ENG - ArticlesOVS - Latest News

Malankara Church – A brief history of the facto and past litigations

The Malankara Church was established by St. Thomas, one of apostles Jesus Christ in 52 A.D. in Kerala. (Malankara means Malayalam speaking). The Malankara Church and its constituent Parish Church are governed and administered under the Constitution made in the year 1934. The Hon’ble Supreme Court of India has, by judgments in 1958, 1995, 2017 and 2018 has concurrently held that the Parish Church are to be Governed by the 1934 Constitution and shall prevail The Catholicate of East who is the Primate of the Malankara Church is vested with all the spiritual and temporal powers.

The Malankara Association framed a constitution on 26-12-1934 at M.D. Seminary at Kottayam, commonly called 1934 Constitution. The Patriarch faction filed a suit as O.S.No.111 of 1113 on 10-03-1938 before the District Court, Kottayam for declaration of title of the properties of the Church and for recovery of possession of the properties. That suit ultimately culminated in the judgment of the Supreme Court of five Judges (Moran Mar Basselios v Thukalan Paulo Avira) AIR 1959 SC 31. The Hon’ble Supreme Court upheld the validity of 1934 Constitution and also the re-establishment of the Catholicate in Malankara.

After the judgment of the Supreme Court, both the Patriarch faction submitted deeds declaring allegiance to the Catholicos and continued as a single church. But this did not last long.

On 10-01-1975, the Patriarch suspended the Catholicos and again dispute and dissention arose in the Church. Consequently the Patriarch faction agains surfaced. It resulted in filing hundreds of suits in various parts of Kerala claiming right over the churches. Ultimately, Hon’ble Supreme Court in PMA Metropolitan case AIR 1995 SC 2001 held that :
i. The revival of the Catholicate is valid.
ii. The spiritual power of the Patriarch is in a varnishing point
iii. The Patriarch has no right to appoint any priests or prelates unilaterally without reference to the Catholicos.
iv. The 1934 Constitution is valid and binding upon all parish churches and shall prevail.

Thereafter as agreed by both the factions, the Supreme Court appointed Justice Mallimath (Retired Chief Justice of Kerala High Court) as an observer to conduct election to the Managing Committee of the Malankara Church and the Trustees. Sri. Justice Mallimath prepared a list of 2024 churches being the constituent churches of Malankara Church and conducted the election on 20-03-2002 at Parumala , Kottayam. The Patriarch faction boycotted the election and conducted a parallel meeting and formed a separate sabha “Yacobaya Suriyani Christiani Sabha” and framed a constitution called 2002 Constitution. The new Sabha declared allegiance to patriarch. A Regional Head by name shresta Catholica and Metropolitans were ordained by the Patriarch. and formed a separate church with their own Constitution. At the same time, the Patriarch group attempted to interfere with the administration of the Malankara Orthodox Churches by appointing Vicars and thereby creating parallel services in Malankara Churches.

Ultimately the Hon’ble Supreme Court in K.S. Varghese v. St. Peter’s & St. Paul’s Syrian Orthodox Church 2017 (3) KLT 261 = (2017) 15 SCC 333. The Hon’ble Supreme Court held as follows:  “The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail. The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to Section 11 Code of Civil Procedure. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e, Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided. It is not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch. Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust. When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the Parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The Church and the Cemetery cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honorably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties. The property of the Church is to be managed as per the 1934 Constitution. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution. The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per Section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered. The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.”

Soon after the above, by virtue of the order dtd. 19.04.2018 in Civil Appeal Nos.3986 – 3989 of 2018, in the matter of St. Mary’s Orthodox Cathedral Church, Piravom which is another constituent church of Malankara Orthodox Church, where there was a representative suit instituted under Order 1 Rule 8 C.P.C, the Hon’ble Supreme Court allowing the Appeals held as follows: “As the controversy in question has been finally decided in the case of K.S. Varghese vs. St. Peter’s & Paul’s Syrian Orth. & Ors. in C.A. NO. 3674 of 2015 etc. decided on 3rd July, 2017 [2017 (15) SCC 333], in which it has been laid down that 1934 Constitution holds the field, nothing further survives in the matters for adjudication. Consequently, the appeals stand disposed of in terms of the above judgment.

Let all the concerned courts and authorities act in terms of the judgment. Let there be no multiplicity of the litigation on this aspect any more in the various courts. The decision rendered in representative suit is binding on all.”

In addition to this, when the case of another constituent parish church (Kattachira Church) came up for before the Hon’ble Supreme Court, by virtue of the Judgment dtd. 28. 08. 2018 in Civil Appeal Nos. 6263-6265 of 2001, 2018 (3) KLT 990 the Hon’ble Supreme Court fully endorsed the view taken in K.S. Varghese case and declared that “as per the consistent findings in the above judgments, the prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan and other authorities appointed by the Malankara Metropolitans per the 1934 Constitution.”

