Canon law on marriage in India - AbsoluteAstronomy.com

Canon law is recognised as the personal law of Catholics in India. The Supreme Court of India has held so in Lakshmi Sanyal V. S.K. Dhar (A.I.R. 1972 S.C 2667, Paragraph 10). An authoritative exposition of the origin, development and legal status of canon law in India is given in the book “Christian Law on Marriage, Adoption & Guardianship and Canon Law on Marriage” by Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India

Historical evolution of canon law

In the early centuries, before the time of Emperor Justinian (527-565 A.D), in Rome, marriages among Christians were purely civil contracts. It was only after the 5th century that the Church, under the influence of St. Augustine, began to invest the marriage bond with a religious character. Emperor Leo, the Philosopher (in A.D.886) appears to have been the first who declared ecclesiastical benediction necessary to marriage; but his constitution was in force only in the Eastern Roman Empire. Among the early barbarian Codes, no mention is made of this ceremony, and in the History of Gregory of Tours, marriage is treated as a civil contract. (See Mackenzie’s Roman Law – P.105)

The Roman Jurists gloried in the ancient maxim that marriage should be a free union; but the Ecclesiastics acquired an influence over legislation by the conversion of Emperor Constantine and set themselves up to upset the ancient freedom. Shelford says, “The Court of Rome took care to establish every regulation they could think of that might tend towards rendering applications necessary and frequent to the Holy See. For this purpose, they extended considerably the prohibited degrees of marriage, and for this purpose, they made the marriage contract a sacrament, a sacred and divine contract which no unhallowed law was to meddle with. But the Pope, by his dispensation, could make any marriage lawful, and by his decree he could dissolve the most regular and solemn marriage that was ever entered into, and that without so much as consulting the laws of the society when such was to be or had been solemnised. But although the Canon law reverenced marriage as a Sacrament, yet it so far respected its natural and civil origin as to consider the performance of the contract without the intervention of a priest (before the decree of the Council of Trent was passed) a valid contract having the full essence of matrimony. In spite of all her attempts to assume complete jurisdiction over every right connected with marriage, the Church of Rome failed even in France, the most Catholic of countries, to get the municipal laws of the States to recognise her power." (See Eappen Punnen V. Koruthu Maria. 10. T.L.R 95).

Yet, solemnisation of marriages were not done in the church before the Ordinance of Pope Innocent III (who filled the Papal chair from 1198 to 1216), before which “the man came to the house where the woman inhabited, and carried her with him to his house, and this was all the ceremony.” (See Shelford Law of Marriage and Divorce at p.29). In those times, it was not necessary to obtain the permission of any authority or tribunal for marriage or its dissolution. If husband and wife agreed to separate, the State never interfered. All that was required was a simple formal intimation from either party to terminate the union.

Balckstone in his Commentaries (Vol. I. p.439. Ed.1809),says, “Pope Innocent III was the first who ordained the celebration of marriage in the church, before which it was totally a civil contract.” It was not till the 15th century, when the Council of Trent assembled, that marriage in a church was rendered essential to its validity and a distinctly religious character given to it. Shelford in his valuable work on the Law of Marriage and Divorce, says: “Throughout the whole of Christendom there was no religious ceremony connected with marriage till the time of the Council of Trent; and still, in the countries which did not acknowledge the authority of that Council, no religious ceremony was essential to marriage, and none was essential in this country (England) till the passing of the first Marriage Act, 26 George II, c.33.” (See Shelford Law of Marriage and Divorce at p.29)

Reformation

During the march of history, Catholic Church had to face many ups and downs. There arose serious criticism against many of the practices then prevailing in the Catholic Church and the attempt for Reformation began on October 31, 1517, when German monk Martin Luther nailed his 95 Theses to the church door in Wittenberg, Germany. The Reformation movement gained momentum and those who did not accept the authority of the Pope formed different Protestant Churches.

Council of Trent

In order to withstand the onslaught of the Reformation Movement, the Catholic Church initiated a Counter Reformation Movement in Europe. For this purpose the majority of Bishops from all over the world assembled to reform the Catholic Church from within. In this process the Bishops who assembled at the Council of Trent in its twenty-fourth session held in November, 1563, enacted a Decree known as the Tametsi Decree, which governed the practice of the Church for more than 350 years. It affirmed marriage as a sacrament and declared that clandestine marriages entered into otherwise than in facie ecclesiae as null and void. (See John L. Murphy, “The General Councils of the Church”) This decree bound all Roman Catholics in the countries in which it was promulgated. However, that decree was not promulgated in England owing to the Reformation. But, it was promulgated in Portugal, and the Portuguese must be deemed to have taken it with them to India as part of their personal law.

The Synod of Diamper

When the Portuguese came to India they found that the Church order and customs
of the Syrian Christians, (who are believed to be the converts of St. Thomas, the
disciple of Jesus Christ and hence they are also called St. Thomas Christians or
Marthoma Christians- on the South-Western coast of India), were not in tune with
the western church to which the Portuguese belonged. ( See C.B. Firth, “An
Introduction to Indian church History” at 70-71) They wanted to westernise the
Syrian Christians and their attempt at the Synod of Diamper held in 1599A.D is
now part of history. By the decrees of the Synod, the marriage disciplineontained
in the Tametsi decree of the Council of Trent came to be imposed on the Syrian
Christians.

The Coonen Cross Revolt

The imposition of western norms in matters of religion among the Syrian
Christians was resented by a section of the Syrian Christian community and they
revolted against the Potuguese supremacy, which is usually referred to as the
Coonen Cross Revolt of 1653 A.D. Yet the decrees of the Synod of Diamper were
passed on to the posterity as the Canon Law of the Syrians of Malabar and were
recognised as such by the Propaganda under the Pope. ( See Cardinal Eugene
Tisserant,“Eastern Christianity in India” at 166. This state of affairs continued for
some time, exceptions notwithstanding. And as regards declaration of nullity of
marriage the Church could do the same as is evident from the book on the
“Anthropology of the Syrian Christians.”by Rao Bhadur L. K. Ananthakrishna
Ayyar.

