Karnataka High Court
Mrs Maria Philomena Furtado Nee Pinto vs Mr Austin Furtado on 3 September, 2010
Equivalent citations: 2010 (4) AIR KAR R 479
Bench: K.L.Manjunath, B.Manohar
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I
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3m}DAY OF SEPTEMBER, 20i0[
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJDNATHTN
AND
THE HON'BLE M. JUSTfflE s MANGBAR= "K
MISC. FIRST APPEAL flo;120€9/2005 ffififs
BETWEEN: T
Mrs. Maria Philomena figr£ada*
Nee Pinto w/o Austin Eurtado; ,
D/o Lawrence Pipto, Roman Catholic,
33 years, Residing near Bejai; "" "
Kapikad schooi,"BejaijBost}TE .
Mangalore. ,'»5, f='€~AE ; .. APPELLANT
(By Advocate Sriivasaflth V.Fernandes)
AND:
:Haustifi'Furtado 3/6"iate
'{CharlesaFurtado, Roman Catholic,
3? years} Residing near Bejai,
Kapikad school, Bejai post,
Mangaloraqdg' .. RESPONDENT
'» (By Aqfiocate Sri.A.Keshava Bhat)
------aIuu-vooovrvooovr "This Misc. First Appeal is filed under Sec.39 of 1-D the Special Marriage Act and OrderwXLI of CPC against W 'the order dated 16.9.2005 passed in M.C.No.75/2000 on 61/ 2 the file of the 19:1'. Civil Judge (Sr.Dn.) s. CJM., Mangalore, D.I<., allowing the petition filed under Sec.24 & 25 of the Special Marriage Act R/w Se'c_.18 of the Endian Divorce Act.
This Appeal is coming on for final :.g-',_f;j,vs day, MANJUNATH J. delivered the following:__ 0' c 0 ' J U 13 G M E :+':»e~»a'.__4 0 The appellant is challeng'ii.ngi~A--A_V' correctness of the order lxbyt ' Civil Judge (Sr.Dn.) , Mangeslore in M.C. No . 75/2000 . Respondent under Secs . 24 & 25 of the Special 0' Sec.18 of the Indian gt"ufl:*Ac'cording to the petition averments, respondent are closely rfielatedféii "MothVer-- the petitioner and mother of the sisters and they agree to marry each'.o't1f2er«a"_e._s'~:;"per Christian rites and customs on Eetrothal function was also held. On .._eccount._ of" the difference of opinion arose between could not be solemnized. As per the lil"""V.V__iterrris'iof the betrotha}. function, marriage should have N. 3 been soleznnized within six months from the date of engagement. Since marriage was not held witnign six months, engagement got cancelled and petitioner started living as a bachelor."
2. In the year 1994, petition-er;'_'ms'it 'iit_h'e::"resf;;ontient.2' in a funeral ceremony of a'lrelgatiiveiii1»-!r_.F;:lj$1fiavnso3 and after the funeral informed the petitioner that spinster and requested the V all the differences _Vli§eft.o Believing her request under the Special Marriage before the Marriage Officer,V_§-dangialore started living together Respondent was irritating the petitioner andy_l_start.e'c1:itreating with utmost cruelty, she never ivlused cooikailgfzood and was not taking care of his needsi. Therefore, petitioner was compelled to from hotels and without any information . 'V:g"reVsg>ozadent left matrimonial home within a month after marriage. Later on, at the instance of the ('V é relatives and. respectable jpersons of the community again marriage was solemnized on 11.1.1996 at Holy Church, Derebail. Again she started threatening the petitioner and she never cooked £o§a.;§¢g"§gne_ petitioner.
