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2010 DIGILAW 953 (KAR)

Maria Philomena Furtado v. Austin Furtado

2010-09-03

B.MANOHAR, K.L.MANJUNATH

body2010
Judgment :- The appellant is challenging the legality and correctness of the order passed by the Prl. Civil Judge (Sr.Dn.), Mangalore dated 16.9.2005 in M.C.No.75/2000. Respondent filed a petition under Secs.24 & 25 of the Special Marriage Act R/w Sec.18 of the Indian Divorce Act. According to the petition averments, petitioner and respondent are closely related. Mother of the petitioner and mother of the respondent are direct sisters and they agree to marry each other as per Christian rites and customs on 28.7.1987. Betrothal function was also held. On account of the difference of opinion arose between them, marriage could not be solemnized. As per the terms of the betrothal function, marriage should have been solemnized within six months from the date of engagement. Since marriage was not held within six months, engagement got cancelled and thereafter petitioner started living as a bachelor. 2. In the year 1994, petitioner met the respondent in a funeral ceremony of a relative Mr.Alphanso Pinto and after the funeral ceremony respondent informed the petitioner that still she is a spinster and requested the petitioner to forget all the differences and to give a life to her. Believing her request he married the respondent under the Special Marriage Act on 29.10.1994 before the Marriage Officer, Mangalore City and started living together at Bejai. Respondent was irritating the petitioner and started treating with utmost cruelty, she never used to cook food and was not taking care of his daily needs. Therefore, petitioner was compelled to being food from hotels and without any information respondent left matrimonial home within a month after the marriage. Later on, at the instance of the relatives and respectable persons of the community again marriage was solemnized on 11.1.1996 at Holy Church, Derebail. Again she started threatening the petitioner and she never cooked food for the petitioner. 3. According to him, it was not within his knowledge that respondent had married to one Latheef on 15.1.1988 and the said marriage was registered and that the respondent and the petitioner are coming under the prohibited degree of relationship, therefore the marriage between the petitioner and the respondent was null and void on account of her earlier marriage subsisting as on the date of registration of the marriage and also on the ground that the parties comes within the prohibited degree. Petitioner immediately filed a petition in M.C.No.67/1996 and on account of his employment after filing M.C.67/1996 he went to Saudi Arabia. As he could not attend the case, he requested his counsel to withdraw the case. Accordingly case was withdrawn. When he returned to India in March, 1999 respondent started demanding a sum of Rs.1 lac. In the circumstances, it compelled the petitioner to file the petition granting divorce on the ground of nullity of marriage. 4. Respondent filed her objections admitting their relationship and also that they are the children of two direct sisters and she also admitted the betrothal function held on an earlier occasion and that the engagement was also cancelled. She also admitted that she met the petitioner in the funeral ceremony of Mr. Alphanso Pinto. However, she denied that she informed the petitioner that still she is a spinster and requested him to forget the differences and to give a life to her. She admit the registration of the marriage under the Special Marriage Act on 29.10.1994. She also admitted that husband and wife started living together at Bijai in Mangalore immediately after the marriage. She has denied the allegations of cruelty. It is also admitted by her that there was a marriage in accordance with the Christian rites on 11.1.1996 solemnized at Holy Church at Derabail. She denied that it was not known to the petitioner that respondent is the daughter of his mother’s sister. She denied that she had married to Latheef on 15.11.1988 and she has also denied that by suppressing the facts respondent has played fraud on the petitioner. Therefore, she requested the court to dismiss the petition. In order to prove the respective contentions, petitioner got himself examined as pw-1 and he relied upon Exs.P-1 to 8. On behalf of the respondent, she got herself examined as RW-1, one Father Godfrey Saldanha was examined as RW-2 and Ex.R-1 is marked. Based on the above pleadings and evidence, following points were formulated by the court below for its determination: 1. Whether the petitioner proves that the relationship between himself and the respondent is within the prohibited degree of relationship and as such, his marriage with the respondent is null and void? 2. Whether the petitioner proves that he has been treated with cruelty by the respondent? 3. Whether the petitioner proves that the relationship between himself and the respondent is within the prohibited degree of relationship and as such, his marriage with the respondent is null and void? 2. Whether the petitioner proves that he has been treated with cruelty by the respondent? 3. Whether the petitioner proves that the respondent has deserted him without any lawful excuse or reasonable grounds? 