OP(C) No. 3026 of 2012 (Rev. Dr. Soosai Pakiam M. v. Solomon and Others) - High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **OP(C).No.3026 OF 2012(O)** **AGAINST THE ORDER/JUDGMENT IN CMA 86/2011 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM IN OS 791/2009 OF PRINCIPAL MUNSIFF COURT, TRIVANDRUM** ## **PETITIONER/S:** **REV.DR.SOOSAI PAKIAM M., S/O.MARIYA KALIST, ARCH BISHOP, TRIVANDRUM ARCH DIOCESE (LATIN) VELLAYAMBALAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.THOMAS GEORGE** ## **RESPONDENT/S:** |**1**|**SOLOMON,**| |---|---| ||**AGED 50 YEARS, S/O.M.JUSA HARRY DELEY,**| ||**JUSA ROAD, KOCHUTHOPPE,**| ||**THIRUVANANTHAPURAM - 695 008.**| |**2**|**SUSEELA FRANCIS,**| ||**AGED 58 YEARS, D/O.VICTORIA MARIAM,**| ||**SUNITHA BHAVAN, JUSA ROAD, KOCHUTHOPPE,**| ||**THIRUVANANTHAPURAM – 695008.**| _O.P.(C) No. 3026 of 2012_ 2 **3 MILTON SEBASTIAN, AGED 34 YEARS, S/O.SEBASTIAN PERRIRA, JUSA ROAD, KOCHUTHOPPE, THIRUVANANTHAPURAM - 695 008.** **BY ADVS. SRI.RAM MOHAN.G. FOR R1 SRI.G.P.SHINOD FOR R1 SRI.MANU V. FOR R1 SRI.V.PHILIP MATHEW FOR R1 SRI.GIBI.C.GEORGE FOR R1** ## **OTHERS PRESENT:** ## **SEBASTIAN CHAMPAPPILLY (AMICUS CURIAE)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2019, THE COURT ON 08-08-2019 PASSED THE FOLLOWING:** _O.P.(C) No. 3026 of 2012_ 3 ## **JUDGMENT** Petitioner, the Archbishop of Thiruvananthapuram, is the 1[st] defendant in O.S.No.791/2009 on the file of the Munsiff's Court, Thiruvananthapuram. 2. St.Antony's Forane Church in Valiyathura Parish comes under the Archdiocese of the petitioner. Considering the extent of the area, population of parishioners and their convenience, the Archbishop has authority to decide bifurcation of a Parish, for the benefit of parishioners to get all their services from the Church, within the jurisdiction. 3. The plaintiffs are residents of Ward Nos.1 and 2, which was formerly part of Valiyathura Parish, coming under the St.Antony's Forane Church. The Parish was bifurcated, as a result of which, the parishioners residing in Ward Nos.1 and 2 were separated from Valiyathura Parish, constituting a separate Parish of Kochuthope with their Parish Church as 'Our Lady of Fathima Matha' and it was decided that the said Church _O.P.(C) No. 3026 of 2012_ 4 would henceforth exercise all the religious rites concerning the parishioners residing within its jurisdiction. 4. The plaintiffs were aggrieved and they refused to be separated from their original Parish and the Church of St.Antony's Forane. They filed the suit challenging the compulsory bifurcation and their right to offer their prayers in the Church. I.A.No.3474/2009 was filed for a temporary injunction to restrain the defendant from preventing the plaintiffs from continuing with their right to offer their prayers in St.Antony's Forane Church and all the benefits they had hitherto been enjoying. I.A.No.4620/2010 was filed to restrain the defendant from bifurcating the Valiyathura Parish under St.Antony's Forane Church. Vide a common order dated 25.09.2010 the Munsiff dismissed both the applications. 5. The plaintiffs challenged the common order by filing C.M.A.No.90/2010 before the 1[st] Addl.District Court, Thiruvananthapuram. The C.M.A. was allowed. _O.P.(C) No. 3026 of 2012_ 5 6. O.P.(C) No.1988/2011 was filed challenging the judgment in C.M.A.No.90/2010, and vide Ext.P6 judgment, this Court held that I.A.No.4620/2010 filed for injunction against bifurcation of St.Antony's Forane Church is to be dismissed because the Archbishop has _prima facie_ the exclusive prerogative to bifurcate a Parish and the plaintiffs has no say in the matter. 7. In I.A.No.3474/2009 it was held that the same expressly permits the plaintiffs to use the Parish Hall, Cemetery and secure admission in St.Antony's Higher Secondary School of the Parish. It was noted by this Court that the defendants have in their counteraffidavits stated that the plaintiffs are not in any way prevented, even though the version of the plaintiffs is reverse. It was observed that the order of injunction in C.M.A.No.90/2010 over I.A.No.3474/2009 undoubtedly enables the continuance of status quo and therefore, this Court was not inclined to interfere with that order of injunction. 