Comment on 1989 (2) KLT 845 Regarding Precedents

(L Manoharan, Advocate, Trivandrum)

A single Bench of the Kerala High Court has held in 1989 (2) KLT 845, that when there are two conflicting decisions of superior court of equal strength, their weight must be considered by the rational and logic thereof and not by the mere incidence of time of judgments. In deciding the same his Lordship Justice K.T. Thomas has merely relied on AIR 1987 Pat. 191. This decision is against the decisions of other various High Courts including the High Court of Kerala.

A division Bench of the Bombay High Court in AIR 1980 Bombay 341 is one instance. In that case their Lordships noticed the irreconcilability between two decisions of Supreme Court (each Bench consisting of equal number of Judges) Viz. AIR 1965 SC 414 and AIR 1976 SC 2229 and held "In the event of there being conflict, the decision of such later Bench would be binding on us".

The High Court of Karnataka is also of the same view. AIR 1980 Kant 92 F.B. (consisting of five Judges). It was on a direct question on a reference to a larger Bench by a Full Bench. Therein all the Judges opined that if two decisions of Supreme Court-on a question of law cannot be reconciled and one of them is by a larger bench, while the other is by a smaller bench, the decision of the larger bench whether it is earlier or later in point of time, should be followed. But with regard to decisions of two benches consisting of equal number of Judges, the majority (three Judges) held that the later of the two decisions should be followed though the minority (two Judges) was of the view that the better in point of law is to be followed.

In AIR 1981 Allahabad 300, the Full Bench of Allahabad High Court also accepted the same proposition. In that case, AIR 1977 All.1, AIR 1980 Kant. 92 and AIR 1968 Cal. 174 were considered and followed. Therein their Lordships relying on AIR 1980 SC 1762 also rejected the contention that the later judgment is 'per incuriom'. The contention to follow the decision which appear to be better in point of law (which was favoured by the minority view in AIR 1980 Kant. 92, AIR 1981P & H 213 and AIR 1987 Pat. 191) was also rejected after discussing English Decisions.

Again the Gujarat H.C.in AIR 1986 Guj.81(FB) after considering AIR 1981 P & H 213, AIR 1980 Bom, 341 and AIR 1980 Kant.92, agreed with the High Courts of Bombay and Karnataka and declared that "when there are two conflicting decisions of the Supreme Court consisting of equal number of Judges, the later of the two decision should be followed".

The Division Bench of Kerala High Court in 1987(1) KLT 192, when dealing with a case in Sales Tax held, "In any case, the decision in Pio Food Packers (1980 KLT 624) is later in point of time rendered over a decade after the decision...........we are bound to follow the later decision..........."

But the contrary view is expressed by the High Courts of Punjab and Haryana in AIR 1981 P & H 213 (FB) and Patna in AIR 1987 Pat.191 (FB). In the former approving the minority view in AIR 1980 Kant. 92, it was held that the decision which appears to state the law accurately is to be followed and the mere incidence of judgments of co-equal Benches of Superior courts whether it is earlier or later is not a relevant consideration. The latter also (AIR 1987 Pat.191) approved the same view. There it is to noted that it is the very same Judge (S.S. Sandhwalia CJ) who headed the judgment in AIR 1981P & H 213 spoke for the majority in AIR 1987 Pat. 191.

From the above it can be seen that the High Courts of Bombay, Kama taka, Allahabad, Calcutta, Gujarat and Kerala are of the uniform opinion that the later decision is to be followed whereas the Punjab and Patna-High Courts are of opinion that the decision which appears to state the law accurately is to be followed:

Then, if the decisions of Supreme Court are considered as the Punjab and Patna High Court direct, to choose one which appears to state the law accurately the difficulty may crop up when both the decisions are reasoned. In such situation there is no proper solution to the problem than to accept a view which the Judge favours. The result would be "intellectual slavery' as his Lordship J. Sukumaran puts it (1987 (2) KLT 848). Judicial propriety does not warrant it. Obedience to law becomes a hardship when the law is unsettled or doubtful. The rule of law should be settled than it should be theoretically correct. Another factor is also there. The decision of a Division Bench of Supreme court is binding on another Division Bench of the same number of Judges and the Supreme Court also is not bound by its earlier decision and possess the freedom to overrule its own judgments in a changed social context (See U.O.I, v. Raghabir Singh (AIR 1989 SC1933) when this proposition is also reconciled on the principle of implied over ruling does not the earlier decision over ruled by the later one by necessary implication? So I feel, the view expressed by the former is sound. Though not directly, the Supreme Court also favours this position. In AIR 1959 SC 1041, the Supreme Court approved the later decision on the ground, "Punjab Custom is fluid and capable of adapting itself to varying conditions and that the decisions for the last ten years are uniformly against..........."

