Wednesday, February 1, 2017

Divorce Granted by Church is not valid and its illegal.

The Hon"ble Apex Court dismissed the petition filed by the petitioner, and invoked a judgment holding that parliamentary laws shall override personal laws and that “statutory provisions shall prevail and override any personal law”.

The bench, said that the petition was “devoid of merit” and deserved to be dismissed in view of the 1996 judgment which had settled the law on the point of marriage and divorce among Christians. The court said that a divorce decree can be passed only by a district court or a high court, authorised under the Divorce Act.

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IN THE SUPREME COURT OF INDIA
 CIVIL ORIGINAL JURISDICTION
 WRIT PETITION (CIVIL) NO.57 OF 2013
 CLARENCE PAIS ... PETITIONER(S)
 VS.
 UNION OF INDIA & ORS. ... RESPONDENT(S)
 O R D E R
1. Heard learned counsel for the rival parties.
2. The solitary prayer made by the petitioner through
the instant writ petition is as udner :
“a) Issue a writ in the nature of
Mandamus/Certiorary and thereby grant
declaration that the Code of Common Law is
the Personal Law of the Indian Christians
and has to be recognized as such by the
Courts (Civil and Criminal) in India and
which would supercede any other law in
conflict thereto and other accordingly.”
3. The afore-stated prayer is based on the following
factual averment :
“It is respectfully submitted that Canon Law is
the Personal Law of the Catholics of India and
Canon Law has to be applied and enforced by the
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.”
1
4. Mr. N.K. Kaul, learned Additional Solicitor General
of India, has invited our attention to the fact, that the
issue raised by the petitioner for consideration of this
Court, has already been adjudicated upon, and settled
finally. In this behalf, he has invited our attention to
the judgment, rendered by this Court in Molly Joseph alias
Nish Vs. George Sebastian alias Joy [(1996) 6 SCC 337]. In
the afore-stated judgment, this Court held as under :
“From a bare reference to the different
provisions of the Act including preamble thereof
it is apparent that Divorce Act purports to amend
the law relating to divorce of persons professing
the Christian religion and to confer upon courts
which shall include District Court and the High
Court jurisdiction in matrimonial matters. In
this background, unless the Divorce Act
recognises the jurisdiction, authority or power
of Ecclesiastical Tribunal (sometimes known as
Church Court) any order or decree passed by such
Ecclesiastical Tribunal cannot be binding on the
courts which have been recorgnised under the
provisions of the Divorce Act to exercise power
in respect of granting divorce and adjudicating
in respect of matrimonial matters. It is well
settled that when legislature enacts a law even
in respect of the personal law of a group of
persons following a particular religion, then
such statutory provision shall prevail and
override any personal law, usage or custom
prevailing before coming into force of such Act.
From the provisions of the Divorce Act it is
clear and apparent that they purport to prescribe
not only the grounds on which a marriage can be
dissolved or declared to be nullity, but also
provided the forum which can dissolve or declare
the marriage to be nullity. As already mentioned
above, such power has been vested either in the
District Court or the High Court. In this
background, there is no scope for any other
authority including Ecclesiastical Tribunal
(Church Court) to exercise power in connection
with matrimonial matters which are covered by the
provisions of the Divorce Act. The High Court
2
has rightly pointed out that even in cases where
Ecclesiastical Court purports to grant annulment
or divorce the Church authorities would still
continue to be under disability to perform or
solemnize a second marriage for any of the
parties until the marriage is dissolved or
annulled in accordance with the statutory law in
force.”
5. In view of the decision rendered by this Court, as
has been extracted hereinabove, we are of the view, that
the instant writ petition is wholly devoid of merit and is
liable to be dismissed.
6. Ordered accordingly. Pending application, if any,
stands disposed of.

..................CJI.
[JAGDISH SINGH KHEHAR]
....................J.
[Dr. D.Y. CHANDRACHUD]
New Delhi;

19th January, 2017.         

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