The Indian Divorce Act, 1869 provides a different procedure and code for divorce or annulment, and vests power in the District Court or the High Court to dissolve or declare a marriage nullity, overriding any personal law, usage, or custom.

1. 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 marry 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 S. 19(4) of the Divorce Act. As required by S. 20 read with S.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 die 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".

3. 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 matter matrimonial; it is hereby enacted as follows..."

4. S. (3)4 defines 'Court' to mean the High Court or the District Court, as the case may be. S. 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 mensal 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 related to the granting of marriage-licenses, which may be granted as if this Act had not been passed.

5. S.10 enables any husband to present a petition to the District Court or to the High Court, praying that his marriage may be dissolved 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 S.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 continuation 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. Chap. IV deals with nullity of marriage. In view of S. 18 any husband or a wife may pres