SNDT WOMEN’S UNIVERSITY

LAW SCHOOL

Christian Law Regarding Marriage and Divorce in India

UPASANA ROY
4th year B.B.A., LL.B
SUBJECT: FAMILY LAW
Roll No: 12
Submitted on: 6th DECEMBER, 2021

Professor
DEEPTI KANNORIA
 ACKNOWLEDGEMENT
Primarily I would thank god for being able to complete this project
with success. I give my sincere thanks to SNDT WOMEN’S
UNIVERSITY, LAW SCHOOL, then I would like to thank my teacher,
whose valuable guidance has been the ones that helped me patch
this project make it full proof success her instructions has served as
the major contribution towards the completion of the project.
The project helped me gain knowledge on family law. I would like to
thank my parents and friends who have helped me their valuable
suggestions and information on the topic on various phases of the
completion of the project.
Last but not the least I would like to thank my classmates who have
helped me a lot.

Upasana Roy
 INDEX
Sr no. Topic Pg. no.
1. INTRODUCTION 1

2. Christian Law Regarding Marriage and Divorce in India: Indian 1

Christian Marriage Act, 1872
3. Reason Behind The Act Of Indian Christian Marriage Act, 1872 2

4. Meaning of Christian and Christian marriage in Act, 1872 3

5. Divorce 6

6. Grounds for dissolution of marriage 7

7. Power of Court to Pronounce Decree of Dissolution 8

8. Divorce by Mutual Consent 10

9. Conclusion 12

10. Reference
INTRODUCTION
The right to marry and have a family is considered one of the basic human
rights recognised in all societies. The Supreme Court of India has time and
again recognised it as an inherent part of the fundamental right to life under
Article 21 of the Indian Constitution. In order to be lawfully married,
prospective bride and groom need to follow certain laws and customs. These
laws govern the manner of entering into marriage, specify relations which are
prohibited from marrying each other, and lay down the condition to be of a
certain age and other such requirements. The laws of marriage in India are
diverse and religion-specific. They are also referred to as personal laws. Thus,
the rules vary with the religion of parties who wish to get married. Some
marriage laws have been modified and enacted by the Parliament, while others
continue to exist as per religious commands.

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.

1
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.

The Bill requires the consent of the parents or guardians of Native Christian to a
marriage between them, where the age of either of the parties about to contract
such marriage is less than eighteen years, except in cases in which the minors
have been altogether separated from their parents or natural guardians, and by
reason of such separation are not proposed subject to their control. There is also
some ambiguity in regard to the provisions of the law respecting the submission
of returns, and the disposal of the records of the registration of marriages
solemnized between Native Christians.

The Bill lays down distinctly how such marriages are to be recorded in all cases
and provides for the disposal of the record. It also substitutes for the fixed rates
of fees in respect of marriages solemnized by or before Marriage Registrars, a
power to the Local Government to regulate such fees and their remission; and
lastly, extends the Marriage Law to all places within the territories of Native
Princes in alliance with Her Majesty, in respect of marriages between British
subjects professing the Christian religion.

The Indian Christian Marriage Act, 1872: The Preamble of the Act states that
since it is expedient to consolidate and amend the law relating to solemnization
in India of marriages of persons professing the Christian religion that this Act
has been passed. The Act is divided into eight parts with the Preliminary section
defining the expressions Church of England, Church of Scotland, Church of
Rome, Church and inter alia, Christians.

2
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.

In Part I of the Act (Sections 4-9) certain conditions have been laid down for a
marriage to be valid under the Act. The parties to the marriage must be
Christians as defined under Section 3 of the Act or at least one of them must be
a Christian and the marriage must have been solemnized in accordance with the
provisions of Section 5 of the Act by a person duly authorized to do so. The
State Governments have been authorized to grant and revoke licences, granted
in favour of certain persons, for the solemnization of marriages under the Act.

