Christian Law of Divorce in India - Evolution of The Law of Divorce in India

Evolution of The Law of Divorce in India

It was Whitely Stokes who framed the Bill on Indian Divorce. The Draft of the Bill was submitted to the several High Courts for their opinion and the communications received from the Judges at Calcutta and Bombay were laid before the Council of the Governor–General. Sir Henry Maine originally introduced the Bill on the 24 December 1862. While introducing the Bill, Sir Henry Maine stated in the Legislative Council thus: "This measure is obviously one of great importance…. It is substantially a consolidation measure. It puts together the English Statute Law on the subject in a more orderly form and in clearer language, and it incorporates the recent decisions of the Divorce Court. But in the main its principles are those of the Statute regulating the jurisdiction of the English Court of Divorce and Matrimonial Causes" "It is also to give effect to the policy embodied in the High Courts Act passed in 1861, (24 and 25 Vict. Ch. 104) and to the Letters Patent issued by Her Majesty for constituting the High Courts. The object of the High Courts Act seemed to have been not so much to create new branches of jurisdiction, as to constitute and redistribute the power, which already existed. The 9th clause gave power to Her Majesty to confer on the High Courts such matrimonial jurisdiction as she thought fit; but Her Majesty did not attempt to confer on the High Courts such jurisdiction as was exercised by the Divorce Court in England. The Secretary of State, therefore, requested the Governor-General to introduce a measure conferring a jurisdiction on the High Courts in India similar to that exercised by the Divorce Court sitting in London. Hence the Act." The Bill, after remaining for seven years before the Council of the Governor-General, received the assent of the Governor-General, on 26 February 1869.

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.

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