Bhagwan Ganshamdas Mansukhani vs Charlotte Zing

Bose, J.—This is an application for an injunction restraining the Defendant from representing or pretending that she is the wife of the Plaintiff and also for an injunction restraining the. Defendant from proceeding with a matrimonial Suit No. 20 of 1957 of this Court instituted by the Defendant against the Plaintiff for the dissolution of an alleged marriage between the Plaintiff and the Defendant.

The Petitioner is a Captain in the Aeronautical Service and is employed as a pilot in Indian Airlines Corporation, "Faraday House", Calcutta. He is a Hindu, Indian National and of Indian Domicile and professes the Hindu faith. On 4th May, 1948 the Petitioner was lawfully married to one Sheila McKeen also professing the Hindu faith at the residence of the Petitioner at No. 24A, Stephen Court in accordance with Hindu rights and ceremonies. By a decree passed by the District Judge of the 24-Parganas, Alipore, the marriage of the Plaintiff with the said Sheila McKeen was dissolved under the Indian Hindu Marriage Act (Act XXV of 1955) on the 16th June, 1966, Believing that the said decree for dissolution had no extra territorial effect as to the limitation of time in which the Plaintiff could remarry, the Petitioner and the Defendant went through the form and ceremony of a valid marriage before the Registrar of Marriages at the Kacheri in Colombo in Ceylon on 12th September, 1956. In April 6, 1957, the Defendant took legal advice and informed the Plaintiff that the form and ceremony of marriage gone through by them in Ceylon was of no effect and that the said marriage was null and void. But notwithstanding the fact that the. marriage solemnised in Ceylon is a nullity and the Defendant is not the lawfully wedded wife of the Plaintiff, the Defendant is representing herself to be the wife of the Plaintiff and instituted a suit in this Court being Matrimonial Suit No. 20 of 1957 against the Plaintiff praying inter alia for the dissolution of the marriage. It is alleged that by reason thereof the status of the Plaintiff has been affected prejudicially, and irreparable injury and harm will result to the Petitioner (Plaintiff) if the Defendant be permitted to continue to represent herself to be the wife of the Plaintiff. The case of the Petitioner further is that as it is not possible for the Petitioner to obtain a decree of nullity of marriage under any of the Marriage or Divorce Acts, In the matrimonial jurisdiction of the Indian or Ceylon Courts, the Petitioner has filed the present suit in which this application is made for a declaration that the marriage solemnised between the Plaintiff and the Defendant in Ceylon is null and void and for an injunction restraining the Defendant from representing herself to be the lawfully wedded wife of the Plaintiff, or from proceeding with the Matrimonial Suit No. 20 of 1957 filed in this Court.

Mr. T.K. Basu, the learned Counsel for the Defendant, has raised a preliminary objection to the jurisdiction of this Court to entertain the present suit in which this application for injunction is made. It is submitted that this Court in the exercise of its Ordinary Original Civil Jurisdiction cannot entertain a suit of a matrimonial nature for a decree for nullity of marriage inasmuch as the Indian Divorce Act (Act IV of 1869) bars the institution of suits of matrimonial nature in the Ordinary Original Civil Jurisdiction of this Court. Reliance is placed on Section 4 of the Indian Divorce Act and Section 18 of the said Act. Section 4 is as follows:

The jurisdiction now exercised by the High Court in respect of divorce a mensa et toro and in all Other causes, suits and matters matrimonial, shall be exercised by such, courts and by the District Courts subject to the provision in this Act contained, and not otherwise.

Section 18 runs as follows:

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

It may be pointed out in this connection that Section 2 of the Indian Divorce Act provides that "nothing hereinafter contained shall "authorise any court to make decrees of nullity of "marriage except that the marriage has been solemnised in India "and the Petitioner is resident in India at the time of presenting "the petition".

It is thus clear that inasmuch as the marriage between the Petitioner and the Defendant was solemnised outside India, the matrimonial courts exercising jurisdiction under the Indian Divorce Act have no jurisdiction to entertain any petition for or to make a decree of nullity of marriage under the provisions of the Indian Divorce Act.

