The plaintiff, who applied for dispensation from the holy order, was served with an order accepting her application. She approached the court by pointing out that the order so given to her will come into operation only on her acceptance and since she has not accepted the same, that has no force in law. On the basis of these allegations, she laid the suit for declaration and other reliefs.
2. The appellant, a lawyer by profession is a member of the CMC (Congregation of Mother of Carmel) for more than 35 years. Her sister is also a member of the same Congregation. The allegation is that annoyed, pained and disturbed by the dispute with respect to the management and administration of St. Joseph C.B.S.E. School attached to the Njarakkal Convent, the plaintiff reacted. The dispute led to very shameful activities involving nuns of the Convent. Though she tried to make things better, she failed. Rendered helpless, it is alleged that she felt that it is no longer worthwhile to remain in the holy order and applied for dispensation. It is claimed by the plaintiff now that in fact it was intended to serve only as a mild shock and eye opener to the superior authorities and the warring groups. She hoped that they would see reason, things would be normal and she could continue in the Congregation.
3. The allegation is that to the utter dismay and surprise of the plaintiff, her application for dispensation was accepted and rescript dated 26.3.2009 was issued. According to the plaintiff, only on her acknowledgment and acceptance of the said order, it becomes effective. When the rescript was attempted to be served on her, she expressed her unwillingness to accept the same and refused to receive the order. The plaintiff further claims that Ext.A4 letter dated 19.5.2009 was addressed to the Superior General and copies to the other authorities concerned were sent informing about the withdrawal of the dispensation request. In the light of the non-acceptance of rescript and withdrawal application, the plaintiff alleges that she continues to be a member of the Congregation. On 28.5.2009 the first defendant informed the plaintiff that she is no longer a member of the Congregation from 4.4.2009. She is also informed that her withdrawal application had been rejected.
4. The plaintiff would say that the stand of the defendants that the plaintiff is no longer a member of the Congregation has no support in law since the rescript has not been accepted by her which is a condition precedent for the order to come into force. Defendants 1 to 4 insisted that the plaintiff should leave the Convent. But even after the dispensation order was passed she continued to follow the life of a nun. As a result of the recalcitrant attitude of the defendants, she was constrained to issue Ext.A9 notice vindicating her stand and asserting that since she had not acknowledged the rescript, she continued to be a member of the Congregation. No reply was given to her. The defendants on the other hand went on to take steps to oust the plaintiff from the Convent. Hence the suit.
5. The defendants resisted the suit. According to them, being a purely religious matter in which no dispute relating to any office is involved, the suit is not maintainable. The entire matter is governed by the CMC Constitution and it is purely an internal matter concerned with the discipline and the courts may not have any authority to interfere in the internal affairs of the Congregation. On the rescript being received by the plaintiff, she ceased to be a member of the Congregation. Her stand now that since she did not return the acknowledgment signed by her, the dispensation order did not come into effect has no substance.
The defendants pointed out that on an earlier occasion also, the plaintiff had resorted to the same act. She was then made to understand the consequences and severity of the issue and she withdrew her application. Even when Ext.A1 application was submitted, the Superior General through Sister Terezine tried to impress upon the plaintiff the seriousness of the issue and that she should have a rethinking about the application. In spite of all efforts made by the defendants, the plaintiff insisted on the application and so Provincial Council met and decided to recommend the application seeking dispensation. The authority concerned, after application of mind, accepted the application filed by the plaintiff and passed Ext.A2 order of rescript. The defendants claimed that the moment the order is passed, it comes into force. Though the order was passed on 26.3.2009, since the Superior General who was to serve the order was away from station, they had to wait. On return when the plaintiff was contacted, she demanded that the order be served on her at Rani Matha Convent. It was so done. She was asked to acknowledge the order through Ext.A3 form. She received the same and did not react. She did not return the acknowledgment duly signed by her. According to the defendants, she did not refuse to receive the rescript order and the mere fact that acknowledgment had not been returned does not enable the plaintiff to claim that she continues to be a member of the Congregation. None of her civil rights is violated and acts of the defendants are strictly in accordance with the provisions of CMC Constitution. It is stated in the written statement that this is purely an internal matter dealing with the administration, management and discipline of the Congregation and the courts may not interfere in such matters.
6. On the above pleadings, issues were raised and the parties went to trial. The plaintiff examined herself as P.W.1 and had Exts.A1 to A16 marked. The defendants had D.Ws. 1 and 2 examined and Exts.B1 to B11 marked. The trial court after evaluation of the materials before it came to the following conclusions:
i. Relying on the decision reported in P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001) it was held that the suit is maintainable.
ii. The court had territorial jurisