Comments on the Proposed Christian Marriage Bill

(Fr. Joseph Vadakumcherry, Archdiocesan Tribunal, Ernakulam)

By the enactment of the envisaged 'Christian Marriage and Matrimonial Causes Act, 1990', a common 'Christian Personal Law' on marriage will come into force, replacing thereby the archaic and outdated Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872. The proposed draft Bill is the net result of the initiative taken by the Joint Women's Programme (JWP) and the Church of North India (CNI), which was later endorsed also by the National Council of Churches in India (NCCI).

The draft Bill contains 44 Sections distributed in 7 Chapters. Chapter I carries the title 'Preliminary' and contains the short title, definitions and explanations of certain legal terms in Sections 1 -- 3. Section 1: (ii) reads: "It extends to the whole of India except the State of Jammu and Kashmir.......". It is not understood why the State of Jammu and Kashmir which is an integral part of India as a whole should be excepted from the application of this Bill! The Christians of various denominations belonging to the State are truly Indian Christians!

Section 2 reads: "Nothing in Chapter VI of this Act shall apply in relation to a marriage of Roman Catholics and Christians of Orthodox tradition, unless the parties or one party to the marriage records in writing his/her decision to be governed by this Chapter before a Notary Public (at the time of their marriage or) at any time during the subsistence of their marriage". Chapter VI indeed deals with the question of divorce. As for the Catholic spouses it is essential that the recording of the 'decision' mentioned above is carried out precisely in connection with the marriage itself, and not later at any time during the subsistence of the marriage. For, a valid Christian Marriage cannot be but at the same time a Sacrament whereby it is also indissoluble. An intention from the part of either of the spouses to enter into a dissoluble marriage would automatically render the said marriage invalid from the very beginning. Therefore only on making clear the intention of entering a sacramental marriage or otherwise at the time of the marriage, the Church can decide upon administering a valid sacramental marriage or not to the party concerned.

In Section 3(a) the term 'Christian' is defined as 'a person who professes and practises the christian religion'. This definition, is inadequate without the incorporation of the term 'Baptism' into it, because, Baptism alone is the distinctive and juridically identifiable basic factor of becoming a christian.

In Section 3(m) the explanation No.1 reads: "Relationship includes, (a) relationship by half or urine blood as well as by full blood". It is to be noted that the given explanation of relationship includes only consanguinity, and not affinity, whereas affinity also is mentioned in S.27(3) while speaking about the prohibited degree of relationship.

Chapter II deals with the conditions for christian marriage in Sections 4 - 5. Section 4 reads: "Every marriage between persons one or both of whom is or are christians shall be solemnised in accordance with the provisions of this Act, provided that in the case of tribal christians the Customs and Usages demand that both be christians". According to the Canon Law of the Catholic Church disparity of cult among the spouses is a diriment impediment to marriage, and hence for the solemnisation of a sacramental christian marriage it is essential that both the spouses be christians.

S.5 lays down conditions for the christian marriage as follows: (i) "Neither party has a spouse living at the time of the marriage".

(ii) "At the lime of marriage neither party, (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage or procreation of children". There is some ambiguity in the use of the phrase 'valid consent' in clause (b) above: for, one who is unfit for marriage due 10 a mental disorder cannot at all give a valid marriage consent. Marriage consent has to be valid when considered both subjectively as well as objectively. Subjectively, i.e., in relation to the agent of the consent, the marriage consent should be a human act which requires that a deliberate and free practical discretionary assent of the mind is elicited from the part of the agent, and so the unsoundness of the mind as mentioned in (a) above renders the marriage consent invalid subjectively. Objectively on the other hand, i.e., in relation to the object of the marital consent, unless the agent is able to reach out, honour and sustain what constitutes the object of marriage (the rights and duties of married life), he would not be in a position to elicit a marriage consent validly, because, such a consent would be bereft of object. Therefore one who is unfit or unable to assume and fulfil the essential obligations of married life due to a mental or personality disorder would not be capable of giving a valid consent objectively. Hence the diction in (b) above -- 'though capable of giving a valid consent' is not correct.

Further, the conditions implied in clauses (a) & (b) are rather hard and impracticable since the verification of the same might require a judicial probe leading to very serious inconveniences. As a matter of fact, lunacy and idiocy have been made grounds for nullity of marriages in Section 27 (4), and this will serve all practical purposes regarding the nullity of the marriages arising from the defect of intellect or insanity or inability to assume and fulfil marital obligations on the score of any serious personality disorder.

(iii) "The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage".

(iv) "The parties are not within the degree of prohibited relationship".

(v) "Where the marriage is to be solemnized outside India, both the parties should be domociled in India'.

Chapter III deals with the solemnization of christian marriages. Sections 6 and 7 speak about persons authorised to solemnize marriages. Section 6 reads: "Marriage may be solemnized under this Act, (a) by any minister of a Church, who has been appointed according to the rules and regulations of the Church". It is to be noted that according to the rules and practice existing in the Catholic Church, marriages are solemnized not only by making use of the official power conferred to by appointment to an office, but also by making use of the delegated power. Hence the term 'deputed' or 'delegated' should be added disjunctively to the term 'appointed' in the above mentioned clause in order to read: "who has been appointed or deputed".

Sections 8 - 11 deal with the appointment of Marriage Registrars, and Sections 12-22 speak of solemnization of marriages by minister of Churches, by licensed minister, and by Marriage Registrars. Section 23 takes on the 'Registration of Marriage'.

