How to File Petition for Divorce under Section 27 of the Special Marriage Act, 1954 [JUDGMENT]

Special Marriage Act, 1954 - Section 27 - a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act. 

In the instant case, we have already found that the marriage between the petitioner and the respondent which was solemnised in the church is not valid and that the marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in the church was valid, the solemnisation of the marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility. Therefore, there can be no doubt with regard to the fact that the petition for divorce filed by the petitioner under Section 27 of the Special Marriage Act, 1954 is maintainable.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ.

Mat.Appeal No.1017 of 2017

Dated this the 11th day of October, 2018

AGAINST THE JUDGMENT AND DECREE IN OP 2050/2011 of FAMILY COURT,TRIVANDRUM DATED 08-06-2017

APPELLANT/COUNTER PETITIONER

DR. KIRAN KUMAR

BY ADVS.  SRI.S.V.PREMAKUMARAN NAIR SMT.M.BINDUDAS SMT.P.S.ANJU SRI.P.K.JANARDHANAN SRI.R.T.PRADEEP

RESPONDENT/PETITIONER

DR. BINI MARIM CHANDI

SMT.MAJIDA.S SMT.MAJIDA.S CAVEATOR DR. SEBASTIAN CHAMPAPPILLY AMICUS CURIAE

JUDGMENT

R. Narayana Pisharadi, J

To marry or not to marry and if so whom, may well be a private affair. But, the freedom to break a matrimonial tie is not (Dastane v. Dastane : AIR 1975 SC 1534).

2. The appellant is the husband and the respondent is the wife. The husband challenges the decree of divorce passed against him by the Family Court, Thiruvananthapuram in O.P.No.2050/2011 filed by the wife.

3. The parties shall be hereinafter referred to as the petitioner and the respondent as they figure in O.P.No.2050/2011.

4. The petitioner filed O.P.No.2050/2011 against the respondent under Section 27 of the Special Marriage Act, 1954 (wrongly stated as Section 26 of the Act in the petition for divorce) on the ground of cruelty. The petition for divorce was subsequently amended incorporating a variety of allegations against the husband.

5. The respondent filed counter statement denying the allegations raised against him by the wife. He also filed additional counter statement after amendment of the petition for divorce.

6. During the trial of the case, PW1 to PW3 were examined and Ext.A1 document was marked on the side of the petitioner. CPW1 to CPW3 were examined on the side of the respondent.

7. After appreciating the evidence on record, the Family Court found that the petitioner succeeded in proving that the respondent had treated her with cruelty. Accordingly, the Family Court granted a decree of divorce dissolving the marriage between the petitioner and the respondent, which was solemnised on 18.8.2008, in accordance with the provisions of the Special Marriage Act, 1954.

8. We have heard Sri.R.T.Pradeep, learned counsel for the appellant and Smt.Majida, learned counsel for the respondent. We had also the assistance of Dr.Sebastian Champappilly, who was appointed as amicus curiae. We have also perused the records of the case.

9. Section 27(1)(d) of the Special Marriage Act, 1954 provides that, subject to the provisions of that Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent has since the solemnisation of the marriage treated the petitioner with cruelty.

10. The petitioner and the respondent are doctors. They were in love with each other. On 15.5.2008, they got married in a church at Thiruvalla. Thereafter on 18.8.2008, they solemnised a marriage under the provisions of the Special Marriage Act, 1954.

11. At the time of the marriage, the respondent was working in a hospital. After the marriage, the petitioner got admission for M.D course in Odisha. The respondent then resigned his job and joined a hospital in Andhra Pradesh. During the weekends, he used to visit the petitioner in Odisha. After completing her post graduate course, the petitioner returned to Kerala in the year 2010. She got employment in a hospital. The respondent also returned to Kerala and he got employment in the hospitals here. They started to reside together in an apartment in Thiruvananthapuram.

