CHAPTER-V

CONCEPT OF VOIDABLE AND IRREGULAR

MARRIAGE UNDER OTHER PERSONAL LAW IN INDIA

A: Parsilaw:

The Parsi community is a comparatively small and compact

one. But it is a socially advanced one. Most of them are residents
of Bombay but they have spread all over the country for business
purposes.

They came to India from their original home Iran-Persia in

about 717 A.D. and are followers of the Zorastrain religion who is
said to have lived over ten centuries before Christ. They have
their revealed book zinda-avesta. As characteristic of the east
their law and religion have got mixed up. They are popularly
called ‘fire-worshippers’ but revers other natural manifestations
of the deity. They revered the cow, practiced ahimsa to cattle and
were a peaceful people. They adopted the marriage customs of the
Hindus with whom they mingled after setting in this country.

Though originally cultivators, they took to other pursuits as

well and being an enterprising and hard working community
made rapid advances in all professions and calling that they
followed.

Parsi marriage:
A Parsi in one bom of Parsi parents and is a follower of the
religion of Zoraster. The Zorastrain religion did admit and enjoin
conversion marriages were originally confined to parsis on pain of
ex-communication. Latterly, the mle has got relaxed and while
males could marry outside, there is still a strong objection for a
Parsi woman marrying a non-Parsi male.
Parsis resemble Hindus in their observances of religious
rites and ceremonies. They have ‘Navjof corresponding to the
investiture of sacred thread among Hindus. They also worship
their ancestors by performing annual shradha ceremonies. They
practice strict monogamy.
However being an advanced and enlightened community
they effected suitable social reforms by having a legislation
passed even as early as 1865.

Background of the Parsi Marriage:

It may be remembered that a sizeable number of an old race,

following zoroastrain religion (Zoroaster was the Persian founder
of Zoroastrianism in 6 or 7 century B.C.) and residing at Persia
(now Iran) migrated to India as refugees. Subsequently those
people made India their homeland. They followed their customary
law about marriage. In the absence of any statutory law on these
points embracing this community within India, it expressed its
desire to have a codified law. A committee of the Parsi law
Association drew an inspiration from the Matrimonial causes Act,
1858 of England and drafted the Bill on the basis of which the
Parsi marriage and Divorce Act, 1865 was passed. This explains
the judicial observations that the Parsis are, as a general rule,
governed by the English common law. Incidentally, this, Act was
the second statutory matrimonial law in British India; the first
being the Hindu widow remarriage Act 1856.
 Subsequently, the circumstances changed. There has also
been a change in the sentiments and views of the Parsi
community. So the Parsi central Association took up the matter in
1923 and appointed a sub-committee to suggest amendments. The
report of the sub-committee was circulated among the members of
the community including Bombay Parsi panchayat. The
Panchayat trustees also made important suggestions. The leading
members of the Parsi community like Sir Dinshaw E. Wacha and
Sir Dinshaw F. Mulla approved the draft Bill. It was how the
present Act came into being in 1936, section of 52 of the 1936
Act lays down that the provisions of this act shall apply to all suits
to which the same are applicable whether the circumstances relied
on occurred before or after the passing of this Act. Where any
proceedings were pending when this Act came into force, the
court was to allow amendment of pleading necessitated by this
Act. In 1988 the Act was again amended substantially mainly to
streamline the procedures as also to include a few more grounds
for matrimonial reliefs to suit the changed time and situation.

