Christian Law of Divorce in India - Origin and Development of English Law On Divorce

Origin and Development of English Law On Divorce

From early Saxon times, side by side with the civil law, there existed ecclesiastical law, even when the Court had jurisdiction in both civil and ecclesiastical matters. There was an intimate union of Church and State, a union in which the royal authority constantly upheld the authority and national position of the Church. The superior clergy took a major role in legislative activities and in the administration of justice as well as in general government. With the defeat of King Harold at the battle of Hastings in 1066 A.D, by William the Conqueror with the support of the then Pope, the practice of dealing with ecclesiastical and temporal affairs in the same court was abolished and the Bishop and the Archdeacon had his own Court. And the marriage law of England became the canon law. The substantive law that was administered in the Church courts,(Courts Christian) was, first and foremost, the Holy Scriptures in the so-called "Vulgate" version, the one made by St. Jerome in the fourth century. And a mass of specific regulations announced by various Councils, both general and local, as well as the decrees of Popes, had all the aspects of legislation and were treated as laws. All the compilations and collections were, from the sixteenth century, known as the Corpus Juris Canonici, (the Body of Canon Law) formed the basis of the law administered by the Church courts. An authority on history notes: "The ecclesiastical Courts had, certainly from the twelfth century undisputed jurisdiction in matrimonial causes. Questions as to the celebration of marriage, as to the capacity of the parties to marry, as to the legitimacy of the issue, as to the dissolution of marriage, were decided by the ecclesiastical Courts administering the canon law".

However, difficulties began to develop between Church and State. In 1164 A.D, King Henry II wanted to abolish many of the privileges of the clergy and forbade appeals to Rome. But later, the King had to give up his efforts. In 1532 A.D, King Henry VIII forbade marriage case appeals to the Pope in the Statute of Appeals. This was followed by the Act of Submission of the Clergy. Finally, when the King could not get an annulment of his marriage by the Pope, he proclaimed himself 'Supreme head in Earth of the Church of England', in the year 1534. By another Act, it was provided that dispensations for marriage could be given only by the Crown, but at the same time, there was to be no departure from the true Faith of the Catholic Christian Church. The Church courts became royal courts after Henry VIII, but retained their independence of the Common Law Courts. The older Canon Law was not repudiated, but a new canon law was built up on it. It is pointed out: "The influence of the Canon Law on English law in general is a chapter of English legal history that has not yet been written…….Further investigation of the interrelation of the law of the Courts of King and of the bishop is certain to give fruitful results".

Thus the Statutes subordinated the Church to the State, and the Church Courts to the law of the land. But it would be wrong to suppose that the Church was to lose her liberty in toto. The position that emerged out of the conflicts was that the state law was to have predominance over the Church law only when there was a conflict between the two. Otherwise, the Church law was to have its sway.

The right of the Church to have her own courts and her own law remained unchallenged. But an Act of 1836 had paganised marriages by providing for marriages before a Civil Registrar. With certain exceptions, the matrimonial law of the Church survived until 1857. The Matrimonial Causes Act of 1857 established a new temporal (civil) court to exercise jurisdiction in all matrimonial causes. Thus, marriage, which had once been a sacrament, became merely a civil contract in England and the logical sequel was that it could no longer be held to be indissoluble. This led to the introduction of divorce a vinculo by a temporal Court. And the Church lost the last remnant of her jurisdiction in matrimonial causes in England. The Established Church not only lost her jurisdiction in marriage cases, but also in her ministry and in her attempts to revise her canon law. She had to look to Parliament for its assent for needed changes even in canon law.

But a closer look into these developments would show that the substantive law on marriage and the basis of its validity still continued to be the canon law. It can be found that the Matrimonial Causes Act, 1857 did not substantially differ from the substantive law contained in canon law as the Act was not a comprehensive legislation on the law of marriage and it only made certain amendments to the then existing canon law as is evident from its Preamble which reads: "An Act to amend the law relating to divorce and matrimonial causes in England. Whereas it is expedient to amend the law relating to divorce, and to constitute a court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolution of marriage: Be it therefore enacted…"

And the Courts continued to apply the principles of canon law for deciding the validity or otherwise of a marriage. This is reflected in the judgment of Lord Penzance in 1866 Lord Penzance, wherein he held: "Marriage as it is understood in Christendom is the voluntary union for life of one man and one woman to the exclusion of all others". And the above statement of law came to be accepted and acclaimed as 'definition of Christian marriage'. The statutory provision and the position of law remained the same even after the enactment of the Judicature Act, 1873. This Act finally vested the jurisdiction in matrimonial causes in the High Court of Justice (Matrimonial, Probate and Admiralty Division). The various Acts that followed did not effect major changes in the substantive law. And the Supreme Court of Judicature (Consolidation) Act, 1925 specifically provided: "The jurisdiction vested in the High Court and the Court of Appeal respectively shall, so far as regards procedure and practice, be exercised in the manner provided by this Act or by rules of Court, and where no special provisions contained in this Act or in rules of Court with reference thereto, any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which it might have been exercised by the Court to which it formerly belonged". And such jurisdiction formerly belonged to the Ecclesiastical Courts in England. Therefore Lord Merriman laid down that the principles which the Court must follow were, in nullity cases, those of the old Ecclesiastical Courts and that neither the statute nor the common law of England had interfered with the pre-Reformation canon law.

If one goes through the entire statutory law of England from 1857 to 1925, it can be seen that the civil law had not specified any ground for declaration of nullity of marriage and those grounds remained the same as those provided under the laws of the Church. The statute came into being for the purpose of conferring exclusive jurisdiction on certain courts and to provide for grounds of divorce, which the Church had not recognised. The Indian Divorce Act, 1869 is to be understood and interpreted in the background of the development of the law in England, as explained above.