Divorce grounds for Christians in India


Hi! All,

Do let me know the grounds for divorce for Christians in India. And should the marriage be annulled  by the church to get divorce. If the partners are seperated for more than year, are either of the partners eligible for divorce. What happens to children of such marriage when in custody of one parent

Tx Jo

 
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There are 10 grounds for dissolution of marriage, viz., adultery, cruelty, mutual consent, etc... similar to the grounds mentioned in Hndu Marriage Act. The district court is competent to dissolve the marriage and the church has no role to play.

Either of the partners can make a petition for dissolution of marriage on the grounds that cohabitation is not existing for more than 1 year. The Competent court shall decide on the custody of the child depending on the age of child, capacity of either parents, willingness of the child, etc

 
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Medical Value Travel

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 could not get a divorce unless she proved that apart from being cruel, her husband bad also deserted her or indulged in adultery.

The procedure for divorce under Christian law - At the time of marriage in the church, the couple has to sign a register. This step automatically registers the marriage under the Christian Marriage Act. This register acts as the recognition of the marriage 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 to repeat the procedure in a court of law.

There is no provision for divorce in 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 can prove that the marriage took place under parental pressure or that one partner had hidden something that affects the other's life.

The 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 allows divorce even on the grounds of mutual consent.

In 1990, a Christian delegation comprising reformists and activist organisations 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.

Divorce under Christian marriage act.- In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India, however, only five main reasons are generally accepted as sufficient grounds for divorce (Choudhary 90).

Adultery. While no formal definition of adultery exists, it does have "a fairly established meaning in matrimonial law" (Diwan 171), namely "the voluntary s*xual intercourse of a married man or woman with a person other than the offender's wife or husband" (Choudhary 91). While the law considers it valid grounds for either s*x, adulterous women are "judged more harshly" than men (Kapur and Cossman 102). The 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 (Kapur and Cossman 102-4). A recent Bombay High Court decision "recognised 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 s*xes (Raiker-Mhatre 1).

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 (Virdi 71). 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 (Choudhary 91).

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" (Kapur and Cossman 105). This category includes both physical and mental abuse and neglect (Choudhary 91). A court decision made in early May 1997 made cruelty sufficient grounds for a 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 (Raikar-Mhatre 1-2).

Impotency. This refers to the physical inability of the couple to consummate the marriage (Choudhary 91) or the refusal by one spouse to do so (Diwan 136). 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 marriage (Diwan 139).

Chronic Disease. Both mental and physical illnesses are included in this category, as well as s*xually transmitted diseases (Choudhary 92). Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not allow divorce for a s*xually transmitted disease or leprosy while the other communities do (Diwan 204-5).

CHRISTIAN MARRIAGE LAW
The Indian Christian Marriage Act, 1872, relates to solemnisation of marriage of persons professing Christian religion. The Act provides that any marriage solemnised otherwise than in accordance with the Act shall be void. Under Section 5 of the Act marriages can be solemnised by -

- a person who has received episcopal ordination;
- any clergyman of the Chruch of scotland;
- any Minister of Religion licensed under the Act.,
- a Marriage Registrar appointed under section 7 of the Act and
- any person licensed under section 9 to grant certificates of marriage.

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.
- 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 and
- adultery coupled with desertion without reasonable cause for two years or more. Under section 11, in cases of allegations of adultery, the adulterer should be made a party. Pendente alimony may be granted under section 36 of the Act.

Hope above helps!

Rgds. 


 

 
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Mr. D Aurn Kumar, With due respect I would like to submit that the reply given by you do not incorporate the amendments made in 2001.

 
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Medical Value Travel

Point well taken Sir. It reads as follows;

Section 10A as introduced by Act 51 of The Indian Divorce (Amendment) Act, 2001, dt. 24-09-2001, reads as under:

 

"10A. Dissolution of marriage by mutual consent.-(1) 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 s ch 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 Collected by the All India Christian Council, www.christiancouncil.in date, if the petition is not withdrawn by both the part es 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 issolved with effect from the date of decree.".

Rgds

 
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Medical Value Travel

Aloso see
- For Legal obligation of a Christian father to maintain his minor child  - Kerala High Court Citation
2003 131 TAXMAN 646 Ker.

 
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UNEMPLOYED

Divorce for christians, available in the following :-

THE INDIAN DIVORCE ACT, 1869 (ACT No. 4 OF 1869)

DISSOLUTION OF MARRIAGE

Sec.10. When husband may petition for dissolution.

Any husband may 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.

When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Contents of petition.

Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

11. Adulterer to be co-respondent.

Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:- (1)that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed; (2)that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it; (3) that the alleged adulterer is dead.

12.Court to be satisfied of absence of collusion.-Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going though of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any countercharge which may be made against the petitioner.

13. Dismissal of petition.

In case the Court, on the evidence in relation to any such petition, is satisfied that the petitioner's case has not been proved, or is not satisfied that the alleged adultery has been committed, 56 or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the petition. When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court. ///

now you may apply to the district court instead of hc.

 
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UNEMPLOYED

i am sorry for the above post. thanks to mr d arun, from his postings i came to know that, ammendment made on the above act on 2001.

For section 10 of the principal Act(act 4 of 1869), the following section shall be substituted, namely:- "10. Grounds for dissolution of marriage.-

(1) Any marriage solemnized, whether 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 dissolve 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

(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 preceding 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 more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or

(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; or

(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 the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.".

10A. Dissolution of marriage by mutual consent.-

(1) 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 part es 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 issolved with effect from the date of decree.".

11. Adulterer or adulteress to be co-respondent.-On a petition for dissolution of marriage presented by a husband or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co-respondent, unless the petitioner is excused by the Court from so doing on any of the following grounds, namely:- (a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed; (b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it; (c) that the alleged adulterer or adulteress is dead.".

 
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Kindly provide a citation for this judgment. 

I'd be grateful if you mail it at aileen.marques@gmail.com

 
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