(Fr. Augustine Mendonca)
Marriage is not an abstract concept but a reality rooted I human nature. The need for companionship and its natural orientation towards offspring were recognized in the very creation of the human being. The human nature with its natural orientations becomes incarnate within concrete circumstances of God’s creation. It finds its unique expression in and through the particular socio-cultural conditions of time and place. Therefore it is not possible fully to understand the nature of marriage without first knowing how, in accordance with Gods design, it has taken its distinct form in diverse cultural contexts.
It was this aspect of marriage that was clearly emphasized by Pope John Paul in his post-synodal Apostolic Exhortation, Familiaris consortio. In this document, he said: “Since God’s plan for marriage and the family touches men and women in the concreteness of their daily existence in specific social and cultural situations, the Church ought to apply herself to understanding the situations within which marriage and family are lived today, in order to fulfill her task of serving”.
There are two important points in the statement of the pope that are relevant to our reflections on the subject matter of our discussions of the week. First, marriage is a natural reality and it exists, is perceived, chosen and lived within a concrete socio-cultural milieu; and second, for this reason, effective pastoral care of marriage and family is not possible without understanding their concrete situations. That the pastoral care which the pope had in mind included also tribunal ministry is evident from the fact that he returned to the same theme in his Rotal allocution of 1991 where he said: “Precisely because it is a reality that is deeply rooted in human nature itself, marriage is affected by the cultural and historical conditions of every people. They have left their mark upon the institution of marriage. The Church, therefore, cannot prescind form the cultural milieu”. Applied to our tribunal ministry, this statement should naturally lead us to conclude that in examining marriage cases for possible declaration of nullity, judges cannot prescind form the cultural milieu of a concrete marriage before them.
Needless to say, a judge is the product of his/her own culture. This should be evident to us when we reflect on the important decisions we make in our own life, how those decisions are colored by our personal history and culture. Any decision a judge has to make will bear the stamp characteristic of that historical and cultural background. The moral certitude derived from the evidence, which is invariably tinged with the cultural peculiarities of the place and persons, can never be absolutely free form the influences of one’s own subjective perception and disposition. What Emilio Colagiovanni says in this
regard seems to make good sense. According to him, a sentence literally denotes, “feeling,” and “to feel” means that the judges’ certitude is not derived from some mechanical and mathematical calculation, but it is something that pervades their total personalities including their culture, education, capacity for insight and for comparing certain facts with other facts, events, and circumstances. In other words, the total personality of judges enters into their decision-making process. This implies that a judge must have a genuine sense of the socio-cultural milieu within which the particular marriage was contacted and lived, and the decision eventually rendered must be based on the objective evidence secured form and weighed in light of concrete circumstances of the case. These two aspects of a judicial decision are intimately connected.
The hypothesis underlying my presentation is that a judge must have a genuine understanding and appreciation of all relevant socio-cultural aspects of a particular marriage case actually being judged, in order to render a just and equitable decision, because those aspects do impact the process and content of matrimonial consent. The objective basis of this hypothesis will be explored in this paper on two interrelated areas: first, the necessity of interpreting and applying canon law, especially marriage law, in light of particular cultures; second, specific cultural factors prevalent in India which are likely to impinge on the process of eliciting valid matrimonial consent and how some of them have been identified in som of the more recent Rotal sentences.
1 – Culture and ecclesial law
Law meets human situations within the concrete context of a particular culture. Therefore, the ministry of law necessarily demands on the part of those who are involved in it a genuine appreciation of the concrete contest of its application. This, however, is not an easy task, for the very notion of culture is a complex one and its influence on the development of human personality and human relationships and institutions is undoubtedly pervasive. In this section of the paper I will try to present a brief analysis of the notion of culture in general and its dynamic interaction with ecclesial law in particular.
1.1 – The Notion of Culture
One will search in vain for an universally accepted definition of culture, because its very notion is rooted in the real life of a particular group of people which is not uniform. Nevertheless, in its static sense it may be understood as “that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.” Or “the mass of learned and transmitted motor reactions, habits, techniques, ideas, and values – and the behavior they induce – is what constitutes culture. Culture is the special and exclusive product of men, and is their distinctive quality in the cosmos.” These are general concepts of culture and they essentially identify the content of culture.
In its dynamic sense, culture is “the sum total of the attainments and learned behavior patterns of any specific period, race, or people, regarded as expressing traditional way of life subject to gradual but continuous modification by succeeding generations.” It is “the fact of developing by education, discipline, social experience; the training or refining of the moral and intellectual faculties.” Or, it is “the training, development, or strengthening of the powers, mental or physical, or the condition thus produced; improvement or refinement of mind, morals and tastes; enlightenment or civilization.” In the church’s own teaching, culture in a general sense “refers to all those things which go to refining and developing of diverse mental and physical endowments of the human person.” It is ‘the fabric of meaning in terms of which human beings interpret their experience and guide their action’.”
The dynamic relationship between the forces of culture and development of human personality naturally impacts on mental health. Therefore, psychiatrists see culture as “a complex pattern of learned behavior, values, and beliefs systems shared by a member of a designated group. These patterns are generally transmitted through generations, creating a blueprint not only for thought and action but also for physical illness and its presentations, for psychopathology, and for models of treatment.” Culture therefore is not merely a static reality but a dynamic force that influences different aspects of people’s life.
1.2 – Impact of Culture on Personality
There is no doubt that human personality and human mind are strongly influenced in their development by concrete socio-cultural contexts. Psychological studies indicate that one’s perception, cognition, emotion, motivation and socialization are certainly conditioned by one’s cultural environment. Cross-cultural studies show that the manner in which people of different cultures perceive subjective and objective events are learned, therefore ecologically (culturally) determined.
Perception leads to development of concepts and ideas. And these in turn certainly influence people’s decisions and actions. Even though the laws of mental operations are the same for all people, cognitive styles and the manifestations of the mind depend on varied environmental demands and individual experiences within a particular culture. People tend to focus their attention on what is most important in their way of life, and different cultures associate things in different ways, give different meaning t concepts, and memorize what is more familiar to them. In other words, whereas persons in all cultures have equal potential for cognitive capacity, the differences in cognitive preferences are explained in terms of the needs, interests, and values of the particular culture.
While affective meaning of emotions holds across culture and their nonverbal, facial expressions seem to be universally similar, degree and form in which emotions are expressed are different. People of certain cultures are very subdued in expressing their emotions while members of some other cultural group show no inhibition in manifesting their feelings. This would certainly influence the way people provide or volunteer information on issues of concern, such as those related to marital relationship.
Motives such as dependency, aggression, and even achievement are universal, yet their strength and form of expression differ with culture. Since these motivational characteristics are of vital importance to establishing and maintaining interpersonal relationships, one will have to have a genuine appreciation of the particular culture in order to understand their true influence on human relationship.
One of the important issues which is of much significance to our consideration is the relationship between culture and health/illness. Like all other behavioural sciences, psychiatry also is concerned with the effects of culture on mental illness. Even though major psychological disorders, such as psychoses and neuroses, are comparable across cultures, their incidence and expression seem to be variable. The socio-culture often dictates particular symptoms. For example, among African and some other societies absence of a specific word for depression makes impossible the complaint o depression although certain behaviors manifesting as depression may be present. Therefore, for a westerner it may be almost impossible to understand and interpret the symptoms which might be indicators of a serious mental disorder. Moreover, scientists have identified certain “culture-bound” syndromes which are restricted to particular socio-cultural settings.
How cultural influences can intervene in the pursuit of truth in a marriage nullity case, especially in determining the presence and nature of mental disorder, can be illustrated in the following case judged at the Rota coram SERRANO on 11 December 1992.
The marriage under consideration was “arranged” in accord with the Indian custom. The couple saw each other only once, and hardly spoke to each other before the marriage. Because the “brokers” involved in arranging this marriage were close relatives of the parties, little information on their backgrounds was gathered before the wedding. The woman manifested evident signs of mental disorder form the beginning of the marriage. She was suffering from suppressive dreams and considered herself helpless without the support of her family. After suffering a spontaneous miscarriage, she was hospitalized for two years for psychiatric care. Thereafter, she was unable to restore common life, and therefore, she obtained legal separation in 1981.
In view of such a situation, the man petitioned the ecclesiastical tribunal of Palai to declare his marriage null on the ground of “insanity” (dementia) on his wife’s part. This petition received two negative decisions.
On 3 March 1986, the man resubmitted his petition, but this time on grounds of the woman’s “inability to give valid conjugal consent.” The tribunal of Palai formulated the doubt as follows: “Whether the marriage in question is invalid for reasons of inability in the part of the Bride to understand properly the duties and obligations of marriage and to assume them.” The decision of 25 June 1987 was affirmative, which the appeal tribunal of Changanacherry overturned on 20 December 1988.
While articulating an extremely useful juridic principle, Serrano states that when the nullity of a marriage is alleged on grounds of c.1095, it is possible to find for lack of discretion of judgment when lack of sufficient use of reason is not proven. Similarly, it is possible to demonstrate incapacity to assume when discretion of judgment proportionate to consent cannot be excluded. In other words, both because of the unclear distinction between the principles of c. 1095, and because of the imprecise explanations and conclusions provided by experts, one cannot deny the possibility of considering successively the same case on the three grounds of nullity specified in c. 1095. This reasoning justifies the resubmission of a case after it has received tow conforming negative decisions on, for example, lack of discretion of judgment, provided that there is proof and the other ground(s) was not included in the first round.
