Christian Marriage Laws — Response to the Proposed Amendments

(By Sebastian Champappilly, M.A., LL.M., Advocate, High Court of Kerala)

There have been various proposals from different quarters for amendment of the laws relating to marriage and divorce among Christians in India. It appears that the Catholic Bishops Conference of India and the Standing Committee appointed by it to deal with the subject approved a set of proposals suggesting amendments of the Indian Christian Marriage Act, 1872 by incorporating Chapters V, VI and VII of the Special Marriage Act, 1954 and at the same time repealing the Indian Divorce Act, 1969. These proposals might with profit, be reviewed for the following reasons:—

1. The proposal for incorporation of Chapters V, VI and VII of the Special Marriage Act, 1954 into the Indian Christian Marriage Act, though attractive, may add to the woes of the Christians rather than solving them. This could be explained by an example. Incorporation of Chapter VI of the Special Marriage Act means incorporation of S.28 of that Act also. And S.28 provides for divorce by mutual consent. In other words there would be divorce by mutual consent among Christians after this amendment. But the concept of divorce is alien to Catholic faith. And divorce by mutual consent is again unheard of among Catholics. It is therefore such a matter of great concern for the community that one cannot simply accept this concept without proper consultation and deliberation. [1]

2. It may also not be a sound proposition to allow divorce by mutual consent among Christians for other reasons. Even to appease the progressive point of view, I do not think that such a provision should be explicitly incorporated. For, even at this juncture Christian spouses who mutually agree to seek divorce can get their marriage registered under Ss.15 and 16 of the Special Marriage Act and thus get the benefit of S.18 which provides that from the date of registration, the marriage shall be deemed to be a marriage solemnised under that Act. And such spouses can invoke this ground of divorce provided for in the Special Marriage Act. Thus Christian spouses who mutually agree to seek divorce can still adopt that path if they need divorce. [2] Yet in my opinion, a direct provision for divorce by mutual consent may give the impression that the Church approves of divorce. Incorporation of such a ground in. a law on Christian Marriage could perhaps be avoided. For this may send out the message that the Church still does not approve of divorce, not to speak of divorce by mutual consent. And hopefully the followers may not develop a tendency to fall back upon this provision.

3. The Indian Christian Marriage Act contains various provisions that are irrelevant and inconsistent with the present day realities. Some provisions are indeed out of tune. For example S.81 of the Act might be noted. It provides that certain Certificates of Marriages of Indian Christians solemnised in India be transmitted to England. Again the punishment prescribed under Ss.70 and 73 needs a fresh look. Ss.28, 30, 32, 37 and 64 deals with maintenance of Registers and registration. They need updating in the changed context. There are inconsistencies and irrelevancies in Sections like 64 and 37, 22, 70 and 73; 32 and 5; 54 and 5; 13 and 12; 13 and 17. The definition of "minor" under the Act and the Child Marriage Restraint Act, do not signify uniformity. Ss.68 and 74; Ss.39 and 71 of the Act are all in need of revision in one way or other.

The Christian Marriage and Matrimonial Causes Bill, 1990 forwarded by certain Christian Organisations, to the Hon'ble Prime Minister of India in 1992 is an attempt in the right direction. But it needs review and revision. To begin with, the definition of "Christian" in the Bill may not have adequate acceptance inasmuch as that proposal was already considered and rejected with reasons by the Law Commission of India in its 15th and 22nd Reports. I think the reasons are still valid according to many in the community. Again Clause 31 of the proposed Bill dealing with divorce by mutual consent may have to be deleted in view of what has been explained in paragraphs 1 and 2 above.

Clause 3 of the Bill needs re-drafting and Clause 4(iv) should be enlarged to include the words "personal law" so as to bring in the provisions of Canon Law on questions of prohibited degrees of consanguinity. This is not impossible in view of the decisions of the Supreme Court in Lakshmi Sanyal v. Sachit Kumar Dhar (AIR 1972 SC 2667) and of the High Court of Kerala in Leelamma v. Dilip Kumar (AIR 1993 Ker. 57 = 1992 (1) KLT 651).

