FAMILY LAW

Divorce Act under Christian Law

RESHMA GAIKWAD
SYLLB

190311
 INDEX
Sr. No Contents Pg. No.
Introduction
1 3-4

2 Christian Law Regarding Marriage and Divorce In 5

India: Indian Christian Marriage Act, 1872

3 Meaning of Christian in Act, 1872: 6

4 Divorce by Mutual Consent 7

6 Adulterer or Adulteress as Co-respondent: 8

7 Christian Law 9

8 Divorce without mutual consent 10

9 Divorce grounds for Christians in India 11-12

Christian Divorce
10 13-14

11 Case Laws 15-16

12 Suggestion 17
 13 Conclusion 18

14 Bibliography 19

THE INDIAN DIVORCE ACT, 1869

(4 of 1869) (26th February, 1869)

The Indian Divorce Act deals with divorce among Christians. The reasons are almost similar
to the ones under the Hindu Marriage Act. Roman Catholics do not come under the purview
of any divorce proceedings since the Roman Catholic Church has not recognise divorce. The
Divorce Act also does not contain any provision for divorce by mutual consent. Maintenance:
During the period when the divorce case is in the court, the husband has to give one fifth of
his salary for the maintenance of his wife. Later, maintenance can be given either yearly or
once for all as total settlement. Custody: Custody of the child is decided by the court after
going into the details of each individual case.

The Dissolution of Marriage and Judicial separation (under the Indian Divorce Act,
1869), allows a Christian wife to file petition for a divorce either in High Court or District
Court on the grounds…
o      That her husband has exchanged his profession of Christianity and gone through a
form of marriage with another woman.
o      Has been guilty of incestuous adultery.
o      Has been guilty of bigamy and adultery.
 o      Has been guilty of rape, sodomy or bestiality.
o      Is guilty of adultery coupled with desertion, without reasonable excuse for two years
or more.
The Indian Divorce Act, 1869, is an attempt to amend the law relating to the divorce of
Christians and to confer jurisdiction on certain Courts in matrimonial matters. Section 7 of
the Act  specifically provides for the application of the principles and rules on which the
Court for Divorce and Matrimonial Causes in England acts and gives relief.

https://www.christianfort.com/ICDA.htm

The relief granted under Indian Divorce Act, 1869…

o      Dissolution of marriage
o      Nullity of marriage
o      Judicial separation
o      Protection orders
o      Restitution of conjugal rights.
The Courts also have powers to:
o      Order adulterer to pay damages and costs
o      Order alimony, pendante-lite (pending decision of the Court) or permanent
o      Order settlement of property
o      Make order as to custody of children in a suit or separation
Though Section 22 of the Act bars ‘divorce mensa et toro’ (a decree that can be obtained
without the presence of the other party, an exparte decree), it provides for obtaining a decree
for judicial separation on grounds of
o      adultery
o      cruelty
o      desertion, without reasonable excuse for two years or more.
Once the separation is awarded, from the date of the sentence, the separated wife would be
deemed spinster, with respect to property, which she may acquire or which may devolve on
her. This status would apply for the purposes of contract, wrongs and injuries and suing and
being sued in civil proceedings.

https://www.christianfort.com/ICDA.htm

Christian Law Regarding Marriage And Divorce In India: Indian

Christian Marriage Act, 1872
Many Centuries ago, Christians came to India and settled in this country. When East India
Company assumed ruling power in India and established its own courts. With the
establishment of the Supreme Courts, the Common Law of England was made applicable to
India on many subjects including marriage and divorce among the Christian community, on
the ground that it was based on the principle of equity, justice and good conscience.

The law relating to solemnization in India of marriages of persons professes Christian

religion was spread over two Acts of the English Parliament and three Acts of the Indian
Legislature. Indian Christian Marriage Act, 1872 was passed. There are a number of
enactments in India that deal with Christian marriages and matrimonial causes. They are the
Indian Christian Marriage Act, 1872, the Marriages Validation Act, 1892, the Cochin
Christian Civil Marriage Act, 1905, the Indian Matrimonial Causes (War Marriages) Act,
1948, the Converts Marriage Dissolution Act, 1866 and the Indian Divorce Act, 1869.

