cormacburke.me.ke

[Studia canonica, 29 (1995), pp. 253-260]

I. The Facts

1.         The case before us is of a "traditional" marriage, arranged that is by the parents of the parties, who had a bare three months acquaintance. In fact, they actually saw one another twice only in the four weeks which intervened between the betrothal and the wedding itself, which took place on June 15, 1972 in X (Sri Lanka). At the time, Aeldred was twenty eight years old, while Fatima was twenty one. Although one child was born of their union, problems arose immediately between them. After unfaithfulness on the part of the woman, they came to a final separation in May 1978.

            On May 9 1983 the man petitioned the Tribunal of Chilaw to declare the marriage null on the grounds of force and fear exercised on the woman. After the case had been instructed, the single-Judge Court gave an affirmative Sentence on July 23, 1985. The Appeal Tribunal of Colombo, omitting the decree to which c. 1682, § 2 refers, and without any judicial hearing, reversed this with a decision (which the Judges themselves refer to at times as a "Decree" and at other times as a "Sentence") given on Feb. 18, 1987. Considerable time elapsed before the case - without the full Acts - was sent to this Apostolic Tribunal, according to the norm of c. 1444, § 1. Despite repeated requests, the Acts were never received in their entirety. Only after a further four years were they sufficiently complete to make it possible to proceed with the case.

            Free legal representation having been granted to the Petitioner, both the Promotor of Justice and the Defender of the Bond of our Tribunal noted indications of serious violations of procedural norms and of the possible nullity at least of the decision of the Appeal Court. The Ponens decreed that the question should be tried according to the formula: "a) whether the decision of the Tribunal of Colombo of Feb. 18, 1987 is null; and if the answer to this is affirmative: b) whether the Sentence of July 23, 1985 of the Chilaw Court can be forthwith confirmed or not". Gratuitous legal representation was granted to the Respondent also. Today we must reply to these questions.

II. The Law

2.         Regarding the nullity of a Sentence. "If the sentence in favor of the nullity of marriage was in the first grade of trial, the appellate tribunal by its own decree is to confirm the decision without delay or admit the case to an ordinary examination of a new grade of trial..." (c. 1682, § 2). The legal norm is clear. After a declaration of the nullity of marriage in first instance, the Appeal Tribunal, having weighed all the elements of the case and the observations of the Defender of the Bond and of the parties, should either issue a Decree confirming the Sentence, or admit it to ordinary examination in second instance. The reason for this is also clear. If in the Acts which it has received, the Court does not find the requisites for confirming the first Sentence, the proper administration of justice demands that it proceeds to an ordinary judicial examination, with the elements proper to it: concordance of the doubt, further taking of evidence (unless, in rather exceptional cases, this seems unnecessary), the publication of the process, the discussion of the case, the exchange of briefs, etc.; so that the Judges, seeing the case in clearer light which either dispels or confirms the doubts which prevented them from confirming the Sentence, can arrive at a definitive decision.

3.         What the law does not allow for, but rather excludes, is that the Appeal Court should immediately issue a Decree or Sentence reversing the affirmative decision of the lower Tribunal, without the case having gone through a process of ordinary examination in second instance. The main reason is again clear: since the "contradictorium" [or process of hearing both sides] is completely lacking in the case, the parties are deprived of the opportunity of advancing new arguments either for or against the alleged nullity, or of clarifying arguments already set forth, and of knowing similar arguments brought forward by the other party, so to have a chance of disproving them if they can. Thus there are deprived of that "right of defense" which is theirs by natural law. Any Sentence given in such circumstances is null, in accordance with c. 1620, 7º: "A sentence is vitiated by irremediable nullity if:... the right of defense was denied to one or other party".

4.         Re force and fear. The human person could not be responsible for his or her actions, unless these were free. "Freedom is an exceptional sign of the image of God in man... Man's dignity therefore requires him to act out of conscious and free choice, as moved and drawn in a personal way from within, and not by blind impulses in himself or by mere external constraint" (Gaudium et Spes, no. 17). When it is a matter of the choice of a state in life, the Church specially holds that personal freedom is to be respected: (c. 219; cfr. Gaudium et Spes, n. 26). As regards marriage in particular ecclesiastical law requires freedom of consent, in each party, so that they can validly wed. "A marriage is invalid if it is entered into due to force or grave fear inflicted from outside the person, even when inflicted unintentionally, which is of such a type that the person is compelled to choose matrimony in order to be freed from it" (c. 1103).

