JUDGMENT
Young, J.
1. The petitioner, Alfred Robert Jones, of Bhim Tal near Naini Tal, by his sister, Miss Edith Jones, as his next friend, prays for a decree of nullity of marriage under Section 19(3) and (4), Divorce Act, and under Sections 4 and 5(1), Christian Marriage Act, for a declaration that his marriage to the respondent is void. To the issues formerly struck under the Divorce Act, Section 19, I have added, during the course of the hearing, two other issues under the Christian Marriage Act, namely, No. 7: ”Was the alleged marriage solemnized according to the rules, rites, ceremonies and customs of the Church of Rome ? (8) Was Father Livesay authorized to perform the ceremony of marriage ?”
2. Issue 1 is: “Has this Court jurisdiction to try this suit ?” There can be no doubt that by Sections 4 and 19, Divorce Act, this Court has jurisdiction to hear the petition in so far as the issues under Section 19, Divorce Act, are concerned, namely, “Was the marriage null and void on the ground of the petitioner being an idiot at the time of the said marriage ? and, secondly, “Was the said marriage null and void on the ground that the petitioner’s consent was obtained by force or fraud ?” The difficulty arises concerning the jurisdiction of this Court to hear the petition based on the Christian Marriage Act. It is contended by counsel for the respondent that Section 4, Divorce Act, confines the jurisdiction of this Court to petitions under the Divorce Act. Section 4, Divorce Act, reads as follows:
The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro and 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.
3. It is argued that because of the. terms of this section the High Court is prohibited from considering questions arising under the Christian Marriage Act, and that therefore there is no jurisdiction in this Court to decide whether there has been a valid marriage in accordance with the Christian Marriage Act. There is little authority on this question. Counsel for the respondent relied upon a decision of a single Judge in the Calcutta High Court in Gasper v. Gonsavas (1874) 13 Beng LR 109. That learned Judge decided that the High Court had jurisdiction in a matrimonial suit only under the Divorce Act, and therefore it had no jurisdiction to hear a petition praying for a declaration that the marriage was invalid under the Christian Marriage Act. This case however was decided ex parte. The matter was considered in another case in the Calcutta High Court, Lopez v. Lopez (1886) 12 Cal 706 (F B). The Court however in that case did not decide this question as it was unnecessary for the decision of the case. The matter was further considered by a single Judge of the Lower Burma Chief Court in Consterdine v. Smaine (1918) 47 IC 544. The learned Judge decided that. the Court had jurisdiction. The Christian Marriage Act became law three years after the Divorce Act. The Divorce Act must have been within the knowledge of the legislature. It is therefore difficult to argue that the High Court had no jurisdiction to decide the very important questions which must arise out of the Christian Marriage Act. If that were so, the Act would be dead. The various grounds on which the Court can give a decree of nullity in the Divorce Act refer to cases where there has been a marriage validly performed Questions arise under Sections 4 and 5, Christain Marriage Act, when the marriage has not been validly performed. There is a clear distinction between a decree of nullity of a valid marriage and a declaration that the marriage itself is illegal and void. There can in my opinion, be no doubt that there is jurisdiction in the High Court to hear and decide questions under the Christian Marriage Act.
4. With regard to the other issues it would be convenient to set out the facts of the case as found to me: The petitioner, A.R. Jones, is 54 years of age. His father and mother were Europeans domiciled in India. He lives upon the estate of his married sister in Bhim Tal near Naini Tal. His father and mother were first cousins, and he was born when his mother was 47 years of age. While his mother was pregnant she indulged freely in alcohol and on several occasions she was insensible from the effects of it. The result of these unfortunate circumstances was that Jones was a puny delicate baby and soon showed that his brain was affected. He has throughout his life been feeble minded. He was incapable of being educated except to a minor degree, and has always had to be carefully looked after by his relations. He has never been able to earn his living in any capacity. His appearance is peculiar and abnormal. His head is microcephalic. As is usual in persons of his mentality his sexual side is normally or even abnormally developed, 25 years ago he commenced a spasmodic sexual relationship with the respondent, an Indian woman now of some 40 years of age of the Kanera caste, that is, a low caste classed as untouchable. Her Hindu name is Titli (English Butterfly), her Mahomedan name is Rahiman, and her’ Christian name is Tereza. The relationship between the petitioner and the respondent up to the time of marriage was the ordinary relationship of a man with a bazar prostitute. The relationship was clandestine, and Jones used to meet the respondent in her house or in the jungle. The woman herself says that she has been married first of all to a low caste Hindu, and on his death to a Mahomedan. In order to marry the Mahomedan she says she became a convert of Islam. The evidence if she did in fact marry these two Indians of the death of her first husband is very unsatisfactory. On the other hand, I am not satisfied that proper marriages were celebrated. It may well be that she was merely in the position of a kept woman. Her first husband, the Hindu, abandoned her, according to the evidence of her brother, because she was visited by other men as well as by the petitioner. After the relationship with the Mahomedan terminated she recommenced her relationship with the petitioner.
