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Divorce granted by Church Court will not be valid as it cannot override the Law: Supreme Court

The Supreme Court ruled out a plea to legalise Canon Law, which is the personal law for emancipation for the Catholics where church court allows separation

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A Church in India, Pixabay
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New Delhi, Jan 19, 2017: The Supreme Court ruled today,  Divorce which is granted by the ecclesiastical tribunal under Christian personal law will not be valid as it cannot override the law, rejecting a PIL that asked for according legal sanction to such annulments granted by the Church Court.

The plea lodged by Clarence Pais, a former president of a Karnataka Catholic association was dismissed by a bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud, saying this matter has been settled in its 1996 verdict delivered in the Molly Joseph versus George Sebastian case, mentioned PTI.

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“Canon Law (personal law of Christians) may have theological or ecclesiastical implications to the parties. But after the Divorce Act came into force, a dissolution or emancipation granted under such personal law cannot have any legal impact as statute has provided a different procedure and a different code for divorce or annulment,” the apex court had given out its verdict.

In his PIL filed in 2013, Pais had said the divorce allowed by a Church, set up under its personal law, should be considered valid under the Indian common law as was done in the case of Muslims when it comes to ‘triple talaq’.

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Former Attorney General Soli Sorabjee who appeared for Pais, had mentioned that when oral ‘triple talaq’ could get legal sanctity for granting divorce to Muslim couples, why could Canon law decrees not be made legal on courts of law.

According to his allegations, many Catholic Christians, who married after getting divorce from Christian courts were subject to criminal charges of bigamy as such separations are not recognised by the criminal and civil courts.

Pais, in his plea, had stated, “It is reasonable that when the courts in India recognises dissolution of marriage (by pronouncing the word talaq three times) under Mohammedan Law which is Personal law of the Muslims, the courts should also recognise for the purpose of dissolution of marriage Canon Law as the personal law of the Indian Catholics.”

The plea also pointed out that Canon Law is the personal law of Catholics and has the right to be applied and enforced by a criminal court while looking into a case under section 494 (bigamy) of IPC.

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“This is also applicable for sanction of prosecution considered for alleged bigamy of a Catholic spouse who has married after obtaining a decree for nullity of the first marriage from the Ecclesiastical Tribunal (Christian court),” the plea had stated.

The Centre, however, had protested the plea saying Canon law cannot be accepted to override Indian Christian Marriage Act, 1872 and Divorce Act, 1869.

– prepared by Durba Mandal of NewsGram. Twitter: @dubumerang

 

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CJI faces revolt from four senior most SC judges

The four judges -- Justices Ranjan Gogoi, Kurian Joseph and Madan B. Lokur besides Justice Chelameswar -- released a letter they wrote to Justice Misra a couple of months ago

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Supreme court went into a frenzy as four senior judges revolt against CJI. Wikimedia Common
Supreme court went into a frenzy as four senior judges revolt against CJI. Wikimedia Common
  • The sudden revolt against Chief Justice of India (CJI) by the four senior-most judges of Supreme Court has sent the whole judicial system into an uproar.
  • The four judges accused the CJI of corruption and breaches in a surprise Press Conference.
  • Judge Loya’s death’s controversy, supposedly, sparked this reaction out of the other judges.

Divisions in the Supreme Court burst out in the open on Friday when four senior-most judges took an unprecedented step of addressing the media to accuse Chief Justice Dipak Misra of breaching rules in assigning cases to appropriate benches, with one of them pointing to the plea regarding the mysterious death of Special CBI judge B. H. Loya.

The hurried press conference was called to reveal CJI's corruption. Pixabay
The hurried press conference was called to reveal CJI’s corruption. Pixabay

At a hurriedly called press conference at his residence, Justice J. Chelameswar and three other colleagues said the Supreme Court administration was “not in order” and their efforts to persuade Justice Misra even this morning “with a specific request” failed, forcing them to “communicate with the nation” directly.

The four judges — Justices Ranjan Gogoi, Kurian Joseph and Madan B. Lokur besides Justice Chelameswar — released a letter they wrote to Justice Misra a couple of months ago, conceding that he was the master of roster but that was “not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”.

Asked specifically if they were upset over reference of the matter seeking a probe into the suspicious death of Judge Loya, Justice Gogoi said: “Yes.”

Judge Loya's death is said to have happened due to a conspiracy. Pixabay
Judge Loya’s death is said to have happened due to a conspiracy. Pixabay

Judge Loya, who was hearing a case relating to the killing of gangster Sohrabuddin Sheikh in an alleged fake shootout in which BJP chief Amit Shah was named an accused (later discharged), died of cardiac arrest in 2014. His family has raised doubts over the circumstances in which Judge Loya died and have sought an independent probe into it.

Plea’s seeking probe came up for a hearing in the Supreme Court on Friday when the top court expressed concerns over it and said it was a “serious issue”. It asked the Maharashtra government to produce all the documents related to the case before January 15.

In a seven-page letter, the four judges said they were not mentioning details of the cases only to avoid embarrassing the institution because “such departures have already damaged the images of this institution to some extent”.

The clash among the judges in the highest court also comes in the wake of a controversial order in November in which Justice Misra declared that the Chief Justice “is the master of the roster” having exclusive power to decide which case will go to which judge.

The CJI called himself 'master of roster' further enraging other judges. Pixabay
The CJI called himself ‘master of the roster’ further enraging other judges. Pixabay

The CJI had given the order a day after a two-judge bench headed by Justice Chelameswar had passed an order that a five-judge bench of senior most judges in the apex court should be set up to consider an independent probe into a corruption case in which bribes were allegedly taken in the name of settling cases pending before Supreme Court judges.

Holding that the Chief Justice was only the first among equals, the four judges contended that there were well-settled and time-honoured conventions guiding the Chief Justice in dealing with the strength of the bench required or the composition thereof.

“A necessary corollary to the above-mentioned principle is the members of any multi-numbered judicial body, including this court, would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition-wise and strength-wise with due regard to the roster fixed,” they wrote in the letter.

They said any departure from the two rules would not only lead to “unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution” but would create “chaos”.

The four judges also touched upon another controversial issue, the Memorandum of Procedure (MoP) on the appointment of judges over which the Supreme Court had locked horns with the government.

The four judges also touched upon other problematic issues. deliason.files.wordpress.com
The four judges also touched upon other problematic issues. deliason.files.wordpress.com

The government, the letter said, had not responded to the communication and “in view of this silence it must be taken that the MoP has been accepted by the government on the basis of the order of this court”.

Justice Chelameswar told the media that they were “convinced that unless this institution is protected and maintains its requirements, democracy will not survive in the country or any country… The hallmark of a democracy is independent and impartial judges.

“Since all our efforts failed… Even this morning, on a particular issue, we went and met the Chief Justice with a specific request. Unfortunately, we could not convince him that we were right.”

Justice Gogoi said they were “discharging the debt to the nation that has got us here”.

The government appeared to distance itself from the controversy, saying the judges should sort the issue themselves.

Minister of State for Law P. Chaudhary said: “Our judiciary is one of the known, recognised judiciaries in the world. It is an independent judiciary. At this stage, I think no agency is required to intervene or interfere. The Chief Justice and other members should sit together and resolve. There is no question of panic.”

the matter should be resolved among the judges themselves, says P. Chaudhary.

The Supreme Court split had an immediate political fallout, with CPI leader D. Raja saying after meeting Justice Chelameswar that Parliament will have to devise methods to sort out problems like this in the top judiciary.

Two judges, Justice S. A. Bobde and Justice L. Nageshwar Rao, are understood to have called on Justice Chelameswar. IANS