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Christian Law Regarding Marriage And Divorce In India: Indian Christian Marriage Act, 1872

Many Centuries ago, Christians came to India and settled in this country. When East India Company assumed ruling power in India and established its own courts. With the establishment of the Supreme Courts, the Common Law of England was made applicable to India on many subjects including marriage and divorce among the Christian community, on the ground that it was based on the principle of equity, justice and good conscience.

The law relating to solemnization in India of marriages of persons professes Christian religion was spread over two Acts of the English Parliament and three Acts of the Indian Legislature. Indian Christian Marriage Act, 1872 was passed. There are a number of enactments in India that deal with Christian marriages and matrimonial causes. They are the Indian Christian Marriage Act, 1872, the Marriages Validation Act, 1892, the Cochin Christian Civil Marriage Act, 1905, the Indian Matrimonial Causes (War Marriages) Act, 1948, the Converts Marriage Dissolution Act, 1866 and the Indian Divorce Act, 1869.

Reason Behind The Act Of Indian Christian Marriage Act, 1872:

The object of this Bill is to reduce into a smaller compass and simplify the existing law on this matter by the consolidation of the different enactments referred to, and at the same time, to amend the law in those matters in which it has been shown to be defective.

For example, by Act V of 1865 it is provided that marriages between Native Christians shall be valid where the ages of the contracting parties are not less than sixteen and thirteen years respectively, and where they do not stand in relation to each other within the prohibited degrees of consanguinity or affinity. It has been very forcibly represented by the President and several Members of the Bengal Christian Association that this provision of the law works injuriously by freeing the children of Native Christian parents from the control which all other parents can legally exercise over their sons and daughters before the latter have attained their majority.

The Bill requires the consent of the parents or guardians of Native Christian to a marriage between them, where the age of either of the parties about to contract such marriage is less than eighteen years, except in cases in which the minors have been altogether separated from their parents or natural guardians, and by reason of such separation are not proposed subject to their control. There is also some ambiguity in regard to the provisions of the law respecting the submission of returns, and the disposal of the records of the registration of marriages solemnized between Native Christians.

The Bill lays down distinctly how such marriages are to be recorded in all cases and provides for the disposal of the record. It also substitutes for the fixed rates of fees in respect of marriages solemnized by or before Marriage Registrars, a power to the Local Government to regulate such fees and their remission; and lastly, extends the Marriage Law to all places within the territories of Native Princes in alliance with Her Majesty, in respect of marriages between British subjects professing the Christian religion.

The Indian Christian Marriage Act, 1872: The Preamble of the Act states that since it is expedient to consolidate and amend the law relating to solemnization in India of marriages of persons professing the Christian religion that this Act has been passed. The Act is divided into eight parts with the Preliminary section defining the expressions Church of England, Church of Scotland, Church of Rome, Church and inter alia, Christians.

Meaning of Christian In Act, 1872:

The term Christian according to Section 3 means persons professing the Christian religion and Indian Christian includes the Christian descendants of natives of India converted to Christianity, as well as such converts. Marriages between persons, at least one of whom is a Christian, are governed by the Christian Marriage Act, 1872. It provides a code in itself and extends to the whole of India except the States of Travancore, Cochin, and Manipur.

In Part I of the Act (Sections 4-9) certain conditions have been laid down for a marriage to be valid under the Act. The parties to the marriage must be Christians as defined under Section 3 of the Act or at least one of them must be a Christian and the marriage must have been solemnized in accordance with the provisions of Section 5 of the Act by a person duly authorized to do so. The State Governments have been authorized to grant and revoke licences, granted in favour of certain persons, for the solemnization of marriages under the Act.

As per the provisions contained in the Act, the marriage must be performed in a particular form and duly entered in the marriage register maintained for this purpose. The factor of marriage can be proved by producing entries from this register. Other evidence can also be produced for this purpose. It has been held that versions of eyewitnesses to the marriage and subsequent conduct of the couple living as husband and wife can also be good pieces of evidence to prove the factor of a Christian marriage.