3. According to him, itgVwas_inotgieithinu his knowledge that respondent had earried to one Latheef on 15.1.1988 and the said_marriage fies registered and that the respondent andl the fipetitioner are coming under the prohibited E degree ""6£ relationship, therefore the earriage between the petitioner and the respondent wees --nullr and xuoid on account of her earlier pmarriageeesubsisting as on the date of registratien or the marriage and also on the ground that thelparties comes within the prohibited degree. }V¥etitionerVflifimediately filed a petition in M.C. _rffio.67/1996_dand. on account of his employment after 4'*--.V.Vfiling__uPi.'.C.67/1996 he went to Saudi Arabia. As he eceuld5not attend the case, he requested his counsel hutto withdraw the case. Accordingly case was withdrawn. :2,' 5 when he returned to India in March,1999 respondent started demanding a sum of Rs.1 lac. _«LIfig the circumstances, it compelled. the petitioner" to *file the petition granting divorce _on :thelfgronnd,'off< nullity of marriage.
4. Respondent filed her obgections admitting their relationship and also that thefi are the children of two direct sisters end 9.5% J§lsof.admitted the betrothal function held en'an earlier occasion and that the en9é9éfi§nt%fl#§£alSo cancelled. She also admitted that she met the petitioner in the funeral ceremony of Mm.AlphansoD9into. However, she denied that she informed the petitioner that still she is a $pinsterkand"reqnested him to forget the differences andg to ugifielzal life to her. She admit the '*registration flak the marriage under the Special uffiarriage"Act on 29.10.1994. She also admitted that trhushand and wife started living together at Bijai in 'ffiangaiore immediately after the marriage. She has luldenied the allegations of cruelty. It is also 63/, 6 admitted by her that there was a marriage in accordance with the Christian rites on 11.1.1996 solemnized at Holy Church at Derabail . She denied that it was not known to the petitioner "that respondent is the daughter of his uptherfs sister- She denied that she had married ito °hetheef7 on ' 15.11.1988 and she has also7flddenied._ thatfs by suppressing the facts respondent has plap§§,f£auq--pn the ?%titioner. Ther¢§br¢» fhfi flgfihested the court to dismiss the petitions 1, in :order_ to prove the respective contentione{"$¥éefigfiéongfl got himself examined as Ewel sad he relied upon Exs.P--1 to 8. On behalf of the respondeht} she got herself examined as Rflfl, one Father~Qodfrey Saldanha was examined as RW- 1 end $w.h¥l is earked. Based on the above pleadings and evidence; fpllowing points were formulated by the if court helow for its determination:
Kpi;, Whether the petitioner proves that the V ";relat:i.onship between himself and the "respondent is within 'the prohibited. degree of relationship and as such, his marriage with the respondent is null and void?
(9.7
2. Whether the petitioner proves that he has been treated with cruelty by the respfindent?
3. Whether the petitioner proves ithétf the respondent has deserted him .without¥ fin? lawful excuse or reasonable grounds?x." i'
4. Whether the petitioner hiea"entiti§d.]£ori apt decree for nullity as prayed*for?"
5. To what order or decree?dFix u On appreciating the evidencew trial court held points 1 to 4 in the affirmatiwe_end allowed the petition by declaring the marriage solemnised between the parties on 29.10.1994 and on 1ltl.i§§5 as null and void by judgment and decree d;t§e~i§.9§2oo5. This order is called in question in this appeal.
5. The cVont'ent.ioiiiV of the appellant's counsel heforefusyaze that the trial court has committed a serious error in allowing the divorce petition on the . wmground of nullity; According to him, there was no
-e@suppression;of facts. It was known to the respondent tithe reletionship between them and that Ex.9--7 is a .i7dispehsation certificate issued by the Bishop of V°AMangalore. In view of the dispensation granted by the <Q/ 9 with Latheef made the respondent to marry her under the provisions of the Special Marriage Act, therefore the marriage solemnized between the appellant "and the respondent has to be treated as null He further contends that when the marriage;:.be'tween*i...the appellant and the respondent was.....s_olen_.§ni2*ed. undergt'he_ Special Marriage Act, there cér;.nn;{:_{t..be._ any iidxrvfarriage solemnized at Holy Church then they were living as if such ceremony is held the ."'IV1§..:'»iV'c:--onsec;uence under the eye of law.'_:" he requests the court :';_to._ dipsri:is_s"itherappeal . '7. Having counsel for the parties, this %,.jt.o'vi--A.consi"cier the following points in this appea1§'>"'i the marriage solemnized between the 'pa1':ti'e"s under the Special Marriage Act on 29_._13~0.1994 was null and void?
