VARKEY Vs. ST MARYS CATHOLIC CHURCH

JUDGEMENT

(1.) The suit OS 202 of 1983 was filed by the appellants herein in a representative capacity seeking a declaration of the right of the Periyappurathu family to have their family members alone buried in the eastern first row of the cemetery established and maintained by the first defendant church, a further declaration that the first defendant church is not entitled to permit burial of those who are not members of Periyappurathu family and for a consequential injunction restraining the defendants from permitting or carrying out burial of dead bodies of persons who do not belong to the Periyappurathu family in the plaint schedule property which is shown as 1 cent on the eastern side of the 14 cents which is the cemetery of the first defendant church. In addition to the church, the Bishop who was the head of the denomination was impleaded as defendant No. 2. The kaikars of the first defendant church was also impleaded as defendants 3 and 4. Additional defendants 5 to 7 were subsequently impleaded. The defendants resisted the suit questioning the jurisdiction of the Civil Court to entertain the suit and also disputed the right claimed by the plaintiffs to have the right to exclusively bury their dead in the first row of the cemetery. The Trial Court held that the court has no jurisdiction to interfere in such a matter and that the plaintiffs have not established any customary right for the exclusive user of the first row of the cemetery for burying the dead in their family. It therefore, dismissed the suit. On appeal by the plaintiffs the lower appellate court also held that the civil court has no jurisdiction to grant a declaration as prayed for by the plaintiffs and that the plaintiffs had failed to establish any customary right enabling them to get a declaratory decree as sought for by them. The lower appellate court therefore, dismissed the appeal. This is challenged by the plaintiffs before me.

(2.) According to the plaintiffs, the first defendant Church was established about l63 years back and the construction of the church building and the establishment of it was at the initiative of the members of the Periyappurathu family of which the plaintiffs are members. The first row of the eastern side of the cemetery of the church had been reserved for the burial of the members of the Periyappurathu family exclusively. This was for the reason that the members of that family had been among the founders of the church and in view of the further fact that they were prominent members of the diocese. The one cent on the eastern side of the cemetery shown as the plaint schedule property had been exclusively set apart for the burial of the members of the Periyappurathu family on receiving a sum of 151 Chakrams (coin of the realm of Travancore State) On 14.11.1982, in a meeting of the congregation of the first defendant church there was a decision to enhance the burial fees from 151 Chakrams to Rs. 151/-. There was a corresponding increase in the burial fees of the other rows also. The practice of reservation of space in the cemetery for burial of the members of particular families is not exclusive or peculiar to the first defendant church. Such reservation is made in almost every other cemetery. Since according to the faith special prayers are to be held on death anniversaries and other auspicious days and it is considered as the duty of every catholic to see the soul of his ancestor rest in peace, the practice of reservation of areas for burial had been resorted to so as to enable the members of the family to offer special prayers at the appropriate location. The members of the Periyappurathu family are thus exclusively entitled to be buried in the first row of the cemetery and the said right is a customary right which had acquired the force of law. On the instigation of certain interested persons who are enemical towards the plaintiffs and their family, the first defendant church is attempting to put an end to the custom or the right of the family, and hence the plaintiffs, representing their family, were constrained to file the suit. The first defendant church in its written statement even denied the claim of the plaintiffs that they belong to the diocese of the first defendant church. The claim that the church was established at the initiative of the members of the Periyappurathu family was not admitted and the plaintiffs were put to proof of the same. The claim that the plaint schedule property, the first row in the cemetery has been reserved for burying exclusively members of the Periyappurathu family was denied. It was contended that the reservation of a row in the cemetery for a particular family was on obnoxious idea and was an objectionable practice contrary to the religion, rites and practices. Equality among the believers is the principle of the church. The claim of the plaintiffs for enforcement of inequality among the dead of the community in the cemetery through the assistance of the Civil Courts is unacceptable. It was admitted that the fee payable (kuzhikkanam) varied from row to row. All parishioners have no claim as of right to have their dead buried in the church cemetery and they had to obtain the consent of the Vicar and without obtaining such consent and without paying kuzhikkanam no dead person could be buried in the church cemetery. Burial in the first row of the cemetery after obtaining such consent will not confer on the plaintiffs any right to bury in the first row any other member of their family who dies later. Nor can such a claim mature into a right to bury the dead in the first row. The first defendant church had every right to permit the members of the parish to bury their dead relatives in the first row or in any other row in the cemetery. The plaintiffs have no right to object to the same. The declaration sought for could not be granted and the suit was not maintainable. The plaintiffs were not entitled to any relief. The second defendant Bishop, Palai filed a written statement contending that the suit is not maintainable and the cognisance of the suit is barred. The plaintiffs had not claimed or made out any legal right for the grant of the relief prayed for by them. The second defendant adopted the written statement of the first defendant and further denied the custom asserted in the plaint. The second defendant also pleaded that inequality and exclusion of the other parishioners from burying in the first row of the church cemetery is contrary to the laws of the church. The church cemetery belongs to the church and no member of the parish has the power to claim as of right, the privilege to bury him after his death or his dead relative in the church cemetery. The church cemetery being the church property, the Vicar has the right to refuse to bury a parishioner or his relative in the church cemetery according to the laws of the church. The burial in the church cemetery and the rites attached to burial are religious practices and rituals. Under Art.26(b) of the Constitution of India every religious denomination, or any section thereof has the right to manage the affairs of the church in religious matters. The church cemetery is a sacred place for catholics and the burial in the church cemetery is accompanied by the priest and in the manner provided by the laws of the church and hence it is a matter of religious faith and the court cannot interfere or curtail that fundamental right by way of an injunction. It was further contended that the plaintiffs were not entitled to the injunction sought for. The dismissal of the suit was prayed for. Defendants 3 and 4, the Kaikars of the church adopted the contentions of the first defendant.

(3.) The Trial Court took the view that the factors pertaining to the burial in the church cemetery are controlled by the Canon Law. Canon 1184 lists the persons who are to be denied the funeral rites in the church cemetery. Canon 22 provided that when the law of the church remits some issue to the civil law, the civil law has to be observed with the same effect as Canon law in so far as it is not contrary to Divine Law and provided it is otherwise stipulated in Canon Law. It also referred to Canon 24 which provided that no custom which is contrary to Divine Law can acquire the force of law. According to the Trial Court, these provisions in the light of Art.26(b) of the Constitution of India, would preclude the Civil Court from interfering in the matter in dispute in the present case in the absence of other specific enactments defining the civil rights of parties in this regard. According to the lower appellate court what is sought by the plaintiffs is a decree directing the church not to interfere with the right to bury the dead members of the Periyappurathu family as well as to forbid the church from granting permission to bury the dead bodies of their parishioners belonging to other families and that right is essentially a matter relating to the internal religious affairs of the church. There was no law which governed or provided as to how a church and the cemetery should be governed or run as enacted by Parliament and hence going by the Canon Law the Civil Court has no jurisdiction to grant a decree as prayed for by the plaintiffs. So long as there was no law enacted by the Parliament which would cover the matter, the Canon Law should be applied to the matter in dispute and if that be so, the Civil Court had no jurisdiction to grant the declaration sought for by the plaintiffs. In this context, I must observe that neither of the courts below have considered what is the nature of right of burial, whether it is a mere religious right or a civil right which could be enforced through a court of law before coming to the conclusion that the Civil Court had no jurisdiction to grant any relief to the plaintiffs in this case.