KANKU Vs. KHRISTI SHANABHAI FULABHAI
LAWS(GJH)-1963-5-3
HIGH COURT OF GUJARAT
Decided on May 03,1963

KANKU D/O DHULABHAI DAHYABHAI Appellant
VERSUS
KHRISTI SHANABHAI FULABHAI Respondents

JUDGEMENT

A.R.BAKSHI, N.M.MIABHOY, M.R.MODY - (1.) A decree has been passed by the learned District Judge Kaira at Nadiad in Divorce Suit No. 1 of 1961 on 1st September 1961 by which the learned Judge has declared the marriage between the petitioner Kanku and the respondent Shanabhai null and void subject to the declaration being confirmed by this Court under sec. 20 of the Divorce Act 1869 (hereafter called the Act). The learned District Judge by his letter dated 1st March 1962 has sent the proceedings in the suit to this Court for confirmation. The petition which was numbered in the District Court as Suit No. 1 of 1961 was made by the petitioner under sec. 18 of the Act. It is common ground that the petitioner and the respondent were married about 14 years ago under Hindu marriage rites. The petitioner first filed Suit No. 4 of 1960 in the Court of the learned Civil Judge (Senior revision) Nadiad under the Hindu Marriage Act 1955 for dissolution of that marriage on the ground that the husband had changed his religion and dad become a Christian since the celebration of the marriage. The respondent defended that action on the ground that the petitioner and the respondent were Christians by birth and that therefore that Court had no jurisdiction to deal with the suit under the Hindu Marriage Act 1955 The petitioner had alleged in that suit that she was a Hindu; that she was married with the respondent according to the Hindu rites and that therefore she and a right to file a petition for divorce under the Hindu Marriage Act 1955 The learned Civil Judge raised a suitable issue on this controversy and came to the conclusion that both the petitioner and the respondent were Christians by birth and that therefore he had no jurisdiction to deal with the suit for divorce under the Hindu Marriage Act 1955 On this ground the learned Civil Judge dismissed the suit of the petitioner. Therefore the petitioner filed the suit from which the present confirmation proceedings arise. In this suit the petitioner prayed that the above marriage might be declared null and void. The ground on which the prayer was based was that both the petitioner and the respondent were Christians at the time of the marriage and as admittedly their marriage was celebrated according to the Hindu rites the marriage was not performed in accordance with sec. 5 of the Indian Christian Marriage Act 1872 and that therefore it was void under sec. 4 of the same Act. The petitioner did not admit either in the petition or in her evidence that she was a Christian at the date of the marriage. She still maintained that she was a Hindu by religion; that her parents were Hindus and that she was born a Hindu. But she contended that though such was the fact the respondent was stopped by virtue of the successful contention which the respondent had urged in the previous Suit No. 4 of 1960 in the Court of the learned Civil Judge (Senior Division) Nadiad from contending that she was a Hindu. It is obvious that the plea of the petitioner that she was a Christian was not based upon a fact but upon the alleged principle of estoppel. The learned Judge appears to have thought such a plea if proved would permit him to hold the petitioner a Christian whatever made the true position in fact and that a that would enable him to decide the controversy between the parties about the nullity of the marriage. Therefore the learned Judge framed the first part of the first issue as follows: Weather the respondent is now estopped from contending that the petitioner was not a Christian by birth ?. The respondent denied that the principle of estoppel applied to the facts of the present case. Just before the trial the petitioner filed a Purshis in which she clarified that she was Hindu by birth that she was a Hindu at the time when she was married to the respondent but that she was baptized about two or three years after them marriage and be came a Christian at that point of time. In the evidence no reference was made to the petitioner being born a Hindu and being baptized at a later stage. On the contrary she stated that her parents were Christians. In the cross-examination she said that her deposition in the previous suit that her parents were Hindus and that she was a Hindu at the time of the marriage was a mistake. However her father Dhulabhai gave connecting testimony. According to him though he had become a Christian he had never been baptized d. He deposed that he was a Hindu but that be became a Christian because he was told that his son Ranchhod would be admitted in a Christian School if he became one. He said that though he was re-named by a Christian priest he was not actually baptized because he had two wives none of whom became a Christian. There is no reference in the evidence of the respondent about the religion of the petitioner either at the time of her birth or at the time of the marriage. The learned Judge has answered the issue of estoppel in favour of the petitioner and passed a decree on the basis that both the parties were Christians as the time when the marriage was celebrated about 14 years ago. We find it difficult to agree with the learned District Judge that the principle of estoppel applies much less that a decree for nullity can be passed on the basis of any such principle. In the first instance it is noteworthy that the finding about the religion of the petitioner is not sought to be obtained on the ground of the principle of res judicata. The petitioner does not urge that the finding recorded by the learned Civil Judge (Senior Division) in the previous litigation was concluded by any such principle. Therefore it is not necessary for us to examine the position whether such principle applies and what its effect will be in the present litigation. Now it is well known that in order that the principle of estoppel may apply it is necessary that there should be a representation by a party and that another party must act on the faith of that representation. Having regard to the facts of the case there is no doubt that no such representation was made to the petitioner by the respondent nor did the petitioner act upon any such representation. There is no allegation that before the previous suit was filed any such representation was made by the respondent. In way case there is no doubt that the petitioner never acted upon any such representation. On the contrary she opposed that representation and invited a decision of the Court on the subject. The finding was not merely recorded on any representation made by the respondent but was recorded on the evidence which was led by both parties. Even if the principle of estoppel had applied in this case we would have found considerable difficulty in confirming the decree for nullity on the basis of any such principle. A decree of nullity has the force of a judgment in rem. When the Court is acting under the Act it exercises