It has already been pointed out that while in respect of bigamous marriage or marriage with an insane person, s. 18 contemplates a decree declaring such marriage to be null and void on the footing that such marriage is absolutely void and not merely voidable. Section 21, however, refers to such decree as one annulling the marriage which is and can be passed when the marriage is voidable and not void per se.

Section 21, which purports to provide for legitimacy of children of annulled marriages, appears to be productive of arbitrary and incongruous results when compared to the analogous provisions of the Hindu marriage Act and the Special Marriage Act. The Parsi Marriage and Divorce Act has somewhat similar provisions in s. 3(2), though those are not as comprehensive as those in s. 16 of the Hindu Marriage Act and s. 26 of the Special Marriage Act.

Under Section 11 of the Hindu Marriage Act, a marriage is void
if—(a) any of the parties had a spouse living at the time of marriage, or
(b) the parties are within the degrees of prohibited relationship, or
(c) the parties are Sapindas of each other.

And under Section 12, a marriage is voidable if (a) the marriage has not been consummated owing to the impotence of the respondent, or, (b) any of the parties was suffering from unsoundness of mind or other mental disorder, or,
(c) the consent of the petitioner was obtained by force or fraud, or
(d) the respondent wife was at the time of the marriage pregnant by some person other than the petitioner husband.

But Section 16 clearly provides that any child of a void marriage, and also any child of a voidable marriage begotten or conceived before a decree of nullity is made, shall be deemed to be the legitimate child of the parties, though such child shall not be entitled to any right in or to the property of any other person as such child.

 

Under Section 24 of the Special Marriage Act:

(a) a bigamous marriage,
(b) a marriage with a person of unsound mind or having other mental disorder,
(c) a marriage with a male below 21 years or with female below 18 years, or a marriage with a person within the degrees of prohibited relationship, is void.
 

And under Section 25, a Marriage is voidable if -

(a) the marriage has not been consummated owing to be wilful refusal of the respondent, or
(b) the respondent wife was at the time of marriage pregnant by some person other than the petitioner-husband or
(c) the consent of either party to the marriage was obtained by coercion or fraud.

But s. 26 has provided that any child of a void marriage, and also any child of a voidablc marriage, begotten or conceived before a decree annulling the marriage is made, shall be deemed to be the legitimate child of the parents, but shall not be entitled to any rights in or to the property of any other person as
such child.

Section 3(1) of the Parsi Marriage and Divorce Act provides that no marriage shall be valid if—(a) the parties are related to each other within degrees of prohibited
relationship, or (b) the marriage has not been solemnised according to the Parsi form of ceremony called Ashirvad, or
(c) if the male spouse has not completed 21 years of age or the female spouse has not completed 18 years of age.

But Section 3(2) has nevertheless provided that notwithstanding the invalidity of the marriage, any child of such marriage shall be legitimate. But neither s. 3(2) nor any of the provision of the Act takes care of the child of any other marriage, which may be void or voidable on any other ground, e.g., bigamy.

The provisions of Section 3 of the Parsi Marriage and Divorce Act thus appear to be much less comprehensive than the analogous provisions in Section 26 of the Special Marriage Act and s. 16 of the Hindu Marriage Act and would, therefore, result in denial of Equality before the Law and Equal Protection of the Laws to the Parsis. The Parsis as a community have accordingly been discriminated against by unequal and unreasonable laws.

But the Christians, governed by the Divorce Act, have been much more discriminated. The Divorce Act contains several grounds in s. 19 under which a marriage may be declared to be null and void or may be annulled. Section 21, however, provides that children of such marriages shall be entitled to succeed to the estate of the parents only when the marriage is annulled.

(a) on the ground that another spouse was living at the time of the marriage but that the subsequent marriage was contracted in good faith and with full belief of the parties that such other spouse was dead, or

(b) on the ground of insanity of any of the parties. Section 21 does not make any provision for the children when the marriage is annulled on any other ground, e.g. on the ground of the parties being within the degree of prohibited relationship, or on the ground of any of the parties being insane. When compared with the provisions of Section 16, Hindu Marriage Act or s. 26, Special Marriage Act, the provisions of s. 21 are obviously discriminatory and since the Divorce Act applies to the parties solely on the ground of their professing Christian religion, the discrimination would appear to be based on religion and thus violative of Art. 15 of the Constitution.

For More Details on Christian law and Christian Marriage Act Consult Adv.T.Choudhury at ph no: 09650499965

Also check:
Mutual Divorce in India
Divorce Lawyers in India
Family Laws in India