An authoritative exposition of Christian law of divorce in India is given in the book Christian Law of Divorce by Advocate Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin,Kerala, India.
The Indian Divorce Act was enacted in 1869 to "amend" the then existing law on divorce and matrimonial causes of Christians, and to confer jurisdiction upon the High Courts and District Courts in matters matrimonial. It does not appear to be a comprehensive legislation on the subject. This is evident from the Preamble to the Indian Divorce Act, 1869 which states: "Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain courts jurisdiction in matters matrimonial…". It is pertinent to note that it was not to 'make' or 'consolidate' the law, but to 'amend' the law that the Act was passed. This means that there was some law then existing and the Divorce Act was to be part of that law. The concept of amendment in law postulates an antecedent law in force and in some cases the bulk of that antecedent law is kept alive and only the dead wood removed. Wherever there is no law, the legislature would specifically note the position. On the contrary wherever there is a law and when the legislature wants to consolidate and amend the law, such intention is expressed in explicit terms. For example the Preamble to the Indian Christian Marriage Act may be read in contra distinction with that of the Indian Divorce Act, 1869. Preamble of the former reads: "An Act to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion". Now, therefore, it becomes evident that the Indian Divorce Act does not consolidate the law of divorce, but it only amends the law and aims only at a limited intervention in the law by conferring jurisdiction on certain Courts to exercise the same in these matters. And in the exercise of that jurisdiction the Court was to act on the principles of English Divorce Courts as was provided under Section 7 of the Act.
At this juncture, it is of interest to note that even in England, the substantive law on matrimonial causes was not altogether abrogated by the Matrimonial Causes Act, 1857. Lord Merriman opined that the principles that the Courts in England must follow in nullity cases were those of the old Ecclesiastical Courts and that neither the statute nor the common law of England had interfered with the pre-Reformation canon law. Thus the Matrimonial Causes Act, 1857 was not a comprehensive one with reference to England either. The Matrimonial Causes Act of 1857 is the basic structure upon which the Indian Divorce Act of 1869 has been built. Therefore, for a proper appreciation and application of the provisions of the Indian Divorce Act, 1869 in India, it requires an examination of the law in England and its development through the centuries.
From early Saxon times, side by side with the civil law, there existed ecclesiastical law, even when the Court had jurisdiction in both civil and ecclesiastical matters. There was an intimate union of Church and State, a union in which the royal authority constantly upheld the authority and national position of the Church. The superior clergy took a major role in legislative activities and in the administration of justice as well as in general government. With the defeat of King Harold at the battle of Hastings in 1066 A.D, by William the Conqueror with the support of the then Pope, the practice of dealing with ecclesiastical and temporal affairs in the same court was abolished and the Bishop and the Archdeacon had his own Court. And the marriage law of England became the canon law. The substantive law that was administered in the Church courts,(Courts Christian) was, first and foremost, the Holy Scriptures in the so-called "Vulgate" version, the one made by St. Jerome in the fourth century. And a mass of specific regulations announced by various Councils, both general and local, as well as the decrees of Popes, had all the aspects of legislation and were treated as laws. All the compilations and collections were, from the sixteenth century, known as the Corpus Juris Canonici, (the Body of Canon Law) formed the basis of the law administered by the Church courts. An authority on history notes: "The ecclesiastical Courts had, certainly from the twelfth century undisputed jurisdiction in matrimonial causes. Questions as to the celebration of marriage, as to the capacity of the parties to marry, as to the legitimacy of the issue, as to the dissolution of marriage, were decided by the ecclesiastical Courts administering the canon law".
However, difficulties began to develop between Church and State. In 1164 A.D, King Henry II wanted to abolish many of the privileges of the clergy and forbade appeals to Rome. But later, the King had to give up his efforts. In 1532 A.D, King Henry VIII forbade marriage case appeals to the Pope in the Statute of Appeals. This was followed by the Act of Submission of the Clergy. Finally, when the King could not get an annulment of his marriage by the Pope, he proclaimed himself 'Supreme head in Earth of the Church of England', in the year 1534. By another Act, it was provided that dispensations for marriage could be given only by the Crown, but at the same time, there was to be no departure from the true Faith of the Catholic Christian Church. The Church courts became royal courts after Henry VIII, but retained their independence of the Common Law Courts. The older Canon Law was not repudiated, but a new canon law was built up on it. It is pointed out: "The influence of the Canon Law on English law in general is a chapter of English legal history that has not yet been written…….Further investigation of the interrelation of the law of the Courts of King and of the bishop is certain to give fruitful results".
Thus the Statutes subordinated the Church to the State, and the Church Courts to the law of the land. But it would be wrong to suppose that the Church was to lose her liberty in toto. The position that emerged out of the conflicts was that the state law was to have predominance over the Church law only when there was a conflict between the two. Otherwise, the Church law was to have its sway.
The right of the Church to have her own courts and her own law remained unchallenged. But an Act of 1836 had paganised marriages by providing for marriages before a Civil Registrar. With certain exceptions, the matrimonial law of the Church survived until 1857. The Matrimonial Causes Act of 1857 established a new temporal (civil) court to exercise jurisdiction in all matrimonial causes. Thus, marriage, which had once been a sacrament, became merely a civil contract in England and the logical sequel was that it could no longer be held to be indissoluble. This led to the introduction of divorce a vinculo by a temporal Court. And the Church lost the last remnant of her jurisdiction in matrimonial causes in England. The Established Church not only lost her jurisdiction in marriage cases, but also in her ministry and in her attempts to revise her canon law. She had to look to Parliament for its asssent for needed changes even in canon law.
But a closer look into these developments would show that the substantive law on marriage and the basis of its validity still continued to be the canon law. It can be found that the Matrimonial Causes Act, 1857 did not substantially differ from the substantive law contained in canon law as the Act was not a comprehensive legislation on the law of marriage and it only made certain amendments to the then existing canon law as is evident from its Preamble which reads: "An Act to amend the law relating to divorce and matrimonial causes in England. Whereas it is expedient to amend the law relating to divorce, and to constitute a court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolution of marriage: Be it therefore enacted…"
And the Courts continued to apply the principles of canon law for deciding the validity or otherwise of a marriage. This is reflected in the judgment of Lord Penzance in 1866 Lord Penzance, wherein he held: "Marriage as it is understood in Christendom is the voluntary union for life of one man and one woman to the exclusion of all others". And the above statement of law came to be accepted and acclaimed as 'definition of Christian marriage'. The statutory provision and the position of law remained the same even after the enactment of the Judicature Act, 1873. This Act finally vested the jurisdiction in matrimonial causes in the High Court of Justice (Matrimonial, Probate and Admirality Division). The various Acts that followed did not effect major changes in the substantive law. And the Supreme Court of Judicature (Consolidation) Act, 1925 specifically provided: "The jurisdiction vested in the High Court and the Court of Appeal respectively shall, so far as regards procedure and practice, be exercised in the manner provided by this Act or by rules of Court, and where no special provisions contained in this Act or in rules of Court with reference thereto, any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which it might have been exercised by the Court to which it formerly belonged". And such jurisdiction formerly belonged to the Ecclesiastical Courts in England. Therefore Lord Merriman laid down that the principles which the Court must follow were, in nullity cases, those of the old Ecclesiastical Courts and that neither the statute nor the common law of England had interfered with the pre-Reformation canon law.
If one goes through the entire statutory law of England from 1857 to 1925, it can be seen that the civil law had not specified any ground for declaration of nullity of marriage and those grounds remained the same as those provided under the laws of the Church. The statute came into being for the purpose of conferring exclusive jurisdiction on certain courts and to provide for grounds of divorce, which the Church had not recognised. The Indian Divorce Act, 1869 is to be understood and interpreted in the background of the development of the law in England, as explained above.
The object of the above measure was to place the matrimonial law administered by the High Courts, in exercise of their original jurisdiction, on the same footing as that of the matrimonial law administered by the Court for Divorce and Matrimonial Causes in England. In other words, the High Court should have the same jurisdiction as the Court for Divorce and Matrimonial Causes in England established under the Matrimonial Causes Act, 1857 and in regard to which further provisions were made by the Matrimonial Causes Act, 1859, and the Matrimonial Causes Act, 1860. It was further specified that by vesting the High Court with powers of the Court for Divorce and Matrimonial Causes in England, it was not intended to take away from the courts within divisions of the Presidency not established by Royal Charter any jurisdiction which they had in matters matrimonial. For example, a suit based on the ground of non-observance of the essential ceremonies of marriage was still to be instituted in the ordinary court of civil jurisdiction and not in the High Court. Whereas, when a marriage is solemnized outside India, the matrimonial courts in India have no jurisdiction to grant a decree of nullity. In such cases, the jurisdiction of the civil court to entertain a suit for declaration that the marriage is a nullity, is not barred by the provisions of the Act. The Civil Court can grant such a relief under section 42 of the Specific Relief Act, because it involves the adjudication of a status. Moreover, the jurisdiction of the matrimonial courts under this Act does not extend to entertain a suit for a declaration that a certain marriage is valid. Further, when a marriage is void under the provisions of sections 4 and 5 of the Indian Christian Marriage Act of 1872, again it is the ordinary court of civil jurisdiction that should be moved for a decree of nullity of marriage and not the matrimonial court under the Indian Divorce Act, 1869. But in the course of an adjudication of matrimonial dispute, if the validity of a marriage is challenged otherwise than under the provisions of the Indian Divorce Act, the matrimonial court is not precluded from looking into the validity or otherwise of a marriage. However, by virtue of the provisions of Explanation (b) of section 7 of the Family Courts Act, 1984, the jurisdiction of the Civil Courts in matters matrimonial is now being exercised by the Family Courts in India. The above fact situation would show that the Divorce Act of 1869 is not to be construed as a comprehensive legislation in these matters.
The Draft of the Bill had been prepared to give effect to the Secretary of State's instruction, but some variations from the English Statutes in respect of procedure have been adopted. For the purpose of uniformity in procedure in the several branches of jurisdiction, the Bill provided for adoption of the procedure of the C.P.C, instead of the Rules of Her Majesty's Court for Divorce and Matrimonial Causes in England, as is evident from section 45 of Divorce Act of 1869.
Now, therefore, it emerges that the courts in India were to grant relief based on the principles and rules of the Court for Divorce and Matrimonial Causes in England; and the English Courts, in turn, were to follow the principles and practice of the old Ecclesiastical Courts. In other words, the Courts in India granted relief in matrimonial causes (under the Indian Divorce Act, 1869) on the basis of the principles evolved by the old Ecclesiastical Courts in England. Question arose as to what extent those principles can be applied here. It was held that in all matters, which are provided for in the Code of Civil Procedure, the Courts must regulate their procedure in accordance with the provisions contained therein. But in the absence of any provision on the subject in the Code of Civil Procedure, the Courts in this country are to follow as nearly as may be, the practice of the English Courts, and the decisions of those courts are to be taken as a guide to the Courts in India, under the Divorce Act of 1869. The Supreme Court also had an occasion to dwell on the applicability of English law in these matters. The Supreme Court held that the rules laid down by the House of Lords would provide the principles and rules, which the Indian Courts should apply to cases governed by the Indian Divorce Act. But the Court asserted that it was unthinkable that legislation whenever made by the Parliament of a foreign state should automatically become part of the law of another sovereign state. According to it legislation by incorporation can never go that far. The Kerala High Court also has had several occasions to deal with the question while tackling intricate issues in matrimonial matters and took recourse to the Principles of English Divorce Courts and granted relief. However, with the 2001 amendment of the Divorce Act of 1869, section 7 is deleted, but no guiding principles are incorporated to fill the vacuum.
Since 1869, the Indian Divorce Act did not undergo any major change and thus Christian law on divorce in India remained embedded on the principles of Victorian vintage for more than a century and a quarter. Even though there were pressing demands to update the law to be in tune with the times, both in and out of Parliament at least from 1962 onwards nothing worthwhile could be done for about half a century. While so, the Law Commission of India in its 164th Report on "The Indian Divorce Act (IV of 1869)" presented to the Government in November, 1998 has, inter alia, recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects of the Christians in India. The Commission, relying on the judgments and observations of certain High Courts, has also urged the Central Government to take immediate measures to amend section 10 of the Indian Divorce Act, 1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated vis a vis male spouses in obtaining a decree of dissolution of marriage. The Commission also urged the Government to amend suitably sections 17 and 20 of the Act to do away with the procedural requirement of obtaining confirmation from the High Court in respect of a decree of dissolution of marriage or decree of nullity of marriage, as such procedure is a long-drawn and strenuous one as is provided in the Indian Divorce Act, 1869, so as to remove the hardships of all concerned.
Further, the Commission on Review of Administrative Laws which was set up by the Central Government on the 8th May,1998 has, inter alia, recommended repeal of various enactments including the Indian and Colonial Divorce Jurisdiction Act, 1926, the Indian and Colonial Divorce Jurisdiction Act, 1940 and the Indian Divorce Act, 1945 which were the British Statutes relating to Christian Personal Law that were in force at the time of making the recommendation. In order to give effect to the recommendations of the Law Commission of India in its 164th Report and the recommendations of the Commission on Review of Administrative Laws, at last, the Indian Divorce (Amendment) Act, 2001 has been enacted. Now, therefore, the intention of the Legislature in bringing out the Indian Divorce (Amendment) Act, 2001, is to be ascertained with the aid of this background of the law. However, it is made clear that the amendment has no retrospective operation.
There are certain noteworthy deletions from the Act. First and foremost is the deletion of the right of a husband to claim damages from the adulterer. This has been done on the basis of a fundamental change in the concept of the status of women. Formerly, women were considered as the property or chattel of men. Any trespass into that property was considered as an actionable claim. With deletions of sections 34 and 35 of the Act, the husband now cannot claim damages or cost from the adulterer of his wife. Consequently an added liability is thrust on the woman who happens to break into the matrimonial home of another. Previously, no woman was liable to be added as a party to the divorce proceedings as a co-respondent. Now, with the changes effected in section 11, the woman is also to be impleaded as a co-respondent.
Yet another change is the removal of discrimination against women in the matter of settlement of property. Prior to the amendment, the Courts were empowered to settle the property of the wife, if she is found to have committed adultery, for the benefit of her husband and children of the marriage. (See section 39 of the unamended Act). There was no corresponding provision to penalise a husband who is guilty of adultery and hence it could be considered discriminatory to women. This section is deleted, whereby both husband and wife are put on an even keel. In fact, what ought to have been done was that the property of the husband also should have been brought under the same disability. What is forgotten in the process is the welfare of the children. In the whole process, the rights of the children of broken marriages have not been properly protected. Some serious thought ought to have gone into this aspect. In almost all the cases of divorce or nullity, it is the children who bear the brunt, for no fault of their own.
The activists and the reformers have had no time to think about the hapless children of broken marriages. There ought to have been some provision made to see that reasonable provision is made by the parties for their children before a divorce is granted, and a provision should have been made to make it mandatory for the Courts to insist that such provision be made to its satisfaction, especially when the application is filed under mutual consent.
With the 2001 amendments, the procedural aspects under the Act of 1869 has been substantially altered to reduce the miseries of parties in a divorce proceeding. Now a Family Court can grant a decree of nullity of marriage or divorce at the first instance and the same would become final if no appeal is preferred within the period prescribed for the same. Confirmation by a Special Bench of the High Court as was required, has now been done away with. But the amendment has only prospective operation. In addition, with the enactment of the Marriage Laws (Amendment) Act, 2001, the provision for alimony has been made more beneficial to women. Formerly, there was an upper limit of one-fifth of the income of the husband as payable towards alimony. Now, this upper limit of one-fifth has been removed and the quantum of alimony is left to be decided by the Court in the circumstance of each case.
However, there are many incongruities in the provisions under the Divorce Act after its amendment. With the deletion of the words "District Court" from section 16 of the Act, the cumulative effect is that a District Court can now issue a decree absolute at the first instance whereas a High Court can only pronounce a decree nisi at the first instance which has to be made absolute after the expiry of a period of six months from the date of the said decree. As a result the District Court is conferred with more powers than the High Court in this regard. There is total non-application of mind on these aspects by the Legislature. However, with the amendment of sections 17 and 20, the requirement of confirmation of the decrees passed by the District Court/ Family Court has now been done away with, which, in fact grants great relief to parties, who invoke the jurisdiction of the District Court or the Family Court.
But Parliament has miserably failed to incorporate specific provisions as to jurisdiction of the Courts to entertain petitions or suit under the Act. The age-old concept of the place where the parties have last resided together is still retained in the matter of High Courts. The attempt made to confer jurisdiction on District Courts/Family Courts in whose jurisdiction the marriage was solemnised has been worded in clumsy language in subsection 3 of section 3. The District Court gets jurisdiction if the marriage was solemnised under this Act within its jurisdiction. For that matter, no marriage is solemnised under this Act and there are no provisions under this Act dealing with solemnisation of marriages. In fact the provision in the Act of 1869 that the proceedings ought to be instituted in the place where the parties reside or last resided together, has been creating a lot of confusion, trouble and cost to the litigants and the Courts in the past. Parties might have last resided together at places beyond India, or at places outside their State and on separation they might have got settled down at their respective native places. To drive them to a place where they last resided together to seek matrimonial reliefs is nothing short of harassment to the core. It is pertinent to note that the Marriage Laws (Amendment) Act, 2003 has also been not made applicable in the case of proceedings under the Divorce Act. Again, the Amendment has not specified as to whether it is retrospective in operation and no specific provision has been made regarding pending proceedings and especially that of confirmation proceedings pending before the High Court.
Further, the Indian Divorce (Amendment) Act, 2001, has failed to specify the jurisdiction of the High Court vis-à-vis the District Court/ Family Court. Under section 4 of the Divorce Act, as it stands amended, the jurisdiction now exercised by the High Courts in respect of proceedings under the Act shall be exercised by such High Court and by the District Court subject to the provisions contained in the Act. The historical evolution of the law shows that the High Court exercised original jurisdiction in matrimonial matters even prior to the enactment of the Indian Divorce Act, 1869. That being so, the original jurisdiction of the High Court has never been interfered with under the Act of 1869 and all pending suits in the High Courts were to be dealt with under the Act of 1869 as specified in Section 6 of the Act. Even in the Indian Divorce (Amendment) Act of 2001, no change has been made in section 4 or section 6 of the Act of 1869. Further, section 16 provides that every decree for dissolution of marriage made by High Court shall in the first instance, be a decree nisi. And, under sub section (1) of section 3 read with section 4, makes it clear that a petition can be filed in the High Court for the area where the husband and wife reside or last resided together. Again, the appeal provision under section 56 also adds strength to this position where it is provided that an appeal can be filed against a decree or order of a High Court made on appeal or otherwise, when the High Court declares that the case is a fit one for appeal to the Supreme Court. This view stands strengthened on an analysis of the statement of objects and reasons for the Indian Divorce (Amendment) Act of 2001. From the statement of objects and reasons for the Act, it is evident that the intention of the Legislature was only to obliterate gender discrimination and to do away with the procedural requirement of confirmation from the High Court in respect of decrees of nullity and divorce granted by the District Court. Therefore, obviously, the Legislature did not interfere with the provisions dealing with jurisdiction of Courts. The Forms given in the Schedule have not been amended. As per the Forms, petitions can be filed in the High Court or in the District Court. In short, the Indian Divorce (Amendment) Act, 2001, has conferred wider powers on the District Courts/Family Courts and it has done away with gender discrimination writ large in the various provisions of the Act but has not substantially affected the Original Jurisdiction of the High Court.
However a different approach to the question of jurisdiction of the High Court is also possible. It can be argued that even though the original jurisdiction of the High Courts are still preserved, as sections 10, 18, 22, 32 etc enables a petitioner to move the District Court only and that the provisions enabling the High Court to exercise original jurisdiction will be attracted only in the case of exercise of jurisdiction under section 8 of the Act. In this context it can be observed that the High Court can exercise its discretion in the matter of exercise of jurisdiction and if the Court is satisfied that invoking of the jurisdiction of the High Court is not with malafides so as to harass the respondent, the High Court may still exercise its original jurisdiction in appropriate cases.
It is in this state of confusion that the High Court of Kerala took suo motu Proceedings to decide on the question of exercise of jurisdiction by the District Court/ Family Court viz-a-viz the High Court after the Amendment Act of 2001. It was held that as a result of the amendments carried out by Act No. 51 of 2001, the original jurisdiction of High Court in matrimonial matters under the Divorce Act is taken away except to the limited extent retained under Section 17. The original jurisdiction is now confined to the special power of the High Court under Section 17 to be exercised in the circumstances indicated therein. The view taken by the learned single judge in Sherly Thomas v. Johny that, after the amendment of section 10 and 18 of the Indian Divorce Act, the High Court lacks jurisdiction to entertain petitions under section 10 and 18 of the Divorce Act was approved by the Special Bench. Apart from the limited area under section 17, the original jurisdiction in matrimonial matters under the Divorce Act now rests exclusively with the Family Courts, in areas where they are in existence, and in other areas with the District Courts.
It was further held that in matters where decrees nisi have been passed by the High Court, the decrees nisi would have to be confirmed by the High Court by following the procedure prescribed under section 16 of the Divorce Act. And it was also held that all the Original Petitions under the Indian Divorce Act pending in the High Court on 3rd October 2001 shall continue to be heard and disposed of in accordance with the unamended Indian Divorce Act, 1869,for that would be consistent with the provisions of section 6 of the General Clauses Act. Since the amending Act has come into force from 3 October 2001 and as it has no retrospective effect, all petitions filed thereafter in the High Court must necessarily be transferred to the District/Family Court, whatever be the stage. In cases where decrees were already passed prior to 3 October 2001, they are to be disposed of in accordance with the procedure in Section 20. Any other view would mean depriving the litigant of the benefit of confirmation of the decree as also the right of appeal, which would not be available in their cases.
Both the Legislature and the High Court still failed to advert to a vital issue in this matter. What law and what procedure would apply to matters instituted prior to 3 October 2001 before the Family Court/ District Court and pending as on 3 October 2001. Whether decrees passed after 3 October 2001 in such cases would still require to be confirmed by the High Court. It appears that as the High Court has already held that the amendment Act of 2001 is not retrospective in operation, decrees passed in such pending matters as aforesaid still require to be confirmed by the High Court, as otherwise such decrees will have no legal validity. In spite of all the shortcomings, the Indian Divorce (Amendment) Act, 2001, is by and large a welcome measure.
Gender discrimination writ large on various provisions in the Act has been amended and gender equality has been made almost a certainty. This is more so in the case of grounds for divorce as provided in section 10 of the Act. As far as the Kerala Christians are concerned, it has helped men more in so far as the grounds for divorce are concerned. Women were already having sufficient grounds to seek a divorce on account of a decision of the Full Bench of the High Court in Ammani E.J Vs. Union of India. After the present amendment, both husband and wife can seek a divorce on the grounds of,
However, the wife has been permitted to sue for divorce on additional grounds if the husband is guilty of:
All these years, Christian spouses were compelled to mudslinging each other if they desired to go in for a divorce. Now section 10- A is added under which mutual consent has also been made a ground for divorce.
Setting priorities: the Canadian experience in communicable disease surveillance. (speech by Anne O. Carter of Canadian Medical Association) (Proceedings of the 1992 International Symposium on Public Health Surveillance) (Transcript)
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