The Ground Of Divorce Amongst Christians In India

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Law Commission Report

The Ground Of Divorce Amongst Christians In India

LAW COMMISSION
OF INDIA

NINETIETH REPORT

THE GROUNDS OF DIVORCE
AMONGST
CHRISTIANS IN INDIA: SECTION 10
INDIAN DIVORCE ACT 1869

GOVERNMENT OF INDIA : MINISTRY OF L.-\\\'

K, K_ MATHEW D.O. No. F. 2(6)/82-I.C.

Chairman
Law Commission '
Government of India

Shastri Bhavan
New Delhi--1 l0 001

1'7th May, 1983.

My dear Minister,

I send herewith the 90th Report of the Law Commission regarding "Grounds
of Divorce amongst Christians in India: Section 10 of the Indian Divorce Act,
1869". '

2. Revisionlof Section 10 of the Indian Divorce Act, 1869, was taken up by
the Law Commission suo moto in view of the existing element of discrimination
based on sex under the Indian Divorce Act as applicable to the Christians in
India. '

3. In the ﬁeld of marriage law, extensive developments have taken place both

in law and in Society.-It is proper that these developments should"'bc taken note .

of and the law brought in tune with the times.

4. The Commission expresses its appreciation to Shri P. M. Bakshi, Part-time
Member of the Commission for the ﬁnalisation of the Report. '

With regards,

Yours sincerely,

Sd/-
(K. K. MATHEW w

Shri Jagannath Kaushal,

Minister of Law, Justice & 'Company Affairs,
Shastri Bhavan, A

NEW DELHI.

.84-LlB(D)117MofLJ&CA--1

CHAPTER 1

CHAPTER 2
CHAPTER 3

CHAPTER 4
CHAPTER 5

CHAPTER 6

APPENDIX 1

APPENDIX 2

s4-L_gB(D)1 17MofLJ&CA---;1

' CONTENTS

INTRODUCTORY , . . -

THI%PRESjENT LAW, AND THE ISSUES FOR CONSIDERA-
T10 .. . . .. . . . . . . . .

COMMENTS RECEIVED AND VIEWS EXPRESSED ON THE
VARIOUS ISSUES. . . . . ,, . . . . . .

THE QUESTION OF NULLITY
MUTUAL CONSENT
RECOMMENDATION

APPENDICES

I GROUNDS OF RELIEF IN INDIA MATRIMONIAL LAW _

EXTRACTS RELATINGTO CA\NON LAW

20~-'22

CHAPTER 1
INTRODUCTORY '

1.1. The Law Commission of India has taken up for consideration the 61513'
tion whether the law relating to the grounds of divorce applicable to Christians
in India under section 10 of the Indian Divorce Act, 1869 should be reformed,
and if so,- on what lines. The inadequacies of the present law have been stressed
from time to time by individuals and social organisations. The Law Commission
of India itself had, a few years ago, made detailed recommendations for reform'
of the law on the subject, in a comprehensive Report dealing with the entire law
of marriage and divorce amongst Christians in India, supplemented by another
Report' dealing with certain matters arising out of the Bill prepared by Govem-
ment on the subject, While legislation for removing the defects in the law on the
subject has not been introduced, it appears to the Commission that it is urgently
necessary in the interests of social justice to take up some issues, even if a
comprehensive legislation by way of revision of the enactments on the subject
cannot be undertaken by Government.

Need for taking up
the subject. ~

1.2. In a letter recently addressed to the Chairman of the Law Commis-The gist of the

sion,' there have been narrated certain actual cases of Christian women who
were treated with severe cruelty by their respective husbands, as a consequence
of which the womenphad to undergo a lot of suffering, resulting in their mental
breakdown, The letter also mentionsimany other cases of cruelty by Christian
husbands (even of husbands putting their wives into prostitution), and of long-
continuing desertion by the husbands, who, notwithstanding their own past mis-
conduct, nevertheless expect their wivesto accept them back, Because of the
dilﬁculty of getting a divorce in such cases, these women, it is stated, have no

hope of redeeming their lives and ﬁnding happiness for themselves and their
children.

V 1.3. It has also been emphasised in the letter mentioned above that the
recent proposal to amend the Special Marriage Act and the Hindu Marriage
Act by way of introducing "irretrievable breakdown" as a ground for divorce
(in the two Acts) is the first step towards the liberation of unfortunate Indian

» women and that the same should be extended to Christian§ialso.- Towards the

end of the letter, the need for a uniform divorce law covering every community
has also been stressed, "thereby enabling the Christian woman especially, to
break away completely from an unhappy union and start a new life while she

is still young and sane enough to do so." ,5.

'It may be mentioned that the Marriage Laws (Amendment) Bill is pending

before Parliament, and is intended to implement a Report' given by the Law

'J Law Commission of' India, 15th Report (Law relating to marriage and divorce amongst
Christian in India). ' -

' Law Commission of India. 22nd Report (Christian Marriage etc. Bill).

3 Letter addressed to the Law Commission by Ms. Aud Sonia Roberts, New Delhi, dated 15th
September, 1981.

' Law Commission of India, 7lst Report (Hindu Marriage Act»-Irretrievable breakdown of
Marriage as a ground of divorce). ' _

suggestion of Ms,
Roberts.

Bmkdc an of
martin.

Commission on the introduction, in. the Hindu Marriage Act, of irretrievable
'breakdown of marriage (evidenced by the parties living apart for a speciﬁed
period) as a ground of divorce. That report itself had been forwarded in response
to a reference made by the Government of'India intthe Ministry of Law.

Equality of sexes. 1.4. Apart from the questions raised by the letter mentioned above, it is
also worthwhile considering whether section .10, Indian Divorce Act, does not
stand in urgent need of revision on the ground of equality of the sexes.'

Scope of the 'Re- 1.5. Accordingly, the present Report addresses itself to the 'question of
pm' reform of the law relating to grounds of divorce amongst Christians in India.
Working Paper.' . 1.6. For eliciting views on the subject, the Commission had'prepared a'

Working Paper which had been circulated to interested persons and bodies. The
gist of that Working Paper'-' and the views received thereon will be dealt with
in due course." ' '

1. Chapter 2, inﬁ-n.
9. Chapter 2, infra.
3. Chapter 3, infra.

_ , CI:-IATPTERQ
THE PRESENT LAW, AND THE issUEs FOR 'CONSIDERATION

2.1. Section 10 of the Indian Divorce Act, 1869 deals with the grounds OfP_i-escnt

divorce amongst Christians as under :--

"I0. When husband may petition for diss0luti0n--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.

Wlienwife may petition for di'ssolution---Any wife may present a peti-
tion 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 taro,

or of adultery coupled with desertion, without reasonable excuse for
two years or upwards."

I101]

10,

law
Indian

Divorce Act 1869.

2.2. Having regard to the nature of the issues that fall for C0nSidCl'atlOll,Working papg. 3;
we had circulated to interested persons and bodies a Working Paper on thescttins ,f0I1hthree
subject for eliciting opinion. The Working Paper so circulated set forth threea]"?""""'°5- -

alternatives for consideration, The reasons for putting forth these three alter-
natives and the possible justiﬁcation that could be advanced in support of each
of them were set out at some length in the Working Paper, It may be convenient

, to restate them in this Report (though not necessarily in the same words).

2.3. The first alternative put forth in the Working Paper focussed attentionDiscriniinati0u Writ

on the element of discrimination from which section 10 of the Indian Divorce13'8° in S°°"°".'1°
alternative).

Act, 1869 seemed to suffer in the Commission's view, This is apart from any

(First

other question that may fall to be considered as to the merits of 'the existing _

law as tested in the light of the present day social notions in regard to affairs
of the family. The Commission was of the view that the provision in section 10
(as it now stands)' was blatantly discriminatory against Christian women.

