FAMILY LAW

The concept and procedure of marriage, re-marriage and divorce under christian
laws in India.

Submitted by

Parth Rajendra Desai- 18010324099

Division – D Class – SECOND YEAR, BBA LLB

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

In

August, 2019

Under the guidance of

Mr. Ahmar Afaq

Assistant Professor

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 CERTIFICATE

The project entitled “The concept and procedure of marriage, re-marriage and divorce under
christian laws in India.”was submitted to the Symbiosis Law School, Hyderabad for Family
Law- I as part of Internal Assessment is based on my original work carried out under the
guidance of Mr. Ahmar Afaq from August 2019 to October 2019.

The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper
has been duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism,
if any, detected later on.

Signature of the Candidate Signature of Faculty-in-

Charge

Date: Date:

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 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Mr. Ahmar Afaq for
his enlightening lectures on Family Law-I. I would also like to express my sincere
gratitude to our teaching staff for guiding me the path towards gaining knowledge.

I would like to thank the Library Staff of Symbiosis Law School, Hyderabad as well
for their co-operation.

I would also like to thank my batch mates and seniors who inspired, helped and
guided me in making this project. I am grateful to some of my seniors/friends for
their incredible guidance and support.

Signature of the Candidate

Date:

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 Index

SR. CONTENT PAGE

NO
1. INTRODUCTION 5

2. RESEARCH OBJECTIVE 6

3. RESEARCH QUESTION 7

4. MARRIAGE UNDER CHRISTIAN LAW 8

5. CONDITIONS AND PROCEDURES UNDER 9

INDIAN CHRISTIAN MARRIAGE ACT
6. DIVORCE UNDER CHRISTIAN LAW 14

7. GROUNDS FOR DIVORVE UNDER CHRISTIAN 15

MARRIAGE ACT
8. REMARRIAGE UNDER CHRISTIAN LAW 18
9. OUTCOME 20
10. RESEARCH METHODOLOGY 21
11. CONCLUSION 22

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INTRODUCTION

Many centuries ago, Christian came to India and settled in this country when East India
Company assumed ruling power in India and started establishing their own courts. After the
establishment of the Supreme Court, the Common Law of England had prevailed in India and
was applied to various subjects including marriage ,re-marriage and divorce on the principle
of equity ,justice and good conscience.

Christianity, which comprises around 2.3 percent of India’s population today ,was first
established by Thomas the Apostle who according o tradition had reached Malabar Coast.

The concepts of Adoption, divorce, marriage, guardianship, and succession were regulated
by Christian law. Christian around India are governed by Canon Law and marriages of
Christian residing inside India except the state of Goa were regulated by Indian Christian
Marriage Act 1872.

With respect to the divorce of the Christians in India, a special act naming the Indian
Christian Divorce Act concerns the divorce of Indian Christians. The reasons or the grounds
of divorce is almost the same mentioned in the Hindu Marriage Act. But, Roman Catholics
do not come under the ambit of any proceedings regarding divorce as the Roman Catholic
Church has not yet recognized divorce as a concept. A detailed study would be done with
respect to the marriage, divorce, and remarriage of Christians in India.

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RESEARCH OBJECTIVES

• To study about the procedures of marriage of Indian Christians and the legal
provisions related to it in deatail.
• To understand the concept of dissolution of marriage (divorce) and its legal aspect
with respect to Christian personal laws.
• To study the concept of remarriage and understand if permitted under the concerned
personal law.

• To learn and understand about the Christian personal laws prevailing in India.
• To understand the functioning of Christian Law in India

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RESEARCH QUESTIONS

• What are the requirements for a valid marriage under the relevant Act.

• How are the proceedings for divorce conducted under the Christian personal laws.

• Determining grounds for divorce under Concerned Acts.

• Is remarriage a valid concept under Christian personal laws? If yes then what are the
legal provisions and proceeding associated with it.

• Determining the procedures enlisted in the Indian Christian marriage act for a
marriage to be valid.

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Marriage under Christian laws

On the 18th of July 1872, the Parliament of India enacted The Indian Christian Marriage Act which
deals with legal procedure for regulating a marriage between Indian Christians. This Act is
applicable throughout the country but territories like Cochin, Manipur, Jammu and Kashmir are
excluded from the same. The Act proclaims that marriage to be solemnized shall at least have one
party Christian. According to the act, a marriage is legitimate if at least one of the parties is
Christian. An ordained minister of any church in India, a clergyman of the Church of Scotland, a
marriage registrar or a special licensee can get a aspiring couple married .

The marriage performer issues a marriage certificate. The Registrar of Marriage keeps the record of
such a certificate .This Act shows similarity with other Acts. For example: the legal age for marrying
for a boy is 21 years and for girl is 18 years. The marriage ceremony must occur between 6 a.m. and
7 p.m. For any other instance a special permission should be secured. . The wedding could happen
during a church; but, in cases wherever there's no church among 5 miles, associate acceptable
different location could also be chosen.

All the Christian wedding take place inside a church but in case of absence of any church within 5
miles, another convenient alternative location should be chosen. The Indian Christian wedding Act
1872 provides that each wedding each parties to that square measure, or either party to that is,
Christian shall be solemnized in accordance with its provisions. This provision conflicts with the
Special wedding Act 1954 that is on the market, like everybody else, additionally to Christians for
marrying at intervals or outside their community. It has, however, not been amended or repealed.

The Indian Christian Marriage Act 1872 is obsolete in so far as it makes a distinction between
“Christians” and “Indian Christians”, Church of Scotland and Church of Rome . The Act provides
separate rules for the ritual and registration of marriages of Indian Christians and different Christians,
and also for the followers of various Churches. Due to the afforested classification and distinctions
the system of registration of marriages provided by the Act is kind of sophisticated. This Act, thus,
has a very complicated system of registration of marriages solemnized under the Act and it suffers
from a tremendous lack of uniformity.

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Conditions and Procedures under Indian Christian Marriage Act

1. Conditions for marriage.

The following are some conditions essential for a marriage under The Indian Christian Marriage Act
to be valid.

 The groom must be at least 21 years old.

 The bride must be at least 18 years old.
 The agreement between the two parties to the marriage must be free and voluntary and without
compulsion, undue influence, or threat of violence and should be with consent.
 The marriage must be witnessed by two reliable eye-witnesses and by a licensed marriage
performer.

2. Documents Required

The Indian Christian Marriage Act requires following documents for its registration.

 A complete application form with precise details.

 Passport-sized photographs of both the parties to the marriage.
 The Certificate of Marriage issued by the Minister or the Priest who performed the marriage.
 Two photographs from the Wedding of the rituals along with an Invitation to the Wedding.
 Residence proof and the proof of Age of both the parties to the marriage.
 An affidavit certifying the mental condition and the marital status of both the parties.

3. Individuals Eligible to Solemnise

The following individuals are authorised to solemnise a Christian marriage as per the Indian
Christian Marriage Act.

 By an individual who has received the episcopal ordination and is authorised to solemnise a
marriage according to the rules, rites, ceremonies and the customs of the Church of which he
is a Minister.

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  By an individual who is a Clergyman belonging to the Church of Scotland and is authorised
to solemnise a marriage according to the rules, rites, ceremonies and the customs of the
Church of Scotland.
 By an individual who is a Minister of Religion who is authorised to solemnise marriage with
a license as per the Act.
 By an individual who is licensed under the Act to grant Certificated of marriage between
Christians in India.

4. Conditions for Marriage Registrar

A Marriage ceremony can only be performed by the Marriage Registrar only after all the conditions
mentioned in this Act are satisfied. The following terms have to be met if the Marriage Registrar has
to perform the marriage as stated by the Act.

Notice of Intended Marriage

The parties to the marriage should write an application or a notice for the intended marriage
and submit it to the Marriage registrar residing within the same vicinity.This is done in order
to proclaim the intention to get married to the concerned authority. If both the parties live in
different locations, it is essential that each party makes a separate notice in writing to the
Marriage Registrar that is located within their area of residence. These applications become
part of “marriage notebook” and are put up on the notification boards in the respective
offices.

Pledge before the Registrar

Before any such certificate of notice has been issued at least one of the parties have to make a
personal appearance to the Marriage Registrar. Following pleadings are available for the party to
appear before the Marriage Registrar:-

1. Intended marriage do not have any obstacles, natural inclinations or other legitimate
impediments
2. Place of residence falls within the territory of the Marriage Registrar.

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If either of the parties is a minor, the consent of one of the persons that are listed below is of great
importance to perform the marriage.

 Father of the Minor, if alive and well.

 The authorized Guardian of the Minor if available.
 The Mother of the Minor, if no other individual is authorized to such a consent resides in the
country.

