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[Refusal To Solemnize Marriage] Writ Petition Is Not Maintainable Against A Church, Holds Kerala HC [Read Judgment]

LIVELAW NEWS NETWORK
5 July 2020 6:46 AM GMT
[Refusal To Solemnize Marriage] Writ Petition Is Not Maintainable Against A Church, Holds Kerala HC [Read Judgment]
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The Kerala High Court has held that a writ petition is not maintainable against a church for its refusal to solemnize marriage.

The Bench comprising of the Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that a marriage involves relationship between the parties, which clearly falls within the ambit of private law and no public function is involved in it

The Division Bench upheld a single bench judgment that had held that no public duty or public function is being carried out by a Church by solemnization of marriage between two members of the diocese.

The issue raised in the writ petition filed by a couple was whether the Church or the Diocese, of which the petitioners are members, can refuse to solemnize their marriage. The single judge, Justice VG Arun, while dismissing the petition, had held that, 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.

In Writ Appeal, the counsel for appellants relied on the judgment in Federal Bank Ltd. v. Sagar Thomas [(2003) 10 SCC 733] to contend that the Church though a private body, is discharging a public duty or positive obligation of public nature and, therefore, a writ would lie against Church.

The Bench, after referring to various precedents in this regard, and also taking note of the functions carried out by the Church, observed that solemnization of marriage is not a duty of the State or an authority, and thus, Church can be said to be performing a public duty or public function of the State.

Though the Priest of a Church is solemnising a marriage in a Church, he cannot be said to be a public servant, discharging public duty or public function. Functions which are similar or closely related to those performable by the State in its sovereign capacity alone can be said to be a public duty or public function. Solemnization of a marriage by a Minister of District Chairman and Presbyter, CSI, District Church, Balaramapuram (respondent No.2), cannot be said to be an act performable by the State in its sovereign capacity. Solemnizing a marriage involves relationship between the parties, which clearly falls within the ambit of private law and no public function is involved in it.

The Court agreed with the contention taken by the Church that, while solemnizing a marriage, is not performing any public duty or public function or a statutory duty, merely because the Christian Marriage Act, 1872 prescribes a procedure, and that by itself would not bring the Church within the ambit of a State or instrumentality of State, within the purview of Article 12 of the Constitution of India. Church cannot be declared as a State or as an authority or instrumentality of the State. Dismissing the Writ Appeal, the Court said:

"Thus, even in cases where a person, body of persons or an institution performs an act to any particular section of the society, in the case on hand, those belonging to Christianity, that alone would not give a cause of action to file a writ against a Church to enforce private law rights, which in the case of the appellants, solemnization of marriage."
Case name: Santhoshkumar S. vs Church Of South India
Case no.: WA.No.53 OF 2020 
Coram: Chief Justice S. Manikumar and Justice Shaji P. Chaly
Counsel: Advocates S.VINOD BHAT, ANAGHA LAKSHMY RAMAN,K. R. RIJA, T. N. MANOJ 
 

 

Click here to Read/Download Judgment

 


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