Case Note & Summary
Two writ petitions were heard together. In Writ Petition No.351 of 2017, the petitioner wife married the fourth respondent on 26 September 2009 under canonical rites, which was registered civilly. Marital differences arose, and the husband filed for annulment before the Patriarchal Tribunal of the Archdiocese of Goa and Daman. On 4 March 2016, the Tribunal declared the marriage null and void on grounds of partial simulation (contra bonum fidei) under canon 1101 and lack of due discretion of judgment under canon 1095, 2º of the 1983 Code of Canon Law. The wife appealed to the Metropolitan Tribunal of the Archdiocese of Mumbai, which on 14 October 2016 confirmed nullity solely on the ground of lack of due discretion on the wife’s part. The decrees were forwarded to the High Court of Bombay at Goa for enforcement under Article 19 of Decree No.35461. A Senior Judge of the High Court endorsed the decrees and directed the Civil Registrar to make an endorsement of nullity in the marriage register. The petitioner filed a caveat under Section 148-A of the Code of Civil Procedure, 1908 on 24 November 2016 and later filed the present writ petition on 9 March 2017, seeking to strike down Article 19 as unconstitutional, quash the tribunal orders, and cancel the endorsement. In Writ Petition No.691 of 2013, the petitioner wife married the first respondent on 2 January 2007. A child was born. Differences arose, and the husband filed for nullity before the Patriarchal Tribunal. On 22 March 2012, the Tribunal declared the marriage null under Article 19 of Decree No.35461 on the ground of the husband’s inability to assume and fulfill matrimonial obligations. The Metropolitan Tribunal affirmed this decree on 21 July 2012. The petitioner was informed on 1 August 2012. The writ petition, filed in 2013, challenged the constitutionality of Article 19 and sought cancellation of the nullity endorsement. Both petitions were heard together by the Division Bench. The judgment text provided does not contain the court’s analysis or final decision; the outcome remains not mentioned.
Issue of Consideration
Whether Article 19 of Decree No.35461 is unconstitutional and void; Whether the orders of the Patriarchal and Metropolitan Tribunals declaring the marriages null and void can be enforced by the High Court; Whether the petitioners are entitled to relief regarding the endorsement of nullity in civil marriage registers
Law Points
- constitutionality of Article 19 of Decree No.35461
- enforcement of ecclesiastical tribunal decrees
- grounds for annulment under Canon Law (canons 1095
- 1101)
- judicial review of ecclesiastical decisions
- role of High Court in enforcement under Portuguese colonial law
Case Details
2019 LawText (BOM) (10) 125
Writ Petition No.351 of 2017 and Writ Petition No.691 of 2013
R.D. Dhanuka, Prithviraj K. Chavan
M.B. D'Costa, Karishma Betquecar, D. Lawande, A. Jamadar, Coelho Pereira, V. Braganza, B. Fernandes, Sudesh Usgaonkar, Rosette Pereira, Bhargav Khandeparkar, Amira Razaq
Mrs. Elmas Fernandes, Isabela Menino Godad
State of Goa, Patriarchal Tribunal of the Archdiocese of Goa and Daman, Metropolitan Tribunal of the Archdiocese of Mumbai, Mr. Elvis Alban Afonso, Civil Registracum Sub-Registrar of Bardez, Alfredo Pedro de Almeida
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Two writ petitions challenging the constitutional validity of Article 19 of Decree No.35461, a Portuguese colonial law providing for enforcement of ecclesiastical tribunal annulment decrees by the High Court and endorsement in civil marriage registers.
Remedy Sought
Petitioners seek striking down of Article 19 as unconstitutional, quashing of ecclesiastical tribunal orders declaring marriages null and void, and cancellation of nullity endorsements in civil marriage registers.
Filing Reason
Petitioners' canonical marriages were declared null and void by ecclesiastical tribunals under Canon Law; the decrees were forwarded to the High Court for enforcement under Article 19, which the petitioners assert is unconstitutional and caused prejudice.
Previous Decisions
Patriarchal and Metropolitan Tribunals declared marriages null and void on grounds of partial simulation, lack of due discretion, or inability to assume obligations. The High Court's Senior Judge endorsed the decrees for enforcement and transmission to the Civil Registrar.
Issues
Whether Article 19 of Decree No.35461 is unconstitutional and void
Whether the ecclesiastical tribunals' annulment decrees can be challenged in writ jurisdiction
Whether the High Court's enforcement endorsement is valid
Whether the petitioners are entitled to relief
Judgment Excerpts
The Appellate Tribunal accordingly by the said decree dated 14 th October, 2016, declared the marriage of the petitioner and the respondent no.4 null and void only on the ground of “Lack of Discretion of Judgment on the part of the Petitioner” (canon 1095, 2 º).
The petitioner has prayed for a writ of mandamus commanding the respondents to forbear from acting in pursuance of such order made by this Court or in pursuance to the endorsement made in the Marriage Register.
On 4 th March, 2016, the sole Judge of the Patriarchal Tribunal passed an order holding that the marriage between the petitioner and the respondent no.4 was nullity on the ground of (i) partial simulation, contra bonum fidei, on the part of the respondent no.4 herein in accordance with canon 1101, CIC 1983 and; (ii) lack of due discretion of judgment concerning the essential matrimonial rights and duties on the part of the petitioner herein, in accordance with canon 1095, 2 º CIC 1983, having been proved.
Procedural History
In WP 351/2017: On 26 September 2009, the petitioner and fourth respondent married canonically; marriage registered. Differences arose; husband filed for annulment before Patriarchal Tribunal. On 4 March 2016, Patriarchal Tribunal declared marriage null and void on two grounds. Petitioner appealed to Metropolitan Tribunal, which on 14 October 2016 varied grounds and confirmed nullity solely for lack of due discretion. Decrees sent to High Court; Senior Judge endorsed enforcement and directed Civil Registrar to make nullity endorsement. Petitioner filed caveat on 24 November 2016 under Section 148-A CPC and filed WP 351/2017 on 9 March 2017. In WP 691/2013: Petitioner married first respondent on 2 January 2007; marriage registered. Differences arose; husband filed for nullity before Patriarchal Tribunal. On 22 March 2012, Tribunal declared marriage null on ground of husband's inability. On 21 July 2012, Metropolitan Tribunal affirmed. Petitioner informed on 1 August 2012. Writ petition filed in 2013 challenging constitutionality of Article 19 and seeking cancellation of endorsement.
Acts & Sections
- Portuguese Decree No.35461 of 1946: Article 19, Article 91
- Constitution of India: Article 13, Article 226, Article 227
- Code of Civil Procedure, 1908: Section 148-A
- Canon Law (Code of Canon Law, 1983): Canon 1095, 2º; Canon 1101
