WP(C).39357/15 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941
WP(C).No.39357 OF 2015(T)
PETITIONER/S:
1 SANTHOSHKUMAR S.
AGED 32 YEARS
S/O.SREEDHARAN, CHETHIATHIRUVILA VEEDU,VADAKKEVILA,
BALARAMAPURAM,THIRUVANANTHAPURAM.
2 SHAINI
AGED 26 YEARS
D/O.STEEPHEN, SHAINY SADANAM,
THENGEVILAKUZHI,VADAKARA, MARAYAMUTTOM,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENT/S:
1 CHURCH OF SOUTH INDIA
DISTRICT CHURCH (CSI DISTRICT CHURCH),BALARAMAPURAM
P.O. PIN 695 501. [ADDRESS OF R1 IS CORRECTED AS
‘CHURCH OF SOUTH INDIA,SOUTH KERALA DIOCESE (SIUC),
L.M.S. COMPOUND, PALAYAM, THIRUVANANTHAPURAM – 695
034, REPRESENTED BY ITS SECRETARY.’ AS PER ORDER
DATED 13.01.2016 IN IA 516/16.]
2 ALBERT JOHN
DISTRICT CHAIRMAN AND PRESBYTER,CSI DISTRICT
CHURCH,BALARAMAPURAM P.O., PIN – 695 501.
3 PRAVEEN R.P. STANLEY
DISTRICT SECRETARY, CSI DISTRICT
CHURCH,BALARAMAPURAM P.O. PIN 695 501.
4 MISS SHIJI G.K
AGED 25 YEARS
D/O.KANAKA BAI, REYA BHAVAN, MUDAVALLOORKONAM,
NARUVAMOODU, PALLICHAL VILLAGE, THIRUVANANTHAPURAM
DISTRICT.
WP(C).39357/15 2
ADDL.R4 IS IMPLEADED AS PER ORDER DATED 5.1.2016 IN
I.A.NO.25 OF 2016.
R1, R4 BY ADV. SRI.T.N.MANOJ
R1, R3 BY ADV. SMT.K.R.RIJA
R1 BY ADV. SRI.SUMAN CHAKRAVARTHY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-03-2019, THE COURT ON 30-09-2019 DELIVERED THE FOLLOWING:
WP(C).39357/15 3
V.G.ARUN, J.
———————————————–
W.P(C).No.39357 of 2015
———————————————–
Dated this the 30th day of September, 2019
JUDGMENT
The petitioners had filed the writ petition when their marriage,
which was proposed to be solemnized on 28.12.2015 at the 1 st
respondent Church, was refused to be solemnized pursuant to Exhibit
P8 communication received from the South Kerala Diocese of the
Church of South India. The petitioners therefore pray for the issue of a
writ of certiorari to quash Exhibit P8 and for a writ of mandamus
directing respondents 1 and 2 to solemnize the marriage of the
petitioners on 28.12.2015 itself. The interim prayer to direct
respondents 1 and 2 to solemnize the marriage on 28.12.2015 itself
was declined and therefore the marriage did not take place as
announced.
2. Sri.Vinod S.Bhat, the learned counsel for the petitioners
submits that the marriage of the petitioners was subsequently
registered under the SectionSpecial Marriage Act but, the question as to
whether the Church or the Diocese, of which the petitioners are
members, can refuse to solemnize their marriage require
consideration.
WP(C).39357/15 4
3. The essential facts involved in this writ petition are as follows:
The 1st petitioner is a member of the 1 st respondent Church and
had submitted an application for marriage. The 2 nd petitioner, who is a
member of the CSI Church, Thenguvilakuzhi, had also submitted an
application for marriage. Thereafter, pre-marriage counselling of the
petitioners was conducted from 1.10.2015 to 3.10.2015 and certificate
was issued evidencing successful completion of the pre-marriage
counselling. Thereafter, the petitioners remitted Rs.1,000/- each at
their pastorates for the purpose of publishing/announcing notice of
their intended marriage during the prayer services on the three
succeeding Sundays. Accordingly, notice regarding the proposed
marriage of the petitioners was read out on 8.11.2015 and 15.11.2015.
