Jactitation of marriage means a persistent boasting of a marriage, falsely alleged to have taken place. The suit prays for a decree of perpetual silence on the subject. This is the only case in which a matrimonial suit can, as of right, be proceeded without prima facie proof of a marriage de facto, for the object of the suit of jactitation is to prove that no valid marriage subsists between the parties.
In 1897, the Allahabad High Court held in Mir Azmat Ali vs. Mahmud-ul-Nissa, (1897) ILR 20 All 96:
“The suit for jactitation, however, is one not to be encouraged, particularly in a country like this, in which persons unfortunately are too anxious to discover forms of legal procedure by which they can annoy their neighbours. In our opinion, however, such a suit lies in a Civil Court in this country. The Court trying such a suit will of course take care, before granting a plaintiff a decree, to see that it is strictly proved that the defendant did seriously allege that the disputed marriage had taken place and that the plaintiff did not acquiesce in the claim or allegation of the defendant as to the disputed marriage, and further that in fact no marriage had taken place between the parties.”
The order of the Civil Court is however not conclusive evidence against an accusation of bigamy, for the order’s validity may be impeached, as having been obtained by fraud. The following is a famous story:
Elizabeth Chudleigh, maid of honour to the Princess of Wales, married Augustus Hervey, later Earl of Bristol, at a private ceremony. Both husband and wife lacked the financial support they needed, and their union was kept secret to enable Chudleigh to retain her post at court, while Hervey, who was a naval officer, rejoined his ship.
Some years later when Hervey returned to England, Chudleigh was reluctant to pursue the marriage. She later became the mistress of Evelyn Pierrepont, 2nd Duke of Kingston-upon-Hull. She had a house built in London, later named Kingston House. She also began to entertain, planning lavish parties for her royal friends. However, when it appeared likely that Hervey would succeed his brother as Earl of Bristol, Chudleigh took steps to establish proof of her marriage to him by forging an entry in a parish register. Why did she do this? Probably as a safety measure, if the Duke should abandon her, and her husband should succeed to the title of Earl of Bristol, she would at least have the satisfaction of being a Countess.
Soon, Hervey wanted to end their marriage by divorce. But Chudleigh wanted to avoid any public acknowledgment of their marriage because the Duke wouldn’t have been willing to marry a divorcee. She therefore initiated a suit of jactitation against Hervey, which required him to cease claiming marriage to her unless proved. When Hervey proved incapable of proving the relationship and Chudleigh swore she was unmarried, an Ecclesiastical Court in February 1769 pronounced her a spinster, free to marry. Within a month, she married and became Elizabeth Pierrepont, Duchess of Kingston-upon-Hull.
The Duke died four years later, leaving the Duchess of Kingston all his property on that condition that she remained a widow. Her late husband’s nephew, Evelyn Meadows brought a charge of bigamy against her in hopes of establishing a legal rationale for challenging the Duke’s will.
The trial for bigamy took place over five days, 15th-22nd April 1776, in front of the House of Lords. After hearing the evidence, all 119 Lords took it in turn to declare their verdict. Each spoke the word ‘Guilty’. In her defense, the Duchess relied upon a decree of jactitation from the Ecclesiastical Court which purported to show that she had never been married to Hervey. The prosecution sought to get over this on the allegation the decree was obtained in a sham and collusive proceeding. De Grey CJ said that the collusive decree was not be impeached from within; yet like all other acts of the highest authority, it is impeachable from without, although it is not permitted to show that the Court was mistaken, it may be shown that they were misled. Elizabeth immediately fled to the Continent. She retained a substantial fortune left to her by the Duke of Kingston.