5. In the month of September 1930 the idea of marriage between Jones and the respondent arose. The respondent says that Jones asked her to marry him, and that he arranged with Father Livesay, a priest of the Roman Catholic Church who has a mission chapel at Bhowali, to convert her to Roman Catholicism, baptise her into the Church, and subsequently marry her to him. The petitioner, on the other hand, says that the relative of the woman threatened him saying that if he did not marry her, it would be bad for him, and it was through fear of these relatives that he went through the marriage ceremony. Father Livesay took this woman into his compound, gave her some little instruction in the tenets of his faith, and eventually received her into the Roman Catholic Church by baptism. Father Livesay had the audacity to compare Mst. Titli with St. Mary Magdalene, but no light from heaven shone round her on her conversion: she was dazled by the prospect of providing for her old age by marrying a half-wit sahib whom she thought to be wealthy. To obtain a man to support her she had already some years ago been converted into Islam. She is no doubt equally prepared to embrace any religion for the same purpose. She cannot be blamed too much. Her knowledge of the Christian faith, or of Roman Catholicism, reflects little credit on her teacher. She crossed herself very devoutly on taking the oath, but she knew little or nothing of the history or purpose of the Founder of the Christian religion. On being asked if she had ever heard of the Pope she replied. “I know Pope sahib: he is the Bishop in Allahabad.” Her teaching must have been very perfunctory, for she was an intelligent catechumen.
6. Father Livesay is a European Roman Catholic priest of British birth. He went to Bhowali in 1926 and lived there with his mother, and there he built a Roman Catholic Chapel. He and his mother, who has recently died, were people of substantial means. Being a secular priest as distinct from a regular or. religious priest or member of a religious brotherhood, Father Live-say is entitled to hold property. He has carried on the business of a money lender in the Bhowali and Bhim Tal districts in conjunction with his profession of a priest. In two instances he has lent large sums of money to members of his congregation on the security of mortgages on their property. The loans were not repaid and thus he became the owner of two estates in that district. In one case he behaved like any Agha from the Punjab and assaulted one of his congregation, a lady to whom he had lent money because of a dispute concerning the loan. According to his own evidence, he has had several cases before the Magistrate at Naina Tal in connexion with Ms money-lending business, and he was in the matter alluded to above convicted by the District Magistrate of Naini Tal of assault. Father Livesay is hardly the type of man one would expect to find as a priest in Holy Orders, and it is undoubtedly due to the character of this priest that this case has come before the High Court.
7. When the petitioner and the respondent approached Father Livesay with regard to the marriage Father Live-say saw the petitioner and talked to him. He realized, according to his own evidence, that Jones was a feeble minded man with the mental capacity of a child. He says it was obvious that the petitioner required a nurse and he thought Mt. Titli would be suitable. He knew that the woman was an Indian woman of low caste and a bazar prostitute. He knew from her statement to him that she had been twice married before. He never took the least trouble to ascertain whether her previous husbands were dead. He himself says that he was under the impression that there never had been any previous valid marriage and she had been in the position of a kept woman. For that reason when he came to register the marriage he registered her as a spinster and not as a widow. He admits he deliberately did everything he could to keep the marriage secret. It was a mixed marriage between a Roman Catholic and a Protestant. He knew that in the case of a mixed marriage there was an absolute rule of his Church that a dispensation from the Bishop was essential. He knew that the publication of banns on three consecutive Sundays or holy days, and that an interval of three clays between the last publication of the banns and the celebration of the marriage were necessary. He knew that if he did not have due publication of the banns, for any valid and urgent reason, he had to obtain a dispensation from the Bishop.