Coming to 1989 (2) KLT 845, it is not seen that the decision in 1987 (1) KLT 192 - which has a binding force-has been brought to the notice of his Lordship. Had it been apprised, that part of the decision would have been different. Hence that part of the judgment requires reconsideration.

Decision Per Incuriam

(By M.R. Parameswaran, Advocate, Ernakulam)

In 1981 K.L.T. 861 (Dakshayani v. Madhavan) a Division Bench of the Kerala High Court held that the deposit contemplated by Order XXI Rule 89 C.P.C. for setting aside sale thereunder is to be made within the time specified in Rule 92(2) i.e., 30 days from the date of sale though the period for filing applications for setting aside court sales is extended to 60 days under Article 127 of the Limitation Act. The Court took note of the anomaly as a case of 'Casus omissus' while the comprehensive amendment was made to the provisions of the Civil Procedure Code in 1976 by Act 104 of 1976 including Article 127 of the Limitation Act and called the attention of the Government to the need for immediate amendment of the Rule 92(2) to Order XXI C.P.C. Thereafter the Madras High Court in A.I.R.1981 Madras 254 (Thangammal v. Dhanalakshmi) held that Article 127 of the Limitation Act as amended prevails over Rule 92(2) applying the maxim Generalia Specialibus Non Derogant and as such the deposit as well the application for setting aside the sale need be made within 60days. The Supreme Court in Basavantappas case AIR 1987 Supreme Court 53 pointed out the inconsistency between the two provisions and held that a harmonious construction is called for. (Thangammal v. Dhanalakshmi) AIR 1981 Madras 254 was relied upon. Necessary amendment by Parliament was also suggested in this decision. Now on 22nd February 1990 a Division Bench of the High Court of Kerala in (Pathummakutty v. Kathiyumma) 1990 KLT (1) 596 has overruled 1981 KLT 861 (Dakshayani v. Madhavan) following Thangammal's case and the decision of the Supreme Court in Basavantappa. On 20th February, 1990 a bench of three Judges of the Supreme Court has held speaking through Thomman, J. in P.K. Unni v. Nirmala Industries and others 1990 (1) KLT 896 : (1990) 2 SCC 378 that the deposit contemplated in Order 21 Rule 89 is a condition precedent to the making of an application to set aside the sale. The court drew a distinction between the making of such a deposit which is to be made in 30 days and filing of the application for which the period is 60 days after the amendment. The court overruled Thangammal's case and also Basavantappa. It is now found that there is no inconsistency and the maxim Generalia Specialibus Non Derogant nor the Principle in Heydon's case applies. The Court finally relied upon AIR 1953 SC 148 and also quoted Lord Halsbury in Mersey Docks case and Crawford v. Spooner to hold that in any view it is not for the court to make up deficiencies in an enactment. The court also referred to Dakshayani v. Madhavan (1981 KLT 861) and held that the time for making the deposit under Order 21 Rule 89 CPC is only 30 days. In the light of this decision the decision in Pathummakutty v. Kathiyumma 1990 (1) KLT 596 is not good law. It is a decision Per Incuriam as the same has been rendered after the decision of the Supreme Court in P.K. Unni's case and in ignorance of it.

Polygamy in Islam : Misrepresented and ill Judged

(M. Fazlul Haq, Advocate, Varkala)

Dr. W.F. Menski was written an elaborate reply (“Comparative legal training in action: a reluctant defence of Polygamy”, 1990 (1) KLR J.p.50-69) to Mr. Mustafa Ali Khan on his essay, “Islami Polygamy - a blessing in disguise” (1989 (1) KLT J. p.47-58).

