Kerala High Court
Against The Judgment & Decree Dated ... vs &
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939
RSA.No. 64 of 2017
JUDGMENT PASSED AFRESH AFTER ALLOWING A REVIEW PETITION NO.450/2017
AGAINST THE JUDGMENT & DECREE DATED 20-12-2008 IN AS 244/2004 of
II ADDL.DISTRICT COURT, ERNAKULAM
AGAINST THE JUDGMENT & DECREE DATED 24-11-1990 IN O.S.923/1989
OF ADDL.MUNSIFF COURT, ERNAKULAM
APPELLANTS IN RSA/APPELLANTS IN A.S.244/2004 & RESPONDENTS 2 & 3 IN A.S.245/2004
& DEFENDANTS 1 & 2 IN O.S.:
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1 FR. GEORGE MANJANKAL, FORMER VICAR, AGED 78 YEARS,
KIZHAKKE NATTASSERY HOLY FAMILY CATHOLIC CHURCH,
NATTASSERY, KOTTAYAM -4, NOW RESIDING AT
NIRMALARAM MOUNT ST.JOSEPH P.O., BANGALORE.
2 RT. REV. KURIAKOSE KUNNASSERY, AGED 81 YEARS,
BISHOP OF KNANAYA CATHOLIC DIOCESE,
(KOTTAYAM DIOCESE), BISHOP'S HOUSE,
CATHEDRAL WARD, KOTTAYAM.
BY ADVS.SRI.K.JAYAKUMAR (SR.)
SRI.N.AJITH
SRI.M.J.THOMAS
RESPONDENTS/RESPONDENTS IN A.S.NO.244/2004/RESPONDENT & APPELLANT IN A.S.
245/2004/PLAINTIFF & ADDL. DEFENDANT IN OS.:
1. BIJU UTHUP, S/O.UTHUP, AGED 58 YEARS,
EMPLOYED AS PROJECT MANAGER,
ADA NATIONAL AERONAUTICAL LABORATORY,
BANGALORE, FROM ORAVANKALAYIL HOUSE,
ERANJAL, KOTTAYAM-4.
2. KNANAYA CATHOLIC CONGRESS
KOTTAYAM REPRESENTED BY PRESIDENT,
M.C. ABRAHAM, AGED 80 YEARS, MAKKIL HOUSE,
CHELLIYOZHUKKAM, KOTTAYAM.
R1 BY ADV. SRI.ANEESH JAMES
R1 BY ADV. SRI.K.C.ELDHO
R1 BY ADV. SRI.JIJO THOMAS
R1 BY ADV. SMT.KRISHNA SANTHOSH
R1 BY ADV. SRI.KANDAMPULLY VIKRAM
R1 BY ADV. SRI.MALLENATHAN.M.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. HARILAL, J.
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R.S.A.No. 64 of 2017
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Dated this the 14th day of March, 2018
JUDGMENT
This Regular Second Appeal had been dismissed by the judgment dated 30.1.2017. Thereafter the appellants filed Review Petition No.450/2017 to review the impugned judgment. The said Review Petition was heard and allowed on 14.3.2018. Consequently the judgment dated 30.1.2017 was recalled, the R.S.A. was reopened and re-heard, and this judgment is passed accordingly. The appellants are the defendants in O.S. No.923/1989 on the files of the Additional Munsiff's Court, Kottayam. The first defendant is the Vicar of the Holy Family Parish Church, Nattassery, Kottayam, and the second defendant is the Bishop of the Knanaya Catholic Diocese and the additional 3 rd defendant is the Knanaya Catholic Congress, Kottayam, represented by its President and got impleaded in the suit as per order in C.R.P.No.495/90-D of this Court. The aforesaid suit was one for mandatory injunction directing the defendants to issue a R.S.A. No. 64 of 2017 -: 2 :- 'Vivahakuri' to the plaintiff. The plaint averments, in brief, are as follows: (The parties are referred to as in the Original Suit for convenience.)