Moreover, the provision for recognition of the declaration of nullity of marriage given by the Church as given under Clauses 26 and 27 may have the tendency, I am afraid, to bring the Eparchial Tribunals under the control of the Civil Courts. I think it is our right to assert that our personal law should be got recognised by the proposed legislation. The importance of this aspect could be gauged from the observations of the House of Lords in Regina v. George Millis (10 C & F 534) which runs: "a husband demanding a right due to him as a husband by the ecclesiastical law, must prove himself a husband according to that law". Conversely, a wife demanding a right due to her as a wife by the ecclesiastical law, must prove herself a wife according to that law. [3] This is very important in the current Indian context where the Muslim Law and Hindu Law have come to be recognised as the respective personal law of Muslims and Hindus.

In short, the proposed Bill requires changes on various aspects like recognition of personal law, declaration of nullity of marriage granted by the Eparchial Tribunal and other authorities under the personal law as valid, definitions, jurisdiction, punishments and registers from the point of view of the Christian Communities. Therefore, it is desirable to have a more detailed discussion or even a workshop arranged on this subject before finally giving the green signal to the proposed new legislation on Christian Marriage and Matrimonial Causes Bill.

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Foot Note

1.  It is pertinent to point out that the Law Commission of India had already rejected the proposal for inclusion of "divorce by mutual consent" after detailed deliberations. The situation has not undergone any change for a review. See the 15th and 22nd Report of the Law Commission of India.

2.  In this context it may not be out of place for me to mention that in a survey undertaken by me, as part of my Ph.D. Programme in the Cochin University of Science and Technology, recently 77% of the respondents favour divorce by mutual consent.

3.  This view finds support in the decision of the Supreme Court of India in Anantrac's case (1988) 1 SCC 530 which held that the validity of a marriage has to be determined by the personal law applicable to the parties.

Neither Accommodation nor Control

(By Sajan Mannali, Advocate, Ernakulam)

Well, that was my first experience with the 'Accommodation Controller'. Naturally, deceived by the name, I expected atleast some control, and a little accommodation too. However at the end of my 'tryst' with the Accommodation Controller, to my dismay, I found none.

My client, a lady dentist, was residing in a rented house. She was also running a dental clinic, in the same. Her landlord, like any other 'lords' around demanded an increase in rent. She in turn requested for the long pending repair works and maintenance, before the increase of rent. Suddenly the drinking water stops, the switch to the motor removed, the gate at the outer entrance disappears arid to peak it all, her entry to the terrace brought to a stop, by locking up the gate leading to the terrace.

She walked into my office and narrated her grievances. With the assurances and promises showered by the "Kerala Buildings Lease and Rent Control Act "I confidently drafted a petition before the Accommodation Controller. There in starts my unending misery; and my client's too.

After a number of 'No Sittings', finally we - the Accommodation Controller and myself-face, face to face. I pray for an interim order, atleast in the case of drinking water. She flatly denies. I point out to the Section. She is unmoved. She tells me she is not in the habit of passing interim orders, whatever the section may say. I approach the High Court, and atleast atlast, the drinking water once again flows through the taps.

Now begins the second chapter of my unending misery. I foolishly pursue the other reliefs before the Controller of Accommodation. Once again, after a series of 'no sittings', at the end of which l am told that the Accommodation Controller is transferred. 'He' comes to take the place of 'She'. Hoping against hope, I hope for a change in attitude. But I find the boat still at Thirunakkara, as goes the old saying.

Evidence begins with great pomp and show. There, then once again interrupted by number of 'no sittings'. We are repeatedly told that the Accommodation Controller has again gone out to act out of his dual role as the Revenue Officer, in the field. Meanwhile two years pass by. I see the same suffering faces, with the same miserable cases, flitting in and out of the court.

