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12 4 The facts may first be stated. The appellant and the res- pondent are close relations their mothers being real sisters. It appears that prior to January 30, 1960 they had sexual relations as a result of which the appellant became enciente (pregnant). The respondent who was originally a Hindu had got converted to Christianity and professed the Roman Catholic faith. The appellant who was also a Hindu got converted to that faith and was baptised on January 29, 1960. On January 30, 1960 one Father Antoine solemnised the marriage of the parties at the Church of St. Ignatius, Calcutta. On May 10, 1960 the first child, a daughter, was born to the appellant. She gave birth to a second child, also a daughter, in October 1961. It would appear that the appellant left the home of the respondent in the year 1965 and the action out of which the appeal has arisen was filed in July 1966 on the original side of the High Court. It was dismissed by Mr. Justice Ghose and the appeal under the Letters Patent was also dismissed by the Division Bench. In the petition a number of allegations were made relating to the conduct of the respondent. It was alleged, inter alia, that it was under duress, intimidation and undue influence that the sexual relationship started between the appellant and the respondent which ultimately resulted in the appellant conceiving a child. The conversion to Christianity as also the performance of the ceremony of marriage were all attributed to fraud, coercion and undue influence practised by the respondent. It was claimed that the appellant was a minor at the time the marriage was solemnised and the consent of her father or her guardian was not taken nor did she give her own consent freely to the marriage. Further the marriage was void because the parties were within the prohibited degree of consanguinity. All these allegations were denied by the respondent. He gave his own version as to how the intimate relationship between the parties came to be developed and how the marriage was ultimately solemnised.

The Indian Divorce Act 1869 was enacted to amend the law relating to divorce and matrimonial causes of persons professing the Christian religion. Section 18 provides that any husband or wife may present a petition to the District Court or the High Court praying that his or her marriage may be declared null and void. Section 19 says that such a decree may be made on any of the four grounds. Ground No. 2 is that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity. The other Act with which we are concerned is the Indian Christian Marriage Act 1872 (Act 15 of 1872) which was enacted to consolidate and amend the law relating to the solemnization in India of the marriages of persons professing the Christian religion. Section 3 contains the interpretation clause. "Minor" is defined to mean a person who has not completed the age of twenty-one years and who is not a widower or a widow. Provisions have been made in Parts 111, V and VI in respect of those marriages where one or both of the parties happen to be minors. In Part III the marginal heading of which is "Marriages solemnized by Ministers of Religion licensed under this Act", s. 19 lays down that the father, if living, of a minor or if he be dead, his guardian and if there be no guardian then the mother of the minor may give consent to the minor's marriage. Such consent is required unless no person authorised to give the same be resident in India. It has been provided in ss. 20, 21 and 22 how the person whose consent to the marriage is required under s. 19 can prohibit the issue of the certificate by any Minister and what the Minister has to do if such a notice is issued prohibiting the marriage. Part V contains provisions relating to marriages solemnized by or in the presence of a Marriage Registrar. Section 44 therein applies the provisions of s. 19 to every marriage under that Part, either of the parties to which is a minor. Any person whose consent to such marriage would be required can enter a protest in the manner prescribed. When such protest has been entered no certificate shall be issued until the Marriage Registrar has examined into the matter and is satisfied that the certificate should be issued. Part VI relates to marriage of Indian Christians which can be certified under that Part on fulfilment of the conditions given in s. 60. The first condition is that the age of the man intending to be married shall not be under 1 8 years and the age of the woman' intending to be married shall not be under 15 years. Certain penalties are prescribed in Part VII. Under s. 68 whoever not being authorised to solemnize a marriage does so in the absence of a Marriage Registrar shall be punished with imprisonment which may extend to 10 years etc. and shall also be liable to fine. Under s. 70 any Minister of Religion solemnizing a marriage with a minor under Part III without notice or within 14 days after notice knowingly and wailfully is to be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine. Section 71 gives the punishments for a Marriage Registrar who among others commits the offence of solemnizing the marriage when one of the parties is a minor before the expiration of 14 days after the receipt of notice of such marriage or without doing the other acts mentioned in subS. (3) of that section. Section 77 to the extent it is material may be reproduced S.77 "Whenever any marriage has been solem- nized in accordance with the provisions of sections 4 & 5 it shall not be void merely on account of any irre-

