Kerala High Court
Grace Sheela Joseph vs P.K. George Vaidian on 22 June, 1988
Equivalent citations: AIR1989KER234, AIR 1989 KERALA 234, (1988) 2 CIVLJ 450, (1988) 2 KER LT 46, (1988) 24 REPORTS 403, (1988) 2 KER LJ 58
Bench: K.S. Paripoornan, K.G. Balakrishnan
JUDGMENT Paripoornan, J.
1. This is an appeal filed by the petitioner in O.P. No. 35 of 1981, District Court, Trichur, under Section 39 of the Special Marriage Act, 1954 (in short, the Act) and Order 41, Rule 1, C.P.C. The petitioner filed the application for divorce of her marriage with the respondent under Section 27 of the Act. The respondent married the petitioner on 29-6-1981 at Marthoma Church, Kunnam-kulam, according to the rules, rites, ceremonies and customs of the church. Stating that the respondent has committed cruelty and it is impossible for the petitioner to continue the marital relationship, the petitioner filed the petition for divorce of the marriage under Section 27 of the Act. Amongst other pleas, the respondent contended that the petition is not maintainable. The Court below held that since there is no case that the marriage was registered under the Act, the petition filed by the appellant (petitioner) for divorce of her marriage with the respondent under Section 27 of the Act is unsustainable. The petitioner has come up in appeal.
2. We heard counsel for the appellant, Mr. Mathews P. Mathew and counsel for the respondent. Appellant's counsel referred to the preamble of the Act as also Sections 24, 25 and 27 of the Act and contended that there is nothing in the Act, which would exclude the application thereof to the case of the petitioner, no matter, that the marriage was one solemnised according to the rules, rites, ceremonies and customs of the church, to which the parties belong. Reliance was placed on a decision of the Rajasthan High Court in Chistopher Andrew Neelakantan v. Mrs. Anne Neelkantan, AIR 1959 Raj 133. On the the other hand, counsel for the respondent placed considerable reliance on Sections 15, 18 and 27 of the Act, as also the decision of the Allahabad High Court in Aulvin V. Singh v. Chandrawati, AIR 1974 All 278 and contended that the petition filed under Section 27 of the Act in the instant case is not maintainable. On hearing the rival contentions of the parties, we are inclined to accept the plea of the respondent.
3. After adverting to the decision of the Rajasthan High Court in Chistopher Andrew Neelakantan's case AIR 1959 Raj 133, Yashoda Nandan, J. in Aulvin V. Singh's case AIR 1974 All 278 at Pp. 280 and 281 observed as follows :
"Our country is inhabited by persons professing different faiths. We have consequently side by side existing different laws relating to marriages, divorce and dissolution of marriages applicable to persons of different religions. The Indian Christian Marriage Act (Act XV of 1872) and the Indian Divorce Act (Act IV of 1869) deal with the law of marriage and divorce for Christians. The Parsi Marriage and Divorce Act, 1936 (Act III of 1936) is concerned with the marriage and divorce among Parsis domiciled in this country. Marriages of Mohamedans and divorces between them are governed not only by the Shariyat law but also by the Dissolution of Muslim Marriages Act, 1936. The Hindu Marriage Act, 1955 (Act XXV of 1955) similarly provides for the essential qualifications of those who are married under the provisions of that Act, the basic formalities to be undergone by those entering into matrimony, the conditions under which restitution of conjugal rights can be claimed, the grounds on which a marriage can be declared a nulity as also the manner and the ground on which a marriage under the Act XXV of 1955 may be dissolved.
xxxxxxxx Section 15 of the Act of 1954 throws considerable light on the question raised before me with regard to the maintainability of the petition presented by the appellant under Section 27 of the Act. That provision runs as follows :--
"Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnised under the Special Marriage Act, 1872 (3 of 1872), or under this Act may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely : --
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship :
Provided that in the case of marriage celeberated before the commencement of this Act, this condition shall be subject to any law, custom, or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing Within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage".
Reference may also be made to Section 18 which is as follows : --
"Subject to the provisions contained in Sub-section (2) of Section 24, where a certificate of marriage has been finally entered in the marriage Certificate Book under this chapter the Marriage shall as from the date of such entry, be deemed to be marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents :
Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the ' property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any rights by reason of their not being the legitimate children of their parents."
These two provisions quoted above make it clear that apart from those whose marriages have been performed under the provisions of the Act of 1954 even those whose marriages have been solemnized either before or after the commencement of the Act of 1954 in any other form or under any other enactment may get their marriages registered under Section 15 of the Act, provided the conditions of that provision are satisfied and in such an event the marriage shall, as from the date of entry in the "Marriage Certificate Book", be deemed to have been solemnized under the Act of 1954 on account of the legal fiction introduced by Section 18. It is obvious that after a marriage solemnized in a form other than the one contemplated by the Act has been registered under Section 15 because of the deeming clause in Section 18, parties thereto are entitled to take recourse to Section 27 of the Act. The reason why Section 27 of the Act unlike Sections 24 and 25 thereof does not contain the words "any marriage solemnized under this Act" is not that Section 27 was intended to apply to marriages performed under other enactments but because the benefit of it was made available even to those whose marriage though not solemnized under the Act was registered under Section 15 and thus deemed to have been under the Act by operation of Section 18. If it had been contemplated that parties who have undergone marriage under any of the other enactments mentioned above can sue for divorce under Section 27 of the Act of 1954, it was wholly redundant for the legislature to have enacted Sections 15 and 18 of the Act as extracted above. Sections 15 and 18 to my mind, disclose an intention on the part of the legislature that unless a marriage solemnized in a form other than that prescribed by the Act of 1954 has been registered in accordance with Section 15 of the Act, the parties to such a marriage will not be governed by any of the provisions of the Act."
We respectfully agree with the reasoning and conclusion aforesaid of the Allahabad High Court. The Act is a self-contained Code. The remedy provided under the said Act can be resorted to for acts and conduct, which took place under the said Act only.
In the light of the above, we hold that the District Judge was justified in dismissing the petition filed by the appellant for divorce of her marriage with the respondent, filed under Section 27 of the Special Marriage Act, 1954. The appeal is dismissed. There shall be no order as to costs.