CHRISTIAN MARRIAGE &

DIVORCE
 Laws Governing Christian Marriage &
Divorce
◦ Indian Christian Marriage Act, 1872
- (law mostly prescribing the procedure for solemnization and registration. Ceremonies of marriage left up to the
customary practices of the parties)
◦ Indian Divorce Act, 1869
◦ Canon Law or church made law depending on which church you’re under
 ICMA- Territorial Jurisdiction

Extent.—It extends to the whole of India except the territories which, immediately before the 1st
November, 1956, were comprised in the States of Travancore-Cochin, Manipur and Jammu and Kashmir*

◦ By virtue of the Jammu & Kashmir Reorganization Act, 2019 ICMA now applies to J&K as well.
◦ In Manipur, Christian marriage takes places through customary rules and personal law
◦ Cochin Christian Civil Marriage Act, 1920 in Travancore-Cochin.
 Section 4
◦ Marriage to be solemnized according to the act

Every marriage between persons, one or both of whom is or are a Christian, or Christians, shall be
solemnized in accordance with the provisions of the next following section; and any such marriage
solemnized otherwise than in accordance with such provisions shall be void.
◦ the expression "Christians" means persons professing the Christian religion and the expression "Indian
Christians" includes the Christian descendants of natives of India converted to Christianity, as well as
such converts;
 Who is a Christian?

◦ The expression "Christians" means persons professing the Christian religion; and the expression
"Indian Christians" includes the Christian descendants of natives of India converted to Christianity, as
well as such converts;
 Leelamma v. Dilip Kumar, Ker HC
1993
◦ Facts: Husband and wife got marred. Wife belonged to the Syrian Catholic Community. Husband was from the
Ezhava community and had been baptized only after consent of marriage was already given. Wife alleged fraud-
since husband had misrepresented himself and his family as belonging to an ancient Christian family.

◦ Wife’s argument: Husband had committed fraud; his conversion was not valid. One who is not born a Christian
cannot be a Christian

◦ Ruling:
◦ The law requires profession of the Christian faith. Baptism and ex-communication is not determinative.
◦ Husband defrauded the wife. Concealment as to religion amounts to fraud (Canon Law, 820 (1)- “Error
concerning the quality of the person” )
◦ Concealment as to material fact, such as caste and religious identity is a case of fraud.
 Sujata v. Jose Augustine, Kar HC 1994

◦ Facts: Wife claimed husband had defrauded her into marriage and made her forcefully undergo
baptism. Further also argued that the baptism was irregular since it was not performed as per Canon
law and hence marriage was void.
◦ 9. An analysis of the principles contained in the above Canons governing baptism and marriage
would show that a marriage between a baptised Christian and a person not baptised is void (Canon
1086). The principle laid done in Leelamma's case 1992(1) KLT 651 would show that a person can
become a Christian only if it is established that he truly believes in and professes the Christian
faith. Baptism if duly administered and received may be an important circumstance to conclude that
one has become a Christian. Canon 851 and 865 dealing with the requirements of admission to baptism of
adult person would clearly show that the person who is admitted to baptism must have manifested the
intention to receive baptism, must be adequately instructed in the truths of the faith and in the duties of a
Christian, and tested in the Christian life over the course of catechumen ate. ……..
◦ . The evidence on record would on the other hand show that the baptism ceremony was conducted as an
empty formality preceding the marriage ceremony without having proper faith in Christianity and the
Christian, way of life. The evidence in the case would further show that she never wanted to live as a true
Christian. Her intention in getting converted to Hinduism immediately after parting company with the first
respondent would also support the conclusion that the petitioner was not having the required intention to
receive baptism and true faith in Christianity at any relevant time. In the circumstances, I am inclined to
hold that the petitioner has never become a Christian by faith or by receiving baptism and as such
her marriage with the first respondent is void being a marriage between a baptised Christian and a
not baptised non-Christian
Held:
a) According to Canon law, marriage between a baptized and a non-baptized person is void.
b) Profession of faith is more important. Baptism by itself is not determinative of being Christian.
However, baptism duly administered and received is an important circumstance to conclude profession.
c) For a valid baptism, it is important to show that there is a manifest intention to receive baptism, by
showing that that the person underwent Catechumanate.
Sec 5- Officiators and the ICMA
Scheme
Sec 5(1)- Episcopally Ordained Minister

