PANJIM: In what could be a major decision affecting the Archdiocese Marriage Tribunals, the High Court of Bombay at Goa has struck down Article 19 of Decree number 35461 cancelling the marriages as unconstitutional, illegal, null and void and ultra virus.
The court found the orders passed by both the Tribunals to be in gross violation of the principals of natural justice as the petitioner in the case was not given any opportunity to remain present before the Patriarchal Tribunal to cross examine her estranged husband.
“Article 19 of Decree No. 35461 is declared as unconstitutional, illegal, null and void and ultra virus Articles 14 and 21 of the Constitution of India and is struck down. Endorsement made by the Civil Registrar pursuant to the order passed by this Court under Article 19 of Decree No. 35461, cancelling the marriage registration of the petitioner with the respondent no. 4 is declared as illegal, null and void and is set aside,” the division bench of Justices R D Dhanuka and Prithviraj Chavan said in the 95-page order this week.
Granting relief to the petitioner, the court has stated that application filed by her husband for annulment of marriage is restored to file before the Patriarchal Tribunal for deciding the application afresh in accordance with the law after complying with the principles of natural justice including opportunity to engage an advocate right to remain present at the time of recording statement/evidence of other part and right of cross-examination.
“The Tribunal shall not be influenced by the observation made and the conclusion drawn in the impugned orders. The Tribunal shall make an endeavor to dispose off the application within six months from the date of communication of this judgment,” the order added.
Earlier during the hearing, the court also observed that the ground on which the marriage was annulled by the two Tribunals – Patriarchal Tribunal of the Archdiocese of Goa and Daman and Metropolitan Tribunal of the Archdiocese of Mumbai – cast the stigma on the petition. “In our view, right to life under Article 21 of the Constitution of India includes right to live a decent life. The petitioner may be also deprived of her right in the property of the respondent no. 4 in view of such orders passed by the two Tribunals. In our view Article 19 of the said Decree No. 35641, thus is unconstitutional and ultra virus the Article 14 and 21 of the Constitution of India,” it said.
On the issue of cross-examination of the husband, the court – on the basis of submissions – indicated that the Patriachal Tribunal considered the evidence led by him against the petitioner without giving any opportunity to cross examine him. Various findings also brought to the fore that the Tribunal accepted evidence by the husband “as if the same were uncontroverted.” Also, the petitioner in her evidence had also made several allegations against her husband but the Tribunal refused her to cross-examine him and also refused to consider the wife’s evidence. It was here that court has asked to decide the matter afresh with equal opportunity given to the woman as well.
The bench also strongly opined that services of the high court cannot be used as post office or for the purpose of transmitting these Decrees received from these two Tribunals to the Registrar of Marriages without any supervision or extraordinary jurisdiction of review under Articles 226 and 227 of the Constitution of India.
In a similar matter filed by another woman against the Patriarchal Tribunal, State and another; the court has granted relief by quashing and setting aside the orders passed by both the Tribunals and further called for the Patriarchal Tribunal to decide the application afresh in accordance with the law with the right of cross-examination.