A Christian marriage can also take place at the house of the bride’s mother and in that case the signing of the Marriage Register is not essential under the Act. A Christian marriage, even if one of its parties is a Hindu, cannot be dissolved by a decree of divorce under Section 13 of the Hindu Marriage Act. A marriage performed under the Christian Marriage Act and validly registered under the provisions of Special Marriage Act is legal if the conditions laid down 1n that section are fulfilled.

Part II of the Act which consists of Sections 10 and 11 lays down the general rule that every marriage under this Act shall be solemnized between the hours of six in the morning and seven in the evening and the place of marriage is a Church. Exceptions are, however, made in case where a special licence permitting a clergyman of the Church is granted. The Act of a person who solemnizes a marriage beyond these hours and outside the Church in the absence of witnesses and without having any special licence has been made punishable under Section 69 of the Act. The punishment provided is up to three years imprisonment.

Part III of the Act, which covers Sections 12-26, deals with the notice of intended marriage and its publication before the actual marriage ceremony. It lays down that one of the persons intending marriage shall give a notice in writing as per the form contained in the First Schedule to the Act, to the Minister of about, whom he or she desires to solemnize the marriage with. If the marriage is intended to be in a particular Church it is the Minister of Religion who shall affix the same at some conspicuous part of such Church.

If the marriage is intended to be in a private dwelling, the Minister of Religion shall forward the notice to the Marriage Registrar of the district, who shall affix the same at some conspicuous place in his office. Before solemnization of marriage, a certificate by the Minister of Religion is essential. Such a certificate shall not be issued before the expiry of four days from the date of the receipt of the notice. It should also be shown that there is no impediment in the issuance of the certificate and the issue of the same has not been forbidden by law.

If the marriage is not solemnized within two months from the date of the issue of the certificate it becomes void and a fresh notice is to be served. If a party to a marriage is a minor, the consent of the father, if he is living, or, if the father is dead, the consent of the guardian of the person of such minor, or, if there is no guardian, that of the mother is essential before marriage. The marriage of a minor without such consent is not valid.

Sections 27-37 are included in Part IV of the Indian Christian Marriage Act, 1872. It deals with the registration of marriages solemnized under this Act between Indian Christians. These marriages should be in conformity with the rules laid down marriages are to be solemnized by clergymen of the Church of England who shall send quarterly returns to the Archdeaconry containing all entries of marriage.

Each entry of such marriage is to be signed by both the parties and the person solemnizing the marriage and shall be attested by two credible witnesses.

Part V contains Sections 38-59 of the Act which deal with marriages solemnized by or in the presence of a Marriage Registrar. When a marriage is intended to be solemnized by or in the presence of a Marriage Registrar, notice shall be given by one of the parties to the marriage in the format given in the First Schedule to any Marriage Registrar of the district or districts of their residence. The issuance of a certificate is essential before a marriage can be solemnized.

The certificate is issued by the Marriage Registrar which lapses on the expiry of two months if marriage has not been solemnized. Then a new notice is required to be issued. Once a Marriage is solemnized it is to be registered and entry recorded in certificate and marriage register book signed by both the parties and the Marriage Registrar. It should also be duly attested by two credible witnesses.

Part VI of the Act deals with marriage of Indian Christians. This part containing Sections 60-65 lays down that there is no need of giving preliminary notice but it must be proved that the ages of the bridegroom and bride are not below 21 years and 18 years respectively, and that neither of the persons intending to be married has a wife or husband still living. The parties then take the oath before the presence of two witnesses and a Marriage Officer who then grants a certificate of marriage. Entries are made in the register maintained for this purpose.

Part VII deals with penalties which are incorporated in Sections 66-76 for making false declarations or signing a false notice or certificate. These acts have been made punishable under Section 193 of the Indian Penal Code. The punishment provided is up to three year imprisonment.

The making of a false declaration should be intentional. Solemnizing marriage without due authority has also been made punishable under the Act and the punishment provided extends to ten years imprisonment. Similarly if a person solemnizes a marriage at any time other than the prescribed hours or in the absence of witnesses, he is guilty of an offence punishable with imprisonment which may extend up to three years plus fine. There is no express prohibition preventing a person professing Christianity from marrying a non-Christian after undergoing a non-Christian ceremony.

