In Fernandes v State of Goa & Ors  HCt of Bombay & Goa No.351 of 2017, the High Court has struck down as unconstitutional a provision of Portuguese law that restricted it from exercising the power of judicial review on orders passed by ecclesiastical courts annulling marriages between Roman Catholics in the former Portuguese colony.
According to Portuguese civil law, spouses who entered into a canonical marriage renounced the civil right of applying for a divorce. Decree No. 35461 of 1946 – the result of a Concordat in 1940 between Portugal and the Holy See – provided that canonical Christian marriages could be performed before Church authorities upon production of a no-objection certificate from the registration officer and Article 19 transposed into Goanese law the exclusive jurisdiction of marriage tribunals over matters of nullity. By virtue of the Goa, Daman and Diu (Administration) Act 1962, the colonial law remained in force after the territories became part of India.
The result has been that Decree No. 35461 of 1946 has continued to govern the formation and dissolution of Roman Catholic marriages in the former Portuguese colonies and the civil courts in Goa have not, therefore, been able to grant divorces in Roman Catholic marriages. Instead, Roman Catholics have had to seek an ecclesiastical annulment from the patriarchal tribunal in Goa, with a right of appeal to the metropolitan tribunal in Mumbai.
Ms Fernandes petitioned the High Court to set aside its previous order enforcing the order of an ecclesiastical tribunal by asking the civil registrar to cancel her marriage registration. It was argued on her behalf that Article 19 of Decree no. 35461 was unconstitutional because it foreclosed the High Court’s power of judicial review.
The Court observed that if the remedy of filing a writ petition under Articles 226 and 227 of the Constitution were taken away, orders passed by ecclesiastical tribunals would have serious civil results. It held that ousting the jurisdiction of the secular courts would result in the formation of a parallel authority, ostensibly outside their purview, and was unconstitutional. In short:
“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 simpliciter 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. The Canon Law is [an] integral part of law. It is not in dispute that High Court Rules framed till date do not provide the role of [the] High Court for transmitting the Decrees received from those two Tribunals to the Registrar of Marriage with or without review. In our view, the services of the High Courts cannot be used as [a] post office or for the purpose of transmitting these Decrees received from these two Tribunals to the Registrar of Marriages without any supervision or extraordinary jurisdiction of review under Articles 226 and 227 of the Constitution of India” [136: emphasis added].
The Court directed that the decisions of the patriarchal tribunal and the metropolitan tribunal annulling the marriage should be quashed and set aside.
[With thanks to Howard Friedman for the lead and Daniel Hill for supplying a copy of the judgment.]