Christian Law on Marriage and Divorce -

Judicial response and inadequacies of legislative proposals

(By Dr. Sebastian Champappilly, Advocate, Ernakulam)

Legislative intervention in the laws relating to marriage and divorce among Christians in India was made more than a century ago. As far as Christian marriages in India are concerned, by and large, the law regulating solemnisation is the Indian Christian Marriage Act of 1872 but the Indian Divorce Act, which deals with the law of divorce of persons professing the Christian religion, was enacted in 1869, i.e. before the enactment of the law on marriages. However, these pieces of legislation were not uniformly applied through-out the territory of India, for political and social reasons.

As far as Travancore and Cochin areas of the State of Kerala are concerned, Christians never had a law to regulate canonical or customary marriages. The position remains the same even today. However, as regards divorce, the provisions of the Indian Divorce Act of 1869 came to be extended to these areas by virtue of the provisions enacted in the part B States (Laws) Act of 1951. Till this was done, the Christians here, had no law for obtaining a divorce by resort to the processes of the Civil Court Yet, declarations of nullity of marriages were made both by the Civil Court as well as by the ecclesiastical authorities. And there was no occasion for a conflict between these proceedings till the year 1986. From 1986 onwards conflicts arose as a result of a series of decisions commencing from Kurian v. Alphonsa (1986 KLT 731), Jose v. Alice (1988(1) KLT 890 (DB), George Sebastian v. Molly Joseph (1994(2) KLT 387 (SB)), to Molly Joseph v. George Sebastian (AIR 1997 SC 190). Now, therefore, matrimonial reliefs for Christians can be had only under the provisions of the Indian Divorce Act. And the Act itself is alleged to be discriminatory.

Let us examine whether the provisions of the Indian Divorce Act in these matters render us equality before law and equal protection of the laws, which is a constitutional mandate (See Article 14 of the Constitution of India). It appears that whenever legislation is made in these matters, Christians are totally ignored. Though attempts were made both by the Community and the Legislative Agencies like the Law Commission of India, to suggest reforms in these areas of law, they all fell on deaf ears. The Bills introduced in Parliament have not been enacted so far. It is patent discrimination that the Marriage Laws Amendment Act of 1976 was not made applicable to Christians. For the matter, the plight of Christians was not even thought out when the Family Courts Act' of 1986 was enacted. Now, therefore, Christians in India are left to be governed by century old archaic laws, both substantive and procedural, which have no bearing on the social mores of the present century.

As regards grounds of divorce, women were discriminated against and are still discriminated except perhaps in the State of Kerala and Maharashtra. In Kerala, by virtue of the decision in Mary Sonia Zacharia (1995 (1) KLT 644 (F.B.)., women are given liberal grounds of divorce. Now Christian wives can file petitions for divorce on any grounds such as, adultery, bigamy, rape, sodomy, bestiality, cruelty, desertion for two years or change of religion and remarriage. However, the benefit (or otherwise) of the decision in Mary Sonia Zacharia has not been made available to Christian husbands who are left with only one ground i.e. adultery committed by the wife after the solemnisation of the marriage. This aspect of discrimination was attempted to be brought to the notice of the Supreme Court in Anil Kumar Mahsi v. Union of India (J.T. 1994 (4) SC 409 = 1994 (2) KLT (SC) 399).Unfortunately, the Supreme Court repelled the contentions of the petitioner in that case and held that S.10 of the Act is not discriminatory to men. However, there is no sound reasoning given by the Court and hence it is impossible to subscribe to that view and hence we have to hold that the discrimination continues. It is true if one looks at it both in inter-community and intra-community contexts.