8. In view of the order of this Court, the plaintiffs filed I.A.No.3520/2011 before the trial _O.P.(C) No. 3026 of 2012_ 6 court with a prayer that the 1[st] plaintiff's daughter Hira Soloman, aged 13, who was yet to get the Holy Communion from St.Antorny's Forane Church, Valiyathura, be permitted to get all services from St.Antony's Forane Church, and sought a relief to direct the 1[st] defendant, Archbishop, to administer the First Holy Communion to the 1[st] plaintiff's daughter at the earliest. 9. The 1[st] defendant filed objection stating that several persons have sought impleadment as necessary parties following the publication under Order I, Rule 8, C.P.C.; and that they being necessary parties to the suit, their pleadings are also essential for determination of the dispute in the suit. It is stated that the plaintiffs are parishioners coming within the jurisdiction of the Church named Our Lady of Fathima Matha at Kochuthope. Baptism and First Holy Communion of children of parishioners are being conducted in Fathima Matha Church. For receiving the First Holy Communion, the candidates must have attended Catechism classes at the concerned Parish and learn the prayers _O.P.(C) No. 3026 of 2012_ 7 essential for receiving the First Holy Communion. The 1[st] plaintiff and his wife are teachers for such classes conducted in the Fathima Matha Church and the 1[st] plaintiff's daughter could be given the First Holy Communion on her attending the Catechism classes at the Fathima Matha Church. The 1[st] plaintiff's daughter cannot insist on getting the First Holy Communion at St.Antony's Forane Church, because she is no longer a resident and a parishioner within the jurisdiction of that Church. The prayer in the plaint is only to exercise the plaintiffs' right to participate in the functions and activities and offer their prayers at St.Antony's Forane Church. About which, the defendants have no objection, whatsoever. The First Holy Communion, being an essential service pertaining to the parishioners residing within the jurisdiction of a particular Church, has to be offered by the Vicar of the Church within the jurisdiction of which the subject resides. The application was, however, allowed by the learned Munsiff and the 1[st] defendant was directed to give Catechism class to 1[st] plaintiff's daughter and _O.P.(C) No. 3026 of 2012_ 8 make arrangement for granting of the First Holy Communion from St.Antony's Forane Church, Valiyathura. The 1[st] defendant was aggrieved and challenged this order at Ext.P4 before the 1[st] Addl.District Court, Thiruvananthapuram. The learned District Judge vide Ext.P5 judgment in C.M.A.No.86/2011 confirmed the findings of the learned Munsiff stating that there is no harm in directing the 1[st] defendant to grant the First Holy Communion to the daughter of the 1[st] plaintiff. The concurrent findings in Exts.P4 and P5 stand challenged before this Court. 10. Heard Senior Advocate Shri Kurian George Kannanthanam for the petitioner, and Shri V.Philip Mathews appearing for the 1[st] respondent. **==> picture [467 x 45] intentionally omitted <==** argued the matter and also submitted an argument note. Records were perused. **==> picture [432 x 13] intentionally omitted <==** learned Senior Counsel submitted that the 1[st] plaintiff's daughter Hira Solomon can be permitted to _O.P.(C) No. 3026 of 2012_ 9 have the First Holy Communion at St.Antony's Forane Church, Valiyathura, subject to the satisfaction of ecclesiastical norms of the Church. Accordingly, on 12.04.2017 there was a direction by this Court to facilitate the First Holy Communion before the next posting on 24.05.2017. 