In a discussion on the subject: "Polygamy in Islam", two points crop up for consideration:

(1) What are the injunctions of Islam?

(2) What is the relevancy of those injunctions in the modern World?

On the first point, as observed by the Allahabad High Court (D.B.) in a recent decision, the Qur'anic injunctions are clear, but misrepresented and ill-judged by laymen outside the religion of Islam.

The Court held: "..............................It is a dangerous game to tear tenats from another persons' religion out of their context for one's personal advantage. Polygamy under Islam was always an exception, and never a generality. Then Polygamy went and goes with the obligation of equality, equity, Justice to be discharged or dispensed amongst more than one wife. The Koran speaks of conscience as an obligation on the husband before taking two, or three or four wives. It speaks of equality of love amongst wives, and equality which is within the sole perception of the woman not the male. It is a hard discipline of the Islamic religion which requires perfection as any wife in a polygamous marriage can as of right speak out in a case of in equal treatment, and make matters difficult for a husband. Thus, a polygamous marriage, under Islam, is exception with a mathematical justice of equality amongst the wives - the woman is the Keeper of conscience. The husband only discharges it with an effort which borders on justice. The scales are with all the wives. If one complains of in-equality no one can question her. Such is the discipline of the Koran...............The concept of marriage and Polygamy under Islam and as is referred to in the Koran is clear, but misrepresented and ill-judged by laymen outside this religion.............................": (See Chandrapal and others v. Keshav Deo and others, 1990 (1) Civil Law, J. 790).

In the above case, a Hindu husband who was prosecuted for bigamy challenged the prosecution by a petition under Articles 226 and 227 of the Constitution of India, contending that S.17 of the Hindu Marriage Act, 1955, is ultravires of the equality clause under the Constitution because if he were a Muslim he would get away with it and cannot be prosecuted under S.494, 1.P.C.) and consequently the petitioner contended that even S.494,1.P.C. is ultravires. Dismissing the petition the Court further held:"......................The petitioner's contention that S.17 of the Hindu Marriage Act, 1955 or S.494 of the Indian Penal Code, 1860, are ultravires as they offend his liberty as he understands it, under Article 21 of the Constitution of India is a myth of his own making and an immorality engineered by him and it effects neither religion to which he belongs nor any concept of marriage under Islam......................"

Only a layman can say that a Muslim has a right to have four wives; It may also be noted that no marriage, polygamous or otherwise be solemnized without the free consent of the woman. So, even if a man proposes to contract a polygamous marriage, if no woman is willing, his wish will remain as a mere dream. So, it is respectfully submitted that there is no reason why Dr. Menski and the like-minded scholars should shed crocodile-tears for the women in the name of Polygamy.

Let us now, come to the Qur'anic injunctions on the point:-

"In the name of the Merciful and compassionate God;

(1) O Ye folk! fear your lord, who created you from one soul, and created there from its mate, and diffused from them twain many men and women. And fear God, in whose name Ye beg of one another, and the Wombs; verily, God over you doth watch;

(2) And give unto the orphans their property, and give them not the vile in exchange for the good, and devour not their property to your own property; verily that were a great sin. But if you fear that Ye cannot do justice between Orphans, then marry what seems good to you of women, by twos, or threes, or fours;

(3) If you fear that Ye cannot be equitable then only one..................That keeps you nearer to not being partial;

(4) And give women their dowries freely;

(5) Ye are not able, it may be, to act equitably to your Wives, even though Ye covet it; do not however be quite partial, and leave one as it were in suspense.................": (E.H. Palmer: "The Qur'an", the Chapter of Women (IV) 1-4,125-130).

The Qur'an, thus, permits Polygamy as a part of religious duty to do justice between orphans; not as a sexual variety entertainment. Dr. Menski's comment on the subject is only superficial and biased; and the learned author has not attempted to study the Qur'anic Law on the point; at any rate, his article is silent on that aspect, presumably with ulterior motives.

