Supreme Court to examine plea for canon law’s recognition

The Supreme Court on Monday agreed to examine a public interest writ petition for a declaration that canon law was the personal law of Indian Christians and that a decree of dissolution of marriage granted by an ecclesiastical court was valid and binding. The petition also challenged the jurisdiction of criminal courts in India to prosecute Roman Catholics under Section 494 of the Indian Penal Code for the alleged offence of bigamy without considering canon law.

A bench comprising Chief Justice T.S. Thakur and Justice D.Y. Chandrachud expedited the hearing of the PIL after hearing senior counsel Soli Sorabjee and additional solicitor general Neeraj Kishan Kaul, for the Centre, opposing the petition. The CJI asked the counsel to furnish a list of persons facing prosecution in various courts and expedited the hearing.

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

He said: “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.”

About 1,000 applications in Mumbai and about 100 in Mangalore, besides those in Kolkata and Chennai, for a declaration of nullity are pending before ecclesiastical tribunals in India, the petitioner said. “If the criminal courts, while considering prosecution under Section 494 of the IPC, reject the application of canon law as the Personal Law of Catholics, hundreds of spouses under the second marriage will have to face prosecution, jail and a fine.”

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

The plea was opposed by the Centre which contended that canon law could not be allowed to override the Indian Christian Marriage Act, 1872, and Divorce Act, 1869. Citing an earlier judgment, the Centre said, “Since the power for dissolution of marriage has been vested in the court, there is no scope for any other authority, including the ecclesiastical tribunal, to exercise power. It is well settled law that when the legislature enacts a law, even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before the coming into force of such an act. In view of the provisions as contained in the Christian Marriage Act and the Divorce Act, it is clear that the jurisdiction of ecclesiastical court is excluded in the matter of divorce.”