IMPORTANT POINT
There Is no scope for any other authority including Ecclesiastical Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by the provisions of the Divorce Act.

Headnote:(i) Indian Divorce Act, 1869-Sections 17, 18 & 19--Act confers upon District Court and High Court Jurisdiction in matrimonial matters-No scope for any other authority including Ecclesiastical Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by provisions of the Act.
       Held : From a bare reference to the different provisions of the Act including preamble thereof it is apparent that Divorce Act purports to amend the law relating to divorce of persons professing the Christian religion and to confer upon courts which shall include District Court and the High Court jurisdiction in matrimonial matters. In this background, unless the Divorce Act recognises the Jurisdiction, authority or power of Ecclesiastical Tribunal (sometimes known as Church Court) any order or decree passed by such Ecclesiastical Tribunal cannot be binding on the courts which have been recognised under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters. It is well settled that when legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act. From the provisions of the Divorce Act it is clear and apparent that they purport to prescribe not only the grounds on which a marriage can be dissolved or declared to be nullity, but also provided the forum which can dissolve or declare the marriage to be nullity. As already mentioned above, such power has been vested either in the District Court or the High Court. In this background, there is no scope for any other authority including Ecclesiastical Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by the provisions of the Divorce Act. The High Court has rightly pointed out that even in cases where Ecclesiastical Court purports to grant annulment or divorce the Church authorities would still continue to be under disability to perform or solemnize a second marriage for any of the parties until the marriage is dissolved or annulled in accordance with the statutory law in force. (Para 4)
       (ii) Indian Divorce Act, 1869-Section 19(4)-Petition by husband for nullity of marriage on ground that marriage between the wife and another person was subsisting on the date wife was married to appellant-Plea by wife that her earlier marriage was annulled by order of Ecclesiastical Tribunal (Church Court)-Dist. Judge declared the marriage nullity on basis of pleadings without conducting enquiry-High Court was justified in remitting the matter to Dist. Judge for fresh decision in accordance with law. (Paras 2, 4 and 7)

ORDER

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 in accordance with law. A petition was filed by the respondent husband 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 saying that although she had married earlier with aforesaid Prince Joseph, the said marriage was annulled by the order of the Ecclesiastical Tribunal (Church Court as it is referred to at times). It was also asserted on her behalf that previous marriage was known to the respondent and inspite of that he agreed to many the appellant.

2. 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 Act, 1869 (hereinafter referred to as the Divorce Act ) the former marriage 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 was) for confirmation. The High Court held:

"Canon Law (or personal law of Christians) can have theological or ecclesiastical implications to the parties. But after the Divorce Act came into force a dissolution 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.

3. 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 .........."

Section 3(4) defines Court to mean the High Court or the District Court, as the case may be. Section 4 provides :

"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-licenses, which may be granted as if this Act had not been passed."

Section 10 enables any husband to present a petition to the District Court or to the High Court, praying that his marriage may be dissovled on the ground that his wife has, since the solemnization thereof, been guilty of adultery. A wife may also present a petition to the District Court or to" the High Court for dissolution of the marriage on the grounds mentioned therein. In view of Section 17 every decree for dissolution of marriage made by the District Judge shall be subject to confirmation by the High Court. The said Section requires that cases for confirmation of decree for dissolution of marriage shall be heard by a Bench comprising of three Judges. It also vests power in the High Court, if it thinks necessary, to direct further enquiry or additional evidence to be taken. Chapter IV deals with nullity of marriages. In view of Sec

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1996 Supreme(SC) 1479

IMPORTANT POINTThere Is no scope for any other authority including Ecclesiastical Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by the provisions of the Divorce Act.

Cases Referred (1)

IMPORTANT POINT
There Is no scope for any other authority including Ecclesiastical Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by the provisions of the Divorce Act.