This article is written by Kunal Jain pursuing BBA LLB from Symbiosis Law School, Noida. This article is a case analysis of the judgement given by the Supreme Court in the case Lakshmi Dhar Vs Sachit Kumar Dhar.

Introduction

Customary Laws are the laws consisting of the customs that are accepted as legal requirements, or practices & beliefs such that they are so vital & intrinsic, as a part of the social & economic system that they are treated as if they were itself the laws.

At the point of time while making new laws or legislation based on personal laws. All the customary laws, rites, rituals are taken into considerations which are prevailing in the society. If the statutory law contradicts the customary laws of a particular religion, then a maximum number of times, courts consider the personal laws or the prevalent customary laws into consideration & not consider the legislation, which is there.

This case of Lakshmi Dhar vs Sachit Kumar Dhar is also the one where the courts considered the prevalent customary laws above the legislations i.e. the Christian Marriage Act, 1872 & the Divorce Act, 1869. In this case, the courts stated that, for the purpose of, deciding the validity of the marriage, the customary law in which the marriage between the parties was solemnized, will be taken into consideration i.e. the Canon Law of the Roman Catholic Church.

The Supreme Court in various cases of the family laws have held that the customary laws will prevail over the statutory laws if the legislation is silent on that issue. Since the statutory law does not exclude the applicability of the customary laws.

Background

This case was of an appeal of the judgement given by the Calcutta High Court, which was filed by the appellant against the respondent for a decree declaring that their marriage was both null & void & grant for alimony & permanent reliefs.

The appellant & the respondent were really close to each other because their mothers were real sisters. Prior to Marriage, both the parties had sexual relations, as a result of which, the appellant was pregnant at the time of appeal because of which she wanted the custody & care of the children as well with the other reliefs.

On January 30, 1960, their marriage was solemnized. Before marriage, both the parties were Hindus who were converted to Christianity just before the marriage & solemnized their marriage according to the Christian Laws. The parties had two daughters, one born on May 10, 1960 & another born in October 1961. Appellant left the home in 1965 & filed a case for divorce in July 1961.

In the petition, a number of allegations like under duress, intimidation & undue influence were made on the respondent. It was said that because of all these the sexual relationship started between both the parties, which ultimately resulted in the appellant conceiving the child. Allegations related to the conversion of the religion was also made on the basis that it attributed to fraud, coercion & undue influence.

It was also claimed that the appellant was minor at the time of marriage & neither her father’s nor her guardian’s permission was taken (which is specifically mentioned in Section 19 of the Christian Marriage Act, 1872) nor did she gave her consent freely on her own. It was also claimed that the marriage was also void because the parties were within the prohibited degree of consanguinity.

Moreover, the trial judge did not accept all these allegations, the court concluded that both the parties fell in love with each other, which resulted, to the solemnization of the marriage.

Issues

After listening to all the arguments, the Supreme Court made two issues, which were:

1.   The first issue was that whether the marriage should be held as invalid as the appellant was minor at the time of marriage & the consent of her father or the guardian was also not taken.
2.   The second was that the parties were within prohibited degree of consanguinity & therefore Section 19 of the Divorce Act should be applicable here.

Summary of the Issues

First Issue

In the first issue, Section 19 of Part III & Section 44 of Part V of the Indian Christian Marriage Act, 1872 was argued in the way that the consent of the father or the guardian was not obtained before the marriage. Since Section 3 of the Indian Christian Marriage Act Clearly states that a Minor is a person who has not attained an age of 21 years & Section 19 & section 44 on the other and states the consent of the father or the guardian in case of the minor.

But the court took the case of Rev. Father Caussavel vs Rev. Saurez, (1869) ILR 19 Mad 273, where it was held that Part III which contained all the section from Section 19-22, can only be applicable in the case of the ministers who are licensed under this act. The court also said that even if the provisions of Section 19 & 24 were considered and proved that they were broken, still there is no such provision, which says that the marriage will be considered as null & void, it just provides for the penal provisions and nothing else.

Since Part III was not applicable due to the case of Rev. Father Caussavel vs Rev. Saurez. Therefore, the court considered Section 5(1) of the Christian Marriage Act, which says that any person who has received episcopal ordination & has solemnized it according to the rules, rites, ceremonies and customs of his Church of which he is a Minister of can solemnize the Marriage. Since, in this case, the Minister of a Roman Catholic Church solemnized the marriage.

