Report No. 90
4.4. Anomaly likely to result by reason of two parallel authorities.-
The co-existence of two parallel adjudicating bodies on the same subject could thus create serious problems for all concerned. The view has been expressed in one article that the present position (non-recognition of a pronouncement of nullity made by a Church authority) causes hardship to the parties.1 But the suggested solution would hardly be an improvement. If anything, it would make matters worse.
1. Para. 4.6, infra.
4.5. Difference between recognition of marriage and recognition of nullity. The argument with which we are at the moment dealing seems to be based on section 5 of the Indian Christian Marriage Act, 1872.1 As already stated, that section recognises marriages solemnised according to certain Church rules and the argument seems to be that since a Church marriage is recognised by law, a church pronouncement of nullity should also be recognised by law. However, in this context, we would like to point that there is a difference between the civil court recognising a marriage performed according to religious rites and the civil court recognising a pronouncement of nullity made by a Church authority.
No doubt the relationship of marriage may originate in a particular religious ceremony; but if, during the subsistence (or alleged subsistence) of the relationship, a question arises whether such a status has been created, there will always be available, in conformity with the law of evidence, some other factual material in proof or disproof of the alleged marriage.2 The most important species of evidence would be the factum of cohabitation of the parties and the acceptance of their spousal status in society. The point to make is that the courts would not, in a factual investigation about the existence of marital status, be confined to evidence of the performance of religious ceremonies only.
This is the position regarding proof of marriage. The position would be different where the question relates to the existence or effect of a pronouncement of nullity granted by an authority outside the judicial hierarchy. If, in a court of law, the question arises whether such a pronouncement has, in fact, been made or (if made) has been validly made, it is only that pronouncement which would form the basis of inquiry before the court. For a court of law, it would not always be easy to determine these questions in a satisfactory manner. This is a difficulty which would be additional to the other anomalies that are likely to arise if two parallel authorities adjudicating upon the same dispute are to be recognised in law. These are anomalies to which we have already referred.3
This is our general approach on the point at issue and it follows that consistently with this approach, it would not be logical to accept the suggestion that pronouncements of nullity made by ecclesiastical authorities should be recognised by civil courts.
1. Para. 4.2, supra.
2. cf. section 50, Indian Evidence Act, 1872 and sections 6-9 and 11 of that Act in particular.
3. See para. 4.4, supra.
