# LAKSHMI SANY AL v. SACHIT KUMAR DHAR

- **Citation:** [1973] 2 S.C.R. 122
- **Court:** Supreme Court of India
- **Decided:** 1972-09-08
- **Bench:** A. N. Grover, M. H. Beg, A. N. Mukherjea
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakshmi-sany-al-v-sachit-kumar-dhar-5766
- **Pages:** 12

## Headnote

B
Marriage-Indian Christian Marriage Act, 1872 (15 of !812)-
Canon Law-Partfes to marriage professing Roman
Catholic
faithSolemenisation of marriage
by
person
competent under s. 5(1)-
0bjection to ntarriage on ground of lack of consent of parent or guardian
as required under s. 19-App/icabi/ity of s. 19 to marriage solemnised
by person in category I of section 5-Marriage within prohibited degree
of consanguinity-Dispensation
by . appropriate under canon JawC
Availability of ground No. 2 in section 19.
The appellant filed a suit for a declaration that her marriage with
the respondent was null and void and for other reliefs.
The parties
professed the Roman Catholic faith.
The marriage was solemnised by
a Minister of the Roman Catholic Church
who
had
received
episcopal ordination and was competent to solemnise the marriage under
D
sub .... (1) of s. 5 of the Indian Christian Marriage Acr;l872.
The
appellant claimed that she was a minor at the time
the marriage was
solemnised and the c~nsent 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. The High Court held th~t from
the standpoint of
Canon Law if the Roman Catholic church the objection to
the
validity of the marriage on the ground of lack of consent could not be
E
sustained. The High Court expressed the view that the consent of the
parents was not necessary as required under s. 19 of the Indian Christian Marriage Act since the .marriage was solemnised by a person falling
under s. 5(1), nor was there any provision in the Indian Divorce Act.
1869 which rendered a marriage null and void on the ground of minority
of a party, On the question of the marriage being within the prohibited
degree of consanguinity it '\\'as found that since the consanguinity between the parties was of the second degree it was certainly an impediF
ment in the way· of the marriage under the Roman Catholic law; But
the impediment could be removed by dispensation which was granted
bv the competent authorities of the church; for that reason the n"rriage
c·ould not be held to be null and void. Dismissing the appeal.
HELD : (i) The High Court was right in holding that
the pro.
visions of s. 19 of the Christian Marriage Act was not applicable to the
present case since the • marriage was solemnised by a
person
falling
G
under s. 5 (1).
The making of separate provisions in Parts III, V and VI of the
Indian Christian Marriage Act relating to marriage of minors and the
requirement of consent of the parents or the guardian shows that each
part is meant to be self--contained.
The categories of persons covered
by those parts and the provisions appearing therein cannot be applied
to m~.rriages solemnised by persons falling in categories 1 and 11 mentiQJ>ed in section ~.
In these two cate.gories a person w~o can solemryi30. the marriage can do so only according to the rules~ ntes, ceremonies
and customs of the particular church to which the Minister belongs.
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LAKSHMI SANYAL v. s. K. DHAR (Grover, I.)
123
In other words, if a marriage has to be solemnised by a Minister belonging to the Roman Catholic Church which fall within
category 1,
he is bound to follow only the rules, rites and ceremonies and customs
of the Church to whidh he belongs and it is not possible to apply the
provisions of Part III to him.
Part III only applies to Ministers of
Religion licensed under the Act.
Section 19 could not therdore, be
applicable to the marriage of the appellant and the respondent which was
solemnized by a person in category 1 .of section 5. [128G-129Bl
Rev. Father Caassave/ v. Rev. Saurez, l.L.R. 19 Mad. 273, referred
to.
There is no .Provision in the Canon Law which contains a pruhibition
against the marriage of a minor in the absence of the consent of his
or her parents It appears that under Canon Law so Jong as a minor
has reac

## Text

122
LAKSHMI SANY AL
v.
SACHIT KUMAR DHAR
September 8, 1972
A
[A. N. GROVER, M. H. BEG AND A. N. MUKHERJEA, JJ.)
B
Marriage-Indian Christian Marriage Act, 1872 (15 of !812)-
Canon Law-Partfes to marriage professing Roman
Catholic
faithSolemenisation of marriage
by
person
competent under s. 5(1)-
0bjection to ntarriage on ground of lack of consent of parent or guardian
as required under s. 19-App/icabi/ity of s. 19 to marriage solemnised
by person in category I of section 5-Marriage within prohibited degree
of consanguinity-Dispensation
by . appropriate under canon JawC
Availability of ground No. 2 in section 19.
The appellant filed a suit for a declaration that her marriage with
the respondent was null and void and for other reliefs.
The parties
professed the Roman Catholic faith.
The marriage was solemnised by
a Minister of the Roman Catholic Church
who
had
received
episcopal ordination and was competent to solemnise the marriage under
D
sub .... (1) of s. 5 of the Indian Christian Marriage Acr;l872.
The
appellant claimed that she was a minor at the time
the marriage was
solemnised and the c~nsent 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. The High Court held th~t from
the standpoint of
Canon Law if the Roman Catholic church the objection to
the
validity of the marriage on the ground of lack of consent could not be
E
sustained. The High Court expressed the view that the consent of the
parents was not necessary as required under s. 19 of the Indian Christian Marriage Act since the .marriage was solemnised by a person falling
under s. 5(1), nor was there any provision in the Indian Divorce Act.
1869 which rendered a marriage null and void on the ground of minority
of a party, On the question of the marriage being within the prohibited
degree of consanguinity it '\\'as found that since the consanguinity between the parties was of the second degree it was certainly an impediF
ment in the way· of the marriage under the Roman Catholic law; But
the impediment could be removed by dispensation which was granted
bv the competent authorities of the church; for that reason the n"rriage
c·ould not be held to be null and void. Dismissing the appeal.
HELD : (i) The High Court was right in holding that
the pro.
visions of s. 19 of the Christian Marriage Act was not applicable to the
present case since the • marriage was solemnised by a
person
falling
G
under s. 5 (1).
The making of separate provisions in Parts III, V and VI of the
Indian Christian Marriage Act relating to marriage of minors and the
requirement of consent of the parents or the guardian shows that each
part is meant to be self--contained.
The categories of persons covered
by those parts and the provisions appearing therein cannot be applied
to m~.rriages solemnised by persons falling in categories 1 and 11 mentiQJ>ed in section ~.
In these two cate.gories a person w~o can solemryi30. the marriage can do so only according to the rules~ ntes, ceremonies
and customs of the particular church to which the Minister belongs.
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LAKSHMI SANYAL v. s. K. DHAR (Grover, I.)
123
In other words, if a marriage has to be solemnised by a Minister belonging to the Roman Catholic Church which fall within
category 1,
he is bound to follow only the rules, rites and ceremonies and customs
of the Church to whidh he belongs and it is not possible to apply the
provisions of Part III to him.
Part III only applies to Ministers of
Religion licensed under the Act.
Section 19 could not therdore, be
applicable to the marriage of the appellant and the respondent which was
solemnized by a person in category 1 .of section 5. [128G-129Bl
Rev. Father Caassave/ v. Rev. Saurez, l.L.R. 19 Mad. 273, referred
to.
There is no .Provision in the Canon Law which contains a pruhibition
against the marriage of a minor in the absence of the consent of his
or her parents It appears that under Canon Law so Jong as a minor
has reached the age of capacity to contract the marriage can be solemnized and the lack or absence of consent of the parents or guardion will
not invalidate the marriage. [130B-C]
(ii) Once c.l(spensation is granted by the appropriate authorities the
parties cannot be regarded under the Canon Law as bein~ within the
prohibited degrees with the result that ground No. 2 in s. 19 cannot be
availed of.
