Fraud and nullity of marriage in canon law and Indian civil law: A comparative analysis
Creators: name: Kallikkattukudy, Joy Paul
Publisher: name: Université d'Ottawa / University of Ottawa
Year: 2004
Subjects: subject: Religion, Clergy.
subject: Law.

description: The mutual recognition and acceptance of canon law and civil law have generated interesting debates through the centuries. This is particularly true since the Second Vatican Council called for a new way of thinking on matters pertaining to our religious way of life and on our relationship with other peoples and nations. As a result many pastorally important issues have surfaced. One of these is the possibility for the Church of recognizing and accepting a legitimate decision of the nullity of a marriage by a civil court. India, a secular country by constitution, accommodates many religions. The State recognizes the laws of all religious groups and acknowledges them as Personal Civil Laws, such as Indian Christian Marriage Act of 1872 and the Indian Divorce Act of 1869, governing matters such as marriage, succession, and divorce. Therefore, when carrying out any action which has consequences in civil law, every person is expected to observe his/her applicable personal civil law. According to the Church's teaching, marriage is indissoluble. However, the Church provides for a declaration of invalidity under strict conditions. A close examination of the ecclesial and civil laws indicates that, in order to protect the sacredness of this institution and to prevent invalid marriages, both systems have established a number of impediments and defects of consent which invalidate marriage ab initio. While Indian civil courts do not recognize the declarations of nullity granted by an ecclesiastical court, the Church does not accept a civil decree of nullity or of divorce. This particular confrontation between the two systems of laws naturally results in undue pain, tension and financial burdens for the persons involved. Therefore, we ask the question: Is it possible for the Church formally to accept a legitimately issued civil decree of nullity and allow the parties to marry in accordance with the norms of canon law without submitting them to a fresh new canonical trial? This question defines the hypothesis of our dissertation. Our study has demonstrated that there is substantial agreement between canon law and Indian civil law on several substantive aspects of marriage. For example, both hold that the right to marriage is a natural right of every human being. Both have established impediments in order to protect the social institution of marriage from being contracted invalidly. Both systems also recognize the invalidating effect of deceit. Once it is proven with moral certainty, or beyond reasonable doubt, that one party was deceitful in obtaining the consent of the other, both systems of law consider the marriage null and void. Therefore, at least in the case scenario discussed in our study, the Church can formally recognize and accept a civil declaration of invalidity of a marriage and declare the parties involved free to enter upon a new canonical marriage according to the norms of canon law. We maintain that this conclusion, mutatis mutandis, can be applied also to other similar hypotheses.