Let me quote Moulana Muhammad Ali regarding the scope of the above verses; ".....................The care of the orphan was one of the earliest injunctions that Islam gave, and the prophet had always shown a deep anxiety for the welfare of the poor and the orphans.............This Chapter was revealed to guide the Muslims under the conditions which followed the battle of Uhud...................Now, in the battle 70 men. Out of 700 Muslims had been slain, and this decimation had largely decreased....................... Thus, many orphans would be left in the charge of widows, who would find it difficult to procure the necessary means of support..........................We are told that if they could not do justice to the orphans, they might marry the widows whose children would thus become their own children; and as the number of women was now much greater than the number of men, they were permitted to marry even two or three or four women. It would thus be clear that the permission to have more wives than one was given under the peculiar circumstances of the Muslim Society; and the prophet's action in marrying widows, as well as the example of many of his companions corroborates this statement. Marriage with orphan girls is also sanctioned in this passage for there were the same difficulties in the case of orphan girls as in the case of widows...................". ("The Holy - Qur'an", p. 187).

It has been rightly held that polygamy is encouraged or permitted by Islam as an exception and not as a rule. Islam has its own conception of marriage; and does not permit extra-marital relations, which have become the very foundation of what is called the western culture; aptly described as bourgeois, way of life by communists. For example,

"Manifesto of the Communist Party" says:--

"Our bourgeois, not content with having the wives and daughters of their proletarians at their disposal, not to speak of common prostitutes, take the greatest pleasure in seducing each other's wives. Bourgeois marriage is in reality a system of wives in common................": (K. Mark and F. Engels, p.88,1955 Edition).

Dr. Menski's comment contains contractory and mutually destructive arguments. While pointing out that Polygamy is only one possible way to alleviate particular social problem and is a useful legal remedy in certain difficult social situations, and that a qualified permission for Polygamous arrangements of any combination seems a reasonable way forward for modern India, the learned author contradicts himself by saying that allowing Polygamy is nothing but a clever device to legitimise sexual relations that may otherwise be illicit. He also states that a female student declared herself ready to accept polygamy provided polyandry was legally recognized. We find in this a plea in disguise for legalization of extra marital sexual relations which have demoralized the western social life. If the western minded people, who are described as bourgeois, by Marx and Engels, want such a legislation to legalize their present immoral life, which is immersed in the "Pleasure in seducing each other's wives", let them have it. It appears that the "qualified permission" which Dr. Menski has in his mind may be the above condition of his female student. On the matters of this kind the Qur'an urges the Muslims to say; "Ye have your religion, and I have my religion". (Chapter 109).

The question is whether Dr. Menski admits that Mr. Khan has correctly cited in his essay the Islamic law on the subject. If so, his criticism will be a fruitless exercise so far as the Muslims are concerned who will ignore it as anti-Islamic.

Here, it may be remembered that prostitution, the greatest evil of civilization which is a real canker, with its concomitant increase of bastardity is practically unknown to Countries where polygamy is allowed as a remedial measure: (Moulana Muhammad Ali, ibid; p. 188)

As a matter of fact, in India, the Muslim community is not confronted with any serious problem arising out of or connected with Polygamous marriages.

As held by the Allahabad High Court (ibid., p. 795): "........................As social conditions in the nation and through out the world continue to change, the reality of life is that even without a code on personal law of Muslims in so far as the Marriage is concerned, Polygamy is going in to oblivion. Education, changing patterns of the family structure, the structure of a family in the context of reality of the world, and economic necessities are on their own precipitating a situation where monogomy is becoming the reality though the religion permits a Muslim with such sanction of conscience to venture in to Polygamy. But, the code upon which Polygamy rests in Islam is strict and difficult to keep. Let no man misunderstand another's religion". (See also "Islamic Law in Modern India", by Indian Law Institute, 1972 Edition p.154).

But, prostitution and extra-marital relations create grave danger to social life in India too because of the influence of the bourgeois' way of life or the western culture. The West is now, punished by God through the fatal disease: AIDS for their promiscous sexual life. "This (the Qur'an) is a guidance, and those who misbelieve in the signs of their Lord, to them is torment of a grievous plague": (Chapter, 45,12).

