Section 7 of the Indian Divorce Act, 1869, enables the Court to declare a marriage void if it offends the provisions of Sections 4 and 5 of the Indian Christian Marriage Act, 1872.

SRINIVASAN, J.

This case raises an interesting question of law. The original petition is one filed under S. 4 of the Indian Christian Marriage Act, 1872

2. The respondent remained ex parte and the petitioner gave evidence in support of the allegations made in the petition. He has marked the agreement as Exhibit A-1. A perusal of Exhibit A- 1 shows that there was no marriage in accordance with the provisions of the Indian Christian Marriage Act. The agreement by itself cannot bring about a valid marriage.

3. The District Judge has accepted the evidence adduced by the petitioner and held that the petitioner was entitled to the relief prayed for by him. But instead of passing a decree for declaring the marriage to be void, the District Judge ordered that the marriage said to have been performed between the petitioner and the respondent was dissolved. It was also added by the District Judge that the decree is subject to confirmation by this Court under S. 20 of the Indian Divorce Act.

4. Both the petitioner and the respondent have not chosen to engage counsel in this proceeding which has come on a reference from the District Court. Hence the Court appointed amicus curiae for the petitioner as well as the respondent. The amicus curiae, who is representing the petitioner, submitted that the petition for declaration that the marriage is void is not maintainable as there is no provision in the Indian Christian Marriage Act enabling a party to file any proceeding before the Court for such a relief. On the other hand, the amicus curiae representing the respondent submitted that the petition was not maintainable in the District Court and the only remedy of the petitioner was to have filed proceedings in this Court. According to him, the High Court has jurisdiction to declare the marriage to be void. He places reliance on the judgment of the Allahabad High Court in Alfred Robert Jones v. Mt. Titli, 1933 AIR(Allahabad) 122. The learned Judge of that Court referred to the judgments of the Calcutta High Court in Gasper v. Gonsavas, (1874) 13 Beng LR 109 and Lopez v. Lopez, 1886 (12) ILR(Cal) 706 (FB) as well as the judgment of the Lower Burma Chief Court in Consterdine Smaine, 1918 AIR(LB) 83 : 47 IC 544 and proceeded to hold that the High Court had jurisdiction to decide very important questions which may arise out of Christian Marriage Act. He said that the various grounds on which the Court can give a decree of nullity in the Divorce Act refer to cases where there has been a marriage validly performed and when questions arise under Ss. 4 and 5 of the Christian Marriage Act the marriage has not been validly performed. He observed that there is a clear distinction between a decree of nullity of a valid marriage and a declaration that the marriage itself is illegal and void and there can be no doubt that there is jurisdiction in the High Court to hear and decide questions under the Christian Marriage Act. But that judgment was reversed on appeal by a Division Bench in Mt. Titli v. Alfred Robert Jones, 1934 AIR(Allahabad) 273.

5. We have gone through the provisions of the Indian Christian Marriage Act, 1872. Section 4 of the said Act reads that every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. Under S. 5, marriages may be solemnized in India by the persons mentioned in that section. There is no provision whatever in the Act enabling any party to approach any Court for any relief in connection with any marriage. The only provisions relating to any proceeding under the Act are found in Ss. 45 to 49 and 66 to 76. While Ss. 45 to 49 relate to petitions where a person whose consent is necessary is insane or unjustly withholds consent, or where the Marriage Registrar refuses to issue a certificate or where the Registrar dou