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Report No. 15

4. Application.-

One of the questions agitated before us is, whether the provisions of the proposed Act should govern marriages even when only one of the parties belongs to the Christian faith at the time of the marriage. Under section 4 of the Indian Christian Marriage Act, 1872, the marriage has to be solemnised in accordance with the provisions of the Act even when only one of the persons is a Christian. It has been suggested before us that the law in this respect requires modification. Section 5 of the Hindu Marriage Act, 1955, expressly provides that the Act applies to marriages between Hindus.

Section 2(6) of the Parsi Marriage Act, 1936, defines a marriage as one between Parsis. Conformably to this, "husband" and "wife" are defined in section 2(5) and section 2(9) respectively as meaning a Parsi husband and a Parsi wife. Thus, the scheme of legislation has latterly, been that laws governing marriages in a particular religious denomination should have application only when both the parties to the marriage belong to that religious denomination.

The witnesses, who pressed for applying the Act to marriages even if one of the parties thereto was a Christian while the other was not, maintained that if the non-Christian party was willing to have the marriage solemnised in a Church in accordance with the rites and ceremonies of that Church, there was no reason why the law should refuse to recognise it.

But clearly such a marriage cannot, in any sense, be regarded as sacramental. In this connection, reference should be made to the Special Marriage Act, 1954, which is applicable to marriages between persons belonging to different faiths, and it would be quite logical if marriages between persons both of whom are Christians are alone brought within the purview of the Act, while marriages in which only one of the parties is a Christian are left solemnised under the provisions of the Special Marriage Act, 1954. Further, if a marriage between persons belonging to different faiths is allowed to be solemnised under the provisions of the proposed Act that would lead to various complications.

If, for example, a Christian male marries a Hindu female, the succession to their properties would be governed as regards the husband by the Succession Act, and as regards the wife by the Hindu Law. The result would be anomalous and inequitable. Difficulties might arise as regards the rights of the parents to the custody of children in case of dispute. The normal law awarding to the father the right of guardianship over children after a particular age might work hardship on the mother. We consider that the proposed legislation should apply only when both the parties thereto are Christians. This view has also the support of a considerable body of Christians.

Report on the Law of Christian Marriage and Divorce Back

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