The problem of prostitution has now, come up for consideration before the Supreme Court of India, in G. Jain v. Union of India, AIR 1990 SC 292. In this case, an application under Art.32 of the Constitution was filed asking for direction to the Union of India and others for making provision of separate hostels for children of prostitutes. The Court observed: "..................Legislation has been brought to control prostitution. Prostitution has, however, been on the increase and what was once restricted to certain areas of human habitation has now spread in to several localities. The problem has, therefore, become one of serious nature and requires considerable and effective attention......."

The court, therefore, constituted a committee to examine the material aspects of the problem and submit a report containing recommendations to the court. How did these women become prostitutes? Who are responsible for the same? Can it be said that Polygamy has produced prostitution? What are the remedial measures to be taken for rehabilitation of prostitutes and their children? Ail these aspects require investigation and serious thoughts.

Though Marx and Engels have visualized that abolition of the present system of production must bring it with it the abolition of the community of women springing from that system, i.e., of prostitution both public and private (ibid.,p.89), it is not clear whether in countries under the rule of Communism this has been achieved.

Dr. Menski says that in several European Countries, esp. Germany, millions of women did not become Polygamous but remained unmarried because of unavailability of men in their age groups. This has become socially acceptable and has caused no noticeable adverse moral effects, and the facts are that many women in those countries, and else where, have become self supporting.

But, if these women, who have become self supporting and at the same time remain un-married, are leading a chaste life also, that is well and good. How many of them lead a chaste life is a matter which is to be enquired into.

However, when the orphans or widows including the prostitutes and their children cannot otherwise be protected or rehabilitated, Polygamous marriages should be encouraged as a remedial measure. Thus, the Islamic Law on Polygamy holds considerable importance in the modern times, too.

Personality Disorders and Nullity of Marriage According to Church Jurisprudence

(Rev. Dr. Joseph Vadakumcheny, Presiding Judge, Archdiocesan Tribunal, Ernakulam)

The Ability to Assume the Marital Obligations

As in every contract, consent is the efficient cause of the marriage covenant, and the deficiency of this consent cannot be supplied by any human power other than the spouses themselves. In order for a marriage to be contracted validly, a psychologically valid consent, elicited in terms of due mental discretion alone, will not be enough. The spouses should also be in a position to decide upon or reach out the object of the marital consent, which points to the capacity of the contractants in respect of the very object of marriage, and this capacity is termed by jurisprudence as 'the ability to assume the marital obligations'.

Viewing marriage objectively, we can see that the object of the marriage covenant is the formation of a permanent family, which entails the mutual rights and obligations which level with the nature, purpose, and the essential characteristics or properties of marriage. Hence, the spouses, while entering marriage, should be endowed with the emotional maturity and 'the capacity to assume', whereby they can bind themselves in order to sustain, honour, and fulfil the essential obligations of marriage.

A person's inability to assume marital obligations can be said to be amounting to a consensual defect, only in the sense that a psychologically valid consent could be rendered inefficient with regard to the object in so far as the object of the marital consent would be far beyond the reach of the contracting person (subject) because of his/her 'personality make up' which impedes him/her from carrying out the obligations of married life.

Lack of due discretion necessarily implies inability to assume marital obligations, and not vice verse. For, the marital consent is of the present ('de praesenti') and the marital obligations which constitute the object of the marital consent are to be. under- taken here and now at the time of marriage, and hence the person who is bereft of the due discretionary power of the mind is also enept to assume the object of the marital consent.

On the other hand, a person because of some personality disorder, though not deprived of the due discretionary power at the time of marriage, can remain enept to sustain, honour, and fulfil the obligations of married life. In such a case the marriage can be declared null on the score of the 'inability to assume marital obligations' alone. That is why the present Rotal Jurisprudence recognises 'inability to assume marital obligations' as an autonomous ground of nullity as distinct from the 'lack of due discretion'.

Since marriage-consent is of the present and the marital obligations are to be assumed here and now at the time of the marriage, 'the inability to assume' of either contractant is to be assessed with respect to the time of marriage, so much so, it should exist at the time of marriage and not at a later period. An example will illustrate this: suppose that somebody has reached an agreement to buy a house, and unfortunately the said house was razed to the ground at the event of an earthquake or any other calamity, precisely before the registered deed of contract was executed; the buyer unaware of the incident executes the contract deed in respect of the house which was inexistent at the time of the purchase deed; since it was a contract regarding an inexistent thing, the said contract cannot be but invalid. In like manner the marriage contract would be invalid, were it to be effected when either of the spouses had not the ability to assume the obligations of marriage. The 'inability to assume' is also termed as incompetence.

