The Supreme Court has issued notice on a public interest writ petition for a declaration that the Canon Law is the personal law of Indian Christians and that a decree of dissolution of marriage granted by an ecclesiastical court is valid and binding.
The petition also challenges the jurisdiction of criminal courts in India, to prosecute Roman Catholics under Section 494 of the Indian Penal Code for the alleged offence of bigamy without considering the Canon Law.
Chief Justice Altamas Kabir and Justices Anil R. Dave and Vikramajit Sen were on a Bench which issued the notice on Friday.
According to the 84-year-old petitioner, Clarence Pais, who was former president of the Catholic Association of Dakshina Kannada in Karnataka, the issue affects over one crore citizens “who are Indian Christians/Catholics governed by the Code of Canon Law both regarding marriage and its dissolution.”
He said: “The Canon Law enjoins that Catholics are required to marry in a Catholic church and equally enjoins that they seek nullity in the canonical court (ecclesiastical court/tribunal) also under the Code of Canon Law. Otherwise, the marriage and the dissolution will not be recognised by the Catholic Church.”
About 1,000 applications in Mumbai and about 100 in Mangalore — not to mention Kolkata and Chennai — for a declaration of nullity were pending before ecclesiastical tribunals in the country, the petitioner pointed out. “If the criminal courts, while considering prosecution under Section 494 of the IPC, reject the application of the Canon Law as the Personal Law of Catholics, hundreds of spouses under the second marriage will have to face prosecution, jail and a fine.”
Also, “the minister of the church who blessed the nuptials of the second marriage runs the risk of being prosecuted for abetment.” As a result, proceedings of the ecclesiastical court under the Canon Law might come to a grinding halt, “especially when it is realised that the Church decree will be a stepping stone to imprisonment under the Civil Law.”
When the courts recognised dissolution (by pronouncing the word talaq three times) under the Mohammedan Law, which is Personal Law of Muslims, they should also recognise the Canon Law as the Personal Law of Indian Catholics. Several representations were made by the Catholic community but there was no proper response from the government, he said.
