Updating of the Civil Marriage Laws for Christians in India

UPDATING OF THE CIVIL MARRIAGE LAWS FOR CHRISTIANS IN INDIA

(MSGR. William Nazareth)

Marriage laws for Christians in India are outdated, the Indian Christian Marriage Act having been promulgated in 1872, and the Indian Divorce Act in 1869. Laws can never be static. Society conditions keep on changing and laws have to keep pace with such changes if they are to be in tune with the ties. Radical changes are hence required to be made in these Acts to meet the present needs of the Christian community.

Realizing the need for changes in the personal laws of Indian Christians an attempt to update these laws was made as far back as 1962, was introduced in Parliament. The Roman Catholic Church under the leadership of the late Cardinal Gracias took a prominent part in the formulation of the Bill. However, it was allowed to lapse and never heard of again.

One of the reasons why the civil legislation on marriage needs to be amended is because Catholics whose marriage are dissolved by the Church or declared null and void by an Ecclesiastical tribunal find it extremely difficult to obtain a divorce or a decree of nullity from the Civil Court because of the limited grounds of divorce in the Indian Divorce Act 1869.

The Joint Women’s Programme took the initiative and with the approval of the Church of North India prepared a draft bill for Christian Marriage and Matrimonial Causes, Indian Succession Bill and Christian Adoption Bill. Thereafter the Joint Women’s Programme initiated a meeting of the representatives of the CBCI, CSI, CNI and other Churches to discuss the draft. The outcome of that meeting was the Conference held on September 12th and 13th 1989 at CNI Bhavan, New Delhi at which the representatives of the CBCI, a representative from the Law Commission and the Minorities commission, and representatives of other Christian Churches took part.

At this meeting, the drafts of the Bills on Christian Marriage and Matrimonial Causes, the Indian Succession Bill and the Christian Adoption Bill were thoroughly discussed and several changes suggested.

Some of the suggestions made were:

(a) To exempt Catholics from the purview of Chapters 4-7 of the Marriage Bill which deal with Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage and grounds for divorce.

(b) To give Catholics the freedom of conscience, i.e. to be governed by the whole Act or be exempted from the purview of Chapter 7 only which deals with Divorce- the choice to be indicated by both parties (to the marriage) or by either of them in writing and attested by a Notary Public, at the time of marriage or later.

It must be observed here that if a Catholic party enters marriage with the intention of divorce, the marriage in question would be null and void.

(c) Divorce being unacceptable to Catholics, it was made clear that the CBCI which is the official body will not associate itself with that part of the Bill which refers to divorce, but would approve the rest of the provisions. Hence, the following note was made in the proceedings.

“The Roman Catholic Church has not accepted Divorce and cannot do so, according to its belief and teachings. Hence, it does not approve of the provisions of the Chapter on divorce. Subject to this reservation, it associates itself with the proposed bill”.

(d) That any marriage annulled by the Church should be incorporated as a ground for nullity.

(e) That children of annulled marriage be given legitimacy and rights to parents’ property.

(f) That in the case of annulled marriages, alimony be paid to either spouses according to the financial status of the parties.

(g) It was proposed that suitable provisions be made for custody, maintenance and education of children.

(h) That no minister of a recognized Church should be compelled to solemnize any marriage, the solemnization of which would be contrary to the rules of the Church, of which he is a minister.

A second conference of this consultation was held on March 28th and 29th, 1990, at the CNI Bhavan, New Delhi, where matters like the definitions of ‘Christian’, ‘Recognized Church’ were discussed and it was also made clear that the CBCI will not associate itself with that part of the Bill which deals with divorce but would not oppose the rest of the provisions which are in keeping with the laws of the Church.

When this decision of the Catholic Bishops was conveyed to the ecumenical study group responsible for the preparation of the draft bill, some new amendments were suggested to be introduced in the draft bill in order to make it acceptable to the Catholic Church.

Whether all these suggestions have been incorporated in the said draft bill, I am not so sure and so it would be necessary to scrutinize the new draft to ensure that the amendments proposed by the Catholic group have been included. To the best of my knowledge, the whole of the draft bill, as prepared by the Joint Women’s Programme was acceptable, except regarding the provisions on Divorce.