Chapter IV deals with 'Judicial Separation' in Sections 24 - 25. In this connection it is to be noted that the Church Tribunals also should be entitled to issue the decree of 'Separation from bed and broad', which practice is in force in the Catholic Church according to Canon Law.

Chapter V deals with 'Nullity of Marriages*. Section 26 speaks of 'Void Marriages' which are considered such for reasons either of an existing marriage bond, or unsound mind, or mental disorder, or prohibited degree of relationship of the parties to marriage. Section 27 takes on 'Voidable Marriages', which are declared such on the grounds of impotence, in consummation, prohibited degree of consanguinity or affinity, lunacy or idiocy, existing marriage bond, and fraud or force under certain conditions. In this connection it is to be noted that Canon Law offers more grounds of nullity than those envisaged in the proposed Act.

In Clause 6 under Section 27 marriages of Roman Catholic or of member of any other Church which have been declared null and void according to the rules and regulations of the Church are included in the category of voidable marriages. However, similar to the event of 'Registration of Marriages' as contemplated in S.23, there is no provision as to the taking effect of the decree on nullity issued by the Church Tribunals in respect of voidable marriages mentioned in Section 27, Clause 6.

Section 28 deals with the question of 'Legitimacy of Children' in the case of void/voidable marriages.

Chapter 6 takes on 'Grounds of Divorce' in Ss. 29 - 32, and on 'Remarriage of Divorced Persons' in S.33. S.33(ii) reads: "No minister of the Church shall be compelled to solemnize- any such marriage", i.e., remarriage. This prescription is earmarked precisely for indemnifying the Catholic position in respect of divorce and remarriage of divorced persons.

Chapter VII deals with jurisdiction and procedure: Ss. 34 -39 on Decree in Proceedings, and Ss. 40-44 on 'Relief for Respondent in Divorce and other Proceedings'

S.41 reads: "All proceedings under this Act shall be regulated as far as may be, by the Code of Civil Procedure, 1908.

While dealing with the question of evolving an updated personal law on Christian Marriage, we should indeed adopt a realistic and practical approach. We have to face, rather than turn our back to, certain realities which are concomitant to the question of a common Civil Code on marriage for the Christian communities of India.

On one side we have to take into account the bare fact that the hackneyed provisions of the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872 are still operative, and that as far as the law of the Country stands today, the Civil Judiciary, while handling the marriage cases of the Christians, cannot overlook the above mentioned Acts.

Since all the christian citizens of this Country come within the mischief of the Indian Divorce Act and the Indian Christian Marriage Act, it is high time that all the christian communities, irrespective of their denomination, should, through concerted efforts, try their level best to get the archaic and outdated civil marriage law either repealed or updated. There is no point in bringing about amendments to the Acts mentioned above, as it would only be tantamount to initiating a 'process of grafting' on an age old disintegrating tree trunk.

On another side we can see that the Catholic denomination of the Christian communities of India is already in possession and making use of a by far advanced codified system of personal religious law, namely, the Canon Law, for matters matrimonial. In. fact, Canon Law on marriage is invariably concerned with the spiritual values implied in the christian marriage which is a Sacrament. Hence it follows that the civil law should not only not go against these spiritual values, but should certainly safeguard them positively by giving due recognition to the personal religious law of the Catholics Respect for personal law would indeed be the key note of any democratic welfare society.

There is also another reality of no lesser importance which requires serious consideration. It is the fact regarding certain civil rights, for example, divorce, which were availed of by some of the non-Catholic christian denominations of India under the Indian Divorce Act.

It is the privileged task of any democratic secular Government to enact law-in line with the principle of equity and fairness which would ensure and enable the citizens belonging to the different religious denominations to avail of the civil and religious rights without any tinge of discrimination.

Hence, granted that the Catholic community is already availing of a codified system of religious law on marriage, it becomes a reasonable proposition that provision is made in the proposed 'Christian Marriage and Matrimonial Causes Act' to the effect that Canon Law of the Catholic Church on marriage is recognized as the personal law of the Catholic community of India with full civil effects, so much so, that the said community would be able to avail of their religious rights concerning the Sacrament 01 marriage, without any collision with or encroachment by the Civil Law of the Country. This provision may be incorporated in the proposed Act by replacing, by way of substitute clauses, the Section 2 of the Preliminary in Chapter I.

The enactment of the proposed Act may perhaps be protracted to a far away future beyond determination. Since the Indian Divorce Act and the Indian Christian Marriage Act remain still operative there remains also every chance for a collision between Canon Law and the Civil Judiciary whenever controversy arises in matter; connected with Catholic marriages. Although the Civil Courts in the past have pronounced in favour of Canon Law as personal law of the Catholics, few recent judgments of the Civil Courts of Kerala seem to have ignored such precedents.

However, since the Catholic community of India is at present availing of an updated codified personal religious law in order to deal with cases connected with the Sacrament of marriage, it is only meet and just that the Civil Judiciary while handling and taking decision on the marriage cases of the Catholics does not simply feign to assume as 'ignoramus' attitude and resort solely to the Indian Divorce Act and the Indian Christian Marriage Act. Otherwise, it will be tantamount to the obstinacy of a Surgeon who would only resort to those instruments belonging to the stone age in order to perform a surgical operation on persons of modern times, belonging to a particular religious community.

What is said above is just to pinpoint how much urgent and imperative is the need to arrive at a general consensus of all concerned on a Common Civil Code on Christian Marriage at the earliest, which would be consonant to the present day socio-juridical conditions and life situations of the Indian Christians of various denominations.

