Report No. 15
Clause 2
"Christian"-the singular "a person" has been preferred to the plural.
The following alternative definitions were considered, but have not been accepted:-
"(i) 'Christian means a person who has become a member of some Christian Church by an act customary in that Church for the admission of members, and continues to be such unless and until the laws of his Church determine otherwise".
"(ii) 'Christian' means a person who has become a member of some Christian Church by an act recognised in that Church".
"(iii) 'Christian' means a person who has been baptised".
The emphasis in all these definitions is on certain ceremonies; but, since religion is a matter of persuasion, it is considered unnecessary to insist on overt ceremonies.
The word "profess" is not likely to create any difficulty. Even the dictionary meaning of "Christian" is in harmony with the definition adopted in the draft.
"Church building"
The expression "Church" is used in two senses
(i) "Church" with the capital C-denoting the organisation;
(ii) "church" with the small c-denoting the place of worship.
To avoid confusion, the expression "church", in the second sense, has been replaced by "church building".
"Custom" and "usage"-have been denned in the Hindu Marriage Act. But it is considered that it is unnecessary to define either of these expressions].
Clause 2-"desertion"
(a) The existing definition of "desertion" in the Divorce Act says that desertion implies abandonment of one party by the other. This does not appear to indicate, in detail and specifically, the essential ingredients of desertion.
The definition, in the Hindu Marriage Act does not purport to analyse the concept of desertion; it merely stresses certain ingredients-i.e.,-"without reasonable cause" etc.
The meaning of desertion as established by judicial decisions is this-that there must be a failure of the discharge of matrimonial obligations-what is called the total fo saking of "consortium". The sub-clause under discussion, therefore, attempts a fresh definition of desertion, bringing out the aspect of withdrawal from cohabitation while also mentioning the other ingredients.
(b) The definition in the Hindu Marriage Act has been discussed in a recent decision of the Bombay High Court.1 An analysis of that decision would show that desertion requires
(i) separation in fact between the two spouses;
(ii) an intention, on the part of the deserting spouse, to forsake or abandon the other spouse;
(iii) absence of consent on the part of the deserted spouse; and
(iv) absence of conduct on the part of the deserted spouse giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention.
Intention to forsake or abandon is thus an essential ingredient, and this has been sought to be brought out in the draft clause by the words "with the intention of bringing co-habitation permanently to an end". Factual separation has been brought out by the words "withdrawal" etc.
As regards ingredients No. (iii) and (iv) above, the language of the Hindu Marriage Act has been followed.
1. Meena v. Lachman, (1959) 61 Born LR 1549 (DB).
(c) The inclusive part of the definition in the Hindu Marriage Act, which says that desertion includes "the wilful neglect" of one party by the other, has been omitted in the sub-clause under discussion, because it will be covered by the words "withdrawal from co-habitation". It may also be pointed out that it has been held that the conduct of the spouse, in order that it may amount to wilful neglect, must be "deliberate and intentional failure" to perform the obligations of married life, indicative of a total repudiation of the obligations of marriage.1 "The intention to desert is implicit in the concept of desertion and is implicit in wilful neglect".2
1. See the judgment of Shah, J., in Meena v. Lachman, (1959) 61 Born LR 1549 (1552).
2. "Desai J., in Meena v. Lachman, (1959) 61 Born LR 1549 (1557).
(d) The draft definition will also bring out one essential ingredient of the concept of desertion-intention to desert permanently. "In its essence, desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause."1
1. See Bipin Chander faisinghbhai Shah v. Prabhawati, 1956 SCR 838 (850).
(e) For an elaborate definition, see the Royal Commission's Report.1
1. Report of the Royal Commission on Marriage and Divorce, 1955 Cmd. 9678, para. 155(iii).
Clause 2-"diplomatic officer"-
Follows the language of the corresponding provision in the Special Marriage Act.
Clause 2-"district"
Follows the language of the corresponding provision in the Special Marriage Act.
