G. Packia Raj vs P. Subbammal alias Susila Bai

Abdul Hadi, J.—The judgment dated 9-3-1988 in O.S. No. 79 of 1987 on the flic of the District Judge, Kanyakumari dissolving the

marriage of the plaintiff/husband with the 1st defendant/ wife under S. 10 of the Indian Divorce Act (IV of 1869) hereinafter referred to an ''the

Act"") on the ground that the 1st defendant has been guilty of adultery is placed before us for confirmation under S. 17 of the Act.

The case of the plaintiff is that the plaintiff, a Christian, married in 1975 the 1st defendant who was a Hindu then, according to ""seerthirutha

form of marriage and also brought forth a child. The further case is that the 1st defendant developed illicit intimacy with other men during the time

when the plaintiff used to go for his daily work, that on 16-5-1987 when the plaintiff returned home from the place of work unusually earlier, he

found the 1st defendant ""keeping bed"" with the 2nd defendant, that he reprimanded her for her immoral act, that she then left the house and that

subsequently she also refused to receive a notice sent by plaintiff on 10-6-1987.

The Ist defendant, in her written statement, no doubt admitted partly the allegations in paragraph J of the petition, which inter alia referred to the

above said ''seerthirutha'' form of marriage. But, she denied the other averments in the plaint and contended inter alia that she was treated cruelly

by the husband.

In the suit, the plaintiff examined himself as P.W. I and also examined P.W. 2. The 1st defendant, though cross-examined P.Ws. 1 and 2, did

not lot in any evidence on her side. In fact, after the plaintiff''s evidence was closed, when the case was posted to 4-3-1988 for the 1st defendant''s

evidence, the learned counsel for the 1st defendant reported no instructions and the 1st defendant was called absent and set ex parte.

The plaintiff as P.W. 1 has reiterated whai is contained in the plaint and particularly stated that when he returned home on 16-5-1987, he

noticed defendants 1 and 2 without any dress in his house that the 2nd defendant ran away through the back entrance and that he scolded

defendant for what has happened. P.W. 2, who is known to the plaintiff, deposed that, on 16-5-1987 when he was going to the plaintiff''s house

for purchase of cocoanut, he found that the plaintiff was also returning to the house after ploughing work. He also deposed that at that time, the

lower part of the entrance door of the plaintiff''s house was remaining bolted, but the upper part was slightly remaining open and that when both he

and the plaintiff opened the door, they found the 2nd defendant going away with his cloths in his hand. The lower Court also finds that P.W. 2 is

not related to P.W. ] that he appears to be an independent witness and that if P.W. 2 had not really seen the occurrence, he would not have

supported the testimony of P.W. I. The lower Court also finds that the very fact that the 1st defendant, after examining P.Ws. 1 and 2, remained

absent, is a strong circumstance in favour of the plaintiff. Further, the Court below also finds that the notice, Ex. A. 1, sent by the plaintiff to the

wife was returned with the endorsement ""refused"". In view of these circumstances, the Court below has come to the conclusion that the plaintiff has

proved that the 1st defendant has committed adultery with the 2nd defendant.

Even before us, the 1st defendant is not represented by counsel. Jn fact that all the three parties in this case are represented by different Amicus

Curiae only. The plaintiff is represented by Mr. D. Rajagopal. The learned counsel Mr. Sundarasan and Mr. S. Natarajan, appearing respectively

for defendants 1 and 2, raise a preliminary objection to the maintainability of the above suit under S. 10 of the Act on the ground that the marriage

between the plaintiff and the 1st defendant having been not celebrated in accordance with the Indian Christian Marriage Act (XV of 1872), the

Indian Divorce Act is not applicable at all. They draw our attention to Section 4 of the Indian Christian Marriage Act. No doubt, the said S. 4 says

every marriage between persons, one or both of whom are a Christian or Christians, shall be solemnized in accordance with the provisions of the

next following section; and any such marriage solemhized otherwise than in accordance with such provisions shall be void. In the present case,

admittedly the marriage between the plaintiff and the 1st defendant was celebrated according to seerthirutha form of marriage and not in

accordance with the provisions of the Indian Christian Marriage Act. Further, both the learned counsel contend that though the plaintiff may be a

Christian, the 1st defendant remained a Hindu. In view of these reasons they contend that the suit is not maintainable under the Indian Divorce Act.