The Parkway Collision

(T.G. John, Advocate, Trichur)

This happened in the United States of America. In May, 1963 the Parkway Collision was the talk of New York City. In the City's Henry Hudson Parkway, a north bound car suddenly plunged through a six foot divider hedge, skittered into the southbound traffic and smashed head-on into another car. All of the people in the north bound car a seven year old boy, his great-grandparents, his great-aunt and a friend of the family were killed. In the midst of a gathering crowd, Gareth Martinis the driver of the other car (a young man of 23) peered into the mangled cars and advised spectators not to move the bodies. Then he ran off leaving his car parked on a nearby exit road. He was arrested a short time later but he sullenly refused to submit to the drunkometer test. He violently grabbed a Press photographer by the throat, clawed and kicked at the police struggling to pull him away and bit a cop's finger. Martinis was charged with drunken driving, reckless driving and leaving the scene of accident. He faced a maximum penalty of 1500 dollars and three years in jail.

Gareth Martinis was the son of Acting Supreme Court Judge Joseph Martinis who had sat as a Judge since 1950 in City Criminal Court, gaining a reputation for delivering strong reprimands to careless drivers. When New York City newspapers learned about the arrangements for Martinis' trial before the three-Judge-Panel in New York City Criminal Court they emitted growls of protest. But the District Attorney insisted that young Martinis would not get any special favour because of his father's position. Said the D.A. "It does not matter if he is the son of a Judge, or a President or a Governor. We treat them all alike."

Trial started. Two policemen testified that Martinis seemed drunk when he was arrested. But three other cops testified that Martinis appeared to be sober. -During the four day hearing, the prosecution case was very badly weakened by the conflicting testimony. The three judges deliberated only five minutes to find the judge's son innocent of all charges:

The State Department of Motor Vehicles held a hearing of its own. It found out that Gareth Martinis was arrested for speeding three times in 16 days in 1959, had once got his licence cancelled and then got it back by lying about past convictions. And the Department of Motor Vehicles dealt out the hardest punishment on him, after finding that Gareth was driving while drunk & was unsteady on his feet atleast one half hour after occurrence. It revoked Gareth's driving license. Euqene Kramon, a Manhattan slacks manufacturer who was the only survivor of the Parkway collision, heard of the penalty and murmured "Giant Punishment" and turned twice in his hospital bed.

Sometimes we feel really concerned about public morality. It is our chief and indeed our only protection against tyranny and exploitation. If we could not rely on our politicians to give an honest account of their official conduct and intentions, if we could not rely on our civil servants to administer affairs impartially, if we could not rely on our magistrates and Judges to enforce equality before the law, if we could not rely on the police not to practice torture and not to manufacture evidence, if we could not rely on the press to make an honest attempt to ascertain the facts and to report them fairly, not only should we be deprived of any .control over the conduct of public affairs but we should be denied the security which is essential for our private well being. Among all forms of official wickedness, the perversions of justice outrages us most. Not that the egoism, or even the stupidity of a politician or the corruption of a civil servant may not do more harm. But we look on the law as our protection against the infringement of what we take to be our rights. Even though the laws themselves may be oppressive or discriminatory there is some safeguard in their being honesty applied. And we feel most deeply threatened and wounded when a miscarriage of justice arises out of political, racial or communal prejudice.

United States of America v. One Package

(T.G. John, Advocate, Trichur)

In her efforts to control the number and spacing of her children, the woman down-through Centuries has resorted to many recipes. She was advised in an Egyptian papyrus of 1500 B.C. to use a concoction of acacia tips, bitter cucumber and dates mixed with honey. Dioscorides, the famous Greek medical Scientist of the First Century, prescribed willow leaves in water. Other Greek medical writers offered a choice of powerful amulets including one made of hanbane seed diluted n mare's milk. The woman of today looks back upon all these as fantastic and irksome and takes nothing more than a pink of a white or peach-coloured pill or wears a small device within the womb familiarly known as the loop. The 'mother' of the pill is Mrs. Margaret Sanger and the 'father' of the Loop Dr. Lippe.

Many people believe that the contraceptives may threaten the foundations of contemporary sexual morality, especially of the young. Newspapers have bally-hooed and struck big headlines the new promiscenity facilitated by the pill and the loop. In America 'Sex on the Campus' was a topic on television programmes; and College Health Officers have shocked parents over the country by publicly reporting that coeds steeped in their Shelly, Byron, Keats and Robert Frost found time to approach them for prescription for the 'pill'. When one such girl student made such a request, she was asked:-

"How old are you?"

"Twenty One", the girl replied.

"You have a particular man in mind?"

"Well, yes I do"

"Have you ever stopped to think you might someday want to marry a man who holds virginity in high regard?" the doctor then asked.

"Yes the girl said candidly. "But I am not at all sure I want to marry a man like that!"

