WEEK 7

CHRISTIAN MARRIAGE

1
 INTRODUCTION:

• Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869 – law of
marriage and divorce for the Christians.
• ICMA Application - It extends to the whole of India except the territories of
Jammu and Kashmir, erstwhile Travancore-Cochin, and Manipur.
• Leelamma’s case: There is no statutory law applicable to solemnization of
Christian marriages in the Travancore area of the State of Kerala.
• Travancore-Cochin was a former state but the State Reorganization Act, 1956
joined Travancore-Cochin with Malabar District of Madras to form Kerala.
Civil marriages among Christians living in the former State of Cochin are
governed by the provisions of the Cochin Civil Marriage Act of 1920.
• Kerala has a considerable population of Syrian Christian who are governed by
their personal law
• Manipur & J&K are excluded too (personal laws apply)
• ICMA is not applicable to these regions but IDA is – because the idea is to
have a uniform law as far as possible
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• The ICMA provides that “nothing in this Act shall be deemed to
validate any marriage which the personal law applicable to either of
the parties forbids him or her to enter into”.
• For application of this Act - two requirements should be satisfied, viz.,
• the marriage should be solemnized under the Act and
• it should not offend the personal law of any of the parties to it

3
• Sujata v. Jose Augustine (1994) II DMC 442 - Kerela HC held that in the
areas to which this Act does not apply, it is the Canon Law that would
govern. This law is contained in the Code of Canon Law prepared by the
Canon Law Society of Great Britain and Ireland in association with the Canon
law society of Australia and New Zealand and the Canadian Canon Law
Society.
• Canon law is personal law of Catholic – it does not cover other
denominations of Christianity
• Reliefs such as dissolution of marriage, maintenance, custody is not mentioned
in Canon Law
• In Kerala, the Indian Christian Marriage Act is applicable in Malabar,
Cochin Christian Marriage Act in Cochin and personal Laws in southern
part of Kerala (Travancore which is a part of Thiruvananthapuram)

4
• Church on the basis of Canon law can declare a
marriage null/invalid but that is not sufficient
because a decree under Indian Divorce Act is
needed.

5
 INDIAN CHRISTIAN MARRIAGE
ACT, 1872

• S. 3 - the expression "Christians" means persons professing the

Christian religion; and the expression "Indian Christians" includes the
Christian descendants of natives of India converted to Christianity, as well
as such converts;
• Followers/professes of Christianity
• Conversion – only if it such that he truly believes in the religion – Baptism
is an important circumstance to conclude that one is a Christian –
one should have the intention to be adequately instructed in the faith and
the duties of a Christian
• descendants of the person converted to Christianity is a Christian because religion
of the parent decides the religion of the child unless contrary can be
proved
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 WHO IS A CHRISTIAN?

• The persons who are the followers of Christian religion

are Christians.
• Different High Courts have held different opinions on
who ought to be treated to be a Christian for the
purpose of this law since the definition of Christian is
not specific and comprehensive under the Act.

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 INDIAN CHRISTIAN MARRIAGE
ACT, 1872

• S. 4 Marriages to be solemnized according to Act—Every marriage

between persons, one or both of whom is or are a Christian, or Christians,
shall be solemnized in accordance with the provisions of the next
following section; and any such marriage solemnized otherwise than in
accordance with such provisions shall be void.

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• A Christian marriage can be performed only in accordance with the
provisions of this Act and not in any other manner.

• The Act and the personal law in areas where ICMA applies – where the
Act does not coincide with the personal laws then marriage is valid if
performed under either but where there is a conflict, the Act will prevail.

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S. 5 – Persons by whom marriages may be solemnized —
Marriages may be solemnized in India—
(1) by any person who has received episcopal ordination, provided that
the marriage be solemnized according to the rules, rites, ceremonies
and customs of the Church of which he is a Minister;
(2) by any Clergyman of the Church of Scotland, provided that such
marriage be solemnized according to the rules, rites, ceremonies and
customs of the Church of Scotland;
(3) by any Minister of Religion licensed under this Act to solemnize
marriages; (S. 6 of ICMA – License by State Govt.) (Part III of the Act)
(4) by, or in the presence of, a Marriage Registrar appointed under this
Act; (Part V of the Act)
(5) by any person licensed under this Act to grant certificates of marriage
between Indian Christians. (Part VI of the Act, Section 60 ICMA)
The State Governments grant and revoke the licenses, granted in favor of
certain persons, for the solemnization of marriages under the Act.
10
 SECTION 4 & 5: SCHEME OF THE
ACT
• We may now deal with the scheme of Section 5 which read with Section 4 is
the most material section and all the other provisions which have been made in
the Act, particularly, in the different Parts have to be read in the light of
Section 5.
• Section 5 gives five categories of persons by whom marriages of Christians can
be solemnized in India.
• FIRST: The first is of any person who has received episcopal ordination. The
only condition laid down is that he must solemnize the marriage according to
the rules, rites, ceremonies and customs of the Church of which he is the
Minister.
• SECOND: The second category is of Clergyman of the Church of Scotland
who has to solemnize the marriage according to the rules, rites, ceremonies and
customs of that Church.
• THE NEXT THREE CATEGORIES, namely, 3, 4 and 5 are of those who
have been licensed or appointed under the Act.
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• In CATEGORY 3 fall Ministers of Religion licensed under the Act to solemnize
the marriages. Part III contains provisions relating to marriages solemnized by
Ministers of Religion licensed under the Act, namely, category 3.
❑ Part IV: directs registration of marriages solemnized by a Minister of Religion.
It points out how it is to be done by the Clergyman of England, Rome and
Scotland. It also deals with the case of a marriage solemnized by a person who
had received Episcopal ordination but who is not a Clergyman of the Church
of England, Rome or Scotland.