At that point of time, the additional 4 th respondent raised objections
against the proposed marriage and filed a complaint before the
ecclesiastical court alleging that the 1st petitioner had promised to
marry the 4th respondent and had thereby deceived her into having
sexual intercourse with the 1st petitioner and that when the 4th
respondent realised the deception, she had filed a complaint before
the Balaramapuram Police Station, which had resulted in Crime No.573
of 2015 being registered against the 1 st petitioner for the offence
under Section 376 IPC. On receipt of the objection, the 1 st petitioner
was directed to appear before the ecclesiastical court of the Diocese.
The 1st petitioner appeared and submitted his explanation stating that
WP(C).39357/15 5
a patently false complaint had been filed by the 4 th respondent out of
personal animosity. By Exhibit P8, the ecclesiastical court upheld the
4th respondent’s objection and decided that the marriage between the
petitioners cannot be solemnized in the 1st respondent Church.
4. According to the petitioners, solemnization of marriages by the
1st respondent Church is subject to the provisions of the SectionIndian
Christian Marriage Act, 1872 and the Constitution of the CSI Churches.
As such, the 1st respondent is exercising a public function and hence is
amenable to the jurisdiction of this Court under SectionArticle 226 of the
Constitution of India. The petitioners allege that Exhibit P8 decision is
actuated by mala fides, in as much as the members of the Committee
which had taken Exhibit P8 decision had personal animosity against
the petitioners. It is contended that neither under the provisions of
Chapter XII of the Constitution of the CSI Churches dealing with
marriage of the members of the CSI Church nor the provisions of the
SectionIndian Christian Marriage Act, 1872, the 1st respondent has the
authority to refuse solemnization of marriage alleging moral turpitude
on one of the parties to the marriage.
5. A counter affidavit has been filed by the 3 rd respondent, in his
capacity as District Secretary, CSI District Church, Balaramapuram. In
the counter affidavit it is contended that the Church, while
solemnizing a marriage, is not performing any public duty, public
function or statutory duty. It is contended that merely because the
WP(C).39357/15 6
SectionChristian Marriage Act prescribes the procedure, that by itself will not
bring ecclesiastic acts within the sweep of public duty. That, the
Church does not come within the purview of SectionArticle 12 of the
Constitution of India and hence, the writ petition seeking to quash the
decision by the Diocese Committee and a writ of mandamus directing
the Church to solemnize the marriage is not maintainable. It is
contended that the 4th respondent had filed an objection pointing out
her relationship with the 1st petitioner and the registration of a crime
against the 1st petitioner at her instance for the offence under Section
376 IPC. On receipt of the complaint, the Church Committee referred
the matter to the Five Member District Court of the Church attached to
the District Council. Thereupon, notice was served on the 1 st petitioner
to offer his explanation. The 1st petitioner engaged a lawyer and filed
Exhibit P5 statement. Thereafter, the Bishop deputed by the Synod of
the Church of South India, who is the supreme authority of the
Diocese, sought legal opinion from the Advocate of the Diocese.
Exhibit P8(a) is the legal opinion wherein it was opined that the Church
should not proceed with steps for solemnization of the marriage.
Hence, after getting permission from the Bishop, the further
proceedings of marriage was stopped. It is contended that merely
because the petitioners attended marriage counselling and had
remitted fees for publication of notice regarding their proposed
marriage, that does not confer any right on the petitioners to claim
WP(C).39357/15 7
that their marriage should be solemnized, irrespective of objections.