5.         This disposition rests on the natural law itself. "Inasmuch as the impediment of force and fear is grounded in the natural law, all persons - both baptized and non-baptized, both Catholics and non-Catholics - are undoubtedly bound by it... No one therefore can evade the prescriptions of the law of nature, but all are held to it" (c. Wynen, Oct. 31, 1940)<<"Inquantum impedimentum vis et metus fundamentum suum habet in iure naturali, extra quodpiam dubium est eo adstringi omnes homines, baptizatos et non baptizatos, catholicos et acatholicos... Nullus enim homo effugere potest dictamina iuris naturae, sed omnes eo tenentur": RRD, vol. 32, p. 747.>>. Nature itself demands that those who contract marriage, giving and accepting each other in an irrevocable covenant, should enjoy personal freedom. "By means of this invalidating law, the freedom in contracting marriage is protected against the grave injury suffered by anyone who, compelled by this fear, has no other means of escape than to give consent to a marriage hateful to him or her" (c. Jullien, July 9, 1932)<<"Irritante hac lege ius tutatur matrimonii libertatem adversus iniuriam gravem, quam is patitur qui gravi isto metu compulsus, aliud medium effugiendi non habet nisi praestare consensum in matrimonium sibi odiosum": RRD, vol. 24, p. 289.>>.

            "Fear is in respect of a future evil that the will finds repugnant" (Summ. Theol., I-II, q. 6, art. 6). When the evil consists in fear of offending or saddening one's parents or provoking their indignation, then one speaks of reverential fear. Of itself, and "according to common doctrine and the constant jurisprudence of ecclesiastical courts, this kind of fear is slight of its nature. But it is considered grave if it is qualified, that is, accompanied by circumstances which in the particular case make the superior's indignation appear as a grave evil. This can occur if the son or daughter, because of repeated pressures and troublesome urgings from the parents, or of quarrels which, causing great hardship, leave practically no room for freedom, fears that the parents' indignation may become continuous" (c. Masala, March 14, 1989.)<<"id genus metus iuxta communem doctrinam et constantem iurisprudentiam tribunalium ecclesiasticorum natura sua est levis; habetur vero gravis si qualificatus, seu stipatus adiunctis, quae suadeant indignationem superioris in casu esse malum grave. Hoc obtinet si filius, ex instantibus parentum repetitis ac fastidiosis precibus, iurgiisve continuis, quae locum vix reliquunt libertati, quaeque durum est tolerare, timet parentum diuturnam fore indignationem": RRD, vol. 81, p. 212>>. It can certainly become grave whenever the parents, by means of threats, exercise real coercion over the person in relation to the marriage. These "threats do not necessarily have to be grave in an absolute sense, but rahter in proportion to the capacity for resistence of the person on whom they are exercised: greater in the case of absolutely grave frear, lesser in that of reverential fear, in which even continuous and pressing urgings are enough" (c. Palazzini, Oct. 18 1972)<<"minae non necessario graves in ordine absoluto esse debent, sed proportionatae capacitati resistentiae personae in quam inferuntur: maiores in metu absoluto gravi, minores in metu reverentiali, in quo etiam preces continuae et pressantes sufficiunt": RRD, vol. 64, p. 564.>>.

6.         Ecclesial rights and cultural values. "Inculturation" designates the process by which the Gospel takes root in local values, discovering and enhancing their richness on the one hand, rectifying their possible deficiencies on the other; and so perfecting the work of evangelization. "There are many links between the message of salvation and culture... The Church has existed throughout the centuries in varying circumstances and has utilized the resources of different cultures in its preaching to spread and explain the message of Christ... Faithful to its traditions and at the same time conscious of its universal mission, it can enter into communion with different forms of culture, thereby enriching both itself and the cultures themselves" (GS 58).

7.         Inculturation is both a means and a consequence of evangelization, which is always the priority for the Church (cf. Catechism of the Catholic Church, no. 854). Therefore, the fundamental and dominant reference point for inculturation is not "culture" itself, but the Gospel. This is why the Council teaches that the acceptance of the Gospel always implies a purification and elevation of traditional values or local customs. "The good news of Christ continually renews the life and culture of fallen man; it combats and removes the error and evil which flow from the ever-present attraction of sin. It never ceases to purify and elevate the morality of peoples" (GS ib.).

            The present Pope spoke with vigor on this point during one of his visits to Africa. "The Gospel Message does not come simply to consolidate human things, just as they are; it takes on a prophetic and critical role. Everywhere, in Europe as in Africa, it comes to overturn criteria of judgment and modes of life (cf. Evangelii Nuntiandi, 19). It is a call to conversion. It comes to regenerate. It passes through the crucible all that is ambiguous, mixed with weaknesses and sin. It carries out this function with regard to certain practices that have been brought by foreigners along with the faith, but also with regard to certain customs or institutions which it has found among you" (cf. Insegnamenti di Giovanni Paolo II, VIII,2 (1985), pp. 371-372).

