Mangaluru lawyer’s PIL on church divorce, not favoured by SC

Mangalore Today News Network

Mangaluru, Jan 20, 2017: The Supreme Court on Jan 19,  Thursday refused to give legal sanctity to divorce decrees granted by ’ecclesiastical tribunals’, popularly known as church courts. This means anyone remarrying after such a divorce decree would be committing the offence of bigamy.

A bench of Chief Justice J S Khehar and Justice D Y Chandrachud dismissed a four-year-old petition by Mangaluru’s octogenarian Catholic advocate Clarence Pais, who had sought legal sanctity for such decrees. He had pleaded that marriage and divorce among Catholics were governed by the church and in the absence of its recognition by law, unsuspecting men were facing prosecution for bigamy.

The court order, which dismissed the three-year-old PIL filed by Clarence Pais, an advocate and a former president of the Catholic Association of Dakshina Kannada in Karnataka, may also have a bearing on a clutch of petitions that have sought declaring triple talaq as unconstitutional and illegal.

Additional solicitor general Neeraj Kishan Kaul said the apex court ruling in the Molly Joseph vs George Sebastian case in 1996 had settled the issue on the authority of church courts.

Kaul said the SC 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 recognised under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters”.

The dismissal of the petition means any Catholic man who remarries after a divorce decree granted by a church court would be committing the offence of bigamy unless his divorce was sanctified by a court decree under the Christian Divorce Act, 1869.

Pais had said hundreds of applications seeking dissolution of marriage were pending before church courts. He said, “The Code of Canon Law regulates and provides for the solemnisation of marriage by the parish priest of a church, as also declaration of nullity of marriage. The Christian Marriage Act provides for the solemnisation 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.”

The Centre stood firm. “In view of the provisions as contained in Indian Christian Marriage Act, 1872, and the Divorce Act, 1869, it is clear that the jurisdiction of ecclesiastical courts is excluded in the matter of divorce,” it said in its reply affidavit filed through advocate R Balasubramanian.