VAIHARAI. Canonical Approach to Civil, Administrative and Matrimonial Concerns

VAIHARAI Canonical Approach to Civil, Administrative and Matrimonial Concerns Vol. 18, No.1&2 Jan.-

VAIHARAI (The Dawn) A Theological Half-Yearly Vol. 18, No.1&2 Jan.-Dec. 2013 Contents Editorial 03 1. 1983 Code in the Life of the Church with Special Reference to the Indian Church, 09 Dr A. Alagu Selvan. 2. Catholic Church Disputes in the Civil Courts of India, 25 Dr L. Sahayaraj. 3. Right to Religious Freedom in the Church and in India: Content and Complexity, 50 Dr M. R. Jesu. 4. Relation between the Bishop and Religious in the Particular Church, 68 Dr M. Philomimdass. 5. Confused Relationship between the Diocesans and the Religious caused by the administration of Temporal Goods 93 Dr M. John Diraviam. 6. The Role of Consultation in the Governance of the Particular Church, 107 Fr Antony Jesuraj. 7. Participatory Structures in the Church: Are they functioning? 141 Dr Y. Irudayaraj. 8. Sociological Challenges of Marriage and Family in India, 150 Dr Norbert Thomas 9. Necessity of Expert s Opinion in Psychic Incapacity 173 Dr R. Amalraj. 10. Arbitration and Reconciliation in the Context of Pastoral and Marriage Dispute or Conflict 190 Dr G. Felix. VAIHARAI (The Dawn) A Theological Half-Yearly Vol. 18, No.1&2 Jan.-Dec. 2013 From Editor s Desk The purpose of Incarnation was revealed to Joseph the husband of Mary, the mother of Jesus Christ: for he will save his people from their sins (Mt 1:21). The law of the Church serves the same purpose salus amimarum suprema lex (CIC, C. 1752). We the People of God during our earthly pilgrimage are confronted with many aggressive attacks of the Evil One. To resist them we need constant assistance from above (Cf. Lk 22:31-32). God desires that we His children may be led by the Spirit (Rom 8:14) and may walk at liberty guided by His precepts (Cf. Ps 119:45). Incarnation is God assuming human condition submitted to the law in order to redeem those who were under the law. This enabled the believers to love God and to love one s neighbour in order to make humankind one family, recognising God as Abba (Gal 4:4-7). This love of God and of neighbour is the foundation of all law (Mt 22:36-40). In order to guide the sons and daughters of God towards this perfection, the Church through her pastors regulates the conduct of the believers. With the mandate of pasturing the sheep (Cf. Jn 21:15-17), the Supreme Pastor of the Universal Church promulgates and implements law in the Church. The law of the Church helps us to understand the reality and be away from falsity

2 Vaiharai-2013 (Cf. Ps 119:104). It aims at avoiding murmur against one another in the daily chores (Cf. Acts 6:1). It safeguards against false teaching in order to help us to walk in the right way towards perfection (Cf. Didache 6:1-2). It nurtures in us good conscience in order not to overstep one s role in the Church (Cf. 1 Clem 41:1). Emperor Justinian I explains the purpose of law as follows: Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum uique tribuere ( The precepts of the law are these: to live honestly, to injure no one, and to give everyone his due, Justinian Code, 1:3). When one understands these theological and practical implications of law in the Church, the daily living of Christians will become more witnessing. At the same time when one ignores these implications and tries to twist the interpretation of the law, he/she becomes counter witness to the Incarnation and creates confusion and trouble in the family of God. The contributors of this issue have taken pain to clarify some of the relevant issues of our time. We appreciate them and thank the Guest-Editor Rev. Dr Norbert Thomas who was instrumental in bringing out this issue. Let the Silver Jubilee celebration of the Tamil Nadu Canonists Association equip the members with new vigour in their ministry as the facilitators in the salvific mission of Jesus Christ. We take this opportunity to remember with gratitude and appreciate the contribution of the former editor of Vaiharai Rev. Dr. V. Raphael. A new commandment I give to you, that you love one another (Jn 13:34). Dr T. Xavier Terrence Editor Editorial It is indeed a dual blessing for me to bring out this issue in honour of the Silver Jubilee celebrations of Tamil Nadu Canonists Association to be held on 7 & 8 January 2015. In order to understand the concept of dual blessing, it is to be analysed in two angles. Firstly, as a guest-editor of Vaiharai which is a bi-annual publication of St Paul s Seminary, Trichy, it is a fitting accolade to the canonists who have been serving the various dioceses and religious congregations of Tamil Nadu in various capacities as Judicial Vicars, Judges and Notaries in ecclesiastical tribunals. Secondly, as the Secretary of Tamil Nadu Canonists Association, it is my pleasant duty to thank the administration of St Paul s Seminary, particularly, the publication Committee and the new Editor of Vaiharai Rev. Dr T. Xavier Terrence, Professor of Patrology and Sacred Scripture, for having accepted the articles of my brothercanonists to bring out a special issue in honour of the Silver Jubilee. Canon Law plays a vital role in the administrations of the Catholic Church. It gives rights and obligations to every baptised person starting from the Pope to the one baptised today. We should not misunderstand while we speak of rights and obligations of each baptised individual. Very often, it is presumed that the concept obligations is portrayed as a burden unleashed on certain section of the society. We need to understand this terminology in correct perspective as directives of guidance for the smooth running of Catholic life. That is the reason, the last canon of the Code (C. 1752) states, Salus Animarum Suprema Lex, that is, the Salvation of Souls is the Supreme Law. Hence, any law which remains a

