Saly Joseph vs Baby Thomas on 16 November, 1998

Kerala High Court

Saly Joseph vs Baby Thomas on 16 November, 1998
Equivalent citations: II (1999) DMC 309
Author: Sreedevi
Bench: P Mohammed, D Sreedevi
JUDGMENT Sreedevi, J.

1. This appeal is directed against the judgment and decree of the learned single Judge dated
23-1-1998 in O.P. No. 3008 of 1996 of this Court, by which the appellant's application for a decree of
nullity of marriage was dismissed.

2. The appellant and the respondent are Christians and their marriage was solemnised as per the
religious customs and ceremonies on 9-2-1994 at St. Thomas Church, Retnagiri, Pattithanam.
Thereafter, they lived together till 10-3-1994.

3. The petitioner is a staff nurse employed in Doha under the Ministry of Quater from March, 1992
onwards. The petitioner would allege that the respondent and his people made her and her people to
believe that he has passed Pre-degree Examination and two years Diploma Course in Air
Conditioning and is employed as Air Condition Mechanic in the Government Service in Behrin on a
monthly salary of Rs. 30,000/-, with free boarding and lodging and annual leave of two months with
free passage to go home. As Beharin is of only 30 minutes journey by air from Doha where she has
been working and as he is working as Air Conditioning Mechanic, the petitioner, and her people
preferred him and they never suspected any fraud. The petitioner also states that she was made to
believe that he has to go back to his place of employment on 22-2-1994 as he has come on leave for
two months from 17-12-1993. The marriage was therefore arranged and solemnised hurriedly on
9-2-1994. The respondent did not return to Behrain on 22-2-1994. He has revealed to her that he
has no diploma in Air Conditioning and he has not even passed Pre-degree course and his service at
Beharin as a Salesman was terminated and hence he is in search of another job. According to her,
she would never have consented to the marriage if she had known about his educational
qualifications. Therefore, she prays for a decree of nullity of marriage on the ground that her
consent was obtained by fraud.

4. The respondent denied all the averments regarding the fraud alleged in the petition. He states
that after completing his schooling he left for Beharin on 4-6-1989, worked there in a Super Market
as Sales-man and returned on 11-9-1993. Therefore, he applied for fresh visa and was awaiting for a
new employment abroad. He states that he had informed the broker that he was working in the
Super Market on a monthly salary of Rs. 9,000/- and that his visa was cancelled and he is trying for
getting another visa within two months. After knowing all these, the petitioner and others decided to
proceed with the proposal and accordingly the marriage was solemnised. According to him, the
relationship between the petitioner and the respondent was cordial till she lift for Doha on
10-3-1994. He would also contend that his new visa was delayed because of the outbreak of plague
epidemic in India. He had to wait for 10 months and at last he got a job on 25-1-1994 and this suit is
laid at the instance of her father.

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 Saly Joseph vs Baby Thomas on 16 November, 1998

5. The learned single Judge held that the petitioner has not succeeded in adducing satisfactory
evidence to establish that the respondent and his people played deliberate fraud upon the petitioner
and her relations.

