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Report No. 22

3. Clause 7-Recognition of Churches-objection to principle.-

There is, however, one point on which there has been a considerable body of criticism, and as that is one of substance, we shall consider it fully at the very outset. That has reference to the category of recognised Churches under clause 7.

Section 5 of the Indian Christian Marriage Act, 1872, enumerates five different modes in which marriage could be solemnised. At the time when we invited comments and heard oral evidence for our previous Report, we found that there was a large body of opinion that this differentiation should be abolished, and one uniform mode prescribed for all marriages between Christians. If we were to accept this view, it would have been necessary to provide that all marriages should be solemnised by Ministers of Religion licensed by the State.

In our previous Report1, we declined to accede to this suggestion, because there were certain ancient and well-established Churches, like the Roman Catholic Church, and the Anglican Church, in which Ministers who derived their authority from episcopal ordination solemnised marriages in accordance with well-defined rules prescribed by the Church. To require that marriages between persons belonging to those Churches should be solemnised by a Minister licensed by the State, might be challenged as constituting the super-imposition of an outside authority on the Churches in what is a matter of religion and therefore repugnant to the Constitution.

It was also pointed out that there were likewise other religious denominations, which had also well-defined rules as to the persons who could solemnise marriages between its members, and the procedure to be followed in such solemnisation, and that they would also be entitled to claim similar constitutional protection. It was in view of this that we recommended the enactment of a general provision whereunder every Church which satisfied the conditions laid down in clause 7(2), might be classed as a recognised Church, such recognition being for the purpose of protecting the rights conferred on religious denominations under the Constitution.

1. 15th Report, paras. 10-12.

4. (a) On this, the question arose as to what Churches should be recognised for the purpose of clause 7. The Indian Christian Marriage Act had referred to certain Churches. There could be no difficulty with reference to them. Similarly, there are other Churches which also satisfy all the requirements of clause 7. If these were all the Churches, we should ourselves have included them in a Schedule to the Bill. That could be seen from what we have observed in our previous Report1. But the evidence disclosed that several new Churches had been formed or were in the course of formation. If they are in fact religious denominations, they can also claim the same protection as the older Churches. To exclude them from the Schedule would have been unjust, apart from such exclusion being open to criticism on constitutional grounds.

That is the reason why we left the recognition of Churches as a whole to be made by the Government. Therefore, the complaint that the provision for recognition of a Church under clause 7 is unconstitutional, is, in our view, based on a misapprehension and is wholly unfounded. To set the controversy at rest, we suggest that the definition of "recognised Church" in clause 2(n) may now be modified so as to include expressly the Churches referred to in section 5 of the Indian Christian Marriage Act, 1872, while at the same time making provision for the recognition of other Churches which satisfy the prescribed conditions. It will, as modified, run as follows:-

"Recognised Church means

(i) the Church of Rome,

(ii) the Church of India, Burma and Ceylon,

(iii) the Church of Scotland and any other Church declared to be a recognised Church under section 7".

(b) Consequential on this, we recommend that definitions of the "Church of Rome" and the "Church of Scotland" may be included in clause 2 of the Bill.2 (The Anglican Church has now come to be known as the Church of India, Burma and Ceylon.)

1. 15th Report, paras. 10-12.

1. Cf. the definitions of these expressions in the Indian Christian Marriage Act, 1872.

Christian Marriage and Matrimonial Clauses Bill, 1961 Back

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