Further, by order dated 02. 07. 2019 in SLP(c) No.12461 of 2019 the Hon’ble Supreme Court held as follows: “In view of the Judgment passed by this court in K.S Varghese & Ors. v. Saint Peter’s and Saint Paul’s Syrian Orthodox Church & Ors., reported in (2017) 15 SCC 333, there is no scope to construe the orders passed by the High Court in a different manner than the order passed by this court on 03.07.2017. There cannot be any violation of the order by anyone concerned. Even the State Government cannot act contrary to the Judgment and the observations made by this Court and has the duty to ensure that the Judgment of this court is implemented forthwith. Any observations made by the High Court contrary to the Judgment passed by this Court stands diluted. The State and all parties shall abide by the Judgment passed by this Court in totality and cannot solve the matter in any manner different than the judgment passed by this Court. No parallel system can be created.’’

In C.A Nos. 7115-7116 of 2019 relating to St. Mary’s Orthodox Church, Kandanad 2019 (4) KLT 1 ; the Hon’ble Supreme Court by order dated 06.09.2019 held as follows: As per Article 141 of the Constitution of India, the law declared by the Hon’ble Supreme Court is binding on all courts and under Article 144, civil and judicial authorities within the territory of India shall act in aid of Supreme Court. Kerala being Indian Territory all concerned are bound to act accordingly. Further it was held that there is no scope for further litigation in the matter and all courts are directed to decide all pending matters following the decision in K.S. Varghese case.

Thus, as it exists now, once a church is a constituent parish church of Malankara Church, what follows is that the declarations in Judgment dtd. 03.07.2017 in Civil Appeal No.3674 of 2015 as affirmed by a three judge bench of the Hon’ble Supreme Court in in Civil Appeal Nos. 6263-6265 of 2001 is applicable to all constituent parish churches.

The findings of the Hon’ble Supreme Court explained above are binding on the Government and its officials. The officers of the State also cannot plead ignorance of the findings of the Hon’ble Supreme Court and seek any leeway in the implementation thereof. Government of Kerala have a bounden duty and responsibility as per Articles 141, 142 and 144 of the Constitution of India to enforce the same. As per Article 144 of the Constitution all civil and judicial authorities should act in aid of the Hon’ble Supreme Court.

it is reliably learnt that in some Constituent Parish Churches of the Malankara Orthodox Church, in total disregard of the judgments and orders of the Hon’ble Supreme Court, persons who are addressing themselves as Patriarch/Jacobite faction are indulging in rampant misappropriation of properties belonging to respective churches. They were creating law and order situation, called for harthals to protest against the judgment of the Apex Court and in total disregard to the binding judgment of the Apex Court has been indulging in nefarious acts. They even openly challenged the authority of the Supreme Court.

With regard to the burial of the dead, the Hon’ble Supreme Court in K.S.Varghese at paragraph 184 (xvii) held as follows :- “ The Church and the cemetery cannot be confiscated by anybody. It has to remain with the parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a parishioner in the church or to be buried honorably in the cemetery, in case he continues to have faith in Malankara Church. The property of the Malankara Church in which is also vested the property of the parish churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be honours thereof even by majority and usurp, the church and the properties. “

Again in para 184 (xxvii) held as follows : “The plea that in face of the prevailing dissentions between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration. “

The Patriarch faction, does not accept the verdict of the Hon’ble Supreme Court and wanted to bury the dead in the cemetery with their Vicars / Priests, which is in utter violation of the judgment of the Hon’ble Supreme Court. On the other hand, the Vicars appointed under 1934 Constitution of the parish churches offered to conduct burial services of the dead and to bury in the cemetery honourably. Since the members of the patriarch faction are not amenable for the services of the Vicar appointed under 1934 Constitution, they create pandemonium in the Church.

For example, Patriarch faction in R.F.A.No.503 of 2018 approached the Hon’ble High Court of Kerala seeking permission to bury the dead by their own Vicars. The Hon’ble High Court by the order dated 05-07-2019 permitted the burial of the dead with the Vicar appointed under 1934 Constitution alone. Similarly O.P.(C).No.3352 of 2017 by the order dated 05-07-2019 held that burial can be done only by a Vicar appointed under the 1934 Constitution. But they did not avail the benefit of the High Court order.

Thus the Patriarch faction want to disobey the judgment of the Supreme Court. The law of the land as declared by the Hon’ble Supreme Court is binding on all and cannot be watered down by resorting to illegal means and by staging dharna in front of the Secretariat or creating chaos in the Church and its premises. And are Indulging various illegal acts and are committing crimes, more than 100 crimes in which the accused are Patriarch supporters. These illegal acts are apparently, after exhausting all legal remedies like appeals, Review petitions and Curative Petitions and Writ petitions before the Hon’ble Supreme Court.

Can Legislature Overpower Court Decisions by an Enactment?