The Essential Rights and Obligations of Marriage

Traditionally the essential rights and obligations which constitute the object of the marriage-consent were limited to the exchange of the right to those acts necessary for procreation of progeny ('bonum prolis'), to a life-long marriage ('borumSacramenti'), and to fidelity in marriage ('bonum fidei').

Already in the Encyclical "Casti Connubi", Pope Pius XI had included among the essential marital obligations of spouses, "the generous giving of self and the life-long commitment of the person to the partner in marriage" (Preface).

The Pastoral Constitution of Vatican II, "Gaudium et Spes" (n. 48), while describing marriage as "an intimate partnership of life and love", and "as a mutual giving of two persons" has enlarged the extent of the rights and obligations of marriage also to "the community of life and love". The Council indeed speaks of a sane interpersonal relationship between the spouses about which St. Thomas Aquinas has already preluded (Suppl., q. 44, art -1).

The Jurisprudence of the S.R. Rota has taken proper account of the mind of the Vatican Council while judging the marriage -nullity cases. The Rotal Judge Serrano in a decision, dated 5 April 1973, states that as matrimonial consent is primarily and radically directed to the interpersonal relationship, the partner in marriage, who, because of his/her personality make-up, is simply unable to form an adult personal relationship, cannot contract a valid marriage (SRRD: Vol. LXV, p. 330-331, nn. 11,12).

The Communion of Life and Love

The revised legislation of the Church while defining marriage has incorporated the Conciliar concept and terminology on marriage: "The marriage covenant established by the Creator and ordered by His Laws, by which a man and a woman, by an irrevocable personal consent, establish between themselves a partnership of the whole life, is by its natural character ordered toward the good of the spouses and the procreation and education of the offspring" (CCEO, 776; CIC, Can. 1055). If the marriage is'a community of life and love', then the marriage-partners, must conscientiously give to each other the right to this community of life and love together. That means, a prospective spouse must be able to make a rudimentary assessment of the capacities of oneself and of the partner, and to decide freely that he/she wishes to establish a perpetual and exclusive community of life and love with the partner, a community that will involve-a life-time of fundamentally faithful caring and sharing (Lawrence G. Wrenn, Decisions, Washington, D.C., 1982, p. 160). This consideration opens the way to deal with easily those marriage cases in which one of spouses, because of some personality disorder, is unable to give the marriage partner this right to a community of life and Jove in marriage.

The communion of life stands out as the basic and overall marital obligation, and as such it comprises all other essential obligations which marriage entails. Hence the capacity to promote a mutually committed interpersonal relationship in view to fostering generously the community of conjugal life and love can be considered as an indispensable specific capacity the spouses should be endowed with.

In other words, the communion of life and love on the basis of an interpersonal relationship presupposes in the spouses a unique capacity coupled with that state of mind which is solicitous of promoting the well-being of the one by the other, of being a mutual aid in love and fidelity, of giving oneself and accepting the other as a distinct person, and of relating to each other in a meaningful manner of caring, sharing and supporting (The Code of Canon Law: A Text and Commentary, TPI, Bangalore, 1986, p. 777-778; SRRD: Coram Serrano, 9 July 1976: Monitor Ecclesiasticus, 102 (1977), p. 369Sq.)As the main radical capacity of those called to married life, it engenders all the rest of the subsidiary capacities which are necessary to guarantee and protect the three 'bona' of the marriage covenant, namely, the procreation and education of children, a life-long committed married life, and the marital fidelity. That means, the incapacity or inabilility on the part of either of the spouses to assume and fulfil any one of the essential obligations, whether it be relating to the 'bonum prolis', or 'bonum Sacramenti', or 'bonum fidei', or communion of life, is sure to render the marriage-consent defective on the part of its object.

Though it is difficult to determine the quantum of the marital obligation relating to communion of life and love, it is nevertheless possible to determine those obligations which would constitute a required minimum without which there could be no marriage at all. A true marriage certainly requires the ability to establish and maintain at least a minimum kind of common life, ie, a certain minimum capacity of the couple to share their lives together in more than a physical sense.

