Hello World! Christian Divorce In India

Christian Divorce in India

Early this month Kerala High Court has delivered another verdict striking down the outdated provision of a religious personal law and passing a decision regarding divorce upholding the provision of the Indian Civil Code. The difference is that this time it was the couple who asked to be judged by the norms of the Civil Code and both were in agreement about this, regardless of their religious underpinnings and the provisions of their Personal Law.

The Christian Personal Law provides for a waiting period of two years before a divorce can be granted.

However, this couple’s marriage had been only a little more than a year old. The lower court had struck down their appeal for divorce by mutual consent, asking them to wait till two years were completed. The couple appealed to the High Court and asked to be judged by the Indian Civil Code, which provides for a waiting period of only one year and is applicable to the Hindu and Parsi Marriages as well. The couple’s counsel argued for equality before law of all religions and the discriminatory view of the Christian Personal law regarding the waiting period in this regard. The Kerala High Court upheld their appeal and granted them a divorce.

In Hinduism as well as in Christianity, there was traditionally no concept of divorce in a marriage. Hence, originally Indian Civil Code and Hindu Marriage Act had the provision of a two years’ waiting period before a divorce could be granted. This was done keeping in view that maintenance of marriage was regarded as more acceptable by the society than divorce. However, later with changing times, the waiting period before divorce was cut down to one year in the Civil Code and was applied to the Hindu Marriage Act. However, the waiting period for Christians in India remained as two years. The said couple had appealed against this.

In this context, it should be noted that especially the Catholic Church everywhere is unified in not validating a divorce from the theological perspective. Thus, a divorced Catholic couple does not have any standing as far as the Church is concerned. However, the Indian Constitution recognises divorce for all communities and many Christian couples file for divorce.


Here, it is noteworthy that while the rest of India struggles to make its Civil Code valid in the face of the Personal Laws of different communities even after 62 years of Independence, the state of Goa has enjoyed a common Civil Code since the times of Portuguese rule. Although the Portuguese rule had its share of exploitations and oppressions to make in Goa, it gave a fair Civil Code to this Colony which stayed in place even after Goa’s independence in 1962. This Code makes it binding for the residents of Goa to register all marriages, divorce was allowed equally for all communities and in the case of a divorce, it provides for four different routes for division of property – communal ownership requiring an equal division of property, absolute separation of property, separation of assets that the couple owned before marriage from the communal property and the dotal regime. In 98% of the cases the concept of communal property is applied which means that in case of divorce the wife gets equal share in the property. Although this is also provided for in the Indian Civil Code, in other parts of India the Personal Laws often prevail over the Civil Code. This keeps the Goan Christian women in an advantageous position vis-a-vis the women in other parts of India.

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Comments
24 Responses to “Hello World! Christian Divorce In India”
  1. manchitra says:

    The wife getting a equal share is commendable. What happens if the wife gets married again. Can she still keep her ex- husband’s share.

  2. Chitra Nayak says:

    I also blog under manchitra’s name hence logged in with that identity.

  3. Archana says:

    Hi Chitra,
    That’s an important question. Usually, if the wife marries again, she loses the maintenance she was getting from her husband. As regards the property, I guess she keeps the peoperty that was hers, but has to give up the part that came to her from the husband’s family. But I’m really offering a layperson’s viewpoint.

  4. Arati says:

    Hi Archana,

    The article is interesting, useful and relevant for today.

  5. John Burgess says:

    I think the court came to a reasonable and just conclusion. Divorce is messy on many levels. It need not become over-complicated, however.

    The Catholic Church does not recognize the validity of divorce, period. It sees a married couple as married for all time, never mind what a civil court may say. Thus, a divorced person re-marrying becomes a bigamist in the eyes of the church.

    That’s fine, as far as church-related affairs are concerned. It should not spill over to the secular sector, however, nor should the rules of any other religion.

    BTW, the Catholic Church does permit ‘annulment’, a declaration that a marriage was deficit from the start (usually due to concealed information). How willing the Church is to grant an annulment has varied over time. In many recent cases, though, it has been–in effect, if not in name–a divorce.

