Coupled to debate — A marriage bill

The bill – if approved — would override the existing Indian Christian Marriage Act (1872) and the Indian Divorce Act (1869). It provides for divorce by mutual consent, long demanded by the community and grudgingly accepted by the Church. In this, it is a break from religious beliefs, where cruelty and desertion are independent grounds for divorce for men and women.

However, taking the cue of `gender-justice’ and `equality’, the bill provides for `maintenance for husband’ and `damages from adulterors and adulteresses’. While the latter gets this clause from the 1872 Act which was sourced from the time when adultery was the only ground for divorce accepted by the Church, the former is a lift from the Hindu Marriage Act, 1955.

“We have instances of Hindu women whose husbands wilfully resign from work and file for maintenance. In most cases, the woman has the custody of the children. When there is no clause for maintenance for children above the age of 18, why should able-bodied husbands be granted this right?” asks Flavia Agnes, noted advocate and scholar, who runs the legal aid cell, Majlis.

Agrees Virginia Saldanha, heading the Women’s Commission in the Archdiocese of Mumbai. Saldanha has forwarded Agnes’ critique of the Bill to the CBCI (Catholic Bishops Commission of India) with her comments. “In most families, even if the wife earns, the husband controls the finances. By the time, she is driven out of the house, she is virtually penniless,” Saldanha concurs. Neither does the Bill address the central question: wife’s right on the matrimonial home.

Agnes finds the Church’s recommendation ostensibly on the `demand of women’s organisations’, that restitution of conjugal rights be deleted, ill-advised. “If a woman has been thrown out and wants to get back to her house, this clause allows her an entry point for litigation,” she says.

This though is not the only point where the Church and organisations like Majlis, diverge.

Bishop Oswald Gracias who is studying the Bill, says the Church has opposed it on three grounds: it disallows a Church wedding between a Christian and a non-Christian. It equates a minister of the Church who performs the marriage with that of a marriage-registrar by making him culpable for invalid marriages, and the Church wants that the decrees of annulment given by the Church tribunal be recognised by civil courts.

“Marriages between Christians and non-Christians have been done by the Church for centuries. Why should it be discontinued? It is withdrawing a privilege,” Bishop Gracias said. Opposing action against ministers, he says that the Church has its own regulations that are followed traditionally and there have been no complaints. “We don’t impute motives to the Government,” Bishop Gracias said, “but we told the minister that it may be interpreted that way.”

Also, the Church believes that a decree from its tribunal should be accepted by the courts because it has inherent checks and would save the couple from going through it all over again in the courts.

While Agnes does not contradict the Church’s first two proposals, there are howls of protest regarding the `dissolution’ decree. “Divorce is after all a civil matter, why should the Church concern itself with it?” Saldanha asked. Agnes points out that while the Church would take steps like conciliation, mediation and arbitration with the consent of the parties, such consent can be reduced to a formality. “If a settlement has to be arrived, it is best left to the courts,” she says.

Agnes feels that given the conservative and anti-woman postures of the Church in issues like divorce, family-planning etc, such stipulations do not give women the confidence to approach the tribunal.

Quaintly enough, the Church has also demanded, that the term divorce be changed to `dissolution of marriage’. Opposing this, Agnes says it reveals the conservative stance of the Roman Catholic Church. She points out that the Indian Divorce Act has been around since 1869 and there was no objection to it.

“Considering that a large number of Christian couples get divorce under this Act, it would not be right now to say that the Christian community does not accept divorce,” she says.

As for Bishop Gracias, this decision was taken after a long debate that ended in 1994 when the Bill was first formulated. “We don’t think we want to get into it again,” he said.