A Supreme Court bench comprising Justice A.R. Dave and Justice A.K. Goel has reportedly admitted a Writ Petition, demanding a direction to make orders of church and ecclesiastical courts legally binding. The Petition had been filed by Clarence Pais, who is the former president of a Catholic association in Karnataka state.
Representing the Petitioner, Senior Advocate Soli Sorabjee prayed that the Court should declare canon law as personal law of Indian Christians. This would necessarily imply that dissolution of marriage granted by ecclesiastical court would be valid and binding as Indian Catholics are governed by the code of Canon law both regarding marriage and divorce.
Further, Canon law refuses to recognize marriage not conducted in a Catholic Church or divorce not passed in a Canonical Court.
The Petitioner drew a parallel with legal sanctity being granted to oral triple talaq for Muslims and demanded to know why canon law decreed could not be made applicable to Christians. He pleaded that many Catholics, who re-married after getting divorce from ecclesiastical courts under Canon law, were facing charges of bigamy as law courts did not recognize the divorce.
The plea was opposed by the Centre which contended that Canon law could not be allowed to override Indian Christian Marriage Act, 1872 and Divorce Act, 1869. “Since the power for dissolution of marriage has been vested in the court, there is no scope for any other authority including ecclesiastical tribunal to exercise power,” the government said.
The Government further contended, “It is well settled law that when 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 coming into force of such Act. In view of the provisions as contained in Christian Marriage Act and the Divorce Act, it is clear that the jurisdiction of ecclesiastical court is excluded in the matter of divorce.”