Adelaide Christiana Lish vs David Lish

Bucknill, J.—This was an application for Letters of Administration made to this Court by a lady (applying in forma pauperis) named Adelaide Christiana Lish under circumstances which are very remarkable arid, I should think, unique. This lady has contracted three matrimonial alliances. In 1868 she married one Thomas Lish who died in 1890. In 1894 she married one Horace John Wilson who died in 1902. In 1916 she purported to marry one Charles Lish who was a brother of her first husband Thomas Lish: this Charles Lish died intestate in 1917. All these three marriages were, so far as I at present know, solemnized in the due form required by marriages of those who belting o the Church of England. It is said that this Charles Lish died possessed of certain property and it is in respect of this property that this lady has now applied to this Court for Letters of Administration. The application is opposed by one David Lish who is a brother of Thomas Lish and of Charles Lish. All these persons were, it is admitted, domiciled in India, were Christians and belong to the English Church.

One of the preliminary questions which has now come up for decision is as to whether, assuming that this lady went through the ordinary proper form of marriage with Charles Lish, such marriage should be regarded by the Courts of this country as in law valid. If the Courts of this country should rightly regard a marriage of a woman with her deceased husband''s brother (all parties being of the English Church) as being valid, then, as the widow of Charles Lish, she would have a locus standi and every good ground for the grant to her of Letters of Administration of her deceased husband''s estate. If, on the other hand, such a marriage should not be regarded as legal by the Courts of this country, then she would have no such locus standi and could not (normally? be granted Letters of Administration. This question depends primarily upon what effect, if any, the provisions of the Deceased Brother''s Widow''s Marriage Act of 1921 (7 Edw. 7, C. 47) have in British India; and, here, so far as members of the English Church arc concerned.

In 1920 this lady applied to the High Court of Judicature in Calcutta for Letters of Administration to the estate of her then deceased so-called husband Charles Lish who had died intestate, she claimed to be then his lawful widow; but the English Statute of 1921 was not then in force and Woodroffe, J., dismissed the application on the 27th of August 1920 holding that her marriage to Charles Lish was illegal. It was argued in that application, and it has been argued here, that, on the authority of certain cases which have been decided in India Lopez v. Lopez [1885] 12 Cal. 705 and Lucas v. Lucas [1904] 32 Cal. 187, although, according to English law, the marriage of a woman to her deceased husband''s brother was regarded as being unlawful and as contravening the English Tables of Prohibited Affinity, such Tables of Affinity (that is to say, regulations as to the degrees within which marriage is prohibited) were not necessarily applicable to Christians domiciled in this country (i.e, India), whether they were British subjects or otherwise. But the learned Judge has, in his judgment, pointed out, with great clarity that the prohibited degrees must be determined by the personal law of the community to which the parties, whoso case is under consideration, belong; that, in this instance, the parties belonged to (Chrisiian) Church of England which regarded a marriage between a woman and her deceased husband''s brother as illegal. There can be no doubt whatever that the learned Judge was, here, right, at that date; and that the so-called marriage of this lady to Charles Lish in 1916 was in 1920 altogether void. It was also suggested, both in the previous application and here, that the fact that there had been an intervening lawful marriage, contracted by the applicant? with Mr. Wilson, between her alliance with Charles Lish and that contracted between her and Thomas Lish, did not make her the widow of her first husband; but the learned Judge was careful to point out that such an intervening marriage could not possibly take away the fact that she was claiming as the widow of her deceased husband''s brother: and think that it must be obvious that such an intervening marriage could not do away with the canonical bar of affinity which existed by both the Statute Law of England and that of the English Church in 1920, between this lady and her deceased husband''s brother; whatever experiences she may have passed through between Thomas Lish''s death and her so-called marriage with Charles Lish, are not, in my view, legally material. Into those arguments, therefore, which were discussed so well and fully decided by Woodroffe,) do not propose to enter more fully; the points are fully dealt with by him in his decision and I need not, I think, do more than say that I agree entirely with what he then stated in 1920 as showing correctly what was in 1920 the legal status of the marriage of this lady and Charles Lish in 1916. The previous decision in the proceedings in the application made before Mr. Justice Woodroffe, has, however, been put forward in the present application as barring the present application by virtue of the doctrine of res judicata: with that point, however, I propose to deal at a later stage of my decision and, at present, to consider which has been the effect, if any, in India upon the validity of the marriage of this lady to Charles Lish in 1916 of the passage of the English Deceased Brother''s Widow''s Marriage Act of 1921.