In this case, the principal diagnosis ascribed by the expert to the psychic condition of the respondent was “dementia”. Serrano argues that the symptoms described in DSM-III-Revised indicate the inability of the person suffering from dementia to have a mature decision (discretion of judgment) for interpersonal relationship, a “mutual self-gift” mentioned in GS 48 and c. 1055.
The cultural factors which played an important role in the dynamics of this case, were the following: First, as is common in our culture, the approaches to the issue of mental illness, a social taboo and a stigma, clearly reflected the attitudes of the two families concerned. Serrano phrases it in this way: “This case is very complex in view of the tendency of the parties and of their relatives toward altercations. As a result, the witnesses were, like two armies, formed into battle lines, to fight troop by troop.”
Furthermore, Serrano also says that the five experts reports obtained in the case provided no unanimous conclusion. The depositions and testimonies could be regarded as split right in the middle as for as the truth concerning the existence of the mental disorder was concerned. While those witnesses presented by the petitioner affirmed the existence of a serious mental disorder in the respondent, it was vehemently denied by those of the respondent. This reflected the cultural stance in regard to mental disorders and implications for arranged marriages. The decision of the Rota was affirmative on grounds of lack of discretion of judgement and inability to assume the essential obligations of marriage on respondent’s part. In this case one can find a good picture of how Indian people view mental illness within the context of matrimonial consent.
It is very important to note that, because of the difference in incidence and expression of psychiatric syndromes in diverse cultures, psychiatrists, even psychologists and psychotherapists are reminded that in diagnosing and treating mental disorders, they must have the appropriate knowledge of the culture, including its norms, conceptions of illness, factors that predispose to illness, and expectations of illness. These factors determine the kind of treatment to be planned and administered in a particular case. This advice is of no less importance to canonists who have to understand and interpret the effects of such disorders on personality and mental faculties of persons afflicted by them.
Briefly, in evaluating the ramifications of the influence of culture on human mind and personality, it is important to consider carefully a variety of its dimensions: ways of perceiving reality (world views), ways of thinking, (cognitive processes), ways of expressing ideas, concepts and experiences, ways of acting (behavioural patterns), ways of interacting (social structures), ways of channeling the message (communications, media influence), and ways of deciding (motivational resources), etc.
1.3 – Culture and Ecclesial Law
One of the unique characteristics of Ecclesial law applicable to matrimonial consent is its universality. It is applicable to all the Christian faithful around the world. But this law is a norm of reason, and hence, it is essentially reasonable. Because it is reasonable, the principle of equity is central to its application to concrete situations.
Ecclesial law is also a norm which has “the salvation of souls” (c. 1752) as its supreme goal. In the 3rd fundamental principle which guided the revision of the Code of Canon Law, the Synod of Bishops emphasized in clear terms that the juridic character of the Church and all its institutions should foster supernatural life, and consequently, all laws and precepts, rights and duties are to be in harmony with their supernatural purpose. Accordingly, the Code shall strive to instill in pastors and judges discretion and knowledge in exercising their ministry in a spirit of equity which is the fruit of kindness and charity.
The Universal nature of ecclesial law and its supreme purpose rooted in the very nature and mission of the Church, necessarily implies that it must be interpreted and applied in a spirit of equity to diverse and variable conditions where the life of the faithful is founded and nurtured. In other words, concrete saturations within the believing community qualify the interpretation and application of ecclesial law. The cultural conditions and pastoral needs of particular local churches and of individual faithful are so diverse that the interpretation and application of the universal law must take into consideration the cultural heritage and social situations of the people concerned.
As L. Orsy righty observes, good interpretation presupposes good interpreters. Good interpreters bear three indispensable characteristics: first, a good interpreter knows one’s own cultural heritage before attempting to interpret the law; second, a good interpreter knows well the law and the value it is meant to uphold; third, a good interpreter knows well the cultural context in which the law is interpreted and applied.
In his Rotal allocution of 30 January 1993, John Paul II presented some important hermeneutical principles which are not to be disregarded by any interpreter of canon law.
a) The first principle of interpretation is to understand laws “according to the proper meaning of the words in their text and context” (c. 17). Therefore, to attribute to the words used by their legislator not their “proper” meaning, but suggested by disciplines different form the canonical one, would “be totally arbitrary even patently illegitimate and gravely culpable (gravemente colposoI).”
b) The second principle is that in interpreting the revised Code one should not think that its promulgation there is a complete break form the past as if there had been a leap into a totally new reality. Continuity of canonical tradition has been positively reaffirmed by the legislator in c. 6, §2.
c) The third principle concerns the necessity of interpreting and applying canon law in light of well-established doctrine and jurisprudence. In other words, an interpreter of law must be well-acquainted with doctrine and jurisprudence concerning the words and expressions newly introduced by the legislator in the Code.
d) Excessive relativization of canon law on the pretext of humanizing it, especially in matrimonial matters, is likely to lead to interpretations and applications of law that would ultimately prevent its characteristic features.
Just and equitable interpretation and application of canon law, the Holy Father insists, “entails the need for a proper knowledge of the Church’s legislation, but without forgetting, in the light of a correct Christian anthropology, the reality of human beings for whom it is intended. Subjecting canon law to capricious or contrived interpretation, in the name of an ambiguous and indefinite humanitarian principle, would mean destroying the very dignity of the humans, even before the norm.”
Even though the Code provides definite rules in cc. 7-22 on different aspects of law, including principles of interpretation, they alone cannot be relied on for an appropriate, pastorally sensitive interpretation of law in every situation. A narrow, legalistic approach in interpreting and applying the norms which are universal in scope without giving any consideration to particular circumstances of the place and persons is certainly unjust and doomed to fail. A good interpreter will make every effort to know the specific cultural context of the persons who come to our tribunals seeking just and equitable resolution of their personal and marital problems.
2 – Culture and Matrimonial Consent
Marriage is an “intimate union” (GS 48), a “partnership of the whole of life” (c. 1055, §1) between a man and a woman, by its nature ordered toward their own well-being (good of the spouses) and procreation and upbringing of children (good of offspring). This conjugal union is one, exclusive and lifelong (permanent), and between two validly baptized persons, it is also a grace filled reality, a sacrament (c. 1055, §2). This, in essence, is the theologico-juridical conceptualization of marriage according to the Church’s teaching. Such a conceptualization reflects both the natural and supernatural dimensions of marriage.
As a natural reality, marriage is rooted in the very being of the human person and is inseparably linked to the evolution of human beings. Since human beings evolve within the context of specific cultures, the inner structure and external manifestation of marriage too are subject to cultural influences. On the one hand, therefore, the Church cannot be indifferent to its own values derived from the Gospel, while on the other hand, it cannot be blind to those values which are integrated into the culturally influenced conceptual formulations of marriage. In other words, while the essential elements of marriage are universal and remain constant, their perception and conceptualization may differ from culture to culture. For example, while the notions of “rights and duties,” “freedom,” “equal dignity,” “love,” etc., are essential to the meaning of marriage, their understanding and importance would certainly be determined by the culture of each society.
Culture precedes individual’s convictions and choices. It is possible to consider the effects of cultural influences under to aspects of matrimonial consent: first, in the determination of the content of one’s intention, and second, in the very choice of marriage, or of the marriage partner, one makes. The content of a person’s intention is marriage and the marriage partner. Marriage itself and its essential elements must be contained in that intention. When the content of a person’s intention is substantially different form or contrary to the essential elements of marriage, the consent would be null. Similarly, the essence of the choice of marriage or marriage partner is internal freedom. If, in the name of culture, a person’s freedom to make a deliberate and free decision is substantially diminished, the consent elicited under such circumstances would be equally null.
2.1 – Meaning and Purpose of Marriage
As stated above, marriage is a partnership between a man and a woman by its very nature ordered to the good of the spouses and procreation and upbringing of children. But how this partnership and its finality are perceived and consented to depends on the culturally conditioned content of the people’s mind. Even intense evangelization may not succeed in transforming the deeply held conception of a particular reality, related beliefs and attitudes, because culture preexists evangelization. In his study on the Celebration of Marriages in India, J. Maliekal rightly observes that “the early Christian community was ‘Hindu in social life, Christian in religion and Catholic in worship’.” What this statement affirms is the fact that at the deeper level of their life, Christians retain their social and cultural heritage of who they are as a people. The perception of reality and convictions attached to it do not easily disappear or melt away from people’s way of life.
For most of our people, marriage is family oriented. Therefore, children constitute an essential and indispensable consequence of marriage. Some value offspring so highly that their absence in married life may become the crucial issue for the continuation of the partnership of life. In other words, the meaning and purpose of marriage determined by our culture may so shape the object of consent of the people that what is exchanged through their consent may be substantially different from the legally defined content of the intention.
