R.F. Lodge, J.

1. This is a suit in the ordinary civil jurisdiction of thisCourt for a declaration under S. 42, Specific Relief Act, that the ceremony ofmarriage solemnised between the plaintiff and the defendant is null and voidand not binding on the plaintiff.

2. The writ was personally served upon the defendant but hehas not appeared to contest the suit.

3. The plaintiff Claudia Jude, nee Shipman, was born on 15thJanuary 1923. Her father is a Sergeant in the Calcutta Police, who, though bornin England, has acquired an Indian domicile of choice. The plaintiff isdomiciled in India. Her case briefly is as follows:

4. In 1942, she met the defendant Lancelot Jude, whorepresented to her that he was the son of an American father and a Britishmother, that he was a Christian by religion, and that he had held a position inthe Statesman Office with a salary of Rs. 800 per month, which he had resignedin order to take a Commission in the Presidency Battalian.

5. The plaintiff belongs to the Roman Catholic Church. Thedefendant persuaded her to marry him in a Registry Office, without theknowledge of her parents, promising that they should again be married later inthe Roman Catholic Church.

6. The plaintiff consented and went through a form ofmarriage with the defendant in the office of the Senior Marriage Registrar ofCalcutta on 6th August 1942 under the provisions of the Indian ChristianMarriage Act (Act XV [15] of 1872).

7. As the plaintiff did not regard this ceremony as a validmarriage, she did not live with the defendant as his wife. In November 1942,the defendant persuaded the plaintiff to consent to live with him and took herto a room at No. 23 Kyd Street, Calcutta. When the defendant undressed himself,the plaintiff noticed sores on his private parts and an offensive smell. Sherefused to cohabit with him and went back to her mother to whom she told allthe facts. The marriage has accordingly not been consummated.

8. On enquiry the plaintiff came to learn that the defendantwas a Jew and that his representations about his origin and position werefalse.

9. The plaintiff prayed for a declaration that the marriageis null and void either on the ground that her consent was obtained by fraudand misrepresentation or on the ground that it is forbidden by the personal lawof the parties.

10. Six witnesses have been examined in all. The plaintiffClaudia Jude, has given the whole story as detailed above. Her father CliffordAlbert Shipman and her mother Gertrude Shipman have supported her story in someparticulars. They have proved that she was born on 15th January 1923, that sheis a member of the Roman Catholic Church and that she has an Indian domicile.

11. Ellis Abraham Murtough has deposed that the defendant ishis cousins son, that the defendants mother was a Jewess of the Sephardim andthat his father was a Hindu, and that the defendants parents were married inBombay under the Special Marriage Act. This witness further proved that thedefendant was circumcised as a Jew, and later at the age of 13 or so wentthrough the ceremony of confirmation and was brought up as a Jew, and hasremained a Jew.

12. The remaining two witnesses Rabbi David Gurji Rayman andFather Joseph Farnandez have given expert evidence, the former on matters ofJewish Law and the latter on the Canon Law as recognised by the Roman CatholicChurch.

13. Rabbi Rayman has deposed to the effect that Jews aregoverned by their own laws in matters of marriage and divorce, and thataccording to those laws, there cannot be a valid marriage between a Jew and anon-Jew. The witness has further deposed that in special circumstances theJewish law permits a Jew to take a second wife during the lifetime of the firstwife, i.e., it sanctions polygamy in certain special circumstances. The witnesscited authority for these statements.

14. Father Farnandez, Vicar-General of the Diocese ofCalcutta, has deposed that the Canon law which governs Roman Catholics, inCanon 1070, absolutely forbids marriage between Catholics and persons who havenot been baptised. He has also given evidence which proves that no dispensationwas granted in the present case.

