the goan I network
PANAJI
The Bombay High Court at Goa has struck down article 19 of of the Decree No. 35461 (of the Portuguese Civil), which was enacted to give recognition to judgments and annulments of marriage with respect to Catholics by the Patriarchal Tribunal and Metropolitan Tribunal ruling it to be unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India and struck them down.
Hearing two separate challenges to orders passed by the Ecclestical Tribunals or ‘Church Courts’ which had granted an annulment of marriage in two separate cases, the High Court held that it indeed has the powers to review such decisions passed by the Ecclestical Tribunals and such judgements by Ecclestical Tribunals need not be automatically enforced by civil authorities.
“Though, Article 19 of the Decree No. 35461 was enacted to give recognition of judgments and annulments of marriage with respect to Catholics by Patriarchal Tribunal and Metropolitan Tribunal and to give civil effect to have such decision being transmitted by the High Court
to the concerned Registrar of Marriages for cancellation, the said power restricting the power of review by the High Court under Articles 226 and 227 of the Constitution of India is ex-facie unconstitutional and ultra-vires provisions of Articles 14 and 21 of the Constitution of India,” the Bombay High Court of Justices RD Dhanuka and Prithviraj Chavan ruled.
The Archdiocese of Goa and Daman argued that by virtue of Article 19, the exclusive jurisdiction, the authority or power of Ecclesiastic court, neither the District Court nor the High Court has the power to declare a marriage performed under the provisions of the said Decree No. 35461 as nullity. They also argued that various articles in the said decree had statutory force of law and the decree passed by the Ecclesiastic Tribunal as well as the Metropolitan Tribunal had statutory force of law.
“In our view, since the Patriarchal Tribunal and Metropolitan Tribunal are created under law and have the power to determine conclusively the rights of two or more contending parties and more particularly regarding annulment of the marriage, the said two Tribunals have to satisfy the test of an authority vested with judicial powers of the state and thus fall within the terms “authority” within the meaning of Articles 226 and/or “court or tribunal” within the meaning of Article 227. It is not the case of any of the respondents that the said two Tribunals do not play the role of Court’s or their decisions or judgments are not enforceable in law,” the HC ruled.
“In our view, Article 19 of Decree No. 35461 thus could not impose a bar against the High Court from exercising a power of review. Such powers enshrined under Articles 226 and 227 of the Constitution of India in the High Court can be whittled down only by a provision in the Constitution of India and not in such Article 19 of the Decree No. 35461. The said Article 19 of the Decree No. 35461, thus deserves to be declared as unconstitutional and ultra-vires Article 14 and 21 of the Constitution of India,” the HC ruled.
Article 19 of Decree No.35461 excludes the jurisdiction of the High Court from reviewing or considering the judgments passed by Patriarchal Tribunal and the Metropolitan Tribunal. The effect of such orders passed by those two Tribunals leads to civil consequences. The Decree of annulment of marriage by these Tribunals are transmitted through the High Court
without power of review to the Registrar of Marriage for necessary rectification of the entry made in the record.
In our view, the
Constitution of India guarantees the fundamental right to constitutional remedies. The said Articles which forecloses the power of the High Court under Articles 226 and 227 of the Constitution of India and restricted the role of the High Court to simplicetor transmit the Decrees received from these two Tribunals to the Registrar of Marriages without power of review is pro tanto unconstitutional. There cannot be any exemption under Article 19 of the Decree from exercising the constitutional remedies available under Articles 226 and 227 of the Constitution of India.
In our view, Article 19 which takes away the power of judicial review of the High Court under Articles 226 and 227 of the Constitution of India and make an order passed by such Tribunals final and restricting the powers of the High Court to simplicetor transmit the Decrees to the Registrar of Marriages without review and confirmation amounts to taking away the power of judicial review of the constituted Courts thus deserves to be declared as void and ultra-vires under Article 14 of the Constitution of India. The rights of the judicial review prescribed under the Constitution of India cannot be taken away under such Article 19 and thus such Article deserves to be declared as pro tanto unconstitutional.
The High Court also ruled that in the case of the two marriages in question the patriarchal tribunal will have to hear the petitions afresh “in accordance with the law after compliance with the principles of natural justice including opportunity to engage an advocate, right to remain present at the time of recording statement /evidence of the other party and right of cross-examination. The Tribunal shall not be influenced by the observation made and the conclusion drawn in the impugned orders. The Tribunal shall make an endeavour to dispose off the application within six months from the date of communication of this judgment.”
