Divorce granted by church court is not legal

Canon Law can’t grant divorce legally.


Dated: 09-01-2017: Apex Court decided that: divorces granted by the church courts are not valid. Thus remarrying after such a divorce decree would be committing the offence of bigamy.

In his petition, the petitioner had said, "The Code of Canon Law regulates and provides for the solemnization of marriage by the parish priest of a church, as also declaration of nullity of marriage. The Christian Marriage Act provides for the solemnization of marriage in a Catholic church in accordance with the provisions of the canon law and declaration of its nullity is regulated by the Code of Canon Law."

In India, Christian marriages and divorces are primarily governed by the Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869.

However, some Catholics follow the Canon Law which governs rules related to marriage, divorce, succession, adoption and guardianship. Under the Canon Law, Indian Christians seeking divorce must first obtain a decree of dissolution of marriage from ecclesiastical courts established under canon law. Indian courts do not recognize the divorce decree passed by ecclesiastical courts as there are existing provisions regulating divorce under the statutory Acts of 1872 and 1869.

As a result, Christians who remarry after obtaining the divorce decree from church are held guilty under Section 494 of the IPC for bigamy.

The court said that many cases have settled the law on the matter. The Divorce Act does not recognize the jurisdiction of Ecclesiastical or Church Court. Any order or decree passed by such Ecclesiastical Tribunal cannot be binding on the courts which have been recognized under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters.

Theologically and historically sacraments got developed in the church after Constantine took over the church and most of them, they say, were introduced by the ruling class – the Clergy – to control the laity with a tight grip of law. The "grip" becomes tighter and more binding when people are made to believe, all laws and regulations issued by the clergy are divinely ordained.

Already church baptism and wedding ceased to have any binding in civil court since birth and marriages have to be immediately registered in civil forum. 

Central Government Act

Article 372 in The Constitution Of India 1949

“372. Continuance in force of existing laws and their adaptation

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority“

Central Government Act

Section 494 in The Indian Penal Code

"494. Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(Exception) - This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."

Central Government Act


3. Interpretation-clause.- In this Act, unless there be something repugnant in the subject or context,-
(4) "Court" means the High Court or the District Court, as the case may be:

4. Matrimonial jurisdiction of High Courts to be exercised subject to Act - Exception. -

The jurisdiction now exercised by the High Courts in respect of divorce a mensa et thoro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise: except so far as relates to the granting of marriage-licenses, which may be granted as if this Act had not been passed.

10. Grounds for dissolution of marriage.

(1) Any marriage solemnized, whether before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent -

(i) has committed adultery; 

18. Petition for decree of nullity. - Any husband or wife may present a petition to the District Court 26 [***] praying that his or her marriage may be declared null and void.

19. Grounds of decree. Such decree may be made on any of the following grounds:-

(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. Nothing in this section shall affect the 27 [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

20 Confirmation of District Judge's decree. [Rep. by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 16 (w.e.f. 3-10-2001).]

Central Government Act

The Indian Christian Marriage Act, 1872

Year: 1996: The apex court had already ruled on: 18-09-1996, in MOLLY JOSEPH case that:

"Unless Divorce Act recognizes the jurisdiction, authority or power of ecclesiastical tribunal (sometimes known as church court), any order or decree passed by such tribunal cannot be binding on the courts which have been recognized under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters."

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Kumar Doab 
on 13 February 2017
Published in Family Law
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