4. Whether the petitioner is entitled for a decree for nullity as prayed for? 5. To what order or decree? On appreciating the evidence, trial court held points 1 to 4 in the affirmative and allowed the petition by declaring the marriage solemnized between the parties on 29.10.1994 and on 11.1.1996 as null and void by judgment and decree dated 16.9.2005. This order is called in question in this appeal. 5. The main contention of the appellant’s counsel before us are that the trial court has committed a serious error in allowing the divorce petition on the ground of nullity. According to him, there was no suppression of facts. It was known to the respondent the relationship between them and that Ex.P-7 is a dispensation certificate issued by the Bishop of Mangalore. In view of the dispensation granted by the Bishop of Mangalore, marriage solemnized between the parties has to be held as valid. He further contends that there was no marriage solemnized between the appellant and Latheef and trial court should not have given much weight to the document produced by the respondent to show that there was marriage between the appellant and Latheef and such an agreement cannot be construed as a marriage solemnized between the appellant and Latheef. He further contends that the agreement of marriage has been subsequently cancelled, therefore alleged marriage between the appellant and Latheef cannot be a ground for the respondent to seek divorce against the appellant on the ground of nullity. 6. Per contra, counsel for the respondent contends that the trial court is justified in granting decree of divorce. According to him, marriage solemnized between the appellant and Latheef was not disclosed to the respondent. Without disclosing the earlier marriage and during the subsistence of her marriage with Latheef made the respondent to marry her under the provisions of the Special Marriage Act, therefore the marriage solemnized between the appellant and the respondent has to be treated as null and void. Without disclosing the earlier marriage and during the subsistence of her marriage with Latheef made the respondent to marry her under the provisions of the Special Marriage Act, therefore the marriage solemnized between the appellant and the respondent has to be treated as null and void. He further contends that when the marriage between the appellant and the respondent was solemnized under the Special Marriage Act, there cannot be any marriage solemnized at Holy Church of Derabail since by then they were living as husband and wife, even if such ceremony is held the same is of no consequence under the eye of law. In the circumstances, he requests the court to dismiss the appeal. 7. Having heard the counsel for the parties, this court has to consider the following points in this appeal: 1. Whether the marriage solemnized between the parties under the Special Marriage Act on 29.10.1994 was null and void? 2. When the appellant was living with Latheef as per registered agreement dated 15.11.1988 and when the said marriage was in subsistence, whether the marriage solemnized between the appellant and the respondent on 29.10.1994 can be held as legal? 8. Facts are not in dispute in this appeal to the following extent: The parties are Christians. They are children of two direct sisters. There is a prohibition for them to marry each other under the Christian Law. It is also not in dispute that Bishop of Mangalore has a power to grant dispensation for the marriage of the parties even if they fall within the prohibited degree under the Canon Law. On going through the evidence, it is an admitted fact that the appellant had entered into a registered agreement with one Latheef on 15.11.1988 as per Ex.P-1. We have perused the entire agreement. The pith and substance of the document clearly shows that they married each other on that day. The appellant is a Christian. Latheef is a Muslim. They have not married either under the Muslim Law or under the Christian Law. They agreed to live as husband and wife and out of the said wedlock appellant has a son. It is also not in dispute that on the date of the marriage solemnized between the parties herein under the Special Marriage Act on 29.10.1994 no divorce was obtained by the appellant from Latheef. They agreed to live as husband and wife and out of the said wedlock appellant has a son. It is also not in dispute that on the date of the marriage solemnized between the parties herein under the Special Marriage Act on 29.10.1994 no divorce was obtained by the appellant from Latheef. On 4.11.1994 Latheef and the appellant herein have executed a document canceling the earlier agreement of marriage. Cancellation of marriage agreement is marked as Ex.P-4. Clause (2) of the agreement says that they have a child by name Melvin Pinto and the child was aged about 6 years on the date of Ex.P-4 and child shall remain with the appellant. 