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Report No. 90

3.7. Summary of view in articles.-

It is unnecessary to refer in detail to each and every point made in the articles and correspondence in newspapers and the periodicals. However, it would be useful to mention the important points. In broad terms, the salient points made are as under:-

G.R. Rajagopaul, "Personal Law Integration"; (15 September, 1982), Indian Express. Necessity for changes in the law concerning Christians pointed out, in the light of the Supreme Court judgment (Mutual consent as a ground of divorce)1.
Kenneth A. Phillips, "Christian victims of archaic law";
(21 September, 1982), Times of India
Archaic nature of the Indian Divorce Act pointed out. Reference made to certain judgments pointing to the need for reform.
Necessity for removing discrimination against women highlighted. Desirability of expanding the grounds of divorce and "a total reconstruction of the system" stressed.

1. Cf. Chapter 5, infra.

Reference is also made to the law in Goa which, in effect, it is stated recognises a pronouncement of nullity by the Church.1 Mention is further made of a Madras ruling2 which points out the anomaly in the Indian Divorce Act, in not recognising absence of the other spouse for seven years as a ground for dissolution of marriage. The article ends with a quotation of the following passage from an Encyclical of the Pope:

"Since women are becoming ever more conscious of their human dignity, they will not tolerate being treated as mere material instruments, but demand rights as befitting a human person, both in domestic and public life."

George Menezes, letter published in (1 October, 1982) Times of India Need for grand of divorce on the ground of desertion for a continued period stressed. Discrimination between the sexes under the present law also pointed out. Absence of geographical uniformity in the law also emphasised, since Christians of Goa, Daman and Diu have a much more progressive law, than Christians in the rest of India
Father Cruz D'Souza, Sawantwadi letter published in (11 October, 1982) Indian Express. The State must recognise annulments and letter dissolutions granted by the Church, as in Goa under the Portuguese law enacted in 1911.
Doris D'Souza, Bombay, letter published in (16 October, 1982) Times of archaic. The Indian Divorce Act is discriminatory and archaic. Even though the woman obtains an annulment from the Church, she has to go through the "long-suffering, oppressive, endless and impractical procedure of the court to obtain a divorce which in any case is long time consuming. I wish our Parliamentarians would pass suitable legislation immediately to give much needed relief to innocent, harassed victims of the Indian Divorce Act, 1869."
Winston F. Saldana, Bombay, letter published in (23 October, 1982) Times of India. The status in society of a couple whose marriage has been annulled by the Church is uncertain. "The remedy lies in codifying the law and making it uniform. Progressive laws like the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 should be the basis. Irretrievable breakdown of marriage and annulment by the Church should also be further grounds for divorce/annulment by the courts of law. It is unfortunate that the Government has not reintroduced in Parliament the Christian Marriage and Matrimonial Causes Bill which had been introduced in 1962 but which lapsed."
Ami Ashanti, Bombay, letter published in (4 October, 1982) The Examiner. The writer draws attention to the need to provide relief to couples who suffer from mental cruelty. She refers to the battered spouses of alcoholics who eke out their existence and to the husbands of "nymphomaniac and psychoaberrated" wives. She also refers to her project experience in the Institute of Social Sciences (Bombay) where she had met several Catholic women who were living sub-humanly "only because of the indissolubility of the marriage bon"
"If Catholic priests can seek and obtain Laicisation........why cannot the Catholic Laity seek and obtain, if not divorce, annulment, especially when it can be proved that the marriage has irretrievably broken down?"
Teresa Albuquerque, Bombay, letter in (11 December, 1982) The Examiner. (i) A church annulment of marriage be re-should cognised in law.
(ii) The present law is an affront to women, as it makes a distinction between the sexes.
F.M. Pinto, Bombay, letter in (18 December, 1982) The Examiner. The time has come for a reoriented thinking on the subject of divorce for Christians.
Winston F. Saldana, letter in (24 December, 1982) the Herald and, in (January 1983) Home Life and, (January 1983) The Examiner. The time has come for a reoriented thinking on the subject of divorce for Christians.
The letter mentions a large number of tragic cases of Catholic couples all over the country whose marriages are void on one or more of the grounds specified in the article of Mr. Kenneth Phillips and who are unable to obtain speedy annulment of their marriage. This is just because the number of clergymen learned in moral theology and in canon law to constitute ecclesiastical tribunal to adjudicate upon these cases and to grant relief is insufficient. The cure, it is stated, lies is having zonal interdiocesan tribunals.
Peter Figuerido, Calcutta, letter in (24 December, 1982) The Hearld. Commenting on the article of Mr. Kenneth Phillips, Mr. Figuerido states that the provisions of the Indian Divorce Act as to nullity are adequate. According to the comment, the procedure in civil courts is superior to that in Church tribunals. The Divorce Act safeguards against collusion, while in Church tribunals, there is secrecy (of proceedings).

"There is no reason why a genuine case from the Church tribunals should not, on the same evidence established before, be accepted by Civil Courts. To accept blindly the decision of a secret tribunal does not appeal to the concept of equality before law. The Indian Divorce Act remains as close to traditional Roman Catholic ethics as is possible in a society where libertinage is the order of the day. It is sad to see it attacked, in the name of progress, in a Roman Catholic journal."

News item in (31 December, 1982) The Examiner. A resolution demanding that the provision for divorce should be extended to the Christian Marriage Act was passed on 30 December, 1982 at Cochin at the three day Biennial National Conference of Women Lawyers.
F.M. Pinto, Bombay, letter in (January 1983) Home Life. (i) Annulment of a marriage by the Church should be recognised
(ii) It is unfortunate that the Christian Marriage and Matrimonial Causes Bill of 1962 proved abortive.
Comment under "Current Topic" in (6 January, 1983) Times of India. (i) Under the Indian Divorce Act, 1869, divorce is available under very limited conditions, which virtually makes the provision infructuous. The wife cannot sue for divorce on grounds of impotency, insanity or cruelty.
(ii) The archaic and cruel nature of the law is evidence from the fact that it does not accept the annulment order passed by the Church. The Portuguese law in Goa is much more progressive and dissolves marriages annulled by the Church.
(ii) The Act of 1869 needs to be changed also because it does not treat men and women as equals. "In order to update it, the legislators can draw upon the provisions of the Hindu Marriage Act and the Special Marriage Act and take into account a wide range of issues to make it easier for men and women to separate when marriages have broken down."
Dr. L. De Souza, Bombay, letter in (15 January, 1983) The Examiner. The archaic law applicable to Christians needs revision. "In case of other religions, particularly the Hindus, there have been progressive changes as seen in the Hindu Marriage Act, 1955, where amendments have been made for divorce whenever there are cases of irretrievable break down of the marriage among many other grounds, including mutual consent. It is not only deplorable but very sad, to see Christian couples whose marriages have fallen apart, living a life of misery and undergoing all the hardships that prevent them from getting married again".
M.C. Abraham, "Dissolution Christian Marriage" (February 1983) Cr 14 Journal 2, 4. According to this article, there is no need to to add any ground of divorce. "Union for life is the method of Christian marriage and not separation". As we have already stated1, the majority of views favours at least the introduction of equality between the sexes, in regard to divorce amongst Christians

1. Para. 2.2, supra.



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




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