|Astrid Lobo Gajiwala, Mumbai|
Indian Christian Personal Law is once again in the news, thanks to a petition filed in the Supreme Court earlier this year seeking to have the Code of Canon Law recognized as the personal law of Indian Christians and the “decree of dissolution of marriage” granted by an ecclesiastical court made legally binding.
The problems the petition addresses arise from the fact that Christian Personal Law accepts the validity of a marriage solemnized in a church, but not the decree of nullity granted by the Canonical Court.
Thus, Catholics whose marriages have been annulled by a Church court but not a civil court, run the risk of being prosecuted for bigamy under the Indian Penal Code if they remarry in church.
Without a civil annulment or divorce, the children from a second marriage would be considered as illegitimate and the spouse could face criminal charges. Further, the priest who solemnizes the second marriage runs the risk of being prosecuted for abetment.
The petitioner Clarence Pais, a senior Catholic advocate from Mangalore, asks a pertinent question: If marriage under Canon Law is recognized by the Indian Christian Marriage Act, why is a decree of nullity under Canon Law not recognised by the law?
Although the petition is well intentioned, its plea to declare the Code of Canon Law as the Personal Law of Indian Christians is flawed on many counts.
At the very outset it fails to realize that the 1983 Code of Canon Law applies only to Latin Rite Catholics, and not to the many Christian denominations that Christian Personal Law covers.
Even among Catholics, the code applies only to the Latin Rite, not the Oriental Syro Malabar and Syro Malankara rites who have their own code. Further, Canon Law is universally applicable to all Latin Rite Catholics across the globe, and cannot be considered the Personal Law of Indian Christians.
The scope of Canon Law is also completely different as it is meant to regulate and govern the Church's organization and mission. It deals with the sacramental aspect of marriage, and thus does not make provisions that address marriage as a legal contract.
Catholic marriage by virtue of being a sacrament is considered to be indissoluble and hence the Catholic Church does not grant a “decree of dissolution of marriage” as stated in the petition.
Protestant Churches as well as the Orthodox Churches, however, accept grounds for divorce.
The primary purpose of Church marriage law is to preserve the sacrament. Thus while it does have provisions that declare a marriage null and void, the issue is not whether a marriage has broken down but whether a sacrament existed or not.
The focus of the Church court is on the need to prove that some essential element for a valid sacramental marriage was missing. Thus when the Church grants a decree of nullity it is not just saying the marriage never happened, but more importantly, that there was no sacrament.
Consequently Canon Law makes no provisions for civil effects–maintenance, custody of children, right to marital home etc. All of these have to be addressed by civil courts.
At another level what needs to be realized is that recognition of a Church annulment would amount to recognizing a parallel court. This is untenable since only courts constituted under the Constitution can have legal authority.
The only recourse therefore is an amendment to the existing law. Unfortunately working to change the law is easier said than done, for it requires the coordination of all Christian denominations, and the political will of the religious authorities who are the legal representatives of the over 24 million Indian Christians.
In recent years changes in the law have come about through landmark judgments. Most notable among them was the ruling that struck down the gender discriminatory section of the Divorce Act and passed an interim order directing the government to act within six months on the recommendations made by the Law Commission for amending the Act.
The result is the Indian Divorce (Amendment) Act, 2001. What was remarkable was that although the religious authorities stated that they could not accept divorce, in the larger interests of the community they accepted the provisions of the Amended Act.
With the writ petition the ball is once again in the court of law. It will be interesting to see how the game plays out.
Dr Astrid Lobo Gajiwala is head of the Tissue Bank at Tata Memorial Hospital in Mumbai and a lay theologian and activist
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