HC: Marriage annulment order by church tribunals have no civil effect

Panaji: The high court of Bombay at Goa has held that an order by a church court declaring a canonical marriage null and void has no civil consequences.

The order follows a 2019 judgment by the same high court declaring the unconstitutionality of Article 19 of decree law no. 35461 — a Portuguese-era law that gave recognition to judgments and marriage annulments by the patriarchal and metropolitan tribunals.

The current case concerns a petitioner from Taleigao who married a Santa Cruz man at the Santa Cruz church in 2017. Based on the marriage certificate issued by the Archdiocese of Goa, the civil registrar transcribed the canonical marriage into the register of marriage of that year.

In the Catholic church, a canonical marriage is one that’s considered valid by the Church and adheres to the rules and requirements outlined in canon law.

In court, the petitioner said that her canonical marriage was in accordance with decree law no. 35461, applicable to the state of Goa.

Two years later, in 2019, she initiated a process of annulment of her marriage before the patriarchal tribunal of the Archdiocese of Goa, and this was granted in 2020 by a ‘definitive sentence’ declaring her canonical marriage as null and void. She claimed that this ‘definitive sentence’ was then ratified by a decree of ratification by the metropolitan tribunal of the Archdiocese of Bombay in Mumbai.

She stated that since this conclusively declares the marriage null and void, she is entitled to have her entry in the book of the civil registration of marriages cancelled.

However, when she approached the civil registrar, Panaji, in 2021, for the cancellation of the entry of registration of her marriage in the marriage register, the registrar referred to a previous judgment of the high court delivered in another petition. The registrar contended that since the high court’s decision was under challenge in the Supreme Court under civil appeal, her application would be processed after the decision in that matter, and after the order of the ecclesiastical (church) tribunal was ratified by the high court. Subsequently, she approached the high court.

The point for determination before the high court was this: do the orders of an ecclesiastical court declaring the annulment of a marriage under canon law have civil effects after the provisions of Article 19 of decree law no. 35461?

A division bench comprising justices Valmiki Menezes and Nivedita Mehta answered this in the negative. “We are of the opinion that in view of the position that Article 19 has now been struck down in its entirety, the order/affirmative sentence of the ecclesiastical tribunal in Nov 2020, confirmed by the decree of ratification in Sep 2021, would have no civil effects. Consequently, the civil registrar of Tiswadi, by communication in March 2022, has rightly refused to endorse the entry in the register of marriages of the marriage of the couple. Consequently, we dismiss this petition”.

During arguments, senior advocate J E Coelho Pereira, amicus curiae, stated that Article 19 provided for the enforcement of such orders only if they were endorsed by the high court. He submitted that under Article 19, it was the high court which was competent to enforce such an order and direct the civil registrar to make an endorsement in the marriage register. Coelho Pereira contended that the absence of Article 19 of the decree law renders orders passed by the ecclesiastical court with no civil effects; therefore, the entries in the marriage register cannot be cancelled to give such civil effect.

Another amicus curiae, senior advocate M B D’Costa, submitted that under Article 2 of the decree law, parties have an option to opt for registering their marriage under civil law or under the canonical form of marriage by subjecting themselves to the jurisdiction of the church under canon law. He said that if the parties choose the latter form, the provisions of Article 2 take away the jurisdiction of the civil court to decide the annulment or divorce of that marriage, and in such an event, it is only the ecclesiastical court that would have jurisdiction.