Divorce Act and Christian Marriage Act

The Indian Christian Marriage Act, 1872

The Indian Christian Marriage Act, 1872 is an act to consolidate and amend the law relating to
solemnization in India of the marriage of persons professing the Christian religion. It extends to the
whole of India except the territories which immediately before 1st November 1956 were comprised in
the state of Travancore- Cochin, Manipur and Jammu & Kashmir. The act contains 88 sections in 8
parts and 4 schedules. Before the enactment of this act the solemnization of marriage of persons
professing Christian religion was guided by 2 British acts and 2 Indian acts of 1852 and 1865,
respectively.

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 establishment of Supreme Court,
the common law of England was made applicable to India among the Christian community on the
ground that it was based on principle of equity, justice and good conscience.

Section 88: Non-validation of marriage with prohibited degrees

Section 9: Licensing of persons to grant certificates of marriage between Indian Christians

Conditions for valid Christian marriage

Section 60 of the Act specifies the following conditions for valid Christian marriage:

1. The groom must not be below 21 years of age and bride must not be below 18 years of age.
2. Neither of the parties must have spouse still living at the time of marriage.
3. The marriage ceremony must take place in presence of person under section 9 and at least
with 2 incredible witnesses.
4. Under section 88 nothing in the act shall validate any marriage which the personal law of
either party forbids the concerned party from entering into.

For example: Inter-caste marriage between Christian and a person of any other religion will be
invalid of the personal law governing the other person prohibits marriage with a Christian.

In Gnanasoundari v. Nallathambi and Others AIR 1945, the Madras High Court clarified that
section 88 of the Act shall cover prohibitions based on blood relation and affinity.

Section 60 refers to section 9 of the Act which authorized the State government to grant license to
any Christian either by name or as holding any office to grant certificate of marriage for Christian
marriage.
 Persons authorize to solemnize marriage

Section 5 of the Act provides that Christian marriage may be solemnized by nay of the following
person:

1. Any person who has received Episcopal ordination (relating to a bishop a church governed by
bishops) in case of which the marriage must be solemnized according to the rules, rites and
customs of the church which he/she is a minister (someone who is authorized to conduct
religious service, person who leads worship services and administrates a church or conducts
weddings and funerals).
2. A clergymen (a male priest, minister or religious leader) of the church of Scotland in case of
which the marriage must be solemnized according to the rules, rites and ceremonies of the
church of Scotland.
3. Any minister of religion licensed under the act to solemnize marriage by or in presence of a
marriage registrar appointed under the act or
4. Any person licensed under section 9 of the Act to grant certificate of marriage to Christians.

In case where the marriage is being solemnized by a minister of religion or a marriage registrar the act
requires certain procedural formalities to be followed such as:

‐ giving notice of intended marriage

‐ publication of notice followed by declaration by parties and
‐ registration of marriage

However, in case the marriage is solemnized by a person licensed under section 9 the solemnization
procedure is simple as no procedural formalities is required and parties are only required to say each
other in presence of licensed person and two credible witness the following similar words-

“I call upon these person her present to witness that I ‘AB’ in the presence of almighty God and in the
name of our lord Jesus Christ to take thee ‘CD’ to be my lawful wedded wife/husband.”

Sacrament rites of church by which god gives the authority and the grace of Holy Spirit through
prayers and laying hands by bishops to those who are being made bishops.

Time for solemnizing marriage

Section 10 of the Act provides that a Christian marriage can be solemnized only between 6am and
7pm except in following cases:
 ‐ Marriage being solemnized by a clergymen of Church of England under a special license
which authorizes the clergymen to solemnize at any hour other than between 6am and 7pm.
‐ Marriage being solemnized by clergymen of Church of Rome under a general or special
license received from Roman Catholic bishop of Diocese (are controlled by bishops) or
Vicariate (office or authority) in which such marriage is so solemnized.
‐ Marriage being solemnized by a clergymen of Church of Scotland according to church rules,
rites and ceremonies.

Place of solemnization- Section 11

Section 11permits a clergyman of the Church of England to solemnize a marriage only at a church
where worship is generally held according to the forms of Church of England unless there is no
church within 5 miles from the shortest distance from such place or unless a special license permits
the clergyman to solemnize the marriage to do so under the hand and seal of Anglican bishop or of the
Diocese or his commissary.