10-L348 Sup cl /73 Under Canon 88 of the Roman Catholic Church a person who has completed 21st year of age is a major; under that age, a minor. Canon 1067 lays down that a man before completing his 16th year and a girl before completing her 14th year cannot contract a valid marriage. Canon 1934 enjoins that a pastor must senously dissuade minor sons and daughter from contracting marriage without the knowledge or against the reasonable wishes of their parents. There is no provision in the Canon Law which contains a prohibition against the marriage of a minor in the absence of the consent of his or her parents. it appears that under Canon Law so long as a minor has reached the age of capacity to contract which, as stated before, is 16 years in case of a man and 14 years in case of a girl the marriage can be solemnized and the lack or absence of consent of the parents or guardian will not invalidate the marriage. It is wholly unnecessary to refer to the English law on the subject. There the point is governed mainly by the provisions contained in the Marriage Act 1949 which has no applicability here. For all the reasons mentioned before we are in entire agreement with the view expressed by the High Court that the marriage of the appellant with the respondent could not be held to be null and void on the ground that since the appellant was below 21 years of age the consent of her father was not obtained. The second point relates to the effect of the marriage between the parties within the prohibited degree of consanguinity. The Indian Divorce Act or the Indian Christian Marriage Act do not give any definition of what the prohibited degrees are. It ha.,, been urged on behalf of the appellant that assuming the Canon Law had to be looked at for finding the prohibited degrees it has been found that the appellant and the respondent being children of real sisters fell within those degrees. Section 19 of the Divorce Act lays down in categorical terms that a marriage may be declared null and void, inter alia, where the parties are within the, prohibited degree of consanguinity. There is no exception contained in ground No. 2 in the said section. It is not open, it has been 'contended, to the courts to travel beyond s. 19 or the provisions of the Divorce Act to discover whether such an impediment which renders the marriage null and void at- initial can be removed by a dispensation granted by the competent authority of the Roman Catholic Church. The High Court followed the decision of a full bench of the Calcutta High Court in V. H. Lopez v. R. J. Lopez(1) in which it was held that the prohibited degrees for the purpose of the marriage were those which were prohibited by the customary law of the Church to which the parties belonged. in that case also the parties were Roman Catholic and the ceremony of marriage was solemnized by the (1) I.L R.12 Cal. 706.

The question is whether after dispensation has been granted by the competent authority of the Roman Catholic Church the parties who are within the prohibited degree of consanguinity can still be regarded as within those degrees. The prohibition in the matter of marriage between the parties on the ground of consanguinity is itself created by the Canon Law so far as the Roman Catholics are concerned. If the parties are related by consanguinity in the second degree that per se is an impediment to marriage but under the Canon Law itself it is dispensable and can be removed by dispensation. After dispensation it cannot be said that under the Canon Law any impediment or prohibition exists. The parties will, therefore, not be within the prohibited degree of consanguinity. Ground No. 2 in s. 19 of the Indian Divorce Act will, in these circumstances, not be applicable. The argument on behalf of the appellant that does not contemplate or envisage the removal of the prohibition by a particular authority doing a particular act, namely, dispensation cannot be accepted. Since the prohibited degrees are not indicated in the Indian Divorce Act and it is the Canon Law to which one has to turn in cases where the parties are Roman Catholics, it is to the provisions of that law that resort must be had for discovering whether the parties at the time of solemnization of the marriage were within the prohibited degree of con- sanguinity. In our judgment once dispensation is granted by the appropriate authorities the parties cannot be regarded under the Canon law as being within the prohibited degrees with the result that ground No. 2 in s. 19 cannot be availed of. As a matter of fact in V. H. Lopez v. E. J. Lopez(1) it was laid down as long ago as the year 1885 A.D. that the prohibited degrees mentioned in s. 19 of the Indian Divorce Act did not necessarily mean the degrees prohibited by the Law of England. For finding out prohibited degrees it was the customary law of the class to which the parties belonged. In that case the law of the Roman Catholic Church was applied because the par-ties belonged to that Church. It was further held that where a man and a woman intended to become husband and wife and a ceremony of marriage was performed between them by the Clergyman competent to perform a valid marriage the presumption in favour of everything necessary to give validity to such a marriage was one of very exceptional strength and unless rebutted by evidence strong,distinct, satisfactory and conclusive must prevail. In the subsequent decision H. A. Lucas v. Theodore Lucas(1) the earlier decision in Lopez v. Lopez(1) was referred to and followed. Our attention has not been drawn by the learned counsel for the appellant to any contrary decision and we consider that the law was correctly enunciated in Lonez v. Lopez(1) on the effect of dispensation which held the field for all these years on the question that once dispensation has been obtained from the appropriate authorities of the Roman Catholic Church a marriage between the parties who are within the prohibited degrees of consanguinity is not null and void and no decree for nullify can be granted under s. 19 of the Indian Divorce Act in such cases.