Reason Behind the Act of Indian Christian Marriage Act, 1872:

The object of this Bill is to reduce into a smaller compass and simplify the existing law on
this matter by the consolidation of the different enactments referred to, and at the same time,
to amend the law in those matters in which it has been shown to be defective.

For example, by Act V of 1865 it is provided that marriages between Native Christians shall
be valid where the ages of the contracting parties are not less than sixteen and thirteen years
respectively, and where they do not stand in relation to each other within the prohibited
degrees of consanguinity or affinity. It has been very forcibly represented by the President
and several Members of the Bengal Christian Association that this provision of the law works
injuriously by freeing the children of Native Christian parents from the control which all
other parents can legally exercise over their sons and daughters before the latter have attained
their majority.

http://legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-
in-india-indian-christian-marriage-act-1872.html

Meaning of Christian In Act, 1872:

The term Christian according to Section 3 means persons professing the Christian religion
and Indian Christian includes the Christian descendants of natives of India converted to
Christianity, as well as such converts. Marriages between persons, at least one of whom is a
Christian, are governed by the Christian Marriage Act, 1872. It provides a code in itself and
extends to the whole of India except the States of Travancore, Cochin, and Manipur.

As per the provisions contained in the Act, the marriage must be performed in a particular
form and duly entered in the marriage register maintained for this purpose. The factor of
marriage can be proved by producing entries from this register. Other evidence can also be
produced for this purpose. It has been held that versions of eyewitnesses to the marriage and
subsequent conduct of the couple living as husband and wife can also be good pieces of
evidence to prove the factor of a Christian marriage.

A Christian marriage can also take place at the house of the bride’s mother and in that
case the signing of the Marriage Register is not essential under the Act. A Christian marriage,
even if one of its parties is a Hindu, cannot be dissolved by a decree of divorce under Section
13 of the Hindu Marriage Act. A marriage performed under the Christian Marriage Act and
validly registered under the provisions of Special Marriage Act is legal if the conditions laid
down 1n that section are fulfilled.

Part II of the Act which consists of Sections 10 and 11 lays down the general rule that every
marriage under this Act shall be solemnized between the hours of six in the morning and
seven in the evening and the place of marriage is a Church. Exceptions are, however, made in
case where a special licence permitting a clergyman of the Church is granted. The Act of a
person who solemnizes a marriage beyond these hours and outside the Church in the absence
of witnesses and without having any special licence has been made punishable under Section
69 of the Act. The punishment provided is up to three years imprisonment.

http://legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-
in-india-indian-christian-marriage-act-1872.html

Divorce by Mutual Consent:

After Section 10, a new Section 10-A has been inserted which lays down conditions for
dissolution of marriage by mutual consent.

Under Section 10-A:

Subject to the provisions of this Act and the rules made there under, 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.

On the motion of both the parties made no 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 patties and making such inquiry, as it thinks
fit, that a marriage has been solemnized and that the arguments in the petition are true, pass a
decree declaring the marriage to be dissolved with effect from the date of decree.

http://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-
divorce-in-india-indian-christian-marriage-act-1872.html

1. Adulterer or Adulteress as Co-respondent:

Instead of the old provision according to which only the adulterer could be a co-respondent
under the newly-substituted Section 11, 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 correspondent, unless the petitioner is excused by the court from doing so 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 the 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.

2. Absence of Collusion:
Under Section 12 provision has been 'made for the court to satisfy itself as to the fact that
there 15 absence of collusion. It says that upon any petition for shall apply to every suit so
removed. It may otherwise direct the District Judge to take such steps in respect of the
alleged collusion as may be necessity, to enable him to make a decree in accordance with the
justice of the case. Section 17-A dealing with appointment of officer to exercise duties of the
King’s Proctor has been deleted by the Indian Divorce (Amendment) Act, 2001.

http://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-
divorce-in-india-indian-christian-marriage-act-1872.html

Christian Law

Christians, in India are governed by the Indian Divorce Act,1869 when it comes to divorce,

according to this act, divorce proceedings can be initiated either by the husband or by the
wife through filing a petition. After the divorce between the parties, various other problems
like who will take custody of the child, or how will the property be divided, or  who will get
what, it is all covered under the Indian Divorce Act,1869.

Types of a petition under Divorce law 

There are mainly 2 types of divorce petition as per the Indian Divorce Act,1869 which the
Christians can claim:

The first petition is known as the no-fault petition which is sometimes equated to divorce
through mutual consent. 

