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Why Canon Law can’t grant divorce legally

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While hearing Clarence Pais vs Union of India and Ors, the Supreme Court on Monday held that divorce decrees pronounced by ecclesiastical tribunals established under the Canon Law have no legal sanctity. The Supreme Court allowed Clarence Pais’ application for an early hearing on the matter following his fervent plea that he is 80 years old and that the issue has a bearing on 1,000 pending criminal cases.

In India, Christian marriages and divorces are primarily governed by the Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869. However, there are certain sects of Christians (mainly Catholics) in India who follow the Canon Law which governs rules related to marriage, divorce, succession, adoption and guardianship. However, in case of any conflict, the statutory law prevails.

Under the Canon Law, Indian Christians seeking divorce must first obtain a decree of dissolution of marriage from ecclesiastical courts established under the Canon law. On obtaining such a divorce decree, he/she is allowed to remarry.

However, Indian courts do not recognize the divorce decree passed by ecclesiastical courts as there are existing provisions regulating divorce under the statutory Acts of 1872 and 1869. As a result, Christians who remarry after obtaining the divorce decree from church are held guilty under Section 494 of the IPC for bigamy.

The Supreme Court held that cases such as Molly Joseph vs George Sebastian have already settled the law on the issue. The Kerala High Court had said in the case: “from a bare reference to the different provisions of the Act including preamble thereof it is apparent that Divorce Act purports to amend the law relating to divorce of persons professing the Christian religion and to confer upon courts which shall include District Court and the High Court jurisdiction in matrimonial matters. In this background, unless the Divorce Act recognizes the jurisdiction of Ecclesiastical Tribunal (sometimes known as Church Court) any order or decree passed by such Ecclesiastical 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”.

Clarence Pais has been pleading for legal recognition of the divorce decree passed by ecclesiastical courts that are established under the Canon Law.

He contends that there are thousands of Indian Christians who are facing criminal charges for bigamy because Indian courts do not recognize the divorce decree passed by the ecclesiastical courts.

Pais also points out that if the oral triple talaq in case of Muslims is valid before courts, then they should also recognize the Canon Law and divorce decree passed by the ecclesiastical courts.

The argument against Pais’ plea is that personal laws are subordinate to the laws passed by the legislature and the Canon Law cannot prevail over the Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869.

—By Shivangi Sud

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