The Annulment of Marriage under the Indian Christian Marriage Act

December 10, 2023

The Annulment of Marriage under the Indian Christian Marriage Act

This article has been written by Ms Simran Priyadarshini, a 5th year BA LLB student of SOA National Institute of Law, SOA University, Bhubaneswar.

ABSTRACT

This article provides a comprehensive exploration of Annulment of marriages under the Indian Christian Marriage Act 1872. It begins with meaning of annulment of marriage, establishment of the act and conditions and requirements for the marriage to be legitimate. The article delves into the reason behind the act of Indian Christian marriage Act, 1872, describing the object of this Bill, the meaning of Christian in the Act, 1872 while describing the term that are governed by the act, divorce under the Indian Divorce act, 1869, grounds for dissolution of marriage, power of court to pronounce decree of dissolution under this act, stating various provisions relating to divorce under mutual consent.

Key case laws related to absence of collusion and power of court to pronounce decree of dissolution and divorce are discussed to highlight the legal precedents and complexities in adjudicating such disputes

INTRODUCTION

Christians arrived in India several centuries ago and made their home there. When the East India Company took over as the country’s governing body and set up its own courts. The Common Law of England, which was founded on the principles of equity, justice, and good conscience, was extended to India with the founding of the Supreme Courts. This included the Christian community’s marriage and divorce practices.

Three Acts of the Indian Legislature and two Acts of the English Parliament together comprised the legislation pertaining to the solemnization of marriages in India for individuals who identify as Christians. The Indian Christian Marriage Act was enacted in 1872. In India, there are several laws that address Christian marriages and matrimonial issues. The Indian Matrimonial Causes (War Marriages) Act, 1948, the Converts Marriage Dissolution Act, 1866, the Indian Divorce Act, 1869, the Marriages Validation Act, 1892, the Cochin Christian Civil Marriage Act, 1905, and the Indian Christian Marriage Act, 1872 are these.

What does the term “marriage annulment” mean?

Let’s learn what the meaning of an annulment of marriage is in order to prevent any misunderstandings. It is important that you understand what a marriage annulment is before choosing this choice.

An annulment is a formal declaration that the marriage has come to an end. An annulment is the process of declaring a marriage void or voidable. It is formally declared to be void, meaning that it is regarded as having never been in law. In India, there are various justifications for annulment.

The marriage will be automatically void if it is void ab initio, which indicates that it is regarded as invalid from the beginning. Nonetheless, the nullity of marriage declaration must be made. You must also be aware of the conditions that make a marriage eligible for annulment in order to follow the process. You must review the laws governing annulments of marriage in your nation. because other countries may have different provisions.

ESTABLISHMENT OF THE ACT

A legislation of the Indian Parliament that governs the lawful marriage of Indian Christians is the Indian Christian Marriage legislation of 1872. It was passed on July 18, 1872, and although it covers all of India, it does not extend to places like Jammu and Kashmir, Manipur, or Cochin.

The act states that a marriage is lawful if at least one of the partners identifies as Christian. Under the statute, a prospective couple may be married by an ordained minister of any church in India, a priest of the Church of Scotland, a marriage registrar, or a special licensee. A marriage certificate is given out by the marriage performer. This certificate is on file with the government-appointed Registrar of Marriage. The minimum age for a groom is 21, while the minimum age for a bride is 18, as is typical with other Indian marriage laws.

CONDITIONS AND REQUIREMETS FOR THE MARRIAGE

The following circumstances are the only ones that make the marriage lawful:

The minimum age requirement for the groom is 21.
The bridegroom needs to be at least eighteen.
The two parties agreement must be given freely, voluntarily, and without compulsion, undue influence, or fear of violence.
A certified marriage performer and two trustworthy witnesses must both witness the marriage.

Motive for the Indian Christian Marriage Act of 1872

This bill’s goal is to consolidate the several enacted laws pertaining to this topic into a smaller, more manageable package, simplify it, and make necessary amendments to the existing legislation where it has been demonstrated to be flawed. The Bill mandates that Native Christian parents or guardians must approve a marriage between their children if one of the parties is under eighteen years old. The only exception to this rule is if the minors have been completely removed from their parents or natural guardians and are not expected to be under their control as a result. The legal regulations pertaining to the filing of returns and the destruction of documents registering marriages solemnized by Native Christians are also not entirely clear.

The Bill specifies exactly how these weddings must be documented in every situation and handles record disposal. Finally, it expands the application of the Marriage Law to all locations within the territories of Native Princes in alliance with Her Majesty for marriages between British subjects professing the Christian religion. This replaces the fixed rates of fees in respect of marriages solemnized by or before Marriage Registrars with the authority granted to the Local Government to regulate such fees and their remission.

The Act of 1872 on Indian Christian Marriage: According to the Act’s Preamble, this Act was passed because it is necessary to revise and consolidate the laws pertaining to the solemnization of Christian weddings in India. The Preliminary section of the Act, which is broken into eight parts, defines the terms “Church of England,” “Church of Scotland,” “Church of Rome,” “Church,” and “Christians,” among other terms.

Interpretation of “Christian” in Act of 1872

Section 3 defines “Christian” as “people who profess the Christian religion,” and “Indian Christian” refers to both such converts and the Christian descendants of native Indians who have converted to Christianity. The Christian Marriage Act of 1872 governs marriages between individuals who are Christians at least in part. With the exception of the States of Travancore, Cochin, and Manipur, it covers all of India and offers a code in and of itself.

A marriage must meet the requirements outlined in Sections 4–9 of Part I of the Act in order for it to be recognized by the law. The marriage must have been formally consummated in compliance with Section 5 of the Act by a person properly authorized to do so, and the parties to the marriage must be Christians as defined by Section 3 of the Act, or at least one of them must be a Christian. Under the Act, the State Governments have the authority to grant and revoke licenses for the solemnization of marriages in favor of certain individuals.

The marriage must be consummated in accordance with the Act’s requirements and properly recorded in the marriage register kept for that purpose. It is possible to demonstrate the factor of marriage by presenting entries from this registry. For this aim, further evidence may also be presented. Versions of the marriage’s witnesses and the couple’s behaviour as husband and wife afterward have been said to be reliable sources of evidence for demonstrating the essential elements of a Christian marriage.

The bride’s mother’s home may also be the site of a Christian marriage; in this instance, the Act does not require the signing of the Marriage Register. Section 13 of the Hindu Marriage Act prohibits a divorce decision from dissolving a Christian marriage, even if one of the parties is a Hindu. If the requirements outlined in that section are met, a marriage consummated in accordance with the Christian Marriage Act and lawfully registered under the terms of the Special Marriage Act is lawful.

Sections 10 and 11 of Part II of the Act establish the general guideline that all marriages performed under this Act must take place in a church and be solemnized between the hours of six in the morning and seven in the evening. However, there are exceptions allowed in situations where a church minister is granted a special license. Under Section 69 of the Act, anyone who solemnizes a marriage after these hours, outside the church, without witnesses, and without a special license is subject to punishment. The maximum sentence stipulated is three years in jail.

Sections 12-26 of Part III of the Act deal with the publication of the notice of intended marriage prior to the marriage ceremony. It stipulates that an individual who plans to get married must notify the Minister of their choice—who they want to marry—in writing using the format found in the First Schedule to the Act. If the marriage is to take place in a certain church, the minister of religion is the one who must affix the marriage license in a prominent location within the church.

If the marriage is to take place in a private residence, the district marriage registrar will receive the notice from the minister of religion and post it in a prominent location within his office. A certificate from the minister of religion is required prior to the solemnization of the marriage. No sooner than four days have passed since the notice was received, may such a certificate be granted. It must also be demonstrated that there are no obstacles in the way of the certificate’s issuance and that doing so is not prohibited by law.

A new notice must be served and the marriage will become void if it is not solemnized within two months of the certificate’s issuance date. Before getting married, a juvenile must get the consent of their mother if there isn’t one, the consent of their living father, the consent of their deceased father, the guardian of the minor, or none at all. A minor cannot be legally married without this kind of consent.

Part IV of the Indian Christian Marriage Act, 1872 contains sections 27–37. It relates to the registration of unions between Indian Christians that are sanctified under this Act. These unions must adhere to the established regulations. Church of England clergy are responsible for officiating these unions and for providing the Archdeaconry with quarterly reports that include all marriage-related information.

Every entry in such a marriage must be signed by the couple as well as the person conducting the ceremony, and it must be verified by two reliable witnesses.

Sections 38–59 of the Act, which deal with marriages performed by or in front of a Marriage Registrar, are found in Part V. One of the parties to the marriage must give notice in the manner specified in the First Schedule to any Marriage Registrar of the district or districts in which they will be living when the marriage is to be consummated by or in the presence of a Marriage Registrar. Before a marriage can be formally celebrated, a certificate must be issued.

The Marriage Registrar issues the certificate, which expires after two months if the marriage has not been solemnized. After that, a fresh notification must be sent out. Following the solemnization of a marriage, it must be registered, with entries made in a certificate and marriage register book signed by the marriage registrar and both parties. Additionally, it must be properly authenticated by two reliable witnesses.

The Act’s Part VI addresses Christian marriage in India. This section, which contains Sections 60–65, states that although no prior notice is required, it is necessary to demonstrate that the prospective bridegroom and bride are at least 21 and 18 years old, respectively, and that neither of them has a spouse who is still alive. After taking an oath in front of two witnesses and a marriage officer, the couple are given a certificate of marriage. In the record kept for this purpose, entries are made.

Penalties for signing a fraudulent notice or certificate or making false declarations are covered in Part VII and are included in Sections 66–76. Section 193 of the Indian Penal Code has rendered certain crimes punishable. The maximum sentence stipulated is three years in jail.

Making a fraudulent statement ought to be deliberate. The Act also makes solemnizing marriages without the proper authorization illegal, with ten years in prison as the maximum penalty. Similarly, it is illegal to solemnize a marriage outside of the designated hours or without witnesses. If this happens, the offender faces up to three years in prison and a fine. It is not specifically forbidden for a Christian who practices Christianity to wed a non-Christian after participating in a non-Christian ceremony.

The Act’s Part VIII addresses several issues pertaining to weddings under its provisions. Minor irregularities do not render a solemnized marriage void under this Act. It is possible to fix the mistakes. Additionally, it grants the State Government the authority to set fees for a variety of purposes, including receiving and publishing marriage notices, issuing marriage certificates, searching record books or certificates, etc. It should be noted that despite calls for and suggestions for improvements, Christian law has remained unaltered, in contrast to certain other personal laws that have undergone modifications.

DIVORCE

The Indian Divorce Act of 1869 governs various matrimonial provisions as well as the laws pertaining to divorce for those who identify as Christians. If a Christian is involved in the proceedings, this Act is applicable. The Act is based on Section 7 of the English divorce law. The grounds on which a husband or wife may file for a dissolution of marriage are listed in Part III, Section 10 of the Act.

The Indian Divorce Act, which was passed a century ago, included some harsh and discriminatory provisions. For instance, there is gender discrimination because the wife must prove bigamy, cruelty, desertion, or conversion in addition to adultery for the husband to be granted a divorce, whereas the wife must prove adultery and other marital offenses.

In the case of Mrs. Zachariah v. Union of India, 1995 DMC 27 the contentious Section 10 was once more contested as unconstitutional, and the court ordered the Union to make a decision about revising the Act within six months.

In the case of Ammini E J. v. Union of India, AIR 1995 Ker 252 the Kerala High Court once more brought attention to the discrimination and invalidated some sentences to provide the petitioners with significant relief. The clause that states that a Christian wife must demonstrate that her husband engaged in “incestuous adultery” or “adultery coupled with cruelty or desertion” in order to file for divorce was struck down by the court.

The Indian Divorce (Amendment) Act, 2001 was passed in response to the aforementioned opinions, and it included a number of revisions to the original Act. A new provision was added to Section 10 of the Act, and Section 10-A was inserted as well. This Amendment Act of 2001 included revisions to Part IV, which deals with nullity of marriage, and Part III, which deals with dissolution of marriage.

Grounds for dissolution of marriage:

After the Indian Divorce (Amendment) Act, 2001 came into effect, any marriage that has been solemnized could be dissolved upon a petition filed with the district court by either the husband or the wife, on the grounds that, ever since the marriage was solemnized, the respondent:

Adultery committed by any of the participants
Has converted to another religion, thereby ceasing to be a Christian
Has suffered from an irreversible mental illness for a minimum of two years in the period leading up to the petition’s presentation.
If any of the party has had leprosy for no longer than two years.
has suffered from a contagious kind of venereal disease for a minimum of two years prior to the petition’s presentation.
has been absent from the public for seven years or more, as reported by individuals who would have known of the respondent’s existence had they known about it.
has purposefully chosen not to consummate the marriage, and as a result, it has not taken place.
if one or both of the parties have fulfilled their obligation to observe the two-year or longer respiration of marital rights

Authority of the Court to Issue a Dissolution Decree

In accordance with Section l4 of the Act, if the Court is satisfied based on the evidence that the petitioner’s case has been proven and does not find that the petitioner has been in any way engaged in or accessory to the consummation of the said form of marriage or the adultery of the other party to the marriage, or has approved the adultery complained of, or if the petition is presented or prosecuted in collusion with any of the respondents, the Court shall pronounce a decree declaring such marriage to be dissolved.

However, the Court shall not be obligated to make such a decree if it determines that the petitioner committed adultery during the marriage, or if the petitioner has, in the Court’s opinion, committed cruelty towards the other party to the marriage, or has abandoned or wilfully separated himself or herself from the other party prior to the adultery complained of and without reasonable excuse, or if the petitioner has engaged in willful neglect or misconduct of or towards the other party as has led to the adultery.

In this regard, unless conjugal cohabitation has been restored or maintained, no adultery shall be considered to have been tolerated within the meaning of this Act.

In the case of Nalini v. C.H. Isaac, AIR 19 MP 266 it was determined that even though the petitioner was guilty of adultery, she was entitled to a decree of dissolution of marriage because the respondent husband had generated the circumstances that led to the marriage’s dissolution by engaging in illicit intimacy with a different woman and by leaving the petitioner wife behind.

In Sahaya Barathy v. Anthony Sahaya, AIR 1981 Mad. 241, (1981) ILR 3, it was decided that even in cases where the defendant is not present, the court still has an obligation to carefully consider the plaintiff’s case and consider all of the oral and written evidence that was presented to it in order to determine whether or not the plaintiff has established a viable case.

Divorce by mutual consent

A new section 10-A, which outlines the requirements for a marriage dissolution by mutual consent, has been added after Section 10.

Under section 10-A a petition for dissolution of marriage may be filed in District Court by both parties to a marriage together, subject to the provisions of this Act and the rules made there under. This petition may be filed whether the marriage was dissolved before or after the Indian Divorce (Amendment) Act, 2001 went into effect, provided that the parties have mutually agreed that the marriage should be dissolved and have been living apart for a minimum of two years.

Co-respondent: Adulterer or Adulteress

Under section 11 if a husband or wife files a petition for dissolution of marriage alleging adultery, they must assign a correspondent to the alleged adulterer or adulteress, unless the court excuses them for any of the following reasons:

The petitioner is unaware of anyone with whom the adultery has been committed, that the respondent, who is the wife, is living a life of prostitution, or that the respondent, who is the husband, is living an immoral life.
Despite making reasonable attempts to find out, the petitioner is unaware of the identity of the accused adulterer or adulteress.
The purported adulterer or adulteress has passed away.

It was decided in the case of Madhusmita Nayak v. Simadri Nayak AIR 1997 Ori 162 that the purpose of Section 11 is to prohibit collusive divorce in whatever form. It is not just a matter of protocol to exclude the correspondent from the discussion.

Absence of Collusion:

A provision has been provided under Section 12 for the court to satisfy itself that there is no evidence of collaboration. It states that any petition shall be applied to any case that is subsequently dismissed. In any other circumstance, it may order the District Judge to take whatever action he deems necessary about the alleged conspiracy so that he can rule in the case’s best interests. The Indian Divorce (Amendment) Act, 2001 removed Section 17-A, which dealt with the appointment of an officer to carry out the responsibilities of the King’s Proctor.

Nullity

The Indian Divorce Act’s Part IV addresses a marriage’s nullity. Under Section 18, any husband or wife may file a petition with the District Court asking for the nullification of their marriage for any of the following reasons:

Respondent’s impotence at the time of the marriage and at the beginning of the lawsuit.
The parties natural, legal, or affinity-based consanguinity falls within the forbidden range.
When they are married, one of the parties is insane or irresponsible.
At the time of the marriage, the spouses were still alive, and the marriage was legally binding.
Either party’s consent was acquired by coercion or deception.

In the case of B.D. Cardoza v. Glady B. Cardoza, AIR 1997 Bom 175 the petition for a declaration of annulment of marriage was granted, and a decree was issued, despite the wife’s deception in obtaining approval to have her fallopian tubes removed and her incapacity to bear children concealed.

It was decided in the case of P. V. Sabu v. Mariakutty AIR 1998 Ker 86 ,I (1998) DMC 198 that the husband is entitled to a declaration of nullity of marriage on the grounds of fraud when a wife gave birth to a child after 203 days of marriage, the infant was not preterm, and the husband was unaware of her pre-marriage pregnancy.

CONCLUSION

In summary, the Indian Christian Marriage Act of 1872 is a significant law since it establishes a number of rules for the formalization of Christian marriages. In addition, it establishes grounds for divorce under the same. As is common knowledge, marriage represents a significant turning point in each person’s life. It is predicated not only on the parties’ inward love and affection but also on their mutual cooperation, understanding, and caring. Thus, this statute was enacted to safeguard such cooperation. It also covers specific legal pretexts for the solemnization of marriages.

REFERECES

December 10, 2023