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Is ironic that while the law in England has undergone tremendous change, the law we inherited in India remains outdated.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!