Further, though Christians can approach the District Courts/Family Courts for obtaining matrimonial reliefs, the orders of the said Courts are subject to confirmation by a Special Bench of the High Court, which again goes to add to the woes of Christians. This involves more money and time. Again, under S.16 of the Act, a decree for divorce for Christians initially can only be a decree nisi which again has to be made a decree absolute after a period of six months from the date of decree nisi. Such provisions are not there in the law applicable to other communities. Though the Courts in India have time and again alerted the Legislature and pointed out the necessity for doing away with such provision (See Bincy Mathew v. Sabu Abraham 1998 (2) KLT 1100 (S.B.). Also see Pragati Varghese v. Cyril George Varghese, AIR 1997 Bom. 349 (S.B.)), the Legislature is not so fax awake. This calls for a concerted attempt on the part of the leaders of the community to be aware of the need of the hour so that Christians may not drown deep into social problems that may undermine the very existence of the family system and values in the community.

Attempts made for reforms

As regards the law of marriage and matrimonial causes of Christians, statutory law has been found to be not satisfactory both by the community and by the Courts (See 1990 (1) KLT 130 = (1985) 3 SCC 62 = AIR 1980 Delhi 275.). The community took initiative for reforms and indeed Private Bills were introduced in Parliament. Thereupon, the question of revision of the law on the subject was referred by the Government to the Law Commission of India which after a deep study submitted its 15th Report on the Law of Christian Marriage and Divorce on 19th August, 1960.Nothing came out of this Report. However the Law Commission again went into various questions and produced it's 22nd Report. On the basis of this Report, the Government of India introduced the Christian Marriage and Matrimonial Causes Bill, 1962 in the Lok Sabha, to amend and codify the law relating to marriage and matrimonial causes among Christians. It was however referred to a joint select committee of the Parliament. And the Bill was reported on by the Joint Committee promptly. But it lapsed when the Lok Sabha was dissolved.

While matters remained so, the Chairman of the Law Commission received various representations. On these representations, a revision of S.10 of the Indian Divorce Act, 1869, was taken up by the Law Commission suo motu in view of the existing element of discrimination based on sex under the Indian Divorce Act as applicable to Christians in India. The Commission, in its 90th Report dated 17th May 1983, also thought that in the field of marriage law, extensive developments have taken place both in law and in society. Therefore, it was found proper that these developments should be taken note of and the law applicable to Christians be brought in tune with the times. The Commission found that an amendment to S.10 of the Indian Divorce Act was a constitutional imperative. It proposed an amendment of S.10 of the Indian Divorce Act, 1869 as an urgent measure. In spite of such an urgency being pointed out by the Law Commission, the Government did not come forward to bring in new legislation on the subject.

By 1983 the campaign for changes in the Christian personal laws started gathering momentum. Women activists issued an appeal to reform the law of marriage, divorce, succession and also adoption. Their ultimate object was enactment of a common law for Christians in the matter of family law, recognising the equality of sexes. By 1988, women activists came up with a proposal suggesting essential changes required in the law. Independent of these efforts, the Christian Marriage and Matrimonial Causes Bill, 1989 was introduced in the Lok Sabha as a Private Member's Bill. In the meanwhile, the women activists prepared drafts on the Christian Marriage and Matrimonial Causes Bill, 1989, Indian Succession Bill and the Christian Adoption Bill. At this stage other organizations of Christian women came forward to support the Bill introduced in the Lok Sabha. The Joint Women's Programme (J.W.P.) along with the Church of North India drafted a new Christian Marriage and Matrimonial Causes Bill, 1990. The draft of this bill was discussed by the representatives of various Churches, including the Catholic Bishops Conference of India (C.B.C.I.), the National Council of Churches, the Church of North India, the Church of South India etc. This bill was submitted to the Government in February, 1992. In the meanwhile, the Catholic Bishops Conference of India, after deliberations and consultations, evolved a different strategy as the general feeling among them was not to go in for a new bill that would take too long to be enacted. Therefore, they put forward a proposal to repeal the Indian Divorce Act, 1869 and to amend the Indian Christian Marriage Act, 1872 by incorporating all the grounds available under the Special Marriage Act, 1954, including the provisions for "divorce on mutual consent". The Law Ministry of the Government of India had also taken a stand that the Christian Personal law would be changed as soon as the proposals as approved by all the Churches in India were placed before the Government.

