IN THE HIGH COURT OF GUJARAT AT AHMEDABAD PETITION UNDER CHRISTIAN MARRIAGE ACT. No 3 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- LILLYKUTTY MATHEW Versus C.J. SIMON -------------------------------------------------------------- Appearance: MS RANI ADVANI for Petitioner MR KK NAIR for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of Order: 20/04/2000 CAV JUDGMENT This is a petition filed by a Christian wife for a decree of nullity of marriage with the respondent, also a Christian, particularly on the ground that the consent of the petitioner for the marriage in question with the respondent was obtained by fraud. 2. The petitioner's case, as stated in the petition, is as under :- 2.1 Both the petitioner as well as the respondent are Christians. Their marriage was solemnized on 19.5.1985 at St.Marry"s Church, Kuravilangadu, Kerala in accordance with the religious rites and customs of Roman Catholic. 2.2 The petitioner had a decent job in Ahmedabad since 1982, but due to the frequent communal riots in Ahmedabad, the petitioner thought of getting married and settling down in Kerala. During the summer vacation of 1985, the petitioner went to Kerala to meet her parents. At that time, one of her neighbours Mr Chako brought a proposal of marriage through his friend Mr Mathachan. Mr Mathachan is a marriage broker who had taken Rs.1000/- by way of commission. Mr Mathachan introduced the respondent as an eligible bachelor to the petitioner. The respondent informed the petitioner and her parents that he had done his B.A. and was working with AGRO Corporation and drawing a salary of Rs.1400/-. He also informed the petitioner that he was the owner of 3 acres of fertile land with a house in Kerala. Since the petitioner did not have enough time to examine the correctness of the statements made by the respondent, relying upon the broker who was introduced by the neighbour of the petitioner's parents, they went ahead with the said proposal. 2.3 The petitioner and the members of her family were particular that the bridegroom should be educated and employed and should have sound financial stability. The petitioner also wanted that her husband should have sufficient educational qualification. In the above circumstances, the petitioner and her family members were very particular about the educational qualification, job and financial status of the bridegroom. They told the respondent and his relatives that they are interested in the alliance only if the bridegroom is having good academic qualification and only if he is well placed in life. In reply to these specific demands, the petitioner and her relatives were told by the respondent and the broker that the respondent is a graduate and employed in an organization viz. AGRO Engineering Corporation, a State Government undertaking and was drawing a handsome salary of Rs.1400/- a month + other allowances. The respondent had also told the petitioner that he is the youngest son of his parents. He had also told the petitioner that his two elder brothers are already married and living separately. Relying upon the statements given by the respondent, the petitioner and her parents decided to proceed with the marriage. The petitioner met the respondent only three times prior to the engagement as it was an arranged marriage. The petitioner had never met the respondent privately before the marriage. 2.4 Before the engagement the respondent demanded a pocket money of Rs.10,000/- from the father of the petitioner though it was not a custom. At the time of the marriage, the respondent demanded a sum of Rs.1,00,000/- by way of dowry which the petitioner's father declined. However, the petitioner's father gave him gold and property of 50 cents worth Rs.1,00,000/- at the relevant time. On 19.5.1985, the petitioner and the respondent got married at Sr.Marry's Church, Kuravilangadu. After the marriage, there was no honeymoon. The respondent did not take the petitioner to any of his relatives or friend's places. After the marriage, the petitioner stayed with the respondent for about a month and during the last week of June, 1985 the petitioner returned to Ahmedabad. During this stay with the petitioner, the respondent mortgaged the gold which was given to him at the time of marriage in order to meet his financial requirements. At the time of the marriage, the respondent had a debt of Rs.20,000/- which he had borrowed from different people. The gold which the respondent had mortgaged has not been returned to the petitioner till this date. Though as per the understanding after the marriage, the petitioner was to resign her job in Ahmedabad and stay with the respondent in Kerala, the petitioner was forced to come back to Ahmedabad as there was no source of income with the respondent. 