Sec 5(2)- Clergyman of the Church of Scotland

Sec 5(3)- Licensed Minister of Religion

Sec 5(4)- Marriage Registrar

Sec 5(5)- Licensed Officer Regarding Indian

Christians
 Self-Contained Code
Procedure for Registration of Marriage conducted under section 5(1) &
5(2)- Part IV

Procedure for Marriage when conducted by licensed Minister

of Religion u/s 5(3)- Part III + Registration (Part IV)

Procedure for Marriage & Registration when conducted by

Marriage Registrar u/s 5(4)- Part V

Procedure for Marriage conducted by person licensed to grant

certificates to Indian Christians u/s 5(5)- Part VI
Time of Marriage
◦ 10. Time for solemnizing marriage —
◦ Every marriage under this Act shall be solemnized between the hours of six in the morning and seven
in the evening:
◦ Exceptions — Provided that nothing in this section shall apply to—
◦ (1) a Clergyman of the Church of England solemnizing a marriage under a special license permitting him to do so
at any hour other than between six in the morning and seven in the evening, under the hand and seal of the
Anglican Bishop of the Diocese of his Commissary, or
◦ (2) a Clergyman of the Church of Rome solemnizing a marriage between the hours of seven in the evening and six
in the morning, when he has received a general or special license in that behalf from the Roman Catholic Bishop of
the Diocese or Vicariate in which such marriage is so solemnized, or from such person as the same Bishop has
authorised to grant such license, or
◦ (3) a Clergyman of the Church of Scotland solemnizing a marriage according to the rule, rites, ceremonies and
customs of the Church of Scotland.
◦ Section 69. Solemnizing marriage out of proper time, or without witnesses.—
◦ Whoever knowingly and wilfully solemnizes a marriage between, one or both of whom is or are a Christian or
Christians, at any time other than between the hours of six in the morning and seven in the evening, or in the
absence of at least two credible witnesses other than the person solemnizing the marriage, shall be punished with
imprisonment for a term which may extend to three years, and shall also be liable to fine.
◦ 11. Place for solemnizing marriage —
◦ No Clergyman of the Church of England shall solemnize a marriage in any place other than a church where
worship is generally held according to the norms of the Church of England to unless there is no 2 [such church
within five miles distance by the shortest road from such place, or unless he has received a special license
authorizing him to do so under the hand and seal of the Anglican Bishop of the Diocese or his Commissary.
Part III (Section 12-26)
◦ Parties must give notice of marriage (S.12)
◦ Notice must be affixed in a conspicuous part of the Church (S. 13)
◦ If marriage to be conducted in a private dwelling, then notice to be forwarded to Marriage Registrar who’ll put it up in his office (S. 14)
◦ If one of the parties, minor, send notice to Marriage Registrar (Section 15) (minor means not completed the age of 21 years)
◦ Minister of Religion will grant certificate within 4 days (Section 17)
◦ Declaration by parties (saying there is no impediment as to kindred or affinity or any other lawful hindrance and declaring their minority
if either or both parties are minors) prior to issuing of certificate (Section 18)
◦ Who can give consent in the case of marriage of minor- father, guardian or mother.(Section 19)
◦ When Minister is not satisfied that the consent of guardian/parent has been given, minister can issue certificate only after 14 days of the
receipt of notice of marriage. (Section 22)
◦ Solemnization of Marriage according to such form or ceremony as Minister thinks fit. Two witnesses must be present beside the Minister
(Sec 25)
◦ Certificate valid only for 2 months (Section 26)
Part IV (Sec 27-37)
Section 27. Marriage when to be registered.—
All marriages hereafter solemnized in India between persons one or both of whom professes or profess the
Christian religion, except marriages solemnized under Part V or Part VI of this Act, shall be registered in
manner hereinafter prescribed.
Part V- (Sec 38-59)
Notice
◦ Notice by parties (S. 38)
◦ Publication of notice in conspicuous place (S. 39)
◦ File into marriage notice book (s. 40) MNB open to inspection from the public
Issue of Certificate
◦ Oath to be made by either party (S. 41, 42)
◦ Consent of guardian (S. 44) (Certificate may be given even if there is a registered protest by a guardian wrt to the marriage)
◦ Protest against issue of certificate.—And any person whose consent to such marriage would be required there under may enter a protest against the issue
of the Marriage Registrar’s certificate, by writing, at any time before the issue of such certificate, the word “forbidden” opposite to the entry of the notice
of such intended marriage in the Marriage Notice Book, and by subscribing thereto his or her name and place of abode, and his or her position with
respect to either of the parties, by reason of which he or she is so authorized.
◦ Effect of protest.—When such protest has been entered, no certificate shall issue until the Marriage Registrar has examined into the matter of the protest,
and is satisfied that it ought not to obstruct the issue of the certificate for the said marriage, or until the protest be withdrawn by the person who entered it.
◦ Section 45- Marriage Registrar can approach High Court if anyone other than the father withholds consent unjustly.
Solemnization of Marriage (S. 51, in the presence of Marriage Registrar+ 2 credible witnesses)
Registration of Marriage (S. 54)
Part VI- Marriage of Indian Christians
◦ Simpler procedure for solemnizing marriage for native Christians. Largely redundant now.