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.
3
Part III of the Act, which covers Sections 12-26, deals with the notice of
intended marriage and its publication before the actual marriage ceremony. It
lays down that one of the persons intending marriage shall give a notice in
writing as per the form contained in the First Schedule to the Act, to the
Minister of about, whom he or she desires to solemnize the marriage with. If the
marriage is intended to be in a particular Church it is the Minister of Religion
who shall affix the same at some conspicuous part of such Church.

If the marriage is intended to be in a private dwelling, the Minister of Religion

shall forward the notice to the Marriage Registrar of the district, who shall affix
the same at some conspicuous place in his office. Before solemnization of
marriage, a certificate by the Minister of Religion is essential. Such a certificate
shall not be issued before the expiry of four days from the date of the receipt of
the notice. It should also be shown that there is no impediment in the issuance
of the certificate and the issue of the same has not been forbidden by law.

If the marriage is not solemnized within two months from the date of the issue
of the certificate it becomes void and a fresh notice is to be served. If a party to
a marriage is a minor, the consent of the father, if he is living, or, if the father is
dead, the consent of the guardian of the person of such minor, or, if there is no
guardian, that of the mother is essential before marriage. The marriage of a
minor without such consent is not valid.

Sections 27-37 are included in Part IV of the Indian Christian Marriage Act,
1872. It deals with the registration of marriages solemnized under this Act
between Indian Christians. These marriages should be in conformity with the
rules laid down marriages are to be solemnized by clergymen of the Church of
England who shall send quarterly returns to the Archdeaconry containing all
entries of marriage.

Each entry of such marriage is to be signed by both the parties and the person
solemnizing the marriage and shall be attested by two credible witnesses.

Part V contains Sections 38-59 of the Act which deal with marriages
solemnized by or in the presence of a Marriage Registrar. When a marriage is
intended to be solemnized by or in the presence of a Marriage Registrar, notice
shall be given by one of the parties to the marriage in the format given in the
First Schedule to any Marriage Registrar of the district or districts of their
residence. The issuance of a certificate is essential before a marriage can be
solemnized.

4
5
The certificate is issued by the Marriage Registrar which lapses on the expiry of
two months if marriage has not been solemnized. Then a new notice is required
to be issued. Once a Marriage is solemnized it is to be registered and entry
recorded in certificate and marriage register book signed by both the parties and
the Marriage Registrar. It should also be duly attested by two credible
witnesses.

Part VI of the Act deals with marriage of Indian Christians. This part containing
Sections 60-65 lays down that there is no need of giving preliminary notice but
it must be proved that the ages of the bridegroom and bride are not below 21
years and 18 years respectively, and that neither of the persons intending to be
married has a wife or husband still living. The parties then take the oath before
the presence of two witnesses and a Marriage Officer who then grants a
certificate of marriage. Entries are made in the register maintained for this
purpose.

Part VII deals with penalties which are incorporated in Sections 66-76 for
making false declarations or signing a false notice or certificate. These acts have
been made punishable under Section 193 of the Indian Penal Code. The
punishment provided is up to three year imprisonment.

The making of a false declaration should be intentional. Solemnizing marriage

without due authority has also been made punishable under the Act and the
punishment provided extends to ten years imprisonment. Similarly if a person
solemnizes a marriage at any time other than the prescribed hours or in the
absence of witnesses, he is guilty of an offence punishable with imprisonment
which may extend up to three years plus fine. There is no express prohibition
preventing a person professing Christianity from marrying a non-Christian after
undergoing a non-Christian ceremony.

Part VIII of the Act deals with miscellaneous matters concerning marriages
under this Act. A marriage solemnized does not become void under this Act on
account of minor irregularities. The errors can be corrected. It also gives the
power to the State Government to prescribe fees, inter alia, for receiving and
publishing notices of marriage, issuing certificates of marriage, searching
register books or certificates, etc. It may be pointed out that while some other
personal laws have been amended the Christian law has remained impervious to
change despite demands and recommendations for reforms.

6
Divorce:
The Indian Divorce Act, 1869 regulates the law relating to divorce of persons
professing the Christian religion and also other matrimonial clauses. This Act is
applied if one of the parties to the proceedings is a Christian. The Act is
modeled on the English law of divorce (Section 7). Part III, Section 10 of the
Act provides the grounds on which a husband or a wife may petition for
dissolution of marriage.

The Indian Divorce Act, enacted a century ago contained certain harsh and
discriminatory provisions, for example, there is gender discrimination since for
obtaining divorce husband only has to prove adultery on the part of wife
whereas the wife has to prove an additional matrimonial offence like cruelty,
desertion, conversion or bigamy along with adultery.

Thus a need for reform in the Indian Divorce Act was long felt by jurists and
even the Supreme Court and the Law Commission. The Supreme Court made a
strong plea for introducing a change in the archaic law in Jorden Diengdeh v.
S.S. Chopra.1 

The constitutionality of the controversial Section 10 was again challenged

in Mrs. Zachariah v. Union of India where the court directed the Union to
take a decision towards amending the Act within 6 months. The Kerala High
Court in Ammini E J. v. Union of India 2 again not only highlighted the
discrimination but struck down certain phrases in order to give meaningful
relief to the petitioners. The court quashed the provision which requires a
Christian wife to prove that her husband had been indulging in “incestuous
adultery” or “adultery coupled with cruelty or desertion” in order to obtain
divorce.

Taking into consideration the above views, the Indian Divorce (Amendment)
Act, 2001 was passed by which certain amendments were introduced in the Act.
Section 10 of the Act was substituted by new provision and a new Section 10-A
was inserted. In Part III of the Act which deals with dissolution of marriage and
Part IV relating to nullity of marriage, amendments were introduced by this
Amendment Act of 2001.

1
AIR 1985 SC 935

2
AIR 1995 Ker. 252

7
8
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 would be dissolved on the
ground that since the solemnization of the marriage, the respondent:

i. Has committed adultery

ii. Has ceased to be Christian by conversion to another religion
iii. Has been incurably of unsound mind for a continuous period of not less
than two years immediately preceding the presentation of the petition.
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.
v. Has for a period of not less than two years immediately proceedings the
presentation of the petition, been suffering from venereal disease in a
communicable form.
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.
vii. Has wilfully refused to consummate the marriage and the marriage has
not therefore been consummated.
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 dissolution of a marriage, the Court shall satisfy itself, so
far as it reasonably can, not only as to the fact alleged, but also whether
or not the petitioner has been in any manner accessory to, or connived at,
the going through of the said form of marriage, or the adultery, or has
condoned the same and shall also enquire into any counter charge which
may be made against the petitioner.

9
Power of Court to Pronounce Decree of Dissolution:
According to Section l4 of the Act, the Court shall pronounce a decree declaring
such marriage to be dissolved in case the Court is satisfied on the evidence that
the case of the petitioner has been proved and does not find that the petitioner
has been in any manner accessory to or connived 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.

But, the Court shall not be bound to pronounce such decree if it finds that the
petitioner has, during the marriage, been guilty of adultery, or if the petitioner
has, in the opinion of the Court been guilty of unreasonable delay in presenting
or prosecuting such petition, or of cruelty towards the other party to the
marriage or of having deserted or wilfully separated himself or herself from the
other party before the adultery complained of and without reasonable excuse or
of such wilful neglect or misconduct of or towards the other party as has
conducted to the adultery. In this connection no adultery shall be deemed to
have been condoned within the meaning of this Act unless where conjugal
cohabitation has been resumed or continued.

In Nalini v. C.H. Issac,3 where it was the respondent husband who created the
situation resulting in the breakdown of the marriage by developing illicit
intimacy with another woman and by deserting the petitioner wife it was held
that as the respondent had created such circumstances which compelled the
petitioner also to commit adultery, she was entitled to a decree of dissolution of
marriage even though she herself was guilty of committing adultery. Even when
the defendant is absent, it was held in Sahaya Barathy v. Anthony Sahaya, 4 it is
the duty of the court to scrutinise the case of the plaintiff and go into evidence
both oral and documentary produced before it for the purpose of satisfying itself
as to whether the plaintiff has made out a case or not.