6. Aggrieved by the said decree dismissing the O.P., this Appeal has been filed by the petitioner.

7. In order to establish fraud, the petitioner examined PWs 1 to 3. The petitioner as PW 1 has
deposed to the averments in the petition, She states that the proposal for the marriage was brought
by a broker and the broker told her parents that the respondent had passed Pre-degree and Diploma
in Air Conditioning in A/C Mechanism and that he is employed in Behrain as A/C Mechanic
drawing a salary of Rs. 30,000/- in addition to free accommodation, free air ticket etc., and that he
had come on leave and has to go back on 22-2-1994. She also states that when the respondent came
for bride seeing he had told her about his educational qualifications and job. She states that she
preferred this proposal for the reasons that the respondent was employed under the Ministry of
Health in gulf country and it is easy to get a transfer to Doha. Believing the statements of the
respondent about his educational qualifications and job at Beharin she had consented to the
marriage. At the time of the marriage, her elder sister's marriage was not solemnised. The request of
the father to postpone the marriage for a week was turned down as he said that he had only a few
days more to leave the country. On the 20th of Feb. when she asked about his leaving for Beharin he
said that everything has been cleared. So her mother prepared some pickles for him to carry. On the
same night, he told her that he had arranged for extension of leave through one of the Professors of
the Medical College, Calicut. When the extended period was over, he was again asked about his
return journey, when he had told her that he had cheated her and that he has no employment in
Beharin as his service there was terminated. So she wanted to procure a new job for him, for which
she wanted his passport and certificates. Then she was told that the certificate and passport were
entrusted to travel agency in Bombay arid that he has no copy of the same even. After the expiry of
her leave, she left for Doha on 10-3-1994: She has requested him to send the certificates. But he did
not send the same. Her father was therefore asked to get the certificates from him. Accordingly, her
father went to the respondent's house, when his father told him that the respondent was only a tailor
at Muttuchira. The petitioner has categorically stated that she would not have consented to the
marriage if she had known about the fact that he was not qualified, as declared. The above
statements of PWs. 1 to 3 were not challenged in cross-examination. There is not even a suggestion
that the said statements are false. Therefore, we have to believe her statements.

8. The father of the appellant was examined as PW-2. PW-3 is the elder sister of the petitioner. Both
of them have deposed that even though they were not satisfied about the house and surroundings of
the respondent, at the instance of PW-1, the proposal was considered and accepted. Why PW-1 has
preferred him has been deposed by her. The statement of PWs. 1 to 3 regarding the suppression of
his educational qualifications are not challenged in cross-examination. Those statements are thus
stand unchallenged. We carefully went through the evidence of PWs. 1 to 3, which go to show that if
the petitioner was aware of his educational qualifications and that he had no job at the time of
marriage proposal, she would not have given her consent to marry the respondent. She prays for a
declaration that the marriage between her and the respondent is void under Section 18 of the Indian
Divorce Act.

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 Saly Joseph vs Baby Thomas on 16 November, 1998

9. Section 18 of the Indian Divorce Act provides, that :

"Any husband or wife may present a petition to the District or to the High Court, praying that his or
her marriage may be declared null and void".

The grounds for a decree of nullity are provided in Section 19 of the Act. Section 19 of the Act reads :

" 19. Such decree may be made on any of the following grounds :

'(1) that the respondent was impotent at the time of the marriage and at the time of the institution of
the suit;

(2) that the parties are within the prohibited degrees of consanguinity or affinity ;

(3) that either party was a lunatic or idiot at the time of the marriage, and the marriage with such
former husband or wife was then in force ;

(4) that the former husband or wife of either party was living at the time of the marriage, and the
marriage with such former husband or wife was then in force.

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

10. The main question to be looked into is what is fraud in matrimonial cases. The word 'fraud' is not
defined in the Indian Divorce Act. Hence liberal construction has to be given, as is held in Reynold
Rajamani v. Union of India, (1982) 2 SCC 474 : (AIR 1982 SC 1261). It reads:

"The grounds of divorce even though liberalised are an exception to the general principles governing
the continuation of the marital tie. Though such grounds may be liberally construed by Courts, new
grounds of divorce cannot be added by Courts.

In this connection, it is relevant to trace the origin and development of the matrimonial law of
Chiristians in India. A Full Bench of the Calcutta High Court in Lopez v. Lopez, (1885) ILR 12 Cal
706, held that where parties to the matrimonial proceedings are Roman Catholics, it is not the law of
England, but the Canon Law of the Church of Rome as applied in this country to be looked into and
applied. In Saldanha v. Saldanha, ILR 54 Bom 288: AIR 1930 Bom 105, it was held, that personal
law for Roman Catholics is the Canon Law of Church of Rome and the Church of Rome has no
concern with the civil effects of matrimony. Coming to Travancore, in Eappen Punnoose v. Koruthu
Maria, 10 Trav LR 95, it was held that case for nullity of marriage ought to stand or fall by the rules
of the Canon Law, and the plaintiff must show that fraud practised on him deprived him of the
power of exercising his free will. In Cheriya Varkey v. Ouseph Thresia, AIR 1955 Trav. Co 255 (FB.),
where the parties were Roman Catholic Syrian Christians, ruled that the principles relating to
marital obligations embodied in the Canon Law apply to all Catholics, In Lakshmy Sanyal v. Schit
Dhar, (1972) 2 SCC 64 : (AIR 1972 SC 2667), the parties were Roman Catholics. It was a case where