12. We do not propose to discuss on the trifles of the matrimonial relationship of the parties. The petitioner has alleged numerous incidents in the amended petition in order to show the cruel conduct on the part of the respondent. But the simple trivialities which can truly be described as reasonable wear and tear of married life, do not require consideration. The petitioner has also not adduced any convincing evidence on such trivial incidents alleged in the petition for divorce. We need only consider the evidence adduced by the parties with regard to the grave and weighty allegations or incidents mentioned in the petition for divorce.

13. The main allegation against the respondent is that, he was always suspicious of the moral character of the petitioner and that he always used to make accusations of infidelity and immorality against her. What is highlighted in the petition for divorce is the imputations made by the respondent on the character of the petitioner, especially the accusation of illicit relationship by her with her colleagues in the profession.

14. An incident that took place on 14.10.2011 is projected in the petition for divorce in order to prove the conduct and behaviour of the respondent towards the petitioner. The details of this incident are narrated in the petition for divorce.

15. The petitioner was examined as PW1. She has given evidence regarding the incident that occurred on 14.10.2011. She has stated in the examination-in-chief as follows: She had night duty in the hospital on the previous day. After the night duty, she had to go to her house in the morning. The respondent told her that he would drop her at Adoor. She told him that she would come to the apartment after night duty and she would have a bath before going to her house. A junior doctor working with her dropped her at the place 'Nalamchira', after night duty. The respondent picked her up from 'Nalamchira' and took her to the apartment. He did not like the colleague of the petitioner accompanying her. He checked the call list in her mobile phone while she was bathing. He saw the phone number of the doctor in the call list. On the way to Adoor, the respondent quarrelled with her in the car stating that she had illicit relationship with the doctor who had earlier accompanied her from the hospital. He stopped the car at 'Chadayamangalam' and beat her. Hearing her sound, two passengers who were travelling on a motor cycle reached near the car. The respondent told them that his wife was in the car and she was with another person during the previous day and that he had taken her from there in the morning. Then the passengers looked at the petitioner as if she was a woman of immoral character. The petitioner then called her father. Her father told her that he would come and take her home. But the respondent told her father that he would drop her at Adoor. They reached Adoor and then her parents came there and took her with them.

16. The evidence of PW1 regarding the incident that took place on 14.10.2011 practically remains unchallenged in the cross examination by the respondent. Only a bald suggestion was made to PW1 in the cross examination that no such incident took place. PW1 denied the suggestion made to her in that regard. The respondent was examined as CPW1. In the affidavit filed in lieu of examination-in-chief, he has only stated that the incident on 14.10.2011 alleged by the petitioner is imaginary.

17. It is to be noted that the allegation regarding the incident that took place on 14.10.2011 is not one introduced by the petitioner after the amendment of the petition for divorce. Even before the amendment, the petition for divorce contained averments regarding this incident. After amendment of the petition for divorce, only more details regarding the incident were incorporated in it.

18. PW2 is a friend of the petitioner. She is a doctor. She was a classmate of the petitioner. The evidence of PW1, regarding the conduct of the respondent imputing infidelity on her, is corroborated by the evidence of PW2. She has given evidence that in the month of October, 2011 she could not contact the petitioner over phone and then she called the respondent. PW2 has given evidence that then the respondent told her that the petitioner has got illicit relationship with another doctor.

19. The uncle of the petitioner was examined as PW3. He has given evidence that, with a view to solve the problems between the petitioner and the respondent, he went to the apartment of the respondent along with the parents of the petitioner. PW3 has given evidence that, then the respondent told him that the petitioner has got illicit relationship with another man. The evidence of PW3 also corroborates the evidence of PW1 regarding the conduct of the respondent imputing immorality and infidelity on his wife.

20. When examined as PW1, the petitioner has given evidence that after the incident on 14.10.2011, the respondent called her colleagues in the hospital and told them that she was having illicit relationship with a doctor. Her colleagues asked her about it. PW1 has stated that on account of shame, she took leave from the hospital for a month. Ultimately, she had to resign the job in the hospital.

21. CPW2 is a relative of the respondent. CPW3 is the husband of the sister of the respondent. Their evidence does not contain anything with regard to the specific allegations raised against the respondent by the petitioner.

