Joao Azavedo Vicente Paulo Fernandes v. Clara Rodrigues
1995-01-16
E.S.DA SILVA, T.K.CHANDRASHEKHARA DAS
body1995
DigiLaw.ai
JUDGEMENT - Dr. E.S. DA SILVA, J. :---These three references which arise out of Decrees of Annulment sent by the Patriarchal Tribunal of Goa and Daman duly ratified by the Metropolitan Tribunal of the Archidocese of Bombay can be conveniently disposed of by common judgment since they raise the same questions of fact and law. 2. The references were made consequent upon the note dated 19th July, 1994, put up by the Special Officer in view of an earlier order passed by Kamat, J., on a similar note which is dated 26th April, 1994. By the aforesaid order, Kamat, J., directed that the subject-matter of the References required a fresh look and therefore whatever Decrees had come up to that time for execution should be forwarded to the office of the Registrar of Marriages as per the practice followed and no more until further orders. 3. The subject of the controversy is that under the prevailing law in this State, which is the successor of the former Union Territory of Goa, Daman and Diu, the Decrees of Annulment of the courts and Tribunals instituted under the Canon Law had to be sent to the Supreme Tribunal of the Apostolic Signature, Rome, for the purpose of its verification only and once the same were verified they were directly forwarded from Rome to the competent High Court for the purpose of its execution so as to get the annulment ordered by the Ecclesiastical Courts endorsed in the Civil Registration Office. This procedure was acknowledged as valid and very much in force by order dated 28th March, 1981, passed by the Acting Judicial Commissioner, according to which only decrees passed by the Ecclesiastical Courts in Goa and verified by the Supreme Tribunal of the Apostolic Signature, Rome, would be able to be executed through the High Court in terms of Article 19(1) of the Decree No. 35461 dated 22nd January, 1946. Subsequent to this order it appears that there was a change in the Canon Law as a result whereof Decrees of the Tribunals and Courts instituted in respect of annulment are to be verified not by the Tribunal at Rome but instead by the Metropolitan Tribunal of the Archdocese of Bombay.
Subsequent to this order it appears that there was a change in the Canon Law as a result whereof Decrees of the Tribunals and Courts instituted in respect of annulment are to be verified not by the Tribunal at Rome but instead by the Metropolitan Tribunal of the Archdocese of Bombay. It was on the strength of this change in the Canon Law that a Single Judge of this Court, in Civil Reference No. 1/B/82, by judgment dated 17th December, 1982, held that considering the change of law, which is to be reflected in Article 19 itself, the jurisdiction of the High Court is confined only to see whether or not the Decrees of the Ecclesiastical Courts lie in respect of a marriage celebrated within its territorial jurisdiction. Thus, bearing in mind that the High Court has no power to look into the merits of the Decree, such change has to be read in sub-section (1) of Article 19 which becomes thus inoperative inasmuch as it required the Supreme Tribunal of Rome to forward its decision to the High Court through the diplomatic channel. Accordingly, the learned Single Judge held that the provisions of Article 19(1) of the Decree 35461 had to be construed reading into it the changes of the Canon Law and hence once annulment of a Catholic marriage had been confirmed by the competent Ecclesiastical Tribunal it would be sufficient to forward such Decree to the High Court for the purpose of its execution without getting it verified by the Supreme Tribunal of Apostolic Signature at Rome and forwarded to the High Court through diplomatic channel. 4. In the aforesaid note of the Special Officer dated 3rd October, 1994 a brief reference was made to the historical and factual background of this issue inasmuch as it was mentioned that the law prevailing in this State at the time of its Liberation from the Portuguese rule and incorporated in the Decree No. 35461 was saved by the Goa, Daman and Diu (Administration) Act, 1962 which in its section 5 provides that all laws in force immediately before the "appointed day" (i.e. 20th December, 1961) in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by competent Legislature or other competent authority.
