Customary Laws are the laws consisting of the customs that are accepted as legal
requirements, or practices & beliefs such that they are so vital & intrinsic, as
a part of the social & economic system that they are treated as if they were
itself the laws.
At the point of time while making any new laws or legislations based on personal
laws. All the customary laws, rites, rituals are taken into considerations which
are prevailing in the society. If the statutory law contradicts the customary
laws of a particular religion, then maximum number of times, courts consider the
personal laws or the prevalent customary laws into consideration & not consider
the legislation, which is there.
This case of Lakshmi Dhar vs Sachit Kumar Dhar is also the one where the courts
considered the prevalent customary laws above the legislations i.e.
the Christian Marriage Act, 1872 & the Divorce Act, 1869. In this case, the
courts stated that, for the purpose of, deciding the validity of the marriage,
the customary law in which the marriage between the parties was solemnized, will
be taken into consideration i.e. the Canon Law of the Roman Catholic Church.
The Supreme Court in various cases of family law has held that the customary
laws will prevail over the statutory laws if the legislation is silent on that
issue. Since the statutory law does not exclude the applicability of the
Facts of the Case
This case was of an appeal of the judgement given by the Calcutta High Court,
which was filed by the appellant against the respondent for a decree declaring
that their marriage was both null & void & grant for alimony & permanent reliefs.
The appellant & the respondent were really close to each other because
their mothers were real sisters. Prior to Marriage, both the parties had sexual
relations, as a result of which, the appellant was pregnant at the time of
appeal because of which she wanted the custody & care of the children as well
with the other reliefs.
On January 30, 1960, their marriage was solemnized. Before marriage, both the
parties were Hindus who were converted to Christianity just before the marriage
& solemnized their marriage according to the Christian Laws. The parties had two
daughters, one born on May 10, 1960, & another born in October 1961. Appellant
left the home in 1965 & filed a case for divorce in July 1961.
In the petition, a number of allegations like under duress, intimidation & undue
influence were made on the respondent. It was said that because of all these the
sexual relationship started between both the parties, which ultimately resulted
in the appellant conceiving the child. Allegations related to the conversion of
the religion was also made on the basis that it attributed to fraud, coercion &
It was also claimed that the appellant was minor at the time of marriage &
neither her fatherís nor her guardianís permission was taken (which is
specifically mentioned in the Section 19 of the Christian Marriage Act, 1872)
nor did she gave her consent freely on her own. It was also claimed that the
marriage was also void because the parties were within the prohibited degree of
Moreover, the trial judge did not accept all these allegations, the court
concluded that both the parties fell in love with each other, which resulted, in
the solemnization of the marriage.
There were 2 issues in this case, which were:
The first issue was that whether the marriage should be held as invalid as the
appellant was minor at the time of marriage & the consent of her father or the
guardian was also not taken.
The second was that the parties were within the prohibited degree of
consanguinity & therefore Section 19 of the Divorce Act should be applicable
- First Issue Analysis
In the first issue, Section 19 of Part III & Section 44 of Part V of the Indian
Christian Marriage Act, 1872 was argued in the way that the consent of the
father or the guardian was not obtained before the marriage. Since Section 3 of
the Indian Christian Marriage Act Clearly states that a Minor is a person who
has not attained an age of 21 years & Section 19 & section 44 on the other and
states the consent of the father or the guardian in case of the minor.
But the court took the case of Rev. Father Caussavel vs Rev. Saurez,
(1869) ILR 19 Mad 273, where it was held that Part III which contained all the
section from Section 19-22, can only be applicable in the case of the ministers
who are licensed under this act. The court also said that even if the provisions
of Section 19 & 24 were considered and proved that they were broken, still,
there is no such provision, which says that the marriage will be considered as
null & void, it just provides for the penal provisions and nothing else.
Since Part III was not applicable due to the case of Rev. Father
Caussavel vs Rev. Saurez. Therefore, the court considered Section 5(1) of the
Christian Marriage Act, which says that any person who has received episcopal
ordination & has solemnized it according to the rules, rites, ceremonies and
customs of his Church of which he is a Minister of can solemnize the Marriage.
Since, in this case, the Minister of a Roman Catholic Church solemnized the
The court stated that Section 5(1) would be applicable & the Canon Law
should be considered while determining the case of the Minor (or the person who
has not achieved the age of 21 years). Canon 1067 of the canon laws state that a
man before completing his 16th year and a girl before completing her 14th year
cannot contract a valid marriage. However, there was no provision, which
prohibits the marriage of a minor in case of the absence of the consent of the
father or guardian.
Since considering the Canon laws, the court, on the First Issue,
concluded that the marriage cannot be considered Null & Void just of the
basis that the appellant was a minor i.e. below 21 years of age, & the
consent of her father or the guardian was not obtained.
- Second Issue Analysis
For the Second Issue, the court held that it should be the customary law, which
should be considered while determining whether the parties were within the
prohibited degrees of Consanguinity, or not. Since the parties were married
according to the rites & rituals, & thus belonged to the Roman Catholic Church,
so their law should be considered.
Moreover, it was also held that neither the
Indian Divorce act nor the Indian Christian Marriage Act defines as to which of
the relationships are within the Prohibited degrees.
While taking the case of V.H. Lopez vs R.J. Lopez, (1885) ILR 12 Cal
706, where it was held that the marriage could only be prohibited if the
customary law of that church, to which the parties belonged, prohibits.
Moreover, if the dispensation is obtained then the parties are competent to the
marriage. Hence, with respect to the V.H. Lopez Case, the Court took all the
Canon Laws i.e. the laws of the Roman Catholic Church into consideration while
deciding the judgement of this case.
Canon 1076 of the Canon Law, defines the laws regarding the prohibited degrees
of Consanguinity. It states that marriage is invalid between all the ancestors
and descendants. In the collateral line, it is invalid up to the third degree.
In addition, Canon 1052 of the Canon Law, defines the laws regarding
It says that in case of Consanguinity of the second degree, which
was there in this case, a dispensation can be obtained by the appropriate
authorities of the church & the only case where dispensation cannot be granted
is where the impediment is of the first degree, which is an absolute bar.
Taking the case of H.A. Lucas vs Theodoras Lucas, (1905) ILR 32 Cal 187, where
it was held that the courts will not disallow any Roman Catholic of Indian
Domicile who had received the necessary dispensation from marrying a person with
whom that person is incapable of marrying.
Court held that according to the Canon Law, the marriage between the parties
related to consanguinity of Second degree is dispensable & after dispensation,
the parties will not be considered within the prohibited degrees. Thus, Section
19 (2) of the Indian Divorce Act will not be applicable after the dispensation
is obtained & no decree for the nullity of the marriage on the grounds of
Section 19 of the Divorce Act can be applied.
This case was an appeal, which was filed by the appellant against the respondent
for a decree declaring that their marriage was both null & void & grant for
alimony & permanent reliefs. In this case, basically, the appellant was a minor
at the time of the marriage & also their relationship was within the prohibited
degrees of consanguinity.
The courts held that the marriage between the parties will not be considered
null & void. Since all the legislations made related to the personal laws, are
based on the customary laws or the customs that are there in that religion.
Therefore, it would not be right if the courts, act in contradiction to the
customary laws, which are prevailing in the society.
Both the parties were
married according to the rites & the rituals of the Canon Law, so why should the
Indian Divorce Act & the Indian Christian Marriage be applicable, since they
were not even married according to these laws, as the father who solemnized the
marriage was of the Roman Catholic Church. Therefore, the courtís decision of
sticking to the canon laws was right since the parties were married according to