Church marriage annulment invalid: Supreme Court of India
#1
http://mattersindia.com/2016/07/church-m...eme-court/

Church marriage annulment invalid: Supreme Court of India
Published on: 7:51 am, July 5, 2016 Story By: mattersindia.com


New Delhi: The Supreme Court of India says marriage annulment granted by church courts has no legal sanctity and those remarrying after obtaining such a decree would commit an offence.

The June 4 observation from the apex court will have far reaching and serious consequences for Catholics in India, who get their marriages annulled by diocesan ecclesiastical tribunals.

A bench of Chief Justice T S Thakur and Justice D Y Chandrachud made this observation while hearing a petition filed by Clarence Pais, a Bengaluru-based Catholic lawyer, who sought legal sanctity for divorce decrees granted by church courts.

Pais had pleaded that marriage and divorce among Catholics were governed by the church and in the absence of its recognition by law, unsuspecting men were facing prosecution for bigamy, reports The Times of India.

Additional solicitor general Neeraj Kishan Kaul said the SC ruling in a case in 1996 had settled the issue in the Molly Joseph versus George Sebastian case.
The court then said that “unless Divorce Act recognizes 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.”

After the bench went through the judgment, it told Pais’s counsel Soli J Sorabjee, “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.”

Finding the going tough, Sorabjee said he just wanted to request an adjournment for a detailed hearing later. Though the court was reluctant, it decided to accept the former attorney general’s request. The petitioner had said hundreds of applications seeking dissolution of marriage were pending before church courts.

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 declaration 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.”
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#2
It would make sense that if their marriages were recognized by the secular courts, they would also need to petition the same secular courts to dissolve the marriage. I'm reading that it was common practice that they weren't doing this, but just having the marriage annulled?
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#3
Here we go again. First Henry VIII wanted to divorce Catherine of Aragon so that he could marry Anne Bolyn. Now, the government of India is interfering into the affairs of the Catholic Church.
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#4
(07-05-2016, 10:08 PM)PrairieMom Wrote: It would make sense that if their marriages were recognized by the secular courts, they would also need to petition the same secular courts to dissolve the marriage. I'm reading that it was common practice that they weren't doing this, but just having the marriage annulled?

Yes, the state only recognizes marriages undertaken before the Civil Registrar. So, for all legal purposes, one has to get married "civvily." This Civil Marriage has nothing whatsoever to do with marriages conducted by religious bodies. It makes sense that if you get married at the Civil Registrar's office then it can only be that office which has the power to end the marriage.  If one only has a Church marriage, then as far as the state is concerned, you are not married and you can have as many annulments as the Church will grant you.
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#5
(07-06-2016, 02:37 AM)francisco Wrote:
(07-05-2016, 10:08 PM)PrairieMom Wrote: It would make sense that if their marriages were recognized by the secular courts, they would also need to petition the same secular courts to dissolve the marriage. I'm reading that it was common practice that they weren't doing this, but just having the marriage annulled?

Yes, the state only recognizes marriages undertaken before the Civil Registrar. So, for all legal purposes, one has to get married "civvily." This Civil Marriage has nothing whatsoever to do with marriages conducted by religious bodies. It makes sense that if you get married at the Civil Registrar's office then it can only be that office which has the power to end the marriage.  If one only has a Church marriage, then as far as the state is concerned, you are not married and you can have as many annulments as the Church will grant you.

So then my next question is, what is the common practice in India? Is it like Italy, where your church wedding and civil wedding are separate (most couples are married civilly Friday, then have their church wedding Saturday), so it's possible to have a church wedding that is not civilly recognized,  or is it like North America where priests have the power invested by the state to have cocurrent secular and church weddings, with a single act being registered both with the church and the government?

Reading the article, it sounds like the lawyer was arguing that the state didn't have power over Catholics, but if the marriages are in fact civilly recognized then that's untrue. It's unclear what exactly the case is in India and how the responsibility are parsed out. With the diversity in India, it would make sense to me that there is some central civil registry for marriages, or else they're at least moving that way. How else could you keep track of it? It would be an administrative nightmare.

See, there's also the flip side of that. In North America, you can only have one legal spouse - subsequent "marriages" without the civil dissolution of a prior marriage are considered bigamy even if those subsequent marriages are only "religious" marriages. That's what goes on in places like Bountiful, BC. So "religious only" marriages carry weight even if they aren't civilly recognized, or else how can they be charged? You can, however, have a new common-law partner even if you have a legal spouse somewhere else, but as so long as a "marriage" is not undertaken it's not bigamy, for some weird reason (even though common-law partners have nearly equal standing under the law, at least here).
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#6
(07-06-2016, 01:57 PM)PrairieMom Wrote:
(07-06-2016, 02:37 AM)francisco Wrote:
(07-05-2016, 10:08 PM)PrairieMom Wrote: It would make sense that if their marriages were recognized by the secular courts, they would also need to petition the same secular courts to dissolve the marriage. I'm reading that it was common practice that they weren't doing this, but just having the marriage annulled?

