CHRISTIAN CIVIL LAW AND PENAL PROVISIONS
Dr. Sebastian Champappily M.A., LLM, Ph.D
Advocate, High Court of Kerala. Tel: 0484 – 3575702, 9895815122
The laws relating to Christians in India are manifold. The ecclesiastical law has its overwhelming significance in the ecclesiastical field and to a certain extent they have their impact on the personal law as recognized by civil law of Christian in India. There are different areas like marriage, divorce, adoption, guardianship, custody of children, maintenance, restitution of conjugal rights, judicial separation, alimony, succession, sacramental effect of marriage and administration of church and its properties where the ecclesiastical law has to meet and interact with the civil law regime. Almost the entire spectrum is covered by civil law. The civil law defines the contours of the civil conduct and prescribes penalties for the violation of the norms laid down by the civil law and the civil court. The civil and penal consequences include restitution, payment of compensation and imprisonment. The word ‘penal’ in the context of civil law has to be understood as to mean imprisonment/or the suffering of restitution and payment of compensation.
As far as the Church is concerned, the most vital aspect of civil law that have a bearing on their conduct, is in the realm of matrimony and Church administration. In the field of matrimony there are several enactments that have a vital bearing on the conduct and performance of duties by the ecclesiastical personnel. They are:
1. THE INDIAN CHRISTIAN MARRIAGE ACT OF 1872
This is a law enacted by the British Indian administration and is applicable throughout India except in the State of Jammu and Kashmir, Manipur and parts of Kerala and Tamil Nadu which fell within the territorial boundaries of the former princely States of Travancore and Cochin. In Cochin as far as the civil marriages of Christians are concerned the Cochin Christian Civil Marriages Act of 1920 still holds good. In Jammu and Kashmir, Manipur and Travancore and Cochin areas, sacramental marriages are solemnized by the ecclesiastical authorities in accordance with the provisions of Canon Law among Catholics and customary law among non Catholics. Even in the Malabar area of the State of Kerala the Indian Christian Marriage Act is still applicable.
Persons authorized to solemnize marriages
Under the provisions of the Indian Christian Marriage Act, marriages can be solemnized by:
(i) Firstly by any person who has received Episcopal ordination in accordance with the rules, rites, ceremonies and the customs of the Church of which he is a minister,
(ii) Secondly by any clergymen of the Church of Scotland in accordance with rules, ceremonies and customs of the Church of Scotland,
(iii) Thirdly by any minister of religion licensed under the Act,
(iv) Fourthly by a marriage register appointed under the Act,
(v) And fifthly by any person licensed under the Act to grant certificates of marriage between Indian Christians.
Registration of Marriage
Every marriage solemnized under the Act has to be registered in the manner prescribed under the Act and the person solemnizing the marriage shall send a copy of the marriage certificate within one month from the time of solemnization of marriage to the Marriage Registrar of the District and the Marriage Registrar is required to send to the Registrar General of Births, Deaths and Marriages.
Kerala Registration of Marriages (Common) Rules, 2008
As directed by the Supreme Court in Seema V Ashwani Kumar 2006 (1) KLT 791 (S.C.). The Rules have come into force with effect from 29-02-2008. As per the directions of the Hon’ble Supreme Court, marriage registration rules have been issued by the various State Governments in India making registration of marriages compulsory.
(i) Any person who makes a false oath, declaration, notice or certificate for procuring marriage shall be punished with imprisonment which may extend to three years.
(ii) Any person who solemnizes the marriage without due authority will be punished with imprisonment which may extend to ten years.
(iii) A marriage can be solemnized between the hours of six in the morning and seven in the evening in the presence of witnesses. The violation of this provision will lead to imprisonment for a term which extend to three years and shall also be liable to fine.
(iv) There are several other penal consequences in situations where the marriage is solemnized with a minor or it is solemnized after expiry of the period of notice, issuing or marrying without publishing notice, destroying or falsifying register book etc. All these would invite prosecution and imprisonment.
Period of limitation for prosecution
However the law provides that the prosecution for every such offence punishable under the Act shall be commenced within two years after the offence is committed. In other words the period of limitations prescribed under the Act for initiating prosecution is two years from the date of commission of offence.
2. THE DIVORCE ACT OF 1869
The Indian Divorce Act of 1869 is the Law relating to Divorce and matrimonial causes of Christians in India. It was enacted on the same foundation of the English Matrimonial Causes Act of 1857. The Act is intended to confer jurisdiction on certain courts to grant matrimonial reliefs such as dissolution of marriage, nullity of marriage, judicial separation, protection of property of wife, restitution of conjugal rights, alimony and custody of children. It also deals with the right of pre-marriage of persons to secure matrimonial reliefs under the Act. As far as the parties to the proceedings are concerned the husband is liable to meet the costs of the wife in prosecuting the case. This is enforced under the provisions of the Code of Civil Procedure. The other monitory liability of the husband is for providing alimony to the wife and maintenance to the children.
Christian father’s civil obligation to pay maintenance
Judicial decisions have gone to the extend of holding that a Christian father has a civil obligation to provide maintenance to his minor children [Mathew Varghese V. Roasamma Varghese, 2003 (3) KLT 6 (FB)]. This principle was stretched to further extents. In Devassia V. Ancy 2007 (1) KLT 377) it was held that a Christian father is liable to maintain girl children in spite of attaining majority. Failure to make provision for maintenance of wife and children will lead to attachment and sale of his property through court procedures. In case he is not possessed of property, he can be sent to prison for enforcement of the decree.
Liability under the Code of Criminal Procedure
Under Section 125 of the Code of Criminal Procedure, a Christian husband / father has a liability to maintain his wife and children. Though it is a civil liability, it is brought within the purview of criminal liability by virtue of procedural rigors. Non compliance with the order for payment of maintenance will lead to imprisonment for one month at a time.