8. Father Livesay contrary to these rules of his Church which were well known to him, and for no urgent reason, called the banns of marriage on Sunday 9th October 1930 at the early morning Mass in the presence of a congregation consisting only of his own relatives and friends who were staying in his house and his servants who lived in his compound. The place where the parties lived and were known was five miles distant from the church. He deliberately failed to approach the Bishop for either of the dispensations necessary, and on the morning of the 10th October he baptized the respondent into the Catholic Church and on the same afternoon, the church door being locked performed the ceremony of marriage. The petitioner and the respondent separated at the church, the petitioner going back to his home where he was under the care and protection of his sister, the respondent returning to her home in the bazar. About a fortnight later the petitioner went to the respondent’s house and stayed the night with her. The Roman Catholic Bishop of Allahabad has given evidence in this case, and he has said that if he had been told the facts as given above after struggling hard not to do so by -Father Livesay, and had been satisfied that they were true he would never, if asked, have granted a dispensation.
9. It is therefore clear that if Father Livesay had performed his duty as a priest, this marriage would never have taken place. Mt. Titli’s motive in marrying the petitioner is clear, but not so the motive of Father Livesay in celebrating the marriage. Why did he enact this cruel farce ? Why did he deliberately make a mockery of two of the sacraments of his faith: Baptism and Marriage ? His motive was not the desire to add another convert to his meagre congregation. That his motive was dishonest there is no doubt, and the roots of it may well have lain in his money-lending business. The Jones’ estate was a desirable property; two other estates belonging to members of his congregation had already fallen into his maw; Naboth’s Vineyard was still outstanding. He has already lent nearly Rs. 1,000 to the respondent and taken a document from her-what sort of document we do not know-as security for the loan. The mistake which I think Father Livesay and Mt. Titli made was in thinking the Bhim Tal estate either belonged to the petitioner or would be inherited by him.
10. Issue 3 is: “Was the marriage null and void on the ground of the petitioner being an idiot at the time of the said marriage ?” On this issue the petitioner’s sister, Miss Edith Jones, has been called and she gave evidence as to thee history of the petitioner. Capt. Aitchison, the Civil Surgeon of Allahabad, and Dr. Rahmat Bhai Siddiqi, L.M.P., Sub-Assistant Surgeon, have also been called. Capt. Aitchison, who has taken a great deal of care in this case, had the petitioner, Jones, under observation for some considerable time in Allahabad. He subjected him to the well-known Benit Simon tests. His conclusion is as follows:
His intelligence is that of a child. To maintain attention is difficult. There is inaccuracy of memory and extreme suggestibility. Ho appears to be very impulsive; a little more hasty than the average person. My final diagnosis is that this is a case of amentia amounting to idiocy in its more minor forms and is definitely more than feeble mindedness.
11. He further says that he would class Jones as equivalent in brain power to a normal child of six years. He says that he is a typical text-book picture of a micro-cephalic type of idiot, i. e., small head, large sticking out ears, and what is generally termed a monkey face. He says that the man is incapable of entering into a contract of marriage or any contract, and that he is clearly incapable of managing his own affairs. Dr. Siddiqi arrives at the same opinion. He knew the petitioner in Bhim Tal and had attended him as a doctor. He says that the petitioner is suffering from amentia or congenital idiocy and that he is incapable of managing his own affairs. The petitioner himself was put in the box and gave evidence. It was obvious to me that he is not normal and that he has the mentality of a child. He understood however the nature of an oath and I allowed him to be sworn. I did not think it wise however to allow him to be examined by counsel in the ordinary way. I am quite satisfied that if he had been so examined, his evidence would have been useless. I therefore examined him myself, and found that if he were put at his ease and not frightened, he could answer simple questions and give sensible replies. He was in the box under examination by me for over an hour and I had ample opportunity of forming an opinion as to the state of his mind. At the end of his evidence I gave an opportunity to counsel to ask him any question, but very wisely neither counsel took advantage of this. I have considered the. very careful evidence of the doctors; but their evidence I can use only as a guide. It is not conclusive. I have to form an opinion myself. I am satisfied that the petitioner is feeble minded and that he has the intelligence of a child of about 8 or 9 years of age. I do not think that it can be said that he is an idiot within the meaning of Section 19(3), Divorce Act, which classes lunatics and idiots together. I think an idiot in law, means something more than this. An ordinary child of 8 or 9 years old could not be termed an idiot, and equally I do not think that a man of 54 with the mentality of such a child can in law be termed an idiot. I therefore decide this issue in favour of the respondent.