13. Accordingly, the petitioner directed the Vicar of St.Antony's Forane Church to perform the rites. A general body meeting of the parishioners of that Church was convened. The parishioners unanimously opposed granting of First Holy Communion to Hira Solomon at St.Antony's Forane Church stating that the 1[st] plaintiff is no longer a parishioner of the Church and that the First Holy Communion to his daughter Hira Solomon could be granted from his Parish Church, Fathima Matha, where she is presently residing. It was opined in the general body meeting that granting Holy Communion to the child of the 1[st] plaintiff by force would create a lot of conflict, resulting in law and order situation, difficult to control. The petitioner therefore filed I.A.No.858/2017 requesting this Court to recall the interim order dated _O.P.(C) No. 3026 of 2012_ 10 12.04.2017 as it was not within his capability to control the parishioners as it has become an emotional issue. The situation being highly explosive, he sought permission to make arrangements for administering the holy sacrament to the daughter of the 1[st] plaintiff in any other Church. 14. The question that precisely arises for consideration in this petition is whether the 1[st] plaintiff, who ceased to be a parishioner residing within the jurisdiction of St.Antony's Forane Church, could insist on a sacrament of his daughter's First Holy Communion to be conducted by the 1[st] defendant at St.Antony's Forane Church. 15. It is true that this Court vide Ext.P6 judgment had confirmed the injunction granted in favour of the plaintiffs regarding the use of the St.Antony's Forane Church. But whether that injunction would extend to granting of Holy Communion as well, is the question to be determined. 16. The argument of the learned Senior Counsel appearing for the petitioner is that the prayer as sought in the application could not be considered, _O.P.(C) No. 3026 of 2012_ 11 because the 1[st] respondent cannot insist on the First Holy Communion to his daughter be administered by the petitioner himself, who is the Archbishop. The prayer in I.A.No.3520/2011, with which I am concerned, reads thus: _“For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon'ble Court may be pleased to direct the 1[st] defendant to give 1[st] Holy Communion to the daughter of the 1[st] petitioner at the earliest from the St.Antony's Forane Church, Valiyathura”. (sic)_ It is contended that the First Holy Communion is usually to be given by the Vicar of the concerned Parish Church to the children of the parishioners residing within the jurisdiction of that Church. Vide Ext.P6 judgment, this Court had approved of the Archbishop's prerogative to bifurcate the Parish. In view of that, the plaintiffs, who are residing in Ward Nos.1 & 2 come within the jurisdiction of the newly constituted Parish with Fathima Matha Church, Kochuthope as their Parish Church, intended to give the First Holy Communion to the children of the parishioners residing there. It is also essential that _O.P.(C) No. 3026 of 2012_ 12 the child has to prepare itself for the First Holy Communion by attending to the Catechism classes and acquire the basics of the Bible and all the necessary religious instructions. The 1[st] plaintiff and his wife are admittedly instructors in such Catechism class at Fathima Matha Church. Nothing prevents them from enrolling their daughter as well, to attend the Catechism classes and to prepare her for the First Holy Communion in that Church, is the contention of the learned Senior Counsel. It is also contended by the learned Senior Counsel that the prayer in this application is concerning the daughter of the 1[st] plaintiff, but she is not a party to the suit. The prayer being personal to her, will not come under the scope of a litigation under Order I, Rule 8, C.P.C., concerning public interest. As regards offering of prayers, attending school, using the community hall, by the plaintiffs, the defendants have no objection. But sacraments attached to religious practices is something to be delivered from the concerned Parish Church, is the argument of the learned Senior Counsel. _O.P.