Goa: Article 19 of Portuguese law on marriage, divorce struck down by HC

The Goa bench of the Bombay High Court has struck down as unconstitutional Article 19 of the Portuguese law that gave legal sanctity to church tribunals in dealing with marriages and divorces of Catholics. The division bench of Justices R D Dhanuka and Prithviraj Chavan, in their 95-page order this week, struck down Article 19 of Decree Number 35461 canceling the marriages as unconstitutional and illegal.

Article 19 of Decree Number 35461, passed in 1946 during Portuguese rule, allowed a decision of annulment of marriage taken by the Church Patriarchal Tribunal to be sent to court, which would then direct the civil registration office to cancel the marriage registration. Portuguese civil law states that spouses who enter into a canonical (according to canon law) marriage renounce the civil right of applying for the divorce.

Thus, civil courts in Goa could not grant a divorce in case of a Catholic marriage. The HC order was passed while hearing two separate petitions that challenged the order of ecclesiastical tribunals (those having jurisdiction in spiritual and religious matters).

"Article 19 of Decree Number 35461 is declared as unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India and is struck down," the order stated. The bench said the services of the high court cannot be used as a post office for the purpose of transmitting decrees received from these two tribunals, namely Patriarchal Tribunal of the Archdiocese of Goa and Daman, and the Metropolitan Tribunal of Archdiocese of Mumbai, to the Registrar of Marriages without supervision or extraordinary jurisdiction of review under Articles 226 and 227 of the Constitution of India.

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