Canon Law Vs Civil Law – Where do we stand?

Mar 20, 2011

Just the other day our  indomitable advocate and notary Clarence Pais and advocate Ivan D Souza met union Law Minister M Veerappa Moily and handed over a petition seeking legal sanctity to divorces granted to Christians as per canon law.  The petition therefore demands amendment to  section 494 of Indian Penal Code and also amendment of Section 42 of Indian Succession Act.  While the amendment to Indian Succession act also calls for urgent  action it is section 494 of IPC which  deals with ‘Bigamy as an offence’  that  has grabbed the eyeballs of all. 

 Thanks to the  Godwin D Souza issue, which has snowballed into a major controversy, the issue of the  conflict between the  canon law and the Civil law of the land has come into the forefront. 

“Though there  have been  numerous cases of church annulment of  marriages in the Christian community, the Godwin case  is going to be the basis of our fight for recognizing annulment of the marriage by the church as valid, says advocate Clarence Pais who has taken up the issue on behalf the Catholics to the Law Ministry.  The facts of the Godwin case should be an eye opener to many.  Godwin was married to Shanthi D Souza in 1999 at Cordel Church.  The marriage was dissolved by the Ecclesiastical Court  (canon law) in 2002 which held  that the existing marriage  (Godwin with Shanti) is no longer  an impediment for either of them to remarry.  Based on this annulment of the church Godwin  got remarried in the same church in 2003 by the  same priest.   Godwin has two children from his second marriage.  
Godwin and his family was flummoxed  when they came to know after 9 years of annulment, that Godwin’s first wife  Shanti has filed a private complaint with  the  Chief Judicial Magistrate  under Section 200 of the Criminal Procedure Code for various offences punishable under law including section 494 of IPC which deals with bigamy.  Section 494 reads as “marrying again during lifetime of husband or wife- whoever, having  husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend up to 7 years and shall also liable to tine”.

The Godwin Saga

This means that  Godwin has been sued for bigamy by his first wife because in the eyes of the law of the land Godwin has married again even when he was married to his first wife (canon law annulment of marriage not recognized by the court). However, the second marriage permitted by Canon Law,  has now become a crime under sec 494 of IPC.  The other impact of this complaint by Shanthi  is that under the same law the priest who had blessed the second nuptials of Godwin has the risk of being prosecuted for abetting the crime of bigamy.  The final fall out of this is that a number of cases pending before the Ecclesiastical courts are sure to come to a standstill knowing fully well that the Canon Law decree has no value in the court of law. 

That his wife Shanthi might have been advised by her  lawyers who saw the potential to swindle money in suing Godwin for money or whatever may be the reasons,  is altogether a different matter.  Nonetheless, what is important is that despite the church granting the annulment Godwin’s marriage to his first wife is not nullified and  the church decree has no validity in the court of law.   A FIR and a complaint has been registered against Godwin on 11th September 2010 based on the complaint by  Shanthi.  Though CMJ of Mangalore has released Godwin on bail the episode has opened  a very relevant and rather  ticklish  issue, which is nothing but a spike  between the canon law and the civil law. 

As per canon law when a laity approaches the Bishop for annulment of his marriage for various reasons  the bishop appoints a one man tribunal who sits in judgment based on certain rules and guidelines and gives a patient hearing to both the parties involved.  Once the church  is satisfied with the reasons  put forward for annulment,  the marriage is dissolved and the decree is given.    While it is known to most Christians that the canon decree issued by the church  with regard to marriage annulment is null and void in the court of law,  one wonders why Christians prefer going to the church for the annulment as is evident from the fact that more than 50 cases  for nullity are pending in Mangalore and more than 1000 cases are pending in Mumbai. 

Clarence Pais opines “Many Catholics all over India are  averse  to the idea of washing their dirty linen in the public (civil court) and go to the Bishop”.  The other aspect is that the church does not recognize the divorce granted by the civil court when it comes to remarriage.  Many Catholics have been wise enough to get both annulment under canon law and a divorce under civil law.  But there is another hitch when it comes to the annulment or divorce.  The grounds for annulment available for Catholics and the grounds on which divorce is  granted differs wherein there is every possibility of the parties involved contradicting themselves.  


Advocate for  Godwin,  Ivan D Souza says “it is not Godwin’s problem alone.  We want our Canon Law decisions to be recognized in the Indian Penal Code just like church  marriages are recognized by the court”.  In the petition submitted to Union  Law  Minister Clarence Pais contends that Canon Law is the personal law of Christians and is applicable to about a billion Christians round the world including Christians in India.  However, in India Canon Law is not recognized especially with regard to annulment of marriage.  Clarence Pais says “Muslims also have their personal law.   Under the Mohammedan law there is provision to nullify marriage which is recognized  under Indian law.  The Mohammedan law is recognized in India especially with regard to nullifying  the marriage. 

Expressing the word “Talaq” three times renders a marriage null and void and this nullity entitles the spouse to remarry and such remarriages do not amount to bigamy”. 

While Indian law clearly discriminates  between Mulsims and Christians vis-à-vis  remarriage after the previous marriage is declared null and void, the personal law is made applicable only to Muslims,  which is  however, denied  to Christians.  There is a certain  contradiction when it comes Cannon law and Civil Law in this regard.  Christian marriages under  Canon law are legitimized by the Civil law which tantamount that the civil court recognizes the Canon Law under Christian Marriage Act.  However, when it comes to divorce the  same Cannon Law is not recognized under Sec 494 of Indian Penal Code, which has led to confusion and   some egregious errors. Needless to say incidents like that of Godwin’s have given sleepless nights to those who are entangled in some messy conflicts, which may drag on  endlessly, adding to stress and financial burden. 

Now Clarence Pais and Ivan D Souza have requested  the Law Minister to make necessary amendment to the law to recognize church dissolution decree as valid.  In this representation, the advocates have the full support of Archbishop of Bangalore Dr Bernard Moras and Dr Aloysius Paul D Souza, the Bishop of Mangalore.  Clarence Pais says that he has found a loophole which may come to the rescue of Godwin D Souza until the parliament decides to amend section 494 of Indian Penal Code.   As per  372 of Indian constitution which deals with Continuance of force of existing laws and their adaptation -  the expression ‘all the laws in force’  includes not only the enactments of the Indian Legislative but also the common law of the land which was being administered by the courts in India.  This include not only the personal law namely the Hindu and Mohammedan Laws but also the rule of the English Cannon law.  For example the law of torts as well as the Customary law. 

It means that Personal law/Customary law which was in force when the constitution came into operation,  continues to be valid and it can also be contended that  the Canon Law is the Personal law or Customary law of the land.  

Casmir D Souza, father of Godwin D Souza says that he believed the church decree is valid in the court of law, the ignorance of which has put his son in a trap.  Nevertheless,  if Godwin’s case is going to be the foundation on which the amendment to the section 494 of IPC to include the decree of the ecclesiastical court as an exception to the section,  then it will be a great victory for all those who have suffered due to this.  In other words, what Christians beseech  is  in the same way as the Indian government recognized Mohammedan Law regarding nullity of Marriage, Canon Law governing Indian Christians may be recognized so that remarriage after declaration of nullity by the Canonical Court does not become an offence of bigamy.  If the government effects the amendment in this respect, it will certainly be another feather in the cap of Clarence Pais who was primarily responsible for the removal of Probate Act which was proving to be an obstacle for Christians to transfer their properties to the successor.

However, one cannot stop wondering why  it has taken so long for the lawyers among the Christian community to fight against this lacunae or discrimination  prevalent in Indian Penal Code?

by Florine Roche
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Comment on this article

  • Vincent Bagul, Mumbai

    Sun, Nov 04 2012

    When a Catholic marriage is d null and void by the Catholic Tribunal, the Civil Law should accept it and should not ask for divorce in the Family Court. This is double trouble for the affected parties.