Adverse Impact of a Personality-Disorder on the Communion of Married Life

A person can be rendered incapable of true matrimonial consent on the score of 'inability to assume' by a phychic disorder. Excepting the qualified cases of Psychoses which necessarily impair the required discretionary power of the mind, there can be cases of psychopathis personalities which are personality disorders exhibiting a variety of abnormal behavioural patterns to the extent of causing harm either to oneself (Neuropaths) or to the society (Sociopaths). "The abnormal is but an exaggerated or unbalanced expression of the normal - mode of behaviour or of living which is logical although socially maladjusted outcome of the particular individual's original endowment" (Kolb, Modern Clinical Psychiatry, 9th ed., W.B. Saunder's Company, Philadelphia, London, Toronto, 1977, p. 119).

In the chapter dealing with the matrimonial consent, Canon Law rules: "Those, who, because of causes of a psychic nature, are unable to assume the essential obligations of marriage, are incapable of contracting marriage (CCEO, 818, n. 3; CIC, 1095,n.3).

It is to be noted that only personality disorders of psychic nature, which stem from the original endowment of the particular individual can bring about the inability which is our present consideration. Hence Vices which are acquired habits due to the malice of the will cannot give ground to a nullity case on the score of inability to assume.

Psychic anomalies like severe immaturity, Neurosis, Psychopathy, Borderline cases etc. could be pointed out as general causes of the psychic incompetence, and the

personality disorders like homosexuality, Nymphomania, Trans-sexualism etc. would be some of the particular causes for the said incompetence, deriving from any of the aforesaid general causes.

Although Modern Psychiatry distinguishes a variety of psychopathic personalities amounting to ten different kinds, all of them have certain common traits like immaturity, egocentrism, non-communication, propensity to tell lies, debility of the mind, inability to take a practical decision etc. (SRRD: Coram Raad, 13 Nov. 1979: Monitor Ecclesiasticus, 105 (1980), p. 33, n.6).

It is characteristic of the psychopathic personalities that, while their mental faculties remain intact and unimpaired, they are prone to be unsteady and their fluctuating suggestibility and affectivity are wont to produce a certain immaturity which renders them incapacable of having control and evaluative insight into life whereby the sufficient freedom of choice would be lacking in them. The immature personality is exemplified by a lack of psychic maturity, dependency, incapacity of accepting responsibility etc.

In the case of psychopathy or personality disorders, it is not easy to determine practically whether the disorder has reached such a stage at the time of marriage as to render the contract incapable of assuming marital obligations. There is no favour of presumption on the part of law in such cases. Only the existence of a very serious and aggrevating circumstance in connection with the marriage would give grounds to absolute incompetence of the contractant. It is in this sense that Canon law speaks of the 'inability to assume'.

Some Ecclesiastical Tribunals, especially of the United States, seem to consider also relative incompetence termed as 'psychological or radical incompatibility' (mutual inability to fulfil the obligations of marriage) as giving grounds for nullity of marriage on the score of inability to assume'. This relative incapacity, accordingly, is any psychological incompatibility tantamount to a personality disorder which renders one incapable of fulfilling the obligations of marriage only with a particular person.

Whatever be the terminology adopted in order to designate this relative incapacity, as a matter of fact, this cannot be an acceptable criterion at all to decide upon the nullity of a given marriage. For, we cannot speak of any true moral impotence or incompetence which is shared half and half mutually by both the spouses. The invalidating psychic anomaly should exist in an aggrevating degree in either or in both the spouses. In either case it can be only an absolute incompetence. The relative incompetency can bring about only difficulties in a given marriage and not any invalidating circumstance.

We should bear in mind that there is adequate distinction between impossibility and difficulty. So too there is distinction between inability and incompatibility. Cases of inability result in impossibility, while the cases of incompatibility bring about difficulties only which could be surmounted by the intervention of good will and efforts for adaptation and adjustment on either side. Lack of this good will and efforts at the opportune time during the course of joint married life cannot argue apt all for the nullity of as marriage on the score of inability to assume and fulfil the obligations of marriage. Hence the incompetence in order to be invalidating the marriage consent, should have already existed as a serious personality disorder which had irremediably rendered either of the contractants really incapable of assuming the essential obligations of marriage at the time of contracting the marriage.