6. The 4th respondent has filed a counter affidavit contending that
unless and until the petitioners are able to demonstrate that their
fundamental right is violated or that the respondent Church falls within
the definition of ‘State’ under SectionArticle 12 of the Constitution of India, no
writ can be issued against the Church. It is submitted that the 1 st
petitioner and the 4th respondent were in love from 2005 onwards and
that the 1st petitioner had sexually exploited the 4 th respondent and
later refused to marry her, which had compelled the 4 th respondent to
file a complaint before the Police leading to registration of the crime
against the 1st petitioner. According to the 4 th respondent, she was
subjected to sexual intercourse from 2008 onwards on the false
promise of marriage. It was in that background that she had raised an
objection against the proposed marriage between the petitioners.
Exhibit P8 was issued after providing an opportunity to the 1 st
petitioner to submit his explanation. Exhibit P8 is perfectly in order and
warrants no interference by this Court, especially in exercise of the
discretionary jurisdiction under SectionArticle 226 of the Constitution of India.
7. The answer to the question of maintainability will depend on
whether the 1st respondent was exercising any public duty or public
function in terms of the SectionChristian Marriage Act. SectionThe Christian Marriage
Act was enacted for consolidating and amending the law relating to
the solemnization in India of the marriages of persons professing the
WP(C).39357/15 8
Christian religion. SectionThe Act extends to the whole of India except the
territories which, immediately before the 1st November, 1956, were
comprised in the States of Travancore-Cochin, Manipur and Jammu and
Kashmir. Therefore the Act was not made applicable to Travancore-
Cochin, which position continues even today. In such event the
Constitution of the CSI Churches, especially Chapter XII therein,
dealing with the marriage law of the Church, assumes relevance.
Clause 1 of Chapter XII authorises every Bishop of the Church of South
India and every Presbyter and Deacon holding the authorisation of the
Bishop of the Diocese to solemnize marriages in the Church, subject to
the provisions of the SectionIndian Christian Marriage Act or any other law.
The procedure for solemnization provided in clause 7 of Chapter XII
reads as under:
“7. Whenever a marriage is intended to be solemnized by
any minister of the Church, the following procedure shall be
followed;
(a) One or both of the persons intending marriage shall
give notice thereof to the presbyters in charge of the pastorates
in which the parties severally reside, and shall state therein:
(I) the full name, the father’s name, the age, the
profession, and the condition of each of the persons intending
marriage,
(ii) the dwelling place of each of them,
(iii) the time during which each has dwelt there and
(iv) the place in which the marriage is to be solemnized.
(b) (I) The presbyters in charge, on receiving such notice
shall cause it to be ppublished, during Divine Service in the
WP(C).39357/15 9
places where the parties to be married severally reside (or, if
there be no church in either of those places, in the nearest
suitable place thereto) on three Sundays.
(ii) Any Diocesan Council may make rules providing for the
relaxation in special cases of the period of publication of notice,
and for permission to publish notices of marriages on other days
than Sundays, provided that in all cases a period of at least 96
hours shall elapse between the first publication of the notice of
marriage and the solemnization of the marriage.
(iii) Each presbyter in charge shall on the completion of
such publication issue a certificate of publication having been
made, and no lawful impediment having been shown, provided
that no lawful impediment has been shown to his satisfaction
why such certificate should not be issued.
(iv) After the issue of such certificates, the marriage may
be solemnized at the place of which notice has been given, by
the presbyter in charge of the pastorate in which that place is
situated, or by any other minister of the Church authorized by
him for that purpose. The marriage may be solemnized in any
other place than that of which notice has been given only with
the written permission of the bishop of the diocese or other
diocesan official thereto authorized by the Diocesan Council;
Provided that whenever a marriage is not solemnized
within three months after the date of the first publication of
notice of the marriage, the certificates of publication shall be
void, and no person shall proceed to solemnize the marriage
until new notice has been given and certificates of the
publication thereof issued as provided above.