12. Issue 4: “Was the said marriage null and void on the ground that the petitioner’s consent was obtained by force or fraud ?” To this issue I added: another sentence namely, “Did the petitioner consent to the said marriage ?” The direct evidence of force of fraud on the part of the respondent or her relatives or Father Livesay is very small. The petitioner himself says that the brother and nephew of the respondent threatened that if he did not marry this woman, “it would not be good for him,” and that he therefore married her through fear of assault. I believe every word of the petitioner’s evidence. His mind is too undeveloped for successful lying. I believe him when he says that there was this threat, but I am not satisfied that the threat alone induced him to go through the marriage ceremony with this women. He says that he did not complain about the threats to anyone, and he had ample opportunity to tell either his sister or Father Livesay. He told neither. There is a very great burden on the petitioner to show that a marriage if otherwise valid ought to be upset by duress. I have grave suspicion as to this part of the case, but I do not think the petitioner has discharged that burden. As to fraud, no particulars were pleaded in the petition and the evidence is practically nil. It is said by the petitioner that he was told by the respondent’s brother that as he had made the woman lose her caste, he must marry her. This would be a misrepresentation, as Mr. Titli had then no caste to lose, but it is well settled that misrepresentation inducing consent to marry cannot upset a marriage. The position in law is that the party imposed upon must be deceived to such an extent that there is in reality no consent at all to the marriage. This is not the case here. With regard to the third part of this issue-whether the petitioner consented to the marriage-I am satisfied that there was no consent in law by the petitioner. As I have recorded above the petitioner has the mentality of a child of 9. All civilized countries, as well as the Canon Law of the Roman Catholic Church itself, have clearly laid down a minimum age as the age of consent in marriage. Neither in the Roman Catholic Church, in England, or in India, could be said that a child of 9 years could consent to a marriage, the reason being that it is considered that a child of such tender years could not possibly know what the relationship of marriage meant. Although Jones is 54 years of age, he has in fact the mentality of a child and therefore, in my opinion, he is incapable of giving his consent and thereby contracting a valid marriage. While, therefore I decide the questions of fraud and force in favour of the respondent, I decide the question of consent in favour of the petitioner.
13. Issue 2. “Was the marriage of 10th November 1930 performed by the Rev. Father Livesay at Bhowali a valid Christian marriage? Was the said marriage performed according to the rules, rites, ceremonies and customs of the Church of Rome and was Father Livesay authorized to solemnize the said marriage?” First as regards the question whether the marriage was performed according to the rules of the Roman Catholic Church. The evidenceis that of Father Livesay himself and of the Lord Bishop of Allahabad. Father Livesay confessed that the rules of his Church make two dispensations from the Bishop necessary in this case: one for a mixed marriage, the other for a marriage without due publication of banns. He himself says that neither of these dispensations were obtained, and that the banns were only called once on the morning before the wedding. Father Livesay I am compelled to say was a most unsatisfactory witness. The truth had to be wrung out of him. He had on several occasions to be warned that he had taken an oath which apparently meant nothing to him. He is a master of shifts, evasions, and half truths, and has not hesitated, when he thought it safe, to lie. The evidence of Father Livesay is confirmed by that of the Lord Bishop-of Allahabad. The Bishop said that there ought to have been two dispensations in this case, one for dispensing with the banns and the other for a mixed marriage. Further he said that if banns were published they must be on three consecutive Sundays, and an interval of three days before the celebration of the marriage must elapse after the last publication of the banns. It is true the Bishop went on to say that although this marriage, carried out as it was in complete disregard of the rules of the Church, was gravely unlawful, it would nevertheless, according to the Canon Law of the Roman Church, be valid. This is a distinction unknown to civil law. There was every element of clandestinely about this marriage. Public policy demands the utmost publicity before a marriage can be performed. The Christian Marriage Act makes it clear, in cases where marriages are performed by persons other than those who have received episcopal ordination, that the greatest publicity must be accorded to intended marriages. This is necessary in order that any impediment to a marriage may be revealed and that everyone who is interested may be informed of it. A clandestine marriage has always been abhorrent to the law. Section 5, Marriage Act, in the case-of an episcopally ordained person does not insist on these precautions. The reason is that the Churches there enumerated have themselves evolved stringent rules as to publication. According to Section 5, any person who has received episcopal ordination,
provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church,
may solemize marriage. Section 4 provides that any such marriage solemnized other than in accordance with the provisions of Section 5 shall be void. It is clear therefore that any marriage not solemnized according to the rules of the church is void. It has been contended by counsel for the respondent that the rule of law in England, which by Section 7, Divorce Act, must be taken as a guide by the Indian Courts, is that the non-publication of the banns is only a ground of declaring the marriage void if the lack of due publication is within the knowledge of both the parties to the marriage. The English law as regards this is no guide to an Indian Court. The English decisions on this point are based on the wording of the Marriage Act in England (4 Geo. 4, C. 76, Section 22), which provides that where persons
knowingly and wilfully intermarry without due publication of banns the marriage is void.