Conditions of a valid marriage1

(a) The contracting parties must not be related to each other

in any of the degrees of consanguinity or affinity set forth
in schedule I to the Parsi marriage and Divorce Act, 1936
(b) “Ashirvad” ceremony has to be duly performed. This
“Ashirvad” ceremony is performed by (i) a priest (ii) in
presence of two Parsi'witnesses other than that priest.
(c) Until 1988 amendment the law was that if any of the
parties had not completed the age of 21 years, consent of

1 Section 3 of the Parsi marriage and Divorce Act 1936

 his or her father or guardian would be necessary for a
valid marriage. The 1988 amendment of the Act brought
this statute at par with other codified matrimonial statutes
of the country. Now the condition of a valid marriage is
that the bridegroom must have completed the age of
twenty one and the bride eighteen years at the time of
marriage.
(d) If a Parsi during continuance of the previous marriage
again the latter marriage will be void. The priest
solemnizing such latter marriage knowingly and willfully
is also liable to be punished.
(e) Every marriage shall immediately on solemnization
thereof be certified by the officiating priest in a particular
form and there after it will be registered by the Registrar.
If the priest neglects to do so, he is liable to be punished
of course; an entry in such register is not in itself one of
the requisites for a valid marriage. Where there is no
certificate and no entry in the marriage register, any other
relevant evidence is admissible to prove the marriage
having taken place.

Suits for Nullity:2

In a case in which consummations is impossible from any

natural cause, the marriage itself, at the instance of either party,
may be declared a nullity. For, the consummation requires an act
of sexual intercourse which is natural and complete. This view
finds support in the case of Grimes v. Grimes.3

2 The Parsi Marriage and divorce Act, 1936 section, 30

3 flQ4Jn 1 All. U K 147
 After a decree of nullity is passed, the parties may marry
again. But they must wait till the time of appeal is over (under
section-47, three months after the date of decree). If the appeal is
preferred in the meantime then the parties have to wait till the
appeal is disposed of.

There is no provision of concept of voidable marriage

under the Parsi marriage and divorce Act, 1936

A Parsi husband or wife can not remarry in the life time of

his wife or husband until his or her marriage is dissolved by a
competent court although he or she may have become a convert to
any other faith. It shows the strict monogamy in Parsi marriage.
Every marriage contracted contrary to the provisions of section-
4(i) shall be void. If a Parsi, in violation of that section, marries
again in the life-time of his or her wife or husband before the
dissolution of earlier marriage by a competent court, he or she
shall be punished under sections 494 and 495 of the Indian penal
code. Marriage certificate is required under section 6 but the
certificate is not in itself the requisite of a valid marriage amongst
the Parsis. Section 17 states that the marriage of Parsi is not
considered invalid merely because the provision of section 6
(entry in a register) are not complied with. Where there is no
marriage certificate and no entry in the marriage register (section
6-12) any other relevant evidence is admissible as proof of the
marriage having taken place.4 The register of marriage, however,
is evidence of the truth of the statements contained herein
(section-8), and non compliance with requirement of section 6
results in penalties. Section 12 prescribes penalties for the priest

* Rfli Awaahai v K'hnHnrfsiH ArHpshpr 7.7. Ttam.T. R 01^

neglecting to carry out the requirements of section 6. section 14
prescribe penalty for making a false certification section 15 lays
down penalty for registrar failing to make necessary entry in the
register pursuant to section 6. Section 16 prescribes penalties for
secreting, destroying or attesting the register. It seems that
through violation of section 6, the Parsi marriages are not void but
its effect may be equal to fasid marriage as prevailed in Mohd.
Law or irregular marriage prevailed in old Hindu Law. Except
this, there is nothing in Parsi Law about voidable or Fasid
marriage.

B Christian Law:

It has already been noted that the Indian divorce Act, 1869,
is nothing else but a divorce-supplement to the Indian Christian
marriage Act, 1872. Both the Acts claim application to cases
where only one of the parties is a Christian, besides those where
both are followers of Christianity of course, the Indian divorce
Act does not refer to any particular form of marriage.

