JUDGMENT
John Bucknill, J.
1. This was a suit purporting to be a matrimonial suit entered as No. 3 of 1922 brought by one Adelaide Christiana Lish asking that this Court might be pleased to declare that her manage with one Charles Lish on the 10th July 1916 was “a perfectly valid and lawful marriage;” she does not ask for any other relief except the usual formal alternative prayer that the Court might be pleased to grant such other relief as it might think fit and proper. Now, it is not here necessary for me to dilate upon the circumstances in connection with which this litigation was commenced. It is, I think, sufficient to state that they appear to be unusual; the plaintiff having, apparently, first married one Thomas Lish in 1868, then one Horace John Wilson in 1894 and, finally, Charles Lish in 1916. This Charles Lish was, it is said, a brother of her first husband. All these gentlemen are deceased, having died respectively in 1890, 1902, and 1917. The question which has, of course, at once arisen is as to whether a suit of this kind can be brought in this Court. Now, the earned Counsel for the plaintiff has argued with much ingenuity that, by virtue of Clause 27 of the letters Patent constituting this High Court of Judicature (i.e., that of Patna), which were dated 9th February 1916, it would appear that a suit of this nature can be instituted in this High Court. This clause of the Jitters Patent runs as follows:
And We do further ordain that the High Court of Judicature at Patna shall have jurisdiction, within the Province of Bihar and Orissa, in matters matrimonial between Our subjects professing the Christian religion : Provided always that nothing herein contained shall be held to interfere, with the exercise of any jurisdiction in matters matrimonial by any Court not established by letters Patent within the said Province, which is lawfully possessed of that jurisdiction.
2. Now, it is obvious that the first point which has to be considered is as to what is meant by the phrase “matters matrimonial” and, I think, it is possible that if these words were to be construed in their widest conceivable meaning, it may be that they might cover jurisdiction over a suit asking for a declaration that a marriage was valid. The earned Counsel refers here to what may be termed the matrimonial matters within the jurisdiction of the Probate, Divorce and Admiralty Division of the High Court of Justice in England. That Court under its jurisdiction (which that Division inherited from the Court of Divorce and Matrimonial Causes) was entitled to pronounce decrees in connection, amongst other matters, with the dissolution of marriage; the nullity of marriage and the establishment of the legicimacy and the validity of marriages. The earned Counsel for the plaintiff suggests that when the first Supreme Courts were established in India (namely in Calcutta) they possessed a similarly unrestricted jurisdiction in connection with matrimonial questions and under which there could have been rightly entertained a suit for a declaration that a particular marriage was legal and valid. He points out that by Clause 35 of the letters Patent of 1865, under which the High Court of Judicature at Fort William in Bengal was re-established (which, whilst revoking previous Letters Patent of the year 1862, continue that High Court), it was declared that the High Court of Judicature at Fort William in Bengal should have jurisdiction within the Bengal Division of the Presidency of Fort William “in matters matrimonial between Our subjects professing the Christian religion.” The earned Counsel urged that at that date it was probable that there existed in that High Court an unrestricted matrimonial jurisdiction and that at that date a suit, such as the present one brought in this Court, could have been there entertained. However that may be, the Indian Divorce Act (IV of 1869) clearly altered the position as to jurisdiction so far as High Courts established prior to the date of the enactment are concerned. This Act, which came into operation on the 1st April of 1869, declared in its preamble that it was exepedient to amend the law relating to the divorce of persons professing the Christian religion and to confer upon certain Courts jurisdiction in matters matrimonial and it proceeds later to define the nature of those matters which are to be regarded as matrimonial and in respect of which Courts are to have jurisdiction. In Clause 4 it is laid down as follows:
The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise except so far as relates to the granting of marriage licenses, which may be granted as if this Act had not been passed.
3. It is not contended here (indeed, it is a matter of common ground) that there is nothing in the Indian Divorce Act which definitely contemplates that a suit asking for a declaration of validity of a marriage comes within its purview. My attention has, however, been tentatively drawn to Section 7 of the Act which reads thus:
Subject to the provision contained in this Act the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules Which, in the opinion of the said Courts, are, as, nearly as may be, conformable to the principles and rules on which the Court for divorce and matrimonial causes in England for the time being acts and gives relief.
4. This section, however, to my mind merely indicates the principles upon which the Courts shall generally act and in no way enlarges the scope of the jurisdiction as defined in those sections of the Act where jurisdiction is expressly categorized; It is, I gather, admitted that had the letters Patent establishing the Patna High Court been promulgated in the year 1868, there could have been no doubt whatever that its jurisdiction (whatever it may have been before) would have been delimited by this, Section 4 of the Indian Divorce Act: but it is suggested that as the letters Patent establishing this Court only came into effect in 1916, the words “matters matrimonial” as used in Clause 27, may be construed as contemplating a larger jurisdiction than that to which at any rate, High Courts existing prior to the Indian Divorce Act of 1869 were by that Act restricted. I have very little hesitation in coming to the conclusion that they cannot. In my view, although it is possible to read into the phrase “matters matrimonial” a very broad meaning, yet, when we find that that expression is identical with that used in the Indian Divorce Act, it is not unnreasonable to suppose that the meaning in both the Act and the Letters Patent should be properly construed as consonant and identical. For this reason, therefore, I think, that the jurisdiction of this High Court in matters matrimonial is only such jurisdiction as is comprised within the provisions of the Indian Divorce Act. The consequence of this view is that, in my opinion, this suit cannot be instituted in this Court.
5. The only case bearing upon the matter to which my attention has been drawn is that of Gasper v. Gonsalves 13 B.L.R. 109 decided by Pontifex, J., in 1874 and I see that it is referred to in certain text-books relating to the Law of Divorce in India as an authority. The suit in that case was for a declaratory decree that the plaintiff was a feme sole and not the wife of the defendant, and for an injunction that he might be restrained from asserting that she was his wife and from attempting to enforce as against her any right as her husband. The circumstances were certainly curious and it appears that the suit was undefended, nobody representing the reputed husband. The learned Judge seems, with some diffidence, to have come to the conclusion that it was not competent under the provisions of the Indian Divorce Act of 1869 for an individual to ask the High Court for a decree that her or his marriage was invalid on such grounds as were in that case sought to be put forward but only on the grounds directly prescribed in the Indian Divorce Act itself. I should add that the grounds in the case in question were, substantially, that the wedding ceremony had not been properly carried out, that no Civil Officer had been present at the marriage and that no notices thereof had been given in accordance with the requirements of the French Law as it existed at the Settlement of Chandernagore in which the marriage was solemnised.
6. A second question was raised as to which, however, I do not think that it is perhaps strictly necessary that I should express any definite opinion but which I do not like to leave entirely unmentioned in view of the fact that it was actually argued. It was at first suggested that it was not possible for a suit to be brought at all for a bare declaration of the validity of a marriage without an application for some consequential relief. The point, however, has really disappeared as a result of the argument and it is not now contended that, in view of the provisions of Section 42 of the Specific Relief Act, such suit is not maintainable before an appropriate tribunal even though the only matter in respect of which relief is asked is simply that a certain marriage may be declared as having been legally and validly contracted.
7. The result, therefore, in this case will be that the plaint will be returned for the purpose of presentation before the appropriate Court.
8. The defendant who has appeared, namely, David Lish, the first defendant, is entitled to his costs.