The learned Counsel for the Defendant has, however, drawn the attention of the court to a decision of this Court Gasper v. Gonsalves (1911) 13 B.L.R. 109 in which a declaratory decree u/s 15 of Act VIII of 1859 was asked for on the ground that a marriage celebrated between the Plaintiff and the Defendant in that case was altogether null and void. The marriage, the validity of which was impugned in that case, was solemnised in the French territory of Chandernagore which was outside India. But it was held by Pontifex, J. that as the High Court cannot entertain a suit of a matrimonial nature otherwise than as provided by the Indian Divorce Act, this Court in its Original Civil Jurisdiction could not make a decree of nullity of marriage on the ground that the said marriage was invalid. It was argued by the learned Counsel for the Plaintiff in that suit which was an undefended suit, that there is no provision in the Indian Divorce Act for a decree for nullity of marriage on the ground that the marriage is invalid and so if a suit for a declaratory decree was held to be not maintainable the Plaintiff would be without any remedy. The learned Judge could not accede to this contention. It may be noted, however, that this decision of Pontifex, J. was given before the amendment of Section 2 of the Indian Divorce Act by Act XXV of 1926 which introduced the limitations on the jurisdiction of the matrimonial court to grant decrees of dissolution and nullity. By the amendment the matrimonial court is debarred from making a decree of nullity of marriage unless the marriage is solemnised in India and the Petitioner is resident in India at the time of presenting the petition.

The next case which has been referred to by Mr. Bose is the case of Taylor v. Wenkenbasch [1937] 1 Cal. 417. But it is to be noted that in this case the marriage which was impugned, took place at Calcutta and accordingly it was held that a declaratory suit u/s 42 of the Specific Relief Act was not the appropriate method for obtaining a decree of nullity of marriage but a petition under the provisions of the Indian Divorce Act in the Matrimonial Jurisdiction of the court, was the right procedure for obtaining a decree of nullity of marriage. The other case cited by Mr. Bose is Syble Massey v. Massey AIR [1947] Pesh. 53. In this case the parties were Christians and the petition was presented for restitution of conjugal rights. Section 32 of the Indian Divorce Act provided for application for restitution of conjugal rights and so in view of Section 4 of the Indian Divorce Act it was held that a suit for restitution of conjugal rights in the Ordinary Civil Court was barred by the Indian Divorce Act.

Mr. Surita, the learned Counsel for the Petitioner, has placed alliance on the case of Aunjona Dasi v. Prahlad Chandra Ghosh (18771) 6 B.L.R. 243 where it has been held that the suit for a declaration that an alleged marriage is an invalid one is a suit of a civil nature which may be entertained in the civil courts of this country under the provisions of Section 1 of Act VIII of 1859. It is further pointed out in that case that "in a suit declaring the invalidity of a ''''marriage the court could grant consequential relief. It might ''''restrain the person alleging himself to have the rights of a ''''husband from enforcing any claim to the custody or possession of "the person of the woman founded on the supposed marriage. If "such relict could be granted it is not easy to see why a declaratory "decree u/s 15 might not be made".

The other case on which reliance has been placed by Mr. Surita is Mussamat Bakhcm v. Alabaksh [1903] P.R. 82. In this case a suit was brought by a person for a declaration that the Defendant was not the lawful wife of the Plaintiff. It was contended that Section 42 of the Specific Relief Act was inapplicable as the Plaintiff was not suing for a declaration that he was entitled to a legal character. Harries, J. who delivered the judgment of the court observed that "the "legal character contemplated in the section may, we apprehend, "be in the affirmative or negative, in other words, that a certain ''''legal relation does or does not exist", and held that a civil court had jurisdiction to entertain such a suit.

It is clear from Books on Jurisprudence that a man''s legal character is the same thing as a man''s status. A man''s status or ''''legal character" is constituted by the attributes which the law attaches to him in his individual and personal. capacity, the distinctive mark or dress, as it; were, with which the law clothes him apart from the attributes which may be said to belong to normal humanity in general. It is also clear that status includes sex, coverture, celibacy, etc. There is, therefore, no doubt that the suit filed by the Petitioner in the present case for a declaration that he has not been lawfully married to the Defendant and that the Defendant is not the wife of the Plaintiff involves a question of the Plaintiff''s status and also a legal character and thus falls well within the terms of Section 42 of the Specific Relief Act and is maintainable in a civil court, especially in view of the fact that the case does not come within the purview of the Indian Divorce Act, and no decree for nullity of marriage can be asked for, under the provisions of the said Act, the marriage of the parties being celebrated outside India. In my view therefore this Court has jurisdiction to entertain the present suit which is filed within the Ordinary Original Civil Jurisdiction of this Court.

The next question that has been agitated before the Court is whether the marriage solemnised between the Plaintiff and the Defendant in Ceylon was a valid marriage or not. It is submitted, by Mr. Surita that it is the personal law of the parties which, governs the capacity for marriage. Reference has been made to Mr. Renton and Phillimore''s Book entitled "Comparative Law of "Marriage and Divorce" (1910 Ed.) at p. 24G where the following passage occurs:

The modern view is to distinguish capacity and form as separate, factors in the constitution of a valid marriage for which different governing laws may be recognised. The majority of legislation at the present day have thus definitely accepted the rule that the personal law of the parties intending marriage, determines their capacity for entering into the contract; and almost all the States of Continental Europe have undertaken by treaty to observe this principle as regards each other''s subjects, (See also page 249 of the book).

In the case of Mette v. Mette (1859) 1 S.W. and Tr. 416, 423 it is stated that there can he no valid contract of marriage unless each was competent to contract with the other. Similarly in the case of Brook v. Brook, (1861) 9 H.L.C. 193, 202, 207, 224 the same principle is reiterated. Reference may also be made for the same principle to the case of In Re: Paine [1940] 1 Ch. 46. See also Halsbury Vol. 7, p. 91, para. 165 (3rd Edition).

In the present case the first wife of the Plaintiff is as stated in para. 2 of the petition, still alive, and the decree of dissolution of marriage between the Plaintiff and the first wife was made on 16th June, 1956 and u/s 15 of the Hindu Marriage Act of 1955 it is provided that it shall not be lawful for the parties whose marriage has been dissolved by a decree of divorce, to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of first instance. Now although the Plaintiff was suffering from this incapacity or disability imposed by the law by which he was governed, he went through the ceremony of marriage with the Defendant on 12th September, 1956 which was within the period of one year during which a second marriage is prohibited. It is therefore prima facie established that the marriage of the Plaintiff with the Defendant is a nullity. Cases decided u/s 57 of the Indian Divorce Act also lend support to the proposition that the marriage of the Plaintiff and the Defendant is a nullity (See Warter v. Warier (1890) 15 P.D. 35, Taylor v. Wenkenbasch (Supra).

The Petitioner has thus established a prima facie case that his marriage with the Defendant celebrated on 12th September, 1956 was a nullity.

It has also been argued that this Court should not grant an injunction to restrain the matrimonial suit inasmuch as the matrimonial suit is a previously instituted suit, The principle of Section 10 of the CPC is invoked support this argument. But it is to be noted that the Matrimonial Court has no jurisdiction to make a decree of nullity of marriage or in other words to grant the same relief which is asked for in the present suit. As the Matrimonial Court has no jurisdiction to entertain this suit and this Court is not competent to grant the reliefs asked for in the Matrimonial Suit, Section 10 of the CPC has no application. It is well settled that the High Court has inherent power to grant an injunction restraining the Defendant from proceeding with a previously instituted suit on the ground of convenience. Furthermore, as pointed out Manchanda''s Book on Law and Practice of Divorce that if there are cross suits filed for nullity of marriage and for dissolution of marriage the nullity suit should be tried first (See p. 473 of Manchanda''s Book) (1938 Edition).

For all these reasons this is a fit case in which the Defendant should be restrained by an injunction from proceeding with the Matrimonial Suit No. 20 of 1957 pending in the matrimonial jurisdiction of this Court.

There will therefore be an order in terms of Clauses (1) and (2) of the Notice of Motion.