(C) No. 3026 of 2012_ 13 17. _Per contra_ , the learned Counsel appearing for the 1[st] plaintiff would contend that this O.P. under Article 227 of the Constitution is not maintainable. He relies on catena of decisions in support of his contention that the power of the High Court under Article 227 of the Constitution is limited. He relies on _**Celine Coelho Pereira v. Ullas Mahabaleshwar, (2010) 1 SCC 217; Jaisingh v. Municipal Corporation of Delhi, (2010) 9 SCC 385; B.R.Oswal v. Laxmibai, (1975) 1 SCC 858; Lekshmi v. Latha, 2013 (2) KLT 998; Vijayakurup v. Padmanabhan, 2009 (2) KLT 939; Babu v. Power Grid Corporation, 2016 KHC 1071; Karthiyani v. Ramanathan, 2005 (2) KLT 115; Gbots Software Development Centres v. Software Services, 2015 (3) KHC 668; and Radhakrishnan v. Sundaram, ILR 2017 (4) Ker.833**_ in support of his argument, which would also point to the fact that correctional jurisdiction by the High Court under Article 227 can be exercised only where the orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice and that the High Court cannot rightly or liberally act as _O.P.(C) No. 3026 of 2012_ 14 an appellate court and re-appreciate the evidences. It was held that the High Court cannot in the guise exercising its jurisdiction under Article 227 convert itself into a Court of appeal. 18. Relying on these judgments, the learned Counsel appearing for the respondents would contend that there is no jurisdictional error or dereliction of duty or flagrant abuse of fundamental principles of law by the courts below in the impugned order and judgment at Exts.P4 and P5. Relying on several judgments under Articles 25 and 26 of the Constitution, such as _**Adi**_ _**Saivachariyargal Nalasangam v. State of T.N., (2016) 2 SCC 725: AIR 2016 SC 209; Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615; George Sebastian v. Molly Joseph, 1994 (2) KLT 389; A.S.Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548; Shayara Bano v. Union of India, (2017) 9 SCC 1; M.D.Wasi v. Bachan Sahib, AIR 1955 ALL.68; Subramaniam Swamy v. Union of India, (2016) 7 SCC 221; Muhammed v. Moideen Haji, 2010 KHC 344; and District Council of United Basal Mission v. Salvados Nicholas, (1988) 2 SCC 31**_ held that the right _O.P.(C) No. 3026 of 2012_ 15 to worship is a civil right coming within the scope of Section 9 of C.P.C. and also a common civil right and any infringement to that right can be questioned by challenging the same before a civil court and therefore the defendants cannot question the maintainability of the suit. 19. Contending that canon law is like club rules and will not prevail over civil laws, the learned Counsel relies on the decisions; _**Major Arch Bishop Angamaly, Ernakulam v. Lalan Tharakan, 2016 (2) KLT 791; MSGR Xavier Chullickal v. Raphel, 2017 (2) KLT 1072; Rev.PMA Metropolitan v. Moron Marthoma, AIR 1995 SC 2001: 1995 Supp.(4) SCC 286; George Sebastian v. Molly Joseph, 1994 (2) KLT 387: 1995 Supp.(4) SCC 286; Fr.Sebastian Vadakkumpadan v. Shine Varghese, ILR 2018 (2) Ker.869; and George Sebastian v. Molly Joseph, 1994 (2) KLT 387**_ . 20. The Counsel for the 1[st] plaintiff also argues that the right to worship and get the sacrament services of Holy Communion is a civil right, which cannot be refused and in support of that he relies on _O.P.(C) No. 3026 of 2012_ 16 the decisions in _**Joshua v. Geevarghese Mar Dioscoros, ILR 1985 (1) Ker.1; Varkey v. St.Mary's Catholic Church, 1997 (2) KLT 192; Seline Fernandez v. Bernard Francis, 2012 (4) KLT 283; and Latin Arch Diocese of Trivandrum v. Selin Fernandez, 2013 (4) KLT 283**_ . 21. Receiving a Holy Communion is intrinsically attached to the holy sacraments of a Christian child. It is therefore necessary that the child has to be prepared for the Holy Communion in a manner as decided by the Ecclesiastical Authorities. The bifurcation of Parish is for the purpose of convenience of the parishioners so that they get the essential services from their Parish Church without any let or hindrance. In the instant case, there is absolutely no restriction or impediment for the 1[st] plaintiff's daughter has to get the Holy Communion from her Parish Church at Kochuthope. The parishioners attached to the St.Antony's Forane Church have objected to the Holy Communion to be given in that Church to a person residing within a jurisdiction of a different Church. The constitution of a Catholic Church is a disciplined _O.P.