Chettur Sankaran Nair, J.
1. O.P. No. 1074/87 is a petition for declaration of nullity of marriage, while O.P. No. 1470/92 is a petition for restitution of conjugal rights.
2. Petitioners in OP 1074/87 and OP 1470/92 will be referred as the wife and husband, in that order hereinafter. The parties met in December, 1985 and the wife consented to marry the husband, in the belief that he was a Christian, born of Christian parents, belonging to an ancient family, that belief having been induced by the husband by making a representation to that effect. The parties were married on 2-3-1986 at the St. Sebastian's Church, Thodupuzha according to the rites of the Syrian Catholic community.
3. After marriage, they lived together for a while at the wife's place, and then moved to the husband's parental home. It was only then that the wife realised that the husband was an Ezhava, baptised into Christianity recently, and that his parents were Ezhavas and not Christians, as he had represented. The wife would say that the husband had not only practised fraud on her, but had also misappropriated her jewels. Not content with these, he had also persuaded her to have sexual intercourse with his friends, says the wife. She petitions this court for a declaration that the marriage is a nullity, by reason of fraud practised on her to obtain her consent.
4. The husband appeared and filed a counter-affidavit, contesting the petition. After an order of interim alimony was made in CMP No. 2013/91, the husband withdrew from the proceedings for all practical purposes. For that reason, his defences are liable to be struck off, in the light of the principles enunciated in Kamla Devi v. Rathi Ram (1986) 2 DMC 308 (Punj & Har), Jai Singh v. Khimi Bhiklu, AIR 1978 Him Pra 45 and Marczuk v. Marczuk (1956) 1 All ER 657 (CA). Even so, the matter has to be considered on merits and it has also to be ensured that a decree is not obtained by collusion.
5. Likewise, the husband or his counsel did not appear in OP 1470/92, filed for restitution of conjugal rights. The case was adjourned from time to time, to afford further opportunities to the husband and his counsel to appear. Yet, there was no appearance or contest. Accordingly, the husband was declared ex parte. However, Shri Sebastian Champappilly was appointed Amicus Curiae to address the Court on the different aspects arising in the petitions.
6. As noticed, fraud is the ground on which nullity is pleaded, and fraud alleged is withholding the information that the husband was a recent convert to Christianity, and making a false representation to the contrary. The wife states that she asked the husband whether he belonged to a Christian family, and that he answered in the affirmative. It turned out that the parents of the husband were not Christians, and that he himself was not a Christian, when he made the representation in December 1985, and when the wife consented to marry him. He was baptised only later (PW 4). Having heard the evidence and watched her demeanour. I am inclined to accept the evidence of the wife, and I do so. I find that the husband had made a false representation, knowing it to be so and obtained consent of the wife to marriage, by practising fraud.
7. The wife consented to the marriage in December 1985, on three assumptions that the husband was a Christian, that his parents were Christians and that they belonged to an ancient Christian family. The evidence of PW 4 shows that the husband was baptised only in 1986 (he does not mention the date), while consent was obtained in December, 1985. Evidence of the wife shows that the parents of the husband were not Christians. According to the custom of the community, as noticed by George Koilparampil in 'Caste in the Catholic Community in Kerala', converts are considered socially inferior in status, and members of ancient families do not marry converts. The wife would also contend that one who is not a born Christian, cannot be considered a true Christian.
8. The concept of a born Christian, is alien to Law. Under the Canon Law, one is inducted into Christianity by baptism, the first Sacrament. The expression 'Christian' is not defined precisely in any of the Statutes. Section 3 of the Indian Christian Marriage Act, 1872 states that 'Christians' mean, persons professing the Christian religion. Same is the way, the expression is understood in Section 3 of the Cochin Christian Civil Marriage Act. Section 2(d) of the Indian Succession Act states:
"2.(d) "Indian Christian" means a native of India who is, or in good faith claims to be, of unmixed Asiatia descent and who professes any form of the Christian religion."
A suggestion came from some quarters, to lay down a comprehensive definition of the expression 'Christian', It was suggested that the expression 'Christian' could be defined to mean, one who is baptised and is a member of a Church. These suggestions were considered by the Law Commission in its 15th and 22nd Reports, and it was felt that there was no need for modifying the existing definition.