It is interesting to trace the American legislation and thereby read the changing attitude towards birth control. The legislation began with the federal law of 1873, instigated by the busy New England Anti-vice Crusader, Anthony Comstock. Some 30 States soon passed, "little Comstock Laws" most calling birth control as obscene and immoral. Those were the statutes under which Mrs. Sanger's pioneer meetings were raided, her clinics closed and she herself jailed. In 1936 another birth control figure the late. Dr. Hannah Stone of New York was involved in a case known as "The United States v. One Package". The package contained diaphragms sent to her from Japan and seized by U.S. Customs. Mrs. Harriet PilpeI, a New York Lawyer' argued the package came for Dr. Stone and won. In 1963, Mrs. Pilpel was called again when the St. Louis Postmaster held up the mailing of 50,000 samples of an aerosol foam contraceptive on she ground that they were not addressed to Doctors. Mrs. Pilpel again got a favourable ruling, one that said unless the postmaster could prove the packages were being mailed for unlawful purposes, they could go through. The toughest Cormstock law in USA was Connecticut's 1879 statute making the use of any drug, medical article or instrument to prevent conception an offence punishable by a fine and up to a year in prison. Doctors were not barred from giving birth-control advice to private patients in their offices but the State law blocked wet fare clinics from giving such advice to their patients or clients. Many clinics were closed under the Law in 1939 and many of the Doctors and Nurses in attendance were arrested. When Dr. Lee Buxton arrived from New York in 1954 at. Yale's School of Medicine, he was struck by the social injustice of the Connecticut law. His feelings became more strong when he noticed the deaths and permanent incapacitations of several women patients, from medical problems seriously aggravated by unwanted pregnancies. Finally Dr. Buxton in collaboration with Mr. Fowler Harper, then Professor of Law at Yale worked up certain cases and caused to file a suit to challenge the law's constitutionality on the ground that it violated 14th Amendment assuring citizens the basic civil and human rights of personal liberty. The case was subsequently masterminded, on the death of Mr. Harper, by his Junior Miss Catharine Roraback. The law was lost in the lower courts and the Supreme Court refused to consider the constitutionality on the ground that the law in fact on the point was a dead issue. If the law was a dead issue, the proper thing was to open a contraceptive clinic and on November 1, 1961, the Planned Parenthood League opened a clinic and its doors to the public. On November 10, it was closed on the order of the prosecutor. The closing down of the Parenthood League Clinic and many other clinics along with it was challenged by Dr. Buxton and Mrs. Griswold, Execution Director of the Planned Parenthood League of Connecticut. Dr. Buxton wrote to experts at every Medical College in the country. He got Support even from Roman Catholic Medical Schools. Finally on June 7, 1965, the U.S. Supreme Court handed down its historic 7 to 2 decision. Justice William O Douglas, in writing the majority opinion, declared the case concerned a relationship lying within the zone of privacy created by several fundamental constitutional guarantees and declared "that the Connecticut law in forbidding the use of contraceptives rather than regulating the manufacture seeks to achieve its goal by means of having a maximum destructive impact upon that relationship. We deal with a right of privacy older than the bill of Rights -- older than our political parties, older than our school system".

He concluded "Marriage is a coming together for better or worse, hopefully enduring and intimate to the degree of being sacred".

The two dissenting Stewart and Black, both thought the Connecticut law offensive out constitutional.

The Lighter Side of Law

(T.G. John, Advocate, Trichur)

There is a very old English saying 'manners make the man'. But clothes make a gentleman.

"I listen with little pleasure to the argument of counsel whose legs are encased in light grey trousers" once said Victorian Judge Mr. Justice Bowles. His spirit must have hovered approvingly over Gloucester Divorce Court in February 1970, when an attractive twenty-six year old woman stepped into the witness-box wearing lemon coloured trousers and matching cape - all homemade - and Judge Bulger said to her counsel:

"I dislike women wearing trousers in court."

Counsel hastily explained that he had not known his client was going to do so. "How many times have you been in a court before?" the Judge asked the woman. "Never. This is the first time", she told him.

"It is not like coming to a funfair", opined the learned Judge. But all ended well; he granted the woman a divorce without making her change her clothes-and ignoring her suggestion in the witness box that she could take her trousers off!

At the time many newspapers criticised Judge Bulger for being stuffy. Unkind remarks were made by at least woman journalist about Judge's own somewhat odd court clothing; long gown trimmed with fur, wigs etc.

This attitude of the Judges is not only English. In Dundee Burgh Court, Scotland, the following month Baillie Nigel Law, told a nineteen year old girl who appeared before him with her hair in rollers covered with a nylon scarf, "Go and take those things out of your hair and then come back to this court". And when she duly returned minus the rollers he warned her, "Never come to this court again in the state you were in the morning."

Even in the United States of America where - according at least to British ideas - court room informality is carried to lounge bar standards, the Judges sometimes speak in righteous wrath against the sartorially over-casual. "You go dress up like a lady and I will hear your case", Judge Roger Alton Pfaff told a twenty one year would be Los Angeles divorcee a few years ago. "If you want a divorce today you run out and buy yourself a dress!"

And he would not hear the case-or grant her a decree until she had swopped her yellow bell bottom slack and stripped sweater for a more lady like peach coloured cotton shift in a nearby fashion store!

On the other hand, Coventry magistrates recently allowed a twenty-four year old labourer before them, on remand, without his trousers! They had been confiscated by the police. And the man had to stand in the dock with a blanket wrapped round his waist!

No one had been able to explain why the police had not been able to supply with another pair of trousers.

The old days of the Judges not knowing anything about current fashions have long since gone. In April 1970, a twenty year old blonde shorthand typist rolled down one of her stockings in a British court to show Mr. Justice Mocatta, her knee. She was claiming damages for injuries, when knocked over by a car. "I don't and I can't go barelegged in the summer anymore because of the scars on my legs", she told the Judge. His comment: "I would have thought the maxi might have come to your aid as far as camouflage was concerned." Unfortunately, the young plaintiff was not as 'avant garde' as his Lordship: "I am afraid I don't like it, Sir", she said.

