Role of Custom, Legislation and Judicial Precedents in Christian Law

Role of Custom in Christian Law

‘Custom’ plays an important role in the lives and legal system of the Christians in India. In Malabar there is a Christian community commonly known as Malankara Jacobite Syrian Christians. That community traces its origins to 52 A.D. when St. Thomas, one of the disciples of Jesus Christ came to Malabar and established the church there. They are governed by the Hudaya canon and all their customary practices are codified in it.

There are other varieties of Syrian Christians in Kerala and elsewhere in India. When the Portuguese established their rule in western parts of India (Goa, Daman, Diu) in the 16th century, they had been successful in establishing Roman Catholic Churches. They found that the Church Order and Customs of the Syrian Christians were not in tune with the Roman Catholic Church and so the customary practices on marriage and divorce, succession and inheritance followed by their churches were codified (The Code of Canon Law) and implemented.

However, the Syrian Christians did not altogether stop practicing their own religious Customs and their Customs have been regulated by the Code of Canons of the Eastern (Oriental) Churches. During British rule, these canonical customary laws were practiced by the Christians all over the Churches in India and were modernized by the passing of two specific legislations, namely Indian Divorce Act of 1869 and Indian Christian Marriage Act of 1872.

Christians did not recognize divorce in their customary practices and their marriages are regarded as sacramental. The Law of Christian divorce is codified by the name of ‘The Divorce Act, 1869. This Act has been amended in 2001 whereby divorce by internal consent is allowed. These canonical laws and practices were also applied by the Courts in India.

Christians are bound to observe the form of marriage prescribed by the canon law in India. Only a person who has received Episcopal ordination can perform the marriage ceremony of Christians according to the customary practices in India.

• Under Canon 88 of the Roman Catholic Church, a person who has completed 21st years of age is a major.
• Canon 1607 provides that a man before completing his 16th year and a girl before completing her 14th year cannot contract a valid marriage.
• Canon 1934 enjoins that a pastor must seriously dissuade minor sons and daughters from contracting marriage without the knowledge of or against the reasonable wishes of their parents.

The Courts in India have recognized these canonical practices. Furthermore, the courts have held that the prohibited degrees for the purpose of marriage were those which were prohibited by a customary law of the Church to which the parties belonged. Hence, if a marriage between a man and his cousin (maternal aunt’s daughter) takes place, although it is prohibited, the Church can remove this impediment (Canon 1052). In Lakshmi Sanyal v. Sachit Kumar Dhar (1972), the Supreme Court of India has accepted this position of Canonical Law.

In the matters of succession and inheritance also, the Christians have followed their local customary practices for a long time. The rule of lineal primogeniture by which the eldest son of the deceased would succeed to his property is generally applicable. Wives of Christians were not given any share in the property of the deceased husband.

On adoption, Christians of Punjab have been practicing adoption of children for a long time. There is also a Custom of Syrian Christians of Kerala for adoption of a son-in-law. Where there are no sons, the husband of the youngest daughter is taken in adoption.

Many Christians in India, however, adopt Hindu Customs and practices. For example, the Christians of Coorg and Pondicherry have been practicing Hindu customs. Many converted Christians in Jharkhand, Orissa, and in the North East also practice Hindu customary rules.

Role of Legislation and Judicial Precedents in Christian Personal Law

The main legislations enacted by the Indian Parliament regulating the Personal Law of Christians are :
(a) The Indian Christian Marriage Act, 1872;
(b) The Divorce Act, 1869;
(c) Juvenile Justice (Care and Protection of Children) Act, 2000;
(d) The Indian Succession Act, 1925;

Legislation on Christian Marriage

Specific legislation relating to personal matters was codified during British rule in India. The term ‘Indian Christian’ is defined in the Christian Marriage Act, as a person professing the Christian religion and it includes Christian descendants of native Indians converted to Christianity, as well as ordinary converts.

Baptism by itself does not amount to conversion. A convert has not only to be baptized, but also to profess Christianity according to Christian traditions. There are many special laws relating to Christians.

The Indian Christian Marriage Act was codified in the year of 1872. This Act has consolidated and amended the laws relating to the solemnization of the marriages of persons professing the Christian religion in India. This Act has now been extended to Kanyakumari district and the Schencuttah taluk of the Tirunelveli-Kattabomman district of Tamil Nadu in 1995.

The law on Christian divorce is codified by the name of The Divorce Act, 1869. This Act has been amended in 2001 whereby divorce by mutual consent is allowed.

Legislation on Christian Adoption

There is no specific legislation enabling or regulating adoption among Christians in India. Persons who wish to adopt a minor child usually approach the Court under the provisions of the Courts and Wards Act, 1890, to obtain an order of guardianship for the minor child. Orders under that, however, would not apply once the child becomes a major, thereby dis-entitling the child from the benefits enjoyed by an adopted son or daughter.

This position has now been changed after the enactment of “Juvenile Justice (Care and Protection of Children) Act, 2000, read with the Guidelines and Rules issued by various State Governments under which now the Christians can also adopt children.

Legislation on Christian Succession

So far as matters relating to succession are concerned, they are governed by the Indian Succession Act, 1925. This law governs intestate and testamentary succession of immovable property of Christians and Parsis.

By virtue of the provisions of the Goa, Daman and Diu (Administration) Act, 1962, the Portuguese Civil Code is applicable in Goa. In Pondicherry, the French Civil Code still survives as per the provisions of the Treaty of Cession, 1956. Further, the Garos of Meghalaya are also not subject to this Succession Act. They follow their customary matrilineal system of inheritance.

Judicial Precedents and Christian Personal Law

The ‘judicial precedents’ relating to Christians are also very important to understand. In one decided case on marriage, the Madras High Court held that the consent of the father of a minor girl is mandatory to marry her. When the consent was not obtained from the father and the boy committed a fraud by changing the year of birth of the girl to avoid taking the consent of her father, it was held not to be legal (Rosalyn Mary v. Ravi Gnana Selvam).

In another decided case, the same court held that when no priest officiated the marriage ceremonies and the marriage did not take place in a church, the marriage would not be a marriage in the eyes of the Court even though documents were executed few weeks prior to the alleged marriage to provide for the dowry (S. Selvaraj v. Martha Peter).

In another decided case on divorce, the Supreme Court noted that the Divorce Act, 1869 confers jurisdiction on District Courts and High Courts in matrimonial matters. Unless the Act recognizes the jurisdiction, authority or power of Ecclesiastical Tribunal (sometimes called as Church Court), any order or decree passed by such Ecclesiastical Tribunal cannot be binding on the Courts which have been recognized under the Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters (Molly Joseph v. George Sebastian).

On the question of whether slapping a wife by her husband amounts to cruelty, the Court has decided that merely slapping his wife after marriage does not amount to cruelty and this would not be a ground of divorce (Agnel Valentine D’Souza v. Blanche Agnela Piedade).

Questions

List a few customs of Christians in India

Some of the customs of the Christians in India are :
(a) minors cannot marry;
(b) parties to a marriage must be knowing the consequences of marriage within prohibited degrees of relationship;
(c) rule of linear primogeniture; and
(d) adopting son-in-law by Kerala’s Syrian Christians

_{Acknowledgement : This article is adapted from Swayam – NIOS course material.}