- General Conditions (Section 60)

a) Age of man 21 yrs, woman 18 years
b) Neither spouse shall have wife or husband living
c) 2 credible witnesses
- Person licensed to do so can grant certificate once conditions have been met (Section 61)
- Registration of such marriages (Sec 62, 63, 64)
- This part shall not apply to Roman Catholics (Section 65)
Consequences of Not following
Procedures and Conditions of Marriage
◦ Age
◦ Marriage between minors. No consequence specified under ICMA, 1872 and IDA 1869). Therefore valid.
◦ If marriage solemnized by Minister of Religion without consent of guardian nonetheless goes ahead and knowingly and
willfully solemnizes marriage within 14 days of the receipt of notice, such minister will be punishable for 3 years and fine
(Section 70).
◦ Section 71(3)- Marriage Registrar may be punished with three years of imprisonment and fine if he solemnizes a marriage
where one of the parties is a minor, within 14 days of the receipt of notice of such marriage without proper court authority or
without sending a copy of the notice of such marriage to the Senior Marriage Registrar.
◦ Voidable u/PCMA

◦ Bigamy
◦ Marriage can be declared void u/s 19 of the Divorce Act, 1869.
Indian Divorce Act, 1869
19. Grounds of decree. — Such decree may be made on any of the following grounds
◦
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

◦ (2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;

◦ (3) that either party was a lunatic or idiot at the time of the marriage;
◦
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such
former husband or wife was then in force.

◦ Nothing in this section shall affect the 2[jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that
the consent of either party was obtained by force or fraud.
◦ Lack of witnesses (punishable with 3 years u/s 69, ICMA). Marriage is an irregular marriage.

Section 77- Irregular Marriages

Whenever any marriage has been solemnized in accordance with the provisions of section 4 and 5, it shall not be void merely on account of
any irregularity in respect of any of the following matters, namely:—

◦ (1) any statement made in regard to the dwelling of the persons married, or to the consent of any person whose consent to such marriage
is required by law.
◦ (2) the notice of the marriage;
◦ (3) the certificate or translation thereof;
◦ (4) the time and place at which the marriage has been solemnized;
◦ (5) the registration of the marriage.
 Lakshmi Kumar Sanyal v Sachit Kumar
Dhar
◦ Facts: Husband-wife were first cousins. Both were originally hindus but later converted to the Roman
Catholic faith. Wife alleged fraudulent marriage and that marriage was void because she was a minor at
the time of marriage and her consent had not been obtained. Additionally, they also fell within the
prohibited degrees of consanguinity.