Ne Temere Decree

While matters remained so, the Tametsi decree of the Council of Trent was promulgated all over the world by the Ne Temere decree of August 2, 1907. Thereafter, the Canon Law of the Western Church came to be codified in 1917, and the Code came into force on May 19, 1918. This Code was made applicable to the Roman Catholics of the Latin Rite in India as well. This position has been recognised by the Courts in India as it has been held that the personal law applicable to Roman Catholics in India is the Canon Law of the Church of Rome. (See Lakshmi Sanyal V. S.K. Dhar AIR 1972 SC2667= (1972) 2 SCC 647.Also see Lopez v. Lopez (1885) 12 Cal.706, F.B; Lucas v. Lucas(1904) 32 Cal.187; Saldanha v. Saldanha. ILR 54 Bom. 288 at p 292).

The Code of Canon Law, 1983

As far as the Latin Catholics in India are concerned, their personal law as codified in Codex Iuris Canonici in 1917 came to be revised in 1983 under the title, the Code of Canon Law. Therefore, there is no difficulty in tracing out the development of the personal law of Latin Catholics in the pre and post Constitution era. As regards the marriage discipline and the grounds for decree of nullity of marriages, there are no material differences between the canon law of the Syrian Catholics and that of the Latin Catholics.

Code of Canons of the Eastern Churches, 1990

As already mentioned, the marriage discipline contained in the decrees of the Council of Trent and modified by the Synod of Diamper applied to the Syrian Catholics. Codification of canon law applicable to Catholics of the oriental churches, including that of the Syrian Catholics of India, was attempted by Pope Pius XI in 1929 and the matrimonial law of the Oriental Churches was promulgated on 22 February, 1949 which took effect from 2 May, 1949. (See Victor J. Pospishill, “Code of Oriental Canon Law – the Law on Marriage”. (1962) Chicago, at 17). And it remained the personal law of the Syrian Catholics at the time of the commencement of the Constitution of India. (See Leelamma V. Dilip Kumar 1992 (1) KLT 651= AIR 1993 Ker. 57) It continued to be the personal law till the Code of Canons of the Eastern Churches was promulgated on 18 October, 1990 which became effective from 1 October, 1991.

Hudaya Canon (Nomocanon)

However, neither the Code of Canon Law nor the Code of Canons of the Eastern Churches, are applicable to the Jacobites, though they are also Syrian Christians. The personal law of Syrian Christians belonging to the Jacobite Church and the Malankara Orthodox Church is contained in the Hudaya Canon which is also known as Nomocanon. Both groups admit that the Canons are contained in a work by name Hudaya compiled in Syrian language by Bar-Hebreaus, in the 13th century. But they have produced two different versions of the work and the High Court of Kerala found that there was no independent evidence on the basis of which the rival claims on this point could be adjudicated. This decision of the High Court of Kerala was appealed against and even the decision of the Supreme Court has not finally settled the issue. ( See Most. Rev. P.M.A Metropolitan and ors. V. Moran Mar Marthoma and ors A.I.R 1995 S.C 2001. Para 46 to 52).

Thus, different Codes of Canon Law came to be applied to different denominations of Christians in India. And in the administration of justice they came to be applied by the Courts. At the same time Syrian Christians continued to follow their customs and traditions which were not in conflict with the laws of the church and the State did not intervene in these matters by way of legislation to regulate the same. However, in British India, the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872 were enacted.

Legal status of Canon Law

A careful analysis of the provisions of canon law would show that the above proposition is the accepted position in Canon Law itself (See Canon 1672 and 1152 of the Code of Canon Law and Canon 1358 and 863 of the Code of Canons for the Eastern Churches). By Canon 1108 of the Code of Canon Law, Catholics are bound to observe the form of marriage prescribed by the canon law. The form of the marriage is, therefore, essential to the validity of the marriage, and the canon law impliedly forbids any marriage which is not sacramental as well as a contractual one. Canon law provides that unless the parties marry in the form required by the Church, there is no marriage as required by the law. The form of marriage is part of the personal law of the parties and by reason of section 88 of the Indian Christian Marriage Act of 1872, the personal law applies in such matters (See Eappen Punnen V. Koruthu Maria. 10 T.L.R 95 (F.B). However, canon 1672 and 1152 concedes the right of the civil authority to make laws as to the civil effects of matrimony. Therefore, there is no scope for any conflict between the civil law and canon law.

A Special Bench of the High Court of Kerala has had occasion to dwell upon this aspect in George Sebastian Vs. Molly Joseph (1994 (2) K.L.T 387= AIR 1995 Ker. 16). There the High Court held that personal law, i.e. canon law 'stands clipped to the extent statutory law has stepped' in. The Court laid down: "when the ecclesiastical court grants annulment or divorce, the church authorities would still continue under a disability to perform or solemnise a second marriage for any of the parties until the marriage is dissolved or annulled in accordance with the statutory law in force in this regard." This decision of the High Court was challenged before the Hon’ble Supreme Court. However, the Supreme Court affirmed the decision of the Special Bench of the High Court ( See Molly Joseph Vs. George Sebastian . AIR 1997. SC. 109). This amply explains the position of canon law vis-à-vis civil law.

Conclusion

The legal status of canon law in the Indian legal system is no more than that of the rules and regulations of a body incorporate. For this basic reason, canon law cannot claim supremacy over the law of the land and it necessarily remains subservient to the civil law.