Canon Law, Not Civil Law, Should Govern Christian Divorce: A Case Before the Supreme Court

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The Supreme Court has issued an opinion on a public interest petition for a declaration that canon law is the personal law of Indian Christians and that a decree of marriage dissolution granted by an ecclesiastical court is valid and binding.

The petition also challenges the jurisdiction of the criminal courts in India, to prosecute Roman Catholics under section 494 of the Indian Penal Code for the alleged offense of bigamy regardless of canon law.

Chief Justice Altamas Kabir and Justices Anil R. Dave and Vikramajit Sen were on a bench that released the opinion on Friday.

According to 84-year-old petitioner Clarence Pais, former president of the Catholic Association of Dakshina Kannada in Karnataka, the problem affects more than one crore of citizens “who are Indian Christians / Catholics governed by the Code of Canon Law concerning to both marriage and its dissolution.

He said: “Canon law enjoins Catholics to marry in a Catholic church and also enjoins to seek nullity before the canonical court (ecclesiastical court) also under the Code of Canon Law. Otherwise, marriage and dissolution will not be recognized by the Catholic Church.

Around 1,000 claims in Mumbai and around 100 in Mangalore – not to mention Kolkata and Chennai – for a declaration of nullity were pending in the country’s ecclesiastical courts, the petitioner pointed out. “If the criminal courts, while considering prosecution under Article 494 IPC, reject the application of canon law as the personal right of Catholics, hundreds of spouses from the second marriage will 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 complicity”. As a result, ecclesiastical court proceedings under canon law could come to an abrupt halt, “especially when one realizes that the decree of the Church will be a stepping stone to imprisonment under civil law.”

When the courts have recognized dissolution (by pronouncing the word talaq three times) under Mohammedan law, which is the personal right of Muslims, they should also recognize canon law as the personal right of Indian Catholics. Several representations were made by the Catholic community but there was no proper response from the government, he said.

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