By now, differences of opinion reached a clear divide between Catholics and Protestants. As there was no way out of the impasse, the standing committee of the C.B.C.I. at its meeting (in September 1993) decided not to object to the presentation of the draft Bill to the Government. It also decided to help finalizing the draft, so that the Bill has, as far as possible, a Christian character. Finally, Christians of all denominations - the Catholic Bishops Conference of India (C.B.C.I.), 27 member Churches of the National Council of Churches of India (N.C.C.I.) and others - have come to a consensus that the Indian Divorce Act, 1869 should be repealed immediately and the Government be requested to do so.

While so the Bill of 1990 was referred to the Minorities Commission. In the Minorities Commission, certain objections were taken. A new Bill after clearing these objections under the caption, the Christian Marriage Bill, 1994 came to be formulated. This was presented to the Government with the approval of all known Christian denominations in India. It is yet to be introduced in Parliament.

It is fruitful, at this juncture, to have a look into the various proposals in the Christian Marriage Bill, 1994 which may need further improvement. Clause 3 of the Bill provides:-

"Marriage of Christians solemnized according to Act:-Every marriage between persons one or both of whom is or are Christians, may be solemnized in accordance with provisions of this Act: except in the case of such tribal Christians whose customs and practices demand that both be Christians."

Clause 5 specifies persons authorized to solemnize marriage as follows:-

"Persons Authorized to solemnize Marriages:-Marriage may be solemnized under this Act (a) by any Minister of a Church, or (b) in the presence of marriage Registrar appointed under this Act; or (c) any licensed Minister."

And Clause 57 prescribes penalties for unauthorized solemnization of marriages thus:-

"Solemnizing marriage without due authority: -Whoever not being authorized by S.5 to solemnize a professes to solemnize under this Acta marriage between persons one of whom is a Christian, shall with imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to two thousand rupees".

A combined reading of Clauses 3, 5 and 57 would lead us to the conclusion that any person can solemnize a marriage between Christians or between a Christian and a non-Christian if he does not profess to solemnize the marriage under the provisions of this law as it is not made mandatory that a Christian marriage be solemnized only under this law. Thus Clause 3 leaves room for even a small group of Christians to conduct their marriages in accordance with their own preferences. Once the law is codified, it is not desirable in modern times to allow such a situation to exist. If at all needed, the only other option should be the one under the Special Marriage Act, and it must be specified too.

Clause 4 of the Bill specifies the conditions for a Christian marriage. Sub Clause (iv) of Clause 4 provides:-

"The parties are not within the degree of prohibited relationship, unless the custom or usage or rules of the church governing each of them permits of a marriage between the two."

The attempt to prevent marriages within the prohibited degrees of consanguinity is made ineffective as even a small group can claim exemption by making rules to bye-pass the prohibition.

The provisions for appointment of Marriage Registrars and registration of marriages do not take into account the ground realities. For example Clause 10 provides:-

"Magistrate when to be Marriage Registrar:-When there is only one Marriage Registrar in a district, and such Registrar is absent from such district, or ill, or when his office is temporarily vacant, the Magistrate of the district shall act as, and be, Marriage Registrar thereof during such absence, illness or temporary vacancy."

When the District Magistrate is to solemnize a marriage under the provisions of Clause 10, it is most likely that the marriage may not be solemnized in accordance with the convenience of the parties to the marriage, as the District Magistrate is already burdened with other responsibilities under numerous other enactments. Further, there are no provisions in the Bill for taking custody of or maintenance of Marriage Register by the District Magistrate and this would further create practical difficulties in making entry of a marriage in the Marriage Register. In fact the elaborate provisions made in Clauses 7 to 23 can be condensed by providing that persons authorized under clause 5 to solemnize a marriage be authorized to issue a Certificate of Marriage which should be registered in a Marriage Register to be kept by the Registrar appointed under the Registration Act 1908 and such Registrar can be conferred with the powers of a Registrar under the law on marriage. A provision for mandatory registration of all Christian marriages before a Civil Authority would only be in the best interest of the community for all the purposes of law in modern times. Thus, the different procedures provided under Clauses 15, 16 and 17 in matters relating to issue of certificate of notice of intended marriages, objections to certificates and applications to District Court and the binding nature of the orders of the District Court can all be brought within the simplified procedure. The different procedures provided under the bill, to be adopted by different denominations of Christians make the Bill voluminous and it looks like a Church Union Agreement rather than a piece of legislation. Here clarity and precision have become the casualties.

