Solemnization And Dissolution Of Christian Marriage

1st September, 2023 - 9:38 am Categories: Marriage Act 0 Comments

Introduction

The Indian Christian Marriage Act, 1872 governs marital laws of Christians. A Christian is a person who professes Christianity. A Christian marriage can be solemnized between two Christians or between a Christian and a non-Christian. This is laid down under Section 4 of the Act. Thus, the laws under the Indian Christian Marriage Act, 1872 would extend to a married couple whose marriage is solemnized as per the provisions of the Indian Christian Marriage Act, 1872 regardless of Christianity not being the religion of one of them.

The applicability of the Indian Christian Marriage Act, 1872 is restricted to marriage related laws. Dissolution of marriage is not governed by the Act. In order to terminate the marriage between a married couple whose marriage took place in accordance with the Indian Christian Marriage Act, 1872, reliance has to be placed on The Divorce Act, 1869.

The Indian Christian Marriage Act does not cover dissolution of marriage. It only deals with registration of marriage.

Solemnization Of Christian Marriage

In order for a marriage to be considered valid as per Indian Christian Marriage Act, 1872, eitherboth the parties or one of the parties to the Christian marriage ought to be a Christian. In case the personal laws of either of the parties prohibit the marriage, the same would not be considered valid under the Indian Christian Marriage Act, 1872.

Since, the marriage does not have to be between two Christians, is not necessary for a person intending to have a marriage under the Indian Christian Marriage Act, 1872 to get baptised. This was laid down in the case of K.J.B. David v. Nilamoni Devi.

In order to solemnise a christian marriage, the person has to be a pastor of a non-Catholic Church, a Marriage Registrar, any Christian authorised by the State Government or priest of a Roman Catholic Church. The said persons can also solemnise a marriage between a Christian and a non-Christian.

The State Government grants license to a Pastor of non-Catholic Church under Section 6 of the Indian Christian Marriage Act, 1872 to authorise him to solemnise a marriage. A Pastor of a non-Catholic Church who solemnises a marriage without a license by the State Government is liable to be punished with imprisonment which may extend to ten years as per Section 68 of the Indian Christian Marriage Act, 1872.

Minority And Marriage

The Indian Christian Marriage Act, 1872 defines minor as a person who has not attained the age of twenty-one years. In addition to that, such a person must not be a widower or a widow. The marriage between two parties where either of them is a minor can be solemnised under the Act. A licensed Pastor can solemnize marriage when either of the party is a minor. Section 15 of the Act requires every Minister totransfer the notice received from two parties intending to get their marriage solemnised when one of them is a minorto the Marriage Registrar.

If parties have not attained the age of consent i.e. they are minors, then the consent of the father of the minor needs to be obtained before getting the marriage solemnised and in case the father has passed away, the consent of the guardian of the minor and if the guardian is also deceased then the mother of the minor needs to give her consent.

In Lakshmi Sanyak v Sanchit Kumar Dharthe Apex Court held that under Canon 88 of the Roman Catholic Church the age of capacity to contract is attained at 16 years for a man and 14 years for a woman. Even though, at that age the parties would be minors, the validity of a Christian marriage being a contract is not affected by that. The Cannon Law governs prohibited relationships as well.

It has to be understood that a Court of Law holds a superior position than the Cannon Law. Thus, if a relationship is exempted from the prohibited degrees by a Court of Law it can no more be considered as prohibited by the Cannon Law.

Essentials

• Section 10 of the Act states that a Christian marriage should be solemnised by a priest between 6 in the morning and seven in the evening after receiving a general or special license
• Section 11 states that a clergymen belonging to the Church of England have to solemnise a marriage in a Church barring exceptional cases where there is no church within five miles of distance or they have a special license.
• A Christian marriage can be solemnised between two parties having no living spouses at the time of marriage. The man must be at least 21 years old and the woman must be at least 18 years old. The marriage needs to be solemnised in the presence of at least two witnesses

Dissolution

Dissolution of a Christian marriage is covered under the Divorce Act, 1869. As per Section 2 of the Divorce Act, 1869, in order to seek relief under this Act one of the parties that is either the petitioner or the respondent must be a Christian by religion.

Section 10 of the Divorce Act, 1869 provides instances as to when a Christian marriage can be terminated. The first and the foremost ground is that of adultery. In addition to that, a wife may initiate divorce proceedings against her spouse who has committed cruelty on her or is accused of rape, sodomy, bestiality. If one of the spouse converts to another religion, then also marriage may be dissolved. In case of unsound mind, sexually transmitted diseases and desertion of the petitioner by their spouse for a period equal to or more than two years a divorce can be sought on such grounds.

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Section 10A of The Divorce Act, 1869 prescribes a two or more years of separation period before a marriage can be dissolved by mutual consent. This provision was held arbitrary and offensive by the Hon’ble Kerala High Court in Saumya Ann Thomas v. The Union of India in the year 2010. The Hon’ble Kerala High Court held that the stipulated period of two years has to be read as one year because The Special Marriage Act’s Section 28(1), the Hindu Marriage Act’s Section 13B(1), and the Parsi Marriage and Divorce Act’s Section 32B(1) all stipulate a one-year period.

Recently in 2022, the Hon’ble Kerala High Court in Anup Disalva v. Union of India struck down the minimum separation period of one year as stipulated under Section 10A of The Divorce Act, 1869 being violative of the fundamental rights.

Author: Sonakshi Pandey,  A Student at Symbiosis Law School, NOIDA, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

1. Lakshmi Sanyal v. Sachit Kumar Dhar, (1972) 2 SCC 647
2. J.B. David v. Nilamoni Devi, 1952 SCC OnLine Ori 24
3. C.V. Subba Rao’s Family Law in India
4. Saumya Ann Thomas v. Union of India, 2010 SCC OnLine Ker 5197
5. Anup Disalva v. Union of India, 2022 SCC OnLine Ker 6415