TOWARDS AN INDIAN MATRIMONIAL JURISPRUDENCE: FROM THE PERSPECTIVE OF TRIBAL MARRIAGES
(Fr. Jos de Cuyper)
HISTORICAL PERSPECTIVE
If today the Canon Law Society of India can with genuine pride look back at ten years of steady growth, resulting in a membership of 160 canonists, the merits go no doubt to the vision and inspiring leadership of Oswald Cardinal Gracias, and his team of close collaborators. To this can be added that the way had been prepared ten years earlier, when the Bombay Archdiocese hosted two courses in Canon law in 1977 at the same venue where today the 10th General Conference of the Canon Law Society of India has been held, St. Pius X Seminary, Goregaon.
The idea of these courses was conceived by the writer of this note, when he attended the annual course on Marriage Jurisprudence at the Gregorian University, Rome, in 1975. Father Gerald Taylor WF, professor at the Regional Seminary of Tabora, Tanzania, was a participant, already known for this wide experience of Marriage Tribunals in mission lands. Hence Rev. Eustace D’Lima, the then secretary of Valerian Cardinal Gracias, invited Fr. G. Taylor to conduct a course from January 30 till February 25, 1977. There were sixty participants hailing form 29 dioceses in India. Fr. G. Taylor was ably assisted by Mgr. W. Nazareth, Vicar General of Bombay and the undersigned. Fr. Bernard Rodricks saw to all other needs. The success of this course prompted the organization of a second course from 11 to 20 July the same year, with 49 participants from 28 dioceses. Two eminent canonists Fr. Peter Huizing s.j., relator of the subcommission on marriage preparing the new code, and Mgr. Jose M. Serrano Ruiz, Rotal judge, lectured respectively on the draft of the new code and on ‘Values in the Formation of Christian Marriage’ (Vidyajyoti, 1978, pp. 150).
During these courses reports of 43 dioceses gave some idea of the functioning of marriage tribunals in India at that time. Only 19 were functioning, having 43 qualified personnel and handling an average of 37 nullity and 27 non-consummation cases per year. It dawned on all how inadequate was the functioning of the tribunals; care and concern for numerous irregular situations, in which for many relief could be offered in accordance with law, was actually inexistent. Consequently the participants made the following recommendations to the CBCI.
– The need of training adequate qualified personnel;
– The setting up of Interdiocesan/Regional Tribunals, which would serve dioceses without personnel;
– The organizing of similar training sessions on an all-India or regional level.
From information gathered so far two training courses of one month duration were held at Patna in 1978-1979. Shillong had twice a fortnight course. Cardinal Oswald Gracias conducted several such courses; at a recent one in Mumbai 40 canonists benefited from inputs by Fr. A. Mendonca (13-18 October 1997).
A faculty of Canon Law has been established at St. Peter’s Regional Seminary, Bangalore, thus facilitating priests to quality in Canon Law. More priests have been sent for studies abroad.
Fr. G. Taylor provided Indian tribunals and priests in the pastoral ministry with two valuable books, ‘Parish Priests and Marriage Cases’ (2nd ed., revised in accordance with the New Code), and ‘Catholic Marriage Tribunal Procedure’, both published by T.P.I., Bangalore. During their pastoral year senior seminarians will profit immensely form the perusal of the first book.
Several Regional Bishops’ Councils have set up Interdiocesan/ Regional Tribunals: Agra for the U.P. and Rajasthan, Bihar cum Orissa, Gujarat.
A recent survey shows how Kerala has a well organized tribunal structure with an adequate number of qualified personnel. The most active Tribunal is that of Mumbai, which handles some 150 marriage cases every year. One notes with pride that three of its prominent judges, including Rt. Rev. O. Gracias, who attended the first courses of 1977, subsequently obtained their Canon Law Doctorate in Rome, and have all these years been instrumental in reviving tribunal work in this country.
Yet in spite of much progress – a number of participants at this Conference complained of inadequate staffing and defective cooperation by the pastoral clergy, with the result that unjust situations, for which relief is possible, still abound.
