Malankara World

History of Church

An Analysis of the Present Legal Scenario in Church - 2007

by Chev. Adv. Philip John

THE PRESENT POSITION IN THE SYRIAN ORTHODOX CHURCH IN KERALA.

1. A major litigation initiated in 1974 by the Catholicos cum Malankara Metropolitan of the Malankara Orthodox Church, OS No 142 OF 1974, of The subordinate Judges Court, Kottayam.

2. The defendants in the suit were metropolitans and priests ordained and appointed by them to parish churches. They were sued as representatives of the section in the Malankara Church who were opposing the authority of the Malankara Metropolitan cum Catholicos and the 1934, Constitution. The prayer in the petition under Order 1 Rule 8 of the Code of Civil Procedure, 1908, filed in the said suit is as follows, viz:

The said petition was allowed and publication was given in News Papers. A true copy of the Order 1 Rule 8 petition is enclosed as Annexure-1. A true copy of the publication in News Papers is annexed as Annexure-2.

3. In response to the said paper publication, several parish churches filed impleading applications to get themselves impleaded in the suit through their respective trustees. It was dismissed by the trial court and then confirmed by the High Court of Kerala. They contended that if the first relief in the suit is granted, it will affect the autonomy and individuality of the individual parish churches and, therefore, they should be impleaded as defendants to the suit. It was held by a learned single judge of Kerala High Court as follows:

I do not think that this apprehension is well founded. Even under Order 1 Rule 10, a party does not have any inherent right to get himself impleaded; that lies in the discretion of the court on being satisfied that the petition is well founded on merits. The counsel for the contesting respondents [plaintiffs] would contend that all that the plaintiffs want is for a declaration of the supervisory and spiritual control over the Church.

Accordingly the revision petitions were dismissed. [Refer page 2070 of AIR 1995 SC 2001, left hand side column].

4. The suit mentioned above was taken up along with eight other connected suits for trial by the First Additional District Court, Ernakulam. After the completion of trial it was transferred to High Court of Kerala by an order passed by the Supreme Court of India and arguments were heard by a learned single judge therein. All the suits were dismissed by judgement dated 6.6.1980. The plaintiff- Catholicos cum Malankara Metropolitan preferred AS 331 of 1980 before a Division Bench of the High Court of Kerala but no stay of operation of findings was granted. The Appeals were ultimately heard in 1989 and judgement was rendered on 1.6.1990 allowing them and decreeing the suit as prayed for.

5. The defendants in the suit/Patriarch section challenged the judgement and decree of the Division Bench in the Supreme Court of India by filing a Special Leave Petition. After ordering notice in the Special Leave Petition the Apex Court directed that the existing mode of management and conduct of religious services shall be continued as such in all the churches until the final disposal of the Appeal by orders passed on 12.4.1991, 31.10.1991 and 5.12.1991.

6. It culminated in the Judgment and decree of the Supreme Court of India and its due execution. The judgment of the Apex Court is reported in AIR 1995 SC 2001, AIR 1996 SC 3121 and AIR 1997 SC 1035.The decree was framed and corrected pursuant to the directions contained in AIR 1997 SC 1035.

7. The Apex Court itself directed execution by consent order rendered in Civil Appeal No 8185 of 2001 dated 28.11.2001 [reported in KLT].

8. The execution of the decree resulted in the formation of the Malankara Association by conducting election in accordance with clause 71 of 1934, Constitution amended by the Apex Court. It also resulted in the formation of a new Managing Committee of the Malankara Orthodox Church.

9. LEGAL EFFECTS OF THE ABOVE PROCEDURE IS AS FOLLOWS, viz.,

[A] There is a legally valid Managing Committee for the Malankara Orthodox Church approved by the Supreme Court of India.

[B] The said Managing Committee took its decisions in August 2002, deciding upon the holders of the posts of the various Diocesan Metropolitanship in the Malankara Orthodox Church.

[C] The result is that there is injunction decree against all those metropolitans and authorities under them who are not recognized as above from entering into, conducting religious services in the parish churches of the Malankara Orthodox Church. In other words the injunction decree of the Division Bench of Kerala High Court will come into effect from August, 2002, against defendants in OS 142 of 1974 of Kottayam Subordinate Judge's Court/ OS 81 of 1977 of the First Additional District Court, Ernakulam / OS No 4 of 1979 of Single Judge's Court of High Court of Kerala.

[D] This is the scope and effect of the status quo directed to be maintained till the decision of the managing committee of the malankara Association in AIR1996 SC 3121 as follows, viz:

Another controversy which was raised before us relate to the appointments made on or after January 1, 1971, up to the date of the judgement of this Court. It is submitted that in respect of some posts, appointments have been made by both the groups, with the result that in respect of certain offices/posts, there is more than one claimant. At this juncture, it is not possible to give any specific directions as to who among the two contenders is the legitimate incumbent. It is accordingly directed that the status quo as on the date of the judgment shall continue until a new Managing Committee is elected. The said Managing Committee can decide the said dispute, if and when necessary. [Paragraph 6 at page No 3126 of AIR 1996 SC 3121].

[E] The above direction was followed by further direction in AIR 1997 SC 1037 as follows, viz:

In Part II of the order dated March 25, 1996, the following sentence shall be inserted before the last sentence:

The above direction is subject to the condition that any and every person claiming to hold any office or post in this Church shall be bound by and shall swear allegiance to the 1934, Constitution.

[F] During this period a Suit with respect to the Pothanicad Church was conducted by the Patriarch Group of the Malankara church taking up the contention that the Supreme Court judgement and the 1934, Constitution of the Malankara Church are not binding on the parish churches. The Patriarch Group lost the said litigation at all levels from the trial court till the Supreme Court of India. The result is that the said Church has been lost and it is under the control of the Orthodox Church now.

[G] A similar judgement was rendered in the suit relating to Odakkaly Church of Angamaly Diocese by the trial court. When Appeal was filed in the High Court of Kerala by the defendants therein /Patriarch Group, viz[1] His Grace Thomas Dionysius Metropolitan and priests appointed by him, the Judge of High Court refused to allow status quo unless they swear allegiance to 1934, Constitution as directed by Apex Court. If this were not done, the fate of Pothanicad Church would have repeated itself in Odakkaly Church and other Churches also.

[H] A leading lawyer of the Supreme Court of India was engaged to argue the stay petition in the Appeal of Odakkaly Church case= A S 117 OF 1998. As per the desire of the Apex Court all the Appellants inclusive of His Grace Thomas Mar Dionysius metropolitan [ As His Beatitude then was ] , filed affidavits swearing allegiance to 1934, Constitution subject to and in accordance with the Supreme Court judgement. It was thereafter that the order to maintain status quo was directed in the Odakkaly Church Appeal.

[I] This resulted in continuance of Odakkaly Church with the then Patriarch Section of the Malankara Church. This practice was followed by all the then metropolitans of the Patriarch Group to see that the parish churches are not captured by the Catholicos faction of the Malankara Church. These affidavits filed by the authorities of the Patriarch Group are public court records, copies of which can be obtained by anyone.

[J] It is pertinent to notice that the entire parishioners of the Piravom Valiapally and Kattachira Church have filed affidavits swearing allegiance to 1934, Constitution to see that new managing committee and trustees are elected therein and members of the Patriarch Group get administration of those churches.

[K] It is clear that the direction to maintain status quo by the Apex Court was transitory to continue only till the new Managing Committee of the Malankara Association takes decision as to the lawful incumbent of the offices/posts of the Church. This decision was taken in August, 2002.. The result is that the reliefs asked for by the Plaintiff in the Suit/Appellant in the Civil Appeal before the Apex Court stands allowed, vis--vis the defendants and those whom they represented in the suit. It is well settled that all those who are represented are considered as parties to a representative suit. Refer to AIR 1990 SC444.