The Indian Divorce Act, 1869 deals with dissolution of a

Christian marriage. These two Acts thus should be read together
treating the Indian Divorce Act, 1869 as a supplement to the
Indian Christian marriage act, 1872. As both the Acts were
considered out dated, the government referred the matter to the
law commission. In the 15th Report the law commission
recommended changes in these two Acts. The Ministry of Law
prepared a formal Bill accordingly but referred the matter again to
the law commission for electing public opinion thereon. The
commission obtained public opinion and submitted 22nd Report in
1961 for thorough revision of the existing Acts. Accordingly, a
Bill entitled the Christian marriage and matrimonial causes Bill
was presented in the parliament in 1962. However, when the
parliament dissolved, that Bill also lapsed. It has also been noted
that both the laws mentioned above are time- worn laws. Indian
legislature has modernized many other family laws on marriage
and divorce, but has left these Christians laws untouched. It is
interesting to note that the legislature intended the Indian courts to
‘act and give relief under the Indian Divorce Act in conformity
with ‘principles and rules’ followed by the courts for divorce and
matrimonial causes in England (vide section-7) But then, the
English matrimonial causes Act have since been overhauled quite
a number of times. The Principles currently followed by the
English courts on the basis of their thoroughly amended laws
cannot be fitted in with the aforementioned antiquated statutory
laws of India. This sometimes gives rise to awkward situations.
On this point the case of R.Hemlatha N.R.Satyanandan5 may be
cited. A Christian wife prayed for divorce in the district court of
warrangal on the ground of the husband’s cruelty and desertion.
Almost all the modem statutes incorporate these grounds for
obtaining divorce. The District court of warrangal also granted
divorce on these grounds. The special bench of the A.P. High
court pointed out that these two grounds entitled the wife to
obtain a decree for judicial separation only and as such a decree
for divorce could not be passed at all. On the other hand, in a
similar case Elveena v Gopal6 the court held a Christian wife

obtained a decree on the ground of the husband’s adultery and

cruelty. The full bench at Chandigarh simply confirmed the
5 AIR 1979 A.P. 1(SB)
6 atr 1070 p &• w 4 nmi
decree without making any discussion on the point contained in
section-10 of the Indian divorce Act that the adultery simplicity
by the husband would not entitle a wife to dissolution of marriage
though this is an important weapon in the hand of the husband to
get the marriage dissolved

Persons by whom the marriage may be solemnized: marriage

may be solemnized in India.

(1) A Minister of the church who has received Episcopal

ordination marriage is to be solemnized according to the
rules and customs of that church;
(2) A clergyman of the church of Scotland provided that such
marriage be solemnized according to the rules, rites,
ceremonies and customs of the church of Scotland;
(3) Any minister of Religion licensed under the Indian Christian
marriage Act, 1872 to solemnize marriage;
(4) By, or in the presence of a marriage registrar appointed
under the Indian Christian marriage Act;
(5) Any person licensed under the Indian Christian marriage Act
to grant certificate of marriage between Indian Christians.7

However, the Indian Christian marriage Act does not

specifically state that a marriage can be proved only in the manner
stated in section-5 or by production of a marriage certificate under
section 80. Admissions by either of the spouses of the fact of
marriage, evidence of eye-witness who were present during
marriage ceremony, subsequent conduct of the couple living as
husband and wife and the opinion expressed of conduct by

7 section -5 nf the Indian Christian marriane Act. 1872

persons who had special means of knowledge, are some of the
recognized modes of proof of a marriage. These may be admitted
in evidence to prove marriage. In a suit for declaration that the
marriage was not solemnized by any of the authorized persons
prescribed in section 5, the onus to prove it lies on the persons
•o

who pleads it.

In Mr.Titli v. Alfred Robert Jones89 the court held that the

section-5 refers to those matters which must be done before the

ceremony of marriage can be performed. It 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.
A mixed marriage celebrated by the Catholic Church otherwise
valid is not invalidated for want of banns.

CONDITIONS FOR A VALID MARRIAGE:

In a marriage between two persons, either or both being

Christian or Christians, the following conditions are to be
fulfilled.