' The matter would be clear if one compares the position regarding the two
sexes under the section. The ground of divorce available to the Christian husband
under this section is expressed simply as "adu1tery"-----no other fact need be
proved by the husband. But the ground of divorce available to the wife is
expressed in very narrow terms iiifthe section. To -mention the position very
brieﬂy, the section requires proof by the wife of one or other of the following

acts of the husband---(a) conversion accompanied by' another marriage, or-

(b) rape, sodomy» or bestiality, or (c) adultery, which, however, must be accom-
panied by some particular aggravating quality factor or circumstance speciﬁed
in the section. Brieﬂy, the section requires that the adultery comniitted by the
husband must have been (i) incestuous, or (ii) accompanied by bigamy, or
(iii) accompanied by "marriage with another woman", or (iv) coupled with such

cruelty as would itself have entitled a woman to a divorce a mensa et tom, ,

(v) coupled with desertion without reasonable excuse for at least two years.

Thus, the woman _is placed in a much more unfavourable position than the
man, since she is required to prove, besides adultery, one or other of the addi-
tional facts enumerated above. In so far as the present provision in section 10,

Paragraph 2.1., supra.

Indian Divorce Act,' 1869, has imposed on the Christian woman these stringent
limitations in regard to adultery as a ground of divorce, it appears to be violativc
of article 14 of the Constitution. Notwithstanding judicial dicta to the contrary,'
this seems to be the proper view to take Under article 14 of the Constitution,
the State must not deny to any person equality before the law or the equal
protection of the laws within the territory of India, Section 10 violates that
mandate.

Further, section 10 would seem to violate article 15(1) of the Coiistitutitin.
under which "the State shall not discriniitiate against any citizen on ground
A only of religion, race, caste. sex, place of birth or any of them." The Constitution
- ' lavotirs special provision for women, but not against them." T lierefore, there
is an urgent need to remove the discrimination that is writ large in section 10,
Indian Divorce Act, 1869 and to introduce equal' treatment of the sexes. This
was the ﬁrst------and the most urgent--questiori to be considered, according to the
Commission, and was the first alternative put forth in the Working Paper.

Widening of thc 2.4. The second oiiestion to be- considered in regard to divorce was a
grounds of divorce ' ' '

for Christians ' . . . .
(Second altcrl-lative) be so amended as to permit divorce amongst Christians on grounds not men-

tioned in the present section, such as cruelty, desertion, insanity, and other
diseases and various other miscellaneous grounds available under other enact-
ments in force in India? This constituted the second alternative put forth in the
Working Paper.

The Conimission noted that it was possible to evolve a milder form of the
second alternative. One can think of introducing as a ground of divorce avaiiable
to either spouse (amongst Christians) :---- '

(i) adultery; A
(ii) dcscrtion for a period of two years without reasonable excuse,' and
(iii) cruelty.

Irrctrievablc break- 2.5. The third alternative put forth in the Working Paper raised a still

'd""'.'" °f "'a"'.'aS° much wider question, namely; whether the Indian Divorce Act, 1869, should

(Tmd alternative)' be amended more radically by introducing in that Act, as a ground of divorce
"irretrievable breakdown" of marriage (evidenced by the parties living apartfor
a speciﬁed period). This would be on the lines of the-Bill now pending before
Parliament. whereby' the Hindu Marriage Act, 1955 and the Special Marriage
Act, 1954 are proposed to be amended to introduce this particular ground.
This was the third alternative put forth in the Working Paper,

Compnrhensive 2.6. It was also pointed out in the Working Paper that. in principle, there

E'-°"'5'S',".' 1-a"'R may even be a case for still more extensive amendments in the matrimonial

'pgfméﬁloghristifg legislation applicable to Christians. If one were to embark on the task of revising

Marriage and the entire law relating to marriage and divorce amongst Christians in India, one

Divorce. could even think a comprehensive revision of Indian Christian Marriage Act,
1872 and the Indian Divorce Act, 1869--along with the introduction of neces-
sary refnnris, both in the substantive rules and in the procedure. As already
mentioned} the Law Commission of India had forwarded to the Government
such a Report, being the Law Commissions 15th Report on the law relating to
marriage' and divorce amongst Christians in India (1960). This Report' was
followed by the 22nd Report of the Law Commission, in which the Commission
expressed its views on certain further issues which the Government of India had
referred to the Commission, These were issues relating to the Bill that had been
prepared in the Government to implement the 15th Report. The Commission's
Reports on the subject have not _been implemented. This past history of law
reform proposals on the subject was also set out in the Working Paper.

'. Dit'ui'];nbni v. Nmj/irui. A.l.R.'l9S3 Mad. 792.
2. Yum/'v. The State,-A.l.R. I954 S.C. 321, (1954) S.C.l_l. 939. _ ' _ _
* 3. The various grounds of divorce under Indian Matrimonial Legislation are summarised in
Appendix. -
'. If a comprehensive definition of "desei-tion" is introduced, abscncc Of 1'42?-Sonabie ¢T'~Cl1SC
would form part of the deﬁnition itself.
5. Para 1.1, supra. '

somewhat wider one_ namely, whether the Indian Divorce Act, 1869, should,'

2.7. Against the backgrouifd of the above material (which was included in Three altematiyes:
the Working Paper), the Commission invited opinions of the following alter-'}','a "'° w°"'"'l
native proposals. W'

(i) Should the law relating to divorce ariiongst Christians in India
(section 10, Indian Divorce Act) be amended so as to remove the
element of discrimination against the wife at present apparent in the
law? I

(ii) Should the law relating to divorce amongst Christians in India be
amended by widening the grounds available to both the spousesso as
to include the grounds available under the various matrim_onial
statutes in force in India as they stand today'?

(iii) Should the ground of irretrievable breakdown of marriage, evidenced
by the parties living apart for a speciﬁed period (which is proposed to
be introduced in the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954) be made available to Christians also '.'

lntroductc ry.

Comments favou-
ring ﬁrst alterna-
tive

Comments favou-
ring the second
alternative.

CHAPTER 3 "

COMMENTS RECEIVED AND VIEWS EXPRESSED ON THE
' ISSUES

. Introductory

VARIOUS

3.1. We have set out above the important proposition on which..views were

invited in the Working Paper. We shall now summarise the views received on
the Working Paper.' The first alternative posed the query whether the law rela-
ting to divorce amongst Christians in India (Section'l(), Indian Divorce _Act,
1869), should be amended so as to remove the element of discrimination between
the sexes which is, at present manifest in the law, This was the narrowest of the
alternatives formulated in the Working Paper. --

The second alternative in the Working Paper raised the query, whether

the grounds of divorce available to both the spouscsamong» Christians should'

be widened so as to include the grounds available under the various matrimonial
statutes in? force in India as I/Iey stand today. The widest alternative was put
forth in the third query, which solicited opinion on the question whether the
ground of irretrievable breakdown of marriage, evidenced by the "parties living
apart for a speciﬁed period (which: is proposed to be introduced in the Hindu
Marriage Act,- 1955. and the Special Marriage Act, 1954), should be made avail-
able to Christians also. *

3.2. The ﬁrst alternative has been favoured by several comments received

in response to the Working Paper. It has also been strongly supported by many "i
of the articles and letters in newspapers and magazines that we have had the '

opportunity of perusing. For example, the Catholic Bishops' Conference of India,
in its comment on the Working Paper, irnpliedly accepts the soundness of the
reasoning underlying the ﬁrst alternative put forth in the Working'Paper and
agrees that the discrimination between the husband and the wife as in section 10
of the Indian Divorce Act, I869 is wrong and needs to be rectified. However,
the comment has made certain additional points which may be thus summarised.
In the first place, it has been stated that India, being a secular State, should not

have special legislation concerning marriages of different religious communities. .
The national legislation may limit itself to general issues, while areas peculiar.

to specific religions may be left to the provisions of the rules of each religion.