9. Both the parties admit that immediately after Ex.P-2 Marriage Certificate, they started living as husband and wife at Bijai, Mangalore in the house of the respondent. From the above documents it is clear that as on the date of registration of the marriage between the parties under the Special Marriage Act, appellant was the wife of Latheef and her marriage with Latheef was in subsistence and she had a son of six years old. As per Ex.P-2 parties have married on 29.10.1994 and since then they are residing as husband and wife. As per Ex.P-4 marriage solemnized between Latheef and the appellant was got cancelled. To annul the marriage between the parties herein Ex.P-6 has been produced, it is dated 20.9.2002. According to the certificate of annulment, marriage solemnized between the parties herein has been annulled as per provisions of Canons of the Roman Catholic Church and the certificate further reads that there is no obstacle to enter a new and valid marriage in the catholic church provided there is no other legal hurdle. The certificate further reads that the said decision is purely a religious matter and has no civil effects. The same has been issued on 9.12.2002. Ex.P-7 is a dispensation certificate issued by the Bishop of Mangalore. It is dated 18.7.1987. As per dispensation certificate parties being the first cousins sought dispensation to marry, they being in love for 2 years and this certificate is granted on 18.7.1987 and Ex.P-7 is obtained prior to the betrothal function held between the parties herein. Based on this Ex.P-7 appellant is trying to contend that the marriage solemnized between the parties is legal and cannot be held as null and void. 10. Based on this Ex.P-7 appellant is trying to contend that the marriage solemnized between the parties is legal and cannot be held as null and void. 10. After perusing the documents relied upon by the parties and the evidence let in by the parties, we are of the opinion that all the points arise for our determination are to be held against the appellant and in favour of the respondent for the following reasons: The dispensation certificate relied upon by the appellant is of the year 1987. The said dispensation was obtained prior to their betrothal function held in the year 1988 and subsequently marriage was not solemnized as the marriage did not taken place within six months from the date of betrothal. Therefore, the said document cannot be relied upon by the appellant herein. Even if the said document can be held as a valid document to regularize the marriage between the appellant and the respondent on account of they fall under the prohibited degree still the appellant cannot come out of the existence of marriage with Latheef as on the date of special marriage solemnized between the parties herein. Admittedly, the marriage between the parties was solemnized under the Special Marriage Act as per Ex.P-2 dated 29.10.1994. But by then, appellant was the wife of one Latheef and out of her wedlock with Latheef she had a child of six years. When she was the wife of Latheef, appellant cannot contend that the marriage solemnized between her and the respondent as per Ex.P-2 is valid. The very fact that Ex.P-4 discloses that Latheef and the appellant have entered into an agreement of cancellation of the marriage on 14.11.1994 would only discloses that on account of the difference between the husband and wife they want to get their marriage cancelled. Contents of Ex.P-4 discloses that the appellant was the wife of Latheef. Therefore, appellant cannot contend that Ex.P-1 is only an agreement to show that she intended to marry Latheef cannot be accepted. From the date of Ex.P-1 till the date of Ex.P-4 appellant has to be regarded as the wife of Latheef only. 11. It would be useful for us to refer to Sec. 4(a) of the Special Marriage Act, 1954: “4. From the date of Ex.P-1 till the date of Ex.P-4 appellant has to be regarded as the wife of Latheef only. 11. It would be useful for us to refer to Sec. 4(a) of the Special Marriage Act, 1954: “4. Conditions relating to solemnization of special marriages- Notwithstanding anything contained in any other Law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of marriage the following conditions are fulfilled, namely: (a) neither party has a spouse living.” When a party has a spouse living, such spouse cannot marry under the Special Marriage Act as the same would be contrary to Sec. 4(a) of the Act. In the instant case, during the subsistence of marriage with Latheef, marriage solemnized between the appellant and the respondent under the Special Marriage Act by suppressing the appellant’s marriage with Latheef. Therefore, marriage solemnized between the parties under the Special Marriage Act has to be held as contrary to Sec. 4(a) of the Special Marriage Act. Accordingly, it has to be held as a nullity. When once the marriage was solemnized between the parties under the Special Marriage Act, question of parties again marrying each other under the Christian Law does not arise at all. Even if the marriage has taken place in the year 1996 at Holy Church is of no consequences. Therefore, even if the marriage has been solemnized for the second time in Church, same cannot validate the marriage which was contrary to the provisions of Law. Viewed from any angle, we do not see any merits in this appeal as the marriage solemnized between the parties during the subsistence of marriage of the appellant with Latheef is null and void and also on the ground that the marriage solemnized between the appellant and respondent has been annulled by the Ecclesiastical Tribunal of Mangalore Diocese, Bangalore, Court of Second Instance dated 9.12.2002 which has not been challenged by the appellant herein. 12. In the result, we do not see any merits in this appeal. Accordingly, this appeal is dismissed.