Walter Schwabe, C.J.@mdashThis is a suit for nullity of a marriage under the following circumstances. The respondent, when a Hindu, was
married to a Hindu. The respondent changed his religion being converted to Christianity. No steps were taken by him to dissolve his marriage, but
he then went through a form of marriage with the petitioner, also a Christian. The petitioner now brings this suit on the ground of bigamy of her
busband, he having a wife alive at the time went through the form of marriage with her.
2. The first defence raised is that the petitioner has no rights under the Indian Divorce Act because it is alleged that she does not profess the
Christian religion. This is based on a resolution of the particular sect to which she belongs, in effect excommunicating her. In my judgment, although
she may be excommunicated by the section the Church to which she belongs, she does not thereby cease to profess Christianity. The question of
profession of Christianity is a question of her own action and not of the action of her Church. It is to be observed that the petitioner was the
daughter of a Christian and, no doubt, was baptised as a Christian. I cannot see how it can be said that she ceases to profess the Christian religion
because her Church, disapproving of her conduct, has excommunicated her.
3. The second defence raised is that at the time of this marriage there was no existing marriage of the respondent, it being alleged that by reason of
his conversion his then existing marriage became dissolved. That is not the law. It is quite clear from the Native Converts Marriage Dissolution Act
XXI of 1866 that the conversion to Christianity of one of two married Hindus does not dissolve the marriage. That act provides for means to
obtain dissolution of the marriage by application to the Court, first of all, for restitution of conjugal tights and then, after the lapse of a year, for
dissolution of the marriage if conjugal rights are refused. Otherwise, the conversion to Christianity of one of two spouses has no effect on the
existing marriage.
4. It follows that the decree that it is a nullity is correct and must be confirmed with costs.
Oldfield, J.
5. I have felt some doubt with regard to the first question raised by this petition, whether the petitioner can be said to have been professing the
Christian religion at the time she presented it, within the meaning of Section 2 of the Indian Divorce Act. My hesitation arises from the facts,
evidenced by the resolution of excommunication referred to by my Lord, that she had repudiated the authority of the governing body of the
Christian denomination, to which she belonged, and that she was by the resolution deprived of the spiritual privileges of the Christian faith in the
only form, in which, so far as appears, she has ever possessed them. The reply suggested is that, not with standing her withdrawal or expulsion
from a particular denomination, she can still he heard to say that she professes an unsectarian Christianity. These words of the Act have always
been difficult of interpretation; and it is with some hesitation that I accept the suggest on made on her behalf, It is some justification for doing so that
there is nothing before us as to her admission or re-admission to Hinduism, which presumably was originally her faith of that of her parents, and
nothing to show whether such re-admission or admission is possible and there is, further, the fact that the policy of the law appears to require the
application of the words of Section 2 to what may be a substantial class of persons in this country, those who have abandoned a particular sect but
who still remain unattached to any religion other than Christianity.
6. In these circumstances, I do not feel Justified in dissenting from the judgment just delivered.
Ramesam, J.
7. I agree with the judgment of the learned Chief Justice. In my opinion the religion of a person is what the person professes and does not require
recognition by the other persons belonging to that religion. A Hindu, who professes to be a Hindu, though he may be excommunicated by all the
existing Hindu castes is still a Hindu though probably be is subject to great social inconvenience. In this respect I do not think that there is anything
peculiar to Christianity. If a person says that he is a Christian, though he does not belong to the existing Christian Churches he is stilt a Christian.
Probably his creed is different from the existing creeds and he is subject to social inconvenience in respect of the performance of marriage and
burials. Still he would be a Christian.
