HVK Archives: Clash of statutes - No reason to delay Christian personal law reform
Clash of statutes - No reason to delay Christian personal law reform - The Indian Express
Editorial
()
10 October 1996
Title : Clash of statutes
No reason to delay Christian personal law reform
Author : Editorial
Publication : The Indian Express
Date : October 10, 1996
The Supreme Court ruling that the church cannot annul a
marriage conforms to the principles laid down in its
earlier judgments that where the personal laws clash with
general laws, the latter will prevail. The judgment
followed the annulment of a marriage by the church, on
the strength of which one of the parties married again.
Since the court did not recognise the annulment, the
second marriage was denied validity. Though no major
legal issue was involved in this particular case, laws on
divorce and marriage have always rankled the church.
This is because it has hesitated to recognise divorce on
the ground that marriage is a sacrament and that what God
has united cannot be put aside. Nonetheless, annulment
of marriages is allowed in certain conditions. The court
has ruled that even in such cases it will be mandatory
for the persons concerned to have the marriage annulled
by a court of law. In any case, Christians wishing to
divorce have perforce to invoke provisions of the general
law as under the existing archaic Christian marriage law
it is next to impossible to get one. For instance,
divorce by mutual consent is not accepted under the
Christian personal law. Again, the law is biased against
women, who have stiffer conditions to fulfill to obtain
divorce than men.
The anachronistic provisions of the Christian personal
laws warranted a review but the Government has so far
shied away from change on the spurious belief that it
could not antagonise the community. Besides, the refrain
has always been that the initiative for such reforms
should come from within the community. Given the in-
creasing rate of divorce even among Christians, the
church can no longer adopt an ostrich-like attitude to
divorce. In a welcome move, the different Christian
denominations unitedly presented to the Government a
draft legislation to replace the existing laws. Care was
taken to ensure that is was free from gender bias. The
church even recognised, though reluctantly, the need for
divorce by mutual consent. Shell-shocked by the Shah
Bano incident, the Government has been wary of bringing
forward a proper Bill though it is four years since the
draft was submitted.
Periodic reforms in laws are a must to keep pace with the
changing times. One reason why some of the provisions of
the Christian personal laws appear despicable now is that
they are not in consonance with the modern temper. For
instance, a provision of the outlawed Travancore Succes-
sion Act whereby the maximum entitlement of a woman to
the intestate property of her father is Rs 5,000 was
fixed three-quarters of a century ago. Much of the blame
for persisting with outdated laws rests squarely with the
church, which did not show any enthusiasm for removing
the discriminatory provisions. But now that the church
has belatedly acknowledged its duty, the least the Gov-
ernment should do is to bring about a comprehensive Bill
to reform the Christian personal law.
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