When the appellant was living with Iaatheef as 'per registered agreement dated 15.11.1988 and when the said marriage was in subsistence, whether the marriage solemnized between the 'Kg E0 appellant and the respondent on 29.10.1994 can be held as legal?
8. Facts are not in dispute in this appeal"te the following extent: The parties are Christians? *rhey, are children of two direct sisters} -3 There 'is. a_ l prohibition for them to marry each other finder the Christian Law. It is also not in dispute that Bishop of Mangalore has a power dispensation for the marriage of the parties esenflif they fall within the prohibited degree under the cgfibfi Law. On going through the é§i¢épEé; it is an adfiitted fact that the appellant _had lentered* into: a registered agreement with one Latheef on 1$g:1.19aa as per Ex.P--1. We haye perused thefi entire agreement. The pith and suhstance_ho£t:the document clearly shows that they 'Bl married each other on that day. The appellant is a l?_Christian.7g"iatheef is a Muslim. They have not inarried, either under the Muslim Law or under the liV Christian Law. They agreed to live as husband and hl"._ wife and out of the said wedlock appellant has a son. »('-/ 11 It is also not in dispute that on the date of the marriage solemnized between the parties herein under the Special Marriage Act on 29.10.1994 no ditorce was obtained by the appellant from Latheefl" on 4;1l.l99§* Latheef and the appellant herein fhavéf esecutedl a9 document canceling the eariier agreement oi marriage; Cancellation of the nerriage agreeeent is marked as Ex.P-4. Clause (2) of the ageéesghg gays that they have a child by name Meluifi ggnto end the child was aged about 6 gases on the date of Ex.P~4 and child shall remavinn w'i.t'i11'V«:the »_ap:;:$ella:vntv
9. Both lthe.Vparties~9adhit that immediately after Ex.P--2 Marriage Certificate, they started living as husband and wife at Bijai, Mangalore in the house of the_res§ondent;ghFrom the above documents it is clear ltuthat as on the date of registration of the marriage
-nfhetween the parties under the Special Marriage Act, ?[appé11§fit was the wife of Iatheef and her marriage .-- with Latheef was in subsistence and she had a son of Vd*sik years old. As per Ex.P--2 parties have married C2/' 12 on 29.10.1994 and since then they are residing as husband and wife. As per Ex.P--4 marriage so.1'emn:i.zed between Latheef and the appellant was got.....can_c:e;1ied. To annul the marriage between the 1:ere_in=._ Ex.P-6 has been produced, it) According to the certificate of'--.!a'nnu11ne§'nt solemnized between the it been annulled as per provizjsigcqfi.r-.**é£:e.:'jA.dan_ons the Roman Catholic Church and further reads that there is new and valid marriage in provided there is no other legal ._ 'certificate further reads that the said aidecisiioniifliséwpurely a religious matter and has__{no acivi'1-._Veffe:c:ts. The same has been issued on is a dispensation certificate :j{i'h_e'V~i.::'BVishop of Mangalore. It is dated 1-V3 . '7 . 195*? . per dispensation certificate parties _ the first cousins sought dispensation to marry, in love for 2 years and this certificate ""«__iigfgranted on 18.7.1987 and Ex.P--'7 is obtained prior 6/.