Mini-skirts, when they first came out presented quite a problem to the courts. "Was it indecent to touch the exposed knee of a mini-skirted girl?" That was the difficult legal question that came up before the High Court Judge due to take the Wlitshire January 1967 assizes. A solicitor had argued at Salisbury Magistrate's Court that exposed knees were perfectly decent and had asked: "Can it be said that it is indecent to touch a knee?"

A good legal point. The Salisbury magistrate said that was for a higher Court to decide and committed the fifty-seven year old defendant to the assizes for trial. But the Judge was saved from making legal history; the man eventually pleaded guilty!

Justice may sometimes be blind. But 'Justices' (specially male judges!) in every part of the globe keep the eyes scrupulously 'wide open' when they have to deal with cases and persons which involve mini-skirts!

Nulity of Christian Marriages in Civil Law and Canon Law - Problems and Perspectives

(By Dr. Sebastian Champappilly, Advocate, High Court of Kerala)

Christians in India, though a minuscule minority, are not a negligible segment, as their numerical strength is equivalent to the total population of many a European State which are predominantly Christian. Yet, they have not been able to solve their problems in the field of family law especially in matters connected with declaration of nullity of marriages by the civil court and the Ecclesiastical Tribunals. Since 1960 a movement for reform in Christian law has set in. The efforts made by the judiciary to changes have had inadequate impact on the community. In this context, it may be useful to look into the history and development of the personal law applicable to Christians in India in the backdrop of Global developments so as to have an overall picture of the matter.

The historical development of Personal Law of Christians

In the march of history, Catholic Church had to face many ups and downs. In order to withstand the onslaught of the Reformation movement, Catholic Church initiated a Counter Reformation Movement in Europe in the 15th century. For this purpose the majority of Bishops from all over the world assembled to reform the Catholic Church from within. In this process the Bishops at the Council of Trent in its twenty-fourth session held in November, 1563 enacted a Decree known as the Tametsi Decree. It affirmed marriage as a sacrament and declared that clandestine marriages entered into otherwise than in facie ecclesiae as null and void. This decree bound all Roman Catholics in the countries in which it was promulgated. It was promulgated in Portugal and the Portuguese by this time established their influence over the western shores of India.[1] The Portuguese must be deemed to have carried the Tametsi Decree with them to India as part of their personal law.[2] When the Portuguese came here they found that the Church order and customs of the Syrian Christians were not in tune with the western church to which they belonged.[3] They wanted to westernise the Syrian Christians and their attempt (through the Archbishop of Goa) at the Synod of Diamper is now part of history.[4] By the decrees of the Synod, the marriage discipline contained in the Tametsi Decree of the Council of Trent came to be applied to the Syrian Christians. This was resented to by a Section of the Syrian Christian community and they revolted against the Portuguese supremacy in their religious affairs. This revolt is usually referred to as the Coonen Cross Revolt of 1653 A.D.[5] Yet the decrees of the Synod of Diamper were passed on to the posterity as the Canon Law of the Syrians of Malabar and were recognised as such by the Propaganda Fide under the Pope.[6]

One of the decrees passed at the Synod of Diamper was regarding redressal of disputes among Syrian Christians. Decree XV of Session IX provided:

"The dispute of Christians to be decided by the Bishop:- Whereas by the ancient custom consented to by the whole government of the Christians of this bishopric, not only in spirituals but temporals also, is devolved to the church and the bishop thereof, who is to determine all differences that are among Christians.............the Synod doth strictly command all die Christians of this diocese, not upon any pretence whatsoever, to presume to carry any of their causes before infidel kings or their judges, without express licence from the prelate; which when so ever it shall be judged necessary, shall be granted to them as shall be first carried before the prelate, that he may judge or compose them according to reason and justice; and all that shall do otherwise, shall be severely punished for the same, at the pleasure of the prelate, and he thrown out of the church for so long time as be shall think fit."[7]

This state of affairs continued for some time, exceptions notwithstanding. And as regards declaration of nullity of marriage the Church here could do the same as is evident from the writings of Rao Bhadur L.K. Ananthakrishna Ayyar.[8] He writes:-

"It should be noticed that there are some causes which render marriage invalid and null, as for example, default of consent, close affinity, illegality of contract, defect of age and other invalidating causes In these days the Church can, after enquiring into the matter, declare the union to be null and void from the beginning and this has been done and may be done again. Strictly speaking, however, this is not dissolving an existing marriage, but really declaring that no marriage ever existed between certain parties on account of certain impediments which made the contract void. But a valid marriage completed between baptised persons cannot in any case be dissolved."

While so, the Tamesti Decree of the Council of Trent came to be promulgated all over the world on 2nd August 1907.[9] Thus, the marriage discipline contained in the Decrees of the Council of Trent and as modified by the Synod of Diamper, applied to the Syrian Catholics. Later codification of the cannon law applicable to Catholics of the Oriental Churches, including that of the Syrian Catholics was attempted by Pope Pius XI in 1929 and the matrimonial law of the Oriental Churches was promulgated on 22^nd February 1949 which took effect from 2nd May, 1949.[10] And it remained the personal "law" of the Syrian Catholics at the time of the commencement of the Constitution of India.[11] It continued to be the personal law till the Code of Canons of the Eastern Churchs was promulgated on 18th October 1990 which came into effect from 1st October, 1991.[12]