14. The English Courts have held that the words “knowingly and wilfully inter-marry” mean that both the parties to the marriage must have knowledge of the lack of publication. There is nothing equivalent to these words in the Christian Marriage Act. It is strenuously argued by counsel for the respondent that I must in this case consider the Canon Law of the Roman Church and apply it. He contends that the Canon Law which declares this marriage “gravely unlawful but valid” is a “rule” of the Church within the meaning of Section 5. I have not been referred to any authority on this point and I know of none. It is impossible so to construe the section. No civil lawyer could interpret or follow the Canon Law. In the early Middle Ages the Bench was occupied by the clergy; if the Canon law had to be applied by the Bench now, the clergy would again have to interpret and administer it. In this case, for example, no civil lawyer could understand the proposition that a marriage was “gravely unlawful, but valid.” This which appears to a civil lawyer to be a contradiction in terms presents no difficulty to the Canon lawyer. Again, in this case, if I had to follow the Canon law, both parties having been baptized and the sacrament of marriage celebrated, I would have to apply the principle of Canon Law 1118: “Whom God has joined together let no man put asunder.” Thus I would most reluctantly have been constrained to hold this marriage valid on the ground that God had joined together this weak-minded European and this Indian prostitute. On the other hand, if the petitioner had not been baptized, the Canon law would not hold these two to have been joined together by God though a priest had celebrated the sacrament, and I could then have declared the marriage invalid. No doubt these laws are clear to the Canon lawyer, but the civil Courts would have great difficulty in understanding, construing and administering them. They appertain to faith rather than the law and must be left to the Church. I have only to interpret the civil law as enacted by the Christian Marriage Act. “Rules” in Section 5 refer to those things which must be done before the ceremony of marriage can be performed. The section deals only with the necessary preliminaries to the ceremony, the ceremony itself, and the person who performs it. It has nothing to do with Canon law. This marriage has not been solemnized according to the rules of the Roman Catholic Church, and therefore it is void.
15. After having arrived at the above conclusion, it is clear to my mind that Father Livesay was not authorized to solemnize the marriage. Section 5 of the Act exempts an episcopally ordained person from the ordinary rules of marriage set out in Section 12 and onwards in part 3, Christian Marriage Act. A person who has received episcopal ordination is authorized to solemnize marriage provided that the marriage be solemnized according to the rules of his church. In this case almost every essential rule of the Church has been delebrately broken, and therefore in my opinion Father Livesay was not an authorized person within the meaning of Section 5 of the Act. From this point of view too the marriage must be declared void. It is unnecessary to decide issue 5 in the case in view of the above findings. The petitioner is entitled to a decree of nullity of marriage on the ground of lack of consent ‘and to a declaration that his marriage is void. I direct that a copy of this judgment be sent to the Lord Bishop of Allahabad for his information. The petitioner under the order of the Court provided for the costs of talking the evidence of Mrs. Livesay, mother of Father Livesay. Mrs. Livesay is dead. I therefore direct that the costs given to the respondent for this witness should be returned to the petitioner.