Certificate of Notice

When the pledge is taken before the Marriage Registrar by either one of the gatherings to the planned
marriage, a Certificate of Notice is given. When the pledge is done, the Registrar trusts that four days
will give the certificate. After the period has passed, the Marriage Registrar has the ability to allow
the Certificate of Notice. For example, the location of the Church or the Chapel or whatever other
spot that the marriage ceremonies are relied upon to be performed are expressed in the Certificate of
Notice. This Notice would not be given if is halted by anybody expressing evident reasons why the
confirmation should not to be conceded. The issuance of the certificate of notice makes it required
for the marriage to be performed with two months from the date of production. Neglecting to do so
would make the certificate of notice repetitive and new certificate would be required.

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Performance of the Marriage

Under the Indian Christian Marriage Act, a Christian Marriage is performed between the
gatherings to the marriage with agreement to the customs which is viewed as fundamental
and appropriate by the Minister or the Cleric assigned to play out the wedding. The nearness
of two qualified observers other than the minister or the cleric playing out the marriage is an
obligatory necessity at the marriage service. A marriage can't be performed in the event that it
isn't performed inside two months from the issuance of the authentication of notice. In such a
case, another endorsement of notice must be applied for and gave to solemnize the marriage.

Time and Place

The Indian Christian Marriage Act clearly states where Christian marriages should take place at and
the time at which it should be performed. The time for performing a Christian marriage ritual has to
be scheduled between the timeframe of six in the morning to seven in the evening. The place that
Christian marriage has to be performed is at a Church or a Chapel. Some special considerations and
requests are granted that give flexibility to the time and place to conduct the marriage ceremony.

Registration of a marriage.

An application for registration of the marriage is made by both the gathering to the concerned expert
in whose locale either of the gatherings has been living. The wedding is enlisted by the Marriage
Registrar who was available at the marriage and played out the association of the couple in the
Marriage Register. An affirmation error of the enlistment with the approved signatory of both the
gatherings alongside the observers present at the time is recorded. This is then appended to the
Marriage Register and thereby demonstrating that the marriage was enlisted officially. These slips of
affirmation are conveyed toward the month's end to the Registrar General of Births, Passings and
Marriages. Christian marriages in India may likewise be supported under a special provision without
earlier notice.

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Rectification of Mistakes

Any individual who goes over a mistake in the structure or substance of a marriage section in the
Register of Marriages must carry it to the notice of the individual who enlisted the marriage in any
case. The approved individual should roll out the improvements inside one month of finding the
mistake. The mistake must be revised within the sight of the people wedded or, on account of either
of their demises or nonattendance, within the sight of two other trustworthy observers. The
amendment must be made by the passage in the edge with no adjustment to the first section. The
approved individual needs to sign the peripheral passage and include the date of such a rectification
made. This peripheral amendment ought to be made in the certificate of the marriage too. Each
passage made under this section ought to be validated by the observers in whose nearness the redress
was made.

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Divorce under Christian Law

A recent judgment of the Hon'ble Bombay High Court has made it possible, for the first time, for a
Christian woman in Maharashtra to get a divorce on the ground that her husband was cruel to her.
Earlier, she couldn't get a divorce unless she verified that excluding being cruel, her husband
dangerous additionally deserted her or indulged in criminal conversation. The procedure for divorce
under Christian law - At the time of wedding within the church, the couple has to sign a register. This
step mechanically registers the wedding under the Christian Marriage Act. This register acts because
the recognition of the wedding under the civil law.

The procedure for Catholic divorce, however, is dual. First the couple has to seek an annulment from
a church tribunal. Then the couple has got to repeat the procedure in an exceedingly court of law.
There is no provision for divorce within the church law. The church only provides for an annulment.
An annulment states that the marriage was not valid in the first place. There are grounds for such an
annulment. For instance, the couple will prove that the wedding came about below parental pressure
or that one partner had hidden one thing that affects the other's life

There are many flaws in Christian law - Christian laws are more than 100 years old, dating back to a
colonial and patriarchal era. They have many flaws, particularly with regard to women's rights. It Is
ironic that while the law in England has undergone tremendous change, the law we inherited in India
remains outdated. English law permits divorce even on the grounds of mutual consent. In 1990, a
Christian delegation comprising reformists and activist organizations had drafted a bill for
amendments in Christian law. These reforms had the consent of the church. The delegation
subsequently submitted this draft to the government for legislation. Even then the government has
not amended the law to date. The draft dealt with issues like maintenance and succession. For
instance, in a move to empower women, the draft submitted that a widow should be entitled to her
husband's property even if he did not provide for it before they got married.

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Grounds for Divorce under Christian marriage act.-

In most Western nations, there are approximately 16 distinct reasons for which divorces are granted
but in India only four grounds are accepted as far divorce is concerned.