• CATEGORY 4 consists of persons licensed under the Act to grant the

certificate of marriage between the Indian Christians. Part V relates to
marriages solemnized by or in the presence of Marriage Registrar which
obviously pertains to category 4.
• CATEGORY 5: With regard to a marriage solemnized by the person in category
5 dealt with in Part VI. Part VI relates to marriage of Indian Christians which can
be certified under that Part on fulfilment of the conditions given in Section 60.
12
 RATIONALE:

• The making of separate provisions in Parts III. V and VI shows that each
Part is meant to be self contained.
• The categories of persons covered by those Parts and the provisions
appearing therein cannot be applied to marriages solemnized by persons
falling in categories I and II.
• Moreover in the aforesaid 2 categories (1 and 2) a person who can
solemnize the marriage can do so only according to the rules, rites
ceremonies and customs of the particular Church to which the Minister or
the Clergyman belongs.
• In other words if a marriage has to be solemnized by a Minister belonging
to the Roman Catholic Church which will fall within category I he is
bound to follow only the rules, rites and ceremonies and customs of the
Church to which he belongs and it is not possible to apply the provisions
of Part III to him.
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S. 60. On what conditions marriages of Indian Christians may be
certificate —
Following conditions be fulfilled: —
(1) the age of the man intending to be married shall not be under twenty-
one years, and the age of the woman intending to be married shall not be
under eighteen years;
(2) neither of the persons intending to be married shall have a wife or
husband still living; (Bigamy)
(3) in the presence of a person licensed under section 9, and of at least
two credible witnesses other than such person, each of the parties shall say
to the other - I call upon these persons here present to witness that, I,
A.B., in the presence of Almighty God, and in the name of our Lord
Jesus Christ, do take thee, C.D., to be any lawful wedded wife or
husband" or words to the like effect.
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INDIAN DIVORCE ACT

15
 APPLICATION AND EXTENT OF
THE ACT

• Applies to the whole of India except the state of Jammu & Kashmir
• It does not apply to all Indians, it applies to only Christians. The
Word Indian has been deleted by an Amendment.
• For relief under this Act, the conditions set out in Section 2 of the
Act must be complied with.
❑ In order that the Court may have jurisdiction under the Act, the parties must profess
Christian religion. It is sufficient to give jurisdiction to the court to give relief under
the Act that one of the parties should profess Christian faith.
❑ Courts do not have a jurisdiction if the parties are not domiciled in India at the time
of dissolution of marriage. The court has to rigidly test the domicile of the parties as
on the date when the application for dissolution of marriage is filed.

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 SECTION 2 THE DIVORCE ACT, 1869: EXTENT
OF ACT
Extent of power to grant relief generally:
• Nothing hereinafter contained shall authorize any Court to grant any relief under this
Act except where the petitioner or respondent] professes the Christian religion,
and to make decrees of dissolution,
• or to make decrees of dissolution of marriage except where the parties to the marriage
are domiciled in India at the time when the petition is presented,
or of nullity-
• or to make decrees of nullity of marriage except where the marriage has been
solemnized in India and the petitioner is resident in India at the time of
presenting the petition,
or to grant any relief under this Act, other than a decree of dissolution
of marriage or of nullity of marriage,
• except where the petitioner resides in India at the time of presenting the petition.]
 SECTION 4: JURISDICTION

• Section 4 confers an exclusive jurisdiction upon the

High Courts and the District Courts in all matrimonial
matters under the Act.
• No other civil courts have any jurisdiction to entertain
matrimonial causes between parties who are governed
by the Act.

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 INDIAN DIVORCE ACT, 1869

S. 10. Dissolution –
Grounds for dissolution of marriage‐(1) Any marriage solemnized, whet
her before or after the commencement of the
Indian Divorce (Amendment) Act, 2001, may, on a petition presented to
the District Court either by the husband or
the wife, be dissolved on the ground that since the solemnization of the
marriage, the respondent ‐

(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not
less than two years immediately preceding the presentation of the
petition; or
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(iv) has, for a period of not less than two years
immediately preceding the presentation of the petition,
been suffering from a virulent and incurable form of leprosy; or

(v) has, for a period of not less than two years immediately prece
ding the presentation of the petition, been suffering
from venereal disease in a communicable form; or

(vi) has not been heard of as being alive for a period of seven years or m
ore by those persons who
would naturally have heard of the respondent if the respondent had b
een alive; or

(vii) has wilfully refused to consummate the marriage and the marriage
has not therefore been consummated;
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• viii) has failed to comply with a decree for restitution of conjugal rights for
a period of two years or upwards after the passing of the decree against
the respondent; or
• ix) has deserted the petitioner for at least two years immediately preceding
the presentation of the petition;
• x) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent.
• 2) a Wife may also present a petition for dissolution of her marriage on the
ground that the husband has, since the solemnization of the marriage,
been guilty of rape, sodomy or bestiality.

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 INDIAN DIVORCE (AMENDMENT)
ACT, 2001

• Main characteristics of the amendment are as follows-

• The grounds of divorce are made similar to those under the SMA, HMA
etc. (See Section 10, Divorce Act)
• The grounds for divorce are common between husband and wife. (See
Section 10, Divorce Act)
• The amendment is prospective as well as retrospective. Parties
married before the amendment can also avail the provisions of this
amendment. The new provisions apply to appeals pending in the court as
well. (See Section 10, Divorce Act)
• It is only by the amendment of 2001 that divorce by mutual consent has
been allowed. Before 2001, even if the parties agreed and consented to
have their marriage dissolved, the court could not permitted it. (See Section
10A, Divorce Act)
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 ADULTERY

• Under the old provision (Pre 2001 amendment), adultery

simpliciter was a ground for divorce available to the husband
only and this was the only ground available to him.
• On the contrary a wife cannot file a petition for divorce on the
ground of adultery simpliciter.
• It should have been incestuous adultery or
bigamy/cruelty/desertion coupled with adultery.