2. According to the plaintiff, the plaintiff, his parents and other memebrs of the family are members of the Knanaya Catholic Community attached to the Holy Family Parish Church, Nattassery. They were accepted and acknowledged as members of the said Church from 1977 onwards, before that also, they were members of other Parish Church coming under the jurisdiction of the Kottayam Diocese. His parents' marriage was conducted on 22-10-1956 in the Little Flower Knanaya Catholic Church, Othara, a Parish Church, coming under the Kottayam Diocese. He was baptised in the said Church. As per the Canon Law and Rules and Practices governing the Kottayam Diocese and Parish Churches, the plaintiff is entitled to have every religious rites performed and conducted by the Vicar of the said Church. Nobody has any right to deny the said privilege, unless the plaintiff is R.S.A. No. 64 of 2017 -: 3 :- interdicted from the community or Church by a competent Ecclesiastical Authority. On the above belief, the plaintiff's parents have made arrangements for his marriage with Leena, who is a member of St. Mary's Churth, Vithura, coming within the Kottayam Diocese. Issue of 'Vivahakuri' is a condition precedent or the conduct of betrothal and marriage ceremony and the 1st defendant is obliged to issue 'Vivahakuri' to him. When the plaintiff's parents approached the 1 st defendant requesting to issue of the same, initially, he agreed to issue 'Vivahakuri''; but, subsequently, refused to grant the same and it is learnt that the subsequent refusal was at the instance of the 2 nd defendant. Though the plaintiff's father had appealed to the 2 nd defendant on 21-4-1989, no decision has been taken by the 2nd defendant on the said appeal. The plaintiff, under the said circumstance put up a representation on 26-6- 1989 before His Holiness the Pope. His father made a representation to the Apostolic Pro-nuncio, New Delhi, R.S.A. No. 64 of 2017 -: 4 :- and the Apostolic Pro-nuncio, in turn, after due consultation with Vatican, has given necessary direction to the 2nd defendant. But, when the plaintiff appraoched again, the 2nd dedfendant, he failed. The petitioner further submits that the conduct of 1st and 2nd defendants is illegal and amounts to denial of the right of the plaintiff as a member of the Kottayam Diocese, Kottayam. The plaintiff, as a member of the Parish Church of Kottayam Diocese, is entitled to get 'Vivahakuri' under the Common Law as well as Canon Law and the Rules and Regulations governing the affiairs of the Church and the denial is highly unjust, unfair, unreasonable and opposed to all canons and the principles of Holy Catholic Church. Hence the suit was filed and prayed that a mandatory injunction be issued directing the defendants to issue 'Vivahakuri' for the conduct of the plaintiff's marriage, invoking equitable and discretionary jurisdiction under Sec. 39 of the Specific Relief Act.
R.S.A. No. 64 of 2017-: 5 :-
3. Defendants 1 and 2 jointly set up a defence in the written statement mainly contending that the suit itself is not maintainable as it is not of a civil nature. The question, in controversy, is one relating to community and its custom and thereby, the civil court lacks jurisdiction to try the suit. They denied the claim of the petitioner that he is a member of the Knanaya Catholic Community. Since there is no prayer for declaration that the plaintiff is a member of the Knanaya Catholic Community and that he has a right to get 'Vivahakuri', the suit is not maintainable. The claim of the plaintiff that his parents and other members of the family are members of the Knanaya Catholic Community attached to Holy Family Parish Church of Nattassery, Kottayam Diocese is also not correct and hence denied. According to the defendants, they are not members of the Knanaya Catholic Community. A 'Knanite' is one who is born to 'Knanite' parents and who has not married a non-knanite. The plaintiff's father was a Knanite; but his R.S.A. No. 64 of 2017 -: 6 :- mother was not born to Knanite parents as her mother was not a Knanite. His mother Annamma was born out of a marriage between Knanite father and non-knanite Latin Catholic mother. Even though his father was a Knanite, by the marriage with Annamma, the mother, he also ceased to be a Knanite. In short, the plaintiff's maternal grandmother was not a Knanite and she was a Latin Catholic and thereby, the maternal grandfather also ceased to be a Knanite. Thus, endogamy has been practised in the community for centuries and therefore, the defendants are inclined to conitnue that custrom of retaining their endogamous nature.
