In its report, Law Commission chairman A R Laxmanan said: “The Law Commission has come to the conclusion that Section 2 of the Divorce Act, 1869, insofar as it concerns the jurisdictional rule in regard to petitions for divorce, is not only not in tune with the present times but is also harsh upon Christian women in India.”
According to the Act enacted by the then British government, a deserted Christian woman does not have the right to file a petition before a family court in India seeking dissolution of her marriage if her husband has taken the citizenship of another country and also a domicile of a foreign country.
The Indian courts should also be given the right to decide on the dissolution of the marriages of Christian couples solemnised abroad, the Commission said. In the report submitted to Union law minister Veerappa Moily, Justice Laxmanan suggested that the law should be amended in order to entitle the Indian courts to entertain a petition for dissolution of a Christian marriage where either of the parties is domiciled in India at the time of presenting the divorce petition.
The Indian law does not confer jurisdiction on family courts to dissolve Christian marriages of non-domiciled couples. Further, in determining the domicile of the parties in a proceeding for dissolution of a marriage, it is the domicile of the man alone which is to be considered since a woman takes the domicile of her husband upon marriage.
Due to this law, many Christian women in India are unable to approach the court, despite being deserted by their husbands living abroad. The Centre had referred the ruling of the Madras High Court in the Indira Rachel vs Union of India to the Law Commission for suitable suggestion, leading to an amendment in the law.
Indira Rachel had filed a petition before the Madras High Court in 1995 seeking direction to allow her to file a petition for divorce from her husband Andrew Solomon Raj, who was then working as assistant supervisor with the Bank of Kuwait and Middle East in Kuwait.
However, before the court could decide on the matter, Raj died, making the petition infructous.
In the suggestion to the government, the high court said:“Therefore, according to us, such provision should be interpreted to mean that the courts in India shall be entitled to entertain petition for dissolution of marriage where either of the parties has domiciled in India at the time when the petition is presented.”