9. Courts in India have given a broad meaning to the expression. In Maharam v. Emperor AIR 1918 All 168, it was held that one does not become a Christian, unless he professes the Christian faith, though he might have been baptised as a child, Likewise, the High Court of Madras in Pakkiam Solomon v. Chelliah Pillai AIR 1924 Madras 18 (FB) held that a person would continue to be a Christian, even after ex-communication, if he continued to profess the Christian faith. In K.J.B. David v. Neelamani Devi, AIR 1953 Orissa 10, the Court expressed the view that baptism was not essential to be a Christian. Consensus of judicial opinion is that one who professes the Christian faith, is a Christian and that baptism or ex-communication, is not determinative. The Lexico-graphical meaning of the term 'Christian' is :
"one who believes, professes to belive, or who is assumed to believe in the religion of Christ and whose behaviour exemplified his teachings."
According to 'Institutes of Canon Law'and the Code of Canon Law, by 'Canonical Society of Great Britain and India', baptism makes one a Christian. It is one of the seven Sacraments, along with Confirmation, Eucharist, Marriage, Penance, Anointing of the sick and Holy Orders. But, what is conclusive in eparchial law, is not conclusive in temporal or civil law. To say that one is a Christian, it must be established that he professes the Christian faith.The evidence of PW 4 (OP 1074/87), the Vicar would at best show that, he administered the sacrament of baptism to the husband, that too under a mistake. There is not even formal evidence that the husband is one who professes the Christian faith, or that he was professing the Christian faith atleast at the time of marriage. For all one knows, he was only deceiving the wife. In the circumstances, it is held that the husband was not a Christian at the time of marriage, though he represented to the wife that he was, and obtained her consent.
10. In determining whether the marriage was a nullity, the personal law of parties and Canon Law have to be examined. The Syrian Catholics domiciled in the erstwhile Travancore area, are not governed by any statutory enactment in the matter of marriage.
11. The Indian Christian Marriage Act in force in other parts of the country, has not been extended to this area, in forty two years after the Constitution was enacted. There was no statute earlier either, as noticed by the Travancore and Travancore-Cochin High Courts in Eapan Punnan v. Koruthu Maria, 10 TLR 95, Sirkar v. Mathu Kuruvila, 11 TLR 33 (FB), and Cheriya Varkey v. Ouseph Thresia AIR 1955 Trav-Co. 255 (FB). In V. H. Lopez v. E. J. Lopez (1886) ILR 12 Cal 706 and H. A. Lucas v. Theodoras Lucas (1905) ILR 32 Cal 187, it was held that the personal law, which governs Roman Catholics is the law of the Church of Rome. The same view was expressed by the High Court of Bombay in (Peter Philip) Saldanha v. (Anna Grace) Saldanha AIR 1930 Bombay 105. The views expressed by the High Courts of Travancore, and Travancore-Cochin in the three cases cited above accord with this view.
12. In Lakshmi Sanyal v. S. K. Dhar, AIR 1972 SC 2667, the Supreme Court held that a marriage otherwise invalid by reason of prohibited degree of consanguinity, would be valid by reason of dispensation granted by the Church under the Canon Law : (para 10, at p. 2672 of AIR):
"The question of capacity to marriage and impediments in the way of marriage, would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of marriage, would be the law of the Roman Catholic Church, namely the Canon Law of that Church."
13. Thus, in the absence of statutory law, Canon Law governs members of the Syrian Catholic Community. The wife belongs to the oriental Church. For the first time, a Code of Canon Law governing marriage in the oriental Church or eastern Church came into force on 2-5-1949. Successful compilation of a Code, for the Latin Rite Church, induced Pope Pius XI to cause preparation of another Code for the oriental Church. A Commission of Cardinals, headed by Cardinal Pietro Casparri (A Scholar in Canon Law), and including Cardinal Amieto Glovanni Cicogani (Professor, School of Canon Law, Lantern University) and many other eminent Members of the Clergy, was constituted for this purpose. The 'Motu Proprio Cerebrea Allatae' was thus promulgated on 22-2-1949, to take effect from 2-5-1949. This contains the matrimonial law for the oriental church of the east, to which the wife belongs. Chapter V, Canon 74(1) states:
"Error concerning the person, renders the marriage invalid".
14. Later, a more comprehensive Code of Canon Law was promulgated on 1-10-1990, and that came into force on 1-10-1991. The tenets in the earlier Code were elaborated. Canon 820(1) reads:
"Error concerning the person, renders marriage invalid".
Canon 821 reads:
"A person invalidly celebrates marriage who is deceived by fraud perpetrated to obtain consent, concerning some quality of the other party, which by its very nature can seriously disturb the partnership of conjugal life."
