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1994 DIGILAW 283 (KAR)

GERARD LASRADO v. NIL

1994-09-27

G.C.BHARUKA, G.P.SHIVAPRAKASH

body1994
G. P. SHIVAPRAKASH, J. ( 1 ) ON a joint application filed under Section 28 of the Special marriage Act, 1954 ('act' for short) by the appellants seeking dissolution of their marriage by mutual consent, the Additional principal Judge, Family Court, Bangalore has dismissed the petition mainly on the ground that there were no bona fides on the part of the appellants in getting their marriage registered under the Act and they obtained the registration, only with the intention of having their marriage dissolved under the provisions of the Act. ( 2 ) THE marriage between the appellants, who are Christians by faith, was solemnised on 26-4-1992 at St. Patrick Church in terms of the provisions of the Indian Christian Marriage Act, 1872. Subsequently, they lived together for some time and because of certain personal differences between them they started living separately. ( 3 ) THE fact that their marriage which was solemnised on 26-4-1992 under the provisions of the Indian Christian Marriage act, was got registered on 6-3-1993 under the provisions of section 15 of the Act, is not in dispute. ( 4 ) SECTION 18 of the Act provides that where a certificate of marriage has been finally entered in the Marriage Certificate book under Chapter III of the Act, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnised under the Act. Chapter IV provides for the consequences of marriage solemnised under the Act. ( 5 ) WE are concerned with the provisions of Section 28 of the Act which provides for divorce by mutual consent. Section 28 reads thus:"section 28. Divorce by mutual consent. (1) Subject to the provisions of this Act and to the rules made thereunder, a petition of divorce may be presented to the district Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in this petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree". ( 6 ) APPELLANTS presented the petition on 28-8-1993 before the Family Court. Presentation of the petition before the Family court was one year after registration of their marriage under the Act, and they were also living separately for over a period of one year as on the date when the petition was presented. Validity or otherwise of the registration of their marriage in terms of the provisions under Section 15 of the Act was not under challenge. Therefore, we have to proceed on the basis that the registration of the marriage under the provisions of the Act is valid. ( 7 ) THE Trial Court on the basis of certain averments contained in the joint petition has given a finding that the registration of the marriage under the Act between the parties did not accord with the provisions of Section 15 (a) of the Act since the parties were not living together as on the date when their marriage was registered under the Act and, therefore, Chapter IV of the Act which provides for the consequences of marriage under the Act is inapplicable to the marriage of the appellants despite the "deeming" provision contained in Section 18 of the Act. The Trial court has concluded thus:"18. The facts of this case clearly show that there are no bona fides for getting the marriage registered under the special Marriage Act. Even before the registration of the marriage, they were separated from each other. They got the marriage registered only with an intention to file a petition for divorce by mutual consent as contemplated under Section 28 of the Special Marriage Act. Even before the registration of the marriage, they were separated from each other. They got the marriage registered only with an intention to file a petition for divorce by mutual consent as contemplated under Section 28 of the Special Marriage Act. Therefore, I feel that the marriage solemnised under, the Indian christian Marriages Act and subsequently registered under the Special Marriage Act after the parties became separated cannot be dissolved by a decree of divorce by mutual consent. Hence, I answer point No. 1 against the petitioners. Hence, this petition is liable to be dismissed". ( 8 ) SECTION 16 of the Act provides for the procedure for registration of marriages celebrated in other forms. Section 16 of the Act reads thus:"section 16. Procedure for registration Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for and after hearing any objection received within that period, shall if satisfied that all the conditions mentioned in Section 15 are fulfilled, enter a certificate of the marriage in the Marriage certificate Book in the form specified in the Fifth Schedule and such certificate shall be signed by the parties to the marriage and by three witnesses". ( 9 ) SECTION 17 of the Act provides for appeals from orders under Section 16. It provides that any person aggrieved by any order of a Marriage Officer refusing to register a marriage under chapter III of the Act may within thirty days from the date of order, appeal against that order to the District Court and the decision of the District Court on such appeal shall be final. ( 10 ) FROM the above provisions it is evident that the appeal to the District Court by any person aggrieved lies only as against an order of the Marriage Officer refusing to register a marriage but not against an order registering the marriage. ( 11 ) SECTION 24 of the Act reads thus: "section 24. Void Marriages. ( 10 ) FROM the above provisions it is evident that the appeal to the District Court by any person aggrieved lies only as against an order of the Marriage Officer refusing to register a marriage but not against an order registering the marriage. ( 11 ) SECTION 24 of the Act reads thus: "section 24. Void Marriages. (1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if, (1) any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. (2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15: provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the District Court has become final". ( 12 ) IN the instant case nobody has sought for declaration that the registration of the marriage between the parties under chapter III of the Act was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15 of the Act. Therefore, the question of validity or otherwise of the registration of the marriage between the parties under the Act did not arise for consideration and the Trial Court could not have given a. finding on the said question. ( 13 ) AS already stated the appellants are seeking divorce by mutual consent in terms of the provisions of Section 28 of the act. ( 14 ) WE have personally interviewed the appellants in camera separately and we are convinced that it is in the best interest of both of them that the marriage between them should be dissolved. We are also satisfied as regards the bona fides on the part of the appellants in presenting the petition for divorce based on mutual consent. ( 14 ) WE have personally interviewed the appellants in camera separately and we are convinced that it is in the best interest of both of them that the marriage between them should be dissolved. We are also satisfied as regards the bona fides on the part of the appellants in presenting the petition for divorce based on mutual consent. They are not seeking to achieve something which is forbidden by law nor accomplish something for an unlawful purpose. ( 15 ) FOR the foregoing reasons, we set aside the order dated 19th July, 1994 passed by the Additional Principal Judge, family Court, Bangalore and allow the joint petition filed by the appellants under Section 28 of the Special Marriage Act, 1954 before the Family Court. Their marriage shall stand dissolved from this day. Appeal is accordingly allowed. ( 16 ) WE must place on record our appreciation for the valuable assistance given at our instance, by Ms. Geetha Menon in analysing the various provisions of the Special Marriage Act and the Indian Christian Marriage Act. --- *** --- .