4 Vaiharai-2013 Editorial 5 burden to practise one s faith in Jesus, is to be abrogated. Jesus tells us clearly that Sabbath is for man and man is not for Sabbath. In other words, the regulations of the observance of Sabbath should in no way debase the human dignity of the individual. Hence, the obligations mentioned in the Code are to be taken in a positive sense upholding basic values of human persons. However, there is a danger while we speak of rights of every baptised without reference to obligations. The reason is that many demand their rights as provisions given exclusively by virtue of Canon Law. Certain people who demand their rights fail to take into consideration their obligations as well. From practical point of view, some clerics and lay people misuse the terms rights and obligations to suit their own ambitions and advantages. The people, who voice their concern for rights, fail to uphold the principles of justice while implementing their obligations. Hence, the rights and obligations should go together to enjoy the privileges as envisaged in the Code but also to think of our various responsibilities. In this way this special issue includes various articles dealing with legislative, judicial and executive responsibilities of the Church. We have classified the articles in such a way to suit into three groupings. The first three articles deal with matters related to the canonisation of civil law. That is, the effectiveness of canonical principles in dealing with matters connected in Indian Civil Code. In this regard, Rev. Dr Antony Alagu Selvan, D. C. L, M. Phil (CS) M. A., has brought out his article on the title 1983 Code in the Life of the Church with Special Reference to the Indian Church. Rev. Dr Antony Alagu Selvan is a priest of the Diocese of Salem, obtained doctorate in Canon Law in Urban University, Rome in 1996 and taught Canon Law from 1998-2013 at Good Shepherd Seminary, Coimbatore. Now he serves as the Judicial Vicar of the Diocese of Salem in addition to other portfolio of being the parish priest and Vicar forane of Mettur. The second article deals with Catholic Church Disputes in the Civil Courts of India. In this regard, the author Rev. Dr Sahayaraj Lourdusamy, stresses the need to have a system to arbitrate the disputes without going to the civil courts which are very complicated in nature. Rev. Dr Sahayaraj Lourdusamy, a priest of the Diocese of Thanjavur holds a doctorate in Canon Law from the Catholic Institute of Paris and also a doctorate in Civil Law from the University of Paris XI, France. Besides he holds Master s degree in Sociology, Computer Science and Journalism and Bachelor s Degree in Mathematics, Education and Indian Civil Law. At present he is the Chancellor of the Diocese of Thanjavur and one of the Judges in the Diocesan Tribunal. The third article deals with, Rights to Religious Freedom in the Church and in India: Content and Complexity in which the author Rev. Dr M. R. Jesu states that the right to religious freedom needs more advancement in the present legal and constitutional frame works in order to overcome the conflicts and constraints. Rev. Dr M. R. Jesu, a priest of the Diocese of Sivagangai, holds a Bachelor s degree in Civil Law, a Master s degree in Human Rights, and a Doctorate in Canon Law from Catholic Institute of Toulouse, France in 2010. At present he is the Chancellor and the Judicial Vicar of the Diocese of Sivagangai. The second group comprising articles 4, 5, 6 & 7 deals with the governance of the local Church and the Diocesan