Judicial Decisions

Courts in India have had, in several cases before them, opportunity to examine the extent of applicability of personal law of Christians especially that of Catholics and rendered divergent decisions. In this context, it may be mentioned that the statutory law applicable to marriages of Christians in (British) India was and still is the lndian Christian Marriage Act, 1872. And for divorce and allied matters, following the Matrimonial Causes Act of 1857 of England, the Indian Divorce Act, 1869 came to be enacted and applied to Christians in India. There was no law except personal laws and customary laws in force in Travancore regulating marriages or matrimonial reliefs among Christians. When India became independent the Indian Christian Marriage Act was specially excluded from its application to Travancore and Cochin, Manipur, Jammu and Kashmir areas by the provisions of the Part B States (Laws) Act 1951. However, the Indian Divorce Act, 1869 came to be extended to the Part B States in 1951. Yet there was (and still is) no civil law in force regulating customary or canonical marriages among Christians in the Travancore and Cochin, Manipur, Jammu and Kashmir areas. This position has not changed even after half a century of democratic rule. It is in this context of the civil law and personal law that the Courts in India are called upon to decide matters on these questions. A question that generally arose on several occasions was as to what was the law to be applied for determining the validity or otherwise of a Christian marriage in these areas. Yet another question is whether Canon Law can be pressed into service for that purpose.

In order to find out as to how the courts dealt with the question in the past it is necessary to examine the British-Indian decisions. In Lopez v. Lopez [13] a Full Bench of the Calcutta High Court held that where parties to the matrimonial proceedings are Roman Catholics (to determine prohibited degrees), it is the law of England but the Canon Law of the Church of Rome as applied in this country which is to be looked into and applied. This decision was quoted with approval in Lucas v. Lucas.[14] Again in Saldanha v. Saldanha it was held that personal law for Roman Catholics is the Canon Law of the Church of Rome and that the Church has no concern with the civil effects of matrimony.

Coming to Travancore, in Eappan Punnan v. Koruthu Maria [15] it was held that a case for nullity of marri age ought to stand or fall by the rules of the Canon Law. Again, a Full Bench of the Travancore - Cochin High Court in Cheriya Varkey v. Ouseph Thresia,[16] wherein the parties were Roman Catholic Syrian Christians, ruled that the principles relating to marital obligations embodied in the Canon Law apply to all Catholics.

The Supreme Court in Lakshmi Sanyal v. Sachit Dhar [17] (1972) 2 SCC 64 held:

"The question of capacity to marry and the impediments in the way of marriage would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of the marriage, would be the law of the Roman Catholic Church, namely the Canon Law of that Church." (Para.10)

This was a case where the parties were Roman Catholic and the marriage was solemnised in accordance with religious rites and ceremonies between persons who are within the prohibited degrees of consanguinity. This was done after obtaining dispensation from the Bishop as per Canon Law. The husband later challenged the validity of the marriage under Section 19 of the Indian Divorce Act on the ground that the parties to the marriage were within the prohibited degree of consanguinity. And the marriage was not annulled as the Court presumed that there was dispensation from the prohibited degrees granted by the Bishop as per Canon Law.

Again in Leelamma v. Dilip Kumar [18] Justice Chettoor Sankaran Nair sitting as a Single Bench of the Kerala High Court held that in the absence of statutory law, Canon Law governs the members of the Syrian Catholic Community.

Thus the Supreme Court and various High Courts in clear terms laid down that the validity or otherwise of a marriage between Catholics would have to be decided by referring to the provisions of Canon Law in the absence of statutory law. Hence it may safely be concluded that validity of the marriage, where the parties are Roman Catholics, must be determined by resort to the provisions of their personal law i.e. Canon Law.

Conflict between Canon law and Civil Law

Then a question arose so as to what extent Canon Law can be looked into and applied and whether the decree of nullity of marriage granted by the Eparchial Tribunal (Ecclesiastical Tribunal) can be accepted and acted upon. And who should adjudicate the validity or otherwise of a marriage between Roman Catholics. In Kurian v. Alphonsa [19] a Single Bench of the Kerala High Court, held that the rights flowing out of a legal marriage cannot be interfered by the Eparchial Tribunal and that the Personal law cannot over ride provisions of Section 125 Cr. P.C. Again in Jose v. Alice [20] a Division Bench of the Court took the same view. That too was a case for maintenance. In George Sebastian v. Molly Joseph [21] a Special Bench of the same Court held that the rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal and that a marriage cannot be dissolved except by resort to statutory provisions of law. It was further held that even if an Ecclesiastical Court grants annulment or divorce the Church authorities will still continue under a disability to perform or solemnize a second marriage for any of the parties. [While holding so the Special Bench disapproved the proposition laid down in Leelamma v. Dilip Kumar]. And when the matter went up to the Supreme Court, (in Molly Joseph v. George Sebastian [22] it was held that the provisions of the Divorce Act exclude jurisdiction of Ecclesiastical Tribunal or any Tribunal other than the Courts envisaged by it to annul a marriage and that as regards civil effects of marriage the Civil Court has exclusive jurisdiction. Now, therefore, even after obtaining a degree of nullity of marriage from the Ecclesiastical Tribunal, it has become essential for the parties to the marriage to obtain a civil decree from the civil court as otherwise they cannot get remarried and in the event of a second marriage being solemnised prosecution for bigamy is most likely and the priest who solemnises the second marriage is liable to be prosecuted for abetment of the offence of bigamy.

