Lakshmi Sanyal v Sachit Kumar Dhar (Supreme Court, 1972) — the Parts of the Christian Marriage Act are self-contained, and Canon Law supplies the prohibited degrees

Two questions recur in problems on Christian marriage: does the requirement of parental consent apply to every Christian marriage, and what are the "prohibited degrees" when neither Act defines them. This judgment answers both, and it is the reason the five categories in s. 5 must be learned as five separate routes rather than one list.

The appellant sued for a declaration that her marriage to the respondent was null and void. Both professed the Roman Catholic faith, and the marriage was solemnised by a Minister of the Roman Catholic Church who had received episcopal ordination and was competent to solemnise it under s. 5(1) of the Indian Christian Marriage Act, 1872. She pleaded two grounds: that she was a minor at the time and neither her father's nor her guardian's consent had been taken as s. 19 of the 1872 Act requires, nor had she consented freely; and that the parties were within the prohibited degrees of consanguinity, their mothers being sisters, so that the marriage was void. Before the ceremony a dispensation had been obtained from the competent authorities of the Church. The Calcutta High Court dismissed her suit and she appealed by special leave.

1. Does s. 19 of the 1872 Act, which requires the consent of the father, guardian or mother of a minor, apply to a marriage solemnised by a person falling within category 1 of s. 5?
2. Where the parties are related in the second degree of consanguinity but a dispensation has been granted under Canon Law, are they "within the prohibited degree" for the purpose of ground 2 of s. 19 of the Divorce Act, 1869?

Grover J., dismissing the appeal, held on the first question that the High Court was right: the provisions of s. 19 of the Christian Marriage Act were not applicable, since the marriage was solemnised by a person falling under s. 5(1). The making of separate provisions in Parts III, V and VI of the Act about the marriage of minors and the consent of parents or guardians shows that "each part is meant to be self-contained". A person in categories 1 and 2 of s. 5 can solemnise a marriage only according to the rules, rites, ceremonies and customs of his own Church, so the machinery of Part III — which applies to Ministers of Religion licensed under the Act — cannot be applied to him. The Court added that there is no provision in Canon Law prohibiting the marriage of a minor without the consent of parents: so long as a minor has reached the age of capacity to contract, the marriage can be solemnised, and the absence of parental consent will not invalidate it.

On the second question the Court held that the parties' capacity to marry and the impediments in the way of the marriage had to be resolved by reference to their personal law, which for Roman Catholics is the Canon Law of that Church. Consanguinity in the second degree is, of itself, an impediment; but under Canon Law it is dispensable. "Once dispensation is granted by the appropriate authorities the parties cannot be regarded under the Canon Law as being within the prohibited degrees", with the result that ground 2 of s. 19 of the Divorce Act could not be availed of.

1. Parts III, V and VI of the 1872 Act are self-contained codes; the consent requirement in Part III does not reach a marriage solemnised under s. 5(1) or s. 5(2).
2. Capacity and impediments are governed by the parties' personal law; for Roman Catholics that is Canon Law.
3. A dispensation validly granted removes the impediment, so the parties are not within the prohibited degrees for s. 19 of the Divorce Act.