[L] By reason of the fact that the judgment of the Apex Court is in a representative suit, all findings and declarations therein are binding on all those who were represented in the suit. All metropolitans who are not approved by the managing committee are injuncted from ordaining priests or deacons or performing any other sacraments, service etc; for the Malankara Church or its institutions. The defendants 4 onwards who are priests and their representatives are injuncted from performing any religious service or sacraments whatsoever in or about any of the church of Malankara and for the Malankara Church or its constituent churches or institutions. They are also prohibited from interfering in any manner with the administration of the Malankara Church. Declarations [B] to [E] prayed for in the suit are also assumed to be granted from August, 2002.

[M] As far a declaration [A] is concerned, it may be seen that there are three parts to it. The first part is to declare that the Malankara Church is Episcopalin character. The Apex Court has categorically held that the Malankara Church is Episcopal to the extent that it is declared in the 1934, Constitution.

[N] The second part is to declare that the Malankara Church is not a union or federation of autonomous church units. The Division Bench granted this declaration as prayed for but the Apex Court has clearly disapproved it as can be seen from paragraph 141, page No 2069, and the foot-note therein on the right hand column. The claim of the plaintiff in the suit that each parish church is a constituent unit of the Malankara Church has not been granted by the Apex Court. It is also found that the Catholicos, Malankara Metropolitan, Diocesan Metropolitan does not have any title to or control over the properties held by the Parish Churches. It is made clear that the power of the Malankara Metropolitan or the Metropolitans in temporal affairs is with respect to the Common Properties [Samudayam Properties ] of the Malankara Church.

[O] The third part of the first declaratory relief is that Malankara Church is governed in its administration by the Constitution of the Malankara Church. In paragraph 141 of AIR 1995 SC 2001, at page 2070 and paragraph 142 [8] at page 2071 it was observed that the 1934, Constitution governs the affairs of the Parish Churches too in so far as it does. It is also declared as follows,

If the plaintiff mean merely spiritual control by saying Episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means control over the temporal affairs of, or title to or Control over the properties of, the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of the concerned Parish Churches. It also appears that each of these Parish Churches/Associations has its own Constitution, whereunder the general body of the Parishes is declared to be the final authority in temporal matters. All this is mentioned only to emphasize that in the absence of Parish Churches and proper pleadings and proof, no declaration touching the Parish Churches can be granted in these suits.

10. The 1934 Constitution was passed by the MALANKARA Association. Clauses 6 to 44 therein provide for administration of the PARISH churches.

11. The Malankara Association is an organization formed at Mulanthuruthy SYNOD OF 1876. It was admittedly attended by representatives of the then existing 103 churches. The Syrian Christian Association was formed therein from among those who attended the meeting. 103 Churches also became members of the said Association by making payment of a membership fee as provided in the Mulanthuruthy SYNOD resolutions. The purpose of its formation was to check the autocracy of the Metropolitan and to prevent mismanagement of Church affairs as held in paragraph 145, page No 2072 of AIR 1995 SC 2001.

12. It is clear that the Malankara Association is for management of the Common affairs of the Malankara Church. The election of the metropolitan, priest and lay trustee were held in the Malankara Association.

13. 1934 Constitution was admittedly passed in the Malankara association and it amounts to an agreement among the members of the Malankara Association. However, the rights to control and administer the properties of the Parish Churches were never vested in the Malankara Association or the authorities selected by it. This fact is clear from the judgement of the Apex Court also.
14. The Malankara Association is, therefore, nothing but a Voluntary Association of Parish Churches. The object of foundation of each of the parish churches is to have religious services being conducted therein only by those religious dignitaries possessing spiritual grace from the Apostolic throne of St. Peter at Antioch through HH the Patriarch of Antioch or His authorized delegates.