1. Adultery

While no formal definition of adultery exists, it does have "a fairly established meaning in
matrimonial law", namely "the voluntary sexual intercourse of a married man or woman with a
person other than the offender's wife or husband" While the law considers it valid grounds for either
s*x, adulterous women are "judged more harshly" than menThe various religious regulations a e not
unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of
infidelity of either husband or wife. The Christian law, however, would traditionally not have granted
a divorce to a woman solely on the grounds of adultery. She would have had to prove another
violation, such as cruelty. A recent Bombay High Court decision "recognized cruelty and desertion
as independent grounds for the dissolution of a Christian marriage," striking down a section of the
law that allowed for an unconstitutional distinction between the sexes.

2. Desertion

The three main components of desertion are the "disruption of cohabitation, absence of just or
reasonable cause and their combination throughout three years" before the abandoned spouse may
petition for a divorce. There also must be an obvious intent on the part of the offending spouse to
remain permanently apart from the other. This statute also applies to cases in which a spouse has
been heard from for at least seven years .

3. Cruelty

As with adultery, "the definition of the type of behavior that constitutes cruelty varies according to
the gender of the petitioner" of the divorce. "Despite the fact that cruelty is often equally available to
husbands and wives, the way in which the law is interpreted and applied suggests that women and
men are evaluated by rather different standards" This category includes both physical and mental
abuse and neglect. A court decision made in early May 1997 made cruelty sufficient grounds for a

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Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven.
The national Indian Christian community seems to have embraced this judgment

4. Impotency

This refers to the physical inability of the couple to consummate the marriage or the refusal by one
spouse to do so Some cases have established that sterility can be construed to mean non-
consummation if the other partner is not aware of the condition before the Chronic Disease. Both
mental and physical illnesses are included in this category, as well as sexually transmitted diseases
Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not
allow divorce for a sexually transmitted disease or leprosy while the other communities .

Marriage under Christian Law is in the nature of contract and hence there should be a free and
voluntary consent between the parties. When there is a minor, as defined in the Act, the consent of
father or guardian is necessary. Marriage is not permissible between the parties who are within the
prohibited degrees of relationship under section 19 of the Act. There is no legal impediment for
marriage between a catholic and a Protestant. By marriage, the husband and wife become one person,
i.e., the legal existence of the women is incorporated and consolidated into that of the husband. The
law regarding divorce, judicial separation and allied matters is contained in the Indian Divorce Act,
1869.

Under section 18 of the Act either spouse can seek divorce on the grounds contained in section 19
which reads as follows:-

Section 19: Grounds for decree of divorce :- -

 That the respondent was impotent at the time of marriage and institution of the suit; -
 That the parties are within the prohibited degree of consanguinity or affinity; -
 That either party was a lunatic or idiot at the time or marriage. –
 That the former husband or wife of either party was living at the time of marriage and the
said marriage was then in force. –

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Nothing shall affect the jurisdiction of the High court to make decrees of nullity of marriage on the
ground that the consent of either party was obtained by force or fraud.

Under Section 10, the wife can seek the marriage be dissolved on the ground

 that her husband exchanged professing Christianity and gone through a form of marriage with
another woman; -
 incestuous adultery -
 bigamy with adultery –
 Marriage with another woman with adultery-
 rape, sodomy or bestiality-
 adultery coupled with cruelty-
 adultery coupled with desertion without reasonable cause for two years or more.

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Remarriage under Christian law

Under the special marriage act, any woman of any religion can marry or remarry without
satisfying any religious ceremony.

Matthew 19:3-9
Jesus was asked whether divorce can properly be obtained for just any reason a person
might have. He answered by appealing to the original marriage law. Jesus taught that
divorce itself, in general, is contrary to God's will. God made one man for one woman,
indicating He did not intend for either to marry anyone else. He said they should cleave to
one another and the two become one - there is no room in God's plan for a third party. God
joins the man and woman, no human has the right to break that bond.

Further, whoever divorces his wife and marries again commits adultery , and whoever
marries her who has been divorced also commits adultery.
To help understand the passage, read it with your name and your spouse's name, instead of
"whosoever," etc.

Matthew 5:31,32
One who puts away his wife causes her to commit adultery. This assumes that she remarries as
described in the last part of the verse and as implied in the previous verse
By divorcing his wife, the husband puts her in the position where she is strongly tempted to remarry
and if she does remarry, Jesus says she is guilty of adultery and so is the man she marries. Hence,
the divorce itself is wrong and should be avoided.