6 Vaiharai-2013 Editorial 7 Bishop s relationship with Religious working in his diocese. The fourth article is on Relation between the Bishop and Religious in the Particular church. The author Rev. Dr M. Philomindas, a priest of the Diocese of Kumbakonam, urges that both the Bishop and the Superior General of the Religious congregations should cooperate with each other to solve the vexed problems in the administration for the good of the church. Rev. Dr M. Philomindas has obtained Doctorate in Canon Law in 1997 from the Urban University, Rome and studied Jurisprudence from the Gregorian University Rome in 1998. He has been the Judicial Vicar of the Diocese of Kumbakonam since 1998. The fifth article is on Confused Relationship between the Diocesans and the Religious caused by the Administration of Temporal Goods. The author Rev. Dr M. John Diraviam, a priest of the Archdiocese of Madurai, pinpoints the pastoral collaboration between the diocese and religious congregations in their apostolate towards the poor. Rev. Dr M. John Diraviam, completed his Licentiate in 2000 at St Peter s Bangalore and doctorate in Canon Law in St Paul University, Ottawa, in 2007. At presents he serves as the Chancellor and Judicial Vicar of the Archdiocese of Madurai. The sixth article is on The Role of Consultation in the Governance of the Particular Church. The author Rev. Fr D. Antony Jesuraj of the Diocese of Coimbatore enumerates the role of the bishops to consult the pastors and lay people in the particular church and also of the duty of pastors consulting the lay people of their respective parishes. Rev. Fr D. Antony Jesuraj completed licentiate in Canon Law in the year 2012 at St Peter s Pontifical Institute, Bangalore. At present, he is serving as Judicial Vicar in the Diocese of Coimbatore. The seventh article is on Participatory Structures in the Church: Are they functioning? The author Rev. Dr Y. Irudayaraj, a priest of the Diocese of Trichy, writes on the role and cooperation among the hierarchy and laity in the administration of the church on the spirit of Vatican II. Rev. Dr Y. Irudayaraj completed his doctorate in Canon Law in Urban University, Rome and is professor emeritus of St Paul s Seminary, Trichy. At present he serves as the Judicial Vicar of the Diocese of Trichy. The third group comprising articles 8, 9, 10 speaks chiefly on marriage problems and various challenges such as psychic incapacities, pastoral disputes and conflicts connected with married life. The eight article is on Sociological Challenges of Marriage in India. The author Rev. Dr Norbert Thomas, a priest of the Diocese of Tuticorin had his doctorate and post doctorate in Canon Law at the Catholic University of Leuven, Belgium in 2001 and 2009 respectively. After serving his diocese as Judicial Vicar for seven years, he is currently teaching Canon Law in St Paul s Seminary, Trichy. The ninth article is on Necessity of Expert s Opinion in Psychic Incapacity. The author Rev. Dr Amalraj Royappan, a priest of the Diocese of Tuticorin enumerates the necessity of seeking expert s opinion in dealing with cases of psychic nature to arrive at a moral certitude. Rev. Dr Amalraj Rayappan, after the licentiate at St Peter s Pontifical Institute in Bangalore, completed his doctorate in Canon Law in Urban University, Rome. At present, he serves as the Chancellor and Judicial Vicar of the Diocese of Tuticorin. The last article is on Arbitration and Reconciliation in the Context of Pastoral and Marriage Dispute or Conflict. Rev. Dr G. Felix, a priest of the Diocese of Kottar, delves into

8 Vaiharai-2013 arbitration which is an extra-judicial means of resolving conflict and dispute in the context of marriage cases. Rev. Dr G. Felix obtained his doctorate in Canon Law in Urban University, Rome in 1987. He acquired another doctorate in Eastern Code in Pontifical Oriental Institute, Rome in 2006. He served as assistant Professor of Canon Law in Urban University, Rome from 1991-1993, as Professor of Canon Law and Dean of studies in Pontificio Collegio Beda, Rome and also as Professor of Administration of Sacraments in Regina Mundi Institute, Rome. At present, he serves as the Chancellor of the Diocese of Kottar. Rev. Dr Norbert Thomas Guest-Editor Vaiharai 1983 Code in the Life of the Church with Special Reference to the Indian Church Introduction Dr A. Alagu Selvan The 1983 Code had been in preparation for almost 25 years prior to its promulgation. Pope John XXIII had announced his intention to establish a commission to revise the 1917 Code about the same time that he announced his intention to call for the Second Vatican Council. On November 20, 1965, just before the closure of the council, Pope Paul VI addressed the Code Commission and pointed out that Canon Law flows from the nature of the Church and it should be at the service of the Church. Finally Pope John Paul II promulgated the Code of Canon Law on January 25, 1983 which came into effect on 27 November 1983. I shall try to analyse the positive impact of the present Code and to underline the drawbacks in the implementation of this Code in the life of the Church. At the same time, I shall try to propose a few guidelines especially for the Indian Church to make the law an effective instrument at the service of the Church.

10 Vaiharai-2013 1. Positive Impact of 1983 Code 1.1. Strong Foundation of Code in II Vatican Council At the close of the Second Vatican Council, Pope Paul VI addressed the Code Commission and pointed out that the Canon Law flows from the nature of the Church and the law should have strong foundation of theology. If the Church s ecclesiology were largely juridical and hierarchical, the Code of Canon Law would embody that perspective as did the 1917 Code, which had little or no meaningful place for the laity in the Church and which contained a major portion listing various crimes and penalties applicable to the life of the Church. By contrast, the 1983 Code has a major section on the Church as the People of God, and even provides a bill of rights for all the baptized. Only after treating the lay faithful does the new Code concern itself with the hierarchical structure of the Church, and with emphasis not only on the papacy but on the whole episcopate and on such collegial bodies as world and regional synods, and national conferences of bishops. Pope John Paul II made the same point while insisting in his letter of promulgation, The revised Code fully corresponds to the nature of the Church, especially as it is proposed by the teaching of the Second Vatican Council in general and in a particular way by its ecclesiological teaching and indeed this new Code could be understood as a great effort to translate this same conciliar doctrine and ecclesiology into canonical language. Hence Fr Richard McBrien states that what constitutes the substantial newness of the Second Vatican Council, in line with the legislative tradition of the Church, especially in regard to ecclesiology constitutes likewise the newness of the new Code. 1983 Code in the Life of the Church with special... 11 John Paul II thereupon listed several ecclesiological elements that form the new code and make it different in approach from that of the 1917 Code: the Church is the people of God, hierarchical authority is for service; the Church is a communion, with a collegial rather than a monarchical structure; the laity participate in the threefold priestly, prophetic and kingly offices of Christ; and finally the Church is ecumenical in outreach. Thus 1983 Code marked the end of a long process of renewal and revision: 19 years were left behind of laborious efforts, of unending consultations, of hundreds of meetings and thousands of pages written and re-written by experts in an attempt not only to update the previous 1917 code, but also to translate the spirit and the teachings of the Second Vatican Council into canonical language. Therefore the new Code was described as The last document of the Second Vatican Council. Thus the 1983 Code consolidated the renewal process going on in the life of the Church. 1.2. Fundamental Equality The Church is communion of faithful under the pastors. All have the fundamental and equal dignity by virtue of baptism though they differ with regard to their function. Holy Orders do make a man a cleric and as such, he can exercise ecclesiastical authority and jurisdiction, but the dignity and importance of a person derives not from his vocation, but from his baptism, which makes that person a child of God. This principle of radical equality means that each and every individual in the Church pope, layperson, ordained, married, single, consecrated religious has the same destiny and opportunity. All the baptized are called to holiness. Although the ordained have authority in the Church, they do not have

