28 Oct 2019  |   05:34am IST

Civil execution of Church marriage annulment decrees

Recently the High Court of Bombay in Goa struck down Article 19 of Decree 35461 cancelling marriages as unconstitutional, illegal, null and void and ultra vires, FR MOUSINHO DE ATAIDE, a former Canonical Judge, provides an insight into the issue
Civil execution of Church  marriage annulment decrees

The Decree No. 35.461, dated 22nd January 1946, is in consonance with the Common Civil Code in force in Goa, because it takes into account the specific internal legal organization and structure which the Catholic Church has. No other religion has such an organization and structure. So it cannot be considered discrimination in favour of the Catholic Church. Had such a Decree not been there, it would have been a discrimination against the Catholic Church. So it is not violative of Art. 14 of the Constitution. “Equality towards unequals is the greatest form of inequality”.

Art 19 of the said Decree regulating the civil execution of ecclesiastical decrees of nullity and dispensation of marriage is a corollary of Art. 8 ff. of the same Decree regulating the civil recognition of the canonical marriage.

According to Art. 8 ff. of the said Decree, the Civil Registration Office, after a due process, acknowledges the canonical marriage as such, contracted according to this due process. Canonical marriage does not become civil marriage, it remains canonical. The Catholic Officiating Minister does not become a Civil Registrar, he remains a Minister of the Church.

Art. 19 of the said Decree follows the same train of thought and legislation as Art. 8 ff. of the said Decree: The Church annuls and dispenses the canonical marriages, which are its own. The State, through its High Court, orders the civil execution of the ecclesiastical decrees of annulment and dispensation.

At no time, either before or after Liberation, was the diplomatic channel ever made use of for transmission of the decrees of annulment and dispensation, verified and ratified by Rome, to the High Court for the purpose of their civil execution. It was always the Archdiocesan Tribunal which did the transmission directly.

When in 1979 the Metropolitan Tribunal of Bombay became the Court of Appeal for Goa, the then Judicial Commissioner Mishra raised objections against civil execution of decrees of annulment issued by this Archdiocesan Tribunal of Goa, verified and ratified by the said Metropolitan Tribunal. But Justice Dr G F Couto, by his Judgment, dated 17th December 1982, stipulated that, when the annulment is duly confirmed by the competent Ecclesiastical Tribunal, it will be sufficient to forward such a decree to the High Court for the purpose of the execution, without getting it verified by the Supreme Tribunal of the Apostolic Signature and forwarded to the High Court through diplomatic channel. Mr Justice Dr G F Couto bases his decisions, ‘inter alia’, on the fact that the Church itself has changed its law or rules. If the Church has made the Metropolitan Tribunal of Bombay the second Instance Court for Goa, instead of the Roman Tribunal, then the High Court has no objection to order civil execution of decrees by the said Metropolitan Tribunal, as it did till then with Roman decrees. It is the ecclesiastical internal arrangement, which the High Court respects.

It is true that Art 19/2 of the said Decree establishes that the High Court must enforce the ecclesiastical decision of annulment and dispensation without revision and confirmation, but this does not preclude the High Court, by virtue of Art. 226 of the Constitution of India, from verifying, when one of the parties raises doubts and suspicions, whether the ecclesiastical decisions are authentic, i.e. issued by the competent Ecclesiastical Tribunal, whether principles of natural justice, including the right of defence, have been followed, and only when the findings are affirmative, to order the execution of the ecclesiastical decisions. This is done by High Courts in Portugal after the Concordat of 2004 between the Holy See and Portugal. Thus Art. 19/2 of the said Decree is not violative of Art. 226 of the Constitution, and can very well be read within the parameters of the latter. It is to be noted that law is never a stagnant letter, unamenable to any progressive interpretation. This was already done with the same Art. in another matter by the above Judgment coram Mr Justice Dr G F Couto.

