• Church court’s decrees not binding on judiciary: SC

    July 05, 2016

    Once upon a time, it was the topic of triple talaq. Now the centre of attention has shifted from the Muslim laws to the Christian laws it seems.

    The Supreme Court said on Monday divorce decrees granted by ecclesiastical tribunals, popularly known among Christians as church courts, had no legal sanctity and anyone remarrying after such a divorce decree would be committing an offence.

    The statement and judgment came from a bench comprising of Chief Justice T S Thakur and Justice D Y Chandrachud, who were hearing a petition filed by Bengaluru-based octogenarian Catholic advocate Clarence Pais.  He had pleaded that marriage and divorce among Catholic Christians were governed by the church and in the absence of its recognition by law, unsuspecting men were facing prosecution for bigamy.

    The Supreme Court in its 1996 ruling in the Molly Joseph vs George Se bastian case had settled the issue on the authority of church courts. It had ruled that “unless Divorce Act recognises the jurisdiction, authority or power of ecclesiastical tribunal (sometimes known as church court), any order or decree passed by such 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“.
    The apex court’s reply to Pais's counsel Soli J Sorabjee was this: “Unless a divorce decree is granted by the competent court, the decrees granted by church court are not valid. Any man who remarries after divorce decree granted by church court will be committing an offence.“

    The petitioner had said, “The Code of Canon Law regulates and provides for the solemnization of marriage by the parish priest of a church, as also dece laration of nullity of marriage. The Christian Marriage Act provides for the solemnization of marriage in a Catholic church in accordance with the provisions of the canon law and declaration of its nullity is regulated by the Code of Canon Law.

    “If criminal courts, while considering prosecution under IPC Section 494 (bigamy), reject the application of canon law as the personal law of the Catholics, a very serious result will follow and hundreds of spouses under the second marriage will have to face prosecution, jail and fine. “Canon law is the personal law of the Catholics of India and canon law has to be applied and enforced by a criminal court while deciding a case under Section 494 of the IPC and sanction of prosecution considered for alleged bigamy of a Catholic spouse who has married after obtaining a decree for nullity of the first marriage from the ecclesiastical tribunal.“


    Religious laws are there to guide the people on how to live in piety and peace. The national laws do the same. But in a country like India, where multi-cultural and multi-religious communities have lived in harmony for centuries, the two should not clash. Then again, the question of a Uniform Civil Code pops up in mind. Before the country gets the UCC, one thing should be clear in our minds. Law protects the rights and interests of people. Be it the religious laws or the national laws. But if there are two views on the same matter, national laws should prevail. Religious laws could do well in countries like Pakistan and Afghanistan (or not). But India should learn from these small details and put such instances to rest.

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