12 Vaiharai-2013 1983 Code in the Life of the Church with special... 13 a monopoly on grace and sanctity, which is equally given to all the baptized. Their equality and dignity has made each and every one participate in the threefold munera of the Church, sanctifying, administering and judging. It has made a lot of improvements in giving share to the lay members of the faithful equally to participate in the ecclesial governance. However still casteism plays havoc in dividing the faithful into different groups and disfiguring the image of Christ especially in the burial places and in the places of worship. One may have to wait until the 50 th anniversary of 1983 Code or for a new code to enjoy the equality in the Church. It has become a grave obstacle in the mission of the Church. 1.3. Fundamental Rights of Laity The Church s first Code of Canon Law, a concise summary of canonical rules issued in 1917, showed respect for the rights of the baptized, but these rights were more often implied than explicitly stated. The 1917 Code gave broad and explicit recognition to the rights of the laity in only one canon: The laity have the right to receive from the clergy the spiritual goods of the Church and especially the means necessary for salvation (C. 682). Many other obligations of clerics were imposed in order to safeguard the rights of the people. For example, the duties of priest residing in the parish are obligation of Mass for the people, obligation to preach and to teach. By contrast, the 1983 Code has a major section on the Church as the People of God and in it only after treating the lay faithful, the new Code concerns itself with the hierarchical structure of the Church. For the first time in history, the new Code contained bill of rights for all of the Church s members. In addition to the many rights indirectly asserted and embedded in the obligations and duties of others, now there is a separate and prominent section of the Code on The obligations and rights of all the Christian faithful (Cc. 208-223). Fifteen specific rights of all the faithful are declared in these canons. The era of explicit rights for Catholics in the Church had arrived. Catholic canonists celebrated this development as a major breakthrough. Archbishop Francesco Coccopalmerio, president of Pontifical Council for Legislative Texts while inaugurating the Congress to mark the 25 th anniversary on 22 January 2008 said, The code of canon law is not just a collection of norms created by the will of ecclesiastical legislators, it indicates the duties and rights inherent to the faithful and to the structure of the Church as instituted by Christ. The Code having identified fundamental duties and rights, also establishes a series of norms that have the aim of defining, applying and defending those duties and rights. However, it is only fair to note that making these rights real is still a work in progress. Most Catholics are not aware of their rights, and some of those who know about them have been stymied in their efforts to have them respected. Adequate avenues to pursue these rights are largely lacking. 1.4. Subsidiarity Due to the insistence of the primacy of Pope, the 1917 Code consolidated the administrative power with the Pope giving the bishops only a mediatory role. It ruled that the bishops especially those who were in the mission field had to obtain faculties to function pastorally. But the 1983 Code empowered the bishops and made them Vicars of Christ especially equal to the Pope in the sacramental ordination

14 Vaiharai-2013 and it did remove the faculties, giving them direct power to administer their flock. It has created the permanent structure of Synod in order to get the views of various bishops of different regions so that a powerful and all embracing decision could be taken with their suggestions. It imposed obligations on the part of the bishops to consult priests and lay members of Christian faithful in their pastoral administration to make effective decisions. Thus subsidiarity became a norm in the pastoral administration of the Catholic Church with the promulgation of the 1983 Code. 1.5. Participative Structures The wisdom flowed from all the circles including the laity in the administration in the early Church. Slowly the hierarchy usurped the power and stated that the wisdom flows only from hierarchy. It took so many years and only Second Vatican Council again realized the charism of all the faithful and their role in the decision making. Hence the establishment of participative bodies becomes necessary to enable the people to manifest their diverse charism for the building up of the Church. The 1983 Code made it possible to create several structures of consultation both at the national and the diocesan level. Consultation respects the role of the faithful, their co-responsibility and participation in the mission, and serves as a process of building a new way of interaction within the local church. 1.6. Religious The Code recognises, protects and promotes the autonomy of governance of Institutes of Consecrated Life. The religious communities are more in charge of their own lives, but their apostolic activities are more closely regulated. 1983 Code in the Life of the Church with special... 15 1.7. Social Justice We have seen a great thrust for social justice structures and groups forming themselves for real action in society. Further we have seen these structures validated and supported by the provision of resources and public theology at official levels of our community. We have also seen the strong continuance of our traditional pastoral care for the poor and the disadvantaged. The New Code speaks of just wage and transparency in the administration of Church temporal goods for the sake of mission. 2. Impact of the 1983 Code on the Indian Church The 1983 Code has made much impact on the life of Christian faithful. The laity was given awareness about their rights through seminars and writings. We shall point out some of the impacts here below: a. The Latin Rite has realized to form a Bishops Conference distinct from other rites and hence they worked for the recognition of CCBI especially to promote and develop Latin Rite Liturgy. b. The Bishops Conference has established a National Biblical Catechetical and Liturgical Centre at Bangalore in order to form the laity and the clergy in the new form of worship according to the Second Vatican Council and in the light of the new code. c. The Latin Bishops Conference has formed a Commission for Legislative Texts especially for the Code of Canon Law and the commission in the past has organized several meetings of Judicial Vicars and Canonists to explore different possibilities and

