JUDGMENT
1. This is a suit in the ordinary civil jurisdiction of this Court for a declaration under Section 42 of the Specific Relief Act, that the ceremony of marriage solemnised between the plaintiff and the defendant is null and void and not binding on the plaintiff.
2. The writ was personally served upon the defendant but he has not appeared to contest the suit.
3. The plaintiff Claudia Jude, nee Shipman, was born on 16th January 1923. Her father is a Sergeant in the Calcutta Police, who, though born in England, has acquired an Indian domicile of choice. The plaintiff is domiciled in India. Her case briefly is as follows:
[4] In 1942, she met the defendant Lancelot Jude, who represented to her that he was the son of an American father and a British mother, that he was a Christian by religion, and that he had held a position in the Statesman Office with a salary of Rs. 300 per month, which he had resigned in order to take a Commission in the Presidency Battalian.
4. The plaintiff belongs to the Roman Catholic Church. The defendant persuaded her to marry him in a Registry Office, without the knowledge of her parents, promising that they should again be married later in the Roman Catholic Church. The plaintiff consented and went through a form of marriage with the defendant in the office of the Senior Marriage Registrar of Calcutta on 6th August 1942 under the provisions of the Indian Christian Marriage Act (Act XV [15] of 1872).
5. As the plaintiff did not regard this ceremony as a valid marriage, she did not live with the defendant as his wife. In November 1942, the defendant persuaded the plaintiff to consent to live with him and took her to a room at No. 23 Kyd Street, Calcutta. When the defendant undressed himself, the plaintiff noticed sores on his private parts and an offensive smell. She refused to cohabit with him and went back to her mother to whom she told all the facts. The marriage has accordingly not been consummated.
6. On enquiry the plaintiff came to learn that the defendant was a Jew and that his representations about his origin and position were false.
7. The plaintiff prayed for a declaration that the marriage is null and void, either on the ground that her consent was obtained by fraud and misrepresentation or on the ground that it is forbidden by the personal law of the parties.
8. Six witnesses have been examined in all. The plaintiff Claudia Jude, has given the whole story as detailed above. Her father Clifford Albert Shipman and her mother Gertrude Shipman have supported her story in some particulars. They have proved that she was born on 15th January 1923, that she is a member of the Roman Catholic Church and that she has an Indian domicile.
9. Ellis Abraham Murtough has deposed that the defendant is his cousin's son, that the defendant's mother was a Jewess of the Sephardim and that his father was a Hindu, and that the defendant's parents were married in Bombay under the Special Marriage Act. This witness further proved that the defendant was circumcised as a Jew, and later at the age of 13 or so went through the ceremony of confirmation and was brought up as a Jew, and has remained a Jew.
10. The remaining two witnesses Rabbi David Gurji Rayman and Father Joseph Farnan dez have given expert evidence, the former on matters of Jewish Law and the latter on the Canon Law as recognised by the Roman Catholic Church.
11. Rabbi Rayman has deposed to the effect that Jews are governed by their own laws in matters of marriage and divorce, and that according to those laws, there cannot be a valid marriage between a Jew and a non-Jew. The witness has further deposed that in special circumstances the Jewish law permits a Jew to take a second wife during the lifetime of the first wife, i.e, it sanctions polygamy in certain special circumstances. The witness cited authority for these statements.
12. Father Farnandez, Vicar-General of the Diocese of Calcutta, has deposed that the Canon law which governs Roman Catholics, in Canon 1070, absolutely forbids marriage between Catholies and persons who have not been baptised. He has also given evidence which proves that no dispensation was granted in the present case.
13. In support of the evidence of Rabbi Rayman on the question of polygamy among Jews, my attention was drawn to the Jewish Code of jurisdiction by Rabbi J.L Kadushpin. At p. 351 of that book occur these two paragraphs viz,
“8a. The law permits a man to marry several women in succession provided be is able to support them. He must likewise obtain the consent of his first wife thereto (Yebamoth 65a)?
8b. Rabenu Gershon (born in Metz. 960, and died 1040) put a ban upon the man who weds more than one wife. This enactment was intended to apply to certain particular lands only, and therefore took no effect in all countries. However, in the countries where polygamy is prohibited by law, it is the duty of every man to abide by such law, although the aforesaid ban took no effect there; and if any person marries two wives, he is forced to divorce one of them (Nimuke Joseph).”
14. It was explained that the ban of Rabenu Gershon was not recognised by Sephardic Jews.
15. In further confirmation of the witness on this point, the records of the case ‘In the goods of Abraham Isac deceased’ being Appeal from Original Decree No. 14A of 1937, and of the case Mozelle Moses v. Sinha Moses being Suit No. 1685 of 1944 in the Ordinary Civil Jurisdiction of this Court, were produced to shew instances of a Jew having married a second wife during the lifetime of the first wife.
16. Considering all this evidence, I have no doubt that Jews in India—at all events those who are of the Sephardim—may in special circumstances have two wives. In other words polygamy is to a limited extent practised by them.
17. Mr. Surita for the plaintiff drew my attention to the definition of Marriage in Rayden on Divorce. That definition reads:
“The only kind of marriage which the English Law recognises is one which is essentially the voluntary union for life, of one man with one woman, to the exclusion of all others; but where a marriage complies with these requirements it is immaterial that under the local law dissolution can be obtained by mutual consent or at the will of either party with merely formal conditions of official registration. If a marriage is potentially polygamous, it will not be recognised for the purpose of relief under the matrimonial law of England, even if it is a first marriage, and the husband has not, in fact taken any other wife, and though it may be recognised as a valid marriage by the lex loci celebrations.”
