Bombay HC strikes down legal sanctity of Goa’s ‘church courts’
After hearing two separate petitions filed by persons whose marriages were annulled by a so-called church court, the Bombay high court at Goa has struck down Article 19 of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony.
The high court said the article was “unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India.”
The decree in question, Portuguese Decree 35461, has its origin in a 1940 agreement between the government of Portugal and the Holy See (the governing body of the Roman Catholic church in the Vatican) to create special laws for Catholics in both Portugal and its overseas colonies.
The decree went into effect in Goa in 1946 and governs marriages and divorces of Catholic couples. But in doing so, it virtually reduced the role of civil courts to administrative bodies, merely tasked with ensuring the execution of orders passed under the decree.
“Ecclesiastical tribunals passed orders of annulment of marriages and communicated them to the high court, which was then merely expected to ensure these were enforced by the civil registrar,” advocate Cleofato Almeida Coutinho, a former member of the Goa Law Commission, explained.
Justices RD Dhanuka and Prithviraj Chauhan of the Bombay high court ruled that orders passed by such ecclesiastical tribunals have “civil consequences” and that such automatic recognition of their rulings will no longer take place. Restricting the role of the high court to simply transmitting orders without bestowing on it the power of review is ‘pro tanto unconstitutional”, the judges ruled.
The high court also pointed to provisions of the Constitution of India by which it held the power to review decisions of such religious tribunals.
Interpreting the judgement, Coutinho said that now, couples who seek annulment of a church marriage can approach the ecclesiastical tribunals, but will also have the option of approaching the civil courts to dissolve the civil aspect of marriage. “This is something they couldn’t do earlier,” he said.
However, Coutinho pointed out that the ruling only concerns cases of divorce and annulment. Registration of marriages will not be impacted and a church marriage will continue to be considered a civil marriage too, as has been the practice up to now.
The church, however, argued that Article 19 of the Portuguese Decree gives neither the district nor the high court the power to nullify a marriage between two Catholics.
“This Article was a privilege given to the church to bestow civil recognition upon orders of the church tribunals. No separate divorce proceedings needed to be initiated by couples who had church weddings,” Father Nelson Sequiera, a judge at an ecclesiastical tribunal said, adding that the church was studying the order and had six weeks to decide whether to challenge it or not.
According to the 2011 census, Goa’s population is 1.55 million of which about 25% is Catholic. The Bombay high court ruling only covers Catholic marriages in Goa, Daman and Diu, since the decree was in force only in the three former Portuguese colonies.