In addition to the above, concern for adequate preparation for marriage, whereby the number of breakdown could be lessened, and ongoing support of married people, has resulted in the spread of ‘Marriage Encounter’, not only in cities, but also in the rural Hindi-speaking heartland. Marriage bureaux staffed by voluntary professional persons, who can counsel couples suffering from marital stress, are rare. This is a task pertaining to the CBCI Commission for the Family.
Though the Canon Law Society of India may rejoice on the occasion of its 10 years existence, it is aware of its responsibility to intensify the training of qualified personnel both clerical and lay. From an exclusively male body, all look forward to a membership more representative of the entire People of God.
This paper presents the fruit of some forty years of tribunal practice at Ranchi, Bihar, which became an Interdiocesan Tribunal in 1987, serving eight dioceses. Its origins go back to 1935 when the diocese was separated from the Archdiocese of Calcutta, for which it started functioning as second instance upto 1978.
Ranchi being at the heart of the tribal region of Chota Nagpur, the tribunal has dealt almost exclusively with marriages contracted within the tribal cultural milieu.
The paper has three parts. First we deal with the specific aspects of tribal arranged marriage; secondly, what are the traditional grounds of invalidity. Finally the question is raised on what legal grounds certain symptoms of invalidity could be dealt with, symptoms one discovers within the cultural and social setting of arranged tribal marriages. The latter section has been revised after the Conference in the light of observations made.
TRIBAL ARRANGED MARRIAGES
Not less than 95% of the cases referred to the Tribunal of Ranchi (similarly at Rourkela, Kunkuri and Dumka) are arranged marriages. Love marriages which result from the free choice of the partners are the exception. This implies the following.
The families – parents, uncles – on both sides make the choice and over a span of not less than six months, usually a full year, finalize conditions of a social and financial nature. The result is that both families enter into a covenant, whereby families on both sides, not just the future spouses are permanently bonded. They establish a ‘sandhi’ a true communion of common interests (cf. Dr. Philip Ekka s.j., in his thesis for PhD in Anthropology, Oxford).
Traditionally there is a middleman or ‘auga’; usually a relative of either family, who belongs or is married out in a village of either party. If this person is honest and has the welfare of the couple at heart, valuable information will be obtained on both sides and deceit forestalled.
In most cases the parents’, or guardian’s choice is a wise one, and daughter or son will be timely asked whether he/she is agreeable to the proposed partner. If this meets with a firm refusal, the match will usually be called off.
Though preparation, which includes visits on both sides, is spread over several months, the future partners have little or no opportunity for personal contact. It all remains very formal. Dating and courtship are severely frowned upon.
In almost every case the bride enters into a joint family of which the groom’s father, at times the uncle or elder brother, is the head. One may in all truth say that a girl marries not just this young man, but also his parents and the entire household, at times with disastrous consequences. What then when the mother-in-law dictates all her movements and occupation?
Tribal society traditionally imposes rigorous restraints on the choice of a partner in marriage. Both must belong to the same tribe, otherwise the entire family is ostracized. Neither may be a close relative of the other, nor bear the same clan-name (Toppo-Toppo, Bage-Bage,…), and should belong to different villages. Severity in enjoining these norms varies: The Munda, Santhal and Kharria tribes are the more demanding ones.
The village elders are not only to be consulted but must give a written agreement to the marriage proposal. Pastors, even Bishops will hardly dare to proceed without this consent, even in cases where Church law sees not the slightest obstacle.
Village solidarity is very strong. Consequently when there is the question of getting a wayward young man or girl duly married, the entire village will keep any adverse information strictly secret. The result is that first of all one party may be the victim of deceit, and later on an instructing judge is up against a number of odds. Even testimony under oath can then not be taken at its face value; though the faithful as a rule take the oath on the bible very serious.