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the marriage was solemnised between persons within the prohibited degrees of consanguinity. This
was done after obtaining dispensation from the Bishop as per Canon Law. Later, husband filed a
petition challenging the validity of marriage, under Section 19 of the Indian Divorce Act, on the
ground that the parties to the marriage were within prohibited degrees of consanguinity. The Court
held (at p 2672, para 10 of AIR):

"The question of capacity to marry and the impediments in the way of marriage would have to be
resolved by referring to their personal law. That for the purpose of deciding the validity of the
marriage, would be the law of the Roman Catholic Church, namely the Canon Law of that Church".

The marriage was not annulled, as there was dispensation from prohibited degrees granted by the
Bishop as per Canon Law. In Yumuna Bai Anantrao Adhav v. Ananthrao Shivram Adhav, (1988) 1
SCC 530 : (AIR 1988 SC 644) the Apex Court held that for determination of the validity of a Hindu
Marriage and to establish the marital status, the personal law is to be relied upon. In Leelamma v.
Dilipkumar (1992) I Ker LT 651 : AIR 1993 Kerala 57, a single Bench of this Court held, that in the
absence of statutory law. Canon Law governs the members of the Syrian Catholic community. Thus
the Courts in India have in clear terms laid down that the validity or otherwise of a marriage
between Catholics would have to be decided by referring to the provisions of Canon Law in the
absence of statutory law. Hence, it may safely be concluded that validity of the marriage, where the
parties are Roman Catholic (Syrian Christians must be determined by resort to the provisions of
their personal law. This is more so as solemnisation of Christian Marriages is done according to
personal law in Travancore-Cochin areas of the State of Kerala and there is no Marriage Act in force
in these matters. Therefore, the validity or otherwise of the marriage in question must be
determined in accordance with the personal law applicable to the parties. In this case, the Eparchial
Tribunal granted a decree of nullity of marriage and hence it is submitted that the same should be
given due weight in granting a decree of nullity of marriage.

11. The next question to be looked into is, to what extent Canon Law can be looked into and applied
and whether the decree of nullity of marriage granted by Eparchial Tribunal in this case can be
accepted and acted upon and who should adjudicate the validity or otherwise of a marriage between
Catholic Syrian Christians. In Kurien v. Alphonsa, 1986 Ker LT 731, Jose v. Alice, (1988) 2 Ker LT
890 : (1989 Cri LJ 1527), George Sebastian v. Molly Joseph, (1994) 2 Ker LT 387: (AIR 1995 Kerala
16), Molly Joseph v. George Sebastian, AIR 1997 SC 109 : 1997 (1) Ker LT 1, the Court held, that it is
well settled that the marriage between a Christian husband and wife can be dissolved or annulled
only by a decree of a civil Court. In George Sebastian v. Molly Joseph, (1994) 2 Ker LT 387 : (AIR
1995 Kerala 16) a Bench of this Court observed as follows (Para 18 of AIR):

"Carton Law (or personal law of Christians) can have theological or ecclesiastical implications to the
parties. But after the Divorce Act came into force, a dissolution or annulment granted under such
personal law cannot have any legal impact as statute has provided a different procedure and a
different code for divorce or annulment. It may be that a decree of divorce or annulment granted by
a civil Court cannot compel the ecclesiastical authorities to solemnise a second marriage for any one
of the parties thereto. It is open to such authority to insist that until the spiritual bond is also
snapped through the steps envisaged in the Canon Law they would not perform or celebrate such

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second marriage. But the converse is not the legal position. In other words, when the ecclesiastical
Court grants annulment or divorce the Church authorities would still continue under disability to
perform or solemnise a second marriage for any of the parties until the marriage is dissolved or
annulled in accordance with the statutory law in force in this regard. Personal law has relevance only
to the above extent vis-a-vis statutory law. In other words, personal law stands clipped to the extent
statutory law has stepped".

