Marriage, Divorce and Maintenance under various Personal Laws- II

Refer part-1 of the blog for Hindu and Muslim personal laws

CHRISTIAN LAW

Marriage:

Concept and Definition

Christians approach marriage as a covenant a relationship based on promises and commitment, not just feelings. The Catholic Church believes that Christian marriage is the union of a baptized man and woman who freely enter into a covenant of love with each other in Christ to give and receive love for the procreation of education of children.

The Indian Christian Marriage Act of 1872 consolidated the law related to the solemnization of marriages of persons in the Christian faith.[1]

Rituals

Jesus Christ spoke of marriage as instituted by God, and most Christians consider it a permanent union based upon mutual consent. Some Christian churches count marriage as one of the sacraments; other Christians confirm the sanctity of marriage but do not identify it as a sacrament. Since the Middle Ages, Christian weddings have taken place before a priest or a minister, and the ceremony involves the exchange of vows, readings from Scripture, a blessing, and, sometimes, the Eucharistic rite.

Lakshmi Sanyal Vs. Sachit Kumar Dhar[2]

The appellant filed a suit for a declaration that her marriage with the respondent was null and void and for other reliefs. The parties professed the Roman Catholic faith. The marriage was solemnized by a Minister of the Roman Catholic Church who had received episcopal ordination and was competent to solemnize the marriage under sub-s. (1) of s. 5 of the Indian Christian Marriage Act, 1872. The appellant claimed that she was a minor at the time the marriage was solemnized and the consent of her father or her guardian was not taken nor did she give her consent freely to the marriage. Further, the marriage was void because the parties were within the prohibited degree of consanguinity.

The High Court held that from the standpoint of Canon Law if the Roman Catholic church the objection to the validity of the marriage on the ground of lack of consent could not be sustained. The High Court expressed the view that the consent of the parents was not necessary as required under s. 19 of the Indian Christian Marriage Act since the marriage was solemnized by a person failing under s. 5(1), nor was there any provision in the India Divorce Act. 1869 which rendered a marriage null and void on the grounds of a minority of a party. On the question of the marriage being within the prohibited degree of consanguinity, it was found that since the consanguinity between the parties was of the second degree it was certainly an impediment in the way of the marriage under the Roman Catholic law; But the impediment could be removed by dispensation which was granted by the competent authorities of the church; for that reason the marriage could not be held to be null and void.

Divorce:

Christian marriage in India can be dissolved under Section 10 of the Indian Divorce Act of 1869. The petition can be presented either by the husband or the wife stating that the respondent:

1. has committed adultery
2. has ceased to be a Christian by conversion
3. suffers any incurable, unsoundness of mind.
4. suffers any venereal disease
5. Presumption of death
6. has willfully refused to consummate the marriage
7. Non-compliance of the decree of restitution of conjugal rights
8. Deserted the petitioner
9. Treated petitioner with cruelty.

Additionally, the wife can also petition the court for the dissolution of the marriage on three exclusive grounds that the husband is guilty of rape, sodomy, and bestiality. (Section 10(2))

By Section 10A (as amended in 2001) both parties can file for a divorce by mutual consent.

Reynold Rajamani & ANR Vs. Union of India & Anr.[3]

The appellants, who were husband and wife belonging to the Roman Catholic Community, were married under section 27 of the Indian Christian Marriage Act 1872. They filed a joint petition under Section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the District Court. The trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of. The Supreme Court allowed the appellants to amend their joint petition to enable them to rely on section 7 of the Indian Divorce Act 1869 read with section 1(2)(d) of the Matrimonial Causes Act 1973 of England and to seek divorce on the ground that they had been living separately for more than two years and had not been able to live together and that the marriage had broken down irretrievably, and that therefore they were entitled to a decree of divorce. The District Court however dismissed the petition holding that they were not entitled to rely on section 1 (2)(d) of the English Statute. In appeal, the High Court affirmed the view taken by the trial Court.

In the appeal to this court, it was contended on behalf of the appellants: (1) that the trial court and the High Court were wrong and that section 7 of the Indian Divorce Act 1869 incorporated the provisions of section 1(2)(d) of the Matrimonial Causes Act 1973 and that the appellants were entitled to the benefit of the ground for divorce as outlined in the latter enactment, and (2) that the Letters Patent jurisdiction enjoyed by the High Court in Matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce.

Maintenance:

Indian Divorce Act, 1869

Section 36- Alimony pendente lite:

In any legal action under this Act, whether it is initiated by a husband or a wife, and regardless of whether the wife has secured a protection order, the wife has the right to submit a request for interim alimony during the lawsuit.

This petition must be delivered to the husband, and if the court determines that the statements in the petition are truthful, it can issue an order requiring the husband to provide the wife with a fair amount of alimony while the legal proceedings are ongoing.

Section 37- Power to order permanent alimony:

The High Court, at its discretion, upon the issuance of a decree absolute that dissolves a marriage or a decree of judicial separation obtained by the wife, and the District Judge, if they see fit, upon the confirmation of any decree issued by them that dissolves a marriage or a decree of judicial separation obtained by the wife, may instruct the husband to provide security, to the court's satisfaction, for the wife. This security may take the form of a lump sum or an annual payment, not exceeding the wife's lifetime, and should be determined considering the wife's financial situation, the husband's ability to pay, and the behavior of both parties. To effect this, the court may arrange for the creation of an appropriate legal document involving all necessary parties. In such situations, the court can also order the husband to make monthly or weekly payments to the wife for her maintenance and support, with the amounts being determined at the court's discretion based on what is considered reasonable.

Section 38- The court may direct payment of alimony to the wife or her trustee:

Whenever the court issues a decree or order for alimony, it has the authority to specify that the payments be made directly to the wife or to a trustee appointed by the court, subject to the court's approval. Furthermore, the court can establish any necessary terms or limitations that it deems appropriate. If necessary, the court can also appoint a new trustee at a later time if it is considered advantageous to do so.

PARSI LAW

Marriage:

Concept and Definition

The Parsi Marriage is also regarded as a contract through a religious ceremony of Ashirwad is necessary for its validity. 'Ashirwad' literally means blessings. A prayer or divine exhortation to the parties to observe their marital obligations with faith. The parties must not be in the prohibited degrees of relationship. “Marriage” means a marriage between Parsis whether contracted before or after the commencement of this Act.[4] Section 3 requisites to the validity of Parsi marriage.[5]

Lily Thomas, Etc. vs. Union of India & Ors.[6]

A bigamous marriage is prohibited and has been constituted as an offense under Section 17 of the Act. Sections 4 and 5 of the Parsi Marriage and Divorce Act and Section 61 of the Indian Divorce Act.

Rituals

For the Parsi community (also known as Zoroastrians), weddings are a religious ceremony in which two individuals, a man and a woman are united. In Zoroastrianism, marriage within the community is encouraged and is greatly favored in religious texts.

Divorce:

Under Section 32 of the Parsi Marriage and Divorce Act, 1936, any married individual has the right to file for divorce based on one or more of the following grounds:

1. The marriage has not been consummated within one year of its solemnization due to the defendant's willful refusal to consummate it.
2. the defendant was of unsound mind at the time of marriage and remains so. However, divorce can only be granted on these grounds if the plaintiff was unaware of the defendant's condition at the time of marriage and files the lawsuit within three years of the marriage.
3. The defendant has been incurably of unsound mind for at least two years immediately before the lawsuit is filed or has suffered from a mental disorder to such an extent that the plaintiff cannot reasonably be expected to live with the defendant.
4. The defendant was pregnant by someone other than the plaintiff at the time of marriage. However, divorce can only be granted on these grounds if the plaintiff was unaware of this fact at the time of marriage, the lawsuit is filed within two years of the marriage, and marital intercourse has not occurred after the plaintiff becomes aware of the situation.
5. The defendant has engaged in adultery, fornication, bigamy, rape, or unnatural offenses since the marriage.
6. The defendant has intentionally caused grievous harm to the plaintiff, infected the plaintiff with a venereal disease, or, in the case of the husband, forced the wife into prostitution.
7. The defendant is serving a prison sentence of seven years or more for an offense as defined in the Indian Penal Code.
8. The defendant has deserted the plaintiff for a minimum of two years.
9. A Magistrate has issued an order for separate maintenance to the plaintiff, and the parties have not engaged in marital intercourse for one year or more since the decree or order was passed.
10. The defendant has converted to another religion.

Section 32B provides divorce by mutual consent.

A suit for divorce may be filed by both the parties to marriage together on the ground that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved.

Maintenance:

Section 125 of Criminal Procedure Code 1973-

(1) If an individual with adequate financial resources neglects or refuses to provide support for:

(a) His wife, who is unable to support herself.

(b) His legitimate or illegitimate minor child, whether married or not, who is incapable of self-support.

(c) His legitimate or illegitimate child (excluding married daughters) who has reached adulthood but is unable to maintain themselves due to physical or mental disability or injury.

(d) His father or mother, who cannot support themselves.

(e) The term "wife" also encompasses a woman who has been divorced by her husband or has obtained a divorce and has not entered into a subsequent marriage.

References

[1] The Indian Christian Marriage Act, 1872

[2] 1972 AIR 2667

[3] 1982 AIR 1261

[4] Section 2(6), The Parsi Marriage and Divorce Act, 1936

[5] The Parsi Marriage and Divorce Act, 1936

[6] (2000) 6 SCC 224

Disclaimer: The author affirms that this article is an entirely original work, never before submitted for publication in any journal, blog, or other publication avenue. Any unintentional resemblance to any previously published material is purely coincidental. This article is solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.

About the Author: Abhinav Raizada is a fourth-year B.A.LL.B student at the Faculty of Law, The Maharaja SayajiRao University of Baroda, Vadodara.