Tribal village life abounds in festive occasions whether they be religio-social feasts or marriages in which the entire village takes part. On such occasions young people freely mix and will dance night long. One surmises that this frequently leads to familiarity, which will adversely affect later arranged marriages of the persons involved.
In practically all cases of a breakdown in arranged marriage, brought to the tribunal, both parties will have entered into another stable union, and have children. Moreover tribal society will have sanctioned the legality of such second unions, after the original parties at a panchayat (meeting of elders) have granted freedom to each other (divorce by mutual consent). This second union is celebrated according to a simple tribal ritual (sagai-marriage), hence in accordance with tribal custom law, recognized in India. Catholic elders, however, will refrain from giving permission and refer either of both parties to Church authorities.
In the light of these customs only in rare cases will the ecclesiastical tribunal refuse to take up cases until the parties have obtained a civil divorce.
Finally we note the conviction which still prevails among both clergy and laity that a marriage celebrated in church (sacramental) is binding for life and a declaration of nullity with subsequent freedom of re-marriage is impossible. Hence a large number of broken marriages for which relief could have been obtained, are simply ignored. The victims, often good christians living in an irregular union, suffer from the exclusion from sacramental life for scores of years. When a more enlightened pastor appears, cases which are 30-40 years old are unearthed. Will the judge be in a position of gathering sufficient evidence after such a lapse of time?
THE GROUNDS FOR NULLITY IN TRIBAL ARRANGED MARRIAGES
The petitioner rarely offers a clear picture of the preparations and celebration of the marriage, of subsequent marital life, and of the causes of the breakdown. Hence at the start the grounds will often be formulated as ‘Defect of consent’ in general. The specific grounds will be discovered during the interrogations of the parties, if both can be heard. Not rarely either of them has disappeared in the anonymity of the tea-gardens (Assam), of the forest labourers (Andamans) or the large cities and industrial centres. One realizes the difficulty, eve impossibility of tracing that person. Since we deal with rural people, the seat of the tribunal often moves to a presbytery or a village chapel, with all the inconveniences this implies. Canonical niceties are reduced to a minimum.
Preliminary interviews under oath will focus on the following:
– Is the defect of consent the result of coercion by parents/guardian, by society itself, and to what degree was freedom impaired, or consent firmly refused? What was the nature of the coercion, its motives, gravity and effects on the victim?
– Did the person finally relent and consent to the marriage?
– What were the motives of parents/guardians in arranging a marriage to which the person was adverse?
– Was there deception (e.g. a pre-marriage pregnancy by a third person, kept strictly secret before the marriage)?
– Is a third person involved (a pre-marriage familiarity, with or without promise of marriage)?
– How long did the marriage last and what was the quality of conjugal life? How did it break up and who was responsible for it?
Subsequently the specific grounds will be fixed with the approval of the parties (if both can be contacted).
1. Force and Fear
This is the first grounds one presumes to be present in the breakdown of a tribal arranged marriage, and preliminary enquiries reveal that parents/guardians coerced an unwilling daughter or son. More often this will take the form of reverential fear. Respect for parental authority, dependence both social and material and the fear of displeasing parents are deeply ingrained in the extended tribal family, where decisions are taken by the father, elder uncle or brother. Its members need the latter’s goodwill, and refusal in matters like marriage result in threats of expulsion from the house or in our case refusal of making any alternative arrangement. At times the father will have recourse to physical means, and the girl, who at a previous interrogation by the parish priest had expressed her aversion, turns up two weeks later all smiles, telling him she now is quite agreeable – because the stick awaits her in case of a new refusal. In this case both ordinary fear (threats of physical harm) and reverential fear are combined.
Grave reverential fear can be established because the person after clear refusal finally yields under threats as those described above. Since no other option is left in the tribal rural milieu he/she consents to an unwanted marriage.
The judge, however, should be aware, that the parent or guardian will deny any form of coercion. He considers it his right to arrange for a party of his choice, totally ignoring the likes and dislikes of son or daughter. At the judicial deposition this person will honestly state that the marriage was freely entered upon. Furthermore, the family name is at stake. Villagers will ostracize not only the boy or girl, but the entire family where a marriage is contracted in contravention of tribal customs.
