Authored By : Arthur Wilson, Arthur Wilson

Arthur Wilson, J.

1. The main question we have to answer upon this referenceis, whether a marriage between a man and his deceased wifes sister, celebratedin Calcutta in the year 1877, is liable to be declared null and void, underSection 19 of the Indian Divorce Act, on the ground that the parties are withinthe prohibited degrees, both parties being domiciled in British India andresident in Calcutta, and both being Roman Catholics. It is not found whethereither of the parties to this marriage is the descendant of English ancestors,or of European settlers in this country other than English, or of nativeconverts to Christianity, or of mixed race; their names suggest a Portuguese origin.We are bound to presume every matter of fact in favour of the validity of amarriage, and therefore if there be rules as to the prohibited degrees whichwould invalidate a marriage between persons connected as these were, and ifthose rules be applicable to any one class of Christians, but not to allChristian^, we must presume, in the absence of any proof that they did, thatthe parties did not belong to that class. In particular, we must presume, sofar as that point is material, that they are not of British descent, or Britishin any other sense than that of being domiciled in British India.

2. The Divorce Act (IV of 1869) applies to all Christians,and Section 19 enacts that a decree declaring a marriage null and void may bemade, amongst other grounds, on the ground "that the parties are withinthe prohibited degrees of consanguinity (whether natural, or legal) oraffinity." We have to say what the prohibited degrees applicable to themarriage now in question are, whether those prohibited by the law of England orby some other rule.

3. It will be convenient to divide the inquiry into threeparts: First, how would the matter have stood if it depended only upon, thehistory of British acquisitions in India, and the Christians of various classesaffected thereby, in the absence of statutory enactment Secondly, what was theeffect of the legislation prior to the Divorce Act, and what was the state ofthe law when that Act was passed thirdly, what is the effect of that Act uponthe prohibited degrees

4. The first branch of the question may be treated veryshortly. The circumstances under which the British power became established inIndia, and the effect of those circumstances upon the laws applicable to thepeople of the country, have been often considered. It was authoritativelydecided in The Advocate-General of Bengal v. Ranee Surnomoyee Dossee 9 MooresI.A. 387 and in other cases, that these circumstances had not been such as tointroduce English law generally into India. And it certainly could not becontended that any of the rules of English law as to the capacity to marry haveever become law for the people of India generally. If we limit the inquiry toChristians, we do not think it could be contended that the history of theBritish acquisitions has been such as, without more, to impose the English lawof prohibited degrees upon all Christians in British India. It was held inAbraham v. Abraham 9 Moores I.A. 195 that Hindus adopting Christianity do notnecessarily change their laws of property, but may retain their old law, oradopt that of the class to which they attach themselves, or establish acustomary law. And we think the same rule must be the correct one as to laws ofmarriage. But their Lordships lay down the rule only as to "matters withwhich Christianity has no concern." And we do not suppose the law couldpermit native converts (if one can imagine their desiring such a thing) tochoose for themselves some marriage law wholly repugnant to Christianideas--converts from Hinduism, for instance, to retain their former right tomarry more wives than one, or converts from Mahomedanism their former freedomof divorce. With regard to the English men and women who settled here and theirdescendants, other consideration would apply. With them we have nothing to doin the present case.

5. In examining the second branch of the inquiry, as to theeffect of the legislation prior to the Divorce Act, it will be convenient tobegin with the charter under which the Supreme Court was constituted in 1774.By the 22nd section of that Charter the Court "shall be a Court ofEcclesiastical Jurisdiction, and shall have full power to administer andexecute within and throughout the said provinces, districts, or countriescalled Bengal, Behar, and Orissa, and towards and upon our British subjectsthere residing, the Ecclesiastical law, as the same is now used and exercisedin the Diocese of London in Great Britain, so far as the circumstances andoccasions of the said provinces and people shall admit or require," withpower to entertain all suits belonging to the Ecclesiastical Courts. Likepowers were given to the Bombay and Madras Courts by their Charters. TheseCourts had power to entertain suits for nullity of marriage and (subject tothe qualification contained in the above section) they were to decide themaccording to the law of England. The persons subject to the jurisdiction wereBritish subjects residing in Bengal, Behar, and Orissa. There has been atvarious times much discussion as to the meaning of "British subject"in the legislation of a hundred years ago. The general result may be statedwith sufficient accuracy by saying that "British subject" meant, notsubject of the British Crown, but British subject of the Crown, as distinguishedfrom native of India, whether subjects of the King of England or not, a classwhich would certainly not have included the parties to the present case. Withtheir marriages the Supreme Court would deal under its Charter; itsjurisdiction was personal on the one hand it extended to the whole province, onthe other hand it was everywhere limited to British subjects.

7. To ascertain the marriage law for Christians not fallingwithin the description of British subjects, and the tribunals to administer it,we must look in another direction. Side by side with the Supreme Court sittingin Calcutta, there were the Companys Courts in the Mofussil, and they also hadjurisdiction in questions of marriage. Here in Bengal it is not necessary to gofurther back than 1793, and the group of Regulations of that year dealing withthe various classes of Mofussil Courts. Regulation III of that year, dealingwith Zilla and City Courts, says in Section 7: "All natives and otherpersons, not British subjects, are amenable to the jurisdiction of the Zillaand City Courts"; and Section 8 empowers those Courts to take cognisanceof "all suits and complaints respecting the succession or right to real orpersonal property, land-rents, revenues, debts, accounts, contracts,partnerships, marriage, caste, claims to damages for injuries and generally ofall suits of a civil nature in which the defendant may come within any of thedescription of persons mentioned in Section 7." Similar provisions weremade by other Regulations as to Courts of other grades. Many. changes were fromtime to time made in the organisation of the Civil Courts of the Company, butnothing was ever done, so far as we can learn, which narrowed the matrimonialjurisdiction of the Mofussil Courts generally, in respect either of persons orsubject-matter. How carefully the Regulations were framed with respect topersons is very apparent from Section 17 of the Regulation, already mentioned,III of 1793. That section, in general terms, forbids the Zillah Court of the24-Pergunnahs to entertain suits relating to land in Calcutta or againstpersons resident in Calcutta. If this had stood alone there would have been noexpress provisions for dealing with questions as to marriages between personsother than British subjects residing in Calcutta. Not being British subjectsthey would not be within the terms of the clause in the Supreme CourtsCharter, which gave ecclesiastical jurisdiction; being resident in Calcuttathey would not be subject to the Zillah Court. Accordingly Section 17 concludeswith a proviso that "the provisions contained in this section are not tobe construed to extend to preclude the Court of Dewany Adawlut of the Zillah ofthe 24-Pergunnahs entertaining any suit concerning marriage or caste in whichno money or other valuable thing may be demanded or decreed, although the causeof action shall have arisen, or the defendant may reside, or shall have residedat the time the suit commenced, within the limits of the town ofCalcutta."

8. The precise nature of the matrimonial jurisdictionconferred upon these Courts, whether it was co-extensive with that of theEcclesiastical Court in England, or wider or narrower, we do not think itnecessary to examine. What is essential is that they had authority to hear anddecide suits relating to marriage, including of course questions as to thevalidity of marriage and therefore questions as to the capacity of persons tomarry. The law to be applied by those Courts to cases of marriage notspecifically provided for was justice, equity, and good conscience"(Section 21). In the case of Abraham v. Abraham already cited the PrivyCouncil, speaking of the law of property to be applied to converts fromHinduism to Christianity, say that they think--This case fell to be decidedaccording to the Regulation which prescribes that the decision shall beaccording to equity and good conscience. Applying, then, this rule to thedecision of the case, it seems to their Lordships that the course which appearsto have been pursued in India in these cases, and to have been adopted in thepresent case, of referring the decision to the usages of the class to which theconvert may have attached himself, and of the family to which he may havebelonged, has been most consonant both to equity and good conscience." Wethink the same principle applies equally, to questions of marriage amongstChristians other than British; and that equity and good conscience prescribedthe referring of the decision to the usages of the class to which the partiesbelonged.

9. A series of Acts, beginning with Act XI of 1836 andending with Act VI of 1843, put an end to the exemption of British subjectsfrom the jurisdiction of the Mofussil Courts in all civil matters. The effectwould seem to have been to give the Mofussil Courts a jurisdiction, in onesense concurrent with that of the Supreme Court, over questions of marriagebetween British Christian subjects in the Mofussil; but, be this as it may, itcould not alter the law applicable to either class of Christians.

10. The next legislation bearing upon the question is in1851, the Act 14 and 15 Vict., c. 40. That Act provided a new method ofmarrying in India for any Christians who chose to adopt it, marriage before aMarriage Registrar. The Registrar might by Section 2 issue the necessarycertificate, "provided no lawful impediment according to the law ofEngland" were shown to his satisfaction; and one of the parties had underSection 6 to make a declaration that there was no impediment of kindred oraffinity. This is the first express reference to impediments of kindred oraffinity in connection with Indian marriages, and the first mention of theEnglish law in connection with Christian marriages, between any but British11:42 AM 12/26/200711:42 AM 12/26/ 2007 subjects in the narrower sense of theterm.

11. Then came the Charter Act of 1861, 24 and 25 Viet., c.104, under which the High Courts were formed. By Section 9 of that Act eachHigh Court was to have, amongst other things, such "matrimonialjurisdiction" as might be granted by Letters Patent; and subject to theLetters Patent, and to the legislative powers of the Governor-General inCouncil, each High Court was to "have and exercise all jurisdiction andevery power and authority whatsoever in any manner vested in any of the Courtsin the same Presidency abolished under this Act." The Supreme Courts wereamongst the Courts abolished. The first Charter of this Court in 1862, bySection 35, gave the Court "jurisdiction in matters matrimonial betweenour subjects professing the Christian religion," and such jurisdiction wasto "extend to the local limits within which the Supreme Court now hasecclesiastical jurisdiction," that is to say, Bengal, Behar, and Orissa.The present Charter of 1865 is substantially to the same effect; the Chartersof the other High Courts are similar. The jurisdiction of the High Court inmatters matrimonial was thus expressly extended to all Christian subjects ofthe Crown within the province; nothing is said about the matrimonial law to beadministered.

12. It was strongly contended before us that the effect ofthis extension of the matrimonial jurisdiction of the High Courts, over allChristian subjects, was to make all Christian marriages thenceforth subject tothe law administered by the Supreme Court, from which the jurisdiction wastransferred, that is to say, the law of England, "so far as thecircumstances and occasions of the said provinces and people shall admit orrequire"; and that the only further question to be considered was, whetherthe English law of prohibited degrees was such as those circumstanced admittedof required--a question which might have been one of much difficulty. And ifthis had been the case of a new and exclusive jurisdiction established overpersons not previously provided with a definite law and with tribunals toadminister it, there would have been much force in the contention. But, as hasbeen shown, the Regulations determined the law to be applied to non-BritishChristian-marriages and provided tribunals to administer it, just as theCharter of the Supreme Court did for British Christians. In the High CourtCharter the same section, Section 35, which gives this Court its matrimonialjurisdiction, contains a proviso, "that nothing herein contained shall beheld to interfere with the exercise of any jurisdiction in matters matrimonialby any Court not established by Royal Charter" within the Presidency; andthe words which occurred in the Supreme Court Charter, requiring the Court toadminister the English ecclesiastical law, are omitted from our Charter. Theconclusion seems clear that, in extending the matrimonial jurisdiction over newpersons, it was not intended to alter the matrimonial law by which thosepersons were governed.

13. The next Act is one of the Indian Legislature, Act XXVof 1864. That Act dealt exhaustively with the modes in which Christianmarriages could take place. These were : Marriages before a registrar, under 14and 15 Vict. C. 40; by a clergyman of the Church of England, according to therites, rules, ceremonies and customs of that church; by a clergyman of theChurch of Scotland, according to the rites, rules, ceremonies and customs ofthat church; by a licensed minister, under the Act itself and by a personauthorised to certify Native Christian marriages, under Part V of the Act. Asto marriage by licensed ministers, the Act contained provisions as to legalimpediments according to the law of England, exactly similar to those enforcedby 14 and 15 Vict, c. 40, in the case of marriage before a Registrar. As tomarriages of Native Christians, the certificate was only to be granted,provided "the man and the woman shall not stand to each other within theprohibited degrees of consanguinity or affinity."

14. Great stress was laid upon this Act and the 14 and 15Vict., c. 40, during the argument, as showing that both the Imperial Parliamentand the Indian Legislature intended that the English rules as to the prohibiteddegrees should be the law for, all Christians in India. We agree in thinking thatthose, Acts were almost certainly passed under the supposition that such wasthe law, and that this is probably why the rules of procedure in the case ofcertain modes of marriage were framed as they were. And any one who has studiedthe history of this subject outside this statute book will know that at thatperiod this opinion was entertained and expressed by persons of high authority.But we can find nothing in those Acts which can be said, either expressly or byreasonable inference, to enact or declare the law in this sense. Oh thecontrary, Section 21 of 14 and 15 Vict., c. 40, expressly declares that the Actis not to invalidate any marriage which "under the laws for the time beingin force in India might have been there solemnized in case this Act had notbeen passed." And, however strongly these Acts may seem to show an opinionthat the English law as to the prohibited degrees was in force for allChristians in India, subsequent legislation may, with equal correctness, besaid to indicate another view of the question.

15. Under the Act of 1864 obviously a clergyman of theChurch of Rome could only celebrate a marriage either as a licensed minister,or as a person licensed to certify under Part V. The Roman Catholic clergyobjected to this Act, as we learn from the objects and reasons of the amendingAct, upon certain points connected with registration, and the hours forcelebrating marriages. We learn from the speech of the member who had charge ofthe amending Bill that they objected also to their clergy having to be licensedby the State, and to the provisions as to prohibited degrees. On the latterpoint it was urged that there were classes of Christians in Southern India whowere compelled by social circumstances to marry within the degrees prohibitedby English law; to remove the latter grievance was one of the objects of thefresh legislation. Act V of 1865 was accordingly passed, and it made twomaterial changes. It put all especially ordained clergymen, including of coursethose of the Church of Rome, on the same footing with the clergy of theChurches of England and Scotland, and it excluded Roman Catholics from Part V.The effect was to allow Roman Catholics to have their marriages solemnized bytheir own clergy, according to the rites of their church, nothing being saidone way or the other about prohibited degrees; and to prevent Native RomanCatholics from marrying under Part V. This Act had certainly no tendency toimpose the English law on persons not previously subject, to it; the object wasto avoid doing so.

16. This was the state of legislation bearing upon thequestion prior to the passing of the Divorce Act in 1869. And we think that upto that time the English prohibited degrees had never become law for Christiansin India generally.

17. The Divorce Act applies to all Christians, whetherNative or European. Section 4 says that: "The jurisdiction now exercisedby the High Courts in respect of divorce a memo, et there, and in all othercauses, suits, and matters matrimonial, shall be exercised by such Courts andby the District Courts, subject to the provisions in this Act contained and nototherwise; except so far as relates to the granting of marriage licenses, whichmay be granted as if this Act had not been passed." Section 7 says that:"Subject to the provisions contained in this Act, the High Courts andDistrict Courts shall, in all suits and proceedings thereunder, act and giverelief on principles and rules which, in the opinion of the said Courts, are asnearly as may be conformable to the principles and rules on which the Court fordivorce and matrimonial causes in England for the time being acts and givesrelief." The Act then proceeds to deal with a number of subjects, of whichthe most important are dissolution of marriage, nullity of marriage, judicialseparation, protection orders, restitution of conjugal rights, settlements, andthe custody of children. Dealing with nullity of marriage, Section 18 says that"any husband or wife may present a petition to the District Court or tothe High Court, praying that his or her marriage may be declared null andvoid"; and Section 19 says that--"such a decree may be made,"amongst other grounds, on the ground "that the parties are within theprohibited degrees of consanguinity (whether natural or legal) oraffinity." The words in brackets, "whether natural or legal,"qualifying the word "consanguinity "point, apparently, toconsanguinity by adoption, so as to prevent a Native Christian, who has beenadopted, on the one hand from marrying, say, the daughter of his adoptivefather, and, on the other hand, from marrying a woman too nearly related to himby birth.