◦ Held:
◦ Each part u/s 5 is a self-contained code.
Clause 5(1)- Clause 5(2)- Clause 5(3)- Clause 5(4) Clause 5(5)-
Part IV Part IV Part III Part V Part VI
• Canon • Canon • Sec 19 • Sec 44 • Sec 60
◦ Thus, since the parties belonged to the Roman Catholic faith, therefore only the rules, rituals, ceremonies
and customs of the church to which the party belongs will apply. Thus consent u/s 19 of the guardian was
not required.
◦ Under Canon 88- there is no prohibition of marriage of a minor w/o consent of the parents. As soon as
the child reaches age of capacity [16yrs for a man, 14 for a girl] marriage can be solemnized. The lack of
guardian’s consent will not invalidate the marriage.
 Prohibited Degrees
◦ Did the parties fall within prohibited degrees?

◦ Section 88. Non-validation of marriages within prohibited degrees.—

◦ Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either
of the parties forbids him or her to enter into.

◦ Canon 1076- Marriage among ancestors and descendants is invalid and among collaterals, upto the 3 rd
degree is invalid, unless special dispensation is granted by appropriate church authorities.

◦ Since dispensation was granted by the Church in this case, there was no prohibition under s 19, of the
IDA.
Relevant Portions from Indian Divorce
Act
Legitimacy of Children- Indian Divorce
Act,
◦ 21. Children of annulled marriage. — Where a marriage is annulled on the ground that a former husband
or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with
the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on
the ground of insanity, children begotten before the decree is made shall be specified in the decree, and
shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at
the time of the marriage was competent to contract.

◦ In only 2 situations the children of an annulled marriage will be treated as legitimate children:
◦ Where the second marriage was contracted in good faith that the first spouse was dead
◦ Where marriage is annulled on grounds of insanity of the spouse
◦ Children will not be legitimate if parents were within prohibited degrees of affinity or consanguinity
Judicial Separation
◦ Section 22. Bar to decree for divorce a mensa et toro; but judicial separation obtainable by husband or
wife.- No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may
obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without
reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et
toro under the existing law, and such other legal effect as hereinafter mentioned.
◦ Judicial separation can be sought by either husband or wife on grounds of adultery, desertion or cruelty
◦ Under Indian Divorce Act, unlike SMA and HMA, non-resumption of cohabitation post a decree of
judicial separation is not a ground for divorce.
Christian Divorce
◦ Indian Divorce Act, 1969 (Chapter III)
◦ Section 10- Grounds for Dissolution of Marriage (Adultery, conversion, unsoundness of mind, leprosy
(virulent & incurable), venereal disease, disappearance, non-consummation of marriage, non-compliance of
RCR decree for 2 years, desertion, cruelty (physical or mental))
◦ Exclusive grounds of divorce available to wife where husband is guilty of the following:
◦ Rape
◦ Sodomy
◦ Bestiality
◦ This was challenged before the Supreme Court in Anil Kumar v. Union of India as being violative of Article 14
since these grounds are not available to men. However, the Supreme Court dismissed the petition claiming that
in view of the “muscularly weaker physique of women, her general vulnerable physical and social condition
and her defensive and non-aggressive nature and role, particularly in this country, there is nothing offensive if
this ground has been made available only to the wife and not the husband.”
Mutual Consent Divorce

◦ 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 (51 of 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 parties in the mean time, 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 dissolved with
effect from the date of decree. ].
◦ The 6 month waiting period can only be waived off in exceptional circumstances by the SC in exercise of
it s powers under Art 142 of the Constitution.

◦ The two year waiting period can be read down to one year (Supreme Court in Saumya Ann Thomas v.
Union of India) since it violated the right to equality as all other personal laws mandate one year.