LexMOLLY JOSEPH @ NISH versus GEORGE SEBASTIAN @ JOY
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MOLLY JOSEPH @ NISH A v. GEORGE SEBASTIAN @ JOY SEPTEMBER 18, 1996 [N.P. SINGH AND S.B. MAJMUDAR, JJ.] B Indian Divorce Act, 1869 : Sections 17, 19(4), 20-Maniage annuled by order or Ecclesiastical Tribunal-Validity of-Held: When a Legislature enacts a law even in respect C of the personal law of a group of persons following a pa1ticular religion, the statutory provisions shall prevail and ovenide any personal law usage or custom prevailing before coming into force of such Act-District Cowt or High Cowt vested with the power-No other auth01ity including Ecclesiastical Tribunal could exercise power in connection with matlimonial matters covered by the Aci-Distlict Judge disposed of the application for divorce D without any enquiry into the allegations relating to the subsistence of the fonner maniage-H.ence High Court justified in remitting the matter to the Distlict Judge for decision in accordance with law. Lakshmi Sanyal v. Sachit Kumar Dhar, AIR (1972) SC 2667 = [1973) 2 SCR 122, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8782 of 1994. From the Judgment and Order dated 20.7.94 of the Kerala High Court in C.M.R. No. 5 of 1994. Vernhese Kalliath, Shaju Francis, C.N. Sreekumar, K.M.K. Nair, S. Balakrishnan and M.T. George for the appearing parties. The following Order of the Court was delivered : This appeal has been filed on behalf of the wife for setting aside the judgment of the Special Bench of the Kerala High Court, directing the District Judge to conduct enquiry into the allegations relating to the subsistence of a former marriage of the appellant and then to pass a decree E F G in accordance with law. A petition was filed by the respondent-husband H 497 498 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R. A before the District Judge for a declaration that his marriage with the appellant is a nullity on the ground (i) the marriage between the appellant and one Prince Joseph was subsisting on the date the appellant married the respondent; (ii) the appellant was insane and continued to be so till the date of marriage. That application was contested by the appellant B saying that although she had married earlier with aforesaid Prince Joseph, the said marriage was annulled by the order of the Ecclesiastica1 Tribunal (Church Court as it is referred to at times). It also asserted on her behalf that previous marriage was known to the respondent and inspite of that he agreed to marry the appellant. C The learned District Judge did not conduct any enquiry and he declared the marriage between the appellant and the respondent a nullity merely on basis of the pleadings of the parties. According to him, as the appellant had admitted the earlier marriage and as there was no decree of any Civil Court in accordance with the provisions of the Indian Divorce D Act, 1869 (hereinafter referred to as the 'Divorce Act') the former mar- riage continued inspite of annulment order passed by the Ecclesiastical Tribunal, and the marriage had to be declared a nullity because of Section 19( 4) of the Divorce Act. As required by Section 20 read with Section 17 of the aforesaid Act the order of the District Judge was placed before a bench of three Judges presided over by Justice K.T. Thomas (as he then E was) for confirmation. The High Court held: F G H "Canon Law (or personal law of Christians) can have theologi- cal or acclesiastical implications to the parties. But after the Divorce Act came into force a dii:solution or annulment granted under such personal law cannot have any legal impact as statute has provided a different procedure and a different code for divorce or annulment." This appeal is against the aforesaid judgment of the High Court. The preamble of the Divorce Act says : "Whereas it is expedient to amend the law relating to the divorce of persons professing to Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; it is hereby enacted as follows ......... " MOLLY JOSEPH v. GEORGE SEBASTIAN 499 Section 3( 4) defines 'Court' to mean the High Court or the District Court, A as the case may be. Section 4 provides : I "Matrimonial jurisdiction of High Courts to be exercised sub- ject to Act. Exception - the jurisdiction now exercised by the High Courts in B 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
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