The parties, at the time of their marriage, professed Roman
Catholic religion and the question of capacity to marry and imp<dimcnts
in the way of marriage would have to be resolved by referring to their
personal Jaw.
That, for the purpose of deciding the validity
of
the
marriage would be the law of the Roman Catholic Church, namely.
the Canon Law of ihat Church. If the parties are related by consan-
~uinitv in· the -second degree, that per se, is an impediment to 1narriage;
but. under the Canon Law iti<elf it is dispensable and can be removed
by dispensation. [132Hl
V. H. Lopez v R. J. Lopez, r:L.R. 12 Cal. 706, H. A. Lucas v.
Tlie0doras Lucas, I.L.R. 32 Cal. 187
and Peter P,hilip Saldanha v.
A1uze Grace Saldanha, I.L.R. 54 Born. 288, Bouscaren on Canon Law,
Manual ol Canon Law by Fernando Della Rocca, referred to.
Cll'IL APPELLEATE JURISDICTION: Civil Appeal No. 8(N) of
1 971.
Appeal by special leave from the judgment and order dated
July 18, 1969 of the Calcutta High Court from Original Decree
No. J 15 of 1968.
Vidya Dhar Tilak and K. Rajendra Chowdhry, for the appellant.
The respondent appeared in person.
The Judgment of the Court was delivered by
Grover, J.
This is an appeal by special leave from a judgment of the Calcutta High Court arising out of a matrimonial
suit No. 17 of 1966 filed by the appellant against the respondent
for a decree declaring that the marriage between the parties was
null and void and asking for custody and care of the children.
alimony pendente lite permanent maintenance and other reliefs..
124
SUPREME COURT REPORTS
[1973] 2 s.c.R.
The facts may first be stated.
The appellant and the respondent 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
appellan1 who was also a Hindu got converted to that faith and
was blaptised 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 appelhillt She gave birth to
a secc.nd 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 sicle 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 thc:se 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 learned trial judge came to the conclusion that the appellant and the respondent fell in love with each other which led
to their marriage. He did not accept the case of the appellant
that any fraud, coercion or undue influence had been practised
or employed
by
the
respondent or that Father Antoine
had been guilty of giving fraudulent advice to the appellant. H
was further held that the marriage had been solemnised by the
proper priest after a dispensation had been obtained from the
aut4orities of the Roman Catholic Church removing the impediment of consanguinity.
It does not appear from the judgment
that the point relating to invalidity of the marriage on account
of absence of consent of the father or the guardian of the appel1
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LAKSHMI SANYAL v. s. K. DHAR (Grover, J.)
125
!ant was argued or decided by the learned trial judge.
The
Division Bench endorsed the view of the trial judge about the
circumstances in which the marriage came to be solemnised
between the parties.
The question of the effect of the minority
of the appellant and the lack of consent of her father or guardian
was allowed to be raised and after refurring to the Canon Law
of ihe Romen Catholic Church it was held that from the standpoint of that law the objection to the validity of the marriage
on the ground of lack of consent could not be sustained.
The
High Court expressed the view that in the present case the consent of the parents was not necessary as required under s. 19 of
the Indian Christian Marriage Act, 1872, nor was there any provision in the Indian Divorce Act 1869 which
rend1~red a
marriage null and void on the ground of minority of a party. On
the question of 1he marriage being within the prohibited degree
'Jf consanguinity it was found that since the consanguinity
between the parties was of the second degree it was certainly au
impediment in the way of marriage under the Roman Catholic
Law. But the impediment could be removed by dispensation
which was granted by the competent authorities of the Church.
For that reason the marriage could not be held to be invalid or
null and void.
Learned counsel for the appellant has sought to raise a number of points but ultimately the only contentions which have
been seriously pressed and which require decision are confined
to two matters.