15. Under the Canon Law, governing the case on hand, a marriage will be invalid if there is "an error concerning the quality of a person". The expression "quality of the person" in Canon Law, reasonably means religious affiliation or faith, as they are the foremost qualities, that religion concerns itself with. According to the wife, she was persuaded to a false belief that the husband was a Christian. Christian he can be, only if he professes the Christian faith. There is not an iota of evidence, that the husband professed the Christian faith, at any time of his life. The evidence of the wife and the Parish Priest, is to the effect that the husband was putting on an act of pretence and a piece of deception. Evidence of the wife is to the further effect that parents of the husband, were not Christians at any time, and that they had not even assumed Christian names, like the husband. Thus, an erroneous belief was induced in the wife by the husband "concerning 'a quality of his", namely religious faith or religious status. It was only this piece of perfidy, which is fraud in the meaning of S. 19, and certainly in Canon Law, that made the wife consent to the marriage. Again,
"No human power can replace matrimonial consent, an act of will by which a man and woman, through an irrevocable covenant, mutually give and accept each other, in order to establish marriage". (Canon 817)
Consent, which is vital to the validity of marriage, must be free and voluntary. If not, it is not consent in law, by reason of Canons 74, 820 & 821. For each, and all of these reasons, the consent signified by the wife is no consent, in personal law or in Canon Law, and the marriage is null and void.
16. It is void under the Civil Law also, for the same reasons. The width and sweep of the expression 'fraud' in matrimonial law, is narrower than in common law. Concealment of every fact will not amount to fraud, in matrimonial causes. But, a false representation as to vital facts, will amount 16 fraud. In a society, still conventional in a large measure, religion and caste are dominant, if not determinative factors, in the matter of marriage. Whether it ought to be, or ought not to be, is another matter. It is. Every society holds to its beliefs. If a misrepresentation is made relating to a matter fundamental to marriage, then it amounts to fraud. A misrepresentation regarding religion or community, is misrepresentation relating to such a matter.. Social attitudes prevailing in contemporary society generally, were noticed by the Supreme Court in Reynold Rajamani v. Union of India, AIR 1982 SC 1261. The Court observed (para 4, at p. 1263 of AIR):
"History of all matrimonial legislations will show that conservative attitudes, influence grounds on which separation or divorce, could be granted."
17. The wife in her evidence stated that she would not have married the husband, if she knew that he did not belong to an ancient Christian family, or that he was a recent convert. According to her, such persons are socially inferior, and members of ancient Syrian Christian families do not enter into matrimonial bonds with converts. The Literature on the subject also shows that, converts are considered inferior in the social strata. In T.O. Aykut v. M.O. Aykut, AIR 1940 Cal 75 it was held that withholding of the fact that the husband was a Muslim, amounted to fraud. The facts are similar. In that case, the wife consented to the marriage, believing the representation of the husband that he was a Christian. Later, she found out from his passport that he was a Muslim. The Court found this to be fraud. The principle governs the case on hand, and the marriage is vitiated for purposes under Section 19 of the Indian Divorce Act.
18. That leads to the question of alimony. The wife claims alimony of Rs. 500/- a month. In her application it is stated that the husband earns atleast Rs. 3,000/- per month. Neither side, has produced any evidence regarding income of the husband. The husband has no valid defence to the claim, Interim alimony of Rs. 250/- per, month was granted. Reasonableness of this was not contested by the husband. Having regard to circumstances, like inflation, lack of means in the wife, etc. the husband is directed to pay alimony to the wife, at the rate of Rs. 350/-(Three Hundred and Fifty) per month.
19. To proceed -- the application for restitution of conjugal rights, remains to be considered. There is no basis to think that the wife withheld her society wrongfully, or that grounds are made for restitution of conjugal rights. The evidence of the wife shows that the husband was persuading her to enter into sexual relathionship with his friends. There is no reason to disbelieve this evidence. It will be against policy of law to grant restitution of conjugal rights in these circumstances. Besides, the marriage itself is void. The prayer of restitution of conjugal rights cannot be granted, and is accordingly rejected.
20. In the result, O.P. No. 1074/87 C is allowed, and it is declared that the marriage is null and void. The husband will pay alimony at the rate of Rs. 350/- (Three Hundred & Fifty) per month to the wife. O. P. No. 1470/92 is dismissed. Parties will suffer their costs.
21. I place on record, appreciation of the help rendered by Shri Sebastian Champappilly, who appeared as Amicus Curiae and addressed the Court on all aspects of the case, with thoroughness and erudition.