A case form Goa-Daman was judged coram Parisella on 24 March 1983, a couple of months after the promulgation of the revised Code of 1983. The marriage in question was celebrated on 16 May 1976. The woman was 47 years and the man was 52 years of age respectively at the time of marriage. The match was arranged through a marriage broker. This broker had told the man that the woman was 35 years of age when in fact she was 47 years old. Furthermore, four days after the wedding the man discovered that the woman had a total hysterectomy and bilateral salpingophorectomy (surgical removal of both fallopian tubes). This surgery had in effect rendered the woman incapable of bearing children. The man was totally unaware of this fact at the time of marriage. The conjugal relationship was terminated within five days after the wedding and final separation took place in five months thereafter. The man petitioned the tribunal of Goa-Daman for a declaration of nullity of his marriage on the basis of respondent’s impotence (c. 1068, §1 of CIC/17) and fraud perpetrated on him by the respondent. The decision of 7 July 1977 by the Goa-Daman tribunal was affirmative on impotence but negative on fraud. On appeal, the Rotal court submitted the case to an ordinary judicial examination. The decision of the Rota was negative on both grounds. Since the ground of impotence had received two disparate decisions (one affirmative and on negative) form the two courts, the case went on to the superior turnus which also pronounced a negative decision. What is important for our discussionis the approach Parisella’s turnus took toward the ground of dolus.
The main argument underlying the negative decision was the non-retroactivity of the law on dolus. On the one hand, the court clearly admitted that the respondent had perpetrated fraud both in regard to her incapacity to bear children and her age; but on the other hand, it maintained that c. 1098 of the new Code is of positive law, and therefore, it can be applied only to marriages celebrated after 27 November 1983.
What we have in this case is “fraudulently induced error.” The error concerns two qualities which are considered very important by our culture. These qualities were expressly, even if implicitly, desired by the petitioner. Was it possible for the Rotal court to look at this issue with a different approach? In my opinion, it could have, but it did not.
On 13 December 1990, a case form Ernakulam was judged at the Rota coram Stankiewicz, specifically on “error of quality directly and principally intended.” The marriage in this case was celebrated on 11 November 1973 according to the Syro-Malabar rite. Married life was peaceful for a brief period following the wedding. But when it was discovered that the woman could not become pregnant serious problems began to disturb conjugal life because the man had a great desire to have children. Consultations with several doctors and different kinds of treatments at great expense proved futile, and
finally the woman agreed to terminate common life provided that she was given sufficient means for her daily sustenance. A separation was effected after giving the woman the financial assistance she had asked, and then the man presented his petition for a declaration of nullity of the marriage to the tribunal of Ernakulam on 5 April 1986 stating: “First and foremost I expected in my wife, at the time of my marriage, a woman with the capability to give birth to children. Now, I am convinced that my wish will not be fulfilled. Therefore, I request the Venerable tribunal to declare (this) marriage as null and void on the basis of error and to permit me to marry again.”
The decision of 25 March 1987 by the tribunal of Ernakulam was affirmative on grounds of “error of quality” and a prohibition was imposed on the respondent “unless and until permission is obtained from this Trubunal.” The appeal tribunal of Trichur overturned this decision on 9 July 1987. With an appeal by the petitioner against this negative decision, the case arrived at the Rota where the promoter of justice raised exception against the validity f the second instance because the appellate corut had rendered its negative decision without submitting the case to an ordinary judicial examination, which could have violated the right of defense of the parties. In fact, on 13 December 1990, the Rotal turnus declared the second instance decision irremediably null for violation of the right of defense.
In this case the evidence confirmed that at the time of the wedding the petitioner wanted to establish a family with children and he thought that his wife had procreative capacity. He confirmed his intention in his statement: “First and foremost I expected in my wife, Mary, at the time of marriage, a woman with capability to give birth to children. Now, I am convinced that my wish will not be fulfilled.” Therefore, the Rotal court rejected the suggestions from the defender of the bond to the effect that this could be a simple error or merely an interpretative will. The court found in the statements of parties and witnesses as well as in the petitioner’s reaction when the truth was determined sufficient evidence to confirm his intention. For example, the respondent herself stated: “From the beginning itself Varghese was very much insisting on having children. That is the reason why he took all those troubles and spent so much money for my treatment.” The court admitted that there was no deception on the respondent’s part, because she herself did not know that she would not conceive. Therefore, the court ruled that the vetitum placed on the woman by the first instance tribunal could not be sustained. The conclusion of the Rotal court was: “This quality, therefore, considered either subjectively or objectively, constituted the object of substantial error on the petitioner’s part, that is, ‘quality of the person of Mary as a wife capable of giving birth to cildred’.” The error was proved not only by his ignorance of the absence of the quality at the time of marriage but also by his reaction when he learned of the fact that his wife definitively lacked the required quality. For, all clearly testified that the only reason for separation was the respondent’s “infertility.”
The sentence by Stankiewicz certainly confirms the view that determination of the weight or value of a quality in relation to “error of quality” depends not only on its subjective estimation but also by its objective estimation within a particular culture. The case under consideration illustrates how within the culture the specific marriage was lived, the quality of fertility was regarded as important for married life. Its value was in fact intensified by the personal (subjective) expectation of the quality in the respondent on the petitioner’s part. An interplay between subjective (personal) and objective (cultural) estimations seems evident in this case.
2.2 – Parental Authority and Filial Reverence
In our culture parents play a very important role I the decisions their children make concerning their marriages. Usually parents either personally or through family contacts or brokers arrange matches for their children. The system of arranged marriages may have its own merits, but marriage being a preeminently personal choice, the parents may in effect overtake the decision the children are supposed to make. Parents or close relatives become the chief actors in “proposed” or “arranged” marriages. Children themselves are mostly passive doers of their parent’s will. There is no culture in Asia which totally excludes the role o f parents in the arrangements of their children’s marriages. However, the degree of their influence differs for culture to culture. Even though parents have the natural right and obligation to assist their children in making right choices in life, especially in the choice of their states in life, their authority should not amount to violation of the children’s personal freedom in making such choices.
Filial reverence or filial piety is a universal virtue nurtured in practically all cultures. But in our culture it assumes unique significance on account of its rootedness in a system of tightly knit family relationships. Children hold their parents in such high esteem that they may consider any unfilial attitude or behaviour a disgrace to their family. The notion of filial piety may be so drilled into the children that they may remain submissive to their parents throughout their life. In such cases, it is quite possible that children fail to develop a sense of personal autonomy necessary to make important decisions. Such persons may not even think of their fundamental right to choose marriage and their life-partners, but leave everything to the discretion of their parents. In this way, lacking the personal capacity to make their own decisions, they may readily accept and adhere to the choices made for them by their parents. Any challenge to parental authority in these matters may be considered unbecoming of a child, and the child in turn may not be able to thwart such expectations. Children may grow up with a deep feeling of indebtedness or deep-seated debt of gratitude toward their parents. This intense sense of indebtedness is further reinforced by a feeling of shame when a child does not display evidence of this deep-seated debt of gratitude. Thus, when cultural demands based on filial reverence go counter to a person’s freedom to choose, there can be no true choice. This is one of the important aspects of consent which may be seriously compromised in case of filial reverence, and this is certainly a frequent occurrence in arranged marriages. In such cases, it is quite possible to verify instances of true consensual incapacity stated in c. 1095, 2° and 3°, or of simulation, reverential fear, condition, etc. The following actual case is a good illustration of this situation.
In an affirmative sentence dated 21 February 1991, the Rotal court dealt with a case form Madras in which the alleged ground was reverential fear on the part of the man petitioner and simulation on respondent’s part. In brief, the facts of the case are as follows:
Francis, a Catholic, petitioner in this case, and Ganapati, a Hindu, fell in love during their college studies. Their friendship eventually led to sexual intimacy. Within a few months Francis learned of Ganapati’s love relationship with another young man and of their mutual proposal to marry, but the young man’s parents had prohibited such a union for reasons of unfavorable astrological signs. At this point Ganapati’s mother announced to Francis that Ganapati was pregnant by him and that he should propose marriage in reparation. However, Francis rejected such a proposal. Ganapati’s mother denounced Francis to College authorities. As soon as they came to know of the sexual relationship between Francis and Ganapati, without even looking into the relationship between Ganapati and the other young man, the Superiors of the College insisted on the celebration of marriage with a threat of expulsion from the college if he did not agree. The bishop of the place, Francis’ two uncles priests and his whole family were informed of the girl’s pregnancy and of the impending marriage. On 30 April 1954, Ganapati was baptized assuming the name Stella Mary and the marriage was celebrated that day. On 17 September 1954 a male child was born. Conjugal life lasted about a year when Ganapati left conjugal home and the infant to complete her college degree and then moved on to Calcutta where she reconverted to her native Hindu religion. She rejected all efforts at reconciliation and finally obtained civil divorce in 1977.
After the civil divorce, Francis entered into a civil marriage with Susheela, whom he had hired as nanny to take care of his son. Five children were born of his union, two of whom became cloistered nuns. It was only after living 28 years in a civil marriage that he was able to present his petition for a declaration of nullity because, in his own words: “I did not make any attempts because I was not aware of the fact that any such declaration would be available. That there is an ecclesiastical court and that there may be a way out of this problem, I learnt form a news item in the New Leader.”