18. It seems convenient here, before considering theconstruction of the Divorce Act, to refer to the subsequent Act of 1872. ThatAct repeals both the 14 and 15 Vict., c. 40, and Act V of 1865. It re-enactsthe provisions of these Acts about marriages before registrars, and marriagesbefore licensed ministers, with this exception: Under the earlier Acts theregistrar or the minister had to satisfy himself that there was no "lawfulimpediment according to the law of England," and one of the parties had todeclare that there was no "impediment of kindred or affinity"; underthe new Act the words "according to the law of England" are left out,the minister or registrar is to be satisfied that there is no "lawfulimpediment", and the same declaration as before is required. In Part VIthe Act of 1872 re-enacts the former provisions about marriages of NativeChristians, omitting all reference to the prohibited degrees. But Section 88says: "Nothing in this Act shall be deemed to validate any marriage whichthe personal law applicable to either of the parties forbids him or her toenter into." There can be no doubt as to the object of the changes made bythis Act; the object clearly was to secure that there should be nothing in therules as to the celebration of Christian marriage tending to indicate, orsuggest, that any particular rule as to prohibited degrees applied to anyparticular marriage.

20. We now come to the third branch of the inquiry, what theprohibited degrees, mentioned in Section 19 of the Divorce Act, are. Thosewords, or similar words, were, as has been seen, used in the 14 and 15 Vict.,c. 40, and in the Acts of 1864 and 1865; and there are no doubt strong reasonsfor saying that, in the Acts prior to the Divorce Act, the words "theprohibited degrees" meant those prohibited by the, law of England. And theconsideration then arises that if certain words are used in a certain sense ina series of Acts, the same sense ought ordinarily to be given to the same wordsin a subsequent Act dealing with "the same subject. This is a rule ofconstruction not lightly to be departed from; and it must be admitted thatSection 7 of the Divorce Act, referring to English law, adds some force to thecontention that the language of the Divorce Act is the language of the Englishlaw.

21. But there are reasons on the other side of much greaterweight tending to show that, whatever may have been the meaning of theprohibited degrees in the earlier Acts, they mean, in the Divorce Act, not thedegrees prohibited by the law of England, but the degrees prohibited by the lawapplicable to the parties to the marriage. The Divorce Act and the Acts of 1864and 1865 are in pari materia in the sense that they both deal with marriage;but they deal with it from different points of view, and for differentpurposes, the earlier Acts treating primarily of the form of marriage, theDivorce Act of its dissolution and kindred subjects. And in Section 19 of theDivorce Act itself we find the words "consanguinity whether natural orlegal." These words seem to refer to relationship by adoption, an ideaunknown to the law of England; they therefore tend to negative the view thatthe language of the section is the language of the English law.

22. There are two reasons of a broader kind, and of muchgreater importance. The English law of prohibited degrees, as has been shown,was not applicable to Christians generally when the Divorce Act was passed; theapplication of the English rules to all Christians would be a most momentouschange in the marriage law of the large majority of Christians in India, suchas we ought not to hold to have been made, unless the intention of theLegislature to make the change has been expressed in unmistakable language; andthat has certainly not been done.