3
AIR 1997 M.P 266

4
AIR 1981 Mad. 241, (1981) ILR 3 Mad. 241

10
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.

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.

In Madhusmita Nayak v. Simadri Nayak5 it was held that the object of

Section 11 is to prevent any form of collusive divorce. It is not a mere formality
to dispense with the presence of the co-respondent.

5
AIR 1997 Ori. 162

11
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.
Nullity of Marriage Part IV of the Indian Divorce Act deals with nullity of
marriage. Any husband or wife under Section 18 may present a petition to the
District Court, praying that his or her marriage may be declared null and void
on any of the following grounds:

1. Impotency of the respondent at the time of marriage and institution of the

suit.
2. Parties being within the prohibited degree of consanguinity [natural or
legal or affinity.
3. Either party is a lunatic or idiot at the time of marriage.
4. Former husband or wife of either pa1ty was living at the time of the
marriage and the marriage was in force.
5. Consent of either party was obtained by force or fraud.

In B.D. Cardoza v. Glady B. Cardoza,6 where a wife obtained consent by

concealing the fact that by operation her fallopian tubes were removed and she
was incapable of giving birth to a child the petition for declaration of annulment
of marriage was allowed and decree passed. Where a wife delivered a child after
203 days of marriage and the child was not premature and the husband had
neither access nor knowledge about her pre-marriage pregnancy, was held in P.
V Sabu v. Mariakutty,7 that the husband is entitled to a declaration of nullity
of marriage on ground of fraud.

6
AIR 1997 Bom. 17

7
AIR 1998 Ker. 86

12
Conclusion
The varied marriage laws applicable to Indians are an obvious implication of the
unique and diverse social milieu we live in. The concept of marriage depends
upon the personal law practised by an individual, where some religion
recognizes it as a sacrament and come in the form of contract. The dissolution
of such marriage is also governed by the same personal laws which in most
cases are codified. 

In most cases, the concept of divorce has also undergone several changes within
the personal laws keeping in view the changes in society. The legislature after
independence has more or less codified the personal laws in relation to marriage
and divorce wherein they have tried to bring in some changes keeping in view
the constitutional principles.

The complex system is often a cause of confusion for laymen and results in
serious legal problems. It is very important that marriage between two persons
be recognised as legal and valid in the eyes of law. Registration of marriages is
also a requirement in most of the marriage laws so that the status of husband
and wife is well established and they can claim legal rights and remedies from
the courts. The multiplicity of marriage laws is often seen as a problem as it
makes compliance difficult along with other issues discussed above.

The way forward is to achieve the constitutional goal of enacting uniform civil
laws based on ideals of gender justice, which would provide for common
matrimonial laws for all religions while also respecting our religious diversity.

13
Reference:

1. Indian Christian Marriage Act, 1872.

2. Indian Christian Marriage Act, 1872
3. Marriages Validation Act, 1892
4. Cochin Christian Civil Marriage Act, 1905
5. Indian Matrimonial Causes (War Marriages) Act, 1948
6. Marriage Dissolution Act, 1866
7. Indian Divorce Act, 1869
8. The Indian Christian Marriage Act, 1872
9. https://en.wikipedia.org/wiki/The_Indian_Christian_Marriage_Act,_1872
10. https://indiankanoon.org/doc/90496067/
11. https://www.christianfort.com/ICDA.htm
12. http://home.kar.nic.in/download_files/Passport/The_Indian_Christian_Marri
age_Act1872.pdf
13. https://lawcommissionofindia.nic.in/1-50/Report15.pdf
14. https://www.legalserviceindia.com/legal/article-1764-christian-law-
regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-
1872.html
15. http://home.kar.nic.in/download_files/Passport/The_Indian_Christian_Marri
age_Act1872.pdf

14