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 ADULTERY

• After 2001 amendment, if either spouse has committed

adultery, the other spouse may present a petition for divorce.
• Voluntary sexual intercourse by a married person with anyone
who is not his or her spouse is adultery.
• Under the matrimonial law- the definition of adultery is
broader than criminal law (See S.497).
• Petition for divorce cannot be made on the ground of the pre-
marriage adultery.
• Section 10 also allows granting of divorce on the ground of
adultery since the solemnization of marriage and not before.
• S. 34 - Husband can claim for damages from the adulterer for having
committed adultery with his wife when he files for divorce, nullity or
JS
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 CONVERSION FROM
CHRISTIANITY

• Conversion from Christianity is a ground for divorce.

• It has to be the respondent’s conversion and not the
petitioner’s.
• Marriage is not automatically dissolved by conversion.

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 UNSOUNDNESS OF MIND

• Medical evidence is required to prove the fact that the

unsoundness of mind is incurable.
• It must be at least for two years preceding the filing of the
petition.
• The 2 year period starts from the time the unsoundness of
mind becomes incurable.

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 LEPROSY AND VENEREAL
DISEASE

• Divorce is not permitted for a mild form of leprosy- disease

must be virulent and incurable and it must be for two years
preceding the filing of the petition.
• Venereal diseases must be in communicable form- must be for
two years preceding the filing of the petition.

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 LONG DISAPPEARANCE

• For seven years unheard of , no one knows

about his whereabouts.

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 NON-CONSUMMATION OF
MARRIAGE

• Where it is refused by the respondent deliberately, and

the marriage remains unconsummated for that reason,
divorce may be granted.
• Willful refusal to consummate marriage is a kind of
mental cruelty and it robs marriage of his essence.
• Where non-consummation is not willful, it may be
said there is absence of mens rea on the part of the
respondent.

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 NON-COMPLIANCE WITH THE
DECREE OF RESTITUTION OF
CONJUGAL RIGHTS

• S. 22 – JS – on the ground of adultery, or cruelty, or desertion without

reasonable excuse for two years or upwards
• S. 32 – RCR – just like HMA and SMA
• When a decree of the restitution of conjugal rights is passed against any
party to marriage, then it is the legal obligation of that party to resume
cohabitation. If he or she still remains away from the society of the
decree holder for more than two years, it clearly implies that he or she is
not interested in keeping the marital tie alive. It is then in the fitness of the
things that the other party should be given right to obtain divorce on this
ground.
• The period of non-compliance is two years unlike the SMA and HMA.

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 DESERTION

• There are two factors: Factum Deserendi: the fact of desertion and
Animus deserendi: the intention to desert.
• In the case of Henry Fernandes v. Succorinha Fernandes, (2001) II DMC 536-
a wife admittedly lived separately from the husband and refused all attempts
of reconciliation, it was held that the intention to desert was proven and
hence the husband was entitled to a decree of desertion.
• There are two types of desertion. To walk out of the house is a simple
straight forward physical desertion.
• The complexity lies in Constructive desertion. The offender may be in the
house but performs no marital duty even while living in the same house.
• S. 27 – Benefit to the wife –Deserted wife may apply to Court for protection
of the property she has acquired or is in possession of.

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 CRUELTY

• Cruelty- the widest ambit of the fault ground.

• Kiran Robinson v. Ajeet Robinson- AIR 2003 Del 44- wife despite being
an educated lady was required to do all household work, in each and every
thing that she did, faults were found. She was abused and beaten and
forced to ask for her share of the property and further the husband was
living in adultery. The wife was entitled to a decree of dissolution of
marriage.

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 EXCLUSIVE GROUNDS FOR DIVORCE FOR THE
WIFE

• Wife has three additional and exclusive grounds under Section 10(2).
• In the case of Anil Kumar v. Union of India, 1994 SCC (5) 704, this
provision has been challenged being unconstitutional and being violative of
Article 14 of the constitution as it is not available to a husband.
• Taking into consideration the muscularly weaker physique of the woman, her
general vulnerable physical and social condition and her defensive and non-
aggressive nature and role particularly in this country, the legislature can hardly
be faulted if the said two grounds are made available to the wife and not to the
husband for seeking dissolution of the marriage. For the same reasons, it can
hardly be said that on that account the provisions of Section 10 of the Act are
discriminatory as against the husband.
• The formal approach, in which equality is equated with sameness, and the
protectionist approach to gender difference, in which women are understood
as weak and in need of protection, have operated to limit the efficacy of these
constitutional challenges.- protectionist approach needs to be challenged
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 DIVORCE BY MUTUAL CONSENT

• S. 10 A- Subject to the provisions of this Act and the rules made

thereunder, a petition for dissolution of marriage may be presented to the
District Court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement of the Indian
Divorce (Amendment) Act 2001, on the ground that they have been living
separately for a period of two years or more, that they have not been
able to live together and they have mutually agreed that the marriage
should be dissolved.
• (2) On the motion of both the parties made not earlier than six months
after the date of presentation of the petition referred to in sub section 1
and not later than eighteen months after the said date, if the petition is
not withdrawn by both the parties in the meantime, the Court shall, on
being satisfied, after hearing the parties and making such inquiry, as it
thinks fit, that a marriage has been solemnized and that the averments in
the petition are true, pass a decree declaring the marriage to be dissolved
with effect from the date of the decree.
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 DIVORCE BY MUTUAL CONSENT

• It is only by the amendment of 2001 that divorce by mutual consent has been
allowed. Before 2001, even if the parties agreed and consented to have their
marriage dissolved, the court could not permitted it.
• In the case of Albert Anthony v. Union of India (W.P (C) no. 127 of 2015- it
was questioned why a Christian couple has to live separately for two years to
seek divorce by mutual consent when the period is just one year for couples
from other communities. “We expect the Ministry of Law and Justice not only
to file its Reply but also take a decision on as to whether or not sub Section (1)
of Section 10A of the Divorce Act is to be amended. (matter is to be listed on
1.10.2015.)
• In many High Courts including Bombay and Kerala, they have allowed
petitions based on mutual consent condoning the period of 2 years before they
can file a petition. They have said one year is good for them (Christians) as
well. Why did government not take remedial action after these orders were
passed? Somebody should have taken note of this.
• http://indianexpress.com/article/india/india-others/allow-christians-to-
divorce-after-1-year-separation-supreme-court/
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 NULLITY OF MARRIAGE

• S.18- Any husband or wife may present a petition to

the District court praying that his or her marriage may
be declared null and void.
• Before 2001, the HC also had the jurisdiction, now
the jurisdiction to entertain such petitions is only with
the district court.