In order to eliminate this particular difficulty and to bring the said draft bill in line with the teaching of the Church, the following two amendments were submitted to our consideration:

(a) Delete Sec.2 in Chapter I (Which excludes Catholics from Chapter VI on Divorce unless they express the wish to avail themselves of the provisions of the Chapter) and instead to add an introductory Para to Chapter VI as follows: “Provisions of this Chapter will be applicable only to a Christian who applies for relief under its provisions”.

However, in my opinion, such a clause if inserted in the Bill, will make no difference for the simple reason that the very existence of Chapter VI makes these reliefs available to all who desire and adding the new Clause is redundant.

Probably it would help if the proposed new clause is preceded by the following:

“Since certain Christian Churches do now accept divorce, in order to safeguard this doctrine position and make the individual responsible for its own action…”

(b) The second amendment proposed is: To insert one more definition in Sec.3 of Chapter I as follows”: Divorce means the dissolution of the Civil Contract”.

This appears to be quite acceptable since it contains an implied distinction between marriage as a civil contract and marriage as a sacrament. To make this distinction more explicit and to safeguard the sacramental character of the Christian marriage, perhaps one could insert the word merely:  Divorce means merely the dissolution of the civil contract”.

A meeting was held at Bombay in April 1990 at which the Deputy Secretary General of the CBCI, Fr. Lucio da Viega Coutinho together with some canonists and competent lay people discussed what approach to take. Since it might be difficult to arrive at a consensus on the proposed  Christian Marriage and Matrimonial Causes Bill, the following alternatives were suggested:

Alternative 1. To amend the Indian Divorce Act, 1869

Alternative 2. To amend the Special Marriage Act, 1954.

Alternative 3. To repeal the Indian Christian Marriage Act, 1872 and the
Indian Divorce Act, 1869.

On May 31st, 1990, the Deputy Secretary General of the CBCI, Fr. Lucio da Viega Coutinho, issued a circular letter to the members of the Catholic Hierarchy of India inviting their opinion on the above mentioned alternatives. The Bishops were asked to consult their people on this important matter in whatever manner they felt appropriate. The report collating the responses of the various dioceses, groups and individuals was sent to the members of the catholic Hierarchy of India.

The reasons for and against the various alternatives taken from the collated responses are given below:

Alternative 1.: To amend the Indian Divorce Act of 1869 in such a way that

a) It will include all the ground of nullity and divorce provided under the Special Marriage Act of 1954.

b) It will add another ground of nullity, viz… a decree of nullity under the Indian Divorce Act.

c) It will remove all the discriminatory provisions in the existing Act between the spouses, thus ensuring equality of treatment for both sexes.

d) The Indian Christian Marriage Act of 1872 will continue to be on the statutes.

This alternative had certain advantages. Priests will continue to be registrars of marriages. It may be easier to amend the Indian Divorce Act than the Special Marriage Act. It would provide the necessary matrimonial reliefs when a marriage is annulled. It would remove all discriminatory provisions in the Indian Divorce Act.

But, this alternative in fact is not feasible. For doctrinal reasons the Church would not be able to propose to the Government the amendment of the Indian Divorce Act so as to include all the grounds of nullity and divorce contained in the Special Marriage Act.

Further, the insertion of Catholic and other Churches’ annulments as ground of civil divorce is not without problems. It would mean that we would have to accept an annulment granted by CNI, CSI, etc. This would also make the Churches to voluntarily submit their own findings to the scrutiny of the Civil Courts. The Church’s decisions of nullity could be challenged and Civil Courts may strike down the findings of the Ecclesiastical Courts for one or other reasons.

Also, if a decree of nullity granted by the Church is accepted as a ground of nullity, the Civil Court may demand that the decree of nullity or divorce granted by the Civil Court be accepted as valid for the Church and this position is untenable.

Besides, in the case of this alternative, the persons concerned would not be able to avail themselves of other reliefs like custody of children, alimony judicial separation, restitution of conjugal rights, etc.

