The Supreme Court’s dismissal of a frivolous writ petition filed by an octogenarian Roman Catholic citizen on January 19 has received undue publicity and conveys the impression that the apex court laid down a new legal precedent and clipped the wings of Roman Catholic church authorities to decide matrimonial matters concerning members of the community.
There is also an undertone in the media that this judgement has paved the way for the Supreme Court to deliver a similar ruling in the case pending before it of triple talaq (instantaneous divorce that can be pronounced only by Muslim men), and also clip the wings of the All India Muslim Personal Law Board by declaring that all Muslim divorces must also be litigated only in court.
The undue publicity regarding the dismissal of this baseless petition is an indication of the prevailing malady plaguing the media alongside its failure to grasp the complexities of the diverse personal laws that govern family matters in India. But this is in tune with the current trend of the media highlighting every passing comment by a judge, or even an interim order on personal laws of minorities, particularly the Muslim minority.
The publicity given to the dismissal of two different petitions by the Allahabad High Court in December, and to an interim order by the Madras High Court earlier this month on the authority of the chief qazi to issue divorce certificates, are examples of this overzealous media reporting.
The comments by the church hierarchy in Mumbai has helped to clarify the issue but it needs to be elaborated further.
In order to make sense of this ruling, we must delve into its historical context.
Divorce among Christians is governed by a statute enacted in 1869, the Indian Divorce Act, by our colonial rulers in order to bring the developments introduced in England through the Matrimonial Clauses Act of 1857. This Act rendered Christian marriages contractual – a clear shift from the earlier sacramental notion of marriage – and introduced divorce, which was a historic move. This statute was the mother of all matrimonial statutes in India, including the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, and was made applicable to all Christians, not just Roman Catholics. In fact the Roman Catholic church had nothing to do with the enactment of this statute. But the grounds for divorce under this law were stringent, for women, adultery coupled with desertion or cruelty.
After a sustained struggle by Christian women, in 2001 the Act was amended and adultery, desertion and cruelty were made independent grounds of divorce. The amendment also introduced the much needed provision of divorce by mutual consent, which is a civilised way of dissolving a marriage without acrimony and contestation.
However, while most other Christian denominations do not have any parallel procedures regarding the dissolution of a marriage, matters are complicated for Roman Catholics as they are governed by a parallel procedure of church annulment. However, the church dissolves only the sacramental aspect of a Catholic marriage, and not its civil consequences such as the entitlements of a wife to maintenance, child custody, right to matrimonial residence, and so on.
In 1996, through an authoritative ruling, Molly Joseph vs George Sebastian, the Supreme Court laid down that the decree of annulment issued by the church did not dissolve the marriage and both parties must obtain a civil divorce, which alone would entitle them to remarry.
The facts of this case are tragic indeed. The woman, Molly, after obtaining an annulment for her first marriage from the church, remarried in good faith. She had not been informed of the requirement of obtaining a civil divorce. When problems cropped up in this marriage, she approached the civil court for her rights. At this stage, an astute lawyer, representing her second husband, argued that since Molly had not obtained a civil divorce from her first marriage, her subsequent marriage was invalid and hence she could not claim any rights from his client. The Supreme Court upheld the husband’s plea and Molly lost her crucial rights.
Thereafter, some church authorities adopted the practice of issuing a warning on the annulment decree that both parties are required to obtain a civil divorce before they remarry.
Despite this, Clarence Pais, nearing the age of 90, approached the Supreme Court on the ground that when innocent men, blissfully unaware of the legal requirement of obtaining a civil divorce, remarry after annulment by the church, they become susceptible to charges of bigamy from their vindictive wives. The petitioner urged the court to recognise annulment pronounced by the Roman Catholic church as legally valid as is the case with divorce pronounced by the qazi (or the husband) under Muslim personal law.
Pais made the highest church authority, the Conference of Catholic Bishops in India, a party to the proceedings on the ground that the church authority had not heeded his request. The women’s desk of the body intervened and opposed the prayers of the petitioner on the ground that such a move would cause extreme hardship to gullible women who stood to lose their civil rights if the prayers of the petitioner were granted. The civil law concerning divorce permits the wife to claim various reliefs such as maintenance and child custody even at the interim stage, but if the marriage is dissolved by a priest who may not be aware of the wife’s entitlements, it will cause great harm to women and children.
Church authorities, as well as Christian women’s groups, have welcomed the Supreme Court ruling and are happy that the mischievous petition was dismissed. It ought to have been dismissed at the preliminary stage itself rather than keeping it pending for four years, wasting valuable court time.
Former Attorney General Soli Sorabjee represented the petitioner. It is distressing that a person possessing a wealth of legal knowledge such as Sorabjee argued that since Muslims have the right to pronounce talaq without having to approach a formal court, and since even divorces granted by caste pachayats are recognised under Hindu law, the same should be permitted for Christians. But this would amount to judicial law making, which would amount to overstepping judicial powers, a concept with which Sorabjee would be familiar. If there is no such provision in the statute, which has been in existence for the last 150 years, how can the courts introduce it?
The question lurking in everyone’s mind is: will this case be a forerunner to the petition filed by Shayara Bano to declare that all Muslim divorces shall be only through the judicial process? With my limited knowledge of law, I would think not. In the present case, the court was examining the provisions of a statute and settled law. In the petition filed by Shayara Bano, the prayer is to declare arbitrary triple talaq invalid and for a declaration to lay down the correct procedure for pronouncing talaq as per the principles of Quranic law.
Clarity is essential
An interim order of the Madras High Court passed a few days ago also warrants a comment. The petitioner, Bader Sayeed, a practising lawyer and a former MLA, approached the Madras High Court in 2013, praying that the right to issue certificates of divorce (or fatwas) should be taken away from the chief qazi, and rest with the courts instead.
However, through a ruling pronounced in July 2014 (Vishwa Lochan Madan vs Union of India), the Supreme Court ruled that darul qazas (Islamic courts) or their practice of issuing fatwas were not “themselves illegal”, and added that the fatwas are not judicial verdicts but merely opinions of experts and hence are not binding.
The same principle would also apply in the case before the Madras High Court. However, the All India Muslim Personal Law Board has requested the court for time to submit a draft of a certificate that will clearly express that a fatwa is mere opinion and not a judicial verdict.
In a similar manner, all church authorities also need to issue a clear statement on every decree of annulment that the parties must obtain a divorce in a civil court before they can remarry. The issuance of such messages on the decrees or fatwas will go a long way in alerting members of each community of the correct legal position as per their own personal laws.