Delhi High Court
Bench: B Patel, S K Kaul, B D Ahmed
Mrs. Kalpana Benjamin vs Shri Sanjay Joseph on 1/2/2004
Badar Durrez Ahmed, J.
1. This is a Reference in respect of the judgment and decree passed by the Additional District Judge dated 10.1.2001 whereby the marriage between the petitioner and the respondent has been annulled.
2. The facts are that the petitioner and the respondent, who were and are
both Christians, were married on 18.12.1989. However, the marriage took place not according to the provisions of the Indian Christian Marriage Act, 1872 and,in particular, Section 4 thereof but according to Hindu rites and ceremonies.
3. The petitioner filed a Petition for annulment of the marriage. The
respondent failed to put in any appearance after the filing of written statement and was, accordingly, proceeded against ex parte. The petitioner examined herself as PW-1 to substantiate the averments made by her in the petition. After hearing the submissions of the learned counsel for the petitioner and examining the evidence on record, the learned Additional District Judge found that the petitioner and the respondent were admittedly Christians. They were Christians
at the time of the marriage and they continued to be Christians thereafter. They never converted to the Hindu religion. Yet, their marriage was according to Hindu rites and ceremonies. The learned Additional District Judge concluded that their marriage could have been solemnized only in terms of the Indian Christian Marriage Act, 1872. Section 4 of the said Act provides that any marriage solemnized otherwise than in accordance with such provisions shall be void.
Accordingly, the learned Additional District Judge held the marriage between the parties to be null and void and directed that decree be drawn up in terms of the order.
4. We find no infirmity with the judgment and/or order dated 10.1.2001 passed by the learned Additional District Judge. However, at the same time, we note that no confirmation of such a decree is necessary by this Court. Only a decree of nullity passed under Section 18 of the Indian Divorce Act, 1869 is subject to confirmation by the High Court by virtue of Section 20 thereof which provides that every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court, and that the provisions of Section 17, Clauses 1,2,3 and 4, shall, mutates mutants, apply to such decrees. A decree of nullity under the Indian Divorce Act, can only be made on the grounds specified under Section 19 thereof. The grounds being:-
“(1) that the respondent was impotent at the time of the 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.”
In the present case the decree of nullity has been passed, not on any of the aforesaid grounds but, on the ground that the marriage was contrary to the provisions of the Indian Christian Marriage Act, 1872. Therefore, the decree of nullity that is the subject matter of the present Reference cannot be regarded as one under Section 18 of the Indian Divorce Act, 1869 and, accordingly, no confirmation of the same would be necessary.
3. The Reference is disposed of accordingly.