Bombay HC At Goa Strikes Down Article 19 Of Portuguese Law As Ultra Vires To The Constitution Of India [Read Judgment]

Division bench of Justice RD Dhanuka and Justice Prithviraj K Chavan in a 95-page judgement held that Article 19 of the Canon law, put restrictions on power of review by the High Court under Articles 226 and 227 of the constitution, which is ultra vires to the constitution as the same can only be done through an amendment.

Case Background

Court was hearing two separate writ petitions wherein orders passed by the Patriarchal Tribunal cancelling the marriage of parties involved were challenged.

The said article was enacted as law by the said Decree No.35461 on July 25, 1940, in order to confer legal sanctity to canonical marriages and the provisions of Article 19, is one such provision which was incorporated in order to give legal effect to the annulment of marriages as effected under canon law by such Tribunals.

Note: Canon Law is a system of laws and legal principles enforced by the Catholic church and its authorities.

Catholic marriages performed as per the canon law cannot be annulled or declared null and void marriage by civil courts in the State of Goa.

Senior Advocate MB D'Costa appeared on behalf of the petitioner in the first case, Bhargav Khandeparkar for petitioner in the second writ petition, Senior Advocate Coelho Pereira for the Patriarchal Tribunal and Advocate General D Lawande for the State.

Judgement

'Concordat' (treaty) entered was into on May 7, 1940 by the Portuguese Republic and the Holy See of Vatican City introducing changes in relation to Catholics in Portugal and its territory. Subsequently, a new enactment Decree No. 35461 was passed with effect from September 4, 1946.

Under the said decree, Christian marriages could be performed before the Church authorities upon the production of a no objection certificate from the Registration Officer, appointed under the Code of Civil Registration and such a marriage would have civil effects if transcribed in the Office of the Civil Registration.

The bench examined judgement of the High Court at Goa in Joao Azavedo Vincent Paul Fernandes vs. Clara Rodrigues, (1996) and apex court's judgement in L. Chandra Kumar vs. Union of India 1997 wherein it was held that it cannot be said that Article 19 intends to take away the power of judicial review. Even if it is meant to take away the power under Articles 226 and 227 of the Constitution of India, such provision would be unconstitutional on the face of it, Court observed.

After perusal of several other judgements of the Supreme Court and High Court, the bench noted-

"In our view, Article 19 of Decree No. 35461 thus could not impose a bar against the High Court from exercising a power of review. Such powers enshrined under Articles 226 and 227 of the Constitution of India in the High Court can be whittled down only by a provision in the Constitution of India and not in such Article 19 of the Decree No. 35461. The said Article 19 of the Decree No. 35461, thus deserves to be declared as unconstitutional and ultra-vires Article 14 and 21 of the Constitution of India. The principles of law laid down by the Supreme Court in the case of The State of Haryana vs. The Haryana Cooperative Transport Ltd. & Ors. squarely applies to the facts of this case. We are respectfully bound by the said judgment."

Further, Court said that although, Article 19 of the Decree No. 35461 was enacted to give recognition of judgments and annulments of marriage with respect to Catholics by Patriarchal Tribunal and Metropolitan Tribunal and to give civil effect to have such decision being transmitted by the High Court to the concerned Registrar of Marriages for cancellation, the said power restricting the power of review by the High Court under Articles 226 and 227 of the Constitution of India is "ex-facie unconstitutional and ultra-vires provisions of the Articles 14 and 21 of the Constitution of India."

Finally, the bench concluded-

"In our view, the findings rendered by the two Tribunals below are ex-facie perverse and in gross violation of principles of natural justice and thus both the decrees passed by the Tribunals below deserve to be set aside.

There cannot be any exemption under Article 19 of the Decree from exercising the constitutional remedies available under Articles 226 and 227 of the Constitution of India. The Canon Law is integral part of law. It is not in dispute that High Court Rules framed till date do not provide the role of High Court for transmitting the Decrees received from those two Tribunals to the Registrar of Marriage with or without review.

In our view the services of the High Court cannot be used as post office or for the purpose of transmitting these Decrees received from these two Tribunals to the Registrar of Marriages without any supervision or extraordinary jurisdiction of review un der Articles 226 and 227 of the Constitution of India."

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