  • Adrian,

    Sat, Mar 31 2012

    God the Creator of Universe can intervene and show you the truth of all religions.


    Dear God, Creator of all Universe, please give me the understanding of all religions as you see them, and move me to the best religion in your eyes. Also please help me have a great life in after life and give me what you know I need in this life and in after life. Amen.

  • anup rao , udupi

    Sat, Jul 30 2011

    i can argue that my ancestar has come up with a new relegion and we follow a set of laws which existed befor constitution was framed . wouldnt this be legal ?

    isnt it unfair for new relegions to not have new civil laws but muslims have their own civil law and christians might have their cannon law ?

    for the better future it is good to have a uniform civil law instead of having different laws for differeent relegions ?

  • Lourdes, India

    Mon, May 23 2011

    that is not the fact in todays time. if you have money than an annulment can be done even without consulting the second party. the church no longer has the power to give the right judgement. The church only needs people who would give them donations.

  • Lourdes, India

    Mon, May 23 2011

    i want to know what happens if a child is born during this marriage period. does the child gets his right. and if the spouse can marry in the court and in the church after getting annulment from the church

  • Jacob Mathew, Kerala

    Fri, Apr 01 2011

    Which is the canon law governing the Catholics in India . Also what laws govern the christians in India, If an inter christian denomination marriage is to be divorced or annulled what law should be governing . Also how the canon laws are constituted in different catholic communities in India . What are the qualifications for the Judges in the cannon court , What are the appellate authority for the cannon court cases .

    Here let me all these people who want to make the canon law of christians to be the law for the christians we are going to the medieval world of church brutality .

    Canon law it self says the if there is a dispute between the cannon law and civil law the civil law will prevail . The Divine law is not cannon law . It is a misrepresentation

  • Joseph F. Gonsalves, Bannur, Puttur / Mangalore

    Sat, Mar 26 2011

    The greatest mistake of Gulf people are: They wanted to engage in wedlock urgently within a limited period. Marriage is not for a limited period, a mockery and not a use and throw device. Why these wanted to seek marriage in their native place since they are in Gulf? Let them search a partner where they are. For some, wife is not important, bringing up children in good etiquette is not important, loving each other is not important but Money is most important Right?

    Dear Mr. Anil Dubai, If in the opinion of gulf people's the registered marriage is good for them then follow, live together with their wife and do not leave her faraway for temptations which will devour both of them. Why can't they solemnize the marriage at the same time in the church? KAAZAR GADDALAYAN ZAAIJE MUN KAAYIM GURZ NAAN. Celebrating the marriage lavishly is not important/imperative. The gulf people spend money to show to the public that they are rich or pretending rich. Money is nothing which will come and go living together will satisfy both of you and the matter of divorce will never occur unless quarrel breaks out within each other. A husband is not to teach his wife or the wife is not to teach her husband however living with mutual understanding is most imperative. Read 1 Corinthians 7:1-5. If the couples trust each other well the matter of divorce will never occur.

  • Adv. Harry D'souza, Mulki, Dahisar

    Fri, Mar 25 2011

    As per the Christian Marriage Act1878 enacted during British rule a christian can marry a christian or non chritian before the marriage officer appointed by the Govt. if they want marriage certificate form Govt. In Mumbai a mrriage officer perform the marrige wih in a period of 4 day from the date of application. In Karnataka the power was conferred to certain notaries to do the job. After this marriage the couple can approach the church for the sacrament.As on today all the marriages performed before the marriage officer or church, the dispute between the couple, the marriages performed before the marriage officer and church are dealt with Divorce Act 1869 either before civil court or family court and court is empowered to grant the relief. But once the marriage is performed before Church, the same marriage cannot be performed before the marriage officer appointed by the Govt. In Goa all marriaged irrespective of religed to be registed first before the marriage officer appointed by the Govt. and religious ceremony will take place later on.In Mumbai if the the couple perform their marriage first before the church, the they will be issued a certificate from the church. If any person wanted to use that certificate for passport and immigration, then they have to notorise that certificate and get endorcement from the marriage officer from Govt. All the marital dispute of marriages perfored in the Church and Govt. officer dealt with Divorce Act 1869 before the civil court.