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 S. 19 – NULLITY GROUNDS,
INDIAN DIVORCE ACT, 1869

S.19 Such decree may be made on any of the following grounds:-

• Respondent was impotent at the time of marriage and presentation of
petition
• parties are within the prohibited degrees of relationship
• that either party was a lunatic or idiot at the time of the marriage
• that the former husband or wife of either party was living at the time of
the marriage
• consent by force or fraud
Section 19 sets out grounds for petitioning nullity of marriage. It does not
make the marriage void ab initio.

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 IMPOTENCY

• Impotence is the physical or mental inability to

consummate the marriage.
• In Rama Natrajan v. Alexander Nathan, the wife
filed for a suit for annulment of marriage after eleven
years of marriage on the ground of husband’s
impotency. The couple even had a child. The wife
filed a suit admitting there were sexual relations but
she was dissatisfied. In this case, the relief was
refused.
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 PROHIBITED DEGREES OF
RELATIONSHIP

• It is not defined in the Act but will depend on the

personal law of the parties.
• Under Canon Law, for Roman Catholics- it is three
degrees of relationship but this requirement can be
excused by dispensation

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 LUNATIC OR IDIOT

• The condition must be at the time of marriage.

• The respondent’s mental state at the time of the

petition or at the time of the trial- It doesn’t
matter because even if the respondent was a
lunatic or idiot at either at those times that fact
would not be a ground for a declaration that the
marriage is null and void.
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 BIGAMY

• Former husband or wife was living at the time of

marriage- the burden of proof is on the
petitioner to prove that the marriage was in full
force and effect and was not set aside at the
time when the marriage took place with the
opposite party.

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 CONSENT OBTAINED BY FRAUD
OR FORCE

• Concealment of any material fact is one

of the examples under this.
• For example, if the petitioner, a Christian
woman was made to believe by the
respondent that he was a Christian
whereas he was a Hindu, the marriage can
be annulled.
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 SECTION 21, DIVORCE ACT: LEGITIMACY OF
CHILDREN

21. Children of annulled marriage.‐Where a marriage is

annulled on the ground that a former husband or wife was
living, and it is adjudged that the subsequent marriage was
contracted in good faith and with the full belief of the parties
that the former husband or wife was dead, or when a marriage
is annulled on the ground of insanity, children begotten before
the decree is made shall be specified in the decree, and shall be
entitled to succeed, in the same manner as legitimate children,
to the estate of the parent who at the time of the marriage was
competent to contract.

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• Under the Divorce Act- Children conceived before the
passing of the decree in two cases are considered to be
legitimate for the purposes of succession-
• Former spouse is living and the subsequent marriage was
contracted in good faith and with full belief that the former
husband or wife is dead
• If annulled on the ground of insanity.
• Condition- the parties should be at the time of
marriage competent to contract.
 JUDICIAL SEPARATION

• S.22 No decree shall hereafter be made for a divorce a

mensa et toro, but the husband and wife may obtain a
decree of judicial separation, on the ground of
adultery or cruelty, or desertion for two years or
upwards, and such decree shall have the effect of a
divorce a mensa et toro under the existing law, and
such other legal effect as hereinafter mentioned.

45
• Divorce a mensa et toro ("divorce from bed-and-
board” - earlier divorce was frowned upon and hence
this was allowed as a relief, it only meant separation from
cohabitation but neither the husband or the wife could marry
during the lifetime of the other.

• Under the Indian Divorce Act- non-cohabitation after

separation is not a ground for divorce. Unlike SMA and
HMA [13 (1-A (i)], where non-cohabitation is actually a
ground for judicial separation.
46
• S.26- Reversal of Decree of Separation- reversal of
separation can be petitioned for on the ground that it
was obtained in his or her absence and there was reasonable
excuse for the alleged desertion where desertion was the
ground for separation.

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• S. 32 Restitution of Conjugal Rights- When either
the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other,
either wife or husband may apply, by petition to the
District Court for restitution of conjugal rights, and
the court on being satisfied of the truth of the
statements made in such petition and there is no legal
ground why the application should not be granted,
may decree restitution of conjugal rights accordingly.
48
 RCR

• No reason for withdrawing from the society.

• For example, if the husband was living with
another woman and having sexual relations
with her, it is ground enough for the wife for
withdrawing from the society of the husband.

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CASES:

50
 LAKSHMI SANYAL VS SACHIT
KUMAR DHAR, AIR 1972 SC 2667

• The appellant’s (husband) and the respondent’s (wife) are close relations; their
mothers are real sisters. It appears that prior to January 30, 1960 they had
sexual relations as a result of which the appellant became pregnant.
• The respondent who was originally a Hindu converted and adopted
Christianity and professed Roman Catholic faith. The appellant also got
converted to that faith and was baptized in 1960.
• One Father Antoine solemnized the marriage of the parties at the Church of
St. Ignatius, Calcutta and a daughter was born to them in May 1960.
• She gave birth to a second child, also a daughter, in October 1961.
• The appellant (wife) left the home of the respondent in July 1966. She filed
for nullity of marriage, custody and alimony. The petition and appeal were
both dismissed.

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 WIFE’S ARGUMENTS

• Wife filed for nullity on the ground that she was a minor at the time the
marriage was solemnized and no consent from the parent or guardian
had been obtained, additionally, the marriage was void and within the
prohibited degree of consanguinity the Roman Catholic Law. The
mothers were real sisters.
• In the petition, a number of allegations were made- it was alleged that the
appellant was under duress, intimidation and undue influence and therefore
sexual relations started under those circumstances.
• It was further alleged that The conversion to Christianity as also the
performance of the ceremony of marriage were all attributed to fraud,
coercion and undue influence practiced by the respondent.

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 RELEVANT SECTIONS:

• Sections 5, 19 and 60 of Indian Christian Marriage Act, 1872,

• Canon Laws
➢ As per Cannon law marriage between persons so related is valid - age of
majority under said law is 16 years for male and 14 years for female.
• Sections 16, 19 and 44 of Divorce Act

53
 IDA

• Section 18 provides that any husband or wife may present a

petition to the District Court or the High Court praying that
his or her marriage may be declared null and void.
• Section 19 says that such a decree may be made on any of the
four grounds. Ground No. 2 is that the parties are within the
prohibited degree of consanguinity (whether natural or legal)
or affinity.
• The Indian Divorce Act or the Indian Christian Marriage Act
do not give any definition of what the prohibited degrees are.

54
 ICMA

• The other Act with which we are concerned is the Indian Christian Marriage
Act 1872 (Act 15 of 1872) which was enacted to consolidate and amend the
law relating to the solemnization in India of the marriages of persons
professing the Christian religion. Section 3 contains the interpretation clause.
• "Minor" is defined to mean a person who has not completed the age of
twenty-one years and who is not a widower or a widow. Provisions have been
made in Parts III, V and VI .
• Section 19 lays down that the father, if living, of a minor or if he be dead, his
guardian and if there bye no guardian then the mother of the minor may give
consent to the minor's marriage. Such consent is required unless no person
authorized to give the same be resident in India. It has been provided in
Sections 20, 21 and 22 how the person whose consent to the marriage is
required.
• Part V contains provisions relating to marriages solemnized by or in the
presence of a Marriage Registrar. Section 44 therein applies the provisions of
Section 19 to every marriage under that Part, either of the parties to which is a
minor.
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 CANNON LAW

• There is no provision in the Canon. Law which contains a

prohibition against the, marriage of a minor in the absence of
the consent of his or her parents.
• It appears that under Canon Law so long as a minor has
reached the age of capacity to contract which, as stated
before, is 16 years in case of a man and 14 years in case of a
girl the marriage can be solemnized and the lack or absence
of consent of the parents or guardian will not invalidate the
marriage.
• The marriage of the appellant with the respondent could not be held to be null
and void on the ground that since the appellant was below 21 years of age the
consent of her father was not obtained.
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 CANNON LAW

• Canon 1076 provides that in the direct line of consanguinity, marriage

is invalid between all the ancestors and descendants.
• In the collateral line, it is invalid up to the third degree.
• It is common ground that the consanguinity between the parties to the marriage in the
present case is of the second degree and therefore it was an impediment in the way of
the marriage under the Canon law.
• It is, however, not disputed that DISPENSATION can be granted in case
of consanguinity in the second degree (vide Canon 1052) by the
appropriate authorities of the Church.
• The only case where dispensation cannot be granted is where the
impediment is of the first degree which is an absolute bar Canons 80 to
86 deal with dispensations.
57
 PROCEDURAL HISTORY: TRIAL
COURT

• The learned trial judge came to the conclusion that the appellant and the
respondent fell in love with each other which led to their marriage.
• He did not accept the case of the appellant (that any fraud, coercion or
undue influence had been practiced or employed by the respondent or that
Father Antoine had been guilty of giving fraudulent advice to the
appellant.
• It was further held that the marriage had been solemnized by the
proper priest after a dispensation had been obtained from the
authorities of the Roman Catholic Church removing the impediment
of consanguinity.

58
 PROCEDURAL HISTORY: HIGH
COURT

• The Division Bench endorsed the view of the trial judge about the circumstances in
which the marriage came to be solemnized between the parties.
• The question of the effect of the minority of the appellant and the lack of consent
of her father or guardian was allowed to be raised and after referring to the Canon
Law of the Roman Catholic Church it was held that from the standpoint of that law
the objection to the validity of the marriage on the ground of lack of consent could
not be sustained. The High Court expressed the view that in the present case the
consent of the parents was not necessary as required Under Section 19 of the Indian
Christian Marriage Act, 1872, nor was there any provision in the Indian Divorce Act
1869 which rendered a marriage null and void on the ground of minority of a party
• On the question of the marriage being within the prohibited degree of consanguinity
it was found that since the consanguinity between the parties was of the second
degree it was certainly all impediment in the way of marriage under the
Roman Catholic Law. But the impediment could be removed by dispensation
which was granted by the competent authorities
59 of the Church. For that reason the
marriage could not be held to be invalid or null and void.
 ISSUE:

• FIRSTLY, whether the marriage was invalid and void

because the appellant was a minor at the time the
marriage was solemnized and admittedly the consent
of her father or guardian had not been taken.
• The SECOND is that the parties were within the
prohibited degree of consanguinity and therefore
Under Section 19 of the Divorce Act a decree
declaring that the marriage was null and void ought to
have been granted.
60
• U/s 5 - The first is of any person who has received episcopal ordination. The
only condition laid down is that he must solemnize the marriage according to the
rules, rites, ceremonies and customs of the Church of which he is the Minister. In
the present case the marriage was solemnized by Father Antoine who was a
Minister of Roman Catholic Church and about whom it has not been disputed
that he had received episcopal ordination and was competent to solemnize the
marriage.
• The second category is of Clergyman of the Church of Scotland who has to
solemnize the marriage according to the rules, rites, ceremonies and customs of
that Church.
• The next three categories, namely, 3, 4 and 5 are of those who have been licensed
or appointed under the Act.
• In category 3 fall Ministers of Religion licensed under the Act to solemnize the
marriages.
• Category 4 consists of persons licensed under the Act to grant the certificate of
marriage between the Indian Christians – only for categories 3, 4 & 5
provisions for minor is made.
61
• It is noteworthy that so far as the last three categories are concerned
express and elaborate provisions have been made when a minor is to be
married. In cases of marriages solemnized by persons belonging to
categories 3 and 4 the provisions are intended to ensure that the consent
of the parents or the guardian should be obtained when a minor is going
to ,get married.
• A minor would mean according to the definition given in Section 3, a
person who has not completed the age of twenty one years.

62
• With regard to a marriage solemnized by the person in category 5 dealt
with in Part VI it is provided by Section 61 (as stated before) that one of
the conditions to be fulfilled is that the age of the man intending to be
married shall not be under 18 years and the age of the woman intending to
be married shall not be under 15 years.
• According to the provision to that section no marriage can be certified
under Part VI when either of the parties intending to be married has not
completed his or her 18th year unless such consent as is mentioned in
Section 19 has been given to the intended marriage or unless it appears
that there is no person living or authorized to give such consent. It is
apparent that in Section 60 the age of minority when consent of the father
or the guardian is necessary is 18 years whereas in Sections 19 and 44
appearing in Parts III and V a person who has not completed the age of 21
years has been treated as a minor in whose case consent of the parents or
the guardian is necessary.
63
• Part III only applies to Ministers of Religion licensed under the Act.
Section 19 could not, therefore, be applicable to the marriage of the
appellant and the respondent which was solemnized by a person in
category 1 of Section 5. Moreover as demonstrated by Section 60 there
seems to be no uniform provision that consent must be obtained of the
parents or the guardian when a person is above 18 years of age but below
21. Section 60 clearly recognises the fact that if a marriage is to be certified
under Part VI the consent would be required only if either of the parties
has not completed his or her 18th year

64
• Section 19(2) makes a marriage between the parties within the prohibited
degrees of consanguinity a ground for declaring the marriage to be nullity,
pointed out that the Divorce Act does not give definition as to what are
the prohibited degrees. Thereafter it was said that for that limited purpose
personal law has to be looked into.

65
 DECISION:

• In the present case both the parties are domiciled in India and at the time of the
solemnization of their marriage they professed Roman Catholic religion. The question
of capacity to marry and impediments in the way of marriage would have to be
resolved by referring to their personal law. That, for the purpose of deciding the validity
of the marriage, would be the law of the Roman Catholic Church, namely, the Canon
law of that Church.

• It was held that Canon law permits marriage of minor and S. 19 of IDA does not
mention about minority nor consent of parent or guardian.

• Degrees of prohibited relationship is a ground under S. 19 IDA but the impairment

could be removed by exemption which was granted by the competent authorities
of the Church. For that reason the marriage could not be held to be invalid or null and
void.

• Presumption in favor of valid marriage unless rebutted by evidence strong, distinct,

satisfactory and conclusive
66
 MOLLY JOSEPH VS GEORGE
SEBASTIAN AIR 1997 SC 109

• A petition was filed by the respondent-husband before the District Judge

for a declaration that his marriage with the appellant is a nullity under
Section 19 of Divorce Act on the ground (i) the marriage between
the appellant and one Prince Joseph was subsisting on the date the
appellant married the respondent; (Section 19 (4)) (ii) the
appellant was insane and continued to be so till the date of
marriage. (Section 19 (3))
• That application was contested by the appellant-wife saying that
although she had married earlier with aforesaid Prince Joseph, the said
marriage was annulled by the order of the Ecclesiastical Tribunal
(Church Court as it is referred to at times).
• It also asserted on her behalf that previous marriage was known to the
respondent and in spite of that he agreed to marry the appellant.
67
 ISSUE:

• Whether Ecclesiastical Tribunal's order of annulment of

marriage valid?

68
 RELEVANT LAW:

• The preamble of the Divorce Act says:

• Whereas it is expedient to amend the law relating to the divorce of persons
professing to Christian religion, and to confer upon certain Courts jurisdiction
in matters matrimonial; it is hereby enacted as follows....
• Section 3(4) defines 'Court' to mean the High Court or the District Court,
as the case may be.
• Section 4 provides: Matrimonial jurisdiction of High Courts to be exercised
subject to Act.
• Exception-the jurisdiction now exercised by the High Courts in respect of
divorce a mensa et toro, and in all other causes, suits and matters matrimonial,
shall be exercised by such Courts and by the District Courts subject to the
provisions in this Act contained, and not otherwise; except so far as relates to
the granting of marriage-licenses, which may be granted as if this Act
had not been passed.
69
 RELEVANT LAW:

• Section 10 enables any husband to present a petition to the District Court or

to the High Court, praying that his marriage may be dissolved on the ground
that his wife has, since the solemnization thereof, been guilty of adultery. A wife
may also present a petition to District Court or to the High Court for
dissolution of the marriage on the grounds mentioned therein.
• Section 17: every decree for dissolution of marriage made by the District
Judge shall be subject to confirmation by the High Court. The said Section
requires that cases for confirmation of decree for dissolution of marriage shall be
heard by a Bench comprising of three Judges. It also vests power in the High
Court, if it thinks necessary, to direct further enquiry or additional evidence to be
taken.
• Chapter IV deals with nullity of marriages: In view of Section 18 any husband
or a wife may present a petition to the District Court or to the High Court
praying that his or her marriage may be declared null and void. Section 19
prescribes the grounds on which a marriage can be declared to be nullity
70
 RATIO

• THE CHURCH CANNOT ANNUL A MARRIAGE

• Canon Law (or personal law of Christians) can have theological or
ecclesiastical implications to the parties. But after the Divorce Act came
into force a dissolution or annulment granted under such personal law
cannot have any legal impact as statute has provided a different procedure
and a different code for divorce or annulment.

• The Divorce Act purports to amend the law relating to divorce of persons
professing the Christian religion and to confer upon courts which shall
include District Court and the High Court jurisdiction in matrimonial
matters. In this background, unless the Divorce Act recognizes the
jurisdiction of Ecclesiastical Tribunal (sometimes known as Church
Court) any order or decree passed by such Ecclesiastical Tribunal cannot
be binding on the courts which have been recognized under the provisions of
the Divorce Act to exercise power in respect of granting divorce and adjudicating
in respect of matrimonial matters.
71
• It is well settled that when legislature enacts a law even in
respect of the personal law of a group of persons following a
particular religion, then such statutory provisions shall
prevail and override any personal law, usage or custom
prevailing before coming into force of such Act.

• From the provisions of the Divorce Act it is clear and

apparent that they purport to prescribe not only the grounds
which a marriage can be dissolved or declared to be
nullity, but also provided the forum which can dissolve or
declare the marriage to be nullity.

72
 DECISION:

• After Divorce Act is in force dissolution granted under personal law

cannot have any legal impact.
• Section 3 of Divorce Act, 1869 confers exclusive jurisdiction on
District and High Courts in matrimonial matters of persons
professing Christian religion.
• Even in cases where Ecclesiastical Court purports to grant
annulment or divorce the Church authorities would still continue
to be under disability to perform or solemnize a second
marriage for any of the parties until the marriage is dissolved or
annulled in accordance with the statutory law in force.
• Such Ecclesiastical Tribunal cannot exercise a power parallel to
the power of the District Court or the High Court which have
been vested in the District Court and the High Court by the
provisions of the Divorce Act. 73
 RECENT NEWS:

• Petition in the SC in 2013 to recognize divorce granted by the

Church under Canon Law as valid because several Catholic Christian
men could face criminal charges of bigamy as they married the
second time by getting a divorce under the Canon law.
• The Indian Supreme Court ruled in 2016 that annulments granted
by ecclesiastical tribunals lacked any legal force, meaning that
couples who had received an affirmative decision still required a civil
decree of divorce before they could remarry.
• India's Supreme Court has made technical bigamists of Catholics
who have remarried after an annulment by Church Court.

74
 RECENT NEWS:

• While Church weddings were accepted by the state as having legal

force in the latter law, there was never any provision for the tribunal
system in cases of nullity. This shouldn’t necessarily come as a surprise;
at that time civil divorce was an extreme rarity by modern standards, as too
were decrees of nullity. The Christian Marriage Act assumed, as does
the very concept of Christian marriage itself, that all unions would
be permanent, indissoluble, and life-long.
• You don’t need to civilly recognize an entire parallel religious legal
system to allow priests to register marriages, but you do when you start
talking about nullity cases. The decree in favor of (or against) nullity is a finding of
fact following a full judicial investigation, with lawyers, notaries, judges and courts of
appeal.
• Indeed, the tribunal does not “annul” marriages at all, in the active
sense, it simply recognizes the reality of the nullity of a marriage
which already exists.
75
• Many countries do recognize the authority and decisions of canonical
courts over Catholic marriages, including annulment proceedings. Italy, for
example, has a bilateral state-to-state agreement with the Holy See granting
civil recognition to the findings of marriage tribunals.

http://www.catholicherald.co.uk/commentandblogs/2016/07/07/theres -a-
good-reason-that-annulments-in-india-now-have-no-legal-force/

76
 SUJATHA V. JOSE AUGUSTINE,
(1994) II DMC 442

• Petitioner was born as a Hindu belonging to the Nair community.

Respondent belonged to the Catholic community. Husband is a
Latin Catholic Community and is a Conductor in a private bus.
• According to the petitioner, she met the first respondent during
her bus journeys to and from her college at Ernakulam where she
has joined as a student for pre-degree course. The acquaintance
soon became very close as a result of daily meetings.
• She alleges that she was enticed, exploited and he procured her
love fraudulently. It is alleged by the petitioner that she was
coerced to execute an agreement for marriage on 1.11.1989.
77
• Thereafter she was made to believe that as per the
agreement executed on 1.11.1989 she was married to the
first respondent and was bound to stay with the first
respondent in his house.
• On 25.11.1989 petitioner was forcibly taken to the Holy
Family Church, Pollathai in Alleppey and was made to
undergo a ceremony which she understood later as the
baptism ceremony.
• On 30.11.1989 again was taken to the Church and a show of
a marriage between her and the first respondent took place
in which also she was forced to participate without her free
Will. 78
 ARGUMENTS

• She alleged that baptism and the marriage alleged to have been
conducted in her case are totally invalid and in effective as
they were done without her free will and not in accordance
with the Canon law governing baptism and marriage.
• She filed for nullity on the ground that her consent for the
marriage was obtained by force, fraud, coercion and
undue influence and that baptism should be governed by
Canon Law.
• The respondent husband denied the allegations and stated the
marriage was conducted as per the rites of the Latin
Catholic Community.

79
 ISSUE

• Is the marriage null and void? If yes, then as per which law?

80
 REASONING:

• Indian Christian Marriage Act in force in other parts of the

country has not been extended to the areas falling within the
jurisdiction of the erstwhile High Courts of Travancore and
Travancore-Cochin and that it is the Canon Law that would
govern the marriages among the Christians in those areas
to which Indian Christian Marriage Act has not been
made applicable.