Secondly, the comment of the Conference suggests that since the canonical
provisions regarding and the form of marriage are accepted by the' civil law
of the country, a declaration of nullity of marriage granted 'by the competent
ecclesiastical authority should also be recognised by the civil law. Thirdly, it
is stated that the Church also provides for separation pf bed and board on
grounds of faith, inﬁdelity, (adultery), etc., and these provisions as in canon law,
could also be recognised by the State_ Finally, the comment' expresses an anxiety
to keep separate divorce and separation from board and bed. The last para-
graph of the comment makes the following' concrete suggestion as regards the
queries made in the Working Paper of the Law Commission :-- '

"In the light of the above, the answers to the three questions raised at the
end of the Working Paper would all be "yes", provided the matter refers
to separation from bed and board and not to dissolution of the bond of
marriage _wit/I the resultant freedom to marry again." » I

3.3. Some of the comments received on the Working Paper favour ,the

second alternative 'put forth in the Working Paper. Thus, one High Court,
deﬁnitely approving the ﬁrst alternative put forth in the Working Paper, agrees
that discrimination between the sexes should be removed That High Court
would even accept the second alternative, put forth in the Working Paper, but
with the rider that all the grounds of divorce available in all the matrimonial
statutes in force in India need not be incorporated in the legislation relating to
Christians._ "It would be sutlicient to include the grounds available under the

1_ Working Paper circulated on 29th November, 1982 paragraph 15.
6

,, »

'6
amend_,ed_; Hindu Marriage Act, 1955, including mutual consent as provided
there', comment does not, however, favour the third alternative (irretri-
evztbiggbrieiakdown of marriage as ground, of divorce), which it regards "as some-
what controversial and not yet tested in India."

3.4. Certain comments received on the Working Paper favour a compre- C°m.'"°"'3 f'"'°."'

hensive revision of the law----the third alternative put forth in the Questionnaire. ESE ,,,f,"° ,,,;des,_

One High Court, for example, states that the Indian Divorce Act, 1869 needs algematix-e_

comprehensive amendment, "to help Christian couples to have resort to Courts

, where both the spouses mutually agreed to separate and where there is irretriev-

able breakdown of the marriage". The comment of this High Court further states
that the Indian Divorce Act, 1869, "as at present available is outmoded". The
High Court also makes a plea for repealing section 7 of the Act (which requires
the Courts in India to follow the English practice in matters not specifically
provided for), and for abolishing the original jurisdiction of the High Courts
under the Act to try dissolution cases. The High Court further suggests-that the
need for confirmation of a decree of divorce by a full bench of the High Court
should be done away with and, further, that there is no need for a, six month
period for the decree to be made absolute (which is necessary under the present
law), The comment ends with the foilowing concrete suggestion :--- V

"The provisions of 'the Act can be brought' in accordance with the provi-
sions of the Special Marriage Act or the Hindu Marriage Act."

3.5. The Government of india in the Legislative Department,' while agree-- Comment 03' ""3
ing in principle with the need for amendment of the law, has, in its comment G°'."'"'"'°"' °f
on the Working Paper, referred to the history of the past attempts at reform of D 3'
the law on the subject, (a matter which was mentioned in the Working Paper
of the Law Commission also). The Legislative Department has also referred to
abandonment of the Bill implementing the 15th and 22nd Reports of the Law
Commission, after the Bill was reported on by the Joint Committee 'of both
Houses of Parliament, The Department has also made a mention of the Starred
Question on the subject which was answered by Government in the Lok Sabha
on the 16th December, 1980. It appears from the comment that Government is
anxious that the views of the Christian community in the matter may be ascer-
tained, with special efforts. The basic approacli"ot' the Government seems to be
contained in the last' paragraph of the comment, which we reproduce below 1- .

-"While on tirst principles the answers to the three questions posed by'ithe
Commission in their Working Paper have to be in the aliirmative, it would
appear necessary, particularly in view of the past experience of the Govern-
ment, to make special etiorts to ascertain the views of the Christian
community in the matter." v .

3.6. Apart from the comments received on the Working Paper, we have Niicle-5 a"§1°°"""

been able to have .1 look at articles and correspondence published in certain pgndfsncc m news.
newspapers and periodicals, which contain an expression of 'views on the subject. P De '
The majority of the articles and letters reveal a deep dissatisfaction with the
presentrlaw, though there is a small shade of view favouring the status quo. The
remedy or reform suggested in the various articles and letters varies and many
of them raise a matter not raised in our Working Paper, namely, the need for
some provision in the: law for facilitating the recognition, by the Civii Courts,
of a pronouncement of nullity made by a competent authority of the Church.

Several points have been made in the articles published on the subject in
newspapers and periodicals. By and large, the need for a revision of the law' in
the light of the changing social conditions has been stressed Further, it has
been argued that the absence of a provision for recognition, by the civil courts,
of a pronouncement of nullity granted by the Church leads to a serious anomaly,
inasmuch as (under the present position), a person stays married for the pur-
poses of the law of the land, while the Church has already declared his marriage
to be void. It has also been stated that Portuguese law, as in force in Goa,
recognises such pronouncements of nullity» made by, the Church authorities.
(Reference has been made in this connection to a provision made by the Fortit-
guese law in 1911 in regard to Goa).

1- Legislative Department F. 11 (2) 82 L. II, dated 12 January, 1983.

Summary of view
in articles.

-- ~~ ----- « . . . . .;'
3.7. It is unnecessary to refer in detail to each and every pomt made X11} e

articles and correspondence in ne\vspapers and the periodicals. However, it 'we Id

be useful to mention the important points. In broad terms, the salient points
made are as under :------

'published in (16 October I982)

Necessity for changes in the law concerning
Christians pointed out, in the
Light of the Supreme Court" judgment
(Mutual consent as a ground of divorce).'

. Archaic nature of the Indian Divorce Act
pointed out. Reference made to certain
judgments pointing, to the needfor reform.
Necessity for removing discrimination
against women highlighted. Desirabilityof
expanding the grounds of divorce and
"a total reconstruction of the system"
stressed. ' '

G.R. Rajagopaul,
"Personal Law Integration"
(15 September. I982)
Indian Express.

Kenneth A. Phillips.
"Christian victims of archaic
law"

(21 September. 1982)

Times of India.

Reference is also made to the law in Goa which, in effect, it is stated
recognises a pronouncement of nullity by the Church? Mention is further
made of a Madras ruling3 which points out the anomaly 'in the Indian
Divorce Act, in not recognising absence of the other spouse for seven years
as a ground for dissolution of marriage, The article ends with a quotation
of the following passage from an Encyclical of the Pope:

"Since women are becoming ever more conscious 0f~their human
dignity, they will not tolerate being treated as mere material instru-
ments. but demand rightsas beﬁtting a human person, both in domestic
and public life." '

George Menezes. letter published Need for grant of divorce on the ground of
in (I October. 1982) Times of desertion for a continued period stressed.
India. Discrimination between the sexes under the
present law also pointed out. Absence
of geographical uniformity in the la\v also
emphasised. since Christians of' Goa,'Daman
and Diu have a. much more progressive
law, than Christians in the rest of India.

The State must recognise annulments and
dissolutions granted by the Church, as in
Goa under the Portuguese law enacted in
I')! I.