2. Simulation
This tribunal soon realized that coercion frequently results in Total Simulation. This means that while the external expression of consent – manifested not only in church but also all through the customary tribal celebrations – appears to have been normal, internal consent has been positively – whether explicitly or implicitly – rejected. In response to parental harassment and social pressure, instead of yielding out of
grave gear, the person resolves to comply with all external ceremonies demanded by church and tribe, firmly resolved to free oneself from the imposed marital bondage at the first occasion. A judge then hears statements like the following: ‘I said yes with my mouth, not with my heart!’, or ‘My father married her, not I!’ – In this setting the judge will decide invalidity on the grounds of total simulation (at times – unnecessarily-the clause ‘under coercion’ was added).
How is total simulation commonly established? Quite often the person will have confessed aversion to mother or sister or village companions, rarely to the father or guardian, who may have been left ignorant of the refusal for fear of harassment. Other circumstances so often give a clue: familiarity, even pre-marriage pregnancy, with a person unacceptable to the father or guardian will prompt the latter to rescue son or daughter by marrying him/her out to someone unwanted by the ward.
A recent case as illustration: in village Patratoli Cecilia Tete is in love with John Tete, both of the same clan. An unwanted pregnancy is aborted under pressure of the family, and the girl is subsequently married out to Marcel Dungdung on leave from the Andamans. The hesitant pastor yielded to pressure by the villagers and solemnizes the marriage. Marcel takes his wife along to the Andamans. The path is free to get John married too, in spite of misgivings by the parish clergy. In fact Cecilia ran away and hardly two weeks after his marriage John elopes with Cecilia to the anonymity of Delhi. Two marriages have been ruined as a result of cultural reasons, the ban on marriage between members of the same clan and village. Without hesitation the judge decides on total simulation in both cases.
N.B.: The two grounds of force and fear and total simulation, though mutually exclusive, have much in common regarding the symptoms and proofs. Being familiar with tribal life the judge will evaluate the observance or violation of certain customs, the refusal of sindur by the bride, resistance in donning the bridal dress, throwing away of the wedding ring, and the absence of both sexual and social relations after the marriage (e.g. the refusal to serve or be served food and drink by the partner).
While the Rota rarely decides invalidity on grounds of total simulation, this tribunal annually passes almost half of its sentences on this latter ground.
An example in which both groups are originally listed is the following: Sushila is discovered pregnant by Anand of a neighbouring village. The elders meet (panchayat) and both boy and girl own up their sexual relations. The elders decide that both are to marry without much delay, though Anand at first objects. Hardly a month after the marriage Anand abandons Sushila and seeks work in the tea-gardens of Assam, where he starts living with a non-christian. He never returns. If he can be contacted his judicial deposition might reveal his original intent at simulation. Otherwise the decision will be invalidity due to force and fear by society. Refusal on his part at that time would have resulted in further harassment and the entire family being ostracized.
3. Partial Simulation
This is a less common grounds. Tribals will never exclude offspring. Fertility and the continuation of the male line are uppermost in the purpose of marriage. Among catholics indissolubility is strongly defended, with the exception of recent converts. The loss of faith in the West with the exclusion of
sacramental intent is inexistent so far in Chota Nagpur. However cases of willful exclusion of unity occur. Thus the family might arrange marriage for the younger brother of a married man, sexually involved with his sister-in-law, so as to shield these illicit relations. When his wife discovers this familiarity, she abandons him. Invalidity might be established either on the ground of partial simulation of the husband or deceit of which the wife is the victim.
4. Deceit
Deceit is not uncommon (cf. 3 above). Such is the discovery of a pregnancy almost immediately after the marriage. The husband sends his unwanted bride back to her parents without delay. If the pregnancy is discovered before the marriage the arrangement will automatically be cancelled according to the prevalent tribal custom. Such cases were decided on the grounds of implicit grave error of quality amounting to error of parson as per the former Code. In fact the formulation of c. 1097 § 2 of the new code is verified too, the ‘quality is directly and principally intended’, though implicitly because of the cultural milieu and the prevailing tribal custom.
Other forms of a quality causing deceit can be epilepsy, alcoholism with ill-treatment, and premarital promiscuity. Since alcoholism is rampant in tribal society the grounds for invalidity takes at times the form of a condition of the present on the part of the bride (c. 1102 § 2).
Sterility might lead to breakdown rather among recent converts; while vasectomy kept secret would be dealt with either on the grounds of deceit or error of quality.
ADDITIONAL REFLECTIONS
The concluding section of this paper is devoted to a specific concern of this Conference, “Towards an Indian Matrimonial Jurisprudence”. Complying with the request of the president, Rt. Rev. Oswald Gracias, three areas will be probed into. They pertain to the same cultural reality of tribal arranged marriage. Successively we look into ‘Inadequate Consent’, ‘Incompatibility’, and ‘Total Absence of Marital Love’.
1. Inadequate Consent
With regard to Inadequate Consent, Rev. David Bara, judicial vicar of Ranchi, has this to say. Apart from the radical ‘No’ to a marriage, whether it takes the form of total or partial simulation, consent can also fail due to its inadequacy. This means that one of the partners at the time of the marriage did not really embrace that total and unique relationship that marriage is and so the consent given was grossly insufficient. This is demonstrated both by the circumstances which precede and surround the celebrations and consistent pattern of post-marital behavior, which has no regard for the legitimate rights of the partner; instead the person gradually wriggles out of the relationship. Fr. G. Taylor deals with this under the heading of lack of commitment (Catholic Tribunal Procedure, pp. 178ff).
As illustration the following case. Nirmal the only son is not interested in marriage. However, his widowed mother worries about her son’s future and in spite of his utter lack of concern, coaxed him day after day to marry Sushila. Finally he lets himself be persuaded simply to evade further nagging. His
subsequent behavior is utterly disappointing, as he shows no concern for his partner. Disappointed Sushila leaves after a few months. Asked whether he had agreed to the marriage he replies in the affirmative adding that he did so not to sadden his ailing mother. Neither simulation nor grave reverential fear would apply in this case. However, his will to marry was rather a velleity, and not the real intent of entering into a lifelong covenant of marital love and concern for the total welfare of his spouse. His commitment was grossly inadequate.
2. Mutual Incompatibility
In 1978 ‘Studia Canonica’ published a sentence by Bishop Geoffrey Robinson, using the heading of ‘Marital Incompatibility’ (ibid. 1978, pp. 404). In the course of the ‘In Lure’ section this judge, however, rejects this formulation as grounds, because of a prevalent use of the word in a loose sense, though if someone is truly incompatible with a given partner, he/she is incapable of commencing and sustaining a true marital relationship with the partner. Hence Bishop Robinson has recourse to the ground of relative incapacity.
Several canonists, among them Mgr. Serrano, have been holding the view that besides the grounds of absolute incapacity, which excludes some persons form marriage with anyone, the judge is to take into account the relational aspect of every marriage, i.e. the capacity of a normal and minimal interrelationship with this partner. Marriage as ‘consortium totius vitae’ involves necessarily the mutual accepting and giving of oneself. ‘Thus, the juridical focus in the study of a failed marriage is placed specifically on the couple’s relational abilities’ (Schumacher, quoted in Hudson, Handbook II for Marriage Nullity Cases, p. 204). This would mean, as Serrano pointed out, that it is not sufficient to demonstrate the presence or absence of some serious mental disorder or defect of freedom of choice, without considering the other partner to whom the conjugal commitment was to be made.
To establish gross crippling of an interpersonal relationship from which the judge can conclude to incapacity of assuming and fulfilling the essential obligations of marital life, here under the aspect of this interpersonal relationship, the following approaches are suggested.
(1) The entire course of the parties’ relationship must be investigated. An important element in the tribal context is the fact that the bride “maries” not just her husband, but somehow also her in-laws, when she moves into the rural extended family.
(2) The personal interrelationship of the party or parties with others must also be investigated to see the motivation and affective aspects of these relationships.
(3) A specific diagnosis by a psychiatrist is not always to be looked for, though it may be useful. (Many tribunals especially in the North hardly find such experts, who could give an opinion in conformity with a catholic approach to marital life).
(4) To be kept in mind in the entire process is the teaching of ‘Gaudium et Spes’. “For Serrano this teaching points out that the primary object of marriage consent is to form and foster an interpersonal relationship” (cf. Passim, Hud o.c., pp.206-207).
As illustration of the above a case dealt with some fifteen years age. Imelda, a healthy well-built girl of 22 was married as per custom (arranged marriage) to Thomas, rather frail and weak. Preparations and celebration appeared to be normal and at the judicial enquiry both stated that there was no coercion. After the marriage the girl refused all sexual intimacy, frequently ran back home, where she complained about the prevailing atmosphere where drinks were daily consumed, and how Thomas habitually sided with his mother when some disagreement arose. Within four months his family sent her away. The evidence clearly pointed to incompatibility in the strict sense, which Bishop Robinson prefers to call incapacity of interpersonal relationship.
Important here is the fact that this occurs in the cultural milieu where marriage is prevalently arranged by the family. Imelda would not have agreed to marry Thomas had she been dating him, come into closer contact with life in his family. In cultures where partners choose each other, this kind of breakdown will less frequently occur. Previous to marriage they will have discovered and experienced to some extent what we may call mutual compatibility. In arranged tribal marriage this is hardly conceivable.
The position so far exposed, however runs contrary to recent Rotal practice. In 1987 Mario Pompedda, Rural judge, denied any genuine foundation in jurisprudence to the notion of relative incapacity (in ‘Incapacity for Marriage’, ed. Robert Sable, 1987, pp.205-206).
In his address to the Rota on 05-02-1998 Pope John Paul II stated “that only incapacity and not difficulty in giving consent and in realizing a true community of life and love invalidates a marriage” (Oss. Rom., Eng. Ed., 1987, n.5, p.7). Subsequently comments on this statement specified that only absolute incapacity is within the purview of c. 1095, n.3. Consequently the grounds of relative incapacity (incompatibility) was rejected. In his study of the jurisprudence of Mgr. Serrano, Gaston Candelier has this to say: “The decision c. Serrano (Mexico 13, 12.191) has been reversed by the subsequent Rotal turnus on the plea that relative incapacity – though established in this concrete case – cannot be juridically accepted; this is due to the fact that the term ‘relative’ is not explicitly mentioned in c.1095; hence what is naturally impossible and hence inexistent – an impossibility unanimously recognized by the experts called in for this case, is declared juridically valid due to an omission which prevents the positive law from going along with the reality of the facts in a natural institution (footnote n.83, pp.471-472, Studia Canonica, 1996).
Will this be the last word on relative incapacity or will jurisprudence further evolve when cultural realities are better scrutinized? – Meanwhile in cases similar to the one described above, the judge has to ponder on what other grounds could be invoked, whether in our case one can discern absolute incapacity on the part of the husband, or error of quality on the part of the bride.
An important consideration, which Rotal jurisprudence will accept, is as follows: at times incapacity to assume essential obligations will surface once marital life has started, i.e. during the ‘matrimonium in facto esse’; the judge will have to trace back the incapacity to the moment when the consent was given, ‘matrimonium in fieri’.
In conclusion we can refer to the observation of Ann’s made already in 1969; the judge has to take into account the milieu, culture and civilization in order to rightly evaluate the validity of a concrete marriage.
3. Absence of Marital Love
Back in the seventies, the Calcutta marriage tribunal under Fr. P. Bronckers s.j. advanced the opinion that the grounds of ‘Absence of Marital Love’ be taken into consideration in a number of cases where neither force and fear, simulation, deceit or lack of due discretion seem applicable.