23. And the Acts of 1865 and 1872 show clearly that duringthe period between those two dates, it was the settled purpose arid policy ofthe Legislature not to extend the English rules as to prohibited degrees, bylegislation, to persons not already governed by them, but to leave them underthe law to which on other grounds they might, be found subject. The Divorce Actwas passed in the middle of this period, and we know, as matter of history,that it was under discussion in and before 1865. To construe the Divorce Act asapplying the English law to all Christians in India would, therefore, be toattribute to the Legislature, an intention directly in conflict with what weknow to have been their settled purpose at the time when the Act was preparedand passed.

24. The result is that in our opinion the prohibited degreesfor the parties to this marriage were not the degrees prohibited by the law ofEngland, but these prohibited by the customary law of the class to which theybelong, that is to say, the law of the Roman Catholic church as applied in thiscountry.

25. There is one other point to which we think it right torefer. Section 5 of the Act of 1872 enacts, as did the Act of 1865, that"marriage may be solemnized in India (1) by any person who has receivedepiscopal ordination, provided that the marriage be solemnized according to therules, rites, ceremonies and customs of the church of which he is aminister." It was argued that the words "rites, rules, ceremonies andcustoms" here used include rules as to capacity to marry, and make thoserules in each case depend upon the law of the church whose minister performs themarriage. That argument would lead by a short process to the same conclusion atwhich we have arrived upon this reference. The construction of those words isdifficult; we are not prepared to express all unanimous opinion upon it; and itis unnecessary that we should deal with it.

26. With this statement of our opinion the case must go backto the Division Bench to be considered.

Arthur Wilson, J.

27. We have now to decide this appeal in accordance with thelaw laid down by the Full Bench, that the validity of the marriage in questionis to be determined by. the law of the Church of Rome.

28. It is clear in this case that the parties intended tobecome husband and wife, and that a ceremony of marriage was performed betweenthem by a clergyman competent to perform a valid marriage. But the woman beingthe sister of the deceased wife of the man, it is clear upon the evidence that,according to the rule of the Church of Rome, a dispensation from the properEcclesiastical authority was necessary to its validity, while without suchdispensation it would be invalid.

29. If in such a case the burden of proving a dispensationlay upon the appellant, who supports the marriage, we should have no hesitationin saying it was not proved. If the burden of proof was the other way, and thepoint was one to be decided upon the balance of evidence, we might probablyhave come to the same conclusion. But the presumption in favour of everythingnecessary to give validity to a marriage is one of very exceptional strength.The law on the subject was fully considered by the House of Lords in the caseof Piers v. Piers 2 H.L.C. 331. The question in that case was as to thevalidity of a marriage. The parties had intended to become husband and wife,and a ceremony of marriage had bean performed between them by a clergymanqualified to marry them. The validity of the marriage in the place where it wasperformed depended upon whether a special license had been previously obtainedfrom the Bishop of the diocese. The evidence against the issue of any suchlicense was at least as strong as in the present case; but it was held that thepresumption must prevail, the Lord Chancellor, Lord Cottenham, cites and adoptsthe language of Lord Lyndhurst in an earlier case, that the evidence to rebutthe presumption must be "strong, distinct, satisfactory andconclusive." Lord Brougham says that it must be "clear, distinct andsatisfactory." Lord Campbell used similar expressions, and added, as hisopinion "that a presumption of this sort, in favour of a marriage, canonly be negatived by disproving every reasonable possibility. I do not mean tosay that you must show the impossibility of any supposition which can besuggested, to support the validity of the marriage; but you must show that thisis most highly improbable and that it is not reasonably possible.

30. Following the principle laid down in that case, we thinkwe are bound to presume in the present case that the dispensation had beenobtained which was necessary to remove the obstacle to this marriage on theground of affinity.

31. We accordingly hold that the marriage was not liable tobe annulled on the ground that this parties to it were within the prohibiteddegrees.

32. The decree of the Court of First Instance will be setaside, and the case will go back for the trial of the other issues arising init.

33. The appellant will have her costs of this appeal andalso her costs in the Court below of the trial of the issues which have beentried.

.

V.H. Lopez vs. E.J.Lopez (08.09.1885 - CALHC)