(1) Time for solemnizing marriage: every marriage under

this Act shall be solemnized between the hours of six in the
morning and seven in the evening:

Exception-Provided that nothing in this section shall apply

to-

a. A clergyman of the Church of England solemnizing a

marriage under a special license permitting him to do so at

8 K.I.P. David V. Nilamoni Devi AIR 1960 Ori. 164

9 AIR 1934 All. 273
 any hour other than between six in the morning and seven in
the evening under the hand and seal of the Anglican Bishop of
the diocese or his commissary, or
b. A clergyman of the church of Rome solemnizing a marriage
between the hours of seven in the evening and six in the
morning, when he has received a general or special license in
that behalf from the Roman catholic Bishop of the Diocese or
Vicariate in which such marriage is so solemnized, or from
such person as the same Bishop has authorized to grant such
license, or
c. A clergyman of the Church of Scotland solemnizing a
marriage according to the rules, rites, ceremonies and customs
of the Church of Scotland.10

(2) Place for solemnizing marriage-

In the absence of special permit solemnizing a marriage

beyond the hours stated above will be an offence under section-
69. A clergyman of the Church of England is to solemnize a
marriage within the church unless (i) there is no church within 5
miles or (ii) he has special license to solemnize marriage outside
the church.*11

(3) One of the persons intending marriage shall give notice in

writing to the minister of Religion or the marriage
Registrar.12

10 Section-10 of the Indian Christian marriage Act 1872

11 section-11 of the Indian Christian marriage Act 1872
12 section-12 & 38 of the Indian Christian marriage Act 1872
 False declaration or false notice is punishable under section
66 of the Act.

(a) The minister of church or the marriage Registrar causes such

notice to be affixed in some conspicuous part of the church
or marriage Registration office, as the case may be. If either
party to the intending marriage is a minor, the minister shall
send a copy of the notice to the marriage registrar, who shall
affix it in some conspicuous place in his office and the
offices of other marriage Registrars of that District for
similar publication.
(b) The Minister issues a certificate of receipt of notice (not
marriage certificate) under section 17 and 24. Similar
certificate is also issued by the marriage Registrar under
section 41 and 50. the certificate is issued in the Form, vide
schedule II of the Act.
(c) If the intended marriage is not solemnized within two
months from the date of the certificate of the notice, no
person shall proceed to solemnize the marriage until a fresh
notice is given under section 26 and 52. if he does so, he
commits an offence under section-71

(4) When all the conditions are fulfilled the marriage may be
solemnized by the minister according to such form or
ceremony as he may think fit to adopt under section 25; and
by the marriage Registrar according to such form and
ceremony as he may think fit to adopt and also upon a
declaration made by each of the parties to the effect-4! do
solemnly declare that I know not of any lawful impediment
 why I, A.B., may not be joined in matrimony to C.D.” under
section 51.

In either case the marriage shall be solemnized in presence

of at least two witnesses besides the Minister or the Marriage
Registrar (section 25 and 51). It breach is an offence under
section 69.

(5) Non validation of marriage within prohibited degrees.

Nothing in this Act shall be deemed to validate any marriage
which the personal law applicable to either of the parties
forbids him or her to enter into (section 88)

NOTICE OF INTENDED MARRIAGE:

Section 12 provide whenever a marriage is intended to be

solemnized by a minister of Religion, one of the parties to the
intending marriage shall give notice in writing in the form
contained in schedule I of the Act to the Minister of Religion. The
minister of Religion shall cause the notice to be affixed in some
conspicuous place of the church. But if such minister is not
entitled to officiate in the marriage, he will either return the notice
or deliver it to some other minister, who is entitled to officiate
therein.

If the marriage is to take place in private dwelling the

minister of Religion shall forward the notice to the marriage
Registrar of the district, who shall affix the same in some
conspicuous place in his office. If there be more than one
Registrar, it will be sent to the senior marriage Registrar. The
marriage registrar or the senior marriage Registrar, as the case
may be, shall send copied of such notice to each of the other
marriage Registrars in the same district for publication in the
same manner.

The minister of Religion consenting or intending

solemnizing the marriage shall, on being asked, issue a certificate
in the form in schedule-II of the Act of such notice having been
given and of such declaration having been made. Such certificate
shall not be issued until or unless the expiry of 4 days from the
date of receipt of the notice and no lawful impediment is shown
against issuance of such certificate or no competent authority has
forbidden the issuance of such certificate. The certificate
mentioned in section 17 shall not also be issued unless one of the
parties to the intending marriage appears personally before the
minister who makes necessary declaration regarding the affinity
or other lawful hindrance to the marriage, age of the parties and
consent.

