The Bombay High Court at Goa struck down as unconstitutional a provision of Portuguese law that restricted the High Court from exercising the power of Judicial review on orders passed by ecclesiastical (Church) courts annulling marriages between 2 Catholics.

Justice R D Dhanuka & Justice Prithviraj K Chavan, in a Judgment, held that Article 19 of decree no. 35461 (a provision of Portuguese law in force in Goa), violates Articles 14 & 21 of the Constitution, which guarantees the right to equality & right to life & liberty, respectively.

The Bench held that this exclusion of jurisdiction would form a parallel authority, ostensibly outside the purview of the HCs or the Apex Court.

The decree has its roots in 1940 when a Concordat (treaty) was entered into by the Portuguese Govt. & the Holy See, introducing changes in relation to Catholics in Portugal & its territories.
In pursuance of this, decree No. 35461 was passed on Jan 22, 1946, which provided that Christian marriages could be performed before Church authorities upon production of a no-objection certificate from the registration officer (called canonical marriage).

According to Portuguese civil law, spouses who enter into a canonical marriage renounce the civil right of applying for divorce. Thus, Civil Courts in Goa couldn't grant divorce in Catholic marriages.
Such powers only vest in ecclesiastical tribunals, the patriarchal tribunal in Goa & the metropolitan tribunal in Mumbai, which hears appeals over patriarchal tribunal orders.

An order for divorce by an ecclesiastical tribunal is then sent to the HC, which orders its enforcement. By virtue of the Goa, Daman & Diu (Administration) Act, 1962, this law remains in force even after Liberation.

However, the HC held that its services can't be used as a post office for the purpose of transmitting decrees received from these 2 tribunals to the registrar of marriages without exercising supervisory or extraordinary jurisdiction of review.

In a case before the HC, a woman had sought setting aside of a previous order by the HC, which had enforced the order of an ecclesiastical tribunal by asking the civil registrar to cancel her marriage registration.

According to the woman Article 19 of decree no. 35461 was unconstitutional, as it foreclosed the HC’s power of Judicial review.

The HC observed that if this remedy (of filing a writ petition under Articles 226 & 227 of the Constitution) is taken away, orders passed by ecclesiastical tribunals would've serious civil results.

The High Court said, “the ground on which the marriage is annulled by the two tribunals (patriarchal & metropolitan) cast a stigma on the petitioner".

“In our view, right to life under Article 21 of the Constitution of India includes the right to live a decent life. The petitioner may be also deprived of her right in the property of the respondent in view of such orders.”

Thus, the HC directed that the decisions of the patriarchal tribunal & metropolitan tribunal regarding annulment of marriage be quashed & set aside.

The application for annulment filed by the husband will now come up again before the patriarchal tribunal, which will decide the application afresh in accordance with the law & principles of natural justice.

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