A critical appraisal of the judicial decisions

To begin with, in Kurian v. Alphonsa [23] the question that arose for decision was whether a Christian woman, whose marriage was declared as null and void by the Eparchial Tribunal,[24] was entitled to get maintenance under S.125 of Cr. P.C. The Court answered in the affirmative on certain basic assumptions that are fundamentally incorrect. The first and foremost error was that the Court founded it's judgment on a notion that when Parliament has enacted a law creating a forum for dissolution and for a decree of nullity of Christian marriage, the Eparchial Tribunals cannot adjudicate upon those matters affecting the Civil Rights of parties to the marriage. In fact, Parliament had not enacted a law on the subject and the pre-constitution law was not appreciated in its historical background and its position in the constitutional era. Secondly, even according to Canon Law, questions like maintenance and such other Civil Rights of parties are to be governed by the Civil Law. Unfortunately, this position under the Canon Law was not brought to the notice of the Court.

The ratio in Kurian was reiterated by a Division Bench in Jose v. Alice.[25] The Division Bench added that a Christian marriage can be declared as null and void only under Sections 18 and 19 of the Indian Divorce Act. Again the Division Bench built up its thesis on a fundamental error that the Indian Christian Marriage Act, 1872 applied to the case. In fact, that Act had no application in that case as the marriage in question was solemnised in the Travancore area of the State of Kerala. It was in this background that Justice Chettoor Sankaran Nair of the Kerala High Court in Leelamma v. Dilip Kumar,[26] emphatically stated that personal law applicable to Syrian Catholics is the Canon Law and their marriages are to be governed by that law.[27]

While matters remained thus, a Special bench of the Kerala High Court in George Sebastian v. Molly Joseph [28] upheld the view in Kurian and Jose and expanded the theory further. The Special Bench held that the grounds for nullity of marriage enumerated in Section 19 of the Indian Divorce Act, 1869 are exhaustive and Courts are not empowered to go outside the contours of the Divorce Act for granting a decree of divorce or a decree of nullity. Again, it may be pointed out that the grounds enumerated in Section 19 are not exhaustive in so far as there are ground available under Sections 4 and 5 of the Indian Christian Marriage Act, 1872 for declaration of nullity of a Christian marriage.

It appears that their Lordships of the Special Bench has ignored a vital aspect in upholding Civil Law against Canon Law, that they were dealing with a situation where there was no civil law but only Canon Law. The Special Bench relied on the Indian Divorce Act to find out the principles governing marriage. While doing so it failed to appreciate that the law relied on was not the Indian Chrisitan Marriage Act or for that matter any other marriage Act but the Indian Divorce Act which deals with post marriage status only.

The Special Bench also struck a dissent from Leelamma's ratio and tried to distinguish the Supreme Court's decision in Lakshmi Sanyal. The Special Bench further held that the rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal and that even if a decree of nullity is granted by the Eparchial Tribunal, no second marriage for the parties are permissible without obtaining an Order from the Civil Court. Thus, in the eyes of the Civil Law, for all practical purposes, the decree of the Eparchial Tribunal was of no consequence and a Civil decree became mandatory.

Though the matter was taken up before the Supreme Court in Molly Joseph v. George Sebastian, [29] the view taken by the Special Bench was upheld without any further attempt to throw more light into the subject. The Supreme Court also did not appreciate the precedent set forth in Lakshmi Sanyal v. S.K. Dhar [30] wherein the Court appears to have approved of the finding of Bombay High Court to the effect that the whole of the Indian Christian Marriage Act, 1872 deals only with the ceremony of marriage and repelled the contention that it was not open to the courts to travel beyond S.19 or the provisions of the Divorce Act to discover whether an impediment which renders the marriage null and void ab intio existed. In fact in Lakshmi Sanyal the Supreme Court traveled beyond the provision of the Statutory Law to decide the validity or otherwise of a Christian marriage.

It may be said that the British Indian Courts had taken a more balanced view in those matters as is evident from the decision of the Bombay High Court which held:-

"any marriage which should for any reason be invalid in the eyes of that law (Canon Law) must also be held invalid in a civil court."[31]

Even after codification of Hindu Law, for determination of the validity of a Hindu Marriage and to establish the marital status for claiming maintenance under section 125 of Cr. P.C., the personal law is to be referred to and the marriage should be established as a valid one in accordance with the personal law as has been held by the Supreme Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr. (1988) 1 SCC 530. [32] In Abdulla v. Noorjahan, the Kerala High Court has held:

"So long as the personal law by which the parties are governed does not prohibit a second marriage, it cannot be said that an offence of bigamy is committed." [33]

And there is no reservation on the part of our legal system to recognise a unilateral "talak" under Muslim Law and to hold that the parties have capacity to marry again.

Therefore, it emerges that capacity to marry is always decided by personal law and nullity arises only when the party had no capacity to marry. Hence, when the personal law of Catholics (Canon Law) holds that the parties had no capacity to marry, the civil law cannot and should not hold otherwise. It may also be said that if a certificate of marriage issued under the authority of Canon law is sufficient for the civil court to accept the marriage as valid, there is no rhyme or reason why the civil court should not accept and act upon a certificate or decree granted under the authority of the same Canon Law, which provides for the grounds and a machinery to declare that no such valid marriage has taken place. Therefore any such declaration to the effect that a marriage is non est which should for any reason be valid in the eyes of that law (Canon Law) must also be held valid in a Civil Court.

In this backdrop it is submitted that the decision of the Supreme Court in Molly Joseph is not a contribution to the advancement of law in the present legal and constitutional frame. At any rate it has added to the woes of Catholics in so far as they are in double jeopardy in matters of matrimonial reliefs. And it has become the need of the hour to find a way out from the impasse.

