The fresh representation by Indian Christians governed by Canon Law for relief by amendment of the Indian Penal Code (IPC) and the Indian Succession Act was forwarded to Salman Khurshid, union minister of law and parliamentary affairs, recently, in order to amend Sec 494 IPC which makes bigamy an offence.
Under Sec 494 of the IPC, marrying again during the lifetime of spouse–having a husband or wife living—in which such marriage is void by reason of its taking place during the life of such husband or wife. This shall be punished with imprisonment of earlier description for a term which may extend to seven years, and shall also be liable to time.
The exception, being this section, does not extend to any person whose marriage with such husband or wife has been declared void by court of competent jurisdiction.
Canon Law is the person law of the Christians and is applicable to about a billion Christians around the world including India. However in India, Canon Law is not recognized especially with regard to a decree of the Canon Law court declaring a marriage a nullity. The Indian Christian Marriage Act recognizes Canon Law to the extent of solemnization of marriages in the church. However, it does not recognize dissolution of marriage which is also part of Canon Law. Muslims also have their personal law. Under the Mohammedan Law there is provision for nullity of marriage and this is recognized under Indian Law.
The Mohammedan Law is recognized in India especially with regard to nullity of marriage. Expressing the word ‘Talaq’ three times renders a marriage null and this nullity entitles the spouse to remarry and such remarriage does not amount to bigamy. It’s a clear case of discrimination between Muslims and Christians on the subject of remarriage after the previous marriage is made a nullity under the personal law applicable to Muslims only.
Under this representation, the Indian Christians seek an amendment with exception to Sec 494 of the IPC as: this Section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, which will include the Ecclesiastical Court constituted under the Code of Canon Law applicable to Indian Christians.
A case for amendment to be made to Sec 496 as IPC for the purpose of adding an exception to bigamy is necessary. Canon Law is the personal law of Indian Christians in the same way as Mohammedan Law is the personal law of the Muslims. In fact Canon Law governs over one billion Indian Christians in the world. This is a case where the Canon Law is in conflict with the Civil Law. The Christian Marriage Act empowers a Church Minister to marry Christians in the church. This marriage is primarily under Canon Law, but is legitimized by the Civil Law.
The Canon Law is recognized under Indian Christian Marriage Act. However, the very name Canon Law provides for dissolution of marriage by the Ecclesiastical Court. Meanwhile, in contrast Canon Law which is the personal law applicable to Catholics is not recognized under Sec 494 of IPC, which deals with bigamy in so far as dissolution of the marriages under Canon Law is concerned. After the dissolution of marriage by the Ecclesiastical Court, marriages take place in the Church on the assumption that the marriage is dissolved. The result is that the second marriage permitted by Canon Law becomes a crime under Sec 494 of IPC. It is possible that under the Law relating to abetment, the priest who blesses the nuptials of the husband or wife who has married again in the Catholic Church can also be prosecuted along with the main accused – the spouse that has remarried. It’s not a hypothetical case, but is a present reality.
Need for amendment of Sec 42 of Indian Succession Act:
The discrimination arises in Sec 41 and 42 of Indian Succession Act. Section 41 states rules of distribution where intestate has left no lineal descendants, where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow’s share, if he has left a widow) shall be those contained in section 42 to 48. Section 42 states that where intestate’s father is living, he shall succeed to the property.