Notice of marriage- Section 12

Section 12 requires either to party to give whether notice in the form contained in 1 st schedule of the
Act to the concerned minister by whom the parties want the marriage to be solemnized. The notice
contains:

‐ Name and surname

‐ Profession
‐ Residence
‐ Dwelling place of each of them
‐ The time during which concerned party has lived in their dwelling place
‐ Church or private dwelling where marriage has to be solemnized

[Residence is the place where one lives and dwelling is a habitation, a place or house in which a
person lives]

Publication of notice- Section 13

The case parties want their marriage to be solemnized in church then under section 13 the concerned
minister to get the notice received under section 12 affixed in some conspicuous part of the concerned
church. Provided that such minister is entitled to officiate the marriage.

In case of the marriage is intended to solemnize in a private dwelling then under section 14 requires
the minister to forward the notice to marriage registrar of the concerned district for affixation in some
conspicuous place in his own office.
In case where either party to the marriage is a minor, section 15 requires the ministers to send a copy
of the notice (received under section 12) to the marriage registrar or senior marriage registrar of
concerned district within 24 hours of his receipt.

Procedure of receipt of notice- Section 16

Upon receipt of nay notice under section 14 or 15, section 16 of the Act requires the marriage registrar
to affix the notice in some conspicuous place in his office. On the other hand, the senior marriage
registrar is required to forward the notice to each marriage registrar in the same district for such
affixation.

Declaration- Section 18

Section 18 requires either party to the marriage to appear personally before the ministers and declare
that there is no impediment (obstacles) of kindred or affinity to the marriage and necessary consent
mandated by the law have been obtained in case where either or both the parties are minor.

Section 19 requires consent to be taken for the marriage from the father and if the father is dead then
from the guardian of minor. If there is no guardian the minor’s mother may give consent to the
marriage.

Issue of certificate- Section 17

Section 17 states that after notice under section 12 has been given to the minister by either party to the
marriage and after either party has made declaration as required under section 18, the minister shall
issue a certificate to the party’s indication the giving of the notice and making of such declaration.
The certificate can be issued only after expiry of 4 days from the receipt of notice under section 12.
Provided that its issue is not forbidden and the parties have proved to the minister’s satisfaction that
there is no lawful impediment to issue the certificate.

Section 20 permits all the person who are authorize to give consent under section 19 to prohibit issue
of certificate under section 17 by giving written notice to the minister.

Section 21 states that if a notice has been given under section 20 the minister cannot issue a
certificate unless he/she is satisfied upon examination that the person prohibiting the marriage is not
authorized to do so or until the said notice is withdrawn by person who gave it.

Issue of certificate of Indian Christians: section 3 of the act defines Indian Christians to mean
Christian descendants of natures of India.

Section 23 of the Act states that when any Indian Christian gives notice to minister under section 12
or applies for issuing a certificate under section 17. The minister shall before issuing the certificate
ascertained whether the concerned Indian Christians is cognizant (having knowledge or awareness) of
the purport (assuming to be true) and effect of the notice/ certificate and if not, then it shall translate
or cause to be translated the notice or certificate to such Indian Christian into some language which
he/she understands.

Forms of certificate- Section 24 of the act requires the certificate to be issued under section 17 to be
in the form contained in the 2nd schedule to the act.

Solemnization of marriage- Section 25

Section 25 of the Act states that after issue of certificate under section 17 the minister is entitled to
solemnize the marriage between the parties in the presence of 2 witnesses. According to such form or
ceremony as the minister may see fir to adopt.

Section 26 of the act states that if marriage is not solemnized within 2 months from the date of
issuance of certificate under section 17, the certificate shall become void and parties would not be
entitled to get the marriage solemnized without getting fresh certificate issued under section 17. With
the aforesaid procedure is applicable where the marriage is solemnized by a minister of religion, the
process for solemnization by a marriage registrar is similar and has been provided under part V of the
Act.

Certificate of marriage

Section 61 of the act lays down that the person licensed shall issue the certificate of marriage post to
nay marriage solemnized under this part after the prescribed fees of 4 anas (25 paise) is paid. It is
needless to say record that the marriage certificate has to be signed by the authority issuing it. Section
61 makes explicitly and implicitly that marriage certificate will be conclusive proof of marriage and it
will reserve as evidence in any suit touching the validity of marriage.

Compulsory registration

First of all it must be noted that marriage registrar appointed under the act is entirely different and
distinct from the marriage registrar we commonly understand. The marriage registrar we commonly
understand is appointed under the ‘Birth, Death and Marriage Registration Act, 1886’ and he is called
‘registrar general’ under the Act. The marriages whether Christian, Hindu, Parsi or Muslim have to be
ultimately registered under Birth, Death and Marriage Registration Act, 1886.

