Theresia Osman Aykut v. Mustafa Osman Aykut

McNair, J.:— This is a wife's petition for a decree that her marriage with the respondent may be declared null and void. There is no appearance on behalf of the respondent.

The petitioner at the time of the marriage was domiciled in Austria and was an Austrian subject. The respondent was a Turk. The parties went through the form of marriage at the Registry office in Calcutta on March 8, 1937. The petitioner has given evidence in which she has stated that she is a professing Christian and a Roman Catholic. She has further stated that she would not marry anybody who was not a Roman Catholic; prior to their marriage the respondent informed her that he was a Roman Catholic and he signed a paper to that effect. She also states that when they went to the Registry office where the form of marriage was celebrated, the respondent swore that he was a Roman Catholic and she again states that she would never have married him had she known that he was a Mahomedan. That information she obtained in England in May, 1937, when her passport expired. She then found that, in a document purporting to be a marriage certificate which is partly in Turkish and partly in English, and was issued by the Turkish Consul-General in London, the respondent's religion is entered as “Islam”. This document has been translated and proved. The petitioner states that she had no sexual intercourse with the respondent after she discovered that he was in fact a Mahomedan.

Detective Sergeant Clarke has given evidence that he has known the respondent for some time having come into contact with him in connection with his passport. In February of this year he arrested the respondent for disorderly conduct and the respondent then made a voluntary statement, in which, amongst other things he stated that he was a Mahomedan and that he did not remember whether he stated that he was a Mahomedan or a Christian at the time of his marriage.

Mr. R.C Bonnerjee on behalf of the petitioner has referred to s. 10 of the Indian Divorce Act which provides that a wife may obtain dissolution of her marriage if her husband has since the solemnisation of the marriage exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman and he argues that if the alleged husband never professed the Christian religion there would be even stronger grounds for dissolving the marriage tie. It is clear that the policy of the Act does not contemplate a valid marriage between a Christian and a person professing a religion which is not monogamous. Section 19 of the Indian Divorce Act provides that a decree for nullity may be made on any of the grounds mentioned therein and it further provides that—

Nothing in this section shall affect the jurisdiction of the High Court to make a decree of nullity of a marriage on the ground that the consent of either party was obtained by force or fraud.

The High Court has accordingly power to annul a marriage on the ground of fraud, and, on the evidence which has been given before me, I am satisfied that the consent of the petitioner to the marriage was obtained by fraud with the consequence that the marriage is void.

The respondent was served personally with the petition and does not appear to defend. Although the petitioner is domiciled in Austria she has lived and cohabited with the respondent in Calcutta and she was residing in Calcutta within the jurisdiction of this Court at the time when she filed her petition. The Court, therefore, has jurisdiction to entertain the petition. There will be a decree nisi in terms of the prayer of the petition and the respondent must pay the costs.

Attorney for petitioner S.N Sen.

A.S

Decree nisi.