8.         The Church therefore, when it rejects certain traditional practices because they fall below the Gospel norm, is not forsaking the process of inculturation, but is precisely pursuing it and giving it expression. The renewing effect of evangelical inculturation has been specially shown in the constant christian rejection of polygamy, even in societies where it has been a deeply rooted practice. By so doing, the Church is faithful also to her belief in the equal dignity of man and woman, each made in the image of God (Gen 1: 27; cf. Catechism of the Catholic Church, nos. 1645, 2387).

9.         The question of "arranged marriages" requires a more nuanced judgment. Such marriages have been frequent almost everywhere in the past, and are still common in many parts of Africa and Asia. They do not necessarily violate human rights and dignity, since one cannot a priori exclude the possibility that those marrying may freely make their own their parents' or relatives' choice of a spouse. However, this seems less likely in modern times; and if it can be shown that the marriage partner was imposed in violation of the person's rightful free choice, then the marriage can certainly be declared null. "A marriage arranged by parents for their children is not invalid, if the children ratify the engagement entered on and so contract the marriage. If however they do not wish to ratify the engagement and are therefore compelled by fear to wed, the marriage is null" (c. Sabattani, Dec. 20, 1963)<<"Desponsatio a parentibus facta pro matrimonio filiorum, non vitiat, si dein filii iam inita sponsalia rata habeant et ita contrahant; si vero desponsationem ratam habere nolunt ac proinde nuptias inire cogantur metu, matrimonia sunt irrita": RRD, vol. 55, p. 973.>>.

10.       In such cases, when the Church feels bound to make a decision against long-established traditions, it in no way calls into question the good faith of the parents, or their sincere love for their daughter or son, or genuine concern for their welfare. However the subjective good will of the parents does not justify or lessen the objective violation of the son's or daughter's right to freedom in the giving of matrimonial consent. This consent, inasmuch as it constitutes a person in the married state, must always remain a most personal choice; as the Church has always taught, it "cannot be replaced by any human power" (c. 1057, § 1).

            "Nor is it right to object that the parents had good cause for their insistence; in other words, that they were looking to the good of their children, or wished to attain other very upright ends. This could attentuate or justify their action in the forum of their own conscience, but it takes nothing from the objective violation of justice which, according to the norm of law, nullifies the consent of the person suffering their pressures" (c. Mattioli, Feb. 29, 1960)<<"Nec valet obiicere parentes ex iustis causis institisse, i.e. verum bonum filiorum attendentes, et alios etiam fines rectissimos consequi volentes; id enim eorum opus in foro conscientiae attenuare vel iustificare poterit, sed nihil adimit obiectivae iuris laesioni, per quam annulatur patientis consensus ad normam legis": RRD, vol. 52, p. 133.>>.

11.       Tribunals cannot let themselves be guided by what may have been normal or common in the past, if the evidence in a concrete case shows that natural and ecclesial rights have been violated. The juridic question to be determined is whether a person in the end freely acquiesced in the proposed marriage, out of motives of love, of respect for greater experience, etc.; or whether the "acceptance" of the marriage was against his or her own will, and motivated simply by fear of the consequences of not doing so.

III. The Argument

12.       Regarding the first question before us, that is concerning the nullity of the decision of the Colombo Tribunal of Feb. 18, 1987, there can be no doubt. When the affirmative first instance Sentence of Chilaw was appealed to Colombo, the Appeal Court, omitting the Decree indicated in c. 1682, § 2, and without any further process, reversed the decision on Feb. 18, 1987. Against what is prescribed in the canons, the cause was never admitted to ordinary examination; and there is a total absence of everything which the law requires for the judicial process: citation of the parties, joinder of the issue, publication of the acts, the conclusion and the discussion of the case. As a result of these omissions, not only is the proper procedural order subverted, but the right of defense of the parties is gravely violated. The Sentence of the Appeal Court is therefore evidently null.

13.       We are thus brought to the second question: whether the affirmative Sentence of the Tribunal of Chilaw can be confirmed straightaway or not.

            The case is of a marriage that was arranged by the families of the parties, through a "marriage broker" (Acts, 21/13). The parties actually met two times in all, in the course of the single month that elapsed before the wedding. They were brief and formal meetings, without any exchange of personal ideas about the marriage itself, or discussion of plans for the future, etc. (10/7; 9/4). The Petitioner says "She didn't seem to take [the] marriage seriously" (9/5).