The learned counsel for the plaintiff on the other hand contends that the Indian Divorce Act, as per S. 2 thereof, applies even when one of the

two marital parties is a Christian since the relevant portion of S. 2 thereof says as follows:

Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except where the petitioner or respondent professes the

Christian religion"".

Paragraph 1 of the plaintiff states as follows:

The petitioner married the respondent on 28th Karthikai 1150(1975) and according to Seethirutha form of marriage since the Respondent was a

Hindu and subsequently she was converted to Christianity of her name changed from Subbammal to Suila and they were living as husband and wife

in the house of the petitioner at Parvthiputhoor and a child Raja Selvi by name was born out of their wedlock and the girl is now 11 years old"".

To this, in the written statement it is stated in paragraph 1 thereof as follows:

Para 1 of the plaint is admitted"". That means, the 1st defendant admits that she was converted to Christianity after the marriage. But, she no doubt

pleads in paragraph 11 of the written statement that she ""is a Hindu"". But, there is no evidence that after becoming a Christian, she subsequently,

once again became a Hindu. So, the result is when the suit was filed, we have to conclude, that both were Christians. Therefore, on this ground,

there is no difficulty in holding that the suit is maintainable under the Act.

However, as already indicated, the contention of the defendants is that the marriage between the plaintiff and the ''1st defendant itself is not valid

in view of S. 4 of the Indian Christian Marriage Act. But, the learned counsel for the plaintiff submits that for the application of the Indian Divorce

Act, the form of marriage is immaterial. In. support of this argument, he relies on Pramilla Khosla Vs. Rajnish Kumar Khosla, . The said case of the

Delhi High Court was a case under Ss. 22 and 23 of the Indian Divorce Act, 1869, where the wife prayed for a decree for judicial separation.

There, the parties were married according to Arya Samaj Rites and while the petitioner therein was a Christian, the respondent-husband was a

Hindu. In that context, the Delhi High Court held as follows (Para 9):

Nowhere in the Act is it required that the marriage, in respect of which relief is sought, should have been solemnised in any particular form. It is

sufficient that one of the parties is a Christian when the petition is filed: see Sasivarnam Vs. S. Gnanasundari Kamalam, , Nina Dalai v. Merwanji

Pherozshaw Dalai AIR 1930 Bom 385 and Mrs. Chandramani Dubey and Another Vs. Rama Shankar Dubey and Others, . Consequently, it was

held in Gobrdhan Das v. Jasa Damoni Dassi, I.L.R.(1891) Cal 252, that a marriage between Hindus, who afterwards became converts to

Christianity, could be dissolved under the Indian Divorce Act as the petitioner was a Christian at the time of presenting the petition. That case

expressly rules that a decree of dissolution may be passed under that Act though the marriage ""was not performed according to Christian rites"".

Since; here the petitioner has unequivocally alleged in her petition that she ''professes the Christian religion'' this requirement of the Act is fulfilled"".

The said decision also pointed out the proviso to S. 7 of the Indian Divorce Act. S. 7, in its main part says as follows:

Subject to the provisions contained in this Act, the High Court and District Courts shall, in all suits and proceedings hereunder, act and give relief

on principle and rules which in the opinion of the said Courls, are as nearly as may be conformable to the principles and rules on which the Court

for Divorce and Matrimonial Causes in England for the time being acts and gives relief:

However, the proviso, which was introduced in the enactment in 1912 runs as follows:

Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian

religion at the time of the occurrence of the facts on which the claim to relief is founded"".

Therefore, in view of the proviso, the said Delhi decision concluded as follows (Para 12):

Nevertheless, the proviso does show that in a case to which it applies, relief can be had under the Indian Divorce Act in respect of any kind of

marriage, whether monogamous or not"". (Underlining is ours)

The said decision also observed as follows (Paras 15 and 16):

However, the whole position has been radically altered by the Hindu Marriage Act 1955, which, by S. 2(a), applies to Arya Samajist. A Hindu

Marriage has now been rendered monogamous by that Act, as S. 5 makes it a condition that ''neither party has a spouse living at the time of the

marriage''. The bar to relief emanting from English law by virtue of S. 7 of the Indian Divorce Act no longer operates. Relief can now be had under

that Act in respect of a Hindu Marriage provided, of course, one of the parties professess the Christian religion when the petition is filed. That

condition, as I have already said, is fulfilled in this case.

This does mean that, in respect of a Hindu marriage, relief can be had both under the Hindu Marriage Act and the Indian Divorce Act if one of the

parties is a Christian when proceedings are commenced, though why anyone should wish to resort to the order Act when a more modern and

liberal one is available I cannot divine. But that is the present legal position, as 1 understand it. No doubt it is fraught with numerous possibilities of

conflicting proceedings where, for example, one spouse resorts to one Act and the other to the other. The remedy, however, lies in the hands of

the Legislature.

It is to be noticed that the above decision also relics on the decision of this Court in Sasivarnam Vs. S. Gnanasundari Kamalam, where also it

was held that if either of the parties was a Christian, it would be sufficient to invoke the jurisdiction of the Court under the Indian Divorce Act.

There, the husband was a Hindu and the wife was a Christian and their marriage was soleminsed according to the Christian rites and the petitioner-

wife sought for divorce against the husband.

But, there is one other question which has also to be considered to determine whether the present suit is maintainable or not. The admitted plea

is that the marriage was celebrated in accordance with the seer-thirutha form. No doubt S. 7A of the Hindu Marriage Act, which was introduced

and the Hindu Marriage Act (Central Act XXV of 1955) by Tamil Nadu Act XXI of 1967 runs as follows;

Special provision regarding syuamari-yathai and seerihirutha marriages:

(1) This solution shall apply to any marriages between any two Hindus, whether called suyamariyathal marriage or seerthi-"" rutha marriage or by

any other name, solemnised in the presence of relatives, friends or other persons.

(a) by each party to the marriage declaring in any language understood by the partk; that each takes the other to be his wife, or, the case may be,

her husband; or (b) by each party to the marriage garlanding the other 01 putting a ring upon any finger of the other, or (c) by (he tying of the thall"".

But, S. 7A will reply only if both the parties to the marriage are Hindus. But in the present case, admittedly, at the time of the marriage the plaitiff

was a Christian and the 1st defendant was a Hindu. So the said S. 7A will not apply to the present case. Thus, the marriage between the plaintiff

and the 1st defendant that took place in 1975, cannot be valid marriage. The marriage in question cannot be brought within the purview of the

Special Marriage Act, 1954. Therefore, if the marriage itself is not valid under any system known to law, certainly the Indian Divorce Act cannot

be invoked. Only if a valid marriage subsists, the remedy provided under S. 10 of the Indian Divorce Act could be thought of at all. The first part

of S. 10 of the Act, which provides for husband''s petition for divorce runs as follows:

Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his

wife has, since the solemnisation thereof, been guilty of adultery.

So, unless a valid marriage, solemnized under any system of law, susbists, the question of its dissolution will not arise at all. Therefore, since the suit

itself is not maintainable on the abovesaid ground the confirmation under S. 17 of the Act does not arise.

In the view we have taken, as stated above, there is no necessity to go Into the question of adultery alleged by the plaintiff and there is also no

necessity to deal with the other decisions cited by the Counsel on both sides, viz., Valliammal Achi Vs. V.R.V.S. Singaram Chettiar, , Ramanathan

v. Subbalakshmi (1983) 1 MLJ 395 dealing with proof regarding adultery.

We record with appreciation the pains taken by all the abovesaid three counset in bringing to our notice the relevant provisions of law and

decisions and assisting us.

Order accordingly.