(v) Any Diocesan Council may make provisoin for the issue
of special marriage licences under which a marriage may be
solemnized without the publication of notices required in this
Rule. Any rules in this matter made by a Diocesan Council shall
require the sanction of the Executive Committee of the Synod.”
WP(C).39357/15 10
8. The above procedure reveals that the issuance of certificate of
publication of notice is subject to the condition of the Minister of
Religion being satisfied of there being no lawful impediment in issuing
the certificate. According to the Church and members of the CSI
District Church, the fact that the 1 st petitioner had an illegitimate
relationship with the 4th respondent and that he is an accused in a
crime alleging commission of offence under Section 376 IPC was an
impediment against solemnization of petitioners’ marriage. The short
question therefore, is as to whether this subjective finding of the
members of the ecclesiastical court is justiciable in a proceeding under
SectionArticle 226.
9. Learned counsel for the petitioners would contend that the 1 st
respondent is exercising a public duty in terms of the authority under
the SectionChristian Marriage Act and hence there is no legal impediment in
issuing a writ of mandamus, directing the 1st respondent to solemnize
the petitioners’ marriage. Following are some of the decisions which
are relevant for considering the contention put forward by learned
counsel for the petitioners: The Honourable Supreme Court in SectionVST
Industries Ltd. v. VST Industries Workers’ Union [(2001) 1 SCC
298] dealt with the question as to what amounts to performance of a
public duty by private body and held as follows:
“7. In de Smith, Woolf and Jowell’s Judicial Review of
Administrative Action, 5th Edn., it is noticed that not all the
activities of the private bodies are subject to private law e.g the
WP(C).39357/15 11activities by private bodies may be governed by the standards
of public law when its decisions are subject to duties conferred
by statute or when, by virtue of the function it is performing or
possibly its dominant position in the market, it is under an
implied duty to act in the public interest… After detailed
discussion, the learned authors have summarised the position
with the following propositions:
(1) The test of whether a body is performing a public
function, and is hence amenable to judicial review, may not
depend upon the source of its power or whether the body is
ostensibly a ‘public’ or a ‘private’ body.
(2) The principles of judicial review prima facie govern the
activities of bodies performing public functions.”
10. The question as to what actions would constitute public
function or public duty was considered by the Apex Court in SectionG.Bassi
Reddy v. International Crops Research Institute [(2003) 4 SCC
225] and held as follows:
“28. A writ under SectionArticle 226 can lie against a “person” if it
is a statutory body or performs a public function or discharges a
public or statutory duty…. ICRISAT has not been set up by a
statute nor are its activities statutorily controlled. Although, it is
not easy to define what a public function or public duty is, it can
reasonably be said that such functions are similar to or closely
related to those performable by the State in its sovereign
capacity. The primary activity of ICRISAT is to conduct research
and training programmes in the sphere of agriculture purely on
a voluntary basis. A service voluntarily undertaken cannot be
said to be a public duty. Besides ICRISAT has a role which
extends beyond the territorial boundaries of India and its
activities are designed to benefit people from all over the world.
While the Indian public may be the beneficiary of the activities
WP(C).39357/15 12of the Institute, it certainly cannot be said that ICRISAT owes a
duty to the Indian public to provide research and training
facilities.”
11. The question arose for consideration yet again in SectionFederal
Bank Ltd. v. Sagar Thomas [(2013) 10 SCC 733]. The Apex Court,
after a detailed survey of precedents, classified the entities against
whom a writ petition will be maintainable in the following words:
“18. From the decisions referred to above, the position that
emerges is that a writ petition under SectionArticle 226 of the Constitution
of India may be maintainable against (I) the State (Government); (ii)
an authority; (iii) a statutory body; (iv) an instrumentality or agency
of the State; (v) a company which is financed and owned by the
State; (vi) a private body run substantially on State funding; (vii) a
private body discharging public duty or positive obligation of public
nature; and (viii) a person or a body under liability to discharge any
function under any statute, to compel it to perform such a statutory
function.”