Payment of alimony under section 36 of the Divorce Act of 1869
In any suit under the Divorce Act, whether it be instituted by a husband or a wife, the wife may present a petition for expenses of the proceedings and alimony pending the suit. Such petition shall be served on the husband, and the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of expenses of the proceedings and alimony pending the suit as it may deem just: Provided that the petition for the expenses of the proceedings and alimony pending the suit shall, as far as possible, be disposed of within sixty days of service of such petition on the husband.
Payment of permanent alimony under section sections 37 of the Divorce Act of 1869
Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments
In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable: provided that if the husband afterwards from any cause becomes unable to make such payment, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid and again to review the same order wholly or in part as the Court seems fit.
Jurisdiction and position of Ecclesiastical Tribunals
The Supreme Court of India has held that any declaration of nullity of marriage made by the Ecclesiastical Tribunal (Church Court) shall not be binding on the District Court or the High Court in India. Such Ecclesiastical Tribunal cannot exercise power parallel to the power of the District Court or High Court which has been vested in them by the provisions of the Divorce Act Molly Joseph V George Sebastian AIR 1997 sc 109. Canon Law, or personal law of Christians, can have the 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. It may be that a decree of divorce or annulment granted by a civil court cannot compel the ecclesiastical authorities to solemnize a second marriage for anyone of the parties thereto.
It is open to such authority insist that until the spiritual bond is also snapped through the steps envisaged in the Canon Law they would not perform or celebrate such second marriage. But the converse is not the legal position. In other words, when the ecclesiastical court grants annulment or divorce, the church authorities would sill continue to be under a 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 in this regard. Personal law has relevance only to the above extent vis-á-vis the statutory law. in other words, personal law stands clipped to the extent statutory law has stepped. The same view was reiterated by the High Court of Kerala when the same case came up after remand and fresh trail. The High Court again held that unless the Act Recognizes the jurisdiction, authority or power of Ecclesiastical Tribunal, any order or decree passed by such Ecclesiastical Tribunal, cannot be binding on Courts which have been recognized under the provisions of the Act to exercise power in respect of granting divorce and adjudicating disputes in respect of matrimonial matters [George Sebastian v. Molly Joseph, 2000 (1) KLT 533 ].
However, the British Indian Courts had taken a more balanced view in those matters as is evident from the decision of the Bombay High Court which held, “any marriage which should for any reason be invalid in the eyes of that law (Canon Law) must also be held invalid in a civil court” [ Peter Philip Saldhanha v. Anne Grace Saldhanha (1929) ILR 54 Bom. 288 at paģe 313= (AIR 1930 Bom. 105) ]. It is pertinent to note that this decision was rendered in the context of the Indian Christian Marriage Act of 1872 and the India Divorce Act of 1869.
The above reasoning of the court appears to stand fortified as the Court would get jurisdiction in a case of nullity of marriage only if the parties approach it under Sections 18 and 19 of the Act. And nowhere in the entire Act, it is stated that a declaration of nullity of marriage rendered under the personal law of the parties can have no legal effect. It may be mentioned that the Supreme Court also did not appreciate the precedent set forth in LakshminSanyal V. S. K. Dhar (AIR 1972 SC 2667), wherein the Supreme Court appears to have approved of the decision of Bombay High Court.
Further, recognition of the decrees of nullity of marriage given by the Eparchial Tribunals is not an alien or new concept altogether. For example, in Goa, Daman and Diu, the Civil Court recognize and execute the processes, orders and judgments of the Eparchial Tribunals [See Articles 19 of Decree No. 35461 enforced w.e.f 4-9-1946 in Goa, Daman & Diu. (Published in the local official Gazette No. 23, Series I dated 6-6-1946) ]. In this backdrop, the decision of the Supreme Court in Molly Joseph is not a contribution to the advancement of law in the present legal and constitutional framework. At any rate it has added to the woes of Catholics in so far as they are in double jeopardy in matters of matrimonial reliefs. Thus, the legal position is that the rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal and that even if a decree of nullity is granted by the Eparchial Tribunal, no second marriage for the parties would be permissible without obtaining an order from the Civil Court. In the eyes of the Civil Law, for all practical purposes, the decree of the Eparchial Tribunal is of no consequence and a civil decree has become mandatory.
Re-Marriage of parties to the proceedings
The parties to the proceedings under the Divorce Act has a civil right to get re-married under section 57. However, section 58 provides that an English clergyman cannot be compelled to solemnize a marriage of persons divorced for adultery. However section 59 provides that an English Clergyman who refuses to perform the ceremony of divorce persons is duty bound to permit the use of his Church for solemnization of marriage of divorced person. This is a specific provision enacted by the British Indian Administration to safe guard the rights and obligations of English Clergyman. No such specific provision is made in the case of Roman Catholic priests.
The Roman Catholic Church is still under a disability to solemnize a re-marriage of parties without the parties obtaining a civil decree. In the event of solemnizing a re-marriage of the parties without obtaining a civil decree, the parties are liable to be prosecuted for bigamy under section 494 of the Indian Penal code. And the priest who solemnizes the second marriage is liable to prosecution for abetment of bigamy (under section 107 read with section 109 of the Indian Penal Code) which carries a punishment by way of imprisonment of either description (rigorous or simple) for a term which may extend to seven years, and shall also be liable to fine.
In short, the laws relating to marriages, nullity of marriages and maintenance among Christians in India present a peculiar picture. While in certain areas it is customary law, which has the pristine quality of maintaining the relations without conflict, what governs in other areas is the statute law juxta posed with the vestiges of waning customary law. it is in the latter areas that the need for adjustment / assimilation is frequently felt.