matrimonial jurisdiction. Therefore any decree passed by the Court would affect not only the rights and obligations of the parties to the petition but also the rights and obligations of the whole world. In a litigation of this type the Court should act on the basis of what it discovers to be the truth and not on the basis of the fact that one party was prevented from urging an important allegation against the other. But these considerations cannot be an impediment in the way of the consideration of the present case on its own merits because it is quite clear from sec. 4 of the Indian Christian Marriage Act 1872 that in order that a marriage under that section may be void it is not necessary that both the parties should be Christians. If one of the parties happens to be a Christian the section would apply. Therefore if the respondent was a Christian at the time of the celebration of the marriage whatever may be religion which the petitioner followed at that time the marriage would be void. But Mr. Shah contended that though there was no clear averment in the written statement of the respondent that he was not a Christian at the time of the marriage there was no clear admission also on his part that he was a Christian at the relevant time. Mr. Shah contended that this omission in the written statement cannot be construed as any admission on the part of the respondent because there was no clear averment in the petition itself to the effect that the respondent was a Christian at the time of the marriage. He contended that if there was any such averment in the petition the omission could have been construed as such an admission. He invited our attention to the language in which some of the paragraphs in the written statement Were couched and he contended that those paragraphs read as if the averment of the respondent was that he was a Christian now and not necessarily at the time of the celebration of the marriage. We have read the evidence given b) the respondent. There also he has used the present tense and said that he is a Christian. Thus in our opinion there is also no clear evidence in the case to show that at the time when the marriage was celebrated the respondent was a Christian. In order that the marriage may be void under sec. 4 of the Indian Christian Marriage Act 1872 it is necessary that at least one of the parties must be a Christian. Having regard to the fact that there is no proper pleading and proper evidence on the subject if we have to decide this case we will have to frame a suitable issue on the subject and send it for recording of evidence on the same. Therefore if we have to decide the reference at all we propose to frame the following issue and refer it to the learned District Judge to record additional evidence on the subject and send back the record with his finding thereon. But for the reason presently to be mentioned we cannot do so unless we decide a question of far-reaching importance raised by Mr. Shah and which does not appear to have been raised in the trial Court. Before we undertake an examination of that question we may mention that the finding recorded by the learned Judge on one of the defences urged by the respondent is unassailable and Mr. Shah did not challenge that particular finding. The defence of the respondent was that there was a custom in the community to which the parties belong which enjoined that the marriages should be celebrated according to the Hindu rites to whatever religion the parties belong. The burden of proving the existence of any such custom was on the respondent. The learned Judge has found that such a custom was not proved. There is no doubt whatsoever that there is no evidence worth the name on this particular subject. In view of this the finding was perfectly justified and in view of that finding it is not necessary for us to consider that question which otherwise it would have been necessary for us to do as to whether any such custom can override the clear statutory provision embodied in sec. 4 of the Indian Christian Marriage Act 1872
(2.) The main question which Mr. Shah raised Was one about the jurisdiction of the District Court to grant under the Act there lief for nullity of marriage on a ground which was mentioned in another statute. Mr. Shah contended that a petition under the Indian Divorce Act for nullity of marriage was not maintainable on the ground that the marriage was not solemnized in accordance with sec. 4 of the Indian Christian Marriage Act 1872 He contended that the proper forum for decision on this subject was the Court of ordinary civil jurisdiction and not the special Court established under the Act. Normally having regard to our finding that a new issue requires to be framed and additional evidence requires to be taken we would not have undertaken an examination of this intricate and difficult question unless a finding was received on the subject and unless it was established that one of the parties was Christian at the time when the marriage was celebrated because it is quite clear that if an adverse finding is recorded on this point the marriage would not be a nullity and the petition would be dismissed on that ground. But we are in the course of confirmation proceedings. The jurisdiction to confirm the decree arises under sec. 20 of the Act. We would have that jurisdiction only if the learned District Judge was competent to entertain the suit under the Act. If the suit is not under that Act then we have no jurisdiction to confirm the decree under sec. 20 of the Act; nor do we have any power to direct the learned District Judge to take additional evidence and to record and certify a fresh finding. Under the circumstance the jurisdiction of this Court to do so depends upon a resolution of the above controversy as to whether the learned District Judge was or was not competent to entertain the petition for nullity of marriage under the Act. We have already indicated the contentions raised by Mr. Shah on this point. Mr. Rebello who appeared on behalf of the petitioner on the other hand opposed those contentions and urged that the present petition was one under the Act and the Court was competent to grant the relief for nullity of the marriage on the ground that it was void under sec. 4 of the Indian Christian Marriage Act 1872
(3.) The question which has got to be decided is whether the District Court has jurisdiction to entertain a petition and grant a decree for a declaration of nullity of marriage on the ground that the marriage is void under sec 4 of the Indian Christian Marriage Act 1872 The Act contains a number of sections dealing with the question of the jurisdiction. These sections are in Chapter II of the Act and run from secs. 4 to 9. The important sections which require to be construed and on the basis of which the question of jurisdiction may have to be decided are secs. 4 and 7. Sec. 4 deals with the matrimonial jurisdiction of High Courts and District Courts. Sec. 7 enacts the principles on the basis of which that jurisdiction has to be exercised.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.