The court stated that Section 5(1) would be applicable & the Canon Law should be considered while determining the case of the Minor (or the person who has not achieved the age of 21 years). Canon 1067 of the canon laws states that a man before completing his 16th year and a girl before completing her 14th year cannot contract a valid marriage. However, there was no provision, which prohibits the marriage of a minor inn case of the absence of the consent of the father or guardian.

Since considering the Canon laws, the court, on the First Issue, concluded that the marriage cannot be considered Null & Void just of the basis that the appellant was a minor i.e. below 21 years of age, & the consent of her father or the guardian was not obtained.

Second Issue

For the Second Issue, the court held that it should be the customary law, which should be considered while determining whether the parties were within the prohibited degrees of Consanguinity, or not. Since the parties were married according to the rites & rituals, & thus belonged to the Roman Catholic Church, so their law should be considered. Moreover it was also held that neither the Indian Divorce act nor the Indian Christian Marriage Act defines as to which of the relationships are within the Prohibited degrees.

While taking the case of V.H. Lopez vs R.J. Lopez, (1885) ILR 12 Cal 706, where it was held that the marriage could only be prohibited if the customary law of that church, to which the parties belonged, prohibits. Moreover, if the dispensation is obtained then the parties are competent to the marriage. Hence, with respect to the V.H. Lopez Case, the Court took all the Canon Laws i.e. the laws of the Roman Catholic Church into consideration while deciding the judgement of this case.

Canon 1076 of the Canon Law, defines the laws regarding the prohibited degrees of Consanguinity. It states that marriage is invalid between all the ancestors and descendants. In the collateral line, it is invalid up to the third degree. In addition, Canon 1052 of the Canon Law, defines the laws regarding the Dispensation. It says that in case of Consanguinity of the second degree, which was there in this case, a dispensation can be obtained by the appropriate authorities of the church & the only case where dispensation cannot be granted is where the impediment is of the first degree, which is an absolute bar.

Taking the case of H.A. Lucas vs Theodoras Lucas, (1905) ILR 32 Cal 187, where it was held that the courts will not disallow any Roman Catholic of Indian Domicile who had received the necessary dispensation from marrying a person with whom that person is incapable of marrying.

Court held that according to the Canon Law, the marriage between the parties related to consanguinity of Second degree is dispensable & after dispensation, the parties will not be considered within the prohibited degrees. Thus, Section 19 (2) of the Indian Divorce Act will not be applicable after the dispensation is obtained & no decree for the nullity of the marriage on the grounds of Section 19 of the Divorce Act can be applied.

Critical Analysis

The court was right is dismissing the appeal. Since all the legislations made related to the personal laws, are based on the customary laws or the customs that are there in that religion. Therefore, it would not be right if the courts act in the contradiction to the customary laws, which are prevailing in the society. Both the parties were married according to the rites & the rituals of the Canon Law, so why should the Indian Divorce Act & the Indian Christian Marriage be applicable, since they were not even married according to these laws, as the father who solemnized the marriage was of the Roman Catholic Church. Therefore, the court’s decision of sticking to the canon laws was right since the parties were married according to their customs.

Conclusion

This case was an appeal, which was filed by the appellant against respondent for a decree declaring that their marriage was both null & void & grant for alimony & permanent reliefs. In this case, basically, the appellant was a minor at the time of the marriage. Therefore, as an argument from the appellant, the argument was that the appellant was a minor & also their relationship was within the prohibited degrees of consanguinity.

However, the courts in this matter considered the customary laws above the existing legislations i.e. the Indian Christian Marriage Act & the Indian Divorce Act. With the help of the case laws Rev. Father Caussavel vs Rev. Saurez, (1869) ILR 19 Mad 273, V.H. Lopez vs R.J. Lopez, (1886) ILR 12 Cal 706 & H.A. Lucas vs Theodoras Lucas, (1905), ILR 32 Cal 187. The courts held that the marriage between the parties was valid, & also held that the marriage between the parties will not be considered as null & void. The courts reached to this decision because both the parties were married according to the laws of the Roman Catholic Church i.e. the Canon Law. The Canon laws allows marriage between the parties of Second Degree of the Prohibited degree of Consanguinity as dispensable.

Since the parties were married according to the Laws of the Roman Catholic Church, the marriage was not held invalid or null & void.

References 

• http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=509691161000
• https://www.manupatrafast.com/
• https://www.jstor.org/
• https://indiankanoon.org/
• https://www.lawyerservices.in/Lakshmi-Dhar-Versus-Sachit-Kumar-Dhar-1969-07-18

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