(C) No. 3026 of 2012_ 17 one. The religious rites are performed in a smooth manner. It is not for a person to insist on getting a holy sacrament from a particular Church of his choice. Baptism, Holy Communion, marriage are all sacraments, attached to the Parish Church and the parishioners are expected to get those sacraments performed from the Church to which they are attached. Using the community hall or attending the School cannot be compared to the granting of the Holy Communion, and therefore, the plaintiffs cannot insist on getting the Holy Communion to their children performed from a particular Church of their choice, and that too by the Archbishop himself, as a civil right. True, had they been parishioners of that Church, and the Holy Communion refused by the Vicar of that Church, they could exercise their civil right. But they cannot exercise the civil right which is not sanctioned to them. Moreover, the prayer as it is in the application cannot be granted at all because the 1[st] plaintiff therein had insisted on the Holy Communion to be granted by the Archbishop himself. It is not for the Archbishop, but the Vicar of the Parish _O.P.(C) No. 3026 of 2012_ 18 Church to administer the Holy Communion, after being satisfied that the candidate has successfully completed the attendance of Catechism classes. The courts below were therefore not justified in allowing the application directing the 1[st] defendant to administer the Holy Communion to Hira Solomon, the 1[st] plaintiff's daughter. The impugned order at Ext.P4 and the judgment at Ext.P5 are therefore unsustainable. The interim order of this Court dated 12.04.2017 is recalled and the Original Petition is to be allowed. The court below shall dispose the case expeditiously, untrammelled by what is observed in this judgment. The Original Petition is allowed. No order as to costs. ## **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE** _O.P.(C) No. 3026 of 2012_ 19 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**PETITIONER'S **|**APPENDIX**<br>**EXHIBITS:**| |---|---| |**EXHIBIT P1**|**COPY OF THE PLAINT DATED 24.04.2009 IN O.S.NO.791**| ||**OF 2009 OF THE DISTRICT COURT, TRIVANDRUM.**| |**EXHIBIT P2**|**COPY OF THE AFFIDAVIT AND PETITION DATED 26TH MAY**| ||**2001 IN I.A.NO.3520 OF 2011 IN O.S.NO.791/2009 OF**| ||**PRINCIPAL MUNSIFF COURT, TRIVANDRUM.**| |**EXHIBIT P3**|**COPY OF THE OBJECTION DATED SEPTEMBER 2011 IN**| ||**-DO-**| |**EXHIBIT P4**|**COPY OF THE ORDER DATED 22.10.2011 IN**| ||**I.A.NO.5320/11 IN O.S.NO.791/2009 OF THE**| ||**PRINCIPAL MUNSIFF COURT, TRIVANDRUM.**| |**EXHIBIT P5**|**COPY OF THE JUDGMENT DATED 31.01.2012 IN CMA**| ||**NO.86/2011**<br>**OF**<br>**THE**<br>**ADDL.DISTRICT**<br>**COURT,**| ||**TRIVANDRUM.**| |**EXHIBIT P6**|**COPY OF THE JUDGMENT DATED 08.06.2012 IN OP(C)**| ||**NO.1988/2011 OF THE HIGH COURT.**| |**EXHIBIT P7**|**COPY OF THE LETTER DATED 01.05.2017 FROM THE**| ||**PETITIONER.**| |**EXHIBIT P8**|**COPY OF THE LETTER DATED 02.05.2017 ISSUED FROM**| ||**SOLOMON.**| |**EXHIBIT P9**|**COPY OF THE REPLY DATED 04.05.2017 FROM THE**| ||**PETITIONER.**| |**EXHIBIT P10**|**COPY OF THE MINUTES OF THE MEETING ON 08.05.2017.**| |**EXHIBIT P11**|**COPY OF THE DECISION OF THE MEETING ON**| ||**11.05.2017.**| |**EXHIBIT P12**|**COPY OF THE LETTER DATED 11.05.2017 TO THE**| ||**PETITIONER.**| |**EXHIBIT P13**|**COPY OF THE LETTER DATED 15.05.2017 FROM THE 1ST**| ||**RESPONDENT TO THE PETITIONER.**| ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R1(A) COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 1 TO 3 IN O.S.NO.791/2009 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. EXHIBIT R1(B) COPY OF THE ORDER DATED 30.10.2012 IN I.A.NO. 7774/2012 IN O.S.NO.791/2009. EXHIBIT R1(C) COPY OF THE ORDER DATED 16.01.2013 IN I.A.NOS.116/2013 TO 120/2013.**