The Indian Divorce Act is discriminatory
and archaic. Even though the woman
obtains an annulment from the Church.
she has to go through the "long-suffering,
-oppressive, endless and impractical procedure
~ of the court to obtain a divorce which in
' any case is long time consuming. I wish
.our Parliamentarians would pass suitable
legislation immediately to give much needed
relief' to innocent, harassed victims of
the Indian Divorce Act, 1869." -

The status in society of a couple whose

Father Cruz D'Sou.-'a. Sayvant-
wadi. letter published in (II
October I982) Indian Express.

Doris D'Souza. Bombay, letter

Times of India.

Winston F. Saldanha Bombay,
letter published in (23 October . _
1982) Times of India. is uncertain. "The remedy lies in codifying
the law and making it uniform. Progres-
sive laws like the Hindu Marriage Act,
I9-55 and the special Marriage Act, 1954
should be the basis. Irretrievable break-

down of marriage and annulment bythe

WT.ﬂCf. Chapter 5, infra.

9. On this point. see further paragraph 4.8 infra. g -
3, George Corlzelius v. Elizabeth Depti Samadanam, A.I.R. 1970 Mad 240 (Palaniswam y,J.)

referred to in Reynold Rajmani v.' Union of India A.I.R. 1982, S.C. 1251 (Sept.)

marriage has been annulled by the Church -

9 .

Church should also be further grounds for
divorce/annulment by the courts of law.
it is unfortunate that the Government has
not reintroduced in Parliament the Chris-
tian 'Marriage and Matrimonial Causes
Bill which had been 'introduced in 1962
but which lapsed."

Ami Ashanti, Bombay, letter The writer draws attention to the need to
published in (4 October l982) provide relief to couples who suffer from
The Examiner. mental cruelty. She refers to the battered
spouses of alcoholics who eke out their
existence and to the- husbands of "nym-
phomaniac and psychoaberrated" wives.
She also refers to her project experience
- in the Institute of Social Sciences (Bombay)
where she had met several Catholic women
wlio were living sub-hum_anly "only because
. of the indissolubility of the marriage bond
. . . . . . . . . . . . . . . . . ..-...... "If Catholic
priests can seek and obtain Laicisation....
why cannot the Catholic Laity. . . ..seek and
obtain, if not divorce, annulment, especially
when it can be proved that the marriage
has irretrievably broken down 1"'

Teresa Albuquerque, Bombay, (i) A church annulment of marriage
letter in (ll December, 1982) should be recognised in law,
The Examiner. .(ii).The present law is an affront to

women, as' it makes a distinction
betweeii the sexes.

F.M. Pinto, Bombay, letter in The time has come for a reorient_ed thinking
(18 December, i982) The Exami- on .the subject of divorce for Christians.
net' . , . .

Winson F. Saldana. letter in (24 The letter mentions a large number of
December, 1982) The Herald tragic cases of Catholic couples all over the
andin (January, l983) Home Life country whose marriages are void on one
and (January, 1983) The Exami- or more of the grounds speciﬁed in the

-ner. article of Mr. Kenneth Phillips and who

are unable to obtain speedy annulment of
their marriage. This is just because the
number of clergymen learned in moral
. theology and in canon law to constitute
ecclesiastical tribunal to adjudicate upon
these cases and to grant relief is insufﬁcient.
The cure, it is stated, lies is having zonal
interdiocesan tribunals. '

Peter Hguerido, Calcutta. letter; Commenting on the article of Mr. Kenneth
in (24 December. 1982) The Phillips. Mr. Figuerido states that the

Herald. . provisions of the Indian Divorce Act as

to nullity are adequate. According to the
comment, the procedure in civil courts is
superior to that in Church tribunals. The
Divorce Act safeguards against collusion,
while in Church tribunals, there is secrecy
(of proceedings).

"There is no reason why a genuine case from the'Church tribunals
should not, on the same evidence established before, be accepted by Civil
Courts. To accept blindly the decision of 21 secret tribunal .does not appeal
to the concept of equality before law. The Indian Divorce Act remains as
close to traditional Roman Catholic ethics as is possible in a. society where
libertinage» is the order of the day. It is sad to see it attacked, in the name
of progress, in a Roman" Catholic journal."

News item in (31 December 1982)
The Examiner.

F.M. Pinto, Bombay, letter in
(January 1983) Home Life.

Comment under "Current T0-
pics" in (6 January, 1983) Times
of India.

Dr. L. De Souza, Bombay. letter
in (l5 January, i983) The Exami-

1161'.

M.C. Abraham, "Dissolution of
Christian Marriage" (Feb. 1983)
Cr. LJ. Journal 2,4.

1. Paragraph 2.2, supra.

A resolution demanding that the provision
for divorce should be extended to the
Christian Marriage Act was passed on 30
December 1982 at Cochin at the three day
Biennial National Conference o'f.Women
Lawyers.

(i) Annulment of a marriage by the
Church should be recognised.

(if) It is unfortunate that t-he Christian
Marriage and Matrimonial Causes
Bill of 1962 proved abortive.

Under the Indian Divorce Act,_l869,
divorce is available under very limited
conditions, which virtually makes the
' provision infructuous. The wife
cannot sue for divorce on grounds of
impotency, insanity or cruelty.

(1')

The archaic and cruel nature of the
law is evidence from the. fact thatit
does not _accept the annulment order
passed by the Church. The Portu-
gueselaw in Goa. is much more progres-
sive and dissolves marriages a ulled
by the Church. "U

The Act of [869 needs to be changed
also because it does not treat men
and women as equals. "In order to
update it, the legislators can draw
upon the provisions of the Hindu
Marriage Act and the Special Marriage
Act and take into account a wide
range of issues to make it easier for
men and women to separate when
marriages have broken down."

(ii)

(iii)

The archaic law applicable to Christians . .

needs revision. "In case of other religions,
particularly the Hindus, there have been
progressive changes as seen in the Hindu
Marriage Act, 1955, where amendments
have been made. for divorce whenever
there are c,ases'of irretrievable break down
of the marriage among many other grounds,
including mutual consent. It is not only
deplorable but very sad, to see Christian
couples whose marriages have fallen apart,
living aiife of miser_v and undergoing all
the hardships that prevent them from getting
married again".

According to this article, there is no need
to add any ground of divorce. "Union
for life is the method of Christian marriage
and not separation". As we have already
stated', the majority of views favours at

least the introduction of equality between the _

sexes; in regard to divorce amongst Chris-
tians.

CHAPTER 4
THE QUESTION OF NULLITY

4.1. It is now necessary to consider in some detail the point regarding
nullity of rriage, raised in many of the articles and letters that have appeared
on the sub ect.' The point can be thus elaborated. Since a marriage performed
by the Church authorities according' to sacred rites is recognised by the law,
(it is stated that) it is anomalous that a pronouncement of nullity of marriage
made by a Church authority according to canon law should not be recognised
by the law. Although no reference to the relevant statutory provisions is made
in the articles and letters which have raised the question of recognition of such
a pronouncement, it appears that the allusion here is to section 5 of the Indian
Christian Marriage Act, 1872 which deals with the perso'ns by whom a marriage
for the purposes of the Act, may be solemnised in India.

4.2. Sectlon 5, Indian Christian Marriage' Act, 1872 reads as under :--
5. "Persons by whom marriage may be solemnized :--

Marriages may be solemnised in India :----

(1) by any -person who has received episcopal ordination, provided
that the marriage be solemnized according to the rules, rites,
ceremonies and customs of the Church of which he is a Minister;

(2) by any clergyman of the Church of Scotland, providedthat such
marriage be solemnized according to the rules, rites, ceremonies
and customs of the Church of Scotland;

(3) g by any Minister of Religion licensed under this Act to solemnize
' marriage;

(4) by, or in_ the
' this Act;

(5) by .any peisori licensed under this Act to grant certiﬁcates of
marriage between Indian Christians.