Meanwhile, I witness bench clerks ordering Counsels. Counsels complaining to the Accommodation Controller. Accommodation Controller expressing his helplessness, indicating the 'Trade Union Mafia' and its (mal) practices. I listen to telephone calls attended amidst 'sittings' by the Controller, as well as the bench clerk, (for that matter even the peon), unbothered and unconcerned, right in front of the numbed clients and poor counsels. Evidence 'once upon a time' started continues, side by side, never to come to a close or finale.

Once again I am told that the Accommodation Controller is about to be transferred. Before I could think whether I should weep or mourn, I am told that there is an amendment in legislation, and that the churches, mosques etc. are brought outside the purview of the 'Kerala Building Lease and Rent Control Act'. Now for a change I decide to laugh, atleast to celebrate the end of the long pending - never ending tyranny. Amenities or not, my client beams and heaves a sigh of relief.

I am now told that six months have passed by; However orders are yet to be passed, dismissing the petition; based on the new amendments.

Well, it is high time that something is done in this regard, atleast by somebody. Why this waste of energy, time and money before a Controller, who never accommodates nor ever sits. And if at all 'sits* has neither learned, preaches nor practices LAW.

Inadequacy of Provision on Bouncing of Cheque

(P. Sreedharan, Dy. Director of Prosecution and Senior A.P.P., Kollam (Retd.))

It is fortunate to apprehend that the Legislature is pleaded to incorporate the new Section 138 of "The Negotiable Instruments Act, 1881" and the ancillary provisions in Chapter XVII of the Act. Prior to the commencement of this new section the only remedy on a post dated cheque was to approach Civil Courts and had no redressal of grievances through Criminal Courts. Really this section and this new chapter is a gift for the legal practitioners and to the public at large.

It is obvious that the ultimate object of this section and it's magnitude is averted with large omissions and anomalies which is hard to say as harmless or meagre. A legal practitioner who thinks about the pros and cons of this section can point out several precarious legal fictions, requests additional provisos to this section to fill the loopholes.

Points for consideration

Whether the second presentation of cheque is valid?

In a dictum of his Lordship Justice Balakrishnan reported in Sunil Kumar v. Bhadran (1991 (1) KLT 651 = 1991 (1) KLJ 335) it is enlightened that "The Payee or holder in due course can make a second presentation of the cheque and he can launch a complaint on this second presentation as the cheque would remain valid for a period of six months".

A Madras High Court decision reported in 1993 (1) KLT 1 (Sivasankar v. Santhakumari) came in support of the above decision which states as a cheque can be presented on different occasions constituting separate cause of actions and hence a complaint on second presentation of cheque if made within the period of its validity is maintainable.

This was negatived by a Division Bench of the Kerala High Court, reported in 1991 (1) KLT 893 (Kumaresan v. Ameerappa). The gist is that more than one cause of action on the same cheque is not contemplated. Cause of action arises on issue of notice after the first presentation of cheque. So a prosecution on second presentation and second notice is not tenable.

This question of law is now under the active consideration of the Supreme Court on an appeal pending. The section is ambiguous in this position.

Insufficient funds: It is offence if cheque is dishonoured on ground that the amount of money standing in that account is insufficient.

Stop Memo: When cheque is dishonoured on "Stop Memo" given to the Bank by the drawer while having sufficient funds in his credit to honour the cheque is not an offence as laid down by High Court of Punjab and Haryana reported in 1992 (1) KLT 765. (Rama Gupta v. Bakeman's Home Products).

Account Closed: In a case where the cheque is dishonoured on ground of "ACCOUNT CLOSED" is held no offence by Madras High Court reported in 1992 (2) KLT 417 (Prasanna v. Vijayalakshmi).

Refer to drawer: Cheque returned with an endorsement "REFER TO DRAWER" cannot be inferred that the cheque was returned on account of insufficiency of funds in account and hence no offence as per decision of High Court of Andhra Pradesh reported in 1992 (1) KLT 684 (Union Roadways (P) Ltd. v. Shah Ramanlal).

These are interpretations of courts came very late and because of absence of inhibition in clear terms in the section so many prosecutions are defeated in the initial stages. The above are single Bench decisions which may come otherwise later.

