Indian Kanoon - Search engine for Indian Law

24. The sole point, therefore, on which any doubt can be entertained is that which arises under Section 88 of the Act. The section runs as follows :-

Nothing is this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to eater into.

25. The marginal note to the section runs as follows:-

Non-validation of marriages within prohibited degrees.

26. There being in the present case no question of the parties being within the prohibited degrees, it is clear that if the section were to be construed by reference to the marginal note it would not avail the appellants. It is, however, well established that marginal notes must not be referred to for the purpose of either limiting or extending the words of the Act itself, and; although it does not follow that the marginal note in the present case does not in fact show the real drift of the section, I agree that for the present purpose it should be entirely disregarded.

27. The argument put forward by the appellants and based on this section is that the personal law applicable to the parties is the canon law of the Church of Rome, and that under that law they are prohibited from marrying otherwise than in accordance with the prescribed form and ceremony in the presence of the priest. On the first part of the above argument, viz., that the personal law contemplated, in Section 88, as far as the parties hereto are concerned, is the Canon law of the Church of Rome, the Full Bench case of Lopes v. Lopez (188S) I.L.R. 12 Cal. 706 is relied on. That was a case of a suit for restitution of conjugal rights between two East Indian Roman Catholics, domiciled in British India and resident in Calcutta, where the respondent husband contended that the marriage was invalid on the ground that the parties were within the prohibited degrees, the petitioner being in fact his deceased wife's sister. If the law of England applied, it was admitted that the marriage would be invalid. The sole question, therefore, that arose for determination was whether the prohibited degrees applicable to the marriage there in question were those prescribed by the law of England or by some other rule. Dealing with this question, in the first place, apart from actual legislation, the Court came to the conclusion that there was nothing in the history of the British acquisitions in India to suggest that the English law of prohibited degrees was imposed on all Christians in British India. They then proceeded to consider the effect of the legislation and, after showing from a detailed examination of the provisions of the Supreme Court Charter and the Bengal Regulation that there was no justification for holding that this state of affairs had, at any rate up to the year 1851, been in any way altered, they commented on the effect of the statute 14 & 15 Vic. c. 40 and Act XXV of 1864 as follows (p. 727):-

And, however strongly these Acts may seem to show an opinion that the English law as to the prohibited degrees was in force for all Christians in India, subsequent legislation may, with equal correctness, be said to indicate another view of the question.

28. The effect of the subsequent legislation referred to, viz., the Marriage Acts of 1865 and 1872 coupled with the Divorce Act of 1869, was thus summed up (p. 731).-

And the Acts of 1865 and 1S72 show clearly that during the period between those two dates, it was the settled purpose and policy of the Legislature not to extend the English rules as to prohibited degrees, by legislation, to persons not already governed by them, hut to leave them under the law to which on other grounds they might be found subject.

29. The final conclusion at which the Court arrived is stated on the same page in these words :-

The result is that in our opinion the prohibited degrees for the parties to this marriage were not the degrees prohibited by the law of England, but those prohibited by the customary law of the class to which they belong, that is to say, the law of the Roman Catholic church as applied in this country.

30. I have described in some detail the trend of reasoning adopted in the Full Bench case in order to bring out the fact that, although the Court examined most closely and carefully the spirit and the letter of previous legislation and the meaning of b. 88 of the Act of 1872, they did so from one point of view only, and with the sole object of deciding the question of the prohibited degrees. This fact, to my mind, requires emphasis for the reason that I have understood' the case to be relied on, as above indicated, for the general proposition that the personal law referred to in Section 88 of the Act is, so far as Roman Catholics are concerned, in all respects the Canon law, and that any marriage which would for any reason be invalid in the eyes of that law must also be held invalid in a civil Court. The opening sentence of the judgment of Wilson J,, when the case returned for final decision by the original appeal Bench (at p. 732), to the effect that it had been laid down by the Full Bench that the validity of the marriage in question was to be determined by the law of the Church of Rome should, to my mind, be read in the light of the facts of the case, and was not intended to imply that the law of the Church of Rome was, where Roman Catholics were concerned, the deciding factor on all points as to the validity of a marriage celebrated under the Indian Christian Marriage Act. In other words, although the personal law referred to in Section 88 of the Act is to be found, as far as the Catholics are concerned, in the Canon law, the above case is, in my opinion, no authority for the proposition that the expression " personal law " incorporates the whole of that Canon law.