2.5 The petitioner came to know that whatever the respondent had told her and her parents regarding his income, qualification and family status was absolutely wrong. The petitioner came to know that the respondent had two younger brothers and both of them had married and were having children. (At the hearing, a reference is made to the custom of the community that the property of the father is given to the youngest son and, therefore, the respondent not being the youngest son, was not going to get the property as per the custom of the community). The petitioner did not have any property except 50 cents of land. To the utter shock and surprise of the petitioner, she came to know that the respondent was unemployed and was not even a graduate. When the petitioner made enquiries from the respondent about the details of his employment, the respondent evaded answers. The petitioner submits that she gave consent to the marriage only because the respondent represented and made her to believe that he was a graduate and was employed with AGRO earning a decent monthly salary of Rs.1400/-. When the petitioner wanted to discuss the future plan, the respondent confessed that he had no avocation in life. The respondent told the petitioner that if the petitioner resigns her job and lives in Kerala, he was not having any means to support the family as he was not employed. He also expressed his helplessness to join the petitioner at Ahmedabad since he did not even possess the educational qualification to secure a job in Ahmedabad. 2.6 The petitioner has stated that if the petitioner had the knowledge about the real state of affairs of the respondent, she would not have given her consent for the marriage. The petitioner had given the consent for the marriage particularly with a reference to the purported quality of the respondent which he claimed to have, but the respondent deliberately concealed several significant factors and made representations to the petitioner in order to obtain her consent for the marriage. The representations made by the respondent and the broker regarding the employment, financial status and educational qualifications were all false and were made with an intent to defraud the petitioner. Thus, the consent of the petitioner for the marriage was obtained by fraud and, therefore, the petitioner is entitled to get a decree declaring her marriage with the respondent as null and void. 2.7 In the petition, the petitioner had initially stated that with a view to see that the behaviour of the respondent changes, the petitioner brought the respondent to Ahmedabad and petitioner and the respondent lived at Azad Society, Ambawadi between 15.12.1985 and 31.12.1985 and that this was the last time the petitioner and the respondent lived together as husband and wife and that, thereafter they never lived together. 2.8 In the petition, as originally drafted, the petitioner had also invoked the ground contained in Section 19(1) of the Indian Divorce Act, 1869 to the effect that the respondent was impotent at the time of marriage and at the time of the institution of the suit. However, the said ground was not pressed at the hearing of this petition and, therefore, the petition has been heard only for the prayer for decree of nullity of marriage on the ground that the petitioner's consent was obtained by the respondent by fraud. 3. The respondent has filed counter affidavit denying the petitioner's case and stating that the respondent had done his B.A. in Economics and the respondent was employed as a representative with Agro Chemicals and was receiving Rs.1500/- from the said employment. The respondent has asserted that the respondent was a degree holder and had a reasonable job, temporarily, at the time of marriage and that his financial stability was also sound, that he never informed anybody that he was the owner of 3 acres of land and a house; the 3 acres of land and a house was the property belonging to the respondent's father. The marriage was an arranged marriage and there were sufficient enquiries from both the families before the marriage as the two families are situated within a distance of 8 kms. The financial status of both the families was equal at the time of marriage and since the respondent had a reasonably good job, temporarily, at the time of marriage, the respondent's financial stability was also sound. The petitioner was a Typist and she did not pass the pre-degree course. Hence, she cannot legitimately expect a higher qualification from her husband. Before the marriage, the petitioner's parents and other relatives visited the respondent's house on four occasions and ascertained and knew the real situation. There was no occasion for the respondent to tell the petitioner that the respondent was the youngest son of his parents as the respondent had one elder brother and one younger brother. The respondent also denied the petitioner's case of demand of Rs.10,000/- as pocket money before the engagement or thereafter. The petitioner and the respondent had a private talk on the first occasion for about 40 minutes. The respondent did not ask for any dowry of Rs.1,00,000/- from the petitioner or her parents nor did the respondent receive any gold from the petitioner and her parents, but the petitioner's father assigned about 45 cents of land in the joint names of the petitioner and the respondent. The respondent also denied the petitioner's case that the respondent had mortgaged the petitioner's gold or that the respondent had a debt of Rs.20,000/- at the time of marriage. It is stated that the petitioner returned to Ahmedabad on her own volition. It is also contended that it was not the respondent who was demanding money from the petitioner, but the petitioner was demanding money from the respondent. As regards the age, the respondent admits that at the time of marriage he was aged 41 years and the petitioner was aged 29 years but the respondent denied the allegation that he had held out his age to be 31 years. The respondent has also stated that he had never gone to Ahmedabad and that this Court has no jurisdiction to hear and decide this petition. As regards the allegations of impotence, the same are denied and various letters are produced with the counter affidavit to show smooth relations between the parties. 