Clauses (1) and (2) of. the section are of
under discussion.

presence of, a Marriage Registrar appointed under

particular relevance to the point

4.3. We have very carefully examined the suggestion for 'recognising a
Clilhurcllt profnouncemlent of nullity and in th(iTs context have also had a look at
t e ru es 0 canon aw pertaining to "impe iments" .to marriage, as applicable
to Roman Catholics. These rules are' fairly elaboratej they contain a lengthy set
of provisions that seem to have developed across the centuries, so as to
assume their present sophisticated shape. We do not consider it necessary to
quote or summarise them here? But having devoted careful thought to the
matter, we have come to the conclusion that it would not be quite appropriate to
insert in the lawva sweeping provision for the recognition of a pronouncement
of nullity made by a Church authority. We are afraid that this would have the

Pronounccmcnt

of nullity made
by Church authori-
ties. ' '

Section 5--- Indian
Christian Marriage
Act 1872.

Rules of anon
law - as to nullity
of marriage.

effect -of introducing considerable confusion in the law and its administration. A

Some of the grounds of nullity of marriage as recognised in canon law may over
lap the grounds of nullity expressly permitted or impliedly recognised by section
19 of-the Indian Divorce Act/, a section which we shall presently discuss in detail.
It is possible that in a particular case, the Church authority, while adiudicating
on the facts alleged as constituting a particular ground of nullity might have
taken one View of the matter. while the civil court, when moved by appropriate
proceedings, might take a different view on the same facts.

1.. Chapter 3, supra

2. These have been extracted in Appendix 2. The source from which they have been extracted
may not be uptodate, but we understand that therejhave not been susbstantial changes.

Anomaly'

authorities.

Difference between
recongnition
marriage and recog-
of nullity.

nition

No
lacuna
law.

substantial

likely
result by rea-
son of two parallel

_ 4.4. The coexistence of two parallel adjudicating bodies on the same sub-
_]CCl_L could thus create serious problems for all concerned. The view has been
expressed in one article that the present position (non--reeognition of a pronounce-
ment of nullity made by a Church authority) causes hardship to the parties.' But
the suggested solution would hardly be an improvement. If anything, it would
make matters worse.

4.5. The argument with which we are at the moment dealing seems to be
based on section 5 of the Indian Christian Marriage Act, 1872.? As already
stated, that section recognises marriages solemnised according to certain Church
rules and the' argument seems to be that since a Church marriage is recognised
by law, a church pronouncement of nullity should also be recognised by law.
However, in this context. we would like to point that» there is a difference between
the civil court recognising a marriage performed according to religious rites and
the civil court recognising a pronouncement of nullity made by a Church
authority. No doubt the relationship of marriage may originate in 'a particular
religious ceremony; but if, during the subsistence (or alleged subsistence) of the
relationship. a question arises whether such a status has been created, there
will always be available, in conformity with the law of evidence, some other
factual material in proof or disproof of the alleged marriage." The most impor-
tant species of evidence would be the factum of cohabitation of the parties and
the acceptance of their spousal status in society. The point to make is that the
courts would not, in a factual investigation about the existence of marital status,
be conﬁned to evidence of the performance of religious ceremonies only.

This is the position regarding proof of marriage. The position would be
ditlerent where the question relates to the existence or effect of a pronouncement
of nullity granted by an authority outside the judicial hierarchy. If, in a court
of law. the questionarises whether such a pronouncement has, in fact, been

made or (if made) has been validly made, it is only that pronouncement which'

would form the basis of inquiry before the court. For a court of law, it would
not always be easy to determine these questions in a satisfactory manner. This
is a difficulty which would be additional to the other anomalies that are likely
to arise if two parallel authorities adjudicating upon the same dispute are to be
recognised in law. These are anomalies to which we have already referred.'

This is our general approach on the point at issue and it follows that con-
sistently with this approach, it would not be logical to accept the suggestion that
pronouncements of nullity made by eccelesiastical authorities should be recogni-

scd by civil courts.

4.6. Even so, we have taken the opportunity of looking carefully at the

in pmsen' concrete points made in this context. We have. for this purpose, examined at

length the articles published on the subject? We ﬁnd that they do not (With 0116
exception to be presently noticed)," precisely pinpoint any speciﬁc lacuna (in the
Indian Divorce Act) linked up with a particular ground of rfullity recognised
in canon law. On a' preliminary study of the relevant provisions of canon law,'

we are not satisﬁed that any urgent amendment of the Indian Divorce Act is.
needed on the point at issue. Section 19 of the Act, which we quote below, _

should cover a pretty large number of cases, where a serious defect in the

marriage may be ~~regarded as justifying a decree of nullity. If on a deeper exa-I

mination of the law, some situations cause grave hardship- are found to be left
uncovered by the section, the matter could still be considered when :1 comprehen-
sive rcvision of the Divorce Act is undertaken. But as already stated above, no
urgent reform appears to be needed on the point under discussion.

'. Paragraph 4.6, infra.

2. Paragraph 4.2, supra.

3. Cf. Section 50, Indian Evidence Act, 1872 and sections 6-9 and 11 of that Act in particular.
'. See para 4.4., .\'upr(I.

". Chapter 3, supra.

". Paragraph 4.8, inf;-a..

7. Cf. paragraph 4.3. supra.

4.7 Let us quote section 19 of the Indian Divorce Act 1869, which reads5K'C"'L'ﬂ 19 Divorce
. ct.

as under :---

"I9. Grounds of deer-ee------Such decree' may be made on _any of the follow-
ing grounds:

' (1) that the respondent was impotent at the time of the marriage

and at the time of the institution of the suit;

that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or atlinity;

(2)

that either. party was a lunatic or idiot at the_ time of the marriage;

(3) (4)

that the former husband or wife or 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 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. . -

_ We proceed to examine if the section leaves out any important ground_ of nullity that might have been canvassed in the View pressed on the subject, 4.8. In this connection, we may again state that concrete points as to the Annutmnt in deieets, if any, in the "existing legal approach have been made in «only one article car_1cn1aw---c_oncr~ te on the subject. This is an article by Mr. Kenneth A. Phillips, Pleading for the P°""* °°""d"ed recognition by Civil Courts of a pronouncement of nullity made by the Church, he states that the conditions laid down by the canon law oi the Catholic Church for an annulment of the marriage, among other grounds, are :~--

(1) The inability to assume and perform the essential 'marital obligations and duties.

The wilful deception of the other party with regard to a quality which, by its own nature, seriously perturbs conjugal life and this deception is done in order to obtain the other's consent.

(3) Lack of will or intention to get married.

Concentrating on these three circumstances, we have devoted some thought to the question whether, and if so, how far the iridian Divorce Act, 1869, as it stands at present, provides for these circumstance as constituting a ground for matrimonial relief amongst Christians. ' "

4-.9. Taking up, one by one, the concrete iltuatioris referred to by Mr. Phillips, we note that the first situation mentioned above (inability -of a spouse, to assurne, etc. essential marital duties) is sub igantially CO'¢'CY:)'Ll by section 19 (1) of the Indian Divorce Act, 1869. Accordir _z to that section," irnportency of the respondent at the time of marriage and at the time of the institu ion of the suit empowers the civil court to_make a decree of nullity of marriage. 4.10. The second situation mentioned above' (wilful deception), is also, in substance, covered by the last paragraph of sec"on 19 of the Indian Divorce Act. That part of the section preserves the jurisdicti n 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. No doubt, the juris liction to szrant such a den-ee (on this particular ground) is conﬁned to the High Court. The reason For this seems to be that the High Courts in India have ilheritcd their jurisdir:t?:-;m on the subject from the Supreme Courts, which, in their own turn, had inherited the power to make a decree of nullity (on the grc ind ot duress or fraud) from

1. Decree of nullity.

9. Paragraph 4.7. supra.

Pmngtaph 4. supra.