The first is whether the marriage was invalid
and void because the appeJlant was a minor at the time the
marriage was solemnised and admittedly the consent of her
father or guardian had not been taken. The second is that the
parties were within the prohibited degree of consanguinity and
therefore under s. 19 of the Divorce Act a decree declaring that
the marriage was null and void ought to have been granted.
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 nu!! 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 'llithin
the prohibited degree of consanguinity
(whether natural. or
le)!al) 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·
126
SUPREME COURT REPORTS
[1973) 2 S,C,R.
'.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 III, V and VI
in respect of those marriages where one or both of the parties
happen to be minors.
In Part Ill 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 auth.orised
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 soJemr.ized 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 intendinl!: to be married
shall not be under 18 years and the age of the woman intending
to be married sha1! 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 !o 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 wilfully is to be punished with imprisonment for a term which may extend to 3 yeai:.s and shall
also be liable to fine. · Section 71 gives the punishments for a
Marriage Registrar who amtmg 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 suhs. (3) of that section. Section 77 to the extent it is material
may be reproduced :-
S. 77
"Whenever any marriage has been solemnized in accordance with the provisions of sections 4
& 5 it shall not be void merely on account of any irreA
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LAKSHMI SANYAL v. s. K. DHAR (Grover, I.)
127
gularity in respect of any of the following matters,
namely,:-
( 1) any statement made in regard to the dwelling
of the persons married, or to the consent of any
person whose consent to such marriage is
required by law :
(2)
"
It has been necessary to set out in some detail the provisions
of the Indian Christian Marriage Act because it has been strenuously argued on behalf of the appellant that since the consent
of her father was not taken under s. 19 when she was admittedly
a minor the marriage was null and void.
It has been pointed
out that even though the heading of Part m in which s. 19
occurs confines the provisions therein to marriages solemnized
by the Minister of Religion licensed under the Act, s. 19 is of
general application and whenever a Christian marriage is solemnized by any priest or Minister its provisions would be applicable.
Emj1tiasis has also been laid on the fact that in ss. 12, 13 and
14 the words "Minister of Religion" have been specifically used
whereas they do not appear in ss. 15, 18, 19, 20, 21 and 22.
lndeed in s. 20 the word used is "any Minister" and this section
empowers the person whose consent to a marriage is required
under s. 19 to prohibit the issue of a certificate by any Minister.
Section 21 uses words "Such Minister" which it is suggested has
reference to any Minister in s. 20.
We may now deal with the scheme of s. 5 which read with
s. 4 is the most material section and all the other provisions
which have been made in the Act, particularly, in the different
Parts have to be read in the light of s. 5.
Section 5 gives five
categories of persons by whom marriages of Cltristians can be
solemnized in India. The first is of any person who has received
episcopal ordination.
The only condition laid down is that he
must solemnize the marriage according to the rules, rite.s, ceremonies and customs of the Church of which he is the Minister.
It may be mentioned that in the present case the marriage was
solemnized by Father Antoine who was a Minister of Roman
Catholic Church and about whom it has not been disputed that
he had received episcopal ordination and was competent to
solemnize the marriage under sub-s. ( 1) of s. 5.
The second
category is of Clergyman of the Church of Scotland who has to
solemnize the marriage according to the rules, rites, ceremonies and customs of that Church. The next three categories,
namely, 3, 4 and 5 are of those who have been licensed or appointed und~r the Act. In category 3 fall Ministers of Religion
licensed under the Act to solemnize the marriages. Category 4
128
SUPREME COURT REPORTS
[1973] 2 S,C,R,.
consists of persons licensed under the Act to grant the certifica•te
o~ !11arriag,e .between the. Indian Christians. Part III contains pro-
':'1s10ns relatmg to marriages solemnized by Ministers of Religion
licensed under the Act, namely, category 3. Part IV directs registration of marriages solemnized by a Minister of Religion. It
points out how it is to be done by the Clergyman of England,
Rome ~nd Scotland. It also deals with the case of a marriage
solemnized by a person who had received Episcopal ordination
but who is not a Clergyman of the Church of England, Rome
or Scotland. Part V relates to marriages solemnied by or in the
presence of Marriage Registrar which obviously pertains to cate·
gory 4. It is noteworthy that so far as the last three categories
aro concerned express and elaborate provisions have been made
when a minor is to be married. In cases of marriages solemnized
by persons belonging to categories 3 and 4 the provisious are
intended to ensure that the consent of the parents or the guardian
should be obtained when a minor is going to get married.