22. On an appreciation of the evidence of PW1 to PW3 and CPW1, it can very well be found that the respondent suspected the chastity of the petitioner and that he had told her relatives and colleagues that she is a person having immoral and illicit relationship with other men, especially with a doctor who was working in the hospital with her. The incident alleged to have occurred on 14.10.2011 is proved by the evidence of the petitioner. This incident indicates the conduct and behaviour of the respondent towards the petitioner. The evidence of PW1 also proves that, on account of the conduct of the respondent, spreading allegations of unchastity and infidelity on her, she had to take leave from the hospital for one month and ultimately she had to resign the job in the hospital.

23. The question now arises whether the conduct of the respondent imputing infidelity and immorality on the petitioner amounts to inflicting mental cruelty.

24. Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other (See V. Bhagat v. D. Bhagat : (1994) 1 SCC 337). To constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot reasonably be expected to live with the other spouse. It must be something more serious than 'ordinary wear and tear of married life'. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings. The psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, certain conduct may cause pain in the mind of another. But, before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the act or conduct of the spouse is of such a nature that petitioner could endure it as a part of normal human life (See A. Jayachandra v. Aneel Kaur : AIR 2005 SC 534).

25. In the instant case, during the course of the incident that took place on 14.10.2011, the respondent had publicly humiliated the petitioner by telling two strangers that his wife was sleeping with another man on the previous night. One could imagine the mental agony and pain felt by the petitioner due to such conduct of the respondent. Further, the respondent had told PW2, who is a friend of the petitioner and also a doctor, that the petitioner had illicit relationship with another doctor who was working in the same hospital. It has also been proved that the respondent had informed the colleagues of the petitioner in the hospital that she was having an affair with another doctor. Thus the respondent made her a subject of scandal in the hospital where she was working. The petitioner had to take leave for a period of one month and ultimately she had to resign from the hospital on account of shame. These incidents indicate that the respondent was in the habit of imputing infidelity and immorality on the part of his wife. The conduct of the respondent amounted to character assassination of the petitioner affecting her reputation among her colleagues and friends. Injury to reputation is an important consideration in dealing with the question of cruelty.

26. Making false, frivolous and baseless accusation of infidelity and immorality against the spouse to the colleagues of the spouse, amounts to cruelty in law (See Iris Paintal v. Autar Singh Paintal: AIR 1988 Delhi 121). Baseless accusation of immorality against the spouse constitutes mental cruelty (See Iqbal Kaur v. Pritam Singh : AIR 1963 PH 242). There can be no more insulting injury to the wife than her own husband doubting her chastity (See Sumanbai v. Anandrao Onkar Panpatil: AIR 1976 Bom 212). Communication of false, defamatory, scandalous and baseless allegations against the spouse to his/her superiors amounts to cruelty (See Savitri Balchandani v. Mulchand Balchandani: AIR 1987 Delhi 52). Raising wild allegations against the spouse of having illicit relations with an office colleague, per se casting a slur on the character, integrity and morality of the spouse, constitutes cruelty without further more (See Ashok Kumar v. Jyoti : 2018 KHC 2845).

27. In Raj v. Kavita : AIR 2017 SC 2138, the Apex Court has held that, conduct of a spouse levelling false accusations against the other spouse which would have the effect of lowering his/her reputation in the eyes of his/her peers, would be an act of cruelty.

28. In Vijay Kumar v. Neela : AIR 2003 SC 2462, the Apex Court has held that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife and such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards, would amount to the worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law.

29. In Narendra v. Meena : AIR 2016 SC 4599, it has been held that, levelling of absolutely false allegations and that too with regard to an extra-marital life, is quite serious and that can surely be a cause for mental cruelty.

30. Learned counsel for the respondent contended that the solitary incident on 14.10.2011, even if taken as proved, is not sufficient to grant a decree of divorce on the ground of cruelty. There is no force in this submission. Mental cruelty will not depend upon the numerical count of incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude of the spouse, necessary for maintaining a conducive matrimonial home (See Vinita Saxena v. Pankaj Pandit : AIR 2006 SC 1662).