Reflections on Leelamma v. Dilip kumar-1992 (1) KLT 651

(By Fr. Joseph Vadakkumcherry, Archdiocesan Tribunal, Ernakulam)

It was a moment of exultation for the Church in Kerala when the High Court of Kerala delivered its judgment in Leelamma v. Dilip Kumar on February 24,1992.

The facts of the case can be summarised as follows:--

The petitioner in this case was a Syrian Catholic wife and the husband, the respondent, was an Ezhava by birth. Concealing the fact of Ms being an Ezhava, be pretended to be a Syrian Catholic, and obtained the consent of the petitioner tor marriage. Thereafter, presenting himself as the son of Syrian Catholic parents, k& received baptism from a Catholic priest, before the marriage actually took place. The petitioner, wife, therefore, prayed for a declaration of nullity of the said marriage under S.19of the Indian Divorce Act on the ground of "Fraud".

The Hon'ble High Court after referring to the Canon Law for the first time has laid down in categorical terms that the personal law applicable to Latin and Syrian Catholics is their respective Code of Canon Law, and declared the said marriage null and void on the ground that misrepresentation regarding religion or community is "fraud" and that it has vitiated the consent of the petitioner in this case.

Though there were decisions of various High Courts in India and that of the Supreme Court on this point, they were not understood in their proper perspective when this Hon'ble High Court dealt with Kurian v. Alphonsa (1986 KLT 731) and Jose v. Alice (1988 (2) KLT 890). There the Court proceeded on a basic assumption that there was conflict between Canon Law and Civil Law. In fact, that was not the case at all.

Canon Law always respected the Civil Law. Further Canon Law provides for adjudication of civil effects of marriage by a civil court (see Canons 1059,1062. and 1672 of the Code of Canon Law, 1983, of the Latin Church, and Canons 780 and 1358 of the Code of Oriental Canon Law, 1990).

The 1988 and 1988. cases in the Civil Court could have been resolved without entering into any adverse finding on the proceedings under the Canon Law, as those cases were concerned only with the question of the civil effects of marriage, like maintenance. In my opinion those decisions did not advance the development of that branch of civil law on marriage and divorce, rather, only hindered its growth.

It is interesting to note that the constitutional provisions under Art.44 for the ena - tment of a Uniform Civil Code remains a dead letter and the Muslims are allowed to be governed by their personal law. Yet, when it comes to the Christians, they ought to be the only "Indians" in India. For example, the Indian Divorce Act of 1869, and the Indian Succession Act of 1925, are by their title meant to be for Indians, but for all practical purposes, they are applicable only to the Christians in India.

Therefore, when the Muslims and other communities are governed by their personal laws, there should be no reason why those Indian Christians belonging to the Catholic denomination be discriminated in that matter, especially, when they have their respective Code of Canon Law as their personal law. In fact, the Latin and the Oriental Codes of Canon Law are well developed and refined systems of law and in no way inferior to any other legal system for that matter, but can only claim superiority on the score of the timely revision and updating and especially when the Civil Law remains unamended even after a century.

Under the circumstances, the recent judgment of the High Court of Kerala assumes special significance. The High Court in this case has held in categorical terms, after referring to and relying on the decision in Lakshmi Sanyal v. S.K. Dhar (AIR 1972 SC 2667), that Canon Law governs the members of the Syrian Catholic Community.

In fact the Supreme Court in the aforesaid case had already held that "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 the marriage would be the law of the Roman Catholic Church, namely, the Canon Law of that Church."

Inspite of this decision of the Supreme Court in 1972, it was unfortunate that this could not be highlighted before the High Court of Kerala in 1986 and 1988. It is in this context that the present decision comes as a much awaited remarkable and appreciable judgment, which is rendered by Hon'ble Justice Chettur Sankaran Nair, for removing the confusion over the matter for the last few years, in the minds of the Bench and the Bar in Kerala. It is given to understand that Advocate Sebastian Champappilly M.A., LL.M., who is a scholar in the field, used his expertise to serve the Catholic Community through this case.