SC Junks PIL For Legal Sanctity For Decree Of Divorce By Ecclesiastical Courts

In a ruling that would have bearing on the issue of divorce granted by any entity other than courts recognised by the Constitution, the Supreme Court on Thursday said decrees granted by the ecclesiastical court, known among Christians as church courts, have no legal sanctity.

The court clarified that personal laws could not override parliamentary legislations on specific subject and only the courts under the Indian Divorce Act established under the Indian Constitution can grant divorce for Christians.

The order will have a bearing on the batch of petitions challenging the practice of triple talaq against Muslim women pending before the apex court.

The Centre has already taken a stand against the practice, saying many Muslim countries do not follow triple talaq, as the same is against fundamental rights of Muslim women.

“The ecclesiastical courts cannot pronounce divorce for Christians. Only courts under the Indian Divorce Act established under Indian Constitution can grant divorce for Christians. The decree of divorce by church court is not valid under the law,” a bench by Chief Justice of India JS Khehar and Justice DY Chandrachud said.

It accepted the submission of the Central government’s argument that the proposition had already been settled by a 1996 judgment of the Supreme Court that Christian eccelesiastical courts have no legal sanctity.

The court dismissed a PIL filed by Bengaluru-based octogenarian Catholic advocate Clarence Pais, who had sought legal sanctity for divorce decrees granted by church courts.

Former Attorney General Soli Sorabjee, appearing for Pais, argued why the canon law decree could not be made applicable to Christians.

The court, however, clarified that ecclesiastical courts had validity in English jurisprudence, where a State religion was prevalent, but in a democratic society, there was no place or need for such courts.

It was contended that marriage and its dissolution were governed by the Church, and if it remains unrecognised, the faithful Catholic population might be guilty of bigamy under the Indian Penal Code, even after a decree of divorce has been granted by the Court.

According to the petition, hundreds of applications seeking dissolution of marriage were pending before church courts. It was further said a multitude of Catholic men had remarried after their divorce decrees were finalised by the Church clergy.

"The Code of Canon Law regulates and provides for the solemnisation of marriage by the parish priest of a church, as also declaration of nullity of marriage. The Christian Marriage Act provides for the solemnisation 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," the petition said.

The petitioner wanted that legal sanctity be granted to divorce granted by eccelesiastical courts on parity with oral triple talaq against Muslim women.

However, advocate MR Shamshad, who is associated with the case, told LiveLaw that today’s order may not have any bearing on the case pertaining to Muslim personal law.

“As far as procedure of divorce in Muslim personal law is concerned, the same is not covered by any of the legislative enactments. Hence, the parties are free to give effect to talaq without recourse to the court of law and that would be procedure prescribed in Islam religious text. This case today may not cover this aspect,” the lawyer said.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.