Report No. 15
9. (iii) Sacramental marriages.-
Coming next to sacramental marriages, the scheme of the Indian Christian Marriage Act, 1872, is this. Section 5(1) provides for marriages being solemnised by any person who has received episcopal ordination, and this head will comprehend all marriages performed according to the rites of the Church of Rome and the Church of England. Section 5(2) provides for marriages being solemnised by clergymen of the Church of England. Under section 5(3) marriages can be solemnised by any minister of religion who is licensed under the Act. Now the question is, whether it is possible to have one category of what may be said to be sacramental marriages as distinguished from civil marriages.
10. The strength of the Christian population in India is stated to be about ten million, and the evidence is that they belong to different Church organisations. Nearly half the number is of the Roman Catholic persuasion, and that forms a distinct unit. Then there are those who were members of the Indian section of the Anglican Church prior to 1927, and, on the constitution of that section as a distinct Church under the Indian Church Act, 1927,1 under the name of the Church of India, Burma and Ceylon, became members of that Church. Then there is the Church of Scotland which seceded from the Roman Catholic Church in 1560, and after throwing off episcopalism became in 1688 a Presbyterian Church.
Then there are the Presbyterian Churches of America and of England, the Lutheran Church, and several congregational Churches. The evidence discloses that the Protestant Churches functioning in India number several hundreds, each of them having its own followers. There are substantial differences in the rites and ceremonies relating to solemnisation of marriage in those Churches. The question is, whether it is possible to bring all these Churches under one category. It was suggested that it would be possible to introduce uniformity, if the law provided that no minister of religion, whatever the Church to which he might belong, could solemnise a marriage unless he was licensed by the State, and also prescribe the rules for solemnisation to be observed by them.
1. 17 and 18 Geo. 5, c. 40.
11. Simple and attractive as this suggestion might seem, there is considerable difficulty. legal and practical, in giving effect to it, Two of these Churches, the Church of Rome, and the Anglican Church and its successor. the Church of India, Burma and Ceylon, have rules for solemnization of marriages which are ancient, definite and well-designed to prevent clandestine or prohibited marriages. These Churches are religious denominations, and have a constitutional right to manage their own affairs in matters of religion. It has been held by the Supreme Court1 that religion includes not merely matters of doctrine and belief but also practices which are regarded by the community as part of its religion.
These Churches cannot, therefore, be compelled to adopt rules for solemnization of a marriage different from those sanctioned by their usage. It follows, that we have to recognise two different modes for solemnization of marriages, one for ministers of established Churches and another for other ministers of religion. The former must be left to be governed by the rules and usages of the Church wherein the marriage is solemnized, and the latter will have to be regulated by statute.
1. The Commissioner, Hindu Relegious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, (1954) S.C.R. zoos, and Sri Venkataramana Devaru v. State of Mysore, 1958 S.C.R. 895.
12. Then, as regards the persons who are entitled to solemnize the marriages in the Church of Rome and in the Church of India, Burma and Ceylon, the ministers derive their authority from episcopal ordination. And a provision that they should obtain license from the State might be challenged as constituting the super-imposition of an outside authority on the Church in what is a matter of religion, and therefore repugnant to the Constitution. Moreover, the power to grant a license carries with it the power to revoke it, and it is a question whether such a power can be reconciled with the episcopal character of the Church.
And, legal difficulties apart, there is the practical inconvenience in having to license thousands of priests all over the country. And what purpose does licensing serve, if the solemnization is to be in accordance with the practice of the Church? The rules of these Churches are sufficiently stringent to maintain discipline among its clergymen. We therefore recommend that such Churches should be brought under a distinct category, and that the ministers of those Churches should, as here to before, 'have the authority to solemnize marriages in accordance with the rules and usage observed therein.
13. Then there are other Churches, such as the Church of Scotland, the American Presbyterian Church and the like which, though not episcopal in their constitution, have well-settled rules as to the appointment of ministers and solemnization of marriages. These Churches also stand. so far as the legal position is concerned, very much on the same footing as the Church of Rome or the Church of India, Burma and Ceylon, and any provision requiring their ministers to follow the rules of solemnisation prescribed in this Act for licensed ministers, or even for obtaining licenses from the State, may be open to attack. In our opinion, these Churches also should be placed in the same category as the Roman Catholic Church or the Church of India, Burma and Ceylon.
14. Besides these Churches, if new Churches are formed, and they frame their own rules for appointment of ministers and for solemnization of marriages, those Churches also will have to be accorded the same status as is enjoyed by the Roman Catholic Church or other existing Churches. The result is, that all these Churches which can be said to form religious denominations will form a category of their own, with the right to follow their own rules as to solemnization of marriages.
These Churches have been termed by us as "recognised Churches'. Where, however, parties to a marriage do not belong to any recognised Church, we have to provide for solemnisation of their marriages by ministers licensed by the State and to prescribe the procedure to be followed by them in solemnizing marriages. Thus sacramental marriages must necessarily fall under two categories, (i) those solemnized by ministers of recognised Churches, and (ii) those solemnized by ministers licensed by the State.