Yes, the state only recognizes marriages undertaken before the Civil Registrar. So, for all legal purposes, one has to get married "civvily." This Civil Marriage has nothing whatsoever to do with marriages conducted by religious bodies. It makes sense that if you get married at the Civil Registrar's office then it can only be that office which has the power to end the marriage.  If one only has a Church marriage, then as far as the state is concerned, you are not married and you can have as many annulments as the Church will grant you.

So then my next question is, what is the common practice in India? Is it like Italy, where your church wedding and civil wedding are separate (most couples are married civilly Friday, then have their church wedding Saturday), so it's possible to have a church wedding that is not civilly recognized,  or is it like North America where priests have the power invested by the state to have cocurrent secular and church weddings, with a single act being registered both with the church and the government?

Reading the article, it sounds like the lawyer was arguing that the state didn't have power over Catholics, but if the marriages are in fact civilly recognized then that's untrue. It's unclear what exactly the case is in India and how the responsibility are parsed out. With the diversity in India, it would make sense to me that there is some central civil registry for marriages, or else they're at least moving that way. How else could you keep track of it? It would be an administrative nightmare.

See, there's also the flip side of that. In North America, you can only have one legal spouse - subsequent "marriages" without the civil dissolution of a prior marriage are considered bigamy even if those subsequent marriages are only "religious" marriages. That's what goes on in places like Bountiful, BC. So "religious only" marriages carry weight even if they aren't civilly recognized, or else how can they be charged? You can, however, have a new common-law partner even if you have a legal spouse somewhere else, but as so long as a "marriage" is not undertaken it's not bigamy, for some weird reason (even though common-law partners have nearly equal standing under the law, at least here).

India, like many countries, has a mess of different laws because instead of being a Christian State, it's tried to be a secular state which at least favors Hinduism.

In India, to resolve the different religions and their demands for law, there is a Personal Law system, by which for certain laws, especially for marriage, the Personal Law applies. In India (except in Goa), the personal law for Catholics as regards marriage was always considered Canon Law, and for non-Catholics the 1872 law on Christian marriage. Hindus and Buddhists were governed by a 1955 statute.

Basically for Catholics, on marriage, you just follow Canon Law, and the Indian system accepted that.

The difficulty as regards this decision seems to be that the Indian Supreme Court rejected the argument that Canon Law is the Personal law of Catholics for marriage nullity, removing at least that part of the Personal Law System.

The result is that it is possible that those who thought that the diocesan tribunal's decree of nullity made their marriage civilly null are now wrong, and they have married when the court considers they are still married. Legally this makes them Bigamists.

One could use the civil divorce procedure (as is done in the U.S.) to make the civil status match the nullity decree, but it sounds like there was no question of that before now, since it was assumed that a Church "annulment" granted that status in Indian law.
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#7
(07-06-2016, 02:42 PM)MagisterMusicae Wrote:
(07-06-2016, 01:57 PM)PrairieMom Wrote:
(07-06-2016, 02:37 AM)francisco Wrote:
(07-05-2016, 10:08 PM)PrairieMom Wrote: It would make sense that if their marriages were recognized by the secular courts, they would also need to petition the same secular courts to dissolve the marriage. I'm reading that it was common practice that they weren't doing this, but just having the marriage annulled?

Yes, the state only recognizes marriages undertaken before the Civil Registrar. So, for all legal purposes, one has to get married "civvily." This Civil Marriage has nothing whatsoever to do with marriages conducted by religious bodies. It makes sense that if you get married at the Civil Registrar's office then it can only be that office which has the power to end the marriage.  If one only has a Church marriage, then as far as the state is concerned, you are not married and you can have as many annulments as the Church will grant you.

So then my next question is, what is the common practice in India? Is it like Italy, where your church wedding and civil wedding are separate (most couples are married civilly Friday, then have their church wedding Saturday), so it's possible to have a church wedding that is not civilly recognized,  or is it like North America where priests have the power invested by the state to have cocurrent secular and church weddings, with a single act being registered both with the church and the government?