A
minor would mean according to the definition given in s. 3, a
person who has not completed the age of twenty one years. •Whh
regard to a marriage solemnized by the person in category 5 dealt
with in Part VI it is provided by s. 61 (as stated before) that
one of the conditions to be fulfilled is that the age of the man
intending to be married shall not be under 18 years and the age
of the woman intending to be married shall not be under 15 years.
According to the proviso to tha't section no marriage can be cer·
tified under Part VI when either of the parties intending to be
married has not completed his or her 18th year unless such consent
as is mentioned in s. 19 has been given to the intended marriage
or unless it appears that there is no· person living or authorised
to give such consent.
It is apparent that in s. 60 the age of
minority when consent of the father or the guardian is necessary
is 18 years whereas in ss. 19 and 44 appearing in Parts III and V
a person who has 1iot completed the age of 21 years has been
treated as a minor in whose case consent of the parents or the
guardian is necessary. The makin.g of separate provisions in Parts
UL V and VI relating to marriage of minors and tije requirement
of consent of the parents or the guardian shows that each Part is
meant to be self contained. The categories of persons covered by
those Parts and the provisions appearing therein ca:mot be applied
to marriages solemnized by persons falling in categories I and II.
Moreover in the aforesaid 2 categories (I and 2) a person who can
solemnize the carriaire can do so only according to the rules, rites
ceremonies and customs of the particular Church to which the
, Minister or the Clergyman belongs. In other words if a marriage
}\as to be sol.emnized bv a Minister belonging to the Roman Catholic Church which will fall within category I he is bound to follow
only the rules, rites and ceremonies and customs of the Church
to which he belongs and it is not possible to apply the provisions
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LAKSHMI SANYAL v. s. K. DHAR (Grover, J.)
129
of Part III to him. It may be mentioned tbat after a careful analysis
of tbe scheme of the Indian Christian Marriage Act it was held
in Rev. Father Caussavel v. Rev. Saurez(1) that Part III only applies to Ministers of Religion licensed under the Act. Section 19
could not, therefore, be applicable to the marriage of the appellant
and the respondent which was solemnized by a person in category
1 of s. 5. Moreover as demonstrated by s. 60 there ieems to
be no uniform provision that consent must be obtained of the
parents or the guardian when a person is above 18 years of agt>
but below 21. Section 60 clearly recognises the fact that if a
marriage is to be certified under Part VI the consent would be
required only if either of the parties has not completed his or
her 18th year. Part VII which d.~als with penalties .shows that
persons solemnizing a marriage without authority or not in accordance with what is provided are liable to severe punishment by
way of imprisonment as well as fine.
Thus every care is taken
to ensure that the solemnization of the marriage as provided
by s. 5 may be done by persons who were authorised to do so
and in accordance with the rules and customs of the Church
to which such persons belong under categories 1 and 2 and in
accordance with the provisions of the Act by the Minister of
Religion or the Marriage Registrar or a person licensed under
the Act falling in categories 3, 4 and 5 as the case may be.
Even with regard to solemnization of marriage to which ss. 19
44 and 60 are applicable tbere is no provision that such marriages
wolild be null and void.
All that happens is that if the penal
provisions are breached a person solemnizing a particular marriage will be liable to punishment.