13 to the betxothal function held between the parties herein. Based on this E:-:.P-'7 appellant is trying to contend that the marriage solemnized bet.wee_n~._ the parties is legal and cannot be held as #5. After perusing the documents,__reJ:--i'ed'--igponby parties and the evidence let in gbyvivthe are of the opinion that al'l_'=t:he points determination are to be hepl_dV:'~vVag*auinst"«theappellant and in favour of the the following reasons: The dispe-nsat;i;on--iicertifiicatieiirelied upon by the appel"lantVAV..:.:Vfisi:?fV'6f:i:"~V.yVthe 1937. The said dispensationii «hwasjeprior to their betrothal functionV__vheld~;ii.n:V'V--.tiheVlyear 1988 and subsequently Htarria§é':'.:. .._notAAV'Hso'l<emnized as the marriage did not ta3:'e_n"dip1sace.i-ifivithin six months from the date of _..,J,,,,betrothaVl. vjfhierefoxe, the said document cannot be
-«.i."_f2:.e4li,ed upon'; by the appellant herein. Even if the edocgment can be held as a valid document to . 'vifireigizlairize the marriage between the appellant and the Arespondent on account of they fall under the (V I4 prohibited degree still the appellant cannot come out of the existence of marriage with Latheef as on the date of special marriage solemnized between the parties herein. Admittedly, the marriage between the parties was solemnized under the Special Marriage Actk as per Ex.P-2 dated 29.1e.:9§§; ,3 ant =eg f;fien}_1 appellant was the wife of one hatheef and Ont 5f her wedlock with Latheef she hedge child sf sis years. When she was the wife\of;lethee%;_aP§s1iefit Cann°t contend that the marriage solefiggggfi between her and the respondent as per Ex;P¥2 is valid. The very fact that Ex.P§4;discloses that latheef and the appellant have entered into an agreement of cancellation of the marriage on 14 1191934 would only disclosegthat on acconnt_ of ,thea difference between the husband. and T*a wife nthey dwantd to get their marriage cancelled. dgcontents ofi E£.9--4 discloses that the appellant was {ltheg wife '5: Latheef. Therefore, appellant cannot lhf contend that Ex.P--1 is only an agreement to show that ii" _ she "intended. to marry Latheef cannot be accepted. $9' ES From. the date of Ex.P~1 till the date of Ex.Pm4 appellant has to be regarded as the wife of Latheef only.
11. It would be useful for us to refer to Sec§4i§T_ of the Special Marriage Act,195§:
"4. Conditions relating to usolemnizatioh 'of special marriages- tRotwithstandingg"~anything contained in any other law for the time being in force relating _ to g,the'x3solemnization of marriages, a marriagef between, any two persons may be solemnized under this Act,_if at the time of the marriage the_ following _conditions are fulfilled, namg1y:-""""- " " '
(a) neither party has a-spouse living_» when a party.ha§d%ggpouse.living, such spouse cannot marry under gthe lSpecial= Marriage Act as the same would be contrary to Sec.4(a) of the Act. In the instant case, during the subsistence of marriage with 3*w Latheefi}; fiarriage solemnized between the appellant Wgand the respoadent under the Special Marriage Act by {f$u§p§ess;n§" the appellant's marriage with Latheef.
ifl" Therefore, marriage solemnized. between the parties "'=.__unda:' the Special Marriage Act has to be held as
6.)/_.
16 contrary to Sec.4(a) of the Special Marriage Act. Accordingly, it has to be held as a When once the marriage was solemnized betweentihefjpairties under the Special Marriage Act,Hypbques'ti'o--n:'_Vv 'p_ar_t.'i.es'g again marrying each other untiyergfthe',_C2hr:1.s't:i.an::Va_'iLaw"--_ .1 does not arise at all. "iV_l_vE':vxen taken place in the year is of no consequence. 'z'herefo'rVe,.A marriage has been solemnizedésfohr Church, same cannot valid_at§'e"' was contrarY to the from any angle, we do not see any' appeal as the marriage solemnized 1':ae_twVee'n_'itheipaérties during the subsistence mar,riage of Vlithe appellant with Latheef is null and \fo_id:*--.an.:1_g' v..a--J.:s'o_ on the ground that the marriage solemnhiwzevd'aibetféeen the appellant and respondent has been hannalleid by the Ecclesiastical Tribual of V1v:an.ga.'Lo_reV"' Diocese, Bangalore , Court of Second Instuance dated 9 . 12 . 2002 which 'has not been 'chalilenged by the appellant herein. «*3/d 17
12. In the result, we do not see any merits in this appeal. Accordingly, this appeal is dismissed: 3, Sam. f i % Iu5f'3%ijj% %