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Church Divorces: Legal Or Not?

01/09/2016 1:09 PM IST | Updated 06/09/2016 2:47 PM IST
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A new groundbreaking ruling by India's Supreme Court, after hearing a petition seeking legal sanctity for divorce decrees granted by church tribunals, holds that the marriage annulments declared by ecclesiastical courts have no standing under civil law. So, Indian Catholics who remarry after obtaining a church annulment theoretically would be guilty of bigamy unless they also get a secular divorce.

Essentially, according to Section 2 of the Divorce Act 1869, Christians may apply to the church for the "annulment" of their marriage. The church, with the powers vested in it, could grant the annulment and the two parties were considered as good as divorced.

Indian Catholics who remarry after obtaining a church annulment theoretically would be guilty of bigamy unless they also get a secular divorce.

Although the Catholic Church does not permit divorce, it does have an internal legal process that allows believers to obtain a ruling that a marriage bond wasn't valid on the grounds of one or more defects. If such a finding is obtained, then a Catholic is able to remarry with the recognition of their church. The new ruling, however, forces Catholics to seek a secular divorce as well.

India's Solicitor General, Neeraj Kishan Kaul, contended that the Supreme Court had already settled the issue on the authority of "church courts", as the ecclesiastical courts are known. In its 1996 ruling in Molly Joseph v. George Sebastian, the court ruled that:

"[U]nless the Divorce Act recognizes the jurisdiction, authority or power of an ecclesiastical tribunal ... 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 new ruling will come as a welcome relief to one of my clients Tony (names changed) who was married to Minette and had two children with her. Tony filed for divorce in the Bandra family court in Mumbai and since it was a contested matter he got the divorce after four years. That wasn't the end of his woes, though. For the past one year he has been applying to the parish to also get an annulment by the church, which seems to keep delaying this matter. After this ruling, which reduces the weightage given to the church ruling on annulment, Tony can go ahead and marry his current girlfriend because in the eyes of the law he is already divorced.

The decree of the church court becomes essential if any of the parties in the case want to get their remarriage solemnized at the church as per the canon law. Even if the civil court grants divorce, the status of a divorced man and woman in church records remains "married" unless the church court nullifies their marriage. Earlier, any one of the parties -- either husband or wife -- could object to a remarriage in civil court saying that the church had not nullified their marriage, but with this reiteration by the Supreme Court, they won't be able to do so now. The ruling has dealt a severe blow to the unilateral authority of the church decrees but it does not take away from the religious weightage given to them.

This ruling clearly illustrates a socio-legal evolution in India and the winds of change which are sweeping across the judiciary.

At present, the average time taken to complete a church court's proceedings is six months to one year. There are cases which lasted for three-four years.

The issue before the Supreme Court was whether the rule of law would prevail over the authority of the church to have its own system of marriage and annulment. This ruling clearly illustrates a socio-legal evolution in India and the winds of change which are sweeping across the judiciary. It is inclined more towards a Uniform Civil Code for India, which will lead to a greater integration of all its citizens. Most importantly it reinforces the fundamentals reflected in the Constitution that "all citizens are equal before the law."

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