In his petition of 23 December 1983 to the Madres tribunal, he accused the marriage of nullity on grounds of reverential fear on his part and simulation on respondent’s part. The first instance decision was negative on fear with no mention made of the ground of simulation. The appeal court of Coimbatore pronounced affirmatively on both grounds. The Rotal decision of 21 February 1991 coram Boccafola was affirmative on the ground of grave fear.
In this sentence, the judges of first instance tribunal did not dispute the petitioner’s claim about reverential fear, but maintained that the fear was only light. Their conclusion was: “Although this marriage could be nullified by virtue of can. 1101 [simulation] if real circumstantial evidences are proved, here we have only the testimony of the petitioner. Enough evidence has not been presented to declare this marriage null and void with a safe conscience.” The defender of the bond also expressed the same opinion: “It is likely that there was external force (moral) in this case, which alone compelled Mr. F. and or G. to enter this marriage. But enough evidence has not been presented to declare this marriage null and void with a safe conscience.” One could legitimately question the knowledge of the judges and the defender about the juridic principles as well as their appreciation of the cultural factors involved in this case.
On the other hand, the judges of the second instance tribunal weighed very critically the same facts and documents and arrived at a different conclusion.
Though the cause for pregnancy was not certain, [Francis] is made to accept and to marry her by force and grave fear by the Jesuit Fathers on the plea of perhaps dismissal from the college or failure in the exams … Reverential fear here deserves special attention since the displeasure of parents or persons in authority can easily diminish the voluntariness of the act. The pressure applied externally may seem light, but due to the relationship in fact it may leave the person no liberty if choice. [Francis] had this sort of fear before the marriage as he declared in his answers to the questionnaire … Considering the circumstances in which [Francis] was before the marriage, as per canon 1103 as stated above and the way [Ganapati] behaved before and after the marriage, as per canons 1101, §2 and 1055,§1, as noted above force and grove fear on the part of [Francis], simulation, total and partial, regarding the very nature and the essential element of marriage on the part of [Ganapati} are the factors that make this marriage null and void.
The Rotal court considered this decision to be in conformity with the canonical principal principles and with the facts reported in the acts.
In his petition for the declaration of nullity of his marriage, the petitioner confirmed, “This (can. 1103) can be applied in my case with reference to pregnancy of the girl whom I was compelled to marry under force and grave fear and reverential fear… Thus a situation was created wherein I could not escape unless I conceded for the marriage to the said girl. I was not able to write my BA degree examination also, because of this disturbance I could neither go back to my parents and relations nor face the society with marriage … The reverential fear for parents, relations, society and Jesuit Fathers of St. Joseph’s College and the tow priests of my family to safeguard their prestige, I had to give my consent for the marriage.”
In his deposition before the tribunal he reiterated the same fact: “Shanta’s mother came to me and informed that [Ganapati] was carrying (pregnant). I was responsible for it. When I refused to accept the responsibility for the pregnancy, she reported the matter to Fr. Fournier who was our French professor as well as a successful social worker in Srirangam Tiruchi. He took seriously, believed their version completely and brought pressure on me to marry her… Fr. Sequeria told me that I would have to leave the Hostel unless I found a solution for this. The Rector of the College, Fr. Kalathil, also severely warned me to find a solution to this. The entire campus was charged with the news and agitation against me, particularly among the Brahmin students.”
One of the witnesses admitted that as a consequence of this marriage celebrated in such circumstances: “Mr. F. was not welcome to his parents’ home because after the marriage the whole village folks were laughing about this marriage based on ‘pregnancy’.” The Rotal court found in the testimonies of other credible witnesses’ sufficient evidence in support of petitioner’s story. Even the respondent confirmed this in her response to her citation by the Archbishop of Madras. In her letter of 12 September 1984, she wrote: “I hereby affirm and state the following voluntarily and on my own free will… This marriage took place under compelled circumstances and defective in consent for the Christian Baptism and Catholic form of marriage. Consequently I was reconverted to Hinduism in 1958 … As a hindu I do not want to be questioned by any Christian authority on my personal life and matters and that I do not stand in the way of granting annulment of Catholic marriage dated 1 May 1954 of Mr. F. by Christian religious authorities.” The Rotal court considered this statement to carry weight not only in relation to force and fear, but also to simulation on respondent’s part, even though she seems to have reversed her statement in a later letter.
The overall conclusion of the Rota was that there was proof of force and grave reverential fear inflicted on the petitioner which deprived him of the benefit of internal freedom in choosing marriage and his marriage partner.
In our culture the involvement of in-laws in the lives of the newly-wed is not uncommon, and very often such involvement is the primary cause of marital breakdowns. Since marriage in our culture is considered a family or clan (tribal) affair, the role of the family in the partnership of the whole of life of the spouses cannot be left out of the juridical considerations when the validity of a concrete marriage is challenged on the basis of destructive interference on the part of family members, especially the parental control and interference in a couple’s conjugal life. What grounds of nullity can be attributed to a particular claim in regard to a marriage that is irretrievable broken down is a difficult task to be faced by the judge in a concrete case. Nevertheless, we cannot deny the possibility of destructive influence of parental interference in the married of a young couple especially when one or both spouses function under their parents’ control. The following case might shed some light on this issue.
The marriage between Vincent and Maya took place on 17 January 1979. Vincent was 35 years and Maya 24 years of age at the time of marriage. It was an arranged marriage.
The common life lasted barely eighteen days when Maya, after her husband’s departure for work in Ahmedabad, left the marital home because she could not tolerate her mother in-law’s treatment of her. Even though she returned home a few times at the orders of her husband, she left home for good when she realized that her life with her mother in-law would not become any easier. When he saw no possibility of restoring common life, Vincent petitioned the ecclesiastical tribunal of Krishnagar to declare his marriage null on grounds of “total simulation” and “exclusion of unity” on Maya’s part. But later, in a formal petition, he spoke in a general way about the grounds of simulation and force and fear. The joinder of issues was done as follows: “Whether there is evidence of nullity of marriage on grounds of simulation on the part of Maya and force and fear imposed on Vincent.” Maya was opposed to the declaration of nullity and expressed her willingness to reconcile, which Vincent rejected.
The first instance court rendered an affirmative decision on grounds of “force and fear” inflicted on Vincent, but negative on simulation. The appeal court of Calcutta overturned the affirmative decision. The Rotal Court coram Serrano had to deal only with “force and fear” ground on Vincent’s part.
In his sentence of 17 July 1992 Serrano writes eloquently on the inviolability of personal freedom in the choice of marriage and of the marriage partner (c. 219). A complete mutual self-gift through one’s consent is not possible in the presence of external pressure. Nevertheless, freedom form pressure or sufficient freedom form marriage cannot be determined a priori. The very notion of freedom is rooted in culture and it must necessarily be defined within the context of a concrete culture. Even if the notion of freedom vis-à-vis the marriage depends on the circumstances of place and persons, and it must be exercised within the realm of the family, the intervention of parents or elders can amount to violation of such a freedom. The conciliar teaching expressed in Gaudium et spes, n. 52, unequivocally upheld a person’s legitimate freedom to marry. In essence, the council stated that parents have a duty to guide their children in starting a family through prudent advice by willingly listening to them. But parents should never force either directly or indirectly their children to marry or choose their life-partner (GS, n. 52). Furthermore, the Commission for the Interpretation of the Code of Canon Law responded on 15 November 1986 that marriages entered upon by force are invalid even among non-catholics, and in so deciding the Commission implied that freedom to marry is the natural right of a person and not of only positive ecclesiastical norm (cfr. C. 1075)
Serrano argues that the above principles are particularly applicable to cultures in which marriages are arranged. He says:
The first problem which confronts us is the freedom of consent in some traditional marriage situations … Even in the West, freedom form parental and other social impositions has not been totally achieved. Moreover, instances of interference on the part of families, or even public councils in marriages which they consider to be very important simply underline the importance which marriage has in itself and not only in the cases of important persons …
The social dignity of the persons involved does have an influence on the nature of the marriage. Now if such things take place in the West, then we should not be scandalized by similar practices in more ancient and traditional societies …
Two extremes are to be avoided by those concerned with parental or family intervention in the arrangement of marriages. On the one hand, it would be too much to exclude entirely those who have by tradition been responsible for the arranging of marriages. On the other hand, we have to insist that the parties to the marriage must sincerely accept, what others have arranged for them and the arrangements should at all costs be submitted to them for their personal ratification.
Serrano, however, warns against any rash judgment concerning the negative influence of “arranged marriages.” One should be prudent in weighing the situations involving “arranged marriages” lest many marriages be declared null because of only an appearance of force. It is quite possible that persons are content with the choice they make under the direction of their parents. The criterion for determining the presence of invalidating force admitted in jurisprudence is “aversion” on the part of the person who claims to be a victim of force. “Aversion” assumes special significance because, if a mental disposition opposed to marriage is not demonstrated, it may be an indication that the person marrying is in conformity with the “journey o freedom” rather than a lack of true freedom.