Alternative 2: To amend the Special Marriage Act of 1954 in such a way that

a) Catholic priests who are at present empowered to solemnize marriage under the existing Indian Christian Marriage Act 1872, will be also empowered to solemnize marriage under the amended Special Marriage Act, 1954.

b) Any marriage celebrated in the Catholic Church would be deemed as solemnized under the Special Marriage Act.

Also in this case, an additional ground for nullity should be provided, i.e. where a decree of nullity has been obtained from the Catholic Church or any other Church.

Amending the Special Marriage Act of 1954, has several advantages. Catholic priests would remain civil registrars – no separation of Catholic Celebration of marriage and its civil effects. Separation of these would be harmful especially to Catholics in rural areas.

Catholics married by priests would obtain all the reliefs provided for under the Special Marriage Act including Restitution of Conjugal rights, Judicial separation, Legitimacy of children, Alimony, Custody of Children, etc.

The drawbacks of this alternative are as follows:

The registration of Church marriages under the Special Marriage Act may be understood by some as implying that the Church Act may be understood by some as implying that the Church positively approves of the divorce granted under this Act.

If we want the decree of nullity granted by the Church as a ground for Civil Nullity, there may be a conflict of procedure or interpretation between the Civil Court and Ecclesiastical Court. Further, the proceedings of the Ecclesiastical Court could come under scrutiny of the Civil Court.

We might be obliged to accept the annulments granted by the CNI, CSI, and other Churches.

The Catholic priests would be obliged to comply with all the requirements of the Special Marriage Act which would have to be carefully studied to make sure that Catholic priests would in fact be able to comply with all the requirements without much difficulty.

As a precautionary measure in amending the Special Marriage Act, the following provision should be made, viz. that no minister of any recognized Church should be compelled to solemnize any marriage, the solemnization of which would be contrary to the rules of the Church, of which he is a minister.

In this alternative, the Indian Christian Marriage Act of 1872 and the Indian Divorce Act of 1869 would be repealed.

Note: Registration under the Special Marriage Act of 1954, does not mean endorsement of the Special Marriage Act by the Catholic Church.

According to the provisions of the Special Marriage Act of 1954, Sec. 15, a marriage celebrated in due canonical form can be registered under the Special Marriage Act of 1954.

Alternative 3: To repeal the Indian Christian Marriage Act of 1872 and the Indian Divorce Act of 1869.

In this case catholic priests would cease to be Registrars for Marriages on behalf of the Government and a marriage celebrated according to the laws of the Church would be valid only for the Church and not for the State.

If Catholics wish to avail themselves of the reliefs provided under the Special Marriage Act and of other civil effects, they would have to register their marriage under the Special Marriage Act.

The large majority of the respondents favored this alternative.

This appears to be the only practical and least unsatisfactory procedure.

If this alternative is accepted, in case the parties do not register their marriage under the Special Marriage Act 1954, if the marriage is annulled, the parties would not need any civil divorce.

In this case there would be complete separation of Church and State. This is the case in the majority of countries in the world today, and also in Pondicherry. By this choice, Christians would give the lead towards a uniform Civil Code as envisaged in the Indian Constitution.

This alternative has however one big disadvantage. Illiterate people may never register their marriage under the Civil Law and their marriages in the Church would therefore have no civil effects. Also it would be a burden for simple people to get their marriages registered civilly.

Other simple Christians if they are forced to register their marriages for civil effects under the Special Marriage Act of 1954 might end up having civil marriages only without a Church Marriage.

At the Canon Law Conference held in Hyderabad from October 14th to 18th, 1991 the updating of Christian Marriage Laws was discussed. Since at the meeting of the Standing Committee off the CBCI in September 1990, several Bishops felt strongly that the existing Indian Christian Marriage Act, 1872 should be retained with the necessary amendments as it is the personal law of the Christians, the following new alternatives was proposed for discussion:

The existing Indian Christian Marriage Act 1872 be retained with the necessary amendments, but for reliefs, to make the provisions of the Special Marriage Act available to all Christians. The Indian Divorce Act, 1869 could then be repealed.

After a lot of discussion, this new alternative was found to be the most acceptable provided that the CBCI gives its approval and there is no objection on doctrinal ground. The legal implications of this alternative were to be studied by Special Committee.