  • Jerome, Mangalore

    Fri, Mar 25 2011

    The remedy for all these confusion is to accept and adopt a common civil law which is applicable for all communities and religions within India.This was proposed during NDA regime, however could not went through.

  • Anil, Dubai

    Fri, Mar 25 2011

    I have noticed recently gulf guys go to India do the registered marriage, come back to gulf. Later few months or year finish the church wedding. What will happen during this transition period if something goes wrong??? I guess either boy or girl needs a divorce for find another bride/groom.. I dont know whether the above concept is good or bad. Or right or wrong... any opinions.

  • A.S.Mathew, U.S.A.

    Wed, Mar 23 2011

    When we dig down, the civil laws
    are taken from the divine laws
    established by God. God is the first law-giver. The Mosaic laws
    were adopted in the western and
    the Islamic countries. Since
    getting independence, India has
    blindly followed the British civil

    To the critical question " whether
    the civil laws are above the Canon
    laws or vice versa", indeed there
    is no definite answer.

    To make a rope, it takes hours but
    to cut a rope, it takes only
    seconds. Marriage is a divine
    institution, and the first institution created by God.

    Many of the marriages are being
    broken due to the spirit of pride, selfishness, jealousy and
    greed. Minor issues are inflated
    to create the worst argument, and
    relationships are broken very easily. Never in human history,
    we have not seen such a time of
    material prosperity and a life of
    pleasure on the other hand, we
    have never witnessed a time of
    broken marriages and homes like we
    witness today. The underlying
    cause of the matter is the spiritual bankruptcy.


  • Joseph F. Gonsalves, Bannur, Puttur / Mangalore

    Tue, Mar 22 2011

    English proverb says if a person has money love comes from the door, if the money is exhausted love flies through the window.
    Men seek virgin girl while engaging suppose the girl also asks similar question can men proudly say that I am a virgin boy.
    Dear Oswald the government has its own constitution & law to be adhered by citizens. Marriage is a Holy Institution, a sacrament with mass, prayers & an oath is taken before all the gatherings, the bride & the bridegroom are taking Holy Communion. God is love & in Holy Communion God dwelleth in us/omnipresence these spiritual matters are not accomplished in the register office.
    Read St. Paul says in 1 corinthians 7-5 & Matthew 19:9. And I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery: and whoso marrieth her which is put away doth commit adultery.
    Hence the church marriage is legal & the register marriage is only a law abiding. For us register marriage is only a formality & law abiding. The couples should not move to court seeking divorces wherein vulgar, shameless questions are hurled upon. The lawyer himself may marry the divorcee unknowingly. I do suggest here to sort it out within reachable solutions thereby approaching good will of men & women as counselors.


  • Francis Lobo, Bejai,Mangalore

    Tue, Mar 22 2011

    I fully agree with the logic that the civil law should be above the cannon law. The cannon law may be there for the church to recognize or annul a marriage. But nobody has prevented people to getting married in civil courts, even after a divorce.

    Even in the case where the passports are made or immigration of people to other countries,the civil marriage/ letter from the notary is the one which is recognized.In the case of a marriage annulement by church, what happens to the Children. Can the church give a judgement regarding the children's caretaker and is it acceptable to both parties.?.