In his letter, the petitioner wrote: “My marriage was on 27 January 1979. Eighteen days after the marriage, I went by myself to Ahmedabad for my work. I had told my wife Maya that I would take her there within a few days. But about one month after my departure, my wife Maya left our hose without anyone’s permission. As soon as I got this news from my house, I wrote a letter (to my wife) addressed to my father in-law’s house, instructing that as soon as she got my letter she should return to our house. When she got my letter she came back. But after 15 days, she again went away without anyone’s permission. I again wrote a letter scolding her. She again came back immediately. But this time I had written to Maya that if she left the house again without anyone’s permission, I will not accept her and that I would leave her for ever … Every year I came from Ahmedabad to Krishnagar for a month or two. Besides, Maya knows my address at Ahmedabad … But form 18 days after the marriage for six and a half years there is no news about Maya … For these reasons, I cannot accept her as my wife. Therefore, I have resolved to renounce Maya …” It is not impossible for a person who shares the petitioner’s cultural heritage to see how blind he is to the real situation faced by the respondent under his mother’s control. This becomes more evident for the testimonies of other persons.
The respondent presents her side of the story. She reports: “Marriage was my first and arranged … First, Vincent’s parents paid a visit to my father’s house and on my consent, they brought the groom for a visit … I Married him freely … He freely consented … We were happy. After 20 days, he left for Ahmedabad … he took leave peacefully. He left for service. I finally left my in-law’s place after six months on account of ill-treatment by my mother in-law. I used to write to my husband, but he would not believe me … I still pray and hope to be reunited with my husband …”.
Father Cajetan Bishwas, SDB, a qualified witness, described the manner in which the marriage was planned and the events that followed the marriage:
“After the marriage, Vincent remained with Maya, his wife, for a short period. After that Vincent left for his work and then Maya remained with her mother in-law … At this period, all the information regarding Maya was given to Vincent by his mother. As far as I know, a negative picture of Maya was presented to her husband Vincent. The initial stages of their marriage they were happy and they loved each other. Due to the family dispute with the mother in-law, the two married girls left home.”
Father Bishwas adds: “The father of Maya … approached me to settle the dispute, but the mother in-law of Maya did not receive me for the negotiation. She was very rude and behaved in an unbecoming manner toward Mr. Gomes and me.”
Maya adds the following to her story: “Yes [that is, I knew my husband] one year during the engagement. I liked him and he liked me … His mother told my parents that I being educated, I would go and live with him in Ahmedabad … He loved me much … she (mother in-law) reproached me. She did not show me how to do things. She scolded me. She struck me, she hit me, when I displeased her. She made life very difficult for me, did not feed me well. I wrote that to my husband. He answered, ‘I do not believe that my mother makes life difficult for you’. He believed his mother … We tried several times (reconciliation). The mother in-law was opposed to it.”
In his summary of the situation Serrano concludes that the petitioner always deferred to the expectations of his parents, particularly those of his mother. He acceded to the choice made by his parents on his behalf and ratified it.
In regard to the petitioner’s claim that he was a victim of force ad fear, he wrote in his first letter: “So my father was enraged and told my ‘if you don’t marry this girl either I will commit suicide or I will leave you all’. So I was compelled to marry Maya to save my father form committing suicide.”
But there was no confirmation of this claim form anyone else. Therefore, the Rotal decision was negative.
Are there any peculiar cultural factors that could have affected the consent of the parties in this marriage? For example, there is some evidence concerning the overly dependent behaviour of the petitioner. Even the Rotal court felt that the petitioner deferred to his parents on practically all matters. Was it possible that this person truly lacked the discretion of judgement at the time of contracting marriage? Was it possible that he merely went along with the choice his parents had made for him without making the choice his life-mate his own? Is it possible to consider the denial of the right of bonum coniugum to the respondent due to the maltreatment she received for her mother in-law, in which case the petitioner displayed his total impotence to intervene, thus confirming his own incapacity to honor the respondent’s right to emotional, psychological and physical wellbeing? In light of these questions, could the decision have been different if the woman had presented the petition on the basis of petitioner’s incapacity to consent? In light of the peculiarity of our culture, these questions have a legitimate foundation and, in cases of this kind, these questions must be probed in order to arrive at a just and equitable resolution of the problem facing the tribunals.
2.3 – System of Arranged/Proposed Marriage
Marriage being primarily a family affair, most marriages in India are either arranged or proposed. According to this system, parents or guardians initiate and negotiate all aspects of their children’s marriage. We are well-aware of the fact that in our culture, even today, children generally leave the choice of their marriage partners to their parent’s decision with the understanding that their parents know their children better and have their well-being at heart. In some instances even grandparents or others relatives may get involved in the process. Although some parents may take into consideration their children’s choice of spouse, most do not.
These days many marriages are arranged either by their parents or by parties themselves through professional brokers, matchmaking agencies, or through newspapers advertisements. The main function of a marriage-broker is to gather information about the person sought after and about his/her family. Such information usually includes particulars about that person’s caste, employment status, family’s social and economic condition, religion, age, character (any indication of intimate friendship), dowry, etc. This kind of third party involvement in a person’s marriage is not without risks, especially of misrepresentation and deception both in regards to the status of the families and the qualities of the party concerned. Not infrequently the person described by the broker may in fact be different from the real one.
It is true that the system of arranged/proposed marriage has its origin in antiquity. It is derived from ancestral traditions and customs. In itself this system can be considered practical in given cultural contexts. But it can and does have the potential for serious negative consequences as far as matrimonial consent is concerned when a person’s freedom of choice is substantially restricted, when the consent of the parties is overridden by that of the parents, when the essential elements of its object are replaced by non-essential ones, and finally when the personal and interpersonal nature of the marital partnership is rendered practically impossible under the pretext of family’s or clan’s survival.
2.4 – Significant Values
In our culture, certain values are highly esteemed as being essential within the context of arranged marriages. In some instances these values may be of such importance that the validity of a marriage itself may hinge on their presence or absence. Family status or prestige, caste, age, virginity, fertility, dowry, etc., are some of those values cherished by our culture.
2.4.1 – Family status or prestige
We know quite well what role a person’s social and economic status plays in arranged marriages. Freedom form social stigma, criminal background and moral behaviour of the family members, history of any contagious disease, alcoholism, etc., do assume great value. Parents desire to see their child became a member of a reputable and morally upright family. This is particularly true on the part of the woman’s parents who desire to acquire a husband for their daughter with high personal and familial status. What is to be noted in the requirement of family’s social and/or economic status is the importance attached to it by the parents. The actual status of a family is likely to enter into the consent of the parents, and consequently, into the consent of the parties as well. One should not be surprised to see, in some instances, this value emerge as the principal reason for seeking a declaration of nullity of a marriage.
On 27 January 1994 a case, originating in Kerala, was judged at the Rota on grounds of “error of quality” (c. 1097, §2) and “fraud” (1098). In brief, following are the facts of the case. The marriage in question was celebrated on 27 January 1985. According to local custom, it was a “proposed marriage.” At the time the man was 30 years and the woman was 29 years of age respectively. The man was working in the Gulf at the time. The parties met for the first time on 7 June 1984. Two months after this meeting they communicated with each other through correspondence. There was no courtship as such. O 24 January 1985, the man returned from the Gulf to his native place and the marriage was celebrated on the 27th of the same month. Within three months after the wedding the woman had to be admitted to a psychiatric hospital. The man could not accept this because his intention was to marry a person of sound mental health, and he had in fact made inquiries about it before the marriage. But after hearing form the woman’s brother that she had been under psychiatric care prior to marriage, he definitively terminated conjugal life. On 19 March 1986, the man petitioned the ecclesiastical tribunal to declare his marriage null on two grounds, namely “error of quality of the respondent’s person” and “fraud perpetrated on him by the respondent.” The first instance decision of 16 July 1987 was negative on both grounds, but the appeal tribunal overturned that decision on 10 November 1988. The Rotal decision was affirmative only on “error of quality” ground.
According to the evidence presented in this case, the respondent had suffered from typhoid fever in 1976 while she was still in college, and she was hospitalized for six weeks. It seems that the medication administered to her during this illness had affected her physically and mentally. Medical records indicated that she was treated by a psychiatrist for depression and hallucinations. In fact, she was treated for “schizophrenia” or “schizophreniform psychosis.” On the basis of this evidence, the Rotal court concluded that the respondent certainly suffered from mental illness and was subject to psychiatric care prior to marriage. However, the court could not ascertain if there was any recurrence of psychotic episodes between 1976 and 1985. It was certain, however, that she had to be admitted to the psychiatric hospital 3 months after the marriage.
The Rotal court also concluded that for the petitioner the mental health of the respondent was very important. When he heard, prior to marriage, of respondent’s mental illness, he initiated investigation about the matter, but did not receive sufficient information about it either from the respondent or from her family. In other words, he went into marriage believing that the respondent enjoued sound mental health. Therefore, as soon as he heard form respondent’s brother that she had suffered from mental illness prior to marriage, the petitioner terminate conjugal life. The court considered this fact as evidence of petitioner’s intention to marry a person of sound mental health.