Conclusion

It is possible to solve the problem by accepting and incorporating the provisions of the Portuguese Civil Code as applied in Goa, where me decrees of the Ecclesiastical Tribunals are as such enforced by the civil courts. Comparatively speaking if the Muslims and Hindus are allowed to have their personal law to be applicable to their matrimonial disputes, there is no reason why our legal system should not respond to the Christians' demand for giving respectability to the decrees of the Ecclesiastical Tribunals.

In the alternative, if for any reason the above proposal is unacceptable either to the Government or to the community, a provision can be made to include a decree of nullity of marriage granted by the Ecclesiastical Tribunals as a ground for declaration of nullity of marriage by the civil court. Till such time the law is amended, the Ecclesiastical Tribunals may accept petitions only on termination of the civil proceedings. Or the Ecclesiastical Tribunals may defer the declaration of nullity of marriage till the parties obtain a civil decree.

However, a comprehensive legislation on the subject is the only answer. This requires a legislative proposal to be submitted to the Government for which the leaders of the community should take the lead. As a first step towards this end an Expert Committee should be constituted, either by the community or by the Government, to formulate a draft Code, for consideration and legislation.

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Foot Note

1.      Vasco Da Gamalanded in Calicut in the year 1498 A.D. and the Portuguese established their rule in Goa by 1510 A.D.

2.      See Saldanha v. Saldanha ILR 54 Bom. 288 at 292.

3.      C.B.firth, "An Introduction to Indian Church History" at 70-71.

4.      See Cardinal Eugene Tisserant "Eastern Christianity in India" P. 57.

5.      See Cardinal Eugene Tisserant "Eastern Christianity in India" P. 79.

6.     See Cardinal Eugene Tisserant "Eastern Christianity in India" P. 166.

7.     See "The Acts and Decrees of the Synod of Diamper" - Edited by Dr. Scaria Zacharia. Published by Indian Institute of Christian Studies. (1994 Edition) at 209.

8.     Rao Bhadur L. K. Ananthakrishna Ayyar in his book on the "Anthropology of the Syrian Christians." Cochin Govt. Press, Ernakulam, 1926.

9.      See Saldanha v. Saldanha. ILR 54 Bom. 288 at P. 292.

10.     See Victor J. Pospishill, "Code of Oriental Canon Law - The Law on Marriage (1962) Chicago at 17.

11.     See Articles 13(3)(a), 366(10) and 372 of the Constitution of India.

12.     See "Code of Canons of the Eastern Churches" (1990) Latin - English Edition Translation prepared under the auspices of the Canon Law Society of America. Published by Oriental Institute of Religious Studies India Vadavathoor, Kottayam - 686 010. Reprint 1992. Pages XI to XIX.

13.     Lopez v. Lopez IL R. XII Cal. 706 (1985).

14.     Lucas v. Lucas ILR. 32 Cat 187 (1904).

15      Eappan Punnan v. KoruthuMaria X T.L.R. 95. (Full Bench Judgment dated 17.5.1892 at page 112).

16.     Cheriya Varkey v. Ouseph Thresia AIR 1955 T.C. 225 F.B.

17.     Lakshmi Sanyal v. Sachit Dhar (1972) 2 SCC 64.

18.     Leelammav. Dilip Kumarli, 1992 (1) KLT 652 = AIR 1993 Kerala 57 = 1992 (1) KLJ 648 = ILR 1992 (2) Kerala 798 = II (1992) DMC 213. (Para.13).

19.     Kurian v. Alphonsa, 1986 KLT 731.

20.     Jose v. Alice, 1988 (2) KLT 890.

21.     George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (S.B.) =AIR 1995 Kerala 252.

22.     Molly Joseph v. George Sebastian, AIR 1997 SC190 = 1997(1) KLT 1 = (1996) 6 SCC 337).

23.     Kurian v. Alphonsa, 1986 KLT 731. (The marriage of the parties in this case was solemnized at the Sacred Heart Syrian Catholic Church, Erumapetty in Thrissur District).

24.     Following the directive of St. Paul, the Catholic Church has a long tradition to settle disputes through its own tribunals. Such tribunals exist at the Eparchial (Diocesan), Metropolitan and even at a higher level. These tribunal scan decide apart from other issues, the validity or otherwise of a Catholic marriage in case of dispute, in accordance with their personal law, i.e., in the present case Canon Law.

25.    Jose v. Alice, 1988 (2) KLT890.

26.     Leelamma v. Dilip Kumar, 1992 (1) KLT 652 =AIR 1993 Kerala 57 = 1992 (1) KLJ 648 = ILR 1992 (2) Kerala 798 = II (1992) DMC 213. (Para. 13).

27.     This view has again gained momentum in Saly Joseph v. Baby Thomas, 1999 (1) KLT 74 (D.B.), though it was disapproved in George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (S.B.) (See paragraph 25).

28.    George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (S.B.) =A1R 1995 Kerala 252.

29.     Molly Joseph v. George Sebastian, AIR 1997 SC 190 = 1997 (1) KLT1 = (1996) 6 SCC 337).

30.     Lakshmi Sanyal v. S.K. Dhar, (1972) 2 SCC 647 page 654.

31      Peter Philip Saldhanha v. Anne Grace Saldhanha, (1929) ILR 54 Bom. 288 at page 313 = (AIR1930 Bom. 105) It is pertinent to note that this decision was rendered in the context of the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869.

32.     Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav & Anr. (1988) 1 SCC 530. Para. 4 & 6.

33.     See Abdulla v. Noorjahan, 1987 (1) KLT 885.