In order to construe properly this English Act of 1921 it is necessary first to look at the "deceased Wife''s Sister''s Marriage Act of 1907" upon which the later Act of 1921 was grafted. The first Section of this Act states that no marriage heretofore or hereafter contracted between a man and his deceased wife''s sister, within the realm or without, shall be deemed to have been or shall be void or voidable as a civil contract by reason only of such affinity. This means that in England such marriages should not in law or by the Courts be in future regarded as illegal simply on the ground of the relationship or affinity existing between a man and his deceased wife''s sister. The English Church regarded a man''s wife''s sister as his own sister: and an alliance between them as not only unlawful but incestuous. The seconi Section of the Act provided that existing interests should not be prejudicially affected by the fact that marriages of this character, which had hitherto been regarded as illegal, had been validated by the Act. The Deceased Brother''s Widow''s Marriage Act of 1921, is a very short enactment and, so far as is here material, it simply inserts after the words "deceased wife''s sister" in Section 1 of the Act of 1907 the words "or between a man and his deceased brother''s widow." The Act therefore thus validates marriages between a woman and her deceased husband''s brother. At the end of the 1st Section there is a Clause which reads:--"The said Act (that is the Act of 1907) as amended by this Act shall, so far as it relates to marriage between a man and his deceased brother''s widow, have effect as though it had been passed at the date of the passing of this Act." Now it has been strenuously argued by the learned vakil for the Caveator that this proviso means that the Act is not retrospective but I am satisfied that this argument is fallacious. All that is neant by the Clause which I have quoted is that the saving of existing rights of the other provisos of the Act of 1907 only dated, in the case of the Act of 1921, from the date when the Act of 1921 comes into operation. It was obviously necessary for a proviso of this character to have been inserted; as, if it had not been inserted, the saving Clauses and other provisions of the Act of 1907 would have been applicable in the case of marriages between a man and his deceased brother''s widow from 1907 instead of, as was obviously necessary, from the date of the coming into operation of the Act of 1921. In my view, therefore, it is quite clear that the Act of 1921, read with the Act of 1907, was retrospective in effect so far as it declared that, in English law, the marriages between a man and his deceased brother''s widow whenever and wherever they took place, should not be regarded as ille-1 gal simply on the ground of that peculiar affinity.

There now, therefore, remains for consideration in this connection whether, according to law in India, Courts in India should recognise marriages of this kind as valid. As has been pointed out by Mr. Justice Woodroffe and in the cases to which I have already referred, the true test as to whether a particular marriage ought to be regarded as a valid marriage (where a question of affinity arises) is to apply to the case the personal law of the community (i.e., the religious community) to which the parties concerned belong. In the present application all the parties belong to the Christian English Church, i.e., the Church, of England in India and I can have no doubt whatever but that, if prior to the Act of 1907, a Court had been asked whether a Christian marriage of a man to his deceased wife''s sister (both parties being members of the Church of England) was valid, it would have been answered in the negative; for the simple reason that the personal law of the English Church to which community the parties belonged regarded then such marriages as illegal. Similarly, too, after the passage in England of the Act of 1907 hid the same question been asked of a Court in India, the answer, for the same reasons, must have been in the opposite sense. Similarly, too, again, at the date of this application, there can be, in my opinion, only one answer to the question now put as to the validity of the applicant''s marriage with Charles Lish. The personal law (whatever the view of ecclesiastical authority may be) at the present date of the Church of England with regard to such marriages is, undoubtedly, that a marriage of this kind is legally valid. I, therefore, have come to the conclusion that the marriage of the applicant to Charles Lish was one to which no objection can be taken now on the ground of the affinity which existed between the applijant, Charles Lish and Thomas Lish.

The next question which has been argued before me at this stage of these proceedings is that the decision of Mr. Justice Woodroffe in 1920, made, when, at that date, the applicant applied to the High Court of Calcutta for letters of Administration, is a bar to the present application; it is contended that this decision involves the doctrine of "res judicata" for the operation of which Section 11 of the CPC must be refer, red to There is, I think, no doubt that an application of this character is in the nature of a suit; nor can there be any doubt that the subject of her previous application was the same as that which is now being made. The point, however, which has seriously to be considered is as to whether the parties to the two applications, are really the same in the legal sense. It will be observed that in the former application the present applicant applied for Letters of Administration as Adelaide Christian a Lish, the widow of Charles Lish: but the result of the decision of Mr. Justice Woodroffe was that she was not Adelaide Christiana Lish or the lawful widow of Charles Lish but was in fact Adelaide Christiana Wilson and presumably the lawful widow of Wilson; in other words, that her legal status was not that of the widow of Charles Lish and that, therefore, she had no locus standi to apply for Letters of Administration to Charles Lish''s estate.

Now, however, according to the view which I take, namely, that the English Act of 1921 is now part of the personal law of the English Church community in India, to which the parties, here concerned belong, her legal status has completely altered and, instead of being Adelaide Christiana Wilson and his lawful widow she is actually Adelaide Christiana Lish and Charles Lish''s lawful widow; in other words she is a different person and in alegii sense not the same party as was the applicant before Mr. Justice Wordroffe. Attention has been drawn to the principles involved in the cases of Ram Lal Malik v. Deodhari Rai 1924 Patna 265 and Aghore Nath Mukharji v. Srimati Kamani Devi [1909] Cri.L.J. 461, where it has been laid down that where an individual''s suit has been dismissed by a Court of competent jurisdiction and where a higher Court has, at a later stage, decided that the legal principles involved in the dismissal of that suit were wrong, it is act open to that individual again to bring another suit in respect of the same matter. But I do not think that those features enunciated apply in law in the case now before me. In the cases to which I have ju3t referred the parties were precisely the same: the cause of action and the subject-matter of the suits were identical; all that, had happened was that, between the dismissal of the first suit and the commencement of the second, some high tribunal had pronounced that the law enunciated as the reason for the dismissal of the first suit was incorrect. In the application now before me there is no suggestion (or rather there is no ground for supposing) that the law enunciated by Mr. Justice Woodroffe was anything but right. But, in the interval between the dismissal by him of the applicant''s application for Letters of Administration and the date of the present application, the whole legal status of the applicant, so far as it concerns her right to apply for Letters of Administration, has undergone a change. She is now prima facie entitled to apply for Letters of Administration to the estate of her deceased husband-as his lawful widow. When she applied to Mr. Justice Woodroffe she had no such status. It would be obviously unjrst and, to my mind, absurd to suggest that the decision of the previous proceedings could in any way be regarded as constituting a bar to her present application.

Under these circumstances I am of the opinion that these preliminary points must be decided in the applicant''s favour. The application for Letters of Administration must therefore now proceed in the usual way.