The substantive Matrimonial Law, spanning from can. 1055 to can. 1165 (111 canons), and the Procedural Law, spanning from can. 1400 to can. 1752 (353 canons) are extensive and detailed, leaving no room to individual Judges’ whims and fancies. An annulment decision to be ecclesiastically executive requires affirmative Judgment by the lower Tribunal and the Decree of confirmation by the Higher Tribunal. This is even when there is no appeal from the first decision. Following of the procedural law and upholding of the right of defense are checked at every step during the trial. The Judge has to have at least a Masters in Canon Law. It is he who conducts the hearings, examining and cross-examining the parties. If the latter wish to requisition the services of an advocate, they are free to do so, in which case the advocate has the faculty to attend all the hearings and to cross-examine the parties. But the advocate has to have at least a Masters in Canon Law and approved by the Diocesan Bishop. When sufficient evidence has been collected, the parties are entitled to peruse it and produce any other piece of evidence. Their advocates may seek copies of the records and present their briefs. Besides, there is the defender of the bond who may attend hearings, goes through the records and files his observations in favour of the bond. Copies of the judgment are given to the parties, who, feeling themselves aggrieved, may file an appeal, which has to be admitted and the same procedure as above is followed. In view of these strict provisions of Canon Law, which are observed literally, it surpasses my mind how anyone can state that natural justice is not followed in the Church Courts.

The Church (Code of Canon Law, Doctrine and Jurisprudence) has its own terminology, which may not be easily understood by others. Thus, discretion of judgment (can. 1095, 2°, C.I.C) means a mature evaluation of the other person and circumstances of the marriage. This has to be done at the time of the marriage and, if for any reason this is not done by the person, then the marriage is invalid. Reasons may be manifold. For example, a boy may be so infatuated with the beauty of the girl that he overlooks everything else, which, if he had considered, he would not have made and taken the decision to marry. This carries ‘per se’ no stigma on the boy.

The other ground of nullity, sometimes invoked, is inability to assume essential obligations of marriage (can 1095, 3°, C.I.C). This is also prone to be misunderstood, specially by those who have half knowledge. Ability to assume… means possessing will-power sufficient to choose the marriage and to live it thereafter at least in a minimum passable manner. This may be proven oftener than not only ‘ex postfacto’. Here the canon specifies that the mentioned inability has to be due to “causes of psychic nature”. This formulation was done after setting aside two others, which had been proposed, viz: “grave psycho-sexual anomaly” and “grave psychic anomaly”. So the cause of inability may not be an anomaly. It is enough that it is a “cause of psychic nature”, that is a cause rooted in one’s psyche or personality. For example, a boy may have a personality of an ascetic or rishi or bear an asocial personality but still marry, and the resulting marriage becomes a disaster. This being so, to declare a person unable to assume… may not ‘per se’ a stigma on him.

The Church Tribunals are not established under and do not draw their powers from Art. 19 of the above Decree-Law, but from the Code of Canon Law. They have recourse to the said Art. only for the purpose of having its decrees of nullity executed civilly. If the High Court, in its wisdom, feels that, for one reason or the other, it cannot order the civil execution, it is well within its powers, but surely it crosses its powers if it then sits in judgment over the ecclesiastical decision of nullity and overturns it and, worse still, orders the Church Tribunals to initiate the trial again, setting time limit for its completion. It is to be noted that the Church may not seek civil execution of its decrees of nullity and may keep the proceedings within its own ambit. Nothing prevents it from doing it.

The High Court is within its rights to declare the said Art. 19 of the Decree Law unconstitutional, because it is a state law, and, having done it, to withdraw the civil execution, already performed under its orders, of the Church Decree of Annulment of the Marriage. But logic seems to fail it, when, pursuant to the same Art., declared unconstitutional, it takes upon itself the task of delving into Church Decrees. This is no disrespect towards the High Court.

 (The writer is currently posted at the Minor Seminary at Saligao, and earlier was a Canonical Judge)