4. Though the petitioner did file affidavit in rejoinder, the same is not taken into account as the learned counsel for the respondent had prayed for time to meet with the affidavit in rejoinder. However, since the affidavit in rejoinder is more or less reproduction of the petitioner's case in the original petition and is also argumentative in nature and since the learned counsel for the respondent objected to such affidavit being filed on the last date of hearing, the Court does not think it necessary to refer to the same. The rejoinder affidavit, of course, seeks to deny the allegation of the respondent that he never came to Ahmedabad, but it is not necessary to refer to the said part of the rejoinder either, as the learned counsel for the petitioner has argued the case on the basis that even if the respondent had not come to Ahmedabad in the past, the present petition is maintainable without going into the controversy as to whether the respondent had ever come to Ahmedabad after the marriage in question. 5. The parties have not chosen to lead oral evidence in this matter as the dispute between the parties about the alleged fraud in the petitioner's giving consent to the marriage with the respondent was already examined by the Ecclesiastical Court called "Tribunal Diocesanum Palaiense". The parties have, therefore, referred to the facts recorded by the Tribunal in its judgment dated 10.10.1995 which is produced by the respondent with his affidavit in reply and heavily relied upon by him. The Court has, therefore, proceeded on the facts as recorded by the said Tribunal and as explained by the parties in their respective pleadings. The matter has of course been aruged on the questions as to what inferences are to be drawn from those facts. 6. The following issues have been raised for decision of this Court :- (i) Whether this Court has the jurisdiction to entertain and try this petition ? (ii) Whether the petitioner is entitled to a decree of nullity of marriage on the ground that her consent for the marriage in question with the respondent was obtained by fraud ? (iii) Whether this Court can take a view different from the view taken by the Ecclesiastical Court that the petitioner's consent cannot be said to have been obtained by fraud ? 7. As far as the first question about territorial jurisdiction is concerned, Mr KK Nair for the respondent even submitted that the first issue about the jurisdiction may be treated as a preliminary issue and that further hearing of the petition may be adjourned after the decision is rendered on the said preliminary issue so that the aggrieved party can go in appeal against the finding on such preliminary issue. In the facts and circumstances of the case, the request of Mr Nair was rejected and the Court considered it just and proper to hear the petition on all issues and not to go for any piece-meal hearing. JURISDICTION - Issue No. 1 8. As far as the question of jurisdiction is concerned, the relevant provisions of the Indian Divorce Act, 1869 required to be referred to are as under :- The preamble of the Act reads as under :- "Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; It is hereby enacted as follows :- 1. Short title, Commencement of Act.- This Act may be called the Indian Divorce Act and shall come into operation of the first day of April, 1889." 2. Extent of Act. - This Act extends to the whole of India except the State of Jammu and Kashmir. Extent of power to grant relief generally, Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner or respondent professes the Christian religion. and to make decrees of dissolution, or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented, or of nullity or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition. 3. Interpretation clause.- In this Act, unless there be something repugnant in the subject or context - "High Court", (1) "High Court" means with reference to any area - (a) in a State, the High Court for that State; (b) to (ee) ... ... ... ... and in the case of any petition under this Act, "High Court" means the High Court for the area where the husband and wife reside or last resided together. (2) "District Judge" means a Judge of a principal civil court of original jurisdiction however designated; (3) "District Court" means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together; (emphasis supplied) "Court" (4) "Court" means the High Court or the District Court, as the case may be: xxx xxx xxx xxx xxx 4. Matrimonial jurisdiction of High Courts to be exercised subject to Act - Exception.- The jurisdiction now exercised by the High Courts 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 provisions in this Act contained, and not otherwise; except so far as relates to the granting of marriage licences, which may be granted as if this Act had not been passed. 18. Petition for decree of nullity.