Don’t tamper with customary law

The Indian Divorce Act of 1869, applicable to Christians throughout the country, is undoubtedly an outdated legislation. Section 10 of the Act, providing grounds for divorce, is the most criticised of all its sections on the ground of being discriminatory against women. Different high courts and the Law Commission have found the section, providing for adultery as the sole ground on which a man can seek divorce but requiring a woman to prove desertion or cruelty besides adultery, discriminatory against women. There is unanimity among all concerned about removing the gender bias of the section. Likewise, all concerned agree on removing the existing requirement of a decree of divorce passed by a district court, to be confirmed by a full Bench of the High Court, as a time-consuming process of harassment.

The Act does not provide for dissolution of marriage by mutual consent presumably because marriage is not a contract for Christians but a sacrament wh- ich cannot be annulled by mutual consent. However, even in the Christian countries of the West, law enables a married couple that finds their marriage broken irretrievably to get it dissolved by mutual consent. It was felt that the Act, therefore, should be amended to incorporate such a provision.

The three changes on which unanimity exists could be brought to the statute book by merely amending the Indian Divorce Act of 1869 leaving the Christian Marriage Act of 1872 unto-uched. This is what the Law Commission, in its 164th report, has recomme-nded: “…the provisions contained in sec- tions 17 and 20 are only procedural in nature and there is absolutely no possibility of any member of the Christian community objecting to amendments suggested herein. Section 10 of the Act also needs to be amended suitably so that the female spouses are not discriminated vis-a-vis male spouses in obtaining divorce, as indicated by us in paragraph 1.5.2 above. Indeed, the offending portions have been already struck down by Kerala and Andhra Pradesh high courts and there is not a murmur against the said decisions by any member of the Christian community. The Law Commission recommends that at least these amendments be made without any delay.”

However, the government has opted for the Christian Marriage Bill, 2000, which, of course, contains the welcome changes in the divorce law as well. While there is no controversy over the divorce-related provisions, there is much resentment about the introduction of a marriage law, especially among those like the Travancore-Cochin Christians, about any substitution of their customary law based on canon law. Even if the provisions of the proposed Bill about solemnisation of marriage are not against their interests, there is no need to impose such a law on them as there has been no demand for it from within the affected community.

The Catholic Church, the Orthodox Church to which I belong, and many other churches have exhaustive customary laws providing for marriage and even dissolution of marriage. The ecclesiastical courts and tribunals with original and appellate forums of dispute adjudications grant a decree of nullity when a marriage is void ab initio or voidable. The ecclesiastical forums have been working exceedingly well. But the trouble arose when courts took the view that their decrees had no force of law. It is a travesty of justice that, while courts recognise a marriage solemnised by the church, it does not recognise a decree of nullity granted by it.

On the eve of the 21st Century, it cannot be insisted that everyone should accept the decree of ecclesiastical courts and that, too, in a secular country. But when both the husband and the wife on their own free will prefer an ecclesiastical tribunal to a civil court, there is no reason why they should be denied their choice. When amending the Indian Divorce Act, 1869, the government should also provide for recognising the jurisdiction of ecclesiastical courts simultaneously with that of civil courts.

The writer is a bishop of the Malankara Orthodox Syrian Church