Date of drawal of cheque: There are inconsistent decisions regarding the date on which it is drawn to calculate six months. In a decision of Punjab and Haryana High Court reported in 1992 (1) KLT 686 (Gulshan Rai v. Anil Kumar) it is held that the actual day on which the cheque was drawn and delivered is the date of draw and not the date shown in a post dated cheque.

But in a Kerala High Court Division Bench decision reported in 1991 (2) KLT 65 (Manoj K. Seth v. Fernandez), it is decided that "Post dated cheques for the purpose of Clause (a) of the proviso has to be considered to have been drawn on the date it bears and not on the date it is delivered."

This is repugnant to the first decision. The section is silent in this issue also.

Give notice in writing.

S.27 of "The General Clauses Act" gives the benefit of an assumption to the sender of a registered post as it is delivered to the addressee in the ordinary course if it is properly addressed and pre-paid. But this section is silent about the DATE of service of such letter to calculate the period of fifteen days next to.

No date of receipt in acknowledgment

From which date the payee should calculate the fifteen days from a postal acknowledgment received back without entry of date of delivery of notice?

Letter or acknowledgement not come back

In a case where neither notice nor the postal acknowledgement come back and in such an incident what is the basis for calculation of fifteen days from the date of service?

If these uncertainties and anomalies are left uninterfered and if S.138 is not made exhaustive with more provisos these inconsistencies will continue till it gets final verdicts from Supreme Court and to that extent of time it will facilitate to refute the section negatively while carrying out in the practical field.

Boycott of Court by Lawyers

(P.K. Jose, Advocate, Ernakulam)

1. I am of opinion that boycotting a court of law by lawyers cannot be justified legally and morally. I believe that boycotting the court, will amount to an illegal act, even contempt of court.

2. For the said reason, I believe that in no circumstances shall lawyers boycott the court.

3. Let us first analyse what is meant by boycott. Boycott means "abstention from buying, abstention from using, avoidance, ban, banning, black-listing, debarring, embargo, exclusion, ostracism, proscription, refusal to do business, rejection, shunning, strike, with holding of patronage".

4. We have adopted a constitution under which the institution of court or judiciary is independent and impartial. All disputes are ultimately decided by court, and nobody can disobey or violate a decree or decision of a court of law. If one does so, one is guilty of an offence.

5. Lawyers are part of this institution and our profession is noble and learned. We have joined this profession because we have faith in rule of law.

6. If we believe in rule of law and accept judiciary as the final arbiter of all disputes, what is the justification for boycotting the court.

7. When we boycott the court, we are breaking the promise with our client, and more important, expressing our lack of faith in court and rule of law.

8. Lawyers should not behave like industrial labourers or employees, or businessmen. When industrial employees boycott or strike work, observing the rules, they are doing an act which is permitted by Industrial Law. When public resort to strike or boycott they are protected under Art.19 of the constitution. The above said actions are not directed against an institution, nor can it be said that there is breach of contract in such cases. But in the case of lawyers, for the reasons mentioned above, boycotting the court will amount to an illegal act and even contempt of court.

9. Lawyers are not a weaker section in society. Lawyers are a powerful section of the society because they know law and they have learning and knowledge which are the source of their power. For this reason citizens seek advice and guidance from lawyers.

10. By boycotting the court, we are tarnishing the good image of judiciary and profession of law.

11. We have other methods and means to express our protest and make the concerned authorities act according to law. Lawyers know how to set law in motion and bring violators of law to justice.

12. It is time that we lawyers think about the issue of boycotting the court by lawyers, its legality and justification. What else, short of boycotting the court, can be done by Lawyers' Association to express their protest against injustice done to lawyers themselves or others in our society.

13. It is advisable to have a debate on this issue, to have an in-depth study in its legal, professional and social aspects. Bar Association can call for a meeting of lawyers for a debate on this issue, as has been done by Kerala High Court Bar Association in other cases.

Advocates and Consumer Protection Act, 1986

(E.K. Ramakrishnan, Advocate, Payyannur)

Will advocacy come under the purview of Consumer Protection Act, 1986?