Reading the article, it sounds like the lawyer was arguing that the state didn't have power over Catholics, but if the marriages are in fact civilly recognized then that's untrue. It's unclear what exactly the case is in India and how the responsibility are parsed out. With the diversity in India, it would make sense to me that there is some central civil registry for marriages, or else they're at least moving that way. How else could you keep track of it? It would be an administrative nightmare.

See, there's also the flip side of that. In North America, you can only have one legal spouse - subsequent "marriages" without the civil dissolution of a prior marriage are considered bigamy even if those subsequent marriages are only "religious" marriages. That's what goes on in places like Bountiful, BC. So "religious only" marriages carry weight even if they aren't civilly recognized, or else how can they be charged? You can, however, have a new common-law partner even if you have a legal spouse somewhere else, but as so long as a "marriage" is not undertaken it's not bigamy, for some weird reason (even though common-law partners have nearly equal standing under the law, at least here).

India, like many countries, has a mess of different laws because instead of being a Christian State, it's tried to be a secular state which at least favors Hinduism.

In India, to resolve the different religions and their demands for law, there is a Personal Law system, by which for certain laws, especially for marriage, the Personal Law applies. In India (except in Goa), the personal law for Catholics as regards marriage was always considered Canon Law, and for non-Catholics the 1872 law on Christian marriage. Hindus and Buddhists were governed by a 1955 statute.

Basically for Catholics, on marriage, you just follow Canon Law, and the Indian system accepted that.

The difficulty as regards this decision seems to be that the Indian Supreme Court rejected the argument that Canon Law is the Personal law of Catholics for marriage nullity, removing at least that part of the Personal Law System.

The result is that it is possible that those who thought that the diocesan tribunal's decree of nullity made their marriage civilly null are now wrong, and they have married when the court considers they are still married. Legally this makes them Bigamists.

One could use the civil divorce procedure (as is done in the U.S.) to make the civil status match the nullity decree, but it sounds like there was no question of that before now, since it was assumed that a Church "annulment" granted that status in Indian law.

Thank-you for clarifying that. What a strange system! In light of that explanation, then yes it seems odd that the courts would do what they did. Is there maybe a call to move things towards a standardized system?
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#8
(07-06-2016, 02:45 PM)PrairieMom Wrote: Thank-you for clarifying that. What a strange system! In light of that explanation, then yes it seems odd that the courts would do what they did. Is there maybe a call to move things towards a standardized system?

It's not an horrifically strange system, necessarily. Something similar would have to happen in a Catholic state, since the State has no jurisdiction over the marriage of the Baptized. A logical Catholic constitution would leave Canon Law to govern marriage. The State would enforce related laws (e.g. adultery) based on the Church's judgement of a marriage, but would not actually judge the marriage at all.

The State would, however, have to regulate the marriage of the unbaptized (who were not entering a mixed marriage), since the Church has no jurisdiction over merely natural marriages. That would include setting impediments, granting annulments, granting separations (but not what we call divorce), dispensing impediments, etc.

In effect, that would create a Personal Law system for marriage, but it would be simple. The State would defer to the Church for Christians, and regulate non-Christian marriage without any reference to any false religion.

The Indian decision however, is probably related to an increased anti-Christian, pro-Hindu attitude of the Indian government which has been happening for a while now.
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#9
(07-06-2016, 02:59 PM)MagisterMusicae Wrote:
(07-06-2016, 02:45 PM)PrairieMom Wrote: Thank-you for clarifying that. What a strange system! In light of that explanation, then yes it seems odd that the courts would do what they did. Is there maybe a call to move things towards a standardized system?

It's not an horrifically strange system, necessarily. Something similar would have to happen in a Catholic state, since the State has no jurisdiction over the marriage of the Baptized. A logical Catholic constitution would leave Canon Law to govern marriage. The State would enforce related laws (e.g. adultery) based on the Church's judgement of a marriage, but would not actually judge the marriage at all.

The State would, however, have to regulate the marriage of the unbaptized (who were not entering a mixed marriage), since the Church has no jurisdiction over merely natural marriages. That would include setting impediments, granting annulments, granting separations (but not what we call divorce), dispensing impediments, etc.

In effect, that would create a Personal Law system for marriage, but it would be simple. The State would defer to the Church for Christians, and regulate non-Christian marriage without any reference to any false religion.

The Indian decision however, is probably related to an increased anti-Christian, pro-Hindu attitude of the Indian government which has been happening for a while now.

Yes, based on your description I could see it would function in a Catholic state. However, India is highly pluralistic, and I find it odd that such a system would develop in that environment, especially considering their colonial heritage.
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