Part VIII of the Act deals with miscellaneous matters concerning marriages under this Act. A marriage solemnized does not become void under this Act on account of minor irregularities. The errors can be corrected. It also gives the power to the State Government to prescribe fees, inter alia, for receiving and publishing notices of marriage, issuing certificates of marriage, searching register books or certificates, etc. It may be pointed out that while some other personal laws have been amended the Christian law has remained impervious to change despite demands and recommendations for reforms.

Divorce:

The Indian Divorce Act, 1869 regulates the law relating to divorce of persons professing the Christian religion and also other matrimonial clauses. This Act is applied if one of the parties to the proceedings is a Christian. The Act is modeled on the English law of divorce (Section 7). Part III, Section 10 of the Act provides the grounds on which a husband or a wife may petition for dissolution of marriage.

The Indian Divorce Act, enacted a century ago contained certain harsh and discriminatory provisions, for example, there is gender discrimination since for obtaining divorce husband only has to prove adultery on the part of wife whereas the wife has to prove an additional matrimonial offence like cruelty, desertion, conversion or bigamy along with adultery.

Thus a need for reform in the Indian Divorce Act was long felt by jurists and even the Supreme Court and the Law Commission. The Supreme Court made a strong plea for introducing a change in the archaic law in Jorden Diengdeh v. S.S. Chopra {1}

The constitutionality of the controversial Section 10 was again challenged in Mrs. Zachariah v. Union of India where the court directed the Union to take a decision towards amending the Act within 6 months. The Kerala High Court in Ammini E J. v. Union of India {2} again not only highlighted the discrimination but struck down certain phrases in order to give meaningful relief to the petitioners. The court quashed the provision which requires a Christian wife to prove that her husband had been indulging in “incestuous adultery” or “adultery coupled with cruelty or desertion” in order to obtain divorce.

Taking into consideration the above views, the Indian Divorce (Amendment) Act, 2001 was passed by which certain amendments were introduced in the Act. Section 10 of the Act was substituted by new provision and a new Section 10-A was inserted. In Part III of the Act which deals with dissolution of marriage and Part IV relating to nullity of marriage, amendments were introduced by this Amendment Act of 2001.


Grounds for dissolution of marriage

(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the district court either by the husband or the wife would be dissolved on the ground that since the solemnization of the marriage, the respondent:
  1. Has committed adultery
  2. Has ceased to be Christian by conversion to another religion
  3. Has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition.
  4. Has for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy.
  5. Has for a period of not less than two years immediately proceedings the presentation of the petition, been suffering from venereal disease in a communicable form.
  6. Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive.
  7. Has wilfully refused to consummate the marriage and the marriage has not therefore been consummated.
  8. has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent or dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the fact alleged, but also whether or not the petitioner has been in any manner accessory to, or connived at, the going through of the said form of marriage, or the adultery, or has condoned the same and shall also enquire into any countercharge which may be made against the petitioner.

Power of Court to Pronounce Decree of Dissolution:

According to Section l4 of the Act, the Court shall pronounce a decree declaring such marriage to be dissolved in case the Court is satisfied on the evidence that the case of the petitioner has been proved and does not find that the petitioner has been in any manner accessory to or connived at, the going through of the said form of marriage or the adultery of the other party to the marriage or has condoned the adultery complained of or that the petition is presented or prosecuted in collusion with either of the respondents.

But, the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the Court been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of and without reasonable excuse or of such wilful neglect or misconduct of or towards the other party as has conducted to the adultery. In this connection no adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.

In Nalini v. C.H. Issac, {3} where it was the respondent husband who created the situation resulting in the breakdown of the marriage by developing illicit intimacy with another woman and by deserting the petitioner wife it was held that as the respondent had created such circumstances which compelled the petitioner also to commit adultery, she was entitled to a decree of dissolution of marriage even though she herself was guilty of committing adultery. Even when the defendant is absent, it was held in Sahaya Barathy v. Anthony Sahaya, {4} it is the duty of the court to scrutinise the case of the plaintiff and go into evidence both oral and documentary produced before it for the purpose of satisfying itself as to whether the plaintiff has made out a case or not.

Divorce by Mutual Consent:

After Section 10, a new Section 10-A has been inserted which lays down conditions for dissolution of marriage by mutual consent.

Under Section 10-A:

Subject to the provisions of this Act and the rules made there under, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made no earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the patties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the arguments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

1. Adulterer or Adulteress as Co-respondent:

Instead of the old provision according to which only the adulterer could be a co-respondent under the newly-substituted Section 11, on a petition for dissolution of marriage presented by a husband or wife on the ground of adultery the petitioner shall make the alleged adulterer or adulteress a correspondent, unless the petitioner is excused by the court from doing so on any of the following grounds, namely:
  1. that the wife, being the respondent, is leading the life of a prostitute, or the husband, being the respondent, is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed.
  2. that the name of the alleged adulterer or adulteress is unknown to the petitioner, although the petitioner has made due efforts to discover it.
  3. that the alleged adulterer or adulteress is dead.
In Madhusmita Nayak v. Simadri Nayak {5} it was held that the object of Section 11 is to prevent any form of collusive divorce. It is not a mere formality to dispense with the presence of the co-respondent.

2. Absence of Collusion:

Under Section 12 provision has been 'made for the court to satisfy itself as to the fact that there 15 absence of collusion. It says that upon any petition for shall apply to every suit so removed. It may otherwise direct the District Judge to take such steps in respect of the alleged collusion as may be necessity, to enable him to make a decree in accordance with the justice of the case. Section 17-A dealing with appointment of officer to exercise duties of the King’s Proctor has been deleted by the Indian Divorce (Amendment) Act, 2001.

Nullity of Marriage Part IV of the Indian Divorce Act deals with nullity of marriage. Any husband or wife under Section 18 may present a petition to the District Court, praying that his or her marriage may be declared null and void on any of the following grounds:
  1. Impotency of the respondent at the time of marriage and institution of the suit.
  2. Parties being within the prohibited degree of consanguinity [natural or legal or affinity.
  3. Either party is a lunatic or idiot at the time of marriage.
  4. Former husband or wife of either pa1ty was living at the time of the marriage and the marriage was in force.
  5. Consent of either party was obtained by force or fraud.

In B.D. Cardoza v. Glady B. Cardoza,{6} where a wife obtained consent by concealing the fact that by operation her fallopian tubes were removed and she was incapable of giving birth to a child the petition for declaration of annulment of marriage was allowed and decree passed. Where a wife delivered a child after 203 days of marriage and the child was not premature and the husband had neither access nor knowledge about her pre-marriage pregnancy, was held in P. V Sabu v. Mariakutty,{7} that the husband is entitled to a declaration of nullity of marriage on ground of fraud.

Reference:
  1. Indian Christian Marriage Act, 1872.
  2. Indian Christian Marriage Act, 1872
  3. Marriages Validation Act, 1892
  4. Cochin Christian Civil Marriage Act, 1905
  5. Indian Matrimonial Causes (War Marriages) Act, 1948
  6. Marriage Dissolution Act, 1866
  7. Indian Divorce Act, 1869
  8. The Indian Christian Marriage Act, 1872
  9. Kenneth Ingham, Reformers In India, 1793-1833: An Account Of The Work Of Christian Missionaries On Behalf Of Social Reform, (University Press, Cambridge 1956)
  10. David Mosse, The Saint In The Banyan Tree: Christianity And Caste Society In India, (University of California Press, Berkeley,CA, 2012)
  11. Dr. Kande Prasada Rao, Christian Law In India, (Universal Law Publication, Third edn., 2010)
  12. https://en.wikipedia.org/wiki/The_Indian_Christian_Marriage_Act,_1872
  13. https://indiankanoon.org/doc/90496067/
  14. https://www.christianfort.com/ICDA.htm
  15. http://home.kar.nic.in/download_files/Passport/The_Indian_Christian_Marriage_Act1872.pdf

End Notes:
  1. AIR 1985 SC 935
  2. AIR 1995 Ker. 252
  3. AIR 1997 M.P 266
  4. AIR 1981 Mad. 241, (1981) ILR 3 Mad. 241
  5. AIR 1997 Ori. 162
  6. AIR 1997 Bom. 175
  7. AIR 1998 Ker. 86

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