Christian Marriage

George Sebastian (Joy) v. Molly Joseph (Nish)

“From a bare reference to the different provisions of the Act including preamble

thereof it is apparent that Divorce Act purports to amend the law relating to divorce of

persons professing the Christian religion and to confer upon courts which shall

include District Court and the High Court jurisdiction in matrimonial matters. In this

background, unless the Divorce Act recognises the jurisdiction, authority or power of

Ecclesiastical Tribunal (sometimes known as Church Court) any order or decree

passed by such Ecclesiastical Tribunal cannot be binding on the courts which have

been recorgnised under the provisions of the Divorce Act to exercise power in respect

of granting divorce and adjudicating in respect of matrimonial matters. It is well

settled that when legislature enacts a law even in respect of the personal law of a

group of persons following a particular religion, then such statutory provision shall

prevail and override any personal law, usage or custom prevailing before coming into

force of such Act.

From the provisions of the Divorce Act it is clear and apparent that they purport to

prescribe not only the grounds on which a marriage can be dissolved or declared to be

nullity, but also provided the forum which can dissolve or declare the marriage to be

nullity. As already mentioned above, such power has been vested either in the District

Court or the High Court. In this background, there is no scope for any other authority

including Ecclesiastical Tribunal (Church Court) to exercise power in connection with

matrimonial matters which are covered by the provisions of the Divorce Act. The

High Court has rightly pointed out that even in cases where Ecclesiastical Court
purports to grant annulment or divorce the Church authorities would still continue to

be under disability to perform or solemnize a second marriage for any of the parties

until the marriage is dissolved or annulled in accordance with the statutory law in

force.”

In Leelamma v. Dilip Kumar, the learned single Judge did not hold that Canon Law

would supercede the statutory law regarding the marriage or any other matter. On the

other hand, learned Judge has pointed out, in clear terms, that "in the absence of

statutory law Canon Law governs members of the community".

In Leelamma v. Dilip Kumar, the court has taken the view that fraud envisaged

in Section 19 of the Divorce Act would include an error concerning quality of a

person and that even a representation that the party is a Christian would amount to

fraud if that party was not a Christian by faith. In that case, learned single Judge noted

that there was no "iota of evidence" to show that the husband professed Christian

faith. Hence the learned Judge took the view that wife's consent was obtained by

fraud.

The observations of Sankaran Nair, J. in Leelamma v. Dilip Kumar, to the contrary

cannot be accepted as the correct exposition of law in this regard. According to us,

the observation in the aforesaid decision that the marriage is liable to be declared null

and void unless the consent signified is a consent recognised in personal law or Canon

Law is too broad a proposition for approval. 

 In LAKSHMI SANYAL V. S. K. DHAR, the question involved was whether a

marriage between children of two sisters could be declared null and void on the

ground envisaged in Section 19(2) of the Divorce Act. Their Lordships noticed that

the church Court has granted dispensation to the spouses concerned in regard to the

range of prohibition of degree of consanguinity or affinity. As the expression

"prohibited degree of consanguinity or affinity" has not been defined in the Divorce

Act or in any other statutory law applicable to Christian community, the Court was

persuaded to resort to external aid. Accordingly, the order of dispensation of

prohibition granted by an ecclesiastical authority in accordance with Canon Law

was recognized by the Supreme Court as the law governing the members of that

community. The above is the indication of the limited scope of application of personal

law of Christians vis-a-vis the statutory law.

Manupatra case note:

Appeal filed for declaration that marriage between parties null and void. Appellant

contended that they were Hindu and stand in close relation as respondent was son of

her mother's sister. For purpose of marriage they converted into Christians and under

Cannon law their marriage solemnized. It was further contended that at time of

marriage they had not attained age of majority. Supreme Court observed that marriage

of parties governed by Cannon law and not by Hindu Marriage Act. As per Cannon

law marriage between persons so related is valid - age of majority under said law is 16

years for male and 14 years for female. Marriage held valid and appeal dismissed.
In SUJATHA V. JOSE AUGUSTINE, the learned single Judge has held that "a

marriage between a baptised Christian and a person not baptised is void". The said

decision was based on Canon 1086 of Canon Law. But in our view a marriage

between baptised Christian and a person not baptised is not a nullity under

the Divorce Act and therefore cannot be declared as void under the provisions of

the Divorce Act. Such a marriage, if properly solemnised, would imbibe all attributes

of a valid marriage. Theological faith of one of the parties does not matter in the

validity of a marriage. The dictum to the contrary contained in Sujatha v. Jose

Augustine, is, therefore, not correct and it stands overruled. 

Manupatra case note: Petitioner filed a Petition for a decree declaring marriage

between Petitioner and First Respondent as null and void. Whether, there was a valid

marriage between First Respondent and Petitioner. Held, by birth Petitioner was a

Hindu belonging to Nair Community. She lived under case custody of her mother till

alleged baptism and marriage. However, First Respondent was a Latin Catholic and

was elder to Petitioner in age. Furthermore, marriage conducted between Petitioner

and First Respondent was from Holy Family Church and was according to rites and

customs of Latin Catholic Community. However, Petitioner had never become a

Christian by faith or by receiving baptism. Therefore, marriage of Petitioner with First

Respondent was void being a marriage between a baptised Christian and a not

baptised non-Christian. Hence, it was declared that marriage between Petitioner and

First Respondent was null and void. Petition allowed.

Ratio Decidendi: "Marriage between a baptised Christian and a not baptised non-

Christian shall be considered as a void marriage.”