- 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. 19. Grounds of decree.- Such decree may be made on any of the following grounds :- (1) that the respondent was impotent at the time of marriage and at the time of the institution of the suit; (2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force. Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud." (emphasis supplied) 9. The contention of Mr Nair for the respondent is that as per the underlined words in Section 3(1)(a) only that Court will have the jurisdiction "where the husband and wife reside (at the time of institution of the petition) or (where the husband and wife) last resided together". It is submitted that since the respondent had never come to Ahmedabad or Gujarat, the petitioner and the respondent had never resided in Gujarat and, therefore, the question of their last residing together in Gujarat also did not arise. It is submitted that as per the provisions of Section 4 of the Act, the jurisdiction under the Act can be exercised only by such Courts on which jurisdiction is conferred and not by any other Court. The learned counsel for the respondent has relied on the following authorities :- AIR 1984 Bom. 310 AIR 1991 Bom. 156 AIR 1993 Bom. 61 AIR 1995 Kerala 16 10. On the other hand, Ms Rani Advani, learned counsel for the petitioner has submitted that in view of the provisions of Section 2 of the Act, this Court has ample jurisdiction to make a decree of nullity of marriage as the marriage in the instant case was solemnized in India and the petitioner is residing in India at the time of presenting the petition and that these facts are not disputed. Admittedly the petitioner has been residing at Ahmedabad since 1982 onwards. 10.1 It is contended by Ms Advani for the petitioner that since the petitioner has prayed for a decree of nullity of marriage on the ground that her consent to the marriage in question was obtained by fraud, this petition would not be governed by the provisions of Sections 18 and 19 of the Act. Section 19 of the Act clearly provides in terms that nothing in this Section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. Therefore, the power of the High Court under clause 35 of the Letters Patent to make decrees of nullity of marriage of Christians on the ground that the consent was obtained by fraud is not taken away by any of the provisions of the Act. It is submitted that it is only when the decree of nullity of marriage is sought on any of the four grounds mentioned in the main part of Section 19 that the question of jurisdiction may arise. However, since that is not the case of the petitioner at this hearing, the provisions of Section 3 of the Act would not be applicable in the instant case. 10.2 The learned counsel for the petitioner has also submitted in the alternative that under clause 12 of the Letters Patent applicable to the Bombay High Court and consequently to the High Court of Gujarat, this Court has the jurisdiction to receive, try and determine suits of every description if the cause of action has arisen either wholly or in case of the leave of the Court having been obtained, in part, within the local limits of the jurisdiction of this Court. It is, therefore, submitted that if any leave is required, the same may be granted. Clause 19 of the Letters Patent has also been relied upon as the said clause provides that with respect to the law of equity to be applied to each case coming before the High Court, such law or equity shall be the law or equity which would have been applied by the High Court to such case if these Letters Patent had not been issued. The learned counsel for the petitioner has also relied on the decision of the Full Bench of Madras High Court in Sumathi Ammal vs. D. Paul, AIR 1936 Mad. 324. The learned counsel for the petitioner has further relied on the decisions in AIR 1984 P&H 305 and AIR 1980 Ker.131. 10.3 It is further submitted by Ms. Advani in the alternative that the words " where the husband and wife reside" in Section 3(1)(a) of the Act mean " where the husband or the wife resides" i.e. in the definition of the High Court as the High Court for the area where the husband and wife reside or last resided together, the reference is to the High Court for the area where the husband or the wife resides at the time of institution of the petition, or the husband and the wife last resided together and that since the petitioner-wife has been residing in Gujarat since 1982, this Court does have the jurisdiction to entertain and try this petition. It is contended that if the word "and" in the words "husband and wife" is read literally, it would be a tautology as "husband and wife reside together" and "husband and wife last resided together" will have the same meaning, because if the parties are presently residing together in State A, then obviously it can never be said that they last resided together in any other State. It is streneously submitted that the difference was not merely of tense i.e. present tense and past tense but the requirement is either "the husband and wife last resided together in the concerned State" or "the husband or wife resides in the concerned State at the time of filing the petition for a decree of nullity of marriage". 11. Before dealing with the aforesaid contentions,