31. The conduct of the respondent humiliating the petitioner imputing infidelity and immorality on her part was indicative of his mental attitude towards her. The allegation of cruelty is based not solely on the incident that occurred on 14.10.2011. The trauma and agony undergone by the petitioner by the subsequent conduct of the respondent in spreading a scandal that she had illicit relationship with another doctor cannot be ignored. Unending accusations and imputations can cause more pain and misery than physical beating.

32. It is difficult to establish mental cruelty by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. An instance of misbehaviour shall not be taken in isolation. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other (See Parveen Mehta v. Inderjit Mehta : AIR 2002 SC 2582). In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept of proof beyond the shadow of doubt is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse due to the acts or omissions of the other. In the case of mental cruelty, there may not be tangible and direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes (See A. Jayachandra v. Aneel Kaur : AIR 2005 SC 534).

33. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment (See Samar Ghosh v. Jaya Ghosh : (2007) 4 SCC 511).

34. In the instant case, the petitioner has been able to prove that the respondent was in the habit of raising allegations against her which impinge on her character and morality. He was always taunting her accusing her of having illicit relationship with her colleague. Any woman with reasonable self-respect and power of endurance would find it difficult to live with such a suspicious and taunting husband. We find that the lower court has rightly come to the conclusion that the petitioner was treated with cruelty by the respondent and that she is entitled to get a decree of divorce on that ground.

35. Learned counsel for the appellant submitted that the marriage between the petitioner and the respondent was solemnised in a church on 15.05.2008 and the marriage was again solemnised under the provisions of the Special Marriage Act, 1954 on 18.08.2008. Learned counsel would contend that the marriage between the petitioner and the respondent, which was solemnised in the church on 15.05.2008, was a valid marriage and it would prevail over the marriage solemnised as per the provisions of the Special Marriage Act, 1954. Learned counsel further contended that the situation being so, the petition for divorce filed under Section 27 of the Special Marriage Act, 1954 is not maintainable. Learned counsel would submit that the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869.

36. Per contra, learned counsel for the respondent contended that there was no valid marriage solemnised between the parties in the church. Learned counsel would point out that the appellant was a Hindu and the respondent in the appeal is a Christian and therefore, no valid marriage could have been solemnised between them in a church. Learned counsel would further contend that the marriage between the parties solemnised under the provisions of the Special Marriage Act, 1954 would prevail over the invalid marriage which took place in the church.

37. There is no dispute with regard to the fact that a marriage was conducted between the petitioner and the respondent in the church on 15.05.2008. There is also no dispute with regard to the fact that the marriage between the parties was subsequently solemnised under the provisions of the Special Marriage Act, 1954 on 18.08.2008.

38. The Indian Christian Marriage Act, 1872 is not applicable to territories which were comprised in the erstwhile State of Travancore – Cochin existed before the 1st November, 1956. It is expressly provided so in Section 2 of the Indian Christian Marriage Act, 1872. The marriage between the parties in the instant case had taken place in an area comprised in the erstwhile Travancore State. The parties are also persons hailing from that area. Therefore, the marriage between the parties is not governed by the provisions of the above mentioned statute (See also Leelamma v. Dilip Kumar : 1992 (1) KLT 651 and Sujatha v. Jose Augustine : 1994(2) KLT 4).

39. The appellant belongs to Hindu Sambava community. There is no convincing evidence to find that before undergoing the ceremony of marriage conducted in the church the appellant had professed Christianity. When examined as CPW1, the appellant/respondent has stated in the cross-examination that he belonged to Hindu Sambava community. He has also stated that he has no religion and that he believes in Christ as well as Krishna. He did not state that he had professed Christianity before the marriage which was conducted in the church. He did not state that he is a person professing Christianity. In these circumstances, it has to be found that at the time of the marriage solemnised in the church, the appellant was not a person professing Christianity and that he was not a Christian at that time.

40. At this juncture, it may also be noted that the appellant still enjoys the benefits available in the Government service in his capacity as a person who belongs to Hindu Sambava community. This is a fact admitted by him in his evidence.

41. It has come out in the evidence of CPW1 that he had obtained a certificate from the church for solemnisation of marriage in the church. It is also stated that he had got certificate of marriage from the church where the marriage was conducted. The appellant/respondent did not produce any such document before the court.

42. When the marriage is not governed by any statutory law, the validity of the marriage has to be decided in accordance with the personal law applicable. The appellant did not produce before the court the documents which he had allegedly obtained from the church authorities regarding the marriage which was conducted in the church. It follows that there was no valid marriage solemnised between the parties in the church. If that be so, the marriage solemnised as per the provisions of the Special Marriage Act, 1954 is the valid marriage that existed between the parties.

43. We also take notice of the fact that the marriage between the parties was solemnised under Chapter II of the Special Marriage Act, 1954. Ext.A1 is the copy of the certificate of marriage issued under Section 13 of the Special Marriage Act, 1954. Had the marriage between the parties conducted in the church been valid, it was not necessary for the parties to solemnise the marriage under Chapter II of the Special Marriage Act, 1954. It would have been necessary only to register the marriage under Chapter III of the Special Marriage Act, 1954. The very fact that the marriage between the parties was solemnised by them under the provisions of Chapter II of the Special Marriage Act, 1954 would indicate that the parties were also aware and conscious of the fact that the marriage between them conducted in the church was not valid.

44. In Deepti Rajan v. Rajasekhar : 2016 (1) KLT 470, a Division Bench of this Court consisting one of us (Justice C.K.Abdul Rehim), has held as follows:

“If a valid marriage is established between the spouses on a particular date, a second marriage between the same parties will become insignificant for the purpose of establishment of a legal relationship under the marital tie. In certain cases, even if a second marriage between the same parties is solemnized, the date of such solemnization will be of no consequence or significance, because of the existing marital relationship established legally, on an earlier point of time. In such situation, the subsequent marriage becomes void at the option of any one of the parties to the marriage. In other words, any one of the spouses may be entitled to take a contention that the other party cannot seek for a dissolution based on the marriage solemnized subsequently, because the marital relationship has already come into existence on a prior date, based on the marriage contracted earlier”.

45. In Prabir Chandra Chatterjee v. Kaveri Guha: AIR 1987 Cal 191, the wife had filed a petition for divorce labelling it as both under under Section 13 of the Hindu Marriage Act, 1955 and Section 27 of the Special Marriage Act, 1954. In that case, the marriage between the parties was first solemnised according to Hindu rites under the Hindu Marriage Act, 1955 and it was thereafter also registered under Section 13 of the Special Marriage Act, 1954. The Calcutta High Court held that a marriage validly solemnised under any other form cannot, so long as it continues, be again solemnised under Chapter II of the Special Marriage Act and it can only be registered under Chapter III of the Special Marriage Act. It was further held that on such registration of the marriage under Chapter III, the marriage shall thereafter be deemed to be solemnised under the Special Marriage Act. It was also held that a solemnisation under Chapter II of the Special Marriage Act of a marriage already duly celebrated and solemnised under another form, as distinguished from its subsequent registration under Chapter III, would be of no legal effect and significance and in such a case, the earlier marriage duly solemnised in some other form would continue to be valid and effective as before. It was also held that in case of existence of an earlier marriage, a purported solemnisation of the marriage between the parties under Chapter II of the Act would be entirely an exercise in futility and that the earlier marriage celebrated under the Hindu rites would be the only marriage for consideration.