16 Vaiharai-2013 methods to do justice to the people at large. They have taken several steps to guide the tribunals to dispose the cases speedily. d. The Bishops Conference has facilitated the training of judges and other officials of tribunal to acquire licentiate by establishing a Centre of Canon Law Studies in Bangalore. e. The Institute has started an annual magazine Studies on Church Law. It contributes much for the canonists to update their canonical knowledge and jurisprudence in order to deal with the marriage cases effectively and also to offer counsels to the bishops in the better administration of the dioceses. f. Both on the national and the regional level we conduct periodically meetings of canonists in order to update our canonical knowledge in several fields especially through research papers etc. Indian Canon Law Society is bringing out an annual magazine Canonical Studies mostly including the research papers given in the annual meeting. It helps all those who do not attend the meeting. It opens the way for the bishops to know the recent canonical trend which paves the way for canonical equity and pastoral prudence in their administration. g. Many of the southern dioceses have marriage tribunals constituted and functioning to a certain extent in order to cater to the pastoral need of the faithful. Most of those tribunals have qualified personnel. Many of the dioceses have constituted diocesan pastoral and financial council and some 1983 Code in the Life of the Church with special... 17 of the parishes have also pastoral and financial council. 3. Drawbacks in the Implementation of the Code While addressing the congress of the 25 th anniversary of the 1983 Code, Pope Benedict XVI said, If canon law is to fulfil this invaluable service it must first of all be a wellstructured law. In other words, on the one hand it must be bound to the theological foundation that gives it reasonableness and is an essential title of ecclesial legitimacy; on the other, it must keep up with the changing circumstances of the historical reality of the People of God. Furthermore, it must be formulated clearly, without ambiguity, and must always be in harmony with the rest of the Church s laws. It is therefore necessary to abrogate norms that prove antiquated; to modify those in need of correction; to interpret in light of the Church s living magisterium those that are doubtful, and lastly, to fill possible lacunae legis. We shall explore the possibilities to perfect the existing Code so that the Code may be at the service of the Church. 3.1. Code as the Instrument of Communion The Code of Canon Law is not an end in itself, but only a means to serve an end, which incidentally is the Church herself, contemporarily defined in terms of communion. The 1983 Code was from the very beginning meant to be a means to create normatively a pastoral government necessary for the Church to grow. The task of deciding what is pastorally urgent in each time and place in the life of the Church binds in conscience pastors and faithful pro sua parte et suo modo. We must avoid legalism especially to help the irregular ones

18 Vaiharai-2013 to get the sacraments. It should be used as a great instrument in order to foster communion with the brethren of other ecclesial communities especially in the field of sacraments. 3.2. Canonical Formation of Clergy and Laity I wonder how many priests know thoroughly the different grounds of nullity where they can help the couples in critical situation to find a pastoral solution. Many of the clergy still consider that with the birth of a child all the grounds for annulment expire. The ignorance of the rights and obligations makes the laity passive still folding their hands and bowing their heads to the hierarchy. We have done a great contribution to the Tamil Nadu Church by translating the code into our vernacular language Tamil. But still it has not reached the hands of the laity, may be due to various reasons. 3.3. Empower the Synod of Bishops The Synod of Bishops was born during the Vatican II and it served as an instrument of Episcopal collegiality. However in practice it remains merely as consultative body discussing matters of moral and faith. Pope John Paul II in his Apostolic Exhortation Pastores Gregis acknowledged the need for reform of the synod. Every general assembly of the synod of bishops is a powerful ecclesial experience, even if some of its practical procedures can always be perfected. The synod needs to be perfected to become an effective instrument of Episcopal collegiality. 3.4. Enhance the Role of Episcopal Conferences The canonical norms on Episcopal conferences seem to have no sufficient room for legitimate autonomy to the bishops. The national and regional bishops know better the real situation of the pastoral need and hence the Roman Curia 1983 Code in the Life of the Church with special... 19 can take into confidence those bishops and allow them to act more responsibly without interfering in several matters. For example, the Episcopal conferences could be allowed to decide on the liturgical matters like translating, reviewing the liturgical text, fixing the maximum amount for the administration of temporal goods etc. 3.5. Adaptations for Marriage Procedural Laws The instruction Dignitas Connubii has helped the tribunal in handling the cases as per the present code and the jurisprudence, but has not offered any solace by exterminating the cumbersome process and undue delays. In 1986, the Pope advised the judges not to delay too long the examination of cases, as it would have adverse effect on the faithful seeking a response from the tribunal to their petition. The time has come to simplify the procedures for the nullity of marriage. Hence a few suggestions regarding marriage tribunal: a. The Code has laudably provided for the use of an oral contentious procedure for some cases, except for cases of marriage nullity. This procedure may be allowed in certain type of marriage cases as it would have many advantages. b. The ex-officio appeal to the second instance could be done away with in cases where the decision was given by a collegial tribunal and the parties do not appeal. c. The third instance tribunal could be established at the national level especially in India to facilitate speedy resolution of the cases.