But the court’s conclusion in regard to the ground of dolus was negative. While the second instance judges were of the opinion that the family members of the respondent “feared that the proposed
marriage might be cancelled if he [the petitioner] knew about her [respondent’s] psychiatric treatment […]; therefore, it was a case of positive and deliberate concealing of the truth […]. It was a kind of fraud and E. was deceived.” The first instance court, which had dismissed the case with a negative decision on both grounds, had stated that it could not be positively concluded that there was “fraud in concealing the quality of the person B.” in support of this conclusion, Rotal judges recall that “more than six months were given from the proposal to the actual celebration of marriage. Even after the rumor, there remained three months to inquire about.” To this they add: “Indeed neither the respondent nor her relatives thought that it was necessary to disclose to the petitioner the typhoid attack, while they considered the symptoms of psychic pathology to be only secondary and transitory, and therefore, of little importance.” If the Rotal court were to carefully investigate the cultural importance of mental health, especially in a bride-to-be girl, in arranged or proposed marriages in our country, it might have discovered that the conclusion of the second instance court was closer to the truth than that of the first instance about the possibility of cancellation of the marriage. In other words, if either the respondent or her family were to reveal the fact of her psychiatric treatment, the proposed marriage would have been certainly cancelled as stated by the second instance judges. Mental health is a quality which is highly valued in our culture. Because of its cultural importance, concealment of the fact of mental illness is not that uncommon in our society. This case could have been examined under consensual incapacity grounds of c. 1095, 2° and 3°, but the Rotal court deliberately bypassed this possibility mainly because these grounds had not been initially proposed.
The quality of mental health was one of the issues considered in another case judged coram Pompedda on 2 March 1994. The marriage in this case lasted only three months because of hospitalization of the woman for serious mental problems. On 29 March 1985, the man requested the tribunal of Trichur to declare his marriage null on grounds of “insanity” (amentia) on the woman’s part. The first instance decision was negative and it was confirmed by the appeal tribunal of Ernakulam. The man placed recourse before the Rota for a new hearing of the case mainly on grounds of denial of the right of defense because his case was not judged on the ground of lack of discretion of judgement as requested, whereas the tribunal had judged the case on the ground of “mental insanity.” The Rotal court was also asked to examine the case on “error of quality directly and principally intended” on the petitioner’s part as if in first instance. The Rotal court rejected the request for a new hearing of the case on the ground of “mental insanity” because it felt that the lower courts had already legitimately addressed the issue. The court also concluded that there was no proof of a positive act of the will on the petitioner’s part by which he had “directly and principally intended” the quality of mental health in his would-be spouse. Therefore, the decision of the Rota was negative. There is no indication whatsoever in this sentence by Pompedda of any effort to give careful consideration to the socio-cultural aspects of the case in both aspects, namely the way the local tribal assessed the case on the ground of “mental insanity” and the possibility of cultural influence on the principle of “error of quality” of c. 1097, §2.
A case from Mangalore recently received a negative decision on dolus involving a claim of leprosy. The marriage in question was celebrated on 28 December 1967. Because of the man’s overseas employment, the common life was very brief. It lasted only three weeks. In six months, all communications between the parties ceased and all efforts on the respondent’s part to re-establish common life turned futile. In March of 1985, that is nearly 18 years after the wedding, the man petitioned the tribunal of Mangalore to declare his marriage null on grounds of fraud (dolus) and error of quality. These grounds were based on his claim that the respondent had leprosy which she fraudulently concealed from him before the marriage. The first instance decision was affirmative on both grounds, which the appeal court of Bangalore confirmed by decree.
The respondent placed recourse before the Rota for a new hearing of the case claiming that the preceding courts had erred in identifying her skin-condition as leprosy as well as in illegitimately applying the norm of c. 1098 of the now Code to a marriage which was celebrated long before it came into effect. On 21 October 1988, the Rotal court coram Bruno granted a new hearing to the case as requested by the respondent. This decision was based on three legal and factual grounds.
First, the court of first instance, and subsequently the appeal tribunal, erred in the application of c. 1098 to a marriage which was celebrated long before the promulgation of the 1983 Code. This implied that the caput of deceit is of merely ecclesiastical law and, hence, not retroactive.
Second, the court found no factual basis of deception on the respondent’s part because “the woman was calm when she learnt from the medical report that she could proceed with the marriage despite the fact that she suffered from the skin disease, which she still has […]. It is probably an incurable disease whose cause is still unknown […].” In other words, the Rotal court admitted that the respondent certainly suffered for a serious disease. Then why didn’t she disclose it to the petitioner since leprosy is not only a physical ailment but also a serious social stigma within the community where this marriage took place? Bruno’s court said: “[…] considering all circumstances of the celebration of marriage, among which is the custom of proposing and celebrating marriages among the Indian people in a special way, and after examining the declarations of the petitioner and witnesses, it seems evident that there was not sufficient time and opportunity to discuss the disease of the respondent.” In other words, it is assumed here that the respondent did not have time to disclose to the petitioner the presence of the skin disease she was afflicted with because of the arranged marriage situation. Therefore, there was no deception on her part!
Third, in regard to “error of quality” the court argued that there was no evidence that the petitioner “directly and principally intended” the quality of being immune for leprosy or integrity of the skin, as required by c. 1097, §2. The possibility of a culturally determined implicit intention about the quality in question seems to have received no consideration whatsoever in this decision.
Nearly six years after the above decree was issued granting the new hearing, the Rotal court proceeded to pronounce its decision only on “error of quality” ground while declaring the norm of c. 1098 to be or merely ecclesiastical law and not applicable to the marriage case in question. The court found the petitioner non-credible. In its estimation, the evidence, both testimonial and medical, confirmed that the skin disease afflicting the respondent certainly was not leprosy. Furthermore, the alleged intention of the petitioner to marry a person free from leprosy was considered by the judges as merely interpretative, that is, superimposed on the consent after the marriage. In other words, there was no evidence in support of his claim that he directly and principally intended the quality of immunity from leprosy on the respondent’s part. All the evidence analyzed in the sentence by Bruno is in support of the decision drawn therefrom. Therefore, the sentence of 25 March 1994 was negative.
2.4.2 – Cast
In caste-restricted marriages personal choice of a marriage partner has very little scope. Parents make sure that their child has a partner who belongs to the same caste or tribe. In other words, the decision of the parents, which children are expected to respect, is already determined and conditioned by the element of caste or tribe. Therefore, even if a man and a woman belonging to different castes were to fall in love, their parents generally would not consent to their marriage. This situation is likely to affect the eventual consent children proffer. It is not uncommon to find in our culture young people who are in love elope and get married outside their family or caste systems in order to avoid restrictions placed on inter-caste or inter-tribe marriages. It is quite possible that some of these marital relationships entered upon in such hasty circumstances fail. A critical study of such cases may reveal that the marital unions entered upon in such circumstances were devoid of adequate reflection and deliberation concerning the essential rights and duties of marriage.
2.4.3 – Age
Another significant value which enters into the choice of marriage partners in our culture is age. As a rule, the proposed bride must be younger than the prospective groom. The rationale underlying this requirement seems to imply that in cultures which demand this disparity on age husband assumes the responsibilities for his wife who is transferred from her father’s authority to his care. This responsibility presupposes sufficient maturity on husband’s part and higher age seems to be an assurance of it.
There is another element of age which has a bearing on arranged marriages. We are quite aware of the fact that it becomes very difficult, particularly for a woman, to find a suitable match after certain age. The age requirement is considered so important that parents or marriage brokers often resort to fraud in order to misrepresent or conceal the real age of the girl or the boy, and this certainly has serious juridic consequences for matrimonial consent.
An important case involving the issue of age was judged on 6 February 1992 at the Rota coram Pompedda. It involved a marriage celebrated between two Syro-Malabar Catholics within the territory
of the Latin rite diocese of Calicut on 19 June 1983. Within a few months after the wedding, the woman presented to the bishop of Calicut a petition for declaration of nullity of her marriage alleging that she and been deceived in regard to the person of her spouse. The following are the facts of the case on which the affirmative decision was based.
At the time of marriage, the woman was 25 years of age and wanted to marry a man about 30 years old, endowed with the qualities of integrity and honesty, otherwise she would not marry. Her deposition reads: “I was born on 11 January 1959 and wanted to marry someone who was not more than four or five years older to me. I was made to believe that the respondent had all three qualities of an ideal husband – character, education, health and enough money. And I married this man who was supposed to have been 30 years of age, for I was led to believe that he was born on 21 May 1953.” From all the evidence presented to the court, it was certain that the petitioner had clearly demanded, prior to completion of all arrangements for the marriage, that the man must be 30 or at the most 31 years of age. The respondent, his parents and two of his uncles were informed of this stipulation. To this effect a baptismal certificate with the date of 21 May 1953 was produced.
Petitioner’s father testified that they had demanded the presence in the respondent of the qualities of education, age, health, etc. One of the respondent’s aunts assured them that “he was 29-30 years of age; had completed pre-university studies, had a property of 5 acres … as well as business ….” Even the priest, who officiated at the wedding, confirmed that the said age was a requirement of the Petitioner and her family.
It was clear to the court that the petitioner had agreed to marry the man only because he was in fact endowed with the particular qualities. In other words, she consented to marry him believing he had all the qualities she desired to find in him.
Soon after the celebration of marriage, the truth about the man began to unravel. Within two months, the petitioner found in a diary of the respondent that the actual date of his birth was 21 May 1945. This date made him actually 13 ½ years older than the petitioner. In order to hide this actual age difference, respondent’s people had bribed the Notary to falsify the date on the certificate which the parish priest had signed without checking its details. It seems after the marriage, the falsified certificate was retrieved by one of respondent’s uncles form the priest who officiated at the wedding and was destroyed. Bothe the respondent and his uncle seem to have admitted this fact before the petitioner and her parents. The priest who celebrated the wedding confirmed this: “It has been taken away by a relative of the bridegroom promising to return it the following day. But they never returned it. I do not think it is an authentic certificate. Probably the parish priest did not check it up. But I cannot vouch for it … I should think so because they did not bring back the certificate.”
