Personal law is a law that identifies what law should be applicable to a person who is belonging to a particular religion in the country. In India, there are various different personal laws for various religious groups. There are five different personal laws for the different religious groups in India as follows: Hindu personal law, Christian personal law, Muslim personal law, Parsis personal law, and Jewish personal law. Affairs like marriage, succession, divorce, adoption, etc. are covered under these personal laws. In this article, we shall study historical background and salient features of the Indian Christian Marriage Act, 1872
Historical Background of the Act:
Many Centuries ago, Christians came to India and settled in this country when East India Company assumed ruling power in India and established its own courts. With the establishment of the Supreme Courts, the Common Law of England was made applicable to India on many subjects including marriage and divorce among the Christian community, on the ground that it was based on the principle of equity, justice, and good conscience.
The situation of converted Christians in British India during the nineteenth century was challenging. Primarily they were Muslims or Hindus who had converted to Christianity and their old personal laws no longer applied to them, so it was unclear what kinds of laws applied to them and their offspring. It was also impossible to apply English law in cases of succession, marriage, divorce, etc. because they weren’t even British. The situation then became a little uncertain and the need for a new personal law emerged because Indian Christians found themselves in a legal void which then resulted in the need for a new personal law. Between 1865 and 1872, a number of laws were passed in response to the need to control the legal situation of Indian Christians. Before the enactment of Indian Christian Marriage Act, 1872 the law relating to solemnization in India of the marriage of persons professing the Christian religion was guided by two British Acts, 14 and 15 Vict. C. 40 and 58 Geo. III C.84 and two Indian Acts, Acts 5 of 1852 and 5 of 1865. The laws regulating the solemnization of marriages among the Christian community in India is laid down by the Indian Christian Marriage Act of 1872. For the marriage to be valid under the Indian Christian Marriage Act of 1872, specific requirements need to be fulfilled. The Indian Christian Marriage Act, 1872 is applicable to Christians in the matter of marriage.
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The object of the Bill of Indian Christian Marriage Act, 1872 is to reduce into a smaller compass and simplify the existing law on this subject by the consolidation of the different enactments referred to and at the same time, to amend the law in those matters in which it has been shown to be defective.
According to the Canon Law, marriage is a conjugal union of a man and a woman which arises from a free consent of each spouse. A Christian Marriage in India is a contract and is usually solemnized by the Minister of Religion licensed under the Indian Christian Marriage Act, 1872. It can also be solemnized by the Marriage Registrar.
In Hyde v. Hyde, (1860) 1 and D 130 at 133 case, Lord Penzance defined a marriage as ” I conceive that marriage as understood in Christiandom may be defined as the voluntay union for life of one man and one woman to the exclusion of all others”. This definition has flaw because it emphasizes on the indissolubility aspect of the marriage.
In Nachimson v. Nachinsom, (1930) 1 and D p. 271 case, the Court observed that it should be the intention of the parties when they enter into marriage that it should last for life. Though, later on, it may be dissolved on any ground available to the parties including the irretrievable breakdown of marriage.
Who is Christian?
A Christian religious rite of sprinkling water on to a person’s forehead or of immersing them in water, symbolizing purification or regeneration and admission to the Christian Church. Thus Baptism is an act in which a person is immersed in water to symbolize the end of an old way of living and a new start. New-born are baptized. It is the beginning of Christian life.
In David v. Nilamuni Devi (AIR 1953 Ori 10) case the Court held that persons who are followers of the Christian religion are “Christians” and that baptism is not a condition precedent for professing the Christian religion. Hence a person who is not baptized can be a Christian with reference to the Indian Christian Marriage Act, 1872.
In Maha Ram v. Emperor (AIR 1918 All 168) case, the appellant Maha Ram was a Christian and baptized when a child. But he never professed Christianity. The Court held that if a person does not profess the Christian faith although he might have been baptized as a child, he cannot be regarded as Christian. Thus, only a person who professes the Christian religion is a Christian. Mere facts like dressing up as a Christian or attending a Christian school or being baptized as a child are not sufficient to treat that person as a Christian.
In Sujatha v. Jose Augustine (II (1994) DMC 442) case, the petitioner Sujatha was born as a Hindu belonging to Nair community and the first respondent belonged to Latin Catholic Community. Sujatha married with Jose and after marriage, Sujatha was baptized without her knowledge. Sujatha pleaded that both the baptism and the marriage have been conducted without her free will and are also not in accordance with the Canon law governing baptism and marriage. The Court held that if the baptism ceremony is conducted as an empty formality preceding the marriage ceremony and if the person has no faith in Christianity and a Christian way of life, he cannot be regarded as a Christian.
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Salient Features of the Christian Marriage Act:
- The Indian Christian Marriage Act, 1872 is applicable in matter of marriages. It contains 88 Sections in 8 Parts and 4 Schedules.
- According to Section 4 of the Indian Christian Marriage Act, 1872, every marriage between persons, one or both of whom is or are a Christian or Christians can be solemnized under the Act.
- According to Section 60 of the Act, the age of the bridegroom must not be less than 21 years, and the age of the bride must not be less than 18 years. The two parties to the marriage must give the wedding voluntary consent which cannot be received by misrepresenting evidence or by compulsion or by excessive influence. At the time of marriage, no party can have a living partner. The marriage must take place in the presence of an official who is allowed to issue a marriage certificate and at least two credible witnesses.
- According to Section 5 of the Act, gives list of certain individuals are appointed for the solemnization of marriages under this Act.
- According to Section 10 of the Act, the Christian marriages should take place between the timeframe of six in the morning to seven in the evening, the time for a Christian marriage ritual must be scheduled.
- According to Section 11 of the Act, a church or a chapel is the location where Christian marriage must be performed. Some special considerations and requests are granted that gives the time and place for the marriage ceremony to be flexible.
- According to Section 12 of the Act, written notice from any side, in the manner provided for in the First Schedule of the Act, by the Minister concerned, the parties would like the union to be solemnized. The notice must include name, occupation, and residence of all parties, the period during which the party involved was concerned They have lived in their place of residence and the church/private dwelling where marriage has to be solemnized.
- According to Section 16 of the Act, the marriage registrar is allowed to place the notice in any noticeable position in his office.
- According to Section 18 of the Act, each party to the marriage to appear before the Minister directly and to announce that there is no impediment to the marriage of parentage or affinity and that required consents have been received, mandated by statute. A certificate can be issued only after the expiry of four days after receipt of the notification, provided that its issuance is not prevented and that the parties have shown to the satisfaction of the Minister that there is no legal impediment to the issuance of the certificate.
- According to Section 25 of the Act, after the issuance of a certificate under section 17, the Minister is entitled, in the presence of two witnesses, to solemnize the marriage between the parties in accordance with the form or ceremony which the Minister might find fit to adopt.
- According to Section 26 of the Act, if the marriage is not solemnized within 2 months of the date on which the certificate referred to in section 17 is given, the certificate is invalid and the parties are not entitled to have the marriage solemnized without having a new certificate issued under section 17.
Conclusion:
If a person is professing Christianity and a Christian way of life, then only he is a Christian. Personal law is a law that identifies what law should be applicable to a person who is belonging to a particular religion in the country. The Indian Christian Marriage Act, 1872 is applicable to Christians in the matter of marriage.