Therefore, the decree of nullity of marriage granted by Eparchial Tribunal is of no avail for the
appellant to claim a decree of nullity of marriage from this Court. The petitioner has to establish her
case under the Indian Divorce Act, independent of the decision of the Epharchial Tribunal. To find
out what is fraud in matrimonial matters both civil law and personal law will have to be looked into.
As regards civil law, the Indian Divorce Act, 1869 stands extended to Travancore-Cochin areas of the
present State of Kerala, with effect from 1 -4-1951.

12. A Full Bench of the Court in Smt. Best Morning Khongthroherm v. Nirmalender Deb. (1987) 2
DMC 214. : (AIR 1987 Gauhati 63), dealt with a case of a decree of nullity. The Court considered
fraud committed by the husband. The wife filed a petition for a decree of nullity of marriage on the
ground that her consent was obtained by fraud and the husband had concealed the fact that he had
undergone vasectomy and married the petitioner. The husband was a widower. According to the
petitioner, he was impotent at the time of marriage as he had undergone vasectomy and hence the
consent was obtained by fraud. In that case, the respondent did not contest. Hence the petition for
decree of nullity was granted.

13. Let us examine what is fraud in Canon Law/Can. 820 provides as follows :

"Error concerning a quality of a person even if such error is the cause of the contract does not
invalidate matrimony unless this quality was directly and principally intended".

Can 821 provides as follows :

"A person contracts invalidity who enters marriage deceived by fraud, perpetrated to obtain consent,
concerning some quality of the other party which of its very nature can seriously disturb the
partnership of conjugal life."

Canon Law presumes that all persons have the required knowledge of the nature and purpose of
marriage after they attain puberty and if a ground or ignorance can be proved the marriage can be
annulled. Under Canon Law 820, error is a ground to annul the marriage. Error is a false judgment
about something or someone and as such it is a defect of the intellect. Since one object is mistaken
for another, there is no confirmity between the intellect or intention and the object of the action. The
learned counsel for the appellant Mr. Lekha Suresh brought to our notice the book Law of Marriage
and Matrimonial Relief for Christians in India, by William E. Pinto, who is a Judge of the Church
Tribunal. Page 93 of his book reads:

"A person in error makes a judgment or forms an opinion based on what is erroneously perceived."

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Can. 1097 states :

(i) error of a person renders a marriage invalid.

(ii) error about a quality of the person even though it be the reason for the contract does not render
a marriage invalid unless this quality is directly and principally intended". While ignorance is the
lack of knowledge of the meaning of marital contract, error is the false judgment regarding the
identity of the person or the quality of the person, one is to marry as the above cannon purports.
Error is of course the result of ignorance. Error of person is substantial when one person is mistaken
for another (mistaken identity). This evidently invalidates the consent. Error of quality of person
would invalidate marriage when qualifying attribute is directly and principally intended. This means
that the party only intends to marry a person with a certain qualifying attribute or attributes and not
otherwise, For qualities, even though insignificant in themselves, can sometimes be very important
to the parties involved. This is possible when the injured party can give full proof of the quality of
the party amounted to a conditio sine qua non. Such error of quality can be a main factor in
breaking the marital relationship and in destroying conjugal community. In such circum-stances,
error or quality is a ground for annulment of marriage. The consent must have been given directly or
principally with reference to the quality and only secondarily with reference to the person. The
quality must be present at the time of marriage as opposed to a hoped for, future quality and the
quality must be fraudulently concealed for the purpose of obtaining marital consent. Invalidity of
marriage on the ground of deceit or fraud is mentioned in the book of William E. Pinto in Note No.
7.1.1.2.6. It reads:

"Deceit or fraud is a deliberate act of cheating by which one person hides a significant fact from
another. The person being cheated makes an erroneous judgment as a result. The deceit is
perpetrated to effect an error so that the other party will act according to the will of the deceiver.
Therefore, it is a false or misleading representation which can lead to disastrous consequences".