    In common-property states, once property is divided through a divorce, both parties have their share for all time. Usually there is a clause in the pertinent laws that prevents certain kinds of property–e.g. gifts given specifically to one party–to be excluded from the division. Once the division is made, that’s that.

  6. rushda says:

    you’ve neatly highlighted the problems face by humans in the conflict between religious laws and secular laws. both. religion and the secular state, give an identity to an individual. and it is the disagreement on subjects between both that leave individuals with confusion and suffering.
    good work archna.

  7. Aafke says:

    Good decision.

    Actually I thought the Catholic church can dissolve marriages, for one if the marriage has not been ”consumated” a divorce is possible, or by special dispensation and application to the pope.
    Knowing the Catholic church this would cost you a packet. And I suppose you’d need a high positioned cleric to lobby for you. And your chances would be very low.

    Of course at the time the church started to get interested in marriage (and the chances for blackmail and more revenue dawned on them), and they made up the rules for marriage, divorce wasn’t really an issue as so many women died in childbirth anyway.

  8. oby says:

    Thank you very much for the insight into Christian marriage and divorce in Goa in particular.

    The rules in the USA are the same as far as I know. when couples divorce most of the time the marital property is split in half. There are some states where it isn’t automatically done, but it that case it is judged depending on the situation prior to the marriage and after the marriage. We have something called a “prenuptial agreement”. That document is drawn up prior to the marriage and stipulates the property that each person will take with them after the marriage and it also stipulates the marital support each will receive. It is not only for women…if the woman is wealthier than the man she might actually provide support for him.

    I am very happy that the women in Goa are getting a fair shake when it comes to divorce. I hope at some point that will be able to be extended to all women including Muslim women who fair poorly comparatively speaking.

  9. Archana says:

    Thanks, Rushda and Arati.

    Oby,
    Thanks for that perspective of the divorce laws in the US. The Indian Civil Code provides for equal division of property and maintenance for a woman who is not working. This is because Indian society considers the husband as the provider for the wife. Hence, earlier, the maintenance was provided for all divorced women in the Civil Code. But later it was argued that the working women who are in a position to support themselves don’t need maintenance. Hence, the law was changed and now the economic condition of the woman is taken into account before settling her maintenance amount. There is no provision for a wealthy woman maintaining her husband as far as I know.
    For the Muslim women it is an ongoing legal battle to get maintenance as we have seen in an earlier post on this blog.

    Since divorce is still not very common in India as the society doesn’t view it with a positive attitude, the practice of prenuptial arrangement is not prevalent here. But I think many husbands argue for retaining the property of their ancesters on ground that their ancestral property should not go out of the family because of divorce. hence, as far as I know, the ancestral property has been made inalienable and has to be passed down from one generation to the other – daughters having an equal share in it with the sons. But the property that the husband and wife earn has to be equally divided.

    Again, the Muslim law is different, which provides for the absolute separation of the property. In that case, it is seen who legally owns a property and it goes to that person after divorce.

    However, I am speaking as a layperson. I don’t know what the absolute legal position is. I know the Civil Code provides for the equal division of the property, but there have been debates about working women and who legally owns a piece of property and also about the ancestral property.

  10. Archana says:

    Aafke,
    Thanks for your information. It’s true that divorce is allowed on grounds of non-consummation of the marriage. But even if this doesn’t require lobbying and heavy expenses as you say, it makes it difficult for a large number of couples to obtain divorce, who have children. In their case, the rule of non-consummation can’t be used. You are right that the Church made these rules in a period when divorce wasn’t very common. I feel every religion should move with times and reinterpret its laws with the changing needs of the time. If only all religions did that, there would be much less problems in the world.

  11. Archana says:

    John,
    Thanks for all that information. You are very right that religion should not interfere in secular matters – that’s the point behind separating the State from religion. But in reality many people are deeply religious and they find it difficult to reconcile themselves with the secular laws which are not in accordance with their religious beliefs. They don’t realise that they are living in a secular democracy and hence, should not mix religion with law. This creates many kinds of problems for the State and the society.