Romans 7:2,3
A married woman is bound by law to her husband as long as he lives. This means that if she is
married to another man while her first husband is alive, she is guilty of adultery. She is free to
remarry without guilt only if her husband is dead.

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Corinthians 7:10,11
A married woman should not depart from her husband nor he from her. Again, divorce itself
is not the will of God. But if she departs, she must remain unmarried or else be reconciled to
her husband. Clearly remarriage is not a scriptural alternative.

Looking at the above finding from the Christianity we may feel like there is no scope for a
remarriage in the same. But a remarriage is permitted for a partner only when the grounds re of
biblical basis. In fact, the purpose for a biblical divorce is to make clear that the faithful partner is
free to remarry. According to many Christian denominations, Christian marriage is the union
between a man and a woman, instituted and ordained by God as the lifelong relationship between one
man as husband, and one woman as wife. The Apostle Paul gave a similar directive when he wrote,
"Let marriage be held in honour among all". Conservative Christians consider marriage as the most
intimate of human relationships, a gift from God, and a sacred institution. Protestants consider it to
be sacred, holy, and central to the community of faith. Catholics and Eastern Orthodox
Christians consider marriage a Sacrament.

Those who divorce on the other grounds have sinned against God and their partners, for them to
marry another is an act of “adultery” .This is often why Paul says that a the lady who sins oughts to
remain unmarried lady , alternatively be reconciled to her husband. If she repents from her sin of
unbiblical divorce, the true fruits of that repentance would be to seek reconciliation with her former
husband .The same is true for a man who divorces. The only time such an individual might get
hitched with another is that if the previous relative remarries, proves to be an unbeliever, or dies, in
which cases reconciliation would no longer be possible.

The Bible additionally provides a word of caution to anyone who is considering wedding to a
divorcee. If the divorce wasn't on biblical grounds and there's still a responsibility to reconcile, the
one who marries the divorcee is taken into account as adulterer.

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OUTCOME

To know what the Christian personal laws comprises of and to understand the process of
marriage, remarriage and divorce of the Indian Christian under the laws confining them is
main expected outcome of this research project. To have knowledge about particular section
and to decode the personal laws for Christians with respect to subjects mentioned above.
Very important outcome is have in-depth knowledge about marriage ,re-marriage and divorce
with respect to Christianity.

This research project is mainly concerned about marriage, remarriage and the divorce
under the Christian personal laws and the difficulties faced during its execution. The
research work would also include in-depth analysis about various legal provisions
concerning the same .It will also be including various opinions and suggestions regarding
these concepts with respect to Christianity.

Christianity, its various sections will be studied under this project along with the technique to
deal with these concepts. Conclusive analysis would be made for the better understanding of
Christianity and how it deals with such concepts. A clear understanding would be given with
respect to the above mentioned concepts in this paper.

The research work along with these concepts of marriage, re-marriage and divorce also
includes the history and the genesis of Christianity in India and the evolution of the laws
governing the Indian Christians over a period of time.

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 RESEARCH METHODOLOGY

The research methodologies used in this particular legal research project was doctrinal
research methodology.

Doctrinal Research. Methodology employed by those who specialize in the legal

research field. The main base of a Doctrinal Research is, “What is the law in this case”. A
doctrinal research means a research that has been carried out on a legal proposition or
propositions by way of analyzing the existing statutory provisions and cases by applying the
reasoning power. This is purely theoretical research that seeks to find the "one correct
answer" to certain legal issues or questions. Identifying specific pieces of information and
making specific inquiries is the main aim of the project.

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 CONCLUSION

Christians have been part of the Indian society deliberately for many decades now and
also have their personal laws. Christian Personal Law or family law regulates
Adoption, Divorce, Guardianship, wedding and Succession. The provisions of law
regarding wedding area unit recognized because the personal law of Catholics in India
(except within the state of Goa).

Christian Personal Law isn't applicable within the state of Goa. The state Civil Code,
additionally referred to as the state Family Law, is that the set of civil laws that
governs the residents of the Indian state of state. In India , as a whole , there are unit-
religion-specific civil codes that govern people from different religions .Goa is
associate degree exception thereto rule, in that, one laic code/law governs all Goans,
no matter faith, quality or linguistic affiliation.

The concept of marriage, remarriage and divorce under the Christian law has been
clearly explained in this project to the meet the objectives this projects. All the
necessary procedures, conditions, requirements and sections for solemnization of
marriage, divorce have been explained.

Since I am a supporter of Uniform Civil Code and I strongly feel that all humans
irrespective of religion should be governed with the same law which will leave no
space for justification for anything on the basis of religious customs.

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