Wednesday, 6 July 2016

Supreme court: Divorce decrees by church courts is invalid

NEW DELHI: The Supreme Court said on Monday divorce decrees granted by ecclesiastical tribunals, popularly known among Christians as church courts, had no legal sanctity and anyone remarrying after such a divorce decree would be committing an offence.

This observation came from a bench of Chief Justice T S Thakur and Justice D Y Chandrachud, which was hearing a petition filed by Bengaluru-based octogenarian Catholic advocate Clarence Pais, who has sought legal sanctity for divorce decrees granted by church courts. He had pleaded that marriage and divorce among Catholic Christians were governed by the church and in the absence of its recognition by law, unsuspecting men were facing prosecution for bigamy.

Additional solicitor general Neeraj Kishan Kaul said the SC ruling in a case in 1996 had settled the issue. The Supreme Court in its 1996 ruling in the Molly Joseph vs George Se bastian case had settled the issue on the authority of church courts. It had ruled that "unless Divorce Act recognises the jurisdiction, authority or power of ecclesiastical tribunal (sometimes known as church court), any order or decree passed by such tribunal cannot be binding on the courts which have been recognized under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters".

After the bench went through the judgment, it told Pais's counsel Soli J Sorabjee, "Unless a divorce decree is granted by the competent court, the decrees granted by church court are not valid. Any man who remarries after divorce decree granted by church court will be committing an offence."Finding the going tough, Sorabjee said he just wanted to request an adjournment for a detailed hearing later. Though the court was reluctant, it decided to accept the former attorney general's request. The petitioner had said hundreds of applications seeking dissolution of marriage were pending before church courts. The petitioner had said, "The Code of Canon Law regulates and provides for the solemnization of marriage by the parish priest of a church, as also declaration of nullity of marriage. The Christian Marriage Act provides for the solemnization of marriage in a Catholic church in accordance with the provisions of the canon law and declaration of its nullity is regulated by the Code of Canon Law."

"If criminal courts, while considering prosecution under IPC Section 494 (bigamy), reject the application of canon law as the personal law of the Catholics, a very serious result will follow and hundreds of spouses under the second marriage will have to face prosecution, jail and fine. "Canon law is the personal law of the Catholics of India and canon law has to be applied and enforced by a criminal court while deciding a case under Section 494 of the IPC and sanction of prosecution considered for alleged bigamy of a Catholic spouse who has married after obtaining a decree for nullity of the first marriage from the ecclesiastical tribunal."

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