15. In support of the evidence of Rabbi Rayman on thequestion of polygamy among Jews, my attention was drawn to the Jewish Code ofjurisdiction by Rabbi J.L. Kadushpin. At p. 351 of that book occur these twoparagraphs viz.,

8a. The law permits a man to marry several women insuccession provided he is able to support them. He must likewise obtain theconsent of his first wife thereto (Yebamoth 65a)

8b. Rabenu Gershon (born in Metz. 960, and died 1040) put aban upon the man who weds more than one wife. This enactment was intended toapply to certain particular lands only, and therefore took no effect in allcountries. However, in the countries where polygamy is prohibited by law, it isthe duty of every man to abide by such law, although the aforesaid ban took noeffect there; and if any person marries two wives, he is forced to divorce oneof them (Nimuke Joseph).

16. It was explained that the ban of Rabenu Gershon was notrecognised by Sephardic Jews.

17. In further confirmation of the witness on this point,the records of the case In the goods of Abraham Isac deceased being Appealfrom Original Decree No. 14A of 1937, and of the case Mozelle Moses v. SinhaMoses and others being Suit No. 1685 of 1944 in the Ordinary Civil Jurisdictionof this Court, were produced to shew instances of a Jew having married a secondwife during the lifetime of the first wife.

18. Considering all this evidence, I have no doubt that Jewsin India-at all events those who are of the Sephardim-may in specialcircumstances have two wives. In other words polygamy is to a limited extentpractised by them.

19. Mr. Surita for the plaintiff drew my attention to thedefinition of Marriage in Rayden on Divorce. That definition reads:

The only kind of marriage which the English Law recognisesis one which is essentially the voluntary union for life, of one man with onewoman, to the exclusion of all others; but where a marriage complies with theserequirements it is immaterial that under the local law dissolution can beobtained by mutual consent or at the will of either party with merely formalconditions of official registration. If a marriage is potentially polygamous,it will not be recognised for the purpose of relief under the matrimonial lawof England, even if it is a first marriage, and the husband has not, in facttaken any other wife, and though it may be recognised as a valid marriage bythe lex loci celebrationis.

20. Accordingly Mr. Surita argued that the marriage of thepetitioner to the respondent was not a valid marriage under English Law as therespondent was free under his personal law and under some circumstances to takeanother wife during the lifetime of the plaintiff.

21. In support of Father Farnandez, "The ComparativeLaw of Marriage and Divorce" by A.W. Renton and G.G. Phillimore was cited.At p. 20 of that book, in the chapter dealing with the Canon Law and in theparagraph headed "Absolute Incapacity or Disability" occurs thispassage:

....difference of faith (cultus disparitas), i.e. of abaptised with a non-baptised person, with regard to which it may be noted thatthe marriage of a Christian with a heretic or excommunicated person was heldgood in the western church, but not in the eastern.

22. The argument that the marriage is void as beingprohibited by the personal law of the parties is based on S. 88, ChristianMarriage Act (Act No. XV [15] of 1872). That section reads:

Nothing in this Act shall be deemed to validate any marriagewhich the personal law applicable to either of the parties forbids him or herto enter into.

23. It has been argued, (1) that the defendant, being a Jew,was forbidden by his own personal law from marrying a Christian; and (2) thatthe plaintiff being a Roman Catholic was forbidden by her own personal law frommarrying a non-baptised person.

24. Section 88, Christian Marriage Act, was considered by aFull Bench of this Court in the case of Lopez v. Lopez, (12 Cal. 706 [LQ/CalHC/1885/180] F.B.). Inthat case the question in issue was whether the prohibited degrees for theparties were those prohibited by the law of England, or those prohibited by thecustomary law of the class to which they belonged, and it was held that thepersonal law of the parties, i.e., the Canon Law was applicable.

25. This is clear authority for the view that in applying S.88, Christian Marriage Act, the Courts must give effect to the personal law ofRoman Catholics in India in deciding whether parties to a marriage who belongto that church are or are not within the prohibited degrees.

26. It seems to me to follow that the personal law of theRoman Catholics must also be given effect to in deciding whether there is anyabsolute incapacity or disability.

