Indian Divorce Act, 1869 was brought as law as it seemed necessary to amend the law relating to divorce of persons professing Christian religion and also to confer upon matrimonial jurisdiction to certain courts.
|Image:Honourable Supreme Court of India|
A Writ petition was filed in the honourable Supreme Court of India for a direction to make orders of church and ecclesiastical courts legally binding. The petition was admitted and will be hearing in detail soon. The petitioner is one Clarence Pais who is the former president of a Catholic association in Karnataka state. He pleaded that when oral triple talaq could grant legal sanctity to muslims, why canon law decrees is not made applicable to Christians. Advocate Soli Sorabjee who appears for the petitioner submitted that the court should declare that canon law is the personal law of the Indian Christians and the dissolution of marriage granted by ecclesiastical court is valid and binding as Indian Catholics are governed by the code of Canon law both regarding marriage and divorce. As per the Canon law, if the catholics are not married in a Catholic church or if the divorce is not passed in a canonical court, these will not be recognised by the church.
The method of divorce is still made on the strength of orders of canon churches rather than Courts. It is the case with most of the castes in India who still believe that declaration of separation by their chosen community heads are valid for second marriage. When Courts do not approve such separations and go on declaring the second marriage a bigamous one, several legal and moral rights and aspects will come to the fore. This is really a debate issue which should be settled by the lawmakers.
Earlier in the year 2013 also, the Supreme Court had dealt this issue in a Public Interest Litigation which had sought declaration that the Canon Law is the personal law of Indian Christians and that a decree passed for dissolution of marriage by an ecclesiastical court is valid and binding. That petition even challenged the jurisdiction of criminal courts in India to prosecute Roman Catholics under Section 494 of Indian Penal Code which punishes a second marriage during lifetime of husband or wife. This petition was also filed by the same petitioner. For the petition, there was no response from the part of Central government. Again in 2015 another petition was filed. Here the petitioner cited Article 372 of the Constitution, which provides for continuance of several existing laws and their adaptation even after the coming into force of Indian Constitution. One can hope that the apex Court will find the much needed separating lines between Canon laws and other laws.