Section 77 .;ays that whenever any marriage has been solemnized in accordance with the
provisions of ss. 4 and 5 it shall not be void merely on account
of the irregularity in respect of the five matters set out therein,
one of which is contained in sub-section ( 1) and which relates
to the consent of any person whose consent to such marriage is
required by law. It has been areued on behalf of the appellant
that s. 77 presupposes that a marriag.e would be void if consent
to such marriage as reauired by law has not been obtained and
it is only a mere irregularity in resoect of it which will not render
it void. In the view that we have expressed it is unnecessary
to consider the true scope and ambit of s. 77. In our iudgment the High Court was right in holding that the provisions of
s. 19 of the Christian Marriage Act will not be applicable to the
present case since it was solemnized by a oerson fa11ing ~n~er
s. 5 ( 1) and we have to examine the Canon Law for determmmg
the true oosition about the solemnization of a marriage of a person who is below 21 years of age.
([) T.L.R. 19 M•d. 273.
10-Ll48 Supcl /73
130
SUPREME COURT REPORTS
[1973] 2 s.c.R.
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
senousJy 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
liis
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 invalida'te 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 consangui:;ity.
The
Indian Divorce Act or the Indian Christian Marriage Act do not
give any definition of what the prohibited degrees are.
It has
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
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of real sisters fell within those degrees. Section 19 of the
Divorce Act lays down in categorical terms that a marriage may
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be declared null and void, inter a/ia, where the parties are with·
in 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 ab-initio
can be removed by a dispensation granted by the competent
authorhv of the Roman Catholic Church. The Hieb Court followed the decision of a full bench of the Calcutta High Court in
V. H. Lopez v. R. J. Lopez(') in which it was held that the orohibited degrees for the purpose of the marriage were those which
were proh!bited by the customary Jaw 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
(I) l.L R. 12 Cal. 706.
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Cl~rgyman c~mpeten~ to sol~mnize the marriage.
Although no
evidence of dispensation havmg been. obtained to remove the
obstacle to the marriaJ!;e on the ground of affinity which was the
case there had been produced the court· presumed that such a
dispensation had been duly obtained from the fact that the mar- ·
riage was solemnized by a Clergyman of the Roman Catholic
~hurch who was competent to do so. According to the decisiou
m H. A. Lucas v. Theodoras Lucas(') the courts in India will
not disallow a Roman Catholic of Indian domicile who had re·
ceived the necessary dispensation from marrying his deceased
wife's si~ter who by the law of her own Church, which was
. Armenian in that case, may be incapable of contracting the
marriage.
The husband's capacity rendered the marriage valid
in law. The effect of s. 88 of the Indian Christian Marriage Act
was cohsidered in Peter Philiv Saldanha v. Anne Grace Sal·
danha( 2 ). That section provides that nothing in the Act shall
be deemed to validate any marriage which the personal law appli·
cable to either of the parties forbids him or her to enter into. In
the Bombay case the parties were Roman Catholic of Goan
domicile and their marriage had been solemnized before the
Registrar of Marriages in Bombay.
A question arose whether
such a marriage was forbidden by the personal law of ihe parties
as being contrary to the Canons. of the Church of Rome. After
examining the scheme of the Indian Christian Marriage Act
Blackwell J., who delivered the judgment of the High Court said
that tlb.e whole Act deals only with the ceremony
of
marriage.
The argument that Parts III, IV and V involved the
exclusion of Roman Catliolics from Part V of the Act was repelled on the eround that if that had been intended the legislature
would have said so. It was observed that the expression "personal
Jaw" in s. 88 refers to the capacity to contract and impediments
and not the forms of solemnization. In the present case both
the parties are domiciled Jn India and at the time of the solemnization of their marriage they professed Roman Catholic religion.
The question of capacity to marry and impediments in the way
of marriage would have to be resolved by referring to their per·
sonal law. That, for the purpose of deciding the validity of the
marriage, would be the Jaw of the Roman Catholic Church,
namely, the Canon law of that Church.
In the well known work of Bouscaron on Canon Law, Part
V relates \o marriage. According to Canon 1012 it is impossible
for a valid contract of marriage between baptized persons to exist
"without being by that very fact a sacrament".