12. Later, in SectionK.K.Saksena v. International Commission on
Irrigation and Drainage [(2015) 4 SCC 670], the legal position was
succinctly laid down by the Honourable Supreme Court in the following
words:
“43. What follows from a minute and careful reading of the
aforesaid judgments of this Court is that if a person or authority
is “State” within the meaning of SectionArticle 12 of the Constitution,
admittedly a writ petition under SectionArticle 226 would lie against
such a person or body. However, we may add that even in such
cases writ would not lie to enforce private law rights. There are a
catena of judmgents on this aspect and it is not necessary to
refer to those judgments as that is the basic principle of judicial
review of an action under the administrative law. The reason is
WP(C).39357/15 13obvious. A private law is that part of a legal system which is a
part of common law that involves relationships between
individuals, such as law of contract or torts. Therefore, even if
writ petition would be maintainable against an authority, which is
“State” under SectionArticle 12 of the Constitution, before issuing any
writ, particularly writ of mandamus, the Court has to satisfy that
action of such an authority, which is challenged, is in the domain
of public law as distinguished from private law.”
13. Thus, even in cases where a person, body of persons or an
institution is found to be performing a public duty, a writ would not lie
to enforce purely private law rights, which in the case of the
petitioners is solemnization of their marriage.
14. The decision of the House of Lords in Aston Cantlow and
Wilmcote with SectionBillesley Parochial Church Council v. Wallbank
and Another [(2003) UKHL 37] relied on by the learned counsel for
the petitioner in support of his contention that persons or bodies
whose functions are of public nature are amenable to writ jurisdiction,
is not applicable since no public duty or public function is being carried
out by the Church by solemnization of marriage between two members
of the diocese.
For the aforementioned reasons, the writ petition is found to be
not maintainable and is consequently dismissed. No order as to costs.
Sd/-
V.G.ARUN, JUDGE
vgs
WP(C).39357/15 14
APPENDIX
PETITIONER’S/S EXHIBITS:
EXHIBIT P1 EXT.P-1: COPY OF THE INVITATION OF THE
MARRIAGE BETWEEN THE PETITIONERS
EXHIBIT P2 EXT.P-2: COPY OF EXTRACT FROM THE
CONSTITUTION OF THE CHURCH OF SOUTH INDIA,
2003 (CHAPTER XII)
EXHIBIT P3 EXT.P-3: COPY OF THE CERTIFICATE ISSUED BY
WOMEN’S COUNSELLING CENTRE, WOMEN’S
FELLOWSHIP TO THE 2ND PETITIONER
EXHIBIT P4 EXT.P-4: COPY OF THE NOTICE DATED 2.12.2015
ISSUED BY CHURCH OF SOUTH INDIA,
BALARAMAPURAM
EXHIBIT P5 EXT.P-5: COPY OF OBJECTION DATED 6.12.2015
SUBMITTED BY THE IST PETITIONER BEFORE THE
CSI COURT
EXHIBIT P6 EXT.P-6: COPY OF THE ORDER DATED 23.6.2015
IN B.A.3489/2015 OF THE HIGH COURT OF
KERALA
EXHIBIT P7 EXT.P-7: COPY OF THE COMPLAINT MADE BY THE
PETITIONER BEFORE THE JUDICIAL IST CLASS
MAGISTRATE COURT-III, NEYYATTINKARA
EXHIBIT P8 EXT.P-8: COPY OF THE ORDER DATED 17.12.2015
ISSUED BY IST RESPONDENT WITH A LEGAL
OPINION OF AN ADVOCATE
RESPPONDENTS’ EXHIBITS:
EXHIBIT R4(a): COPY OF COMPLAINT FILED BEFORE THE BALARAMAPURAM POLICE STATION.
EXHIBIT R4(b): COPY OF FIR REGISTERED BY BALARAMAPURAM POLICE STATION IN CRIME
NO.573/2015.