However, independent of the said act the Christian marriage provides for the registration of Christian
marriage prior to their registration under Birth, Death and Marriage Registration Act, 1886. It means
that there is double registration- one under Christian marriage act and the second under Birth, Death
and Marriage Registration Act, 1886. The registration marriage under Birth, Death and Marriage
Registration Act has to be completed not by bride or bridegroom but by the person solemnizing the
marriage under the act.

This becomes clear if none examines the provisions of section 28, 29, 30 and 31 which lays down that
the clergymen of churches of England, Rome and Scotland have to maintain the ‘marriage register’
and forwards the returns every four months to the registrar of the local Archdeaconry of district(senior
Christian clerk to whom bishops delegate certain responsibility). The said archdeaconry then has to
send one copy of the returns to the registrar general of Birth, Death and Marriage Registration Act.

However, so far is the bride/ bridegroom is/are concerned the certificate of marriage issued by pastor
of church is a statutory document and a prima facie evidence of marriage. The person challenging the
certificate has to adduce the strict proof by way of rebuttal evidence.

Section 54 and 62 makes it mandatory to have the marriage registered even though it is solemnized
under the act but also to be registered under Birth, Death and Marriage Registration Act, 1886.

It is said that marriage are made in heaven and solemnized on earth. However, before the rise of Jesus
Christ and in early Roman law the marriage as well as divorce was a private act. Therefore, the Canon
law i.e. general law of marriage was based partly on Roman law and partly on Jewish law. But with
advent of Christianity, marriage came to be regarded as sacrament. Christians believe that god being
the author of nature promulgated the law of marriage. Marriage is obligatory for human beings except
the churchmen. It is a sacrament having been ordained by god and it is an indissoluble solemn union
for life to prevent fornication (sexual intercourse between persons not married) and a safeguard
against depopulation. With the reform, the marriage came to be regarded as a civil contract, a
dissoluble union in contradiction to sacrament and an indissoluble union for life.

The Indian Divorce Act, 1869

The act proceeds on the legal presumption that marriage is forever or never. As such, marriages under
the act are either valid or void and there is no third intervening category of voidable marriage.
Necessarily, therefore the act provides for (i) divorce and (ii) decree of dissolution on the legal
presumption that if voidable marriage is ratified, the marriage becomes valid and if not ratifies than it
becomes void marriage.

The Indian Christian Act, 1869 is one of the few codified Indian personal laws governing Christians.
Since personal laws apply differently to all religions, the Divorce Act is important as it affects the
Christian community. The Act contains provisions defining power of courts, grounds for dissolution
of marriage, nullity, decrees, custody issues, etc.
According to the preamble of this Act, it amends the law relating to the divorce of people professing
Christianity. It even confers upon certain courts the jurisdiction to settle these matters. This is the only
codified law regulating divorces among the Christians. The British had 1st enacted this law before
independence and it continues to be in force today. The Act came into existence on 1 st April, 1869. It
applies to the whole of country except the state of Jammu and Kashmir. Furthermore, it applies to
only those people who profess Christian religion. The parties must reside in India to apply for nay
remedy under the Act.

Grounds for dissolution of marriage

Section 10 of the Indian Divorce Act contains grounds on which court may dissolve a marriage. In
order to avail a divorce, the husband or wife must file a petition before the district court. This is
basically the court under whose jurisdiction the parties solemnized their marriage or they reside or last
resided together. The court may grant a divorce under any of the following grounds:

a. When one of the parties commits adultery

b. If a party ceases to be Christian
c. In case of a party being of unsound mind for 2 years
d. If a party has been suffering from leprosy or a venereal disease for 2 years
e. In case of party willfully refusing to consummate the marriage
f. When a party has deserted the spouse for 2 years or more
g. In case of a party treating spouse with cruelty

Apart from these ground, the wife can present a petition of divorce on additional grounds. For
example: She can file for divorce if her husband has after marriage being guilty of rape, sodomy (anal
intercourse) and bestiality (sexual intercourse with animal), etc.

Divorce by mutual consent

According to section 10, the grounds we saw above must exist for a party to file for divorce.
However, it may so happen that both the parties wish to seek divorce mutually. For this purpose, the
parliament amended this Act to insert Section 10-A. According to section 10-A, parties may together
mutually file a petition for divorce in district court. In order to this, they must have lived separately
for 2 years and must be unable to live together. In case the parties do not withdraw this petition
between 6 to 18 months, the court may dissolve their marriage.

