JUDGMENT

Wilson, J. - The main question we have to answer upon this reference is, whether a marriage between a man and his deceased wife's sister, celebrated in Calcutta in the year 1877, is liable to be declared null and void, u/s 19 of the Indian Divorce Act, on the ground that the parties are within the prohibited degrees, both parties being domiciled in British India and resident in Calcutta, and both being Roman Catholics. It is not found whether either of the parties to this marriage is the descendant of English ancestors, or of European settlers in this country other than English, or of native converts to Christianity, or of mixed race; their names suggest a Portuguese origin. We are bound to presume every matter of fact in favour of the validity of a marriage, and therefore if there be rules as to the prohibited degrees which would invalidate a marriage between persons connected as these were, 'and if those rules be applicable to any one class of Christians, but not to all Christian^, we must presume, in the absence of any proof that they did, that the parties did not belong to that class. In particular, we must presume, so far as that point is material, that they are not of British descent, or British in any other sense than that of being domiciled in British India.

2. The Divorce Act (IV of 1869) applies to all Christians, and Section 19 enacts that a decree declaring a marriage null and void may be made, amongst other grounds, on the ground "that the parties are within the prohibited degrees of consanguinity (whether natural, or legal) or affinity." We have to say what the prohibited degrees applicable to the marriage now in question are, whether those prohibited by the law of England or by some other rule.

3. It will be convenient to divide the inquiry into three parts: First, how would the matter have stood if it depended only upon, the history of British acquisitions in India, and the Christians of various classes affected thereby, in the absence of statutory enactment? Secondly, what was the effect of the legislation prior to the Divorce Act, and what was the state of the law when that Act was passed? thirdly, what is the effect of that Act upon the prohibited degrees?

4. The first branch of the question may be treated very shortly. The circumstances under which the British power became established in India, and the effect of those circumstances upon the laws applicable to the people of the country, have been often considered. It was authoritatively decided in The Advocate-General of Bengal v. Ranee Surnomoyee Dossee 9 Moore's I.A. 387 and in other cases, that these circumstances had not been such as to introduce English law generally into India. And it certainly could not be contended that any of the rules of English law as to the capacity to marry have ever become law for the people of India generally. If we limit the inquiry to Christians, we do not think it could be contended that the history of the British acquisitions has been such as, without more, to impose the English law of prohibited degrees upon all Christians in British India. It was held in Abraham v. Abraham 9 Moore's I.A. 195 that Hindus adopting Christianity do not necessarily change their laws of property, but may retain their old law, or adopt that of the class to which they attach themselves, or establish a customary law. And we think the same rule must be the correct one as to laws of marriage. But their Lordships lay down the rule only as to "matters with which Christianity has no concern." And we do not suppose the law could permit native converts (if one can imagine their desiring such a thing) to choose for themselves some marriage law wholly repugnant to Christian ideas--converts from Hinduism, for instance, to retain their former right to marry more wives than one, or converts from Mahomedanism their former freedom of divorce. With regard to the English men and women who settled here and their descendants, other consideration would apply.