A marriage contracted out of deceit or fraud is invalid according to Can. 1098. The root of deceit can
be in error although every error does not have its origin in deceit. Error can exist on us own, deceit
cannot exist unless it produces its effect of error upon the victim. The marital community depends
on the honesty of the spouses'. Honesty about one's identity and total personality is essential for
community of life. If there is deceit about an essential or significant quality, there is no true joining
of wills, rather one party manipulates the will of the other and as a result the marriage fails. For
deceit or fraud to be an invalidating factor, four necessary elements should be proved:

(1) Deceit must be deliberately perpetrated in order to obtain consent to marriage;

(2) The error produced must be related to some quality or lack of it in one or both of the parties;

(3) The quality must be unknown to the other party and deceit must have led directly to the decision
to marry; and (4) The discovery of the absence or presence of the quality must precipitate the end of
the marriage.

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 Saly Joseph vs Baby Thomas on 16 November, 1998

14. Here, in this case, PW-1 has given evidence that if she was aware of the qualification of the
respondent that he has not passed Pre-degree and A/C Mechanism Diploma and that he had worked
only for some time in Beharin as a Salesman she would not have given her consent for the marriage
as she wanted a man having a decent job in gulf. From her evidence, it is also clear that even if he
has no job in gulf she can secure a job for him if he is an A.C. Mechanic as stated by him. She has
even stated that a proposal by an Engineer was turned down because she wanted a gulf employee.
The evidence of PWs 2 and 3 go to show that even though they were not satisfied about the house
and surroundings of the respondent, at the instance of the petitioner they wanted to solemnise the
marriage as she wanted a qualified A.C. Mechanic, who can also work in gulf countries. PW-1 has
deposed that before marriage, she had a talk with the respondent who had spoken to his
qualification as an A.C. Mechanic. Thus the respondent had concealed his qualification and
misrepresented to her that he has a job at Behrin and that he has to rejoin soon as he is on a short
leave. On a close scrutiny of the evidence adduced in the case, it can be seen that the petitioner has
proved that she was very particular about the quality of the person, which was concealed from her
and thus obtained her consent for the marriage by exercising fraud. Therefore, the marriage is liable
to be declared as null and void.

15. Dr. Sebastian Champapally, the learned counsel appearing for the respondent, submitted that
under Section 7 of the Indian Divorce Act, this Court has to act upon the principles of English
Divorce Courts. But the Supreme Court in Reynold Rajamani v. Union of India, (1982) 2 SCC 474:
(AIR 1982 SC 1261), held as follows (Para 13 of AIR):

"It is unthinkable that legislation whenever made by the Parliament of a foreign State may
automatically become part of the law of another foreign State. Legislation by incorporation can
never go so far. Whatever interpretation of Section 7 was permissible before August 15, 1947, when
the British Parliament had plenary powers of legislation over Indian territory no interpretation is
now permissible which would incorporate post 1947 British laws into Indian law".

Therefore, Indian Courts need not act on the principles of English Divorce Courts.

16. The learned counsel for the respondent submitted that under Canon 853 a consummated
marriage cannot be dissolved, as under Canon 824 internal consent of mind is presumed to be
under agreement with the words of signs employed in the ceremony. On a reading of the said Canon,
what we feel is that once the marriage is consummated it cannot be dissolved. Those principles
relate to dissolution of marriage and not a declaration for a nullity of marriage. Therefore, Canons
853 and 824 have no application to the facts of this case. On a close scrutiny of the evidence and the
questions of law on the point, we feel that this appeal has to be allowed, as the consent of the
appellant for the marriage with the respondent was obtained by fraud.

In the result, the appeal is allowed, setting aside the decree and judgment appealed against and the
marriage between the appellant an the respondent, which was solemnised on 9-2-1994 at St.
Thomas Church, Ratnagiri, Pattithanam, is declared as null and void. No costs.

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