This article has been written by Ms. Arushi, a B.A.LL.B.(2022-27) student of Lloyd School of Law, Greater Noida, U.P.
Introduction-
Christianity is the most widely practiced religion in the world. More than 2.38 billion followers are there. Christianity began as a movement within Judaism at a period when the Jews had long been dominated culturally and politically by foreign powers and had found in their religion. The current Indian legal system has been significantly influenced by British rule in India. It is essential to understand the history of India because many of the laws that are passed by British are still in effect today. During the 19th century the conditions of Christians in British India was challenging. Since they were primarily Muslims or Hindus who had converted, their old religious laws no longer applied to them. So, it was not clear what kinds of laws applied to them and their offspring. It was also impossible to apply English law in cases of succession, marriage, divorce, etc. because they weren’t even British. Then the need for a new personal law emerged because Indian Christians found themselves in a legal void which then resulted in the need for a new personal law because there is no Christian law in the sense same of Hindu or Muslim law.
Sources of Christan law-
The four major sources of Christian law are:
- Scriptures – The Holy Bible is made up of books that were written over a period of 1000 years. It contains letters, history, genres, and poetry. The Bible is divided into two sections: the 1st is the Old Testament and the 2nd is the New Testament which contains the life of Jesus and the life of early Christian society. some Christian consider every word of the Bible correct whereas some consider the literature as the major ground for a moral foundation
- Traditions – traditions were interpreted as the teachings of Jesus Christ to his followers and then the followers recited the teachings to the Christian people. Orthodox Christians gave high importance to traditions.
- Reasons – Reasons like tradition have very high importance among the Christians, it is sometimes used to get an understanding of the Bible, there might occur situations when Bible and Traditions might come in conflict with reasons but for that reason would be neglected.
- Experience – Some people also consider experiences as an important source to understand Christian theology. Experience includes people’s thinking, their thoughts, and their five senses. The reason behind including experience as a source of Christian Theology is that whatever happens with the individual in his life is real, it was felt that Christianity must incorporate these experiences in it as well.
Meaning of Christan-
according to section 3 of the Act Christan means person who profess the Christan religion and Indian Christians includes descendants of natives of India converted to Christianity as well as such converts. Marriage between two persons if one of the persons is Christan then the marriage is governed by Christan 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 from section 4 to 9 conditions of a valid marriage is given. Under section 3 of the Act, it is mentioned that the parties of the marriage must be Christan or at least one of them must be a Christan and the marriage must be solemnized in accordance with the provisions of section 5 of the Act by a person duly authorised 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. The marriage needs to be registered. The marriage can be proved by producing entries from the register eyewitnesses to the marriage and subsequent conduct of the couple living as husband and wife can also be evidence to prove the factor of a Christian marriage. If the marriage takes place at bride’s mother place the signing of the marriage register is not essential under the 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 in that section are fulfilled.
Part II of the Act consists of Sections 10 and 11 which 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. There are exceptions – in case where a special licence permitting a clergyman of the Church is granted. Under 69 of the Act 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. The punishment provided is up to three years imprisonment.
Part III of the Act covers Sections 12-26, it deals with the notice of intended marriage and its publication before the actual marriage ceremony.
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 of the Act deal with marriages solemnized by or in the presence of a Marriage Registrar. 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.
Part VII deals with penalties which are incorporated in Sections 66-76 for making false declarations or signing a false notice or certificate.
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.
Essentials of a valid marriage-
Under section 60 of the Act
- The groom must not be below 21 years of age and the bride must not be below 18 years of age.
- Neither of the parties must have a spouse still living at time of marriage
- The marriage ceremony must take place in presence of a person licensed under section 9 and in the presence of two credible witness.
who is a senior marriage Registrar?
Indian Christian marriage Act,1872.
- The state government may appoint one or more Christians as Marriage Registrars for any District.
- When there are more marriage registrars in any District, one of them will be appointed as a senior marriage registrar.
- The magistrate of this District can act as a Marriage registrar.
Marriage dissolution-
Christian marriage in India can be dissolved under the Indian Divorce Act of 1869.
According to Section X A – both parties can file for a divorce by mutual consent.
Mutual Divorce in Christian Marriage Act. Under the Indian Christian Marriage Act, a couple can get legally divorced if they mutually agree to it. To make their divorce valid, both parties have to agree on the following grounds:
Adultery
Desertion for a period of two years or more
Cruelty, whether mental or physical
Conversion to another religion by one spouse without the consent of the other
Incurable mental illness of one spouse
According to Section X (I)- either party can file for divorce on the grounds that the other party is of unsound mind. There are two conditions:
The party must be medically certified as ‘incurable.’
The relevant medical symptoms must have been noted at least two years prior to filing for divorce. If the symptoms were treated at any point in time, but ultimately became incurable, the period of two years will be counted from the date when the disease was certified as incurable.
Under Section X (II) a woman can request divorce on three grounds- rape, sodomy and bestiality. A woman married under the Indian Christian Marriage Act of 1872 can seek dissolution of her marriage Under the Indian Divorce Act of 1869.
Adoption-
The personal laws of Christan do not recognize adoption. Adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act. A Christian has no adoption law. Christians have no adoption laws and have to approach court under the Guardians and Wards Act, 1890. National Commission on Women has stressed on the need for a uniform adoption law. Christians can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance. The general law relating to guardians and wards is contained in the Guardians and Wards Act, 1890. It clearly lays down that father’s right is primary and no other person can be appointed unless the father is found unfit. This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act.
Christan law of Succession-
Indian succession act 1925 deals with the Succession law of Christan.
Section 32 – devolution of property
The property of an intestate devolves upon the wife or husband or upon those who are of the blood relatives of the deceased, in the order and according to the rules contained in this.
Section 33 – the provision of succession is mention in case where intestate has left widow and lineal descendants, or widow and blood relation only, and no blood kindred.
Where the intestate has left a widow-
- Left any lineal descendants, 1/3 to widow, and the remaining 2/3rd to his lineal descendants, according to the rules
- If he has left no lineal descendant, but person kindred to him, ½ share to widow, and remaining ½ to kindred, in order and according to the rules hereinafter contained;
- If he has left no of kindred to him, the whole property shall belong to his widow
Section 34- where intestate has left no widow and where he has left no kindred. If he has left none who are kindred to him, it shall go to the government.
Section 35- rights of widower
A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband’s property, if he dies intestate.
Distribution where there are lineal descendants-
Section 36 rules of distribution- the rules for the distribution of the intestate’s property (after deducting the widow’s share, if he has left a widow) amongst his lineal descendants shall be those contained in section 37 to 40.
Section 37- where the intestate has left child or children only.
Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child,
The property shall belong to his surviving child, if there is only one,
Or shall equally divided among all his surviving children.
Section 38- where intestate has no child, but grandchild or grandchildren.
Where the intestate has not child but has left a grandchild or grandchildren and no more descendant through a deceased grandchild,
The property shall belong to his surviving grandchild if there is one,
Or shall be equally divided among all his surviving grandchildren.
Section 39- where intestate has left only great-grandchildren or remoter lineal descendants.
In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate,
Where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.
Section 40- where intestate leaves descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead.
References-
https://legalupanishad.com/christian-laws-in-india/
https://blog.ipleaders.in/sources-of-family-law/
https://www.legalserviceindia.com/articles/hmcp_adopt.htm