84-L/B(D)1l 7Mol'LJ&CA-- 2 Compnt isrn Divorce Art with (ff) V. illlt' (ICCCP-W tion. -

14

the ecclesiastical courts.' If the present position causes serious hardship, by reaspngof the_]uri_sdiction being so conﬁned the. point can, no doubt, be looked into; at the time when the entire _Divorce Act is revised. But what needs to be _pointed out is that the law applicable to Christians, even now,. does provide some remedy to deal with circumstances of fraud or duress, in the ﬁeld or -

_ niatrim-znnial relief. Thus, the present law cannot be regarded as substantially inadequate.

Nor can it be said that courts have not captured the spirit of the principles on which the jurisdiction in question may w- exercised, From a study of reported decisions, it appears that, on the whole, courts, when elaborating the concept of fraud, have laid stress on the fact that the essence of a valid marriage is free consent both in regard to the person with whom the marriage is undergonei' and in regard to the ceremony of marriage} By and large, serious cases of fraud seem 'to have been taken care of by the present law.

""3 L3°k °f }'"n 4.11. This leaves the third ground for nullity recognised in canon law (as ' t° getma"'°d'1'eferrcd to by Mr. Phillips)" namely lack of will or intention to get married. To some extent this situation would, even now, be covered by the Indian Divorce Act, if the other party has been guilty of fraud (section 19, last paragraph, Indian Divorce Act)." The case, of course, is not covered where the party against whom relief is' sought is unaware of the state of mind of the claimant (is. of the claimant's lack of the will to get married). This would be a case of unilateral minconception on the part of one spouse, not induced by other spouse. But for that, all serious defects of the will seem to have been provided for in the present law. ' L:t°k arr'~'i'§d_':'is1i'tu;9 4.12. Let us elaborate the point made above, by dealing with the _various ,gion":ma,ySed_ possible factors that bring out lack of volition. Lack of will to get married may V. generally arise as a result of one of the following factors 2--

(i) Insanityf A , V

(ii) misconceptions induced by fraud of the opposite party;

(iii) duress,"

(iv) misconception" not induced by fraud of the opposite party.

I The ﬁrst three factors are, in substance, taken care of by the present law applicable to Christians, as contained in the section 19(1), Indian Divorce Act." The fourth situation, i.e., the situation where a misconception not induced by the opposite party is responsible for a "marriage" undergone without the inten- tion to get niarried, may not fall within four corners of the provisions of the Indian Divorce Act, 1869. But such cases, we hope, will not be many, and: may not, therefore, call for any urgent reform to be taken up in isolation from a comprehensive review of the Act.

oiher provisions 4.13. It may also be mentioned in this context that apart from section of law Pr0_\/iding 19 of the Indian Divorce Actfirelief can be claimed on general principles of g°'']md"'a'a"°" 05 law also, for getting a declaration of nullity of maqiage, on appropriate grounds. U y' Thus, with reference to section 4 of the Divorce Act, it was held in :1 Delhi '. T. Sarn_ia David V. Cizristie Frrmcie . A.I.R. 1965 A.P.

2. Point for further consideration (jurisdiction of High Courts).

3. A_ynkut v. Ayukut, A._I.R. 1940 Cal. 75. (Decison under'Specific Relief Act, 1877).

4. Melim v. Melzra (1.945) 2 All E.R. 690. (This is an English case, but the position will be the same in India.)

5. Paragraph 4. 8, supra.

9. Paragraph 4.10, supra.

7. See section 19(3) Indian Divorce Act, 1869.

3. See section 19, last paragraph, Indian Divorce Act, 1869. _ See section 19, last paragraph, Indian Divorce, Act, 1869. 1". Not covered by the Indian Divorce Act, 1869, at present.

". [Para 4.7. supra. ' 1'. Paragraph 4.7, supra.

o is case' that a suit seeking a declaration of nullity on the ground of non"-observance ' of essential ceremonies should be ﬁled in the ordinary court of original civil ' jurisdiction, and not in the High Court. This indirectly implies' that 'relief on the above ground. could be claimed under the general rules of law. Again, 'it has been held that so far as a suit for' declaring _a marriage null and void is based on the ground that the petitioner was an idiot at the time of his marriage and that the petitioner's consent was obtained _by fraud, the High Court had jurisdiction to entertain the suit. But a suit based on the ' ground of non-observance of essential ceremonies must be ﬁled in an ordinary ""civi1court.2" ' ' ' .

Questions of validity of marriage have also been raised with reference to personal law. Thus, it has been held by the»Calcutta' High Court that personal law of a Roman Catholic woman forbids her toenter into a marriage with a jew. The marriage ceremony 'so undergone does not affect a valid marria e." A "suit can be ﬁled, to declare 'the marriageto be a nullity-, under section' f2, Speciﬁc Relief Act, 1877, (now section 34, Speciﬁc Relief Act, 1963)-.5

4.14. In this connection reference may be made' to section 34, Speciﬁc - Swim Relief Act, relating to declaratory relief to be granted by court. It reads 332:, 1963. ' under :-- ' . ' '1 _ . ...' .. ~ -

, . H . -44 '»_ "32: Any person entitled to any legal character, or to any property,

- may institute a suit against any person denyingior interested to deny, his ' title to such character or right, and the-court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief 2 .

.Provided that no court shall make any such declaration where the plaintiff, being able. to seelefurther relief than a'mere declaration of title, 'omits to do so. - _ Explanation : A trustee of property is a person interested to deny a title. ~' ' adverse to the title of some one who is not in existence, and ' for whom, «if in existence, he would be' a trustee."

4.15. Having regard to the present state of the statuto rovisions relatin ' ' . to a declaration of nullity of marriage and in the light of theryotlher considerationg §%va'L'§§ r'§u£$"'§.5 .' to which we have made a reference in the ﬁrst few paragraphs of this Chapter, .' ' '-

9 we do not consider it necessary to ma'ke any recommendation for the recognition, §f,,°ﬂg,""°°"""§ ' "

in civil courts, of pronouncements of nullity made, by ecclesiastical authorities. , ' .1. Jordan paenandoh v. Swaranjit Siugh Chopra, A.i_.R. 1882 N.O.C. 313 (Delhi) (December Iss ue) Matrimonial case no. 1 of 1980 decided in 19 Feb. 1982) . '.' Mt. Title v. Alﬁ'edRabert Jones, A.I.R. 1934 273.

-. A.I.R. 1923 Pat 201 referred. , . V x

-. Jude v. Jude, A.I.R. 1949 Cal. 563. - ~ 6, Paragraph 4.14, lnﬁ-a.

-. Section 34.

A ' Supreme . CHAPTER: 5 MUTUAL CONSENT Mutual _ consent 5.1. We now proceed to the question whether divorce should be allowed v°b5'""'a"°"SC 't'.' on mutual consent. The question how far mutual consent is a ground of divorce °"' under the Indian Divorce Act, 1869 came up recently for -consideration before the Supreme Court.' It was held that the Court cannot add a new ground of divorce to those mentioned in section 10 of the Act and resort could not be had to section 7 of the Act for expanding the grounds of divorce on the lines of the grounds recognised in England. The judges pointed out that it was _for Parliament to-' consider whether -a {provision for divorce by mutual consent should be included in the Act. The Court could not extend or enlarge legislative policy by adding to the statute a provision which was never enacted. One of the judges, Mr. Justice Chinnappa"'Reddy, in his concurring judgment, after stressing the need for equality between the sexes and social justice, made the following observations as to reform of the' law on the subject.' judgment.

