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.
Discrimination?
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?