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.