14.       Re coercion: The Respondent says clearly that she did not love the Petitioner: "I married him because of my mother's threats..." (17/5). "It was my mother who forced me to marry him" (28/1). Her mother was "a domineering character"... "was insisting day in and day out... I developed a fear because my mother said that she would ignore me completely. Therefore I resigned myself to the situation" (28/4-5). The Petitioner testifies that she was not happy on the wedding day (10/8).

            Both her parents confirm the force brought to bear on her. According to her father, it was her mother who "insisted on Fatima marrying Aeldred... [because] the Marriage Broker said that Aeldred was a very good person and that was the reason" (21/13); "Fatima did not like this marriage. She agreed because of the insistence on the part of her mother" (22/14).

            Her mother admits that during the month's engagement, "she had cried... saying she didn't want to marry him"; and that at the wedding she was "unhappy and resigned" (23). Then she adds: "She married Aeldred because of our insistence... I was the one who insisted that she should marry Aeldred... Every day I was telling her over and over again to agree to this marriage... Now of course I know that it was wrong. At that time I had no idea that it was a wrong thing to do" (26-27; cfr. 30/8).

            Her sister, Sriyani P: "She was forced into this marriage by my mother... it was only because of the pressure exerted by my mother on her that she contracted this marriage with Aelred" (33).

            The Petitioner's brother, Peter, testifies that the Petitioner himself looked unhappy at the wedding, because "he knew the girl wasn't giving her consent freely" (13/7).

15.       Re aversion. The Respondent simply states her aversion to the marriage, without enlarging upon it: "I had an aversion to this marriage" (28/8). The confirmation of this laconic statement seems adequate. Her mother says: "She cried several times stating her refusal to marry him... After her marriage she could not 'forgive' me for it" (26-27). Later: "I asked her whether she liked the man. She said... she did not like to marry him" (30/6). The Petitioner gives evidence that she was not happy on the wedding day (10/8); her mother confirms this (23/7). The Petitioner further states that she did not want to have sexual relations that night (10/10).

            When the Respondent is asked why she remained with the Petitioner for six years, she replies: "I stayed with him, of course all the time quarrelling... because of the shame that I would have to face. I had not courage to break away earlier" (II, 19/21).

            The first instance Judge summarizes his conclusions thus: "The evil which threatened the Respondent was not, it seems, the threat of physical violence, or deprivation of life sustenance. Such threats would well place this litigation in the area of common fear. Rather, the Respondent's fear was of the certain and serious rupture in her life-long relationship of love and respect for her parents, a relationship which had existed from her earliest days. The threat to this relationship and the certain serious distress and indignation which an act of disobedience would cause her beloved parents was for this Respondent a very grave evil. The Respondent must be believed in testifying that the circumstances resulted in a state of grave reverential fear" (45).

15.       We believe that this is both a better reading of the case and a better application of the law than those given by the Judges of the Appeal Tribunal (in the Sentence we have just declared null). The Defender of the Bond of the latter Tribunal argued that there had been no coercion, since "in the actual life situation of a village girl, this sort of persuasion is quite normal and accepted" (II, 36). The Judges concurred, showing exactly where their criterion differed from that of the first Judge: "This is an arranged marriage, a phenomenon quite common in our culture. Usually such marriages are accepted by the children in obedience and out of respect to their parents, since the children firmly believe that the parents know and propose what is best for them. This does not amount to reverential fear" (II, 51).

            They further disagreed with the first instance Judge, in holding that simple insistence by a parent that a child marries cannot produce fear of a grave evil, unless it is accompanied by actual "threats of disinheritance, expulsion from the home, loss of support and the like, or even threats of physical restraint or violence" (ib.).

17.       We consider that the first instance single Judge's analysis of the case was more accurate from the viewpoint of established jurisprudential principles, and that he perceived better where a traditional practice did in fact involve a violation of basic human and ecclesial rights.

18.       Having weighed all of this fully, the undersigned Auditors replied as follows to the preliminary questions put to them:

            a) "In the Affirmative; that is, the decision of the Appeal Tribunal of Colombo of Feb. 18, 1987 is null";

            b) "the Sentence of July 23, 1985 of the Chilaw Tribunal is hereby confirmed; therefore:

            "THE NULLITY OF THE MARRIAGE HAS BEEN PROVED, in this case".

                                                                         Given at the Tribunal of the Roman Rota, January 20, 1994.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA