Divorce granted by church court can't override law: SC
In August 2015, the government opposed the plea saying Canon law could not be allowed to override Indian Christian Marriage Act, 1872 and Divorce Act, 1869.
The Supreme Court of India in its order of 19 January 2017 said, ‘the decrees of divorce given by ‘Church Courts’ or ecclesiastical tribunals under Christian personal law are not valid as it cannot override the law’.
The judgement was passed while hearing a 2013 PIL filed by Clarence Pais, a former president of a Karnataka Catholic association. The PIL sought a judicial declaration that divorce decrees passed by ecclesiastical tribunals are valid and binding.
Argument in support of the Plea
In his plea, Pais said that divorce granted by a Church is set up under its personal law and it should be considered valid under the Indian common law. To support his case, he exemplified the case of triple talaq for granting a divorce to Muslim couples.
He also put a question in front of the court. In his question, he asked when the dissolution of marriage by pronouncing talaq three times under Mohammedan Law, which is a Personal law of the Muslims, is recognised by the courts of India then why the purpose of dissolution of marriage under Canon Law can’t be recognised, it is a personal law of the Indian Catholics.
Dismissing the plea, the Supreme Court bench comprising Chief Justice JS Khehar and Justice DY Chandrachud said that the issue was settled by it in its 1996 verdict delivered in the case of Molly Joseph versus George Sebastian.
Judgement of 1996
In its ruling in 1996, the court ruled that the Canon Law (personal law of Christians) can have theological or ecclesiastical implications to the parties. But after the Indian Divorce Act, 1869 came into force, dissolution or annulment granted under such personal law cannot have any legal impact as the statute has provided a different procedure and a different code for divorce or annulment.
Canon Law (personal law of Christians)
It is a Canon Law is a Christian Personal Law and it deals with marriage, divorce, adoption, guardianship and succession. Its provisions for marriage are recognised as the personal law of Catholics in India, except Goa. Under the canon law, the Catholics are required to marry in Catholic Church and seek nullity in the canonical court/tribunal.
Christians across India except Goa are governed by the Christian Marriage Act of 1872.