20 Vaiharai-2013 d. While the Code contains provisions for administrative recourses, it does not have the mechanism to receive such recourses, and therefore often the matters remain at a hierarchical context. The administrative tribunals have not found a place in the 1983 Code. The implementation of the local administrative tribunals seems to be a requirement if the legal system of the Church is to be complete. e. The pastoral solution could be offered to those cases where one of the spouses is deserted for no fault of his/her. For example, the couples live for some years happily and all of a sudden one of the spouses runs away with somebody else and the other is left alone. f. The civil governments take several steps to dispose the pending cases citing delayed justice is denied justice. The bishops are enthusiastic to form a legal cell to fight against the government. They should show similar interest to address the grievances of the laity towards their pastors. I strongly suggest forming a similar legal cell with canonists and civil lawyers to scrutinize the pending cases of each diocese and to direct the judicial vicars to dispose at the earliest possible. The laity should be informed of appealing to this body if their case has been merely pending for several years. 3.6. Collaboration between Diocesan and Religious The Code of Canon Law formulated several norms to bring co-ordination and collaboration between the secular and religious clergy and religious men and women to do the mission of Christ. The present situation has widened the gap between 1983 Code in the Life of the Church with special... 21 the religious and the diocesan leading to several conflicts. The law should provide some legal measures in order to avoid these people approaching the civil court which brings enmity and hatred which is anti-witness to the values of Jesus Christ. There should be clear norms from Rome in order to enable the local church to take positive steps to strengthen the unity of these people. 4. Challenges of the New Code a. The diocesan synods and provincial councils should be held in every diocese, since they are an excellent opportunity for clergy and laity to discuss together matters of common interest for the diocese. b. The diocese should formulate particular laws taking into account the provisions given in the Canon Law so that they can render effective ministry in justice and truth. They are ready to conduct Live-In for which they are not accountable. However, they are not ready to conduct synods or formulate particular laws because it binds them too to bring order and peace in the diocese. The Code should make it obligatory to induce the bishops to make use of these institutions for effective administration of the diocese. c. We have witnessed the massive growth of ecclesial movements and associations of the faithful. We will have to be careful to avoid setting up what could be considered to be a parallel Church. There is a new sensitivity to the importance of the recognition of rights and corresponding obligations in the Church. d. There has not been the same explosion of laity into clear involvement in the mission of evangelization

22 Vaiharai-2013 and transformation of the world seen by the Council as the primary mission of both the clergy and the laity. The clerics have not yet adequately formed people to participate in the mission. We have rightly attracted and formed people for the support act, the ministry but not yet for the main feature, the mission. e. The consultative structures of the Church are still only recommended and advisory. They do not necessarily facilitate lay participation in real decision making. Such participation as well as its authority are dependent on the individual bishop or parish priest and may be dismantled at will. It is one of the greatest challenges of the third millennium to see the participation of the laity in the ecclesial decision making. We need to embrace decisively a move away from all forms of clericalism towards an understanding of baptismal equality. The present code delivered something short of the expectations raised by the Council. It left ambiguities and uncertainties and threw little light on the secular identity of the laity. 5. New Hope from Pope Francis The Pope Francis has allowed the Pontifical Council for Legislative Texts to continue with the revision of VI book of the Code i.e. Sanctions. The sanctions of 1983 Code was written with such an emphasis on the role of the individual bishop that each bishop bore the full responsibility of deciding when and how to intervene and what sort of sanction or 1983 Code in the Life of the Church with special... 23 punishment were being applied. The vacuum of the law became clear with sexual abuse crisis. It needs to be updated giving exact punishment for several types of offences. The chief concern in the process of updating is to safeguard the truth and to protect the dignity of persons. The Church s law must uphold the teaching of the Church while responding to the concrete situations of the faithful. Church law follows the theological reality of things. It is not Canon Law that forbids divorce, but the faith does. Canon Law then transforms that into juridical language. The pope has asked the council to identify the bottlenecks that delay judgements in the annulment process and identify improved procedures. Pope Francis while declaring the current year as the year of Family has announced the calling of a synod to discuss Pastoral Challenges of the family in the context of Evangelization. He has told the reporters that the next synod would explore a somewhat deeper pastoral care of marriage including the question of eligibility of divorced and remarried Catholics to receive communion. He added that the Church is a mother, and she must travel this path of mercy and find a form of mercy for all. Finally Pope Francis does not think the Vatican, the Curia or the Congregation for the Doctrine of Faith, is the beating heart of Catholicism. Parishes are the new point of reference for the life of the Church. The parish is not an outdated institution. But it proves capable of self renewal and constant adaptivity, it continues to the Church living in the midst of the homes of her sons and daughters.

