Equivalent Citation: AIR1940Cal75

IN THE HIGH COURT OF CALCUTTA

Decided On: 17.03.1939

Appellants: T.O. Aykut

Vs.
Respondent: M.O. Aykut

Subject: Family

Catch Words

Mentioned IN

Case Note:
Family - Validity of decree - Whether wife's petition for a decree that her marriage with
Respondent may be declared null and void - Held, in instant case, Court had
accordingly power to annul a marriage on ground of fraud, and on evidence which had
been given - Court satisfied that consent of Petitioner to marriage was obtained by
fraud with consequence that marriage was void - Respondent was served personally
with petition and did not appear to defend.

ORDER

McNair, J.

1. This is a wife's petition for a decree that her marriage with the respondent may be declared
null and void. There is no appearance on behalf of the respondent. The petitioner at the time
of the marriage was domiciled in Austria and was an Austrian subject. The respondent was a
Turk. The parties went through the form of marriage at the register office in Calcutta on 8th
March 1937. The petitioner has given evidence in which she has stated that she is a
professing Christian and a Roman Catholic. She has further stated that she would not marry
anybody who was not a Roman Catholic; prior to their marriage the respondent informed her
that he was a Roman Catholic and he signed a paper to that effect. She also states that when
they went to the register office where the form of marriage was celebrated, the respondent
swore that he was a Roman Catholic and she states further that she would never have married
him had she known that he was a Mahomedan. That information she obtained in England in
May 1937 when her passport expired. She then found that in a document purporting to be a
marriage certificate which is partly in Turkish and partly in English and issued by the Turkish
Consul-General in London the respondents' religion is entered as "Islam." This document has
been translated and proved. The petitioner states that she had no sexual intercourse with the
respondent after she discovered in August 1938 that he was in fact a Mahomedan.

2. Detective Sgt. Clarke has given evidence that he had known the respondent for some time
having come into contact with him in connexion with a passport. In February of this year he
arrested the respondent for disorderly conduct and the respondent then made a voluntary
statement in which, amongst other things, he stated that he was a Mahomedan and that he did
not remember whether he stated that he was a Mahomedan or a Christian at the time of his
marriage. Mr. R.C. Bonnerjee on behalf of the petitioner has referred me to Section 10,
Divorce Act, which provides that a wife may obtain dissolution of her marriage if her
husband has since the solemnization of the marriage exchanged his profession of Christianity
for the profession of some other religion and he argues that if the alleged husband never
professed the Christian religion, there would be even stronger grounds for dissolving the
marriage tie. It is clear that the policy of the Act does not contemplate a valid marriage
between a Christian and a person professing a religion which is not monogamous. Section
1.9, Divorce Act, provides that a decree for nullity may be made on any of the grounds
mentioned and it further provides that nothing in the Section shall affect the jurisdiction of
the High Court to make a decree o£ nullity of a marriage on the ground that the consent of
either party was obtained by force or fraud.

3. The High Court has accordingly power to annul a marriage on the ground of fraud, and on
the evidence which has been given before me I am satisfied that the consent of the petitioner
to the marriage was obtained by fraud with the consequence that the marriage is void. The
respondent was served personally with the petition and does not appear to defend. Although
the petitioner is domiciled in Austria she has lived and cohabited with the respondent in
Calcutta and she was residing in Calcutta within the jurisdiction of this Court at the time
when she filed her petition. The Court therefore has jurisdiction to entertain the petition.
There will be a decree nisi in terms of the prayer of the petition and the respondent must pay
the costs.