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‘Church courts’ cannot veto divorce law, says Supreme Court

Disposes of plea seeking recognition of Canon law as the personal law of Indian Catholics

January 20, 2017 12:33 am | Updated 12:33 am IST - NEW DELHI:

Canon law and decrees of divorce given by ecclesiastical tribunals or ‘Church Courts’ cannot veto the statutory law of divorce, the Supreme Court said on Thursday.

Thus saying, a Bench of Chief Justice of India J.S. Khehar and Justice D.Y. Chandrachud disposed of a writ petition filed in 2013 seeking a judicial declaration that divorce decrees passed by ecclesiastical tribunals are valid and binding.

1996 verdict

The Supreme Court referred to its 1996 judgment in the case of Molly Joseph versus George Sebastian upholding the binding nature of the Indian Divorce Act of 1869, which governs divorce among Christians.

In Molly’s case, the court said the implication of the Canon law is confined to either theological or ecclesiastical, but has no legal impact on the divorce or annulment of marriage between two persons professing the Christian religion.

“After the Divorce Act came into force, a dissolution or annulment under such personal law cannot have any legal impact as statute has provided a different procedure and a different code for divorce or annulment,” the Supreme Court had held.

Triple talaq argument

In his petition, Pais, a former president of the Catholic Association of Dakshina Kannada in Karnataka, had argued that when courts can recognise dissolution by triple talaq under the Mohammedan personal law, they should also recognise the Canon law as the personal law of Indian Catholics.

The court is presently hearing a row of petitions, including a suo motu one, on the question whether practices of Islamic personal law like triple talaq and polygamy discriminate against Muslim women.

The petition had challenged why courts prosecute Roman Catholics under Section 494 of the Indian Penal Code for the alleged offence of bigamy without considering the Canon law. Further, it added that even “ministers of the church who blessed the nuptials of the second marriage run the risk of being prosecuted for abetment.”

The petitioner, represented by senior advocate Soli Sorabjee, had contended that the case touches the lives of over one crore citizens “who are Indian Christians/ Catholics governed by the Code of Canon Law both regarding marriage and its dissolution.”

Marriage, dissolution

“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,” the petition had said.

About 1,000 applications in Mumbai and about 100 in Mangaluru — not to mention Kolkata and Chennai — for a declaration of nullity were pending before ecclesiastical tribunals in the country, the petitioner pointed out.

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