4. The Knanite Christians of Kerala are the descendants of Thomas Cana (Knai Thomma) and the 72 families who migrated to India from the Middle East in 345 AD. Thomas Cana was a Jewish Christian merchant who arrived at the Port of Crangannore along with about 400 men, women and children with Mar Joseph, the Bishop of Edessa and a few Priests. The present Knanite R.S.A. No. 64 of 2017 -: 7 :- Christians in India are all the descendants of the aforesaid 72 families. They have special customs related to marriage, death and birth. So far, the Knanites have remained an endogamous community having no marital relationship outside the community and thereby, they have maintained their ethnic identity, integrity and racial purity. The Knanite Christians are divided into 'Knanite Catholics' and 'Knanite Jacobites' and the marriage between them is permissible. On 29th April, 1955, Pope Pius XII granted a decree to the Bishop of Kottayam to exercise jurisdiction over all the Knanite Catholics of Syro Malabar Territory. Though non-knanite Catholics are allowed to participate in the religious and liturgical functions and to receive sacraments in the Knanite Catholic Church, they are not allowed to become members of the Parish Church and a marriage between a Knanite and non-knanite is not allowed to be blessed in the Churches coming under the Kottayam Diocese because such a marriage is considered as an offence and R.S.A. No. 64 of 2017 -: 8 :- insult to the Knanite Catholic Community, its tradition and heritage. There is no merit in the contention that the plaintiff and other members of the family were accepted and acknowledged as members of the Holy Family Parish Church, Nattassery. Even if they were accepted, as members of the Parish, it was only under a mistaken notion that they are Knanites. The defendants are not aware of the circumstances under which the marriage of the plaintiff's parents was allowed to be conducted in the Little Flower Knanaya Catholic Church, Othara, on 22-10-1956. The genuineness of the certificates produced by the plaintiff is disputed. Even if the plaintiff was baptised in the Little Flower Knanaya Catholic Church, Othara, he could not have acquired the membership of that Church. All the privileges enjoyed by the plaintiff, till date, as a member of the Parish in the Knanaya Churches, could only have been under a mistaken belief or misrepresentation and therefore, the plaintiff cannot take advantage of that. Since there was R.S.A. No. 64 of 2017 -: 9 :- a clear admission by the plaintiff's father that the plaintiff's maternal grandmother was a non-knanite, the plaintiff's mother and the plaintiff would become non- knanites. The plaintiff's parents were personally told by the second defendant regarding his inability to issue a 'Vivahakuri' under the abvoe mentioned circumstances. If permission is granted by the 2nd defendant to the plaintiff for conducting his marriage in a Knanaya Catholic Church, it would hurt the feelings and religious sentiments of the entire Knanaya Community and the centuries old tradition will stand violated. There is no violation of any Canon Law and therefore, prayed for dismissal of the suit.
5. The Knanaya Catholic Congress, Kottayam, represented by its President, was impleaded as the additional 3rd defendant and they also filed a written statement denying the plaint averments and stood by the endogamy pleaded by the 1st and 2nd defendants. According to them also, the Community is an Endogamus R.S.A. No. 64 of 2017 -: 10 :- Society permitting marriage only within the community. The marriage of a Knanaya Catholic member with a non- knanite would entile in his or her ceasing to be a member of the Community. The suit was filed without sanction of the court under Order 1 Rule 8 of the CPC. They also prayed for dismissal of the suit.
6. In view of the rival contentions, the trial court framed the issues which are given below:
b