After the issue of the certificate by the minister the

marriage may be solemnized according to such form or ceremony
as the minister thinks fit to adopt. Such marriage has to be
solemnized in presence of at least two witnesses beside the
minister.

If the marriage is not solemnized within tw o months after

the date of issuance of the certificate, the certificate itself
including the proceeding (if any) thereon, shall be void and no
person shall proceed to solemnize the said marriage until new
notice has been given and new certificate thereof has been issued.

13 Section-17 of the Indian Christian marriane Act. 1872

CONCEPT OF NULLITY;

Section-4 of the Indian Christian marriage Act lays down

that the marriage is to be solemnized in accordance with the
provision of section-5; and that any marriage solemnized
otherwise is void.

The marriage among Indian Christians is to be viewed from

two stand points (i) the law of the land and (ii) the canon law.
When both do not coincide, the marriage performed according to
the law of the land governing the parties will make the marriage
valid and the offspring legitimate.

Under the canon law a marriage performed by a schismatic

priest where the parties to the marriage are Roman Catholics may
not be recognized as valid by the Catholic Church and the
offspring may be described as illegitimate. But such a marriage
would be perfectly valid under section 4 and 5 and consequently
the progeny perfectly legitimate.14

Section 77 of the Indian Christian marriage Act, 1872 lays

down that-whenever any marriage has been solemnized in
accordance with the provision of section 4 and 5, it shall not be
void merely on account of any irregularity 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) the notice of the marriage;

14 fJiinnamiithu v. Anthnni ATR 1960 Mad. 430

(3) the certificate or translation thereof;
(4) the time and place at which marriage has been solemnized;
(5) the registration of the marriage

No suit for nullity of a marriage lies under the Indian

divorce Act, 1869 except as provided in section 19 of that Act.

Petition for decree of nullity:

Any husband or wife may present a petition to the District

court or to the High Court, praying that his or her marriage may
be declared null and void.15

Grounds of decree:

Such decree may be made on any of the following grounds-

(1) that the respondent was impotent at the time of the marriage
and at the time of the institution of the suit;
(2) that the parties are within the prohibited degrees of
consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the
marriage with such former husband or wife was then in
force.16

Nothing in this section shall affect the Jurisdiction of the

High court to make decrees of nullity of marriage on the
ground that the consent of either party was obtained by force
or fraud.

15 section 18 of the Indian divorce Act.1869

16 section 19 of the Indian Divorce Act 1869
 Marriage may be proved by a witness who was present at the
time of marriage and by production of copy of the entry in
the marriage register. It is not necessary to prove that all the
ceremonies and forms were complied with at the time of
marriage.17

About other Christians and their marriages the Act is silent

about the age of the parties and some other matters. Hence for
Christian marriages in India as per section 7 of the Indian Divorce
Act, 1869, the age of consent will depend on the state of law in
England at the time of marriage.18 The child marriage Restraint

Act as amended by the child marriage Restraint (Amendment)

Act, 1978 is applicable to the Christian marriage India. In the
Christian system the prohibitions to marry are against certain
relations.19 According to Bible20 a Christian is not allowed to
marry the relations such as:

‘Mother, father’s wife (step mother), Sister, daughter, half

sister, grand daughter, aunt (father’s sister and mother’s
sister), aunt by marriage, daughter in law, brother’s wife,
wife’s sister (during wife’s life time), intermarriage with
the heathen and inter marriage with unbelievers’.