    In most case it will not. Even Alimony is involved can the church enforce it. I remember one of my relative underwent a similar situation, luckily there were no children involved . In this case, the church annulment and the civil court was filed together. Although church completed it within a year. The court prolonged it for 3 years. Ultimately he had a legal document to marry, which he used to remarry in the church and there were no hassles so far.

    Cannon law may be for Christian ,but, the law specific to the country must always applicable for marriage or annulment, alimony and child. The days are gone, when the flock faithfully followed the shepherd.Even today Shepherd says please get clearance from the court for your better future

  • Francis Pinto, USA

    Mon, Mar 21 2011

    In a secular country, religious law which is also called Personal law in this article should be separate from civil law- for all citizens. Religious law cannot be superior to civil law, as it may violate the constitution. Adv Harry D'Souza has explained it well. The priest should not have remarried Godwin without until he had a civil divorce. priest must know what the civil law is and not violate it to avoid these situations. There should be only one set of judicial laws in India for all. Abolish the rest. Other Christian denominations allow members to remarry after divorce without annulments. So they may want their own Personal Law as well. Clarence Pais should clarify that he represents Roman Catholics only in this endeavour.

  • Julia, M'lore / Doha

    Mon, Mar 21 2011

    Indeed it is a good article. Thank you Florine Roche for your good work.

    If both the partners (Husband & Wife) ready to seperate for some specific reason then why the Church takes so long time for Annulment? But Court doesn't take more than 6 month. Without Church Annulment we cannot remarry in the church.

  • Nisha, Bangalore

    Mon, Mar 21 2011

    With the increase in social awareness & financial independence,
    there is increase in divorce rates in our community. Ofcourse, no one would opt for it for fun. It's a welcome move of our christian lawyers to take up this issue with the motive of reducing the hassels involved. Wish successful outcome at the earliest.

  • prashan, mlore/Dubai

    Sun, Mar 20 2011

    Looks like Indian penel code is only for all want to follow there religion.If hindus ask for any thing then its communal,safron,rss ideology.If others ask then its there rights. Strange but this can happens only in India.


    Sun, Mar 20 2011

    As per my knowledge of Law-
    If a church marriage is valid then DIVORCE also will be valid.If it is
    VOID then marriage is also VOID.If suppose someone married in church
    again married in the court then he has to get divorce from the court.
    anybody having comment on this.
    oswald vaz.

  • Joseph, Mumbai, Borivali

    Sun, Mar 20 2011

    As this case is filed after quite a long gap, it is advisable that the benefit of the Law of Limitation could be invoked by the concerned. At the same, our people should be properly educated and advised on the matter as to what the law stands as of today.

    Annulment granted by the Court is not recognised under our civil law, but only the marriage at church is recognised by civil courts. Therefore, our people should be made well aware of this fact. Similarly, there are instances under inter caste marriage that a church marriage is illegal if the couple has earlier married under Hindu Marriages Act. To avoid this, most of the couples marry in church the previous day and solemnise their marriage under Hindu rites subsequently if one of the couple is a Hindu.

  • Agnello, Mangalore/Muscat

    Sun, Mar 20 2011

    Its important that every annulment granted by Church should be ratified by court before granting divorce. While minority rights have to be protected, in a secular nation like ours we need to have a oversight of the courts which should be the ultimate authority over those institutions delivering justice(church in this case).

    I totally agree with what Dony says. More often than not, the Church grants annulment on basis of haves and have-nots. For those genuinely affected(mostly women) and not obtaining Church sanction then courts may only be the way forward for appeal. Human right violation should be most important factor for divorce sanction


    Sun, Mar 20 2011

    While the Request for recognition of Divorce under Cannon Law to be recognized in the Indian Penal Code ….may have some good and valid reasons to pursue, however like the proverb goes All that glitters is not gold……….it may not be foolproof request considering the credibility of various decisions and actions of the Church Authorities especially in India ( if not elsewhere in the world) are concerned.