Clause 2-"High Court" (omitted)-
The definition of the expression "High Court", occurring in existing section 3(1) of the Indian Divorce Act, has been omitted, for the following reasons:-
(i) So far as "States" proper are concerned, the respective High Courts for the States will exercise jurisdiction as at present. So far as "Union Territories" are concerned, the High Court exercising jurisdiction or the Judicial Commissioner concerned, can be regarded as the High Court by virtue of the definition in the General Clauses Act, which applies to all civil cases.
(ii) The Judicial Commissioners now exercise jurisdiction to issue writs etc., and there is no harm if they are regarded as High Courts for this Act also.
(iii) There is no express definition of the expression in the Hindu Marriage Act or in the Special Marriage Act.
(iv) The expression occurs at very few places in the Bill as drafted.1
1. It occurs, for example, in the rule-making clause 73.
Clause 2-"India"-
Needs no comments.
Clause 2-"Licensed Minister"-
This is new, and is intended to avoid the use of the lengthy expression "Minister of Church licensed by the State Government" in the substantive provisions.
Clause 2-"Marriage Registrar"-
This is new. There is no corresponding provision in the Special Marriage Act, but it has been inserted here for the sake of precision.
Clause 2-"Minister of recognised Church,"-
This is new, and is intended to distinguish between
(i) Ministers of recognised Churches;
(ii) Ministers licensed by the State Governments.1
The use of the expression under discussion, and the expression "licensed Ministers" etc., will make it clear whether a particular substantive provision applies to all Ministers or only to Ministers of certain classes.
1. Vide the body of the Report, para. 19.
Clause 2-"minor"
The existing provision in' the Christian Marriage Act defines a minor as a person who has not completed the age of 21 years and who is not a widower or widow. Two changes have been made in this definition,-
(a) instead of the age of 21 years, the age of 18 years has been substituted, in conformity with the general law as contained in the Indian Majority Act;
(b) the exception for widower and widows has been omitted, since it is felt that even widowers and widows (if minor), should be subject to the special provisions of the Act applicable to minors.
The existing definition in the Divorce Act makes special provisions for "native" boys and girls. This restriction has been removed. For non-natives, the provision in the Divorce Act treats as "minors" all "unmarried children who have not completed the age of 18 years". This has been adopted in substance in the draft in so far as the age is concerned. But the change made is, that all children below 18, whether married or unmarried, will be "minor" for the purposes of the new Act.
The expression "completed" the age has been adopted here as well as elsewhere in the draft clauses.
[Section 78(1) of the (English) Matrimonial Causes Act, 1950, defines a minor as a "person under the age of twenty-one years".
Section 3 of the Indian Majority Act, 1875, uses the word "attained".
Section 4 (a) of the Hindu Minority and Guardianship Act uses the word "completed". Section 4(1) of the Guardians and Wards Act says "attained majority".'
Section 4(c), Special Marriage Act and section 5(iii), Hindu Marriage Act say, "completed the age".
Clause 2-"prescribed"-
Needs no comments.
Clause 2-"prohibited relationship"-
The definition is new and follows the language of the Special Marriage Act. But one departure has been made. That Act defines "degrees" of prohibited relationship, but since some of the prohibited relationships do not represent any "degrees", the word "degrees", has been omitted.
Clause 2-"recognised Church"-
This is new, and is consequential on the changes made in the provisions regarding Churches having the system of episcopal ordination.1
1. See clause 7.
Clause 2-".Registrar-General"-
A provision has been added to cover the cases where the Central Act (the Births, Deaths and Marriages Registration Act, 1886) is not itself in force in the place concerned.
Clause 2-"rule"
This is new. The lengthy formula "rule, custom, rite or ceremony" occurs in existing section 5 of the Christian Marriage Act. The definition under discussion will shorten the formula. The definition will be useful for other draft clauses also, where a reference has been made to rules of Church.
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