46. In Anupam Das v. Mampi Das (AIR 2008 Gauhati 3), the marriage between the parties was solemnised and registered under the provisions of the Special Marriage Act. The marriage was again solemnised at a temple according to Hindu rites. The wife filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolving her marriage by a decree of divorce, on the ground of cruelty. The husband raised a contention that when the marriage had been solemnised and duly registered under the provisions of the Special Marriage Act, the trial court had no inherent jurisdiction to entertain and proceed with the divorce petition filed by the wife under Section 13 of the Hindu Marriage Act, 1955. The Gauhati High Court noticed that the act of "cruelty" is one of the grounds for dissolving a marriage by a decree of divorce which is common to both Hindu Marriage Act and the Special Marriage Act and that a wrong label given to the petition for divorce or a wrong provision of law quoted will not affect the power of the trial court . However, the Court directed the trial court to proceed with the divorce petition in accordance with the provisions the Special Marriage Act and not under the Hindu Marriage Act. In other words, the Gauhati High Court accepted the contention of the husband that the valid marriage was the one solemnised under the Special Marriage Act and not the subsequent marriage solemnised as per Hindu rites.

47. However, the dictum laid down in Deepti Rajan (supra), Prabit Chandra (supra) and Anupam Das (supra), can have no application to the facts of the instant case for the simple reason that the marriage between the parties solemnised in the church at an earlier point of time is not a legally valid marriage.

48. In Suman Kundra vs. Sanjeev Kundra : AIR 2015 Delhi 124, the husband filed a petition against the wife for grant of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 on the grounds of cruelty and desertion. The parties were Hindus. They had got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage, though a love marriage, could not continue for very long and the relationship soured. As a consequence, the marriage was got dissolved by a decree of divorce on 02.06.1988. After the decree of divorce having been passed, the parties were drawn against each other once again and they decided to get re-married for a second time. On 03.05.1990, their marriage was solemnized under the Special Marriage Act. Again the parties could not reconcile their inherent differences. On 21.07.2005, the husband filed a petition for divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 on the grounds of cruelty and desertion. The wife then filed an application seeking dismissal of the petition for divorce on the ground that the marriage had taken place under the Special Marriage Act and the divorce petition filed under the Hindu Marriage Act was not maintainable. The trial court dismissed the application filed by the wife by holding that it had the jurisdiction to entertain the petition for divorce under both enactments and cruelty, being a ground for divorce under both enactments, there was cause of action for the petition for divorce. The Delhi High Court considered the question whether a divorce petition under Section 13 of the Hindu Marriage Act can be dismissed merely on the premise that the same ought to have been filed under Section 27 of the Special Marriage Act. The Delhi High Court held that there was no inherent lack of jurisdiction to entertain the divorce petition as the trial judge under the Hindu Marriage Act as well as the Special Marriage Act is a District Judge. It was held that there was no lack of inherent jurisdiction of the forum to deal with the divorce petition. It was further held that persons who had got married under the Special Marriage Act cannot be given divorce in a petition for divorce filed under the Hindu Marriage Act. However, the Court noticed that the objection with regard to wrong provision is a matter ought to be raised at the earliest stage and if it is not so done, it could be taken as an objection having been waived by the party.

49. In the instant case also, the appellant had not raised any specific objection before the lower court that the petition for divorce filed under Section 27 of the Special Marriage Act, 1954 was not maintainable. There is no inherent lack of jurisdiction for the Family Court to try the petition for divorce filed under Section 27 of the Special Marriage Act, 1954. The objection which could have been raised by the appellant in the lower court was only with regard to the maintainability of the petition for divorce under Section 27 of the Special Marriage Act, 1954. He did not raise such objection in that court.