In England, a marriage is prohibited wherever the parties

/■) i

are the whole blood or half blood relations". In Christians

the prohibitions exist on the ground of prohibited degrees.
In Lopez v. Lopez it was said by the full bench of

17 George V. Thyer(1904) Ch 456

18 Gooda vs Goodal, A.I.R. 1933 All. 135
19 Gour, the Hindu code, pp.306-311
20 The System Bible study, p.8.
21 Bromley. P.M., Family law, Butterworths, London(1971) p.26
2212 Calcutta p.706
 Calcutta High court that they are to be taken according to
the customary law of the church to which the parties
belong. Thus it is obvious from the above discussion of
Christian law relating to marriage and it nullify that there is
nothing like voidable or Fasid marriage under Christian law
but still some irregularities exist in the law of Christian
which may be included as the grounds of irregular marriage
as indicated in other laws and not specifically indicated in
Christian law.

C. JEWS MARRIAGE:

JEW, WHO IS: A Jew is a person of the Hebrew race. The

subjugation of judaca in the reign of the Emperor vespasion
brought about the political annihilation of the Jewish nation. The
Jewish widely dispersed. Same of them ultimately domiciled in
India, largely in Bombay, Cochin and suburbs. From that date no
Jewish state existed until the second Great War ended, when
Israel was recognized as the homeland of the Jewish. In the
absence of any state or government for centuries there was no
Jewish state law or enactment. Of course, they had their personal
law based on Rabbinical code (Rabbins were Jewish authorities
on matters of law and doctrine, most of whom flourished between
the 2nd and 13th Century A.D.)

In England the statute de Jeudeismo, or Les Estatutes de

Jeverie (statutes of the Realm, vol. 1, p.221) probably passed in
1375, prohibited usury by Jews and compelled them to wear a
distinctive dress. Such statute was expressly repealed in 1846 by 9
& 10 vict. C. 59. Several statutes were passed in the reign of
Queen Victoria respecting the Jews. The Houses of Parliament by
resolution allowed the Jew members to omit the words “Upon the
true faith of a Christian” from the oath.

The Jews of today do not uniformly reveal a pure Semitic

type, but show evidences of inter-mixture in the various countries
where they dwell. The principles of modem Judaism have
modified many provisions of rabbinical code in order to make
them conform to the requirements of the laws of the countries in
which the Jews live. A covert to Jewish faith can contract valid
marriage with a Jew under the usual Jewish marriage rites.

No statutory Law of Marriage and divorce

In India there is no statutory law on marriage and divorce

for the Jewish community. In the sixteen century Mosaic24 and
Talmudic25 law was compiled and was styled as “Shulchan
Aruch”. Its third part was known as “Eben Ha-Ezer”, which
contains the matrimonial law. This was the basis of Dr.Mielziner
for his work “Jewish law of Marriage and Divorce”. This work is
accepted as an accurate and authoritative account of the Jewish
law. The book on “Marriage and Divorce” written by Dr.
Meiziner is followed in the courts. The entire law of marriage and
divorce among Jews in India has been discussed by Mr. Justice in
Benjamin v. Benjamin.

23 Jiwaji v. Boinanji, 5 Bom LR 655.

24 Moses was the lawgiver of the Hebrews.
25 Talmud-The body of Jewish civil and ceremonial traditional law.
16 AIR 1926 Bom. 169
 The Jews in India practice monogamy. M. Friedlander in
“The Jewish Religion” writes about “the abolition of polygamy by
Rebbenu Gersham” in the eleventh century. Now-a day a Jew
cannot lawfully contract a second marriage during continuance of
the first. The Jews regard marriage not as a civil contract but as
relation between two persons involving very sacred duties. The
Jews may, however, marry under the special marriage Act, 1954,
in lieu of religious formalities as prescribed by their personal law
because this Act is applicable to all citizens of the country
irrespective of their religious affiliations. It is secular optional law
applicable to all Hindus, Muslims, Christians, Parsis and Jews. In
absence of special law, it is the rule of interpretation that in such
cases the general law i.e. special marriage Act, 1954 is applicable
to them, if they are domiciled in India and solemnized marriage in
India. Therefore the concept of voidable marriage as exist in
special marriage Act, 1954 is applicable to them.

27 David Sassan Ezekiel V. Najia Noori Ruben, 33 B.L.R. 725