18. Accordingly Mr. Surita argued that the marriage of the petitioner to the respondent was not a valid marriage under English Law as the respondent was free under his personal law and under some circumstances to take another wife during the lifetime of the plaintiff.
19. In support of Father Farnandez, “The Comparative Law of Marriage and Divorce” by A.W Benton and G.G Phillimore was cited. At p. 20 of that book, in the chapter dealing with the Canon Law and in the paragraph headed “Absolute Incapacity or Disability” occurs this passage:
“….difference of faith (cultus disparitas), i.e of a baptised with anon-baptised person, with regard to which it may be noted that the marriage of a Christian with a heretic or excommunicated person was held good in the western church, but not in the eastern.”
20. The argument that the marriage is void as being prohibited by the personal law of the parties is based on Section 88 of the Christian Marriage Act (Act No. XV [15] of 1872). That section reads:
“Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into.”
21. It has been argued, (1) that the defendant, being a Jew, was forbidden by his own personal law from marrying a Christian; and (2) that the plaintiff being a Roman Catholic was forbidden by her own personal law from marrying a non-baptised person.
22. Section 88 of the Christian Marriage Act, was considered by a Full Bench of this Court in the case of Lopez v. Lopez, (12 Cal. 706 F.B). In that case the question in issue was whether the prohibited degrees for the parties were those prohibited by the law of England, or those prohibited by the customary law of the class to which they belonged, and it was held that the personal law of the parties, i.e, the Canon Law was applicable.
23. This is clear authority for the view that in applying Section 88 of the Christian Marriage Act, the Courts must give effect to the personal law of Roman Catholics in India in deciding whether parties to a marriage who belong to that church are or are not within the prohibited degrees.
24. It seems to me to follow that the personal law of the Roman Catholics must also be given effect to in deciding whether there is any absolute incapacity or disability.
25. In the case of Saldanha v. Saldanha, 54 Bom. 288 : (A.I.R (17) 1930 Bom. 105) it was held that the expression personal law in S. 88:
“would include any personal law, apart from any personal law as to the form of marriage, which forbade either of the parties to enter into a contract of marriage with one another.”
26. In this view, the personal law of the plaintiff forbids her to enter into a contract of marriage with a Jew; and the personal law of the defendant if he married as a Jew, forbade him from entering into a contract of marriage with a non-Jew.
27. But the defendant described himself as a Christian before the Marriage Registrar.
28. In Section 3 of the Christian Marriage Act, “Christians” are defined as ‘persons professing the Christian religion.’ It may be that for the purposes of that Act a mere profession before the Registrar that he was a Christian would suffice to make the Act applicable and disentitle the defendant to plead his own personal law as a bar to the marriage.
29. I feel therefore that I am on safer ground in holding that the personal law of the plaintiff forbade her to enter into this particular marriage, and that therefore the ceremony in question did not effect a valid marriage of the parties.
30. Mr. Surita for the plaintiff felt that it was his duty to draw my attention to Mulla's Principles of Mahommedan Law where the learned author in a note under para. 200, “Difference of Religion” observed:
“Indian Christian Marriage Act, 1872 — In British India, a marriage between a Muhammadan male and Christian woman must be solemnised in accordance with the provisions of Section 5(4) of the Christian Marriage Act, 1872 (XV [15] of 1872), that is to say, by, or in the presence of a Marriage Registrar appointed under the Act; any such marriage solemnised otherwise than in accordance with those provisions “shall be void.” But since a Mahommedan woman cannot contract a valid marriage with a Christian man, such a marriage, it would appear cannot be solemnised under that Act: See S. 88 of the Act.”
31. This passage seems to indicate that the personal law of the Christians is not material. But, in my opinion, the learned author was considering only the personal law of Muhammadans and not considering whether the personal law of the Christians would or would not forbid such marriages. It does not follow that because Roman Catholics are forbidden by the Canon Law to marry non-baptised persons, other Christians are necessarily so forbidden.
32. I do not regard this passage as an authority opposed to the view which I have expressed above.
33. Lastly reliance was also placed by the plaintiff on the proviso to Section 19 of the Divorce Act which reads:
“Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.”
34. The case of Theresia Osman Aykut v. Mustafa Osman Aykut*, I.L.R (1939) 2 Cal. 60 : (A.I.R (27) 1940 Cal. 75) was cited before me. In that case, the defendant was a Mahommedan but represented himself to be a Christian. It was held that the consent of the petitioner had been obtained by fraud and that the marriage was void.
35. In the present case, the defendant made a number of misrepresentations as to his origin, social status and financial circumstances. These misrepresentations would not, in my opinion, suffice to justify the Court in holding that plaintiff's consent to the marriage was not a valid consent. But the misrepresentation as to his religion, in view of the fact that marriage with him was in fact forbidden by her own personal law, was such a fraud as to render her consent invalid. For that reason too I would hold that the marriage was void.
36. In the result therefore the suit is decreed with costs. The marriage of the plaintiff to the defendant solemnised on 6th August 1942, is declared null and void.
37. I am very greatly indebted to Mr. Meyer who consented to argue this case as amicus curia and to Mr. Surita, counsel for the plaintiff, for the assistance rendered by them in collecting all the authorities bearing on the issues involved and assisting me to arrive at my decision.
D.H
38. Suit decreed.