50. In Sandhya Gupta v. Saibal Prasad : II (1999) DMC 756, the marriage was first registered under the Special Marriage Act, 1954. Thereafter it was solemnised according to Hindu custom and rites. The petition for divorce was filed under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty of the spouse. It was contended that since the marriage being registered under the Special Marriage Act, 1954 at the first instance, the petition for divorce could only be filed under the Special Marriage Act, 1954. The Orissa High Court held that the Judge, Family Court is vested with the powers to decide the matrimonial matters both under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 and therefore, the issue does not relate to jurisdiction of the court, but the applicability of the law to the case. It was held that in either case, a petition for dissolution of marriage is maintainable before the Judge, Family Court on the ground of cruelty and, therefore, it is not a case, where the Court did not have jurisdiction to entertain and pass a decree, but the question is whether the petition was to be presented under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954. The Orissa High Court held that filing of a petition mistakenly under a wrong provision of law or giving a wrong nomenclature would not oust the jurisdiction of the court, if the relief sought in the petition can be granted otherwise under some other provision of law. It was held that if the court was vested with the power to deal with the application and grant relief, only because the application or petition has been filed under a misconception quoting a wrong provision of law, a party cannot be non-suited. The Court further held that the contention of the appellant to the effect that the petition was not maintainable and as such the decree is a nullity, has to be rejected. It was held that in any event, a decree for divorce on the ground of cruelty is available to either party to the marriage both under Section 13(1)(ia) of the Hindu Marriage Act as well as Section 27(ii) of the Special Marriage Act and the Judge, Family Court in both the cases had the jurisdiction to decide the matter and therefore, the hypertechnical view that the petition having been filed under a wrong provision of law and entertained by the court will vitiate the proceeding, cannot be accepted.

51. In Stephen Joshus v. J.D.Kapoor: 58 (1995) DLT 57, the parties were Christians who had been married to each other under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 seeking the dissolution of marriage by a decree of divorce by mutual consent. The trial court dismissed the petition on the ground that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act and therefore, the petition was not maintainable. The Delhi High Court held that sub-section (2) of Section 28 of the Special Marriage Act confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved only on satisfaction that the marriage has been solemnised under that Act and therefore, upheld the dismissal of the petition by the lower court.

52. In Mohanraj v. Violet Chandra: ILR 1992 Karnataka 846, the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act, 1954. The parties were Christians whose marriage was solemnised under the Indian Christian Marriage Act, 1872 according to the Christian rites in a church. The wife contended that the marriage being one solemnised under the Indian Christian Marriage Act, 1872 and not under the Special Marriage Act, 1954 the petition for divorce was not maintainable. The Karnataka High Court held that a petition for divorce under Section 27 of the Special Marriage Act, 1954 could be filed only when the marriage is either solemnised or deemed to have been solemnised under that Act and therefore, upheld the contention of the wife.

53. In Aulvin v. Chandrawati: AIR 1974 All 278, the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act. The parties were admittedly Christians and they were married in a Christian church according to Christian rites. The wife contended that since the parties were Christians and had been married under the provisions of the Indian Christian Marriage Act, 1872, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869 and the petition filed under Section 27 of the Special Marriage Act was not maintainable. The Allahabad High Court held that the petition for divorce presented under Section 27 of the Special Marriage Act, 1954 was not maintainable since the marriage between the parties was neither solemnised nor registered under that Act.

54. In Prakash Martin Tegur v. Joyce Samuel: ILR 2013 Karnataka 793, the parties were Christians and their marriage was solemnized as per the Christian rites and it was registered under the provisions of the Indian Christian Marriage Act, 1872. A joint petition for divorce was filed by the parties under Section 28 of the Special Marriage Act, 1954. The Karnataka High Court held that when the parties are Christians and their marriage has been solemnized as per the Christian rites and registered under the Indian Christian Marriage Act, petition filed invoking the provisions of the Special Marriage Act, 1954 for dissolution of their marriage was not maintainable.

55. The decisions referred to above would show that the preponderance of view is that a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act. In the instant case, we have already found that the marriage between the petitioner and the respondent which was solemnised in the church is not valid and that the marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in the church was valid, the solemnisation of the marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility. Therefore, there can be no doubt with regard to the fact that the petition for divorce filed by the petitioner under Section 27 of the Special Marriage Act, 1954 is maintainable.

56. The discussion above leads to the conclusion that the appellant has not been able to assail the judgment and decree for divorce passed by the lower court either on law or on facts. The appeal is liable to be dismissed.

Consequently, we dismiss the appeal. No costs.