Further, in this Bill, Clause 4(ii) enacts that a marriage may be solemnized under the Act if "at the time of marriage, neither party is of unsound mind".And any marriage solemnized in contravention of this condition is declared to be a nullity under Clause 28. At the same time Clause 29(3) makes a marriage only viodable if "either party was a lunatic or idiot at the time of marriage".Thus the distinction between "void" and "voidable" is lost sight of in the Bill and the confusion becomes more confounded on further analysis. It is almost impossible to prove that a party to the marriage was of unsound mind or lunatic at the time of marriage. If the party was of unsound mind and remained to be of unsound mind in a case of incurable mental illness, the presumption of incapacity to contract is not recognized even in this Bill. This difficulty has been experienced in the working of the earlier enactments on the subject and the present Bill has not improved the situation in any way.

The provisions made under Clause 29(2) for declaration of nullity of marriage on the ground of non-consummation is again bereft of clarity especially in the background where the English Courts have held that even the use of a condom amounts to non-consummation of marriage. Hence a proper definition of the term is essential as otherwise the Courts will be left with no option but to go to English precedents on this issue.

Again the provisions incorporated in Clause 29(4) for recognition of the decree of nullity of marriage given according to the rules and regulations of the Church is ineffective as a decree of nullity is again required from the Civil Court under Clause 29 itself. The provisions and procedure followed under the Portuguese Civil Code in Goa could be followed in this matter.

Yet another provision for declaration of nullity of marriage as given in Clause 29(5) is that consent for the marriage was obtained by "fraud".And the term "fraud"has been eluding a clear definition throughout the last more than a century and the Courts went on holding that even concealment of pregnancy contracted through someone other than the man who contracts the marriage would also not amount to fraud. At any rate there has been no consistency in these matters. Hence an appropriate definition of the term "fraud"is essential, and it is to be deliberated upon and decided whether the provisions incorporated in the Marriage Laws (Amendment) Act, 1976 should be applied to Christians as otherwise the inclusion of that ground for declaration of nullity of marriage is of no practical use.

The further provision in Clause 37(b), that the petitioner should be "residing "in India at the time of presentation of petition, would lead to procedural difficulties in modern times. In many a cases the petitioner may have his domicile in India but may be residing outside India. Therefore, it is desirable and expedient to provide that the petitioner should have his/her domicile in India or be residing in India at the time of presentation of the petition.

The provisions made in Clause 44 for maintenance pendente litefor the applicant alone is conceptually wrong and legally unsustainable. The benefit must be given to the respondent in the proceedings also as otherwise it would lead to miscarriage of justice.

Further under Clause 2(h) "divorce "is defined as the termination of civil effects of marriage, and the term "nullity" is left undefined, whereby a nullity granted by the church is to be recognized by the civil court under Clause 29(4) whereas no corresponding duty is imposed on the Church whereby the present situation of conflict with the civil court is still left open.

And the provisions contained under Clause 74 dealing with repeal of enactments have not specifically covered the law in force in North East India and the Cochin Christian Civil Marriage Act, 1920. In short, the Bill requires re-examination and re­drafting to suit the present stage of development of the society.

It is discriminatory to subject the Christians in India to a law that does not conform to the social mores of their times, on the ground that other communities have not yet been in a position to accommodate themselves to the constitutional goal. What is necessary at tins stage is a more secular law in tune with the times and in accord with the constitutional mandate.

from frustrated vitality, in the same way that some juvenile delinquency springs from the frustrated adventurousness of youth. A few sexual murders, a few political assassins may fall under this heading. Then there are a number of murders that arise out of sheer brutality, insensibility to suffering. Such murders feel no more pity for the victim than a cat feels for the mouse it tortures. They are the opposite of all that we mean by civilization which is essentially, learning to feel for other people. They are found mainly in the gangster class and it might be argued that if any criminals deserve the death sentence, it is these men.

