, dispensation was presumed as a part of the presumption in favour of validity of marriage. In agreeing to marry under the rules of the roman catholic church the appellant must be presumed to have done all that was necessary to validate the marriage. Dispensation was required to validate the marriage. The appellant's consent to the application for dispensation and the validity of the dispensation must be presumed in the absence of any evidence to the contrary.
(44) It was then contended that the dispensation is of no effect in law because when the dispensation was granted title appellant was not a christian. Dispensation takes effect only at the time of marriage and not before. As the parties were roman catholic christians at the time of marriage the dispensation had its due effect.
(45) As dispensation was granted in this case the marriage must be held to be valid under the law of the roman catholic church by which the marriage was governed. The objection to the validity of the marriage on the ground of prohibited degree of consanguinity therefore, fails.
(46) The questions of law are answered but the human problem remains. The prospects are unpredictable. How often has a judge sitting in a matrimonial court wished that he could grasp the sorry scheme of things entire and remould it nearer to his heart's desire. How often have the innocent children of an unfortunate marriage, who are nobody's concern, loomed large before his eyes and haunted his thoughts. In these actions, success is meaningless. There is always an undertone of sadness, a feeling of frustration, a sense of loss, no matter how the litigation ends. There the judge cannot help. He can only hope for the best.
(47) It now remains for me to pronounce the order. The decree of the learned trial judge is affirmed. The appeal is dismissed. Parties will pay and bear their respective costs of the appeal. The order is not intended to interfere with the order for costs made by the learned trial judge.
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