    We know of Catholics where Divorce (for absolutely no reason whatsoever) was easily obtained from the Church Authorities just because Money Talks. To a poor family which cannot afford to grease the palm of Religious authorities it can be very difficult or rather impossible to obtain a divorce, however granting of divorce to those who can afford…..has been known, even when social and women’s right activists have fought against it.

    Just very recently a couple (two Catholic doctors) got married even though the groom was already married for eight years to a girl hailing from a simple and humble family background., with no irrevocable differences whatsoever between the groom and his first wife….(the only difference being perhaps the groom had married the simple girl (first wife) bringing in no dowry to the dislike of his parents.

    Its my humble wish that legal luminaries (like Catholic lawyers practicing in Supreme Court, High Courts etc.)go into this subject much deeper (especially its impact on helpless wives), discuss the pros and cons of the issue before pursuing it further.

  • Dave, Mangalore

    Sun, Mar 20 2011

    As far as I know-in a civil court a case is filed to get separation or divorce by estranged couple-which is granted after giving both sides a complete hearing & a last chance to get united again.
    Only after they are permitted to divorce-another application is moved to decide alimony,custody of kids,compensation,the right to visit kids etc(put more light if my interpretation is wrong).
    My solution to this tangle is get a Cannon Annulment of marriage & get it Registered(Ratified) in a civil court without any further hearings as Church doesn't grant any separation without any concrete evidence of failure(fulfilment) of a valid marriage. And if both the parties fail to arrive at an amicable settlement(through the church) regarding-alimony, maintenance,custody of children-let them take recourse to civil suit filed to solve this tangle only.

  • Adv. Harry D'souza, Mulki / Mumbai.

    Sun, Mar 20 2011

    The Mommedian law was enacted in India during British rule.In India the Christian Marriage act was ebacted in the year 1878. These facts are not revealed by the church authorities to their flock. In Mumbai the christian from any denomination can marry any body including christian with in a period of 4 days before the marriage officer appointed by the Govt. Today a lot of transformation of the society taken place. Any courts should be presided by the legal experts not by the religious leaders. The cannon law created by the Rome. We are a democratic Country having our constitution. All the Courts proceeding are conducted on the basis of constitution, proceedure laws and Indian Evidence Act. Most of the Bishops holds the degree from Rome and not by the Universal education. They do not know how to conduct fair trial and take the notes of evidence. They think that they are immune to the Indian Law because they are followers of God. This should be stopped and they should not be allowed to run their Kangaroo Courts. As a Senior Criminal Lawyer of Mumbai my advise to all christians please contact catholic lawyers instead of these priests and present their cases in court of law not the religious courts. I have taken up such matter and given right adise to the deserving persons.

  • Lydia Lobo, Kadri

    Sun, Mar 20 2011

    Thank you Florine... that was indeed very informative.

    Acquainting ourselves with hidden legal agendas is like holding an insurance policy which we do for contingency. Now, until necessary changes are adopted, those who seek Church marriage annulment will at the same time file for legal divorce without fail.

    However, we can't say that IPC alone is discriminatory. Does the church welcome civil marriage certificate ? No - there is insistence of solemnization. And, will a solemnized marriage be nullified upon producing a court divorce paper ? No ! We the laities are taken for a ride by both.

  • Joseph Dsouza, Mangalore/ USA

    Sat, Mar 19 2011

    However, one cannot stop wondering why it has taken so long for the lawyers among the Christian community to fight against this lacunae or discrimination prevalent in Indian Penal Code?

    - with Due respect to Chev. Clarence Pais who brought about an end to 'probating'of wills, the christian lawyers couldnt take up this matter of conflict/equality with other communities vis-a-vis wills, divorces etc, for if they had done so earlier, their livelihood and bread and butter would be at stake. when they had filled up their purses and coffers and had enough, these Christian Lawyers had a divine inspiration that opened their eyes to this lacunae!

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Title: Canon Law Vs Civil Law – Where do we stand?

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