24 Vaiharai-2013 Conclusion While addressing the Congress, Pope Benedict XVI acknowledged that like all human works the new Code is perfectible and he underlined that the Congress will aim to identify certain points in need of a little restoration. The Code needs to be perfected with adaptations in order to enforce the existing laws to bring order and justice and finally it will enable each and every one to do the mission of Christ and the law will be ultimately at the service of the Church. In the words of Pope Benedict XVI, Since Canon Law outlines the rules necessary for the People of God to orient themselves effectively to their own end, one must understand how important it is that this law be loved and observed by all the faithful. Church law is first and foremost lex libertatis: a law that sets us free to adhere to Jesus. It is therefore necessary to be able to present to the People of God, to the new generations and to all who are called to make Canon Law respected, its concrete bond with the life of the Church, in order to safeguard the delicate interests of the things of God and to protect the rights of the weakest, of those who have no other means by which to make their presence felt, and also in defence of those delicate goods which every member of the faithful has freely received the gift of faith, God s grace. Catholic Church Disputes in the Civil Courts of India Introduction Dr L. Sahayaraj Disputes are everywhere. The religious communities are of no exception. Just like any other religious community, the Catholic Church too has so many internal as well as external disputes. Generally, these disputes are settled amicably, but sometimes they are taken to the civil courts for the settlement. The number of Catholic Church disputes ending up in civil courts has increased dramatically in this modern time. Unfortunately, many of the most contentious conflicts in secular courts arise in the context of schism among members of the Catholic Church. The schism may be the result of theological disagreement, personality conflict, or secular political division transferred to the religious unit. Many such conflicts find their way into secular courts under the guise of property disputes, viz., which of two or more competing groups is entitled to the occupancy, use, and control of property of the Church. In fact, the civil courts in India do not want to discuss on the internal disputes of the Church. With regard to religion, the Indian Government maintains an attitude of strict

26 Vaiharai-2013 Catholic Church Disputes in the Civil Courts of India 27 neutrality. Broadly speaking, our Constitution renders to religion the things that belong to religion and to the State the things that belong to the State. The borderline is not easy to draw; but it is to be drawn, without fear or favour, by independent judges. It has been repeatedly affirmed in several occasions by the courts themselves that they do not like to decide matters of the doctrine of the Church. The jurisprudence shows that the courts have unanimously refused to decide ecclesiastical matters like creeds, the proper mode of exercising one s belief, Church discipline, tenets, general Church policy and the appointment and transfer of ministers, the appointment of bishops etc. In such matters, the state and its courts have no legitimate concern or jurisdiction. When the courts hear the Church cases, generally speaking, they uphold the spiritual and ecclesiastical supremacy of the Church authorities. They also noted that the individual Churches or the Christians are free to take up their cases to the respective court for settlement of their issues. The laws relating to Christians in India are manifold. The ecclesiastical law has its overwhelming significance in the ecclesiastical field and to a certain extent they have their impact on the personal law as recognized by civil law of Christians in India. There are different areas like marriage, divorce, adoption, guardianship, custody of children, maintenance, restitution of conjugal rights, judicial separation, alimony, succession, sacramental effect of marriage and administration of Church and its properties where the ecclesiastical law has to meet and interact with the civil law regime. Almost the entire spectrum is covered by civil law. The civil law defines the contours of the civil conduct and prescribes penalties for the violation of the norms laid down by the civil law and the civil court. Thus, the civil courts of India have decided time to time on the problems related to marriage, divorce, succession, adoption, ownership of the churches, transfer of priests, succession right of the property of the priests, use of loud speakers in the Church, etc. There is always a tension between civil law and ecclesiastical law in certain issues of the Church and also there is a problem of recognizing Canon Law as the personal law of the Christians in India. 1. Canon Law in the Civil Courts of Middle Ages In the Middle Ages, in England and in Europe, Canon Law was used in Church courts to decide many types of cases that in modern times are decided by civil courts, including criminal offenses. This was because most English Christians did not make a great distinction between secular and spiritual offenses. Crimes that were tried by the Church included adultery, blasphemy, slander, heresy, money lending, and gambling. From the late 14 th to the early 16 th centuries, Church courts also heard many breach-of-faith cases concerning contracts, as well as inheritance and marriage-related cases. Criminal trial procedures in Medieval Church courts were the source of some features that found their way into common law. Although witnesses were considered the best source of proof of a crime under Canon Law, suspected offenders could also be tried because of public fame (suspicion in the community that they had committed a crime). An enquiry made up of twelve men a forerunner of royal courts grand