It has been
described as a sacred contract. Canon 1020 urovides that a uasfor who has the right to assist at the marriage shall carefully
(1) l.L.R. 32 Cal. 187.
(2) J.L.R. 54 Born. 288.
1.32
SUPREME COURT REPORTS
[1973) 2 S.C.R.
investigate whether there is any obsta.cle to the celebration of the
marriage.
Among other things he must ask both the man and
the woman broacuy whether they are under any illlpeaiment.
Canon 1035 lays down that all persons who are not prohibited
by Jaw can contract marriage. Any impediment, it is stated in
this booK at page
4~2, may be broa.d1y defined as a
circumstance which renders a marriage either illicit or invalid.
This is followed by classifica1tions of impedimencs. . Numoer 7
among them is dispensable or non-dispensable, according as it
can or cannot be removed by dispensation. In Canon 1040
which rela1tes •O dispensations it is stated at page 499 that a
dispensation is a relaxation of law in a particular case. Canon.
1076 pro·11des that in the direct line of consanguinity, tnamag.i
is invalid between all the ancestors and descendants.
In
the
collateral line, it is invalid up to the thi1d degree. It is common
ground that the consanguinity between the parties to the marriage
in the present case is of the second degree and therefore it was
an impediment in the way of the marriage under the Canon
law. It is, however, not disputed that dispensation can be granted in case of consanguinity in the second degree ( vide Canon
1052) by the appropiiate authorities of the Church. The only
case where dispensation cannot be grllll'ted is where the impediment is of the first degree which is an absolute bar Canons 80
to 86 deal with dispensations. Th,e general principle 1111derlying
dispensation is "He who makes 1the law can dispense from the
law; as can also his successor or superior and any person to
whom any of these mav t(ive the faculty". In Manual of Canon
Law by Fernando Della Rocca of the University of Rome,.
it is stat~ at page 61 that the obligation of observing the law
ceases by reason of exemption properly so called obtained by
privilege or dispensation.
The question is whether after dispensation has been granted
by the competent authority of the Roman Ca:tholic Church the
parties who are within the prohibited de-gree of consanguinity can
still be regarded as within tho~e degrees.. The prohib~ion in the
matter of marriage beltween 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 thLt per se is an imoediment to mar•
riage but under the Canon Law itself it is dispensable and can
be removed by dispensation. After dispensation it eannot be
said that under the Canon Law any impediment or prohibition
exists. The pa:rties 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 ground No. 2 in s. I 9
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does not contemplate or envisage the removal of the prohibition
by. a particular authority doing a particular act, namely, dispensauon 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 paJties 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 rnlemnization of the marriage were within the prohibited degree of consanguinity. In our judgment once dispensation is g1anted by the
appropriate authorities the parties cannot be re~arded under the
Canon !aw as being within the
prohibited degrees
with
the
result that ground No. 2 in s. 19 cannot be ayailed 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.O. 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 parties'belone;ed 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 Clergvman 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. Theodoras Lucas(') the earlier
decision in Lopez v. Loriez(I) was referred to and followed. Our
attention has not be.~n drawn by the learned counsel for the appellant to any contrary decision and we consider that the law was
correct'y enunciated in Looez v. Lonez ( 1) on the effect of dispensation which held the field for all these years on the question
that once disnensation has heen obt~ined from 'the appropriate'
authorities of the Rom~n Catholic Church a marriaee between
the oart;.~s who are within the nrohibited de•r~P-S of consanouinity
is not null and void and no decree for nullifv can be granted
under s. 19 of the Indian Divorce Act in such cases.
For the ahove reasons the anpeal fails and it i~ dismissed. The
parties are left to bear their own costs in this Court.
K.B.N.
Appeal dismi&sed.
(l) I.L.R. 12 Cal. 706.
(2) l.L.R. 32 Cat. 187.