The subject matter of a complaint before a Consumer Court may be (1) unfair trade practices adopted by a trader, or (ii) defective goods sold by the trader or (iii) deficient service rendered to a consumer or (iv) excess price charged by the trader. (Sec. 2(1)(c) -- Definition of Complaint).

Any person who hires any services for consideration is a consumer under this legislation. And if he feels that the service provided to him is deficient, he can approach the consumer court for redressal of his grievances. Since advocacy is a service, it is high time to think over whether it will come under the purview of CPA 1986.

S.2(1)(o) of the Consumer Protection Act 1986 defines service as "service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service", i.e. except free services and contract of personal service all other services will come within the ambit of CPA 1986.

Of course, ours is not a free service. Then the next question is, is our service a contract of personal service? If the answer is negative, definitely the services rendered by an advocate to his client will come within the scope of service as defined in S.2(1)(o) of CPA 1986.

A wide discussion is required on this point especially in the light of the decision rendered by the National Commission on M/s. Cosmopolitan Hospitals and another v. Vasantha P. Nair (1992 (1) CPJ page 302). It was a case between hospital authorities, on the one side and the deceased patient's relatives on the other side. The hospital authority and the doctor disputed the very maintainability of the petition on various grounds. The important among them are that, their service to the patient is a contract of personal service which is an exempted category of service under the CPA 1986 and because their profession is covered by the Indian Medical Council Act 1956, which provides a complete code of conduct and the said Act has not been superseded by the CPA 1986, the provisions of the latter Act cannot have any application to members of the medical profession.

But after an elaborate discussion on the point and various case laws, the National Commission dissented with the contentions of the doctors and held that as a professional service, it is not a contract of personal service and so it will come under the service defined in the CPA 1986. On the issue of Medical Council Act 1956, the National Commission held that in that Act there is no provision for the protection of the interest of persons who may have suffered on account of any negligence or deficiency in the service rendered by members of medical profession and so the provision of the CPA 1986 are applicable to the disputes concerning deficiency in the service rendered by hospital and the members of the medical profession also.

The National Commission was considering the appeal filed by the Hospital authorities and ultimately fully agreed with the decision taken by the State Commission (Kerala). While discussing the various aspects of the above mentioned case, the State Commission held that like the service of a lawyer, the service rendered by the hospital and its doctors was basically professional service and hence it will be incorrect, infelicitous and even crude' to call the sophisticated high class professional service as 'Personal service'. Agreeing with the observations of the State Commission, the National Commission opined that "we agree with the terse observations of the State Commission that while a medical officer's service may loosely be called personal, it will be incorrect, infelicitous and crude to describe it as personal service. A contract of personal service involves a master and servant relationship which is wholly different from a medical doctor-patient relationship and in our opinion it will be totally wrong to call the service rendered by a medical doctor to his patients as 'personal service' coming within the exempted category mentioned in S.2(1)(o)".

In short, like the services of a lawyer, the services rendered by the Hospital and its doctors are coming under the definition of service described in S.2(1)(o) of CPA.

It is very difficult to agree with this proposition. While engaging an advocate to conduct a case, the client is making a contract with the concerned advocate. As a fiduciary relationship based on trust and confidence, it is a personal service. Though it is a professional service, unlike doctors the relationship between the lawyer and client is fully personal. Moreover, if one advocate wins the case, his opponent is bound to lose. That being the situation, if the defeated client approaches the consumer court levelling wild allegation like deficiency, laches, negligence etc. against his advocate's service, then there will be no rescue for advocates, except to conduct their own cases before the consumer courts.

But at the same time, it is very relevant to note that as in the case of the Indian Medical Council Act, the Advocates Act, 1961 also does not contain any provision for the protection of the interests of persons who may have suffered on account of any negligence or deficiency in the service rendered by advocates. So this lacuna is to be filled up by appropriate amendments. Otherwise the losses suffered by the "defeated" clients will remain unconsidered.