The second petition is known as fault liability petition under which either of the spouses can
file for divorce on the grounds specified under the Act.
Divorce through mutual Consent

A Christian couple can claim divorce through mutual consent. For claiming divorce through
mutual consent, it is necessary that the couple must be living separately for at least 2 years.
They have to prove that they have not been living as husband and wife. The issue of child
custody, the maintenance of the child and the division of the property should be settled
mutually.

https://blog.ipleaders.in/divorce-law-in-india/

Divorce without mutual consent

When a divorce takes place at the instance of one party without the consent of the other party,
then, that divorce is said to be a divorce without mutual consent.

A Petition filed by the husband

A husband may seek to file a divorce petition in a District Court or a High Court claiming that his
wife has committed adultery after the marriage was approved. The marriages of Christians are
governed by the Christian Marriage Act,1872.

A Petition filed by the wife

A wife may also file a petition for divorce under the following grounds:

1. If the husband has changed his religion from Christianity to some other religion.
2. If the husband has committed bigamy.
3. In case the husband has performed bigamy along with adultery.
4. In case he has committed rape or bestiality.
5. In case the husband has committed adultery along with showing cruelty towards his
wife.
https://blog.ipleaders.in/divorce-law-in-india/

Divorce grounds for Christians in India

There are 10 grounds for dissolution of marriage, viz., adultery, cruelty, mutual consent, etc...
similar to the grounds mentioned in Hindu 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 parent, willingness of the child, etc

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).

https://www.lawyersclubindia.com/forum/Divorce-grounds-for-Christians-in-India-18738.asp

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.
https://www.lawyersclubindia.com/forum/Divorce-grounds-for-Christians-in-India-18738.asp

Christian Divorce
Christian Divorce article elaborate the grounds of divorces under the Indian Divorce
Amendment Act,2001 that may lead to dissolution of the solemnized marriage between
husband and wife.
Indian Divorce Amendment Act, 2001

Section 10: Grounds for Christian Divorce (Religious grounds for divorce)

1. Any marriage solemnized, whether before or after the commencement of

the Indian Divorce Amendment Act, 2001, may, present petition.
2. Such petition for divorce need to present before District Court either by
the husband or the wife, be dissolved on the ground that since the
solemnization of the marriage, the respondent—
 Has committed adultery; or
 Has ceased to be Christian by conversion to another religion; or
  It has been incurably of unsound mind for a continuous period of not less
than two years immediately preceding the presentation of the petition; or
 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
 If it 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
 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

http://kanoon.nearlaw.com/2017/09/26/christian-divorce/

 Has willfully refused to consummate the marriage and the marriage has
not therefore been consummated; or
 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
 Has deserted the petitioner for at least two years immediately preceding
the presentation of the petition; or
 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.

3. Grounds of Christian Divorce available only to Wife (divorce wife)

 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.
Section 10A: Grounds for Divorce with Mutual Consent of Marriage

1. Petition filed with the mutual consent of both parties

2. While subject to condition of living separately for two year and not being
able to live together
3. However Other conditions may also apply –
 Till 6 months from date of filing the petition- court will not passed any
decree
 From 6 months to 18 months – option made available to withdraw the
petition
 After 18 months from date of filing petition- court will pass final decree
at its discretion

http://kanoon.nearlaw.com/2017/09/26/christian-divorce/

Case Laws
1.Kerala High Court
Mary Sonia Zachariah vs Union Of India (Uoi) And Ors. on 24 February, 1995

Equivalent citations: II (1995) DMC 27

Author: T Ramakrishnan
Bench: M P Pillay, T Ramakrishnan, P Shanmugam

JUDGMENT T.V. Ramakrishnan, J.

1. The constitutional validity of Section 10 of the Indian Divorce Act, 1869 (for short "the
Act") which regulated divorce among Christians in India for a century and a quarter is
directly under challenge in the two Original Petitions at the instance of two Christian women
on the ground that the provisions in Section 10 are violative of the fundamental rights
guaranteed to them and other similarly situated Christian women under Articles 14, 15 and 21
of the Constitution of India.

