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Report No. 90

3.2. Comments favouring first alternative.-

The first alternative has been favoured by several comments received in response to the Working Paper. It has also been strongly supported by many of the articles and letters in newspapers and magazines that we have had the opportunity of perusing. For example, the Catholic Bishops' Conference of India, in its comment on the Working Paper, impliedly accepts the soundness of the reasoning underlying the first alternative put forth in the Working Paper and agrees that the discrimination between the husband and the wife as in section 10 of the Indian Divorce Act, 1869 is wrong and needs to be rectified. However, the comment has made certain additional points which may be thus summarised. In the first place, it has been stated that India, being a secular State, should not have special legislation concerning marriages of different religious communities, The national legislation may limit itself to general issues, while areas peculiar to specific religions may be left to the provisions of the rules of each religion.

Secondly, the comment of the Conference suggests that since the canonical provisions regarding and the form of marriage are accepted by the civil law of the country, a declaration of nullity of marriage granted by the competent ecclesiastical authority should also be recognised by the civil law. Thirdly, it stated that the Church also provides for separation of bed and board on grounds of faith, infidelity, (adultery), etc., and these provisions as in canon law, could also be recognised by the State. Finally, the comment expresses an anxiety to keep separate divorce and separation from board and bed. The last paragraph of the comment makes the following concrete suggestion as regards the queries made in the Working Paper of the Law Commission:-

"In the light of the above, the answers to the three questions raised at the end of the Working Paper would all be "yes", provided the matter refers to separation from bed and board and not to dissolution of the bond of marriage with the resultant freedom to marry again."

The Grounds of Divorce amongst Christians in India - Section 10 of the Indian Divorce Act, 1869 Back

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