Arijit Pasayat, C.J. 1. This is a reference under Section 20 of the Indian Divorce Act, 1869 (in short the 'the Act'). Application was filed by the wife before the Family Court, Kozhikode under Section 19 of the Act on the ground that respondent had a wife living at the time of solemnization of the marriage with her on 23.3.1996. Existence of wife at the time of marriage was pleaded to be a ground to affect validity of the marriage. Though the respondent accepted that he was earlier married, he took the stand that the same has been nullified by the Eparchial Tribunal.
2. Learned Judge of Family Court, Kozhikode was of the view that declaration of dissolution of marriage by the Eparchial Tribunal is of no consequence as the said Tribunal has no jurisdiction to annul the marriage. Such power is only conferred on Courts as indicated in the Act itself. Accordingly the marriage solemnised between her and respondent was held to be void.
3. Heared learned Counsel for the parties. In view of the accepted position that there was an earlier marriage, the only question that needs to be adjudicated is whether the dissolution of the marriage, if any, by the Eparchial Tribunal is of any consequence. A Full Bench of this Court in George Sebastian v. Molly Joseph, 1994 (2) KLT387=II (1995) DMC 168 (DB), held that the rights flowing out of a legal marriage among Christians cannot be interfered with by Eparchial Tribunal and the marriage cannot be dissolved except by resort to the provisions under the Indian Divorce Act. The view of the Apex Court in Molly Joseph v. George Sebastian, 1997 (1) KLT1 (SC)=II (1996) DMC 452 (SC), has put the controversy beyond any shadow of doubt.
4. Chapter IV of the Act deals with nullity of marriage. Sections 18 and 19 of the Act are relevant for the purpose of the present case. They read as follows :
"18. Petition for decree pf 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.
19. 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;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
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."
5. Present dispute is encompassed by Section 19(4). Essential of valid marriage between Christians is that any party to it should not have a spouse living at the time of marriage. Existence of spouse makes second marriage void, unless earlier marriage was set aside prior to such marriage. When a petition to declare a marriage null and void is made under Section 19(4), the burden of proof lies upon the petitioner to prove that the previous marriage of the opposite party was subsisting with full force and effect, and was not set aside at the time when marriage between petitioner and respondent took place. Undisputedly respondent relied upon a verdict of Ecclessiastical Tribunal to claim dissolution of earlier marriage.
6. From a bare reference to the different provisions of the Act including preamble thereof it is apparent that the Act purports to amend the law relating to divorce of persons professing the Christian religion and to confer upon Courts which shall include District Court and the High Court jurisdiction in matrimonial mattrers. In this background unless the Act recognises the jurisdiction, authority or power of Ecclessiastical Tribunal (sometimes known as Church Court) any order or decree passed by such Ecclessiastical Tribunal cannot be binding on the Courts which have been recognised under the provisions of the Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters. It is well-settled that whew Legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act. From the provisions of the Act, it is clear and apparent that they purport to prescribe not only the grounds on which a marriage can be dissolved or declared to be nullity, but also provided the Forum which can dissolve or declare the marriage to be nullity. As already mentioned above, such power has been vested either in the District Court or the High Court. In this background, there is no scope for any other Authority including Ecclessiastical Tribunal/Church Court to exercise power in connection with matrimonial matters which are covered by the provisions of the Act.
7. In view of the accepted position that there is no nullification of the marriage solemnized earlier, inevitable conclusion is that the respondent had a wife living at the time of marriage between the applicant and respondent, and earlier marriage was in force. That being the position the prayer for dissolution of the marriage in terms of Section 19 of the Act has to be accepted, and has been rightly accepted.
We, therefore, confirm the decree for dissolution of the marriage passed by learned Judge of Family Court, Kozhikode. Reference is accepted.