2. Mary Sonia Zachariah, petitioner in O.P. No. 5805 of 1988 is a Syrian Christian governed
by the Act. At the time of filing the O.P. she was aged 36 and was working as an Asst.
Warden at Corpus Christi School, Kottayam. She was married to one P.C. Zachariah on
6.1.1972 at Emmanual Marthoma Church, Pazhanni, Thrissur according to the customary
rites and ceremonies of the Church. A daughter, Elizabeth Zachariah @ Kittu was born out of
the said wedlock on 16.9.1974. On the basis of Exts. P. 3 and P. 4 letters the petitioner has
specifically pleaded that her husband has taken an irreversible decision to live with an
English lady whom he met while in Nairobi where he was employed from 1977 onwards,
deserting the petitioner and her child once and for all. Petitioner has specifically alleged that
from 1978 onwards her husband has deserted her and has not cared to cohabit with her or to
perform any of the marital obligations and to maintain her and her daughter. She has further
alleged in the petition that she is not even aware of the whereabouts of her husband at
present.

https://indiankanoon.org/doc/637104/

2.Kerala High Court

Ammini E.J. And Etc. vs Union Of India (Uoi) And Ors. on 24 February, 1995

Equivalent citations: AIR 1995 Ker 252

Author: Ramakrishnan
Bench: M P Pillay, T Ramakrishnan, P Shanmugam

JUDGMENT Ramakrishnan, J.

The constitutional validity of Section 10 of the Indian Divorce Act, 1869 (for short "the Act")
which regulated divorce among Christians in India for a century and a quarter is directly
under challenge in the two Original Petitions at the instance of two Christian women on the
ground that the provisions in Section 10 are violative of the fundamental rights guaranteed to
them and other similarly situated Christian women under Articles 14, 15 and 21 of the
Constitution of India.

2. Mary Sonia Zachariah, petitioner in O. P. No. 5805 of 1988 is a Syrian Christian governed
by the Act. At the time of filing the O, P. she was aged 36 and was working as an Asst.
Warden at Corpus Christi School, Kottayam. She was married to one P,C. Zachariah on 6-1-
1972 at Emmanual Mar-thoma Church, Pazhanni, Thrissur according to the customary rites
and ceremonies of the church. A daughter, Elizabeth Zachariah alias Kittu was born out of
the said wedlock on 16-9-1974. On the basis of Exts. P3 and P 4 letters the petitioner has
specifically pleaded that her husband has taken an irreversible decision to live with an
English lady whom he met while in Nairobi where he was employed from 1977 onwards,
deserting the petitioner and her child once and for all. Petitioner has specifically alleged that
from 1978 onwards her husband has deserted her and has not cared to cohabit with her or to
perform any of the marital obligations and to maintain her and her daughter. She has further
alleged in the petition that she is not even aware of the whereabouts of her husband at
present.

https://www.the-laws.com/Encyclopedia/Browse/Case?
CaseId=005891791000&CaseId=005891791000

Suggestion

India is a Secular Country. People from different religions reside here, the personal laws of
the Parties are given an upper hand while dealing with the personal issues of the party. But, at
the same time violation of Constitutional Rights is not tolerated as it happened in the case of
triple talaq, where the man was given utmost power to divorce his wife without
acknowledging her wishes; the court struck down triple talaq as it was treating a woman
unequally. Maintenance is often seen as a biased favour granted to woman, but looking at the
vulnerable nature of a woman her dignity and needs are to be protected in the best way
possible. Further, the amounts vary as per the condition of both the husband and wife and in
certain cases the court may reduce the amount taking into consideration the condition of wife.
Some Laws in India provide maintenance to the husband in certain cases. Whereas Mutual
Divorce is generally less traumatic for the parties and their families, contested divorce brings
more problems which relate to child custody, maintenance and other things.
 Conclusion

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.

BIBILOGRAPHY

WEBSITES REFERRED

1. https://www.the- laws.com/Encyclopedia/Browse/Case?
CaseId=005891791000&CaseId=005891791000
2. https://www.christianfort.com/ICDA.htm
3. http://legalserviceindia.com/legal/article-1764-christian-law-regarding-
marriage-and-divorce-in-india-indian-christian-marriage-act-1872.html
4. https://blog.ipleaders.in/divorce-law-in-india/
5. https://www.lawyersclubindia.com/forum/Divorce-grounds-for-Christians-in-
India-18738.asp
6. http://kanoon.nearlaw.com/2017/09/26/christian-divorce/
7. https://indiankanoon.org/doc/637104/