28 Vaiharai-2013 Catholic Church Disputes in the Civil Courts of India 29 juries said under oath whether public suspicion existed. If none did, then a judge had no authority to proceed. After establishing public fame, the court s next step was canonical purgation, in which the accused person swore an oath that she or he was innocent. Proof of innocence was accomplished by compurgation, in which several oath helpers would swear that they believed the oath was true. People who objected to the purgation of an accused person had the chance to prove their accusation of guilt. However, in these countries, the use of Canon Law in governmental decisions is not well documented. In the early 15 th century, commissions of the English Parliament made use of canonical procedures and Canon Law experts to decide issues involving laws of war, diplomacy, and other questions. For example, in England, Parliament s justification for deposing King Richard II seems to have been based on Papal Bulls (decrees). Slowly when the nation states emerged and many nations became democratic and secular, the influence of Canon Law on civil law was discouraged. Modern legal systems rely on the principles of secularism and democracy. 2. Difference between Canon Law and Indian Civil Law It is to be admitted that Canon Law is not always appreciated by many in a common law country like India. The Canon Law is based on principles of faith. However, it may be these principles of law and faith that are difficult for people to accept, not the laws that define the legal application of these principles. In every legal system, the following two questions are important: Who has the final authority to determine and what a given law means? In a common law nation, the judiciary has the last word on the interpretation to be accorded a specific legal provision (a power distinguishable from the legislature s, or even the peoples power to change the text of the law itself). But, in a Roman or civil law system, the legislator himself generally has the power of authentically interpreting legal texts. Neither the judicial supremacy approach nor the legislative supremacy approach is right or wrong. Both systems have long and worthy records in upholding the rule of law. But they obviously operate in very different ways, and lawyers well-trained in one tradition are at serious risk of mishandling the provisions of the other unless they understand and accept the difference, in rather the same way that drivers who are used to driving on the right side of the road are highly accidentprone when they go to a country that drives on the left. It says nothing about their basic skills behind the wheel, but it says much for the problems encountered when trying to cope with a foreign way of doing things. Canon Law draws much more heavily from the classical Roman or civil legal tradition, and not from the Anglo-American common law tradition and as a consequence many canonical interpretive principles differ from those to which common law attorneys are accustomed. 3. Similarity between Canon Law and Indian Civil Law Indian legal system is based on English common law. Various Acts introduced by the British are still in effect in modified form today. Much of contemporary Indian law shows substantial European and American influence. However ancient India represented a distinct tradition of law. It had a historically independent legal theory and practice.

30 Vaiharai-2013 Catholic Church Disputes in the Civil Courts of India 31 Both Indian civil law and Canon Law hold to the principle that one is presumed innocent until guilt is proven. For this reason both jurisdictions put great store by due process. Similarly both the laws afford people basic rights. Among those afforded to Christ s faithful are: The right to good reputation and privacy (C. 220), the right to due process and to be judged according to law applied with equity (C. 221). The Church claims the right to constrain with penal sanctions of Christ s faithful who commit offences (C. 1311) and to that end the Canon Law incorporates a section on penal law and the process involved therein. Among other things, the penal section of Canon Law stipulates that the preliminary investigation prior to a criminal trial must not call into question anyone s good name (C. 1717, 2 ) and that the acts of such an investigation are to be kept confidential unless they are necessary for the penal process (C. 1719). Making a report to the civil authority about what turns out to be a frivolous, unfounded or false and malicious complaint, prior to the completion of the preliminary canonical investigation that established that fact, serves no end but the unwarranted and unlawful destruction of somebody s good name. By the end of the twentieth century, secular law had eclipsed Canon Law in most aspects of public life. Inter-body disagreements within the Church are now often handled administratively rather than by a tribunal, but within the confines of Canon Law. However, the tribunal is still the only place where Catholics can secure a marriage annulment, and each diocese must maintain a tribunal for this purpose. Divorced Catholics who have been denied an annulment can appeal as far as the Sacred Roman Rota. 4. Canonization of Secular Law Most of the Church related problems are now settled in the secular courts. The reason is that the Catholic Church is not only a spiritual reality, but also a material entity and it is dependent on secular types of organization, financial models, and juridical structures to accomplish its mission in the world. The Catholic Church utilizes various legal institutes from the secular law to assist in its mission. It has canonized the secular law in certain areas in order to be in tune with the modern world. The canon law demands every Catholic Christian to observe the civil law of his/her country and suggests how both canon law and civil law can go together. There is nothing in Canon Law which inhibits or prohibits the citizen s right to exercise those rights which he or she enjoys under the constitution of India. In fact, Canon Law urges the observance of civil Law except when it is clear that it is contrary to divine law. A general principle is presented through c. 22 of the Code of Canon Law: When the law of the Church remits some issue to the civil law, the latter is to be observed with the same effects in Canon Law, in so far as it is not contrary to divine law, and provided it is not otherwise stipulated in Canon Law. By this principle we can affirm that some situations in the life of the People of God are best regulated in accordance with the law of the State in which they live. The current Code of Canon Law refers many of these matters to the particular civil legislation of the land, for example, Rights of a minor subject to parents or guardians (C. 98 2), Adoption of children (C. 110), Acquiring or losing of a subjective right (C. 197), Civil effects of marriage (C. 1059), Engagement of