A mention was also made that since at the time of Liberation there was a 'Tribunal de Relecao' (High Court) at Panaji which was abolished by the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation 1963, its section 24 dealing with the rule of construction provided that references in any law in force in Goa, Daman and Diu to the Tribunal de Relacao or High Court functioning therein immediately before the commencement of this Regulation should be constructed as reference to the Court of Judicial Commissioner. Thereupon, after the extinction of the Judicial Commissioner's Court, with the enactment of the High Court of Bombay (Extension of Jurisdiction) to Goa, Daman and Diu Act, 1981 on 30th October, 1982, references in any law in force in the Union Territory of Goa, Daman and Diu to the Judicial Commissioner's Court were to be construed as references to the High Court at Bombay in terms of its section 11. Thus, in the context of this factual and legal position, it seems that the High Court had to continue to comply with the requirement of the provisions of Decree No. 35461 of 22nd January, 1946 and for that matter cause the transfer of the Decrees regarding Annulment of Marriages received from the Ecclesiastical Courts to the Civil Registration Office. 5. Mr. Bruto D'Costa, learned Counsel for the plaintiff in Civil References No. 2/94 and 4/94 has submitted that the practice followed by the then Judicial Commissioner's Court before the extension of the jurisdiction of the Bombay High Court to Panaji and creation of its Bench in October, 1982 was to place the decrees received directly from Rome through Diplomatic Channels before the Judicial Commissioner who was administratively dealing with the matter and passing specific orders for their transmission to the concerned authorities for execution. However, after the creation of the Panaji Bench of the Bombay High Court, this practice was discontinued and instead the decrees received from the Ecclesiastical Courts by the Registry were being forwarded by the Special Officer directly to the District Registrar without placing them before the Judges of the Bench for the purposes of issuing specific orders in this regard.
However, after the creation of the Panaji Bench of the Bombay High Court, this practice was discontinued and instead the decrees received from the Ecclesiastical Courts by the Registry were being forwarded by the Special Officer directly to the District Registrar without placing them before the Judges of the Bench for the purposes of issuing specific orders in this regard. The doubt which arose in the minds of the office of this Bench was that in view of the fact that the Appellate Side Rules made provisions for dealing with execution of orders passed in Civil Applications under Article 227 of the Constitution only the said Rules provide that the Registrar shall dispose of the application under section 82 of the Civil Procedure Code and further that any order or decree in a civil application under Article 227 of the Constitution passed on the Appellate Side and the non-satisfaction of which has been reported to the State Government may be transmitted to the Original Side of the Court for execution and if so transmitted, shall be executed in accordance with the procedure prescribed for execution of decrees and orders passed in exercise of the Ordinary Civil Jurisdiction of the Court. The machinery provided that the execution of the orders/decrees of the High Court is vested on the Original Side and Chapter XXII of the Original Side Rules deals with the exercise of decrees and orders and provides in its Rule 315 that all applications for execution of decrees or orders whether of the High Court or of any other Court (except as provided by these Rules) shall be made by advocates on record or by parties in person to the Prothonotary and Senior Master and the transmission of decrees and the issue of all the necessary warrants and notices and all amendments thereof shall be made by him or by any of his assistants. This shows that there is no specific machinery in the Appellate Side Rules of this High Court for execution of decrees by the Registrar and therefore the Special Officer of this Bench will not be able to cause the execution of any Decree received from the Ecclesiastical Courts for lack of jurisdiction.
This shows that there is no specific machinery in the Appellate Side Rules of this High Court for execution of decrees by the Registrar and therefore the Special Officer of this Bench will not be able to cause the execution of any Decree received from the Ecclesiastical Courts for lack of jurisdiction. Therefore, irrespective of the fact that a Decree of the Ecclesiastical Court in Goa is able to be executed without being referred to Rome, the difficulty arises so far the mode of its execution is concerned after it was forwarded or transmitted to the competent High Court. Mr. Bruto D'Costa has suggested that considering the procedure which started after the creation of this High Court Bench for want of clear authority on the part of the Special Officer who is functioning like a Registrar of the High Court in this Bench to execute any decree received from the Ecclesiastical Court. The Hon'ble Chief Justice should be requested to amend the competent rules so as to enable the Special Officer to cause the execution of such decrees while in the meantime pending the change in the rules the said decrees should continue to be executed as before. 6. We have given our considered thought on the matter and in our view the doubt raised in the note of the Special Officer appears to be justified. Admittedly, the prevailing Rules do not seem to convey any authority to the Special Officer, who in this Bench is stepping in the shoes of the Registrar of the High Court, to execute the type of decrees which are the subject-matter of these References. In the circumstances a change in the rules appears to be necessary. However, we think that in order to obviate any difficulty either with regard to the change of the rules or in order to work out a practical solution to the matter the earlier system which was prevailing during the time of the erstwhile Judicial Commissioner, whereby in every case the Decrees of Annulment were placed before the Judicial Commissioner so as to enable him to administratively deal with the matter, should be restored. 7.
7. We therefore hold that instead of contemplating any change in the Rules the Special Officer should place, in each and every case, the decrees which are forwarded by the Ecclesiastical Courts before the Senior most Judge of the Bench to enable him to act administratively on the matter and direct its execution by causing it to be forwarded to the Civil Registrar for necessary endorsement in the competent Books of Registration. All the references are hereby answered accordingly. There will be no order as to costs.