    For example, if the Church doesn’t validate divorce, even if the Civil Law provides it, a religious person will not go for divorce and will stay in an unhappy marriage and will perhaps have secret extra-marital relationships without acknowledging them. If only the people could understand that they have accepted a secular constitution and they should abide by it and not allow their religion to interfere in their lives, things would be easier. Here the Civil Code grants every right to the individual but the people don’t get it because religion is allowed to interfere with the lives of the people. This is true of all religions, not only of Christianity.

    As for the equal division of property and the clauses in the law, I think indian laws have the clause that ancestral property can’t be alienated to a divorced wife. But I’m not absolutely sure.

  12. John Fodor says:

    So lets say the couple had children, how does the couple agree who keeps the children or is it the State which decides?

    Children are most affected by the divorce of the parents and this is true for all religions and more so on Western countries where divorce is at a high percentage.

  13. sunil balani says:

    An interesting article with some very thoughtful comments.

    Legal matters should be kept free from biases of religion that people exploit to suit their convenience most of the time.
    I would like to add that “Murphy law” is applicable even in the case of marriages. The idea of “prenuptial agreement” as mentioned by oby is good one .Inter personal affairs like marriages and divorces are too complex to be analysed, so there should be a broad line general legal framework that ensures uniformity and checks undue exploitation of any of the party.

    A very apt selection of topic, Archana..

  14. Archana says:

    Thanks Sunil, I agree with your comment.

    John Fodor,
    Welcome to the blog. You are right that children are affected by the divorce and of course divorce is not a pleasant phenomenon. It should happen only when marriage is absolutely not workable.

    As for child custody, Indian system grants it to the mother if the child is too young – below 7 I think. And the father has to pay the maintenance. If the child is 7 or above, many factors are taken into considerations – such as who is better equipped economically to provide for the child and who has the time and perhaps relatives or the means to have childcare to bring up the child. Moreover, there is the system that the court asks the child with whom it wants to live. The child lives with the parent it most feels comfortable with. I think this is a good system to ask the child.

    In the West, almost always the child goes to the mother and the father pays the maintenance.

  15. Aafke says:

    I think in most European countries the children’s preference in taken into account.

  16. Archana says:

    Thanks Aafke, for your information. I wasn’t aware of it.

  17. RR says:

    Hi

    My husband wants to file for a divorce but I do not want one. What legal protectioncan iseek? I have 2 kids 5 yrs and 2 weeks old.

    Regards

  18. Archana says:

    Hi RR,
    Thanks for your response and welcome to the blog. Although I would like to help you, I don’t have the legal expertise to do so. The way I see the situation, you can state in the court that you don’t want the divorce and you want the case to be judged by the Indian Civil Code, which as far as I know requires both parties to want the divorce and provides for maintenance and share in the property for the wife and children in case divorce happens.

    However, please be aware that I am not a legal expert and this is only my lay person’s opinion. Perhaps it would be the best for you to contact Christian Law Association at http://claindia.org/index.php.

    They will give you the professional legal advice. They have an office in Delhi.

    There is also this group of Christian lawyers worldwide and they have an India chapter – http://christianlawyers.com/international/india/index.html

    I would also suggest that you take your own family into confidence. They will give you the necessary support by using their own network.

  19. RR says:

    Thanks a ton! Will check these links

  20. Vijay Raj says:

    Hi Archana,

    Can you please give me a citation for this case. Am not able to locate it. Thanks

  21. Archana says:

    Vijay Raj,
    Thanks for your comment and welcome to the blog. I got it from a media site. The link is there in the first line of this post, or you can click it below –

    http://www.cathnewsasia.com/2010/03/01/kerala-court-allows-earlier-divorce-for-christians/

  22. Nazareth says:

    from the time i married that was in 1979.,till today my marriage is all shout and back answers and I have 3 adult children ,2 are married and 1 is 26 yrs old single,I never had a sweet talk in my life nor did she smiled at me ,it was a propsal and now im a senior citizen left gulf and down in India for good and we dont share anything in life and we sleep seperate I want a divorce can you’ll guide me
    tommy.

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  1. […] and Secretary of the Protestant Joint Women’s Program, which spearheaded a campaign to amend the Christian Personal Law in 2001. She said the amendment should be addded to that law too, as women often suffer because […]



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