"Yes, I agree with Miss 'Lily Thomas (Counsel for appellants) that divorce by mutual consent should be available to every married couple, . whatever religion» they may profess and however they were married; Let no 1 compel the unio-n of man and woman who have agreed on separation. ' If they desire to be two. why should the one insist that they be one ?'7 it However, these observations are suflixed by a qualiﬁcation expressed as under :-- ' t' "But I have a qualiﬁcation; The woman must be protected. Our mciety still looks askance at a divorced woman. A woman divorcee is yet a suspect. Herwchances of survival are diminished by the divorce so, the law which grants the decree fordivorce must secure for her some. _ measure of econontic independence. Itshouldbe so whatever be the ground for divorce, whether it is mutual consent. irretrievable break-down of the marriage, or even the fault of the woman herself. Every divorce solves a problem arid creates another'. Both'problems need to be solved, no matter who is responsible for the breakdown of the marriage. If the divorce law is to be a real success, it should make provision for the economic independ- ence of the female spouse. After all, Indian society today is so constituted that a woman is a generally helpless and her position becomes worse if she is divorced. It is necessary that the law should protect her interest even if she be anerring spouse, lest she becomes destitute and _a dead loss to society." _ 5.2. We have taken note of this judgment, and of the observations there- from quoted above. The question whether mutual consent should be introduced « as a ground of divorce amongst Christians. is one which may require considera- tion at the appropriate time. We do not express any opinion on thesubject in No amendment recommended .

the present Report. It could he considered when the entire Indian Divorce Act. is revised." _. . . ' V 1. Rayrtoldwltrgicunani V. Union oflrrdia, A.I.R.-1982 1261,-1'265(Sfep~ternber')i'4~ Point for further consideration when the Divorce Act is revised. ' 10 . CHAPTER 6 RECONHVIENDATION 6.1 On a careful consideration of the views expressed onthe subject, we Recommendation have come to the conclusion that there is "urgent need for amending section 10 '?'a""8 ' '° 5°'?-. tion 10, Indian of the Indian Divorce Act. 1869.' so as to remove -the element of discrimination Divorce Act 1859 from which that section deﬁnitely suffers. This does 'not, of course", mean that the other and more redical alternatives that we have set out in an earlier Chapter' of this Report are totally ruled out. On the.merits, there is much to be said for some of the othenalernatives. However, having regard to the past history" of proposals for reform on the subject, we shall for the present. content ourselves with the above recommendation. ' ' 6.2 The reason why we attach the highest importance to amending section imd S°°°nd It) as above maybe stated. We regard such an amendment as a constitt1tional?,afer3?t'V° '°°m' imperative'. - . , r In our view, if the section is to stand the test of the constitutional mandate of equality before the law and equal protection of the laws, in the context of avoiding discrimination between the sexes, then the amendment is necessary. If Parliament does not remove the discrimination, the Courts, in exercise of their jurisdiction to remedy violations of fundamental rights, are bound,' some day, to declare the section as void. Once this happens, there will be created a hiatus in the law, and a tidying up of the statutory provisions will then become even more urgent than at present. In this sense, there is a very strong case for amending section 10, as above, for constitutional reasons. Of course, even apart from the constitutional_ mandate of equality such an amendment would be eminently sound on the -merits.

6.3 Our recommendation as put forth- above must. thereture, be given pn-o,.iﬁes_ priority. The next step would be consideration of the second5 alternative men- tioned above, namely, introduction of certain new grounds of divorce, The third' alternative (irretrievable breakdown of marriage) need not be mixed up with the matters that require more urgent "attention. It is likely to detract.from the success of the attempt to reform the law, with the result th,at'even the improve-. ments most urgently needed may get defeated in the process. .

As to the merits of the fourth alternative,' we 'think that there may be a strong case for a comprehensive reform of the law and for consolidating the two enactments on the subject, as recommended in the earlier Reports of the Law Commissions' However, we are not sure if any such legislative proposal will have a prospect of' being passed within a reasonably short period. ' -

6.4 For this reason, the amendment that we are recommending to introduce gfgfmsas t° """'° equality between the sexes must be 'given priority. The other reforms adverted to ' in this Report under the second and fourth alternatives" should also receive serious consideration in due course. We very earnestly -hope that on the forwarding of this Consequential changes may be required in other provisons of the Act. .1 Chapter 2,'supra. ' Chapter 1, supra.

. Paragraph 2.3, supra.

. Paragraph 2.4, supra.

. Paragraph 2.5, supras , , The fourth alternative--paragraph 2.6, supra. V

5. Chapter 1, supra. ' -

, Chapter 2, supra .. ¢mh_:a|»7.I-ll . 9 .17; H \ 18 Report, Government will ﬁnd it convenient to implement very modest mendation made inthis Report without delay. We also expect that the stage will ' then be set for contemplating the Other reforms of the law on the "subject which we have indicated. . ' V I ' V .

recom- Our concrete recommendation, then,' is that it is most" urgently mW'""°"- ssary that section 10 of the Indian Divo'rce Act, 1869 be revised to remove the element of discrimination. Adultery is a ground of diverse should be made avail- able to the Christian wife also (without the need to prove any other aggravating or concomitant circumstances, as at present). Opportunity should_ also be p to make available to the husband as a ground of divorce of conversion followed' by second marriage (a ground which is at.present available only to the wife).

Recommendation 6.6 In the light of the above discussion, we recdmmend that section' 10 of the '°' '"'.'°"d".'°"'S Indian Divorce Act, 1869 should be revised as under z---- ' of section .0, _ , Indian Divorce Act. ' ' _ ' . ' SECTION 10, INDIAN DIVORCE ACT, 1869 (REVISED) "10. When husband may petition for divorce---Arl1y_ 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-

(a) exchanged her profession of Christianitygfor the profession of _S_0rne other religion and gone through a form of marriage with another man, or . . . '

(b) been guilty of adultery. ' V , D 4 .

JWhenl wife' may petition for d'ivorce--:Any'wifevmay present a petition to V the District Court or to the High Court, praying that her marriage may be dissolv- ed, on the ground, that her husband has, since the solermuzation thereof----

(a) exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another woman, or

(b) been guilty of adultery - - - . - - - - - - - - -- or rape, sodomyor bﬁsfifcllity-"

pgmgmnuﬁon < 6.7 Consequential changes may be necessary in the other provisions of the » as to other p1'ovi- Act which may contain a reﬁerence to the grounds of divorce. .' sions of the Indian ' (K. K. MA'I'I,-IEW) Chairman (NASIRULLAH BEG) _Member (I. P. CI-IATURVEDI).

Member ' (P. M. BAKSHI) Part-time Memyer ' (CH. RAMAKRAISI-INA RAO) Member-Secretary. ' Dated : 17th May, 1983.

_ Taken alphabetically, the ' grounds Aforadivorce or other mﬁrimonial relief ' (including nullity) in Indian matrimonial statutes can be thus enumerated arrang- _ APPENDIX 1 r GRouNns or RELIEF.lN INDIAN MATRIMONIAL LAW in g them alphabetically--- -

(a)

(b)

(c) '.(d)

(e)

(f)

(g) (11)

(j) Adultery.

Bigamy.

--Conversion- to another religion Cruelty.' [under section 22, Indian Divorce Act, cruelty is a ground only for judicial separation]. 7 ' A Desertion for a speciﬁed period.' Duress (ground of nullity). ' Fornicationf . , . . "'~~~._.,/I ' ' Fraud (ground for nullity or divorce)--Position in various Acts differs. Imprisonment.' '

(k) Insanity} (1)

(m)

(n) (0)

(p)

(q)

(r) .(s)

(t) (11) Leprosy." -

[Mental abnorma1ity--_see "In_sanity"]t Non-consummation of marriage.' Non-resurnptionof cohabitation aft,er'decree'for restitution or judicial separationﬁ » , Non-resumption of 'cohabitation after decree for maintenance,' Pregnancy. (Pre-_marital pregnancy of the wife. the husband---ground for nullity );. , ' ' Prostitution--Compel]ing the wife into."