• Canon 1086 states that a marriage is invalid when one of

the two persons were baptized in the catholic church or
received into it and the other was not baptized.
81
 DECISION:

• The High Court stated that Canon law states that a marriage is
invalid between a Christian and a non-Christian. A person can
become a Christian only if it is established that he truly
believes in and professes the Christian faith. Baptism if duly
administered and received may be an important circumstance
to conclude that one has become a Christian . A person who is
admitted to baptism must have manifested the intention to receive
baptism, must be adequately instructed in the truths of the faith
and in the duties of a Christian. The evidence on record regarding
baptism is totally insufficient to hold that the petitioner was
duly admitted to baptism and received baptism with the required
intention and faith in Christianity.

82
• The evidence on record showed that the baptism ceremony
was conducted as an empty formality without believing in
Christianity and the Christian way of life. She never wanted
to live as a true Christian or follow Christianity. Her
intention in getting converted to Hinduism immediately
after parting company with her husband also supports the
conclusion that the petitioner did not have the required
intention to receive baptism and true faith in Christianity at
any relevant time. Thus, the petitioner has never become a
Christian by faith or by receiving baptism and as such her
marriage was void.

83
 LEELAMMA V DILIP KUMAR, AIR
1993 KER 57

• The parties met in December, 1985 and the wife consented to marry the
husband, in the belief that he was a Christian, born of Christian parents,
belonging to an ancient family, that belief having been induced by the husband
by making a representation to that effect.
• The parties were married on 2-3-1986 at the St. Sebastian's Church,
Thodupuzha according to the rites of the Syrian Catholic community.
• After marriage, they lived together for a while at the wife's place, and then
moved to the husband's parental home.
• It was only then that the wife realised that the husband was an Ezhava,
baptised into Christianity recently, and that his parents were Ezhavas and not
Christians, as he had represented.
• Wife filed for nullity of marriage on the ground of fraud alleging that the
husband had misrepresented to be a Christian.
• Likewise, the husband filed for restitution of conjugal rights.

84
 ARGUMENTS:

• The court stated that the wife in her evidence stated that she would not
have married the husband, if she knew that he did not belong to an
ancient Christian family, or that he was a recent convert.
• She also argued that the husband had not only practiced fraud on her, but
had also misappropriated her jewels, he had also persuaded her to have
sexual intercourse with his friends.
• According to her, such persons are socially inferior, and members of
ancient Syrian Christian families do not enter into matrimonial bonds
with converts. Further she contended that one who is not a born
Christian, cannot be considered a true Christian.
• The Literature on the subject also shows that, converts are
considered inferior in the social strata.
85
 WHO IS A CHRISTIAN?

• The concept of a born Christian, is alien to Law.

• Under the Canon Law, one is inducted into Christianity by baptism.
• S. 3 states that 'Christian' is "one who believes, professes to believe, or
who is assumed to believe in the religion of Christ and whose
behavior exemplified his teachings.“ (includes converts)
• It was suggested that the expression 'Christian' could be defined to mean,
one who is baptized and is a member of a Church.
• These suggestions were considered by the Law Commission in its 15th
and 22nd Reports, and it was felt that there was no need for
modifying the existing definition.

86
 DECISION:

• Since the Wife belonged to Roman Catholic she was governed by the
Canon law and similarly, the husband belonged to Latin Rite Catholic
also falling under the Canon Law – Travancore-Cochin thus, ICMA
would not apply.

87
• Canon 821 reads: A person invalidly celebrates marriage who is deceived
by fraud perpetrated to obtain consent, concerning some quality of the
other party, which by its very nature can seriously disturb the partnership
of conjugal life.
• Under the Canon Law, a marriage will be invalid if there is "an error
concerning the quality of a person". The expression "quality of the
person" in Canon Law, reasonably means religious affiliation or faith, as
they are the foremost qualities, that religion concerns itself with.
• The husband can be a Christian only if he professes the Christian faith.
There is not an iota of evidence, that the husband professed the Christian
faith, at any time of his life.
• "No human power can replace matrimonial consent, an act of will by
which a man and woman, through an irrevocable covenant, mutually give
and accept each other, in order to establish marriage". (Canon 817)

88
• Consent, which is vital to the validity of marriage, must be
free and voluntary. If not, it is not consent in law, by reason
of Canons 74, 820 & 821. For each, and all of these reasons,
the consent signified by the wife is no consent, in personal law
or in Canon Law, and the marriage is null and void.
• It is void under the Civil Law also, for the same reasons.
• The width and sweep of the expression 'fraud' in matrimonial
law, is narrower than in common law. Concealment of every
fact will not amount to fraud, in matrimonial causes. But,
a false representation as to vital facts, will amount to
fraud. The wife stated that she would have not married if she
knew he was not a Christian from an ancient family.

89
• The court cited the case of T.O. Aykut v. M.O. Aykut, AIR
1940 Cal 75 wherein it was held that withholding of the fact
that the husband was a Muslim, amounted to fraud. The
facts are similar. In that case, the wife consented to the
marriage, believing the representation of the husband that he
was a Christian. Later, she found out from his passport that he
was a Muslim. The Court found that to be fraud.

• On those principles the court held the marriage to be

vitiated for purposes under Section 19 of the Indian
Divorce Act.

90
 PRAMILLA KHOSLA V. RAJNISH
KHOSLA, AIR 1979 DEL 78

• Both the parties were initially Hindus and solemnized their

marriage in accordance with Arya Samaj rites.
• The wife after converting to Christianity filed for divorce
under the Indian Divorce Act.
• No question as to the validity of the marriage arises from the
petition itself, as it does not say whether the wife was a
Christian or a Hindu at the time of the marriage, and there is a
presumption that a ceremony of marriage is valid. That is why,
for the moment, the question as to the validity of the marriage
has to be ignored.
• Here, the Court held that a marriage may be solemnized under
any law, but can be dissolved under the Divorce Act as long as
at least one of the parties is a Christian
91