Towards the end of 1931, the Vienna C.I. Department was looking into the past of one Matuschka who was suing the Hungarian Railways as a victim of the Bia-Torbagy disaster, which occurred in September 1931 when twenty two people were killed in a train crash (not to compare with the recent Island Express tragedy in Kerala). Matuschka's part proved to be very suspicious. It was soon ascertained that he was in. the habit of purchasing explosives. In consequence Matuschka was arrested and questioned; he finally confessed to being responsible not only for the Bio-Torbagy disaster, but also for attempt to derail the Vienna-Passau train and the Vienna Express in the same year in which many passengers were injured.

Matuschka was the son of a cobbler and had served in the army. He claimed that his peculiar perversion began when he was a boy, and a hypnotist at a fair suggested train disasters to him. During the 1914 war he served as an officer in charge of a machine gun company. In 1919 he married the daughter of one of his school teachers. He made money through black marketing. In 1927 he was charged with swindling, but found not guilty. After this he speculated in business and lost heavily. It may have been the strain of these losses that turned his mind to the idea of blowing up trains to obtain sadistic pleasure. He prepared his attempts in great detail before attempting to detrail the Vienna-Passau Express.

His first trial began in Austria in June 1932. A mentalexpert called by the prosecution declared that Matushcka was moralistic, a sadist, had a lust for power and for sensations, but was mentally well. During the trial Matushcka seemed to be out to give an impression of insanity, he cried aloud, trembled and prayed. The Court could not reach an agreement and further trials followed during which Matushcka talked of a spirit called 'Leo' ordered him. One of the things that came to light during the trial was that Matushcka was a man who could experience sexual excitement most deeply when he saw a train crashing, and consequently made an occupation of train wrecking. Matushcka was finally sentenced to death by hanging in November, 1934. A powerful factor for the final verdict was a map found in his house with the, sites for further operations marked in red ink and the places included Amsterdam, Marseiles and Paris.

A Critique of 1999 (2) KLT 699John V. George Jacob

(By P.S. Leela Krishnan, Advocate, Quilandy)

While interpreting Negotiable Instruments Act 1881 S.138 Proviso (b) in the above case Hon'ble Justice K.A. Mohammed Shafi is very much off the mark both in giving the correct dictionary meaning of the word 'receipt' and in its proper interpretation.

In short the revision centered round the interpretation given to proviso (b) which reads like this: (b) "the payee or the holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of receipt of information by him from the Bank regarding the return of the Cheque as unpaid."

His Lordship after discussing the dictionary meaning of the word receipt says in para 11 "From the context, at which expression 'receipt of information used' in Proviso (b) to S.138.....it is clear that what the Legislature intended is a receipt of information in writing and not a mere oral information though the words in writing do not find in that proviso at the context." Further His Lordship unnecessarily fears "if notice as stipulated in Proviso (b) to S.138 is issued on wrong information regarding the dishonour of the cheque, it will lead to several disasterous consequences."

According to me the word 'receipt' is given an ungrammatical interpretation contrary to the natural construction of the sentence. The receipt of information means on receiving information. The receipt is used there as the noun form of receive and not as the independent noun receipt meaning of which His Lordship took pains in finding in the Concise Oxford Dictionary, Black's Law Dictionary etc. Receipt here means according to major dictionaries: act of receiving or being received, acknowledge receipt of a letter, an order etc. on receipt of news he left.

Maxwell on the Interpretation of Statutes says. The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning and second is that the phrases and sentences are to be construed according to the rules of grammar. The rule of construction is to intend theLegislature to have meant what they have actually expressed.....it is well accepted thatthe beliefs and assumptions of those who frame Act of Parliament cannot make the law.

So much so the meaning attributed to 'receipt' is out of context and ungrammatical. Receipt of information, there means only receiving information, immaterial whether oral or in black and white.