Nullity of marriage- Sections 18 to 21 (legally void- declaration that there was no marriage in
existence)
Apart from the dissolution of marriage the Act also contains provisions for nullity. Either the husband
or the wife may file a petition for this before the district court. There are a few grounds for which a
party may file such a petition. For example, the impotency or lunacy (lunatic or idiot) of a party at the
time of marriage can be ground. One can also file this petition of the other was still married to his/her
former spouse during the marriage, the consent of the either party was obtained by fraud or force or if
the parties are within the prohibited degree of consanguinity or affinity.

Restitution of conjugal rights

The act also contains a provision for restitution of conjugal rights under Section 32. Under this
provision, a party may seek restitution if his/her spouse withdraws from their company. Under
restitution, the marriage remains but both parties do not possess all martial rights temporarily.

Custody of children- Sections 41 to 44

The Divorce Act contains some provision governing custody of children in cases of dissolution or
nullity of marriage. Section 41 empowers court to make interim orders with respect to custody. Even
after passing a final decree of separation the court may award custody to any specific party.

Guardianship and custody of children-

Father is always a natural and legal guardian. In absence of father, mother is the guardian and in
absence of both their will be a guardian. No doubt the guardian will have no right of “custody too” but
for welfare of the child, custody may be given to someone else. The benefit and interest of infant is
paramount consideration (more important than anything else) and not the punishment of the guilty of
spouse [Stark v. Stark]

Usually, the mother is always preferred against father for the custody of the child and when child is
suckling, the mother is the only choice for which becomes disentitle to the custody for her child; then
she may be denied the custody of child. In case of minor’s custody, the court has special responsibility
to protect the minor’s interest. Therefore, the court may invoke its power to interview the minot child
for ascertain the wishes of minor.

Judicial separation

When two parties are not able to live together the law has sanction judicial separation for them taking
a realistic view that it is better to separate them when it is impossible for them to live together. The
church of Rome always refused to sanction a complete dissolution. It only granted divorce from bed
and board or judicial separation. In consonance with this rule of Christian personal law, the Act gives
the provisions in sections 22, 23, 24 and 25. The district court has the power to grant the decree of
judicial separation as under:
 1. Neither husband or wife can seek decree of divorce at first instance.
2. Husband and wife can only seek decree of divorce from bed and board.
3. Decree of judicial separation can be granted only in the ground of adultery, cruelty or
desertion.
4. The period of limitation is 2 years.
5. Either husband or wife can make application for judicial separation in the district court.
6. The district court should be satisfied with the truth of statement made in the application for
judicial separation.
7. The district court has the sole discretion to grant judicial separation.
8. Wife/ husband must have finally obtained a decree of judicial separation from competent
court of law.
9. After having obtained the decree of judicial separation, wife will be treated as unmarried
woman for a limited purpose of:
a. Entering into contract
b. Her suffering from wrong or injurious
c. For suing and be sued in any civil proceedings during the subsistence of judicial
separation

During the subsistence or existence of the decree of judicial separation the husband shall be liable for
payment of alimony granted to wife by the competent court. During existence of the decree of judicial
separation, if the property acquired by wife (movable or immovable) by sale, purchase, lease, gift or
ownership in cooperative society and if she dies the property so acquired by her will, will go to her
heir in inheritance and husband will not be heir to such inheritance.

Change of religion

Section 10 of the Act prior to the amendment of 2001 says that ‘any wife may present a petition to the
district or the High Court that her marriage may be dissolved on the ground that since solemnization
of marriage, her husband has changed the religion from Christianity to some other religion. So the
express language of section 10 prior to amendment make it abundantly clear that only the wife could
seek divorce on the ground of conversion and not the husband.

CASE LAW: Reynold Rajamani v. Union of India AIR 1982 SC 1261

In this case, the Supreme Court rejected the prayer to remove the discrimination between men and
women in section 10 of the Indian Divorce Act. The court based its approach on the limits of the
court’s jurisdiction. It held that when a legislative provision enumerates the ground of divorce. Those
grounds limit the court’s jurisdiction and court cannot rewrite the laws so as to add ground of divorce
which is not permissible under the section. But the legislature has finally come down firmly and has
removed the gender bias by enshrining the change in religion as a ground of divorce under Section 10.