15. It was in the above circumstances that the Parish Churches of the erstwhile Patriarch Group decided to form the Jacobite Syrian Christian Association by opting out of the Malankara Association. This was consistent with the fundamental rights guaranteed under Article 19[1][c], 25 and 26 of the Indian Constitution. The validity of this formation was put in issue in the Writ Petition culminating in the judgement of Division Bench of High Court of Kerala reported in 2003 [1] KLT 780. The said judgement upheld the right of the Parish Churches to opt out of the Malankara Association. The Apex Court has, in its judgement reported in 2007 [3] KLT 349 [SC], LEFT OPEN ALL THE QUESTIONS DECIDED BY THE High Court of Kerala to be decided in Civil Suits relating to parish churches.

16. What does the above signify? Does it not show clearly that the only manner by which the Parish Churches can escape the clutches of the authorities of the Malankara Orthodox Church, is to plead and prove that they have legally opted out of Malankara Association and joined the Jacobite Syrian Christian Association?

17. It will be untenable to contend that Parish Churches are independent, that they are not bound to accept the authorities of the Orthodox Church because that will violate the object of foundation of the parish churches, if the issue of legality of opting out of the Malankara Association is not argued in the most appropriate manner. If this is not done, the Courts will assume that the Churches are within the Malankara Association and then readily hold that they should be administered by the 1934 Constitution of the Malankara Orthodox Church. This is exactly what happened in Chuvannammannu and Palakuzha Church cases, Kurinji Church and Kunnakkal Case, followed by Thammanimattom Chapel. The fact that Kunnakkal church case was dismissed for the technical reason that there is no sanction granted to institute the suit under section 92 of CPC, 1908, carries us no where. Most of the other suits are instituted with sanction under Section 92 of the CPC, 1908.

18. THE ONLY CONTENTION OPEN TO THE JACOBITE CHURCH IS TO THE EFFECT THAT THE PARISH CHURCHES HAVE OPTED OUT OF MALANKARA ASSOCIATION IN EXERCISE OF FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLE 19[1][C] OF THE CONSTITUTION OF INDIA. ALL OTHER ISSUES ARE CONCLUDED BY THE APEX COURT JUDGEMENT, ORDERS AND THEIR EXECUTION.

19. EACH PARISH CHURCH AGAINST WHICH SUITS ARE INSTITUTED SHOULD BRAVELY TAKE UP THE CONTENTION THAT THEY HAVE OPTED TO JOIN THE JACOBITE SYRIAN CHRISTIAN ASSOCIATION. THIS IS A SUBSTANTIAL QUESTION OF LAW INVOLVING INTERPRETATION OF THE CONSTITUTIONAL PROVISIONS AND, AS SUCH, THE DISTRICT JUDGE AND OTHER LOWER COURTS HAVE NO JURISDICTION TO TAKE A DECISION ON THIS ISSUE. IT CAN ONLY BE DECIDED BY THE HIGH COURT UNDER ARTICLE 228 OF THE CONSTITUTION OF INDIA.

20. STEPS SHOULD, THEREFORE, BE TAKEN IN EACH SUIT TO GET THE ISSUE TO BE REFERRED TO THE HIGH COURT FOR A FINAL DECISION ON THIS MOST IMPORTANT CONSTITUTIONAL QUESTION. IT IS IN THE INTEREST OF THE PARISH CHURCHES AND ITS PARISHIONERS THAT THIS STEP IS INITIATED IMMEDIATELY. OTHERWISE, IT IS MORE THAN LIKELY THAT ALL THE CIVIL SUITS WILL BE DECIDED AGAINST THE INTERESTS OF THE JACOBITE CHURCH.

See Also:

History of Church Cases at a Glance, Litigation Among the Members of Syrian Christians in Malankara - An Overview

Full Text of Recent High Court Judgement on Mediation

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