Here in the above case the payee got information of the dishonour of the Cheque on 20.12.1989 when he went to the Bank. But receives written information of the dishonour only on 6.1.1990 at his convenience. If that is what is meant by the Legislature, parties can take legal measures according to their convenience. Law does not allow such leisurely attitudes on the part of litigants. They must be vigil ant. In these circumstances I do not think 1999 (2) KLT 699 will remain good law for long.

Auction Purchaser at Peril

(By V.K. Sathyavan Nair, Advocate, Kottayam)

It is submitted that 1999 (1) KLT 278 Ayyappa v. Ananda requires reconsideration.

The proposition laid down by the Court mat the auction purchaser is bound to prove that the disputed property belonged to and was in the exclusive possession of the Judgment debtor is a deviation from the accepted rule hitherto followed in die proceedings deciding matters connected with obstruction to delivery of property.

The Court seems to have not taken note of the scope, object and purpose of amendment of the general scheme of rules 97 to 103 of Order XXI in order to clothe the Execution Court with jurisdiction to determine all questions including questions relating to right, title or interest in the property.

There was a conflict of decision on the point whether a claim for possession by a purchaser in Court auction i n pursuance of execution of a decree is or is not a question relating to the execution of decree. It was set at rest by amending S.47 by C.P.C. (Amendment) Act, 1976. The amendment seeks to make it clear that such a question is a question falling under the section. Consequentially the relevant rules of 0.21 were also amended. Previously the execution court can pass only a summary order in matters of claim and obstruction. As per R.103 of O.XXI as it stood before amendment the Summary order is conclusive subject to the result of a regular suit by the defeated person. So the party against whom an adverse order is passed is driven to file a fresh suit It would cause delay and hardships. In order to avoid unnecessary delay and protracted proceedings the execution court has been given a wider jurisdiction in terms of amended S.47. Now the execution court itself has the jurisdiction to decide questions of title, right and interest of the parties. There can be not doubt, as observed by the Court, that the execution court is required to go into the question of right, title and interest in the property not only of the claimants, but of the judgment debator or auction purchaser also. But that does not mean that the burden of proof is on the auction purchaser.

By any stretch of imagination it cannot be argued that C.P.C. (Amendment) Act 1976 has shifted the burden of proof. The main feature of the amendment is conferring wider jurisdiction on the execution court to decide matters regarding right, title and interest. The amendment does not in any way indicate any change of law regarding burden of proof. The accepted position is that is for the obstructor to prove his entitlement to possession. A relevant passage from Sreenath v. Bajesh JT 1998 (3) SC 244 is extracted below.

"So under O.XXIR.101 all disputes between the decree holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree holder and other person claiming title on their own right to get it adjudicated in thevery execution proceedings.......After investigation under R. 98 the Court puts back a decree holderin possession where the Court finds obstruction was occasioned without just cause, while under R. 99 where obstruction was by a person claims in good faith to be in possession of the property on his own right."

In a suit O.XXIR.103 C.P.C. (before amendment) the Plaintiff must prove not only that he was in possession when he obstructed the defendant (auction purchaser) but he must also establish the right which he claims to the present possession of the property. If he succeeds in doing so, his dispossession during the pendency of the suit does not matter. If his right is proved, then the order of removal of Plaintiff s obstruction must be set aside and the status quo, as at the date of that order, must be restored, that is to say the plaintiff must be put back into possession (See AIR 1939 Bom. 508 and other cases). The obstructor has to begin and lead evidence to prove his right. The observation of our High Court that the auction purchaser cannot take advantage of the weaknesses of the claimant's case alone appears to be not a correct approach in proceedings under R.99.

The Applicant has to prove that he was in possession and was dispossessed in the course of delivery of possession to the decree holder or purchaser. The onus lies upon him to prove his right to possession and it is a serious irregularity to ask the decree holder or auction purchaser to begin (AIR 1931 Mad. 534).

It is submitted that even after amendment in 1976 there is no change of law regarding burden of proof in proceedings relating to obstruction to delivery of property and 1999 (1) KLT 278 places the auction purchasers at their peril.