Alfred Robert Jones (Petitioner) v. Titli Alias Tereza ().

Young, J.:— The petitioner, Alfred Robert Jones, of Bhim Tal near Naini Tal, by his sister Miss Edith Jones as his next friend, prays for a decree of nullity of marriage under section 19(3) and (4) of the Indian Divorce. Act, and under sections 4 and 5(1) of the India it Christian Marriage Act for a declaration that his marriage to the respondent is void. To the issues formerly struck under the Indian Divorce Act, section 19, I have added, during the course of the hearing, two other issues under the Indian Christian Marriage Act, namely, No. 7: “Was the alleged marriage solemnized according to the rules, rites, ceremonies and customs of the Church of Rome?” and No. 8 “Was Father Livesay authorised to perform the ceremony of marriage?”

The first issue is: “Has this Court jurisdiction to try this suit?” There can be no doubt that by sections 4 and 19 of the Indian Divorce Act this Court has jurisdiction to hear the potion in so far as the issues under section 19 of the Divorce Act are concerned, namely, “Was the marriage null and void on the ground of the petitioner being an idiot at the time of the said marriage?” and, secondly, “Was the said marriage null and void on the ground that the petitioner's consent was obtained by force or fraud?” The difficulty arises concerning the jurisdiction of this Court to hear the petition based on the Indian Christian Marriage Act. It is contended by counsel for the respondent that section 4 of the Indian Divorce Act confines the jurisdiction of this Court to petitions under the Indian Divorce Act. Section 4 of the Divorce Act reads as follows: “The jurisdiction now exercised by the High Courts in respect of divorce a mensa et thoro and in all other causes, suits and matters matrimonial shall be exercised by such Courts and by the district courts subject to the provisions in this Act contained and not otherwise.” It is argued that because of the terms of this section the High Court is prohibited from considering questions arising under the Indian Christian Marriage Act, and that therefore there is no jurisdiction in this Court to decide whether there has been a valid marriage in accordance with the Indian Christian Marriage Act. There is little authority on this question. Counsel for the respondent relied upon the decision of a single Judge in the Calcutta High Court in Gasper v. Gonsalves(1). That learned Judge decided that the High Court had jurisdiction in a matrimonial suit only under the Indian Divorce Act, and therefore it had no jurisdiction to hear a petition praying for a declaration that the marriage was invalid under the Indian Christian Marriage Act. This case, however, was decided ex parte. The matter was considered in another case in the Calcutta High Court, Lopez v. Lopez. The Court, however, in that case did not decide this question as it was unnecessary for the decision of the case. The matter was further considered by a single Judge of the Lower Burma Chief Court in Consterdine v. Smaine(2). The learned Judge decided that the Court had jurisdiction. The Indian Christian Marriage Act became law three years after the Indian Divorce Act. The Indian Divorce Act must have been within the knowledge of the legislature. It is therefore difficult to, argue that the High Court had no jurisdiction to decide the very important questions which must arise out of the Indian Christian Marriage Act. If that were so, the Act would be dead. The various grounds on which the Court can give a decree of nullity in the Divorce Act refer to cases where there has been a marriage validly performed. Questions arise under sections 4 and 5 of the Indian Christian Marriage Act when the marriage has not been validly performed. There is a clear distinction between a decree of nullity of a valid marriage and a declaration that the marriage itself is illegal and void. There can, in my opinion, be no doubt that there is jurisdiction in the High Court to hear and decide questions under the Indian Christian Marriage Act.

With regard to the other issues it would be convenient to set out the facts of the case as found by me. The petitioner, A.R Jones, is 54 years of age. His father and mother were Europeans domiciled in India. He lives upon the estate of his married sister in Bhim Tal near Naini Tal. His father and mother were first cousins, and he was born when his mother was 47 years of age. While his mother was pregnant she indulged freely in alcohol and on several occasions was insensibly from the effects of it. The result of these unfortunate circumstances was that Jones was a puny delicate baby and soon showed that his brain was affected. He has throughout his life been feeble-minded. He was incapable of being educated except to a minor degree, and has always had to be carefully looked after by his relations. He has never been able to earn his living in any capacity. His appearance is peculiar and abnormal. His head is micro-cephalic. As is usual in persons of his mentality, his sexual side is normally or even abnormally developed-Twenty-five years ago he commenced a spasmodic sexual relationship with the respondent, an Indian woman now of some 40 years of age of the Kanera caste, that is, a low caste classed as untouchable. Her Hindu name is Titli (English, Butterfly), her Muhammadan name is Rahman, and her Christian name is Tereza. The relationship between the petitioner and the respondent up to the time of marriage was the ordinary relationship of a man with a bazar prostitute. The relationship was clandestine and Jones used to meet the respondent in her house or in the jungle. The woman herself says that she has been married first of all to a low caste Hindu, and on his death to a Muhammadan. In order to marry the Muhammadan she says she became a convert to Islam. * * * I am not satisfied that proper marriages, were celebrated. It may well be that she was merely in the position of a kept woman. After the relationship with the Muhammadan terminated she recommenced her relationship with the petitioner. In the month of September, 1930, the idea of marriage between Jones and the respondent arose. The respondent says that Jones asked her to marry him, and that he arranged with Father Livesay, a Priest of the Roman Catholic Church who has a mission chapel at Bhowali, to convert her to Roman Catholicism, baptise her into the Church and subsequently marry her to him. The petitioner, on the other hand, says that the relatives of the woman threatened him, saying that if he did not marry her it would he had for him, and it was through fear of these relatives that he went through the marriage ceremony. Father Livesay took this woman into his compound, gave her some little instruction in the tenets of his faith, and eventually received her into the Roman Catholic Church by baptism.

Issue No. 3 is: “Was the marriage null and void on the ground of the petitioner being an idiot at the time of the said marriage?”

On this issue the petitioner's sister, Miss Edith Jones, has been called and she gave evidence as to the history of the petitioner. Captain Aitchison, the Civil Surgeon of Allahabad, and Dr. Rahmat Ilahi Siddiqi, L.M.P, Sub-Assistant Surgeon, have also been called. Captain Aitchison, who has taken a great deal of care in this case, had the petitioner, Jones, under observation for some considerable time in Allahabad. He subjected him to the well known Benit Simon tests. His conclusion is as follows: “His intelligence is that of a child. To maintain attention is difficult. There is inaccuracy of memory and extreme suggestibility. He appears to be very impulsive; a little more hasty than the average person. My final diagnosis is that this is a case of amentia amounting to idiocy in its more minor forms and is definitely more than feeble-mindedness.” He further says that he would class Jones as equivalent in brain power to a normal child of 6 years. He says that he is a typical text-book picture of a micro-cephalic type of idiot, i.e small head, large sticking out ears, and what is generally termed a monkey face. He says that the man is incapable of entering into a contract of marriage or any contract, and that he is clearly incapable of managing his own affairs. Dr. Siddiqi arrives at the same opinion. He knew the petitioner in Bhim Tal and had attended him as a doctor. He says that the petitioner is suffering from amentia or congenital idiocy and that he is incapable of managing his own affairs.

The petitioner himself was put in the box and gave evidence. It was obvious to me that he is not normal and that he has the mentality of a child. He understood, however, the nature of an oath and I allowed him to be sworn. I did not think it wise, however, to allow him to be examined by counsel in the ordinary way. I am quite satisfied that if he had been so examined, his evidence would have been useless. I, therefore, examined him myself, and found that if he were put at his case and not frightened, he could answer simple questions and give sensible replies. He was in the box under examination by me for over an hour and I had ample opportunity of forming an opinion as to the state of his mind. At the end of his evidence I gave an opportunity to counsel to ask him any question, but very wisely neither counsel took advantage of this. I have considered the very careful evidence of the doctors; but their evidence I can use only as a guide. It is not conclusive, I have to form an opinion myself. I am satisfied that the petitioner is feeble-minded and that he has the intelligence of a child of about 8 or 9 years of age. I do not think that it can be said that he is an idiot within the meaning of section 19(3) of the Indian Divorce Act, which classes lunatics and idiots together. I think an idiot in law means something more than this. An ordinary child of 8 or 9 years old could not be termed an idiot, and equally I do not think that a man of 54 with the mentality of such a child can in law be termed an idiot. I, therefore, decide this issue in favour of the respondent.

Issue No. 4: “Was the said marriage null and void on the ground that the petitioner's consent was obtained by force or fraud?” To this issue I added another sentence, namely, “Did the petitioner consent to the said marriage?” The direct evidence of force or fraud on the part of the respondent or her relatives or Father Livesay is very small. The petitioner himself says that, the brother and nephew of the respondent threatened that if he did not marry this woman “it would not be good for him”, and that he therefore married her through fear of assault. I believe every word of the petitioner's evidence. His mind is too undeveloped for successful lying. I believe him when he says that there was this, threat, but I am not satisfied that the threat alone induced him to go through the marriage ceremony with this, woman. He says that he did not complain about the threats to any one, and lie had ample opportunity to tell either his sister or Father Livesay. He told neither. There is a very great burden on the petitioner to show that a marriage, if otherwise valid, ought to be upset by duress. I have grave suspicion as to this part of the case, but I do not think the petitioner has discharged that burden. As to fraud, no particulars were pleaded in the petition and the evidence is practically nil. It is said by the petitioner that he was told by the respondent's, brother that as he had made the woman lose her caste, he must marry her. This would be a misrepresentation, as Mst. Titli had then no caste to lose, but it is well settled that misrepresentation, inducing consent to marry cannot upset a marriage. The position in law is that the party imposed upon must be deceived to such an extent that there is in reality no consent at all to the marriage. This is not the case here. With regard to the third part of this issue,—whether the petitioner consented to the marriage,—I am satisfied that there was no consent in law by the petitioner. As I have recorded above, the petitioner has the mentality of a child of 9. All civilised countries, as well as the Canon law of the Roman Catholic Church itself, have clearly laid down a minimum age as the age of consent in marriage. Neither in the Roman Catholic Church, in England, or in India, could it be said that child of 9 years could consent to a marriage, the reason Being that it is considered that a child of such tender years could J not possibly know what the relationship of marriage meant. Although Jones is 54 years of age, he has, in fact, the mentality of a child and therefore, in my opinion, he is incapable of giving his consent and thereby contracting a valid marriage. While, therefore, I decide the questions of fraud and force in favour of the respondent, I decide the question of consent in favour of the petitioner.