Rape: sedomy or ."

Ilenunciation of the world."

Unnatural oﬁence."

Venereal disease}?

soodoavhunu :-

H .

H :9 S '5' (Some pf these grounds appear in the Indian Divorce Act also). . Cf. section 13(1)' (ta); H.M.A. ("treated with cruelty"). , . Cf. section l3(1)(1b), H.M.A. (desertion for not less than two years). . Cf. section 32(d), P.'M.D.A. .

. Cf. section 320'), P.M'.D.A. (Imprisonment for 7 years).' . Cf. section 13(1) (iii), H.M.A. and section 32(1)), P.M.D.A. . . Cf. section 13(a) (iv), H.M.A. ' . Cf. section 32(a), P.M.D.A. .- Cﬁ section l3(lA), I-I.N[.,A. . Cﬁ section 13(2) (ii), H.M.A. . Cf. section 32(e), P(M.D.A. . Cf. section 32(2) (ii), H.M.A. . Cf. section'l3 (1) (vi) H.M.A. . Cf. section 32(d), P.M.D.A. . C. section 13(1) (v). EMA-

'I,

-by a person other than \ APPENDIX _2 A EXTRACTS RELATING TO_ CANQN LAW' ' Classiﬁcation of Iinpedinientr. Impediménts are :

l.

2.

0i"u"i1'iI1t' law or of ea-c-Ic;'siastic-(rl laiv, according to their origin;

impediment (merely prohibitive)' or rlirimcnt (invalidating), according to their effect (C. 1036);

.- Absolute or relative, according as they affect the person regardless of, or only in relation to certain other persons;

Public or occult, accérding as they can or cannot be_.proved in the exter- nal forum (C.1037) ;_ .

Permanent or temporary, according to their duration;

6. Certain or doubtful;

Dispensable or non-dispensable, according as they 'can or cannotlbe rc-

' moved by dispensation;

8. Major or minor, according to their grade (C. 1042).

Numberof Impediments ~

1. There are two or three impedientrimpediments, according as legal rela-

tionship is counted or not, 'depending on the law of the state. They» are : simple A vow (C. 1058); mixed religion (C. 1060 sq.); legal relationship through adop- tion,vif according to the civil law it forbids marriage (C. 1059). ' T

2. There are twelve or thirteen ~- diriment impediments; want of age (C. 1067) ;impotence (C. 1068) ; existing bond of. previous marriage (C. 1069) ; disparity of cult (C. 1070); sacred orders (C. 1072); solemn religious vow (C. 1073) ; abduction (C. 1074) ; Crime (C. 1075):: Consanguinity (C. 1076) ; affinity (CQIO77); public property (C. 1078); spiritual relationship (C. 1079);

and legal relationship through adoption if according to" the law of the state. It invalidates marriage (C. 1080);

;

Canon 1067 '

1.__A man before completing his sixteenth year, and a women beforecomp- leting her fourteenth, cannot contract a valid marriage. A 2: Although a marriage contracted after the aforesaid age is valid yet pastors of souls should try to deter young people from marrying before' the age atwhich 7 according to .the received customs of the country marriage is usually contracted."

Canon 1068

1._Impotence, antecedent and perpetual, whether 'on the part of the man or the woman, whether known to the other party or "not, whether absolute on

2. If_ the impediment of impotence the marriage is not to be hindered.

relative, invalidates marriage by the law of nature itself._ is doubtful either in law or in fact,

3. Sterility neither invalidates marriage nor "renders it illicit.

' '. T. Lincoln Bouscaren and S.J. Adam C. Ellis, S.J. Canon Law-A text and Commentary, 19493426-427. (Bruce Publishing Co. Milwavkee). ~ '

2. Canon 1034 requires the pastor to dissuade minor from marrying without knowledge or against reasonable wishes of parents. ;

20"-

21. Canon 1069

1. One who is bound by the bond of a prior marriage even though it was.

not consummated, invalidity attempts marriage without prejudice, however, tothe privilege of the faith; , ' '

2. Even though the f0rm_er"marri'agc be invalid or. dissolved for any reason, it is not, therefore, allowed to contract another until the nullity or dissolution of the former. shall have been established according to law and with certainty.

Canon 1070 . 1. A marriage contracted by a non-baptized person with a person who was baptizedtin the Catholic Church or who has been converted to it from heresy or schism, is null. ' - .

2. If a party at the time of marriage was commonly regarded as -baptized, or if his or her baptism was doubtful, the marriage must be regarded as valid according to canon 1014, until it is certainly established that one oithe parties was baptized' and that the other was not. .

Canon 1071 The prescriptions I laid down.' in Canons 1060-1064 regarding mixed marriages apply to marriages against which the impediment of disparity of cult exists.

Canon 1072 Clerics who are in sacred borders attempt marriage invalidly. Canon i073 I Likewise, marriage is invalidly attempted by religious' persons who have pro- nounced either solemn vows or vows which by special provision of the Holy See are endowed with the power of invalidating marriage.

-- ' Canon 107_4

1. Between the abductor and the' woman who has been abducted with a view to marriage, there can be no marriage as long as she remains in his power.

2. If the woman, upon being separated from the abductor and placed in a safe and free place, consents to have him for her husband, the impediment ceases.

3.- As regards the nullity of marriage,'the violent detention of a woman is regarded as equivalent to. abduction, that is, when a man, with a view to marriage, "violently detains a woman in the placewhere she is staying or to which she has freely come.

Canon 1075 .- I The following person cannot validity contract marriage : M T 1. Persons who, during the existence of the same lawful marriage, have con- summated adultery together have mutually promised each other to marry, or have attempted marriage even by a mere civil act; .

2. Those who, likewise during the existence of the same lawful marriage, have consummated adultery together, and one of whom has killed the lawful pouse; _ - ' ' A

3. Those, who, even without committing adultery have by mutual coope-_ ration, phyical or moral, hilled the lawful spouse. ' 'Canon 107 6 9

1. In the direct line of consanguinity marriage is invalid betwéenpall the ancestors and descendants, legitimate or natural.

'22

2. In the collateral line, it is invalid up to _the third degree inclusive, but with the understanding that theimatrimonial impediment is multiplied only as often as the common ancestor is multiplied.

3. Marriage must never be allowed if there exists any doubt that the parties may be related by consanguinity in any degree of the direct line or inthe ﬁrst degree of the collateral line. ' C anon _ 1077

1. Afﬁnity in the direct line in any degree invalidates marriage; in the col- lateral line it invalidates itvup to the second degree inclusive. '

2.-The impediment of affinity is multiplied :' ' 1. As often as the impediment of consatiguinity from which it arises is multiplied; . ' .

2. When marriage is successively repeated with the blood relative of a decreased spouse. l . ' ' ' -

Canon 1078 The impediment of public property arises from an invalid marriage, whether consummated or not, and from public and notorious concubinage; and it i_n_vali- dates marriage in the ﬁrst and second degree of the direct line, between the man and the blood relatives of the woman and vice versa.

Canon 1079 The only spiritual relationship which invalidates marriage is that mentioned ' in Canon 768.

Canon 1080, Persons who according to the civil law are regarded as incapable of marrying each other because of a legal relationshipiarising from adoption, cannot .v_alidly contract marriagetogether according to canon law. _A ' \ "sis.r.:iacI>)1t71\f¢or1JaccA--s3o--2§.5.ss-'-airsu :_, -- .

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