27. In the case of Saldanha v. Saldanha, 54 Bom. 288 [LQ/BomHC/1929/120] :(A.I.R. 1930 Bom. 105) [LQ/BomHC/1929/120] it was held that the expression personal law in S. 88:

would include any personal law, apart from any personal lawas to the form of marriage, which forbade either of the parties to enter into acontract of marriage with one another.

28. In this view, the personal law of the plaintiff forbidsher to enter into a contract of marriage with a Jew; and the personal law ofthe defendant if he married as a Jew, forbade him from entering into a contractof marriage with a non-Jew.

29. But the defendant described himself as a Christianbefore the Marriage Registrar.

30. In S. 3, Christian Marriage Act, "Christians"are defined as persons professing the Christian religion. It may be that forthe purposes of that Act a mere profession before the Registrar that he was aChristian would suffice to make the Act applicable and disentitle the defendantto plead his own personal law as a bar to the marriage.

31. I feel therefore that I am on safer ground in holdingthat the personal law of the plaintiff forbade her to enter into thisparticular marriage, and that therefore the ceremony in question did not effecta valid marriage of the parties.

32. Mr. Surita for the plaintiff felt that it was his dutyto draw my attention to Mullas Principles of Mahommedan Law where the learnedauthor in a note under para. 200, "Difference of Religion" observed:

Indian Christian Marriage Act, 1872 - In British India, amarriage between a Muhammadan male and Christian woman must be solemnised inaccordance with the provisions of S. 5(4), Christian Marriage Act, 1872 (XV[15] of 1872), that is to say, by, or in the presence of a Marriage Registrarappointed under the Act; any such marriage solemnised otherwise than inaccordance with those provisions "shall be void." But since aMahommedan woman cannot contract a valid marriage with a Christian man, such amarriage, it would appear cannot be solemnised under that Act: See S. 88 of theAct.

33. This passage seems to indicate that the personal law ofthe Christians is not material. But, in my opinion, the learned author wasconsidering only the personal law of Muhammadans and not considering whetherthe personal law of the Christians would or would not forbid such marriages. Itdoes not follow that because Roman Catholics are forbidden by the Canon Law tomarry non-baptised persons, other Christians are necessarily so forbidden.

34. I do not regard this passage as an authority opposed tothe view which I have expressed above.

35. Lastly reliance was also placed by the plaintiff on theproviso to S. 19, Divorce Act which reads:

Nothing in this section shall affect the jurisdiction of theHigh Court to make decrees of nullity of marriage on the ground that theconsent of either party was obtained by force or fraud.

36. The case of Theresia Osman Aykut v. Mustafa Osman Aykut,: I.L.R. (1939) 2 Cal. 60 : (A.I.R. 1940 Cal. 75) [LQ/CalHC/1939/60] was citedbefore me. In that case, the defendant was a Mahommedan but represented himselfto be a Christian. It was held that the consent of the petitioner had beenobtained by fraud and that the marriage was void.

37. In the present case, the defendant made a number ofmisrepresentations as to his origin, social status and financial circumstances.These misrepresentations would not, in my opinion, suffice to justify the Courtin holding that plaintiffs consent to the marriage was not a valid consent.But the misrepresentation as to his religion, in view of the fact that marriagewith him was in fact forbidden by her own personal law, was such a fraud as torender her consent invalid.

38. For that reason too I would hold that the marriage wasvoid.

39. In the result therefore the suit is decreed with costs.The marriage of the plaintiff to the defendant solemnised on 6th August 1942,is declared null and void.

40. I am very greatly indebted to Mr. Meyer who consented toargue this case as amicus curiae and to Mr. Surita, counsel for the plaintiff,for the assistance rendered by them in collecting all the authorities bearingon the issues involved and assisting me to arrive at my decision.

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Claudia Jude vs.Lancelot Jude (09.03.1945 - CALHC)