Issue No. 2: “Was the marriage of the 10th of November, 1930, performed by the Rev. Father Livesay at Bhowali a valid Christian marriage? Was the said marriage performed according to the rules, rites, ceremonies and customs of the Church of Rome and was Father Livesay authorised to solemnize the said marriage?” First as regards the question whether the marriage was performed according to the rules of the Roman Catholic Church. The evidence is that of Father Livesay himself and of the Lord Bishop of Allahabad. Father Livesay confessed that the rules of his Church make two dispensations from the Bishop necessary in this case; one for a mixed marriage between a Roman Catholic and a Protestant, the other for a marriage without due publication of banns. He himself says that neither of these dispensations were obtained, and that the banns were only called once on the morning before the wedding. * * * The evidence of Father Livesay is confirmed by that of the Lord Bishop of Allahabad. The Bishop said that there ought to have been two dispensations in the case, one for dispensing with the banns and the other for a mixed marriage. Further, he said that if banns are published they must be on three, consecutive Sundays, and an interval of three days before the celebration of the marriage must elapse after the last publication of the banns. It is true, the Bishop went on to say, that although this marriage, carried out as it was in complete disregard of the rules of the Church, was gravely unlawful, it would, nevertheless, according to the Canon law of the Roman Church, be valid. This is a distinction unknown to civil law. There was every element of clandestinity about this marriage. Public policy demands the utmost publicity before a marriage can be performed. The Indian Christian Marriage Act makes it clear, in cases where marriages are performed by persons other than those who have received episcopal ordination, that the greatest publicity must be accorded to intended marriages. This is necessary in order that any impediment to a marriage may be revealed, and that every one who is interested may be informed of it. A clandestine marriage has always been abhorrent to the law. Section 5 of the Indian Christian Marriage Act in the case of an episcopally ordained person does not insist, on these precautions. The reason is that the Churches there enumerated have themselves evolved stringent rules as to publication. According to section 5, 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”, may solemnize marriages. Section 4 provides that any such marriage solemnized otherwise that in accordance with the provisions of section 5 shall a void. It is clear, therefore, that any marriage not solemnized according to the rules of the Church is void. It has been contended by counsel for the respondent that the rule of law in England, which by section 7 of the Divorce Act must be taken as a guide by the Indian courts, is that the non-publication of the banns is only a ground of declaring the marriage void if the lack of due publication is within the knowledge of both the parties to the marriage. The English law as regards this is no guide to an Indian court. The English decisions on this point are based on the wording of the Marriage Act in England (4 Geo. IV, c. 76, section 22) which provides that where persons “knowingly and wilfully intermarry without due publication of banns the marriage is void.” The English courts have held that the words “knowingly and wilfully intermarry” mean that both the parties to the marriage must have knowledge of the lack of publication. There is nothing equivalent to these words in the Indian Christian Marriage Act. It is strenuously argued by counsel for the respondent that I must in this case consider the Canon law of the Roman Church and apply it. He contends that the Canon law which declares this marriage “gravely unlawful, but valid” is a “rule” of the Church within the meaning of section 5. I have not been referred to any authority on this point and I know of none. It is impossible so to construe the section. No civil lawyer could interpret or follow the Canon law. In the early Middle Ages the Bench was occupied by the clergy; if the Canon law had to be applied by the Bench now, the clergy would again have to interpret and administer it. In this case, for example, no civil lawyer could understand the proposition that a marriage was “gravely unlawful, but valid”. This which appears to a civil lawyer to be a contradiction in terms presents no difficulty to the Canon lawyer. Again, in this case, if I had to follow the Canon law,—both parties having been baptised and the sacrament of marriage celebrated,—I would have to apply the principle of Canon law 1118, ‘Whom God has joined together let no man put asunder.” Thus I would, most reluctantly, have been constrained to hold this marriage valid on the ground that God had joined together this weak-minded European and this Indian prostitute. On the other hand, if the petitioner had not been baptised, the Canon law would not hold these two to have been joined together by God,—though a priest had celebrated the sacrament,—and I could then have declared the marriage invalid. No doubt, these laws are clear to the Canon lawyer, but the civil courts would, have great difficulty in understanding, construing, and administering them. They appertain to faith rather than to law and must be left to the Church. I have only to interpret the civil law as enacted by the Indian Christian Marriage Act. “Rules” in section 5 refer to those things which must be done before the ceremony of marriage can he performed. The section deals only with the necessary preliminaries to the ceremony, the ceremony itself, and the person who performs it. It has nothing to do with Canon law. This marriage has not been solemnized according to the rules of the Roman Catholic Church, and therefore it is void.

After having arrived at the above conclusion, it is clear to my mind that Father Livesay was not authorised to solemnize the marriage. Section 5 of the Act exempts an episcopally ordained person from the ordinary rules of marriage set out in section 12 and onwards in part III of the Christian Marriage Act. A person who has received episcopal ordination is authorised to solemnize a marriage provided that the marriage be solemnized according to the rules of his Church. In this case almost every essential rule of the Church has been deliberately broken, and therefore, in my opinion, Father Livesay was not an authorised person within the meaning of section 5 of the Act. From this point of view too the marriage must be declared void. It is unnecessary to decide issue No. 5 in this case, in view of the above findings. The petitioner is entitled to a decree of nullity of marriage on the ground of lack of consent and to a declaration that his marriage is void. I direct that a copy of this judgment be sent to the Lord Bishop of Allahabad for his information.