By John B Monteiro

Feb 7: The subject of marriage, divorce, annulment of marriage and remarriage under Canon Law of the Catholic Church, governing marital matters among Catholic couples, received a rude shock by a recent judgment of the Supreme Court (SC) which is bound to have far-reaching repercussions for the Catholic community in India and the scope and application of Canon Law of the Church for Catholics in India. But, first the SC judgment as reported on a muted note in the Indian media.

Canon Law and decrees of divorce given by ecclesiastical tribunals or ‘Church Courts’ cannot veto the statutory law of divorce, the Supreme Court ruled on January 19, 2017. 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 Catholic ecclesiastical tribunals are valid and binding.

The SC 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, SC had 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 SC had held.

In his petition, Clarence Pais, Mangaluru-based former president of the Catholic Association of Dakshina Kannada (South Kanara – CASK) 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 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.... 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 the ecclesiastical tribunals in the country, the petitioner had pointed out.

The writ petition in SC (No 57 of 2013) by Pais was filed against the following background.

Godwin D’Souza married Shanthi D’Souza (nee Lobo) at Holy Cross Church, Kulshekar, Mangaluru on August 12, 1999. The marriage broke up shortly thereafter and the wife stayed away from the husband. Then, Shanthi filed an application for dissolution of marriage in the Ecclesiastical court of the diocese of Mangalore and the marriage was held to be a nullity and a Dissolution Decree, dated December 16, 2002 to the effect was passed. Hence, under Canon Law, Godwin became eligible to remarry. He married for a second time on July 6, 2003. Two children were born of the second marriage. Then, on July 29, 2010 Shanthi filed a complaint in the ICJM Court (Mangaluru) charging Godwin of the offence of Bigamy on the ground that the church dissolution made under Canon Law was not binding on the Criminal Court because Canon Law is not recognised by the State as Personal Law of Catholics.

Recalling the genesis of the Supreme Court writ and on being approached by Godwin for legal defence, Pais says: "I recalled my first reaction to the discrimination meted out to Christians under the Indian Succession Act by making them liable to probate the Wills of their ancestors – a requirement that was not applicable to Hindus and Muslims. I researched this subject and convinced myself that, in the second time in my life, I should challenge the current interpretation of the law as applicable to Catholics."

That case about probate in SC, as the latest one, was handled by Soli Sorabjee, ex-Attorney General of India. As in the present case, Pais lost his case on probate in SC. But, he took the Parliamentary route with the help of his childhood friend, George Fernandes, then Union Defence Minister, who put him on to Arun Jaitley, present Finance Minister and then Law Minister. An Amendment to the relevant law was passed and the benefit extended not only to Christians but also other minorities like Parsis."

Even in the present case, Pais says that the Supreme Court delivered the Judgment in the absence of his Senior Advocate Soli Sorabjee and as a result the Judgment was like an Exparte Judgment delivered without hearing the case of the Petitioner Pais. There is a move on to have the case reopened/reviewed and argued comprehensively by Soli Sorabjee as the Advocate of the Petitioner Pais as also, likely, by Kapil Sibal, Senior Advocate for Casmir D’Souza (father of Godwin).

Irrespective of Pais succeeding or not in his plaint, there is a need for having any judgment on the subject to be applied prospectively. Pais has cited in his plaint that over 1000 cases were pending in ecclesiastical Courts in India and the number might have gone up substantially as divorce is no more taboo among Catholics as it was once. There would also be thousands of cases already decided by church tribunals. So, the SC judgment or a parliamentary amendment to the Act concerned should make the judgement/amendment prospective (Say giving a window of one year to dispose of the cases pending in Ecclesiastic Courts). It should never be retrospective or we will end up with thousands of bigamist husbands/wives {"Bigamy is one way of avoiding the painful publicity of divorce and the expense of alimony." – Oliver Herford, American writer (1863-1935)} and many more illegitimate children {Bastards in common parlance – "Almost in every kingdom the most ancient families have been at first princes’ bastards," – Robert Burton, English scholar (1577-1640)}. Who will carry this ignominy for no fault of theirs. It will also be an invitation for vengeance litigation – a potential land-mine as bigamy is punishable with jail up to seven years.

Divorce and Annulment in Catholic Church

An annulment is commonly and incorrectly called a "Catholic divorce". The differences between divorce and annulment can be confusing to Catholics and non-Catholics alike — especially when remarriage is a possibility. Divorce and annulment aren’t the same thing; they differ in two ways:

First, divorce is a civil law decree from the state, whereas an annulment is a Canon Law decree from the Church. In other words:

The state issues a marriage license; and the state issues a divorce decree.

The Church celebrates the sacrament of matrimony; and only the Church can issue a Decree of Nullity (known as an annulment). The Church does not believe in divorce.

The second is the existence of the marriage after a divorce or annulment:

A civil divorce basically says that what was once a marriage is no longer a marriage. The marriage took place but ended. A previously married couple no longer has the legal obligations of husband and wife.

An annulment, on the other hand, basically says that the Sacrament of Matrimony never took place to begin with.

Civil divorce ends a civil marriage; a Church annulment declares that the Sacrament of Matrimony didn’t occur from day one.

Church annulments are not a form of divorce and have no affect whatsoever on the legitimacy of children, because that’s a purely legal (civil) matter. Annulments don’t make the children born of that union illegitimate. Annulments declare that a marriage was never a valid sacrament in the first place even if both parties entered into it with good faith and intentions.