The Rotal court fully agreed with the observations of the appealed sentence: “So is clear the certificate the Defendant produced was a false one and the Plaintiff says she married on the strength of that
certificate and would not have married if the correct date of birth was known… There are not many witnesses in this case. The Defendant and his people have not appeared in the court. But the points are definitively proved even though the false certificate is not available. The sworn testimony of the Vicar of Kanhagad and the certificate he has given are enough to prove it.”
It also became evident to the Petitioner that even before the wedding the respondent suffered for serious mental depression, and during the episodes of disturbance he would cry like a baby and throw himself on the bed like a block of wood. Besides metal illness he was also suffering from unspecified physical ailments.
In the face of this evidence, the Rotal court concluded: “From the acts of the case it has been clearly established that the respondent is different as for as the character, morality and civil status is concerned, from the one whom the woman had known and intended to marry. The Petitioner was therefore led into serious error and it was only after the wedding that the respondent was found to lack the qualities which she had directly and principally required in her future spouse in order to establish a dignified and peaceful married life. For this reason she was convinced that she would not live with the respondent. Certainly she would not have married the respondent if she had known his personality.”
This case certainly confirms the fact that the nature and importance attributed to certain qualities by persons marrying are culture-bound, and often such qualities are explicitly, as in this case, or implicitly desired by the parties and their families. In cases of this kind, one must make genuine efforts to understand the nature and importance attached to qualities of the kind identified in this case within a particular cultural context and also carefully evaluate the actual intention the person and of his or her family in regard to these qualities.
It is quite possible that such qualities may not be considered important in particular instances. For example, in a case form Verapoly, judged at the Rota on 30 January 1992 coram Stankiewicz, one of the alleged grounds of nullity was “error of quality concerning the age of the woman respondent” induced by fraud. The Petitioner I this case was a man who wanted to marry a woman who was “at least three years younger to him.” This marriage was arranged through a lady marriage broker. This lady had known of the requirement of age stipulated by the man, therefore she in fact told the family of the respondent that the man would not marry her if he found out that the bride was not younger to him at least by three years. In light of this information, the family of the respondent altered her baptismal certificate in order to make her appear to have been born in 1956 while in fact she was born in 1953. In its negative decision, the first instance tribunal of Verapoly, did not consider this factor to be a serious or quasi-essential matter. Therefore, the said tribunal concluded: “The fact of the wife being older than her husband does not in any way affect the well-being of the partners.” But the Rotal court reasoned differently by saying, “In the society in which these spouses live, the situation of the wife being older
than the husband is considered on undesirable thing.” Nevertheless, the court ruled that there was no evidence to the effect that the Petitioner had directly and principally intended this quality, or its absence had seriously affected conjugal life, because the petitioner himself said: “If she was mentally normal, I would not have pressed the question of age.” In other words, the quality of age was not of much importance to the person concerned. Therefore, it is very important to determine the relevance of age factor in each marriage case even though the value attached to it by the culture may render it desirable for the people influence by it.
It is also important to note the method through which Pompedda’s turnus arrived at the affirmative decision. It appears form Pompedda’s sentence that the first instance court declared the marriage null on the basis of “deceit” (“dolus”) (c. 1098) related to the age of the respondent. Whereas, the Rotal court integrated the principles of both grounds “fraud” and “error of quality,” and pronounced an affirmative decision on “error of quality” induced by fraud. According to Pompedda’s opinion, the norm of c. 1098 on the invalidating effect of dolus on matrimonial consent is of positive law, and therefore, according to c. 9, it is applicable only to marriages celebrated after 27 November 1983 when the revised Code came into effect. This marriage was celebrated on 19 June 1983, that is, several months prior to the above date. Therefore, the canon on dolus could not be applied to the case judged by the turnus. But Pompedda’s conclusion identifies the petitioner’s error concerning the respondent’s age and other qualities being deliberately induced by the respondent and his family in order to effect the marriage, but at the same time the “qualities” were already directly and principally intended by the petitioner. As I understand Pompedda’s sentence, the turnus seems to have made a most reasonable decision by applying the juridic principles that are intrinsically related. In view of his positionon the nature and non-retroactivity of c. 1098, Pompedda could not have argued in favour of nullity of the marriage solely on the basis of “fraud.” Through his integrated method, he has certainly rendered his sentence most equitable.
The fact as presented in this case could have easily justified admission of four grounds of nullity, namely error of quality (c. 1097, §2), fraud (c. 1098) and condition (c. 1102) on petitioner’s part, and incapacity to consent (c. 1095) on respondent’s part. But it seems that the only ground originally determined and judged through the process was “fraud” which, the Rotal court coram Pompedda felt, could not be sustained on its own because of the problem of its “retroactivity.” Nor could the court introduce the incapacity ground for lack of cooperation from the respondent. As I said above, the decision of the court was “most equitable” because there was proof of nullity of marriage but the difficulty centered mainly around the most appropriate caput to fit the case. And Pompedda’s furnus considered integrating the principal elements of c. 1097 §2 and 1098. This Rotal decision exemplifies genuine application of the principle of the principle of equity to cases in which the faithful may suffer serious injustice if tribunals indulge in quibbling over titles or mere words of the grounds while neglecting the facts.
2.4.4 – Virginity
In a case form Dinajpur, India, judged at the Rota on 21 June 1941 coram Heard, the petitioner, a recent convert to the Catholic faith at the time of marriage, claimed that his prevalent intention was to marry according to the local customs, that is, he intended to marry a virgin. The girl was in fact pregnant for someone else at the time of marriage, and the evidence supported his claim. The court pronounced an affirmative decision on grounds of error of quality redounding to error of person.
The above case is not an exception. The cultural expectation of a bride being a virgin at the time of marriage is deeply rooted in the psyche of every ethnic or tribal group in India. In other words, virginity of the bride is a cultural requirement, and consequently, it invariably enters into the matrimonial consent of the parties. Because of the value attributed to virginity, people generally seek information about the girl’s past friendships particularly with boys. Even rumors of sexual misconduct are likely to make it extremely difficult for a girl to find a suitable partner within her community. And such a situation is certainly not without serious consequences for matrimonial consent.
On 28 November 1990, the Rotal court coram Funghini dealt with a case from Bangalore in which the principal ground was “error of quality redounding to error of person.” In May of 1978, the tribunal of Bangalore gave an affirmative decision in the case, but the appeal tribunal of Madras-Mylapore, without conducting any further inquiry, overturned that decision on 30 October 1978. The Rotal decision was negative as well. In order to appreciate any critique of Funghini’s sentence, one must first look at the facts as found in it.
First of all, in Funghini’s sentence we read: “The marriage arrangement in this case was amazingly strange even if one were to consider it within the context of local customs. What emerges for it is the deception of the man rather than error of quality principally intended.” In other words, deceit was certainly preset in this case and it is obvious form the following facts.
The respondent was residing at her married sister’s house in Bangalore while she was looking for a job in the city. During this time her brother-in-law enticed her into sexual intimacy and she became pregnant. Through a marriage broker, who was known also to the petitioner’s parents, the brother-in-law arranged for the marriage on behalf of the respondent. The petitioner agreed to marry the respondent, but he could not do so immediately because of financial reasons. The brother-in-law was quick to offer him all the help he needed so that the marriage cold be celebrated within one month. He saw the respondent only on the engagement day, that was 15 days before the wedding.
The petitioner had absolutely no knowledge of what had transpired between the respondent and her brother-in-law. One month after the wedding, the respondent informed the petitioner’s mother that she was pregnant. At this time the petitioner had not noticed any external sign of pregnancy. Four months and twenty days after the wedding, the respondent gave birth to a baby girl of normal development. Immediately thereafter, she and the baby were taken to her sister’s place never to return to the petitioner again.
The evidence clearly indicated that the petitioner was deceived by both the respondent’s brother-in-law and the marriage broker. According to the respondent’s own testimony, she did not want to marry, but in our culture where girls in her situation find it almost impossible to marry, she cooperated with her brother-in-law’s plan. But the courts never followed up on this claim of the respondent.
In his sentence, Funghini repeatedly returns to his argument that the petitioner never expressly stated that he wanted to marry a virgin or directly and principally intended the quality of virginity before the person of the respondent. Even though Funghini says: “Error therefore, must concern a quality, which truly influences in determining a certain person, i.e., about qualities ‘which of themselves, that is to say, in the society we live in, are highly valued and define persons’.” In his evaluation of the facts there is little consideration given to this aspect. In a sense, it is also strange that the Rotal court does not seem to make the distinction between a “non-virgin” and a “pregnant” person. These two are substantially distinct qualities. The latter in fact changes even the physical identity of the person. Since in our culture where “virginity” in a marriageable girl is highly valued, there is a human presumption that every young man preparing to marry intends to wed a virgin, and more so a non-pregnant virgin! The Rotal court does not refer to these cultural aspects of the situation and fails to examine carefully the culturally influenced mental disposition of the petitioner in regard to the “non-virgin” and “pregnant” condition of the respondent. In my opinion, the judges should have studied more in-depth the cultural aspects of this case as well as the mental disposition of the petitioner both before and after the wedding to determine to what extent his intention to marry a “non-pregnant” girl was implicit in that disposition. Furthermore, this case could have been judged also on grounds of “force and fear,” that is, “reverential fear” on the respondent’s part who had clearly admitted in her deposition that she did not want to marry the petitioner for reasons of her own personal condition.
2.4.5 – Dowry
We know that in our country the dowry system is illegal, but it prevails with equal force throughout the country under the guise of “gift.” The parents’ preoccupation is to arrange a marriage for their daughter before it is too late in terms of her age. The amount of dowry of course depends largely on the social and economic status of the groom and his family. Richer and more prestigious the groom and his family, larger is the dowry!
In its positive aspects, dowry is likely to provide self-respect, psychological security ad financial support for the wife and children in case of husband’s death. But in many instances its disadvantages certainly outweigh its seemingly positive aspects. Normally a girl finds it very difficult to go into marriage without a suitable dowry, because she knows well that an inadequate dowry might cause serious friction later within the family. If the dowry demanded by groom’s parents cannot be secured, the marriage might be delayed or canceled. If a poor family finds for their daughter a match who is willing to accept low dowry there is always the possibility for them to impose the marriage agreement of their choice. Pressure is even greater if there are many daughters in such a family. Here again the filial piety toward parents may turn out to be the deciding factor in the choice of the girl’s life-partner. To what extent such a choice is
free would depend on the concrete circumstances in which it is made, and this factor should be carefully investigated in every case involving controversies surrounding dowry. The issue of dowry may lead to defective consent due to simulation, condition, etc. Again it is important to consider seriously these issues.
2.5 – Conversion
Inter-religious marriages are not uncommon in our country. In such marriages, a Catholic is involved with a non-Catholic or an unbaptized person. Usually inter-religious marriages take place outside the normal socio-religious contexts. Families of both parties avoid getting involved in any arrangements. But there are instances in which the non-Catholic party is morally compelled to convert to the Catholic faith prior to the wedding. Even though some unions entered into under such circumstances may survive the intense socio-cultural pressures, not infrequently serious problems surface in married life. In marriages of this kind, many girls who convert are the ones who become victims of familial and social ostracism. Often they are not even aware of the social and legal consequences of their act of conversion. In fact most people are unaware of the consequences of conversion. Its consequences affect not only the spiritual life of the convert, but also his or her social life and status. It has direct bearing on family life, property matters, inheritance, etc. Even the very law that governs the person will be changed after conversion. For example, a Hindu who becomes a Christian is severed from the coparcenary (joint-family system), and is governed thenceforth by the Indian succession act, unless the person opts to be governed by Hindu law. Hurriedly conferred baptism may in fact lack the requisite intention for the reception of the sacrament, and may demonstrate the fact that persons concerned might not have had the proper intention for the reception of baptism and adequate discretion concerning the familial, social and legal consequences of the conversion relative to the partnership of the whole of life of the spouses.
Sugeetha, a Hindu by religion, met Mark a Catholic, in 1984, and from then on a love relationship developed between them. The day before the wedding, Mark went to Salem, where Sugeetha was studying, and (he said at her request, while she claimed against her will) brought her to Madras, the place of his residence. On the morning of 11 July 1987, Sugeetha was baptized and confirmed by the parish priest of the place and their wedding was celebrated the same day. Parents of both parties were unaware of the wedding. At the time of marriage, Mark was 22 years and Sugeetha was about 20 years of age respectively. Sugeetha was in fact in the middle of her studies when the marriage took place. In fact, it seems that Sugeetha’s parents had, according to their custom, already arranged to have her wed her uncle.
Even though the marriage was consummated, their life together did not last beyond the very first week, when Mark brought Sugeetha to her parental home. Thereafter there was no communication between the two.
In less than a month, Sugeetha presented a petition before the Archbishop of Madres accusing her marriage of nullity without specifying any grounds. On 26 August 1987, the tribunal of Madras-Mylapore formulated the doubts as follows: “Whether the nullity of Marriage in this case is evident on the grounds of abduction, deceit, force, and invalid administration of the Sacrament of Baptism; these
causes would bring about the defect of consent n the plaintiff, lastly, lack of jurisdiction in the solemnization of marriage would render the marriage null and void?” On 12 February 1988, the tribunal pronounced an affirmative decision in the following words: “having moral certitude about dolus employed by the respondent in this case … we declare this marriage null and void resting on canon 1098.” It seems that tribunal itself appealed to the Rota against its own decision.
The Rotal turnus coram Burke decided to submit the case to an ordinary judicial examination, and through a descript obtained from the Dean of the Rota, the ground of lack of dispensation form disparity of worship and lack of discretion of judgement in the woman-petitioner were added to be dealt with as if in first instance, and on 13 February 1990, the doubt was formulated as follows: “whether there is proof of nullity of marriage in the case :1) due to invalid dispensation from disparity of worship; 2) due to lack of discretion of judgement in the woman-petitioner, as if in first instance, and insofar as the decision is negative subordinately, 3) due to fraudulently induced error in the petitioner according to c. 1098 CIC as if in second instance.” Without conducting any supplementary instruction of the case the Rotal court pronounced a negative decision on all grounds.
The superior turnus determined the doubt as follows: “Whether there is proof of nullity of marriage in the case, 1) due to fraudulently induced error in the woman in the third instance, and 2) due to lack of discretion of judgement on the part of the woman in second instance […], in other words, ‘whether the Rotal sentence of 25 October 1990 coram Burke should be confirmed or overturned in the case’.” The turnus obtained testimonies form two more witnesses and an expertise on petitioner’s psychological condition at the time of marriage. As a result the preceding decision coram Burke was overturned by an affirmative decision on grounds of lack of discretion of judgement caused by respondent’s immaturity and infatuation. The dolus ground was dismissed with a negative decision.
Culture is an expression of the collective human experiences of a particular community. The traditions, customs, mores, institutions, beliefs, values, rituals, etc., form the content of a particular culture. These elements of a culture play a formative and normative role in shaping and influencing the behaviour of every member of the community, including a person’s perception, conceptualization and evaluation of a given reality. There can be no doubt that culture has a dynamic influence on human personality.
Law is a human tool used in ordering human relations in order to foster and promote the good of a community from and for which it is legitimately enacted. Because of its transcendent finality, ecclesial law is unique in its nature and purpose. The universal scope of this law and its redemptive role, necessitate an equitable approach towards its interpretation and application. In other words, ecclesial law must be interpreted and applied by taking into consideration all relevant circumstances of the place, persons and time. This means that personal and cultural contexts necessarily enter into the hermeneutics of canonical interpretation.
One who intends to interpret and apply the law within the context of a particular culture, must first have a genuine grasp of that culture. Without such an understanding, it is almost impossible to personalize the meaning of law as well as to appreciate someone else’s culture. Furthermore, a good interpreter not only knows personal culture, but also has a good grasp of the law and is equipped with the scientific skills necessary for its just and equitable interpretation. There is no circumventing the principal hermeneutical principle that ecclesiastical laws “are to be understood in accord with the proper meaning of the words considered in their text and context” (c. 17). Moreover, if an interpreter and/or a practitioner of law were to interpret and apply the law for others, it is extremely important for that person to know their culture, either by personally learning their language and way of life, or by being sufficiently informed of all relevant aspects of the culture from someone truly knowledgeable about it. Without this knowledge any attempt at applying the law to particular cases will not be just and equitable.
Matrimonial consent is a human act, an act of a human person, who is a product of particular socio-cultural environment. It is an undeniable fact that cultural factors impinge on this human act, both in its subjective and objective aspects. Its effects are certainly variable depending on the nature of the particular variable involved and the strength of its influence on the person concerned. Each concrete case presents itself as unique and demands of the interpreter a unique response. Hence, even in determining appropriate grounds of nullity to fit the facts, and finally to derive moral certitude form those facts, a judge must carefully take into consideration the cultural context of the case in question.
The socio-cultural and economic situations of India are presently undergoing rapid changes and the marriage tribunals are constantly faced with new realities. Today more than ever before, young people are adopting values and entering into relationships which may not fit the traditional marital unions. In making their own decisions, young people may choose life-partnerships that may not survive outside the context of tightly knit family relationships. Not infrequently, such decisions may be made without much deliberation concerning the rights and duties which constitute the essence of a life-long relationship, that is marriage. These realities call for new approaches on tribunals’ part to the assessment of marriage cases which seem to fall outside the traditional grounds of nullity. The new developments occurring within and outside our socio-cultural and familial milieu call for serious research and study of marital relationships as they are chosen and lived by our young people today.
A good interpreter of canon law can never lose sight of the fact that there are certain non-negotiable, the elements which constitute the foundation of our Catholic faith and heritage declared in ecclesial law, and these are to be diligently respected, upheld, and promoted. Therefore, a mature cultural approach to the interpretation and application of law is the only just and equitable approach, and only such an approach is more likely to enhance the splendor and meaning of law than a purely scientific, legalistic, and juridic approach.