At the start it should be noted that this absence is to be traced back to the very time of contracting marriage, and in no way is equated with the rightly rejected grounds of marital love which died out and hence with it the marriage itself (Cf. the reply of the Signatura Apostolica regarding the Utrecht sentence of 12-8-1971, in Apollinaris 1976, 31-48).
Subsequent to the address of Pope Paul VI to the Roman Rota on 09-02-76 it has become clear that the absence of love in marriage cannot be assumed as grounds of invalidity, even if the symptoms of this absence are traced back to the very start of marital life. Dealing with this problem Fr. U. Navarrete has this to say, “Canonical tradition to which ‘Gaudium et Spes’ clearly conforms holds that ‘the intimate partnership of life and love has been established by the Creator himself. It has its beginning in the marriage covenant that is an irrevocable personal consent whereby the spouses mutually give and accept each other….’ (G.S. n. 48). This means that marriage comes into existence by the free and deliberate act of consent by both parties, even if affective love is either absent or in no way expressed.”1 One may say that in the act of that mutual giving and accepting is implied the resolve to seek the total welfare of each other and this would then be the basis of love. In this sense marital love is not a juridical element of marriage; it would pertain to its ‘bene esse’. Nonetheless it is not to be underestimated and should be assiduously fostered.
In our further reflection on the wide experience that a number of arranged marriages seem to break down due to the absence of any affective love, we have to probe on what grounds the consent may have been defective.
One could look at such a marriage form the angle of an erroneous judgment: either or both parties expected a partner to be very different from what he/she discovers as soon as marital life starts. Can we then conclude to an error of quality amounting to an error of person?
A second possible grounds would be the inability of assuming the essential obligations contained in the consortium totius vitae, similar to the reflections made above with regard to what were called symptoms of mutual incompatibility. The total absence of love on the part of either spouse resulting in aversion can be due to the family atmosphere whereby the husband is rendered unable of an unselfish giving of self for the total welfare of his spouse.
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1. “Amor conjugalis et consensus matrimonialis”, Periodica, 1976,pp.619.
Finally the lack of conjugal love might be traced to coercion on the part of parents and/or society. Though the son or daughter declared that he/she married freely, resentment for having been forced in an unwanted marriage may emerge, and block all conjugal relations. The appropriate grounds might then be reverential fear.
Within the social and cultural setting of arranged tribal marriage clear symptoms of absence of conjugal love may convince the judge from the start that he is dealing with an invalid marriage. He will then have to probe into the underlying defects of either knowledge or freedom.
As a conclusion, two observations are called for. First tribunal practice pertains primarily to the local churches, where it is part and parcel of the Church’s pastoral service within the religious and cultural milieu of a particular people. No doubt canonical norms, which safeguard the demands of justice, the defense of the rights of persons and of the sanctity of marriage are to be faithfully observed. At the same time the judge has to situate each case submitted to the tribunal within the social milieu of this local people, with their understanding of marriage, the role played by family and society in the preparation and celebration, and finally the concrete surroundings in which the newly wed had to live out their conjugal community. The first part of this paper addresses the tribal milieu of Chota Nagpur. It greatly differs in culture form Kerala and Bombay, form the church in North Bihar living amidst hindus, or again the matrilineal society among the tribes of the North East. It follows that ‘Towards an Indian Matrimonial Jurisprudence’ cannot be approached in a uniform manner. India comprises a plurality of cultures.
Secondly, Canon Law, with its concomitant jurisprudence, is the fruit of a Western legal system. So far the Church in the mission is being governed by this law, which leaves still little room for adaptation and inculturation. In particular Rotal jurisprudence has been normative for the one practiced in tribunals in all particular churches. Should there not be room for the reverse movement, namely that higher tribunals positively evaluate and be ready to learn for the experience of the local churches, who have an existential knowledge of marriage within their own religious cultural milieu?
Jos de Cuyper s.j.
Ranchi
