James Sydney Osmond Conally vs Mary Josephine Pompei Conally

Wort, J.—In this case on 10th August 1928, this Court pronounced a decree for restitution of conjugal rights in favour of the husband petitioner. There were certain other applications arising out of that decree made to this Court which need not be referred to in detail; but on 9th July 1929, on an application by the wife the respondent this Court made an order that the decree pronounced in August 1928 should be reviewed by reason of the fact that according to the allegations of the respondent new evidence had been discovered which with ordinary diligence could not be obtained by the wife, the respondent, on or before the hearing of the petition for restitution of conjugal rights. That evidence consisted of matters which related to the relationship of the parties which according to the wife respondent, if it had been adduced at the hearing of the petition would have entitled her at the hands of the Court to have the petition of the husband dismissed and also entitle her to a declaration that the marriage was null and void.

The exact character of that evidence will be referred to in a moment. The matter now comes up for review and takes the form of a cross-petition by the wife for a declaration to the effect which I have just mentioned.

The contention of the wife in this case is that the parties at the time of marriage, that is to say, James Sydney Osmond Conally and Mary Josephine Pompei Conally, were related as second cousins of the half blood. Her contention was that that was a relationship which was prohibited so far as the marriage was concerned by the Roman Catholic Church of which both parties were members.

In the first place, I must refer to certain matters relating to the" law applicable in a case of this kind. Up to the year 1885 there was probably some doubt in India as to the particular law which applied to marriages between parties who were Christians and who are either domiciled or merely residents in this country, but by the decision in the case of Lopez v. Lopes [1886] 12 Cal. 706 (F.B.) that matter was disposed of and that decision has since that year not been seriously questioned. The effect of that decision was that so far as this matter which comes before me today is concerned the law applicable was the law of the community to which the parties belong. In that case, that is to say, in Lopez v. Lopez [1886] 12 Cal. 706 the parties were professedly Roman Catholics, and it was decided that the Canon Law was the law which governed their relationship, that is to say, so far as their marriage was concerned. Now, as I have stated, there is no doubt that in dealing with the facts of this case having regard to the decision to which I have come, the canon law is the law I shall have to look to to see whether the parties were related within the prohibited degrees of consanguinity and therefore whether for that reason their marriage is voidable.

I have had the evidence of Mary Josephine Pompei the wife of the petitioner before me and that together with the certified copies of the various certificates of marriage and baptism establishes that she was related as the great-granddaughter of one Catherine Wallis. On the other hand there is evidence before me chiefly consisting of the certificates of marriage and baptism that the petitioner James Sydney Osmond Conally was also related as the great-grandson of the same Catherine Wallis.

One or two facts in regard to this genealogical table perhaps it is necessary to mention. Catherine Wallis married Michael Keys. By that marriage there was a daughter Virginia, who married one Manual Francis. By that marriage in turn there was a daughter Eliza Josephine, who is the mother of the petitioner in this case. Now, on the line, Catherine Wallis married a second husband Simon Peters. By that marriage there was a daughter Sarah Constantine who married Piere Florentine D''Costa. There was a daughter of that marriage Clara Philomine marrying in turn William Conally, those persons being the parents of the respondent to this matrimonial suit.

As I have already stated, that evidence shows exactly, and there is no reason in this case why it should not be accepted that the parties were related as second cousins of the half blood. The question arises as to prohibition of the canon law which governs the relationship of these parties. I may refer in the first instance to Canon 96. I think it is sufficient to state that that canon merely deals with the method of computation of degrees of consanguinity. The prohibition is contained in Canon 1076. The prohibition is against marriages between parties up to the third degree of consanguinity. Para. 1 deals with the degrees of consanguinity in the direct line, and, according to the canon, refers equally to ascendants and descendant both legitimate and natural. Para. 2 deals with the collateral line. Para. 3 prohibits marriage within these degrees. In regard to para. 2 with which we are concerned in this case, it is to be noted that there is no mention of the illegitimate or legitimate ascendants or descendants and the question which arises in my mind in the first place is whether the fact that there was one common ancestor only was sufficient to bring the parties between the prohibited degrees of consanguinity in this case.

Although the question is one of law I have had great assistance in this matter from the Revd. Monseigneur Fernandez, who was called as a witness and who has made a statement which I must at once admit I accept in its entirety, and that it is generally conceded by Canonists that although there may be no mention in the commentary 1076 of the matter to which I have referred, yet it is a recognized interpretation of the canon that one common ancestor is sufficient to bring the parties within the prohibitive degrees of consanguinity and if I may say so perhaps this stands to reason having regard to the interpretation of the word itself "consanguinity." In my judgment I am fully persuaded that according to the canon law these parties were related within the prohibitive degrees.

Now, there is one other matter to which reference must be made and that is a question of whether in this case dispensation was granted before marriage. In certain circumstances, as I understand the canon law, a dispensation might be granted subsequent to the marriage itself provided that there was common consent of the parties to the marriage; but that question does not arise for obvious reasons in this case. I have had the evidence of the witness whom I have named and it is perfectly clear from his statement that no such dispensation as is required by canon law was granted in this case. It is to be noted that in this connexion there was this difference between this case and the authority which I have quoted, namely Lopez v. Lopez [1886] 12 Cal. 706. There it was assumed that a dispensation had in fact been granted, but here we have direct evidence to the contrary which I have already stated I have accepted. In these circumstances, without going further into the facts of the case, I am of the opinion that the respondent in this case was and is now entitled to a declaration that her marriage with James Sydney Osmond Conally is null and void. That being so, the necessary result will be that the petition of James Sydney Osmond Conally for restitution of conjugal rights will be dismissed and there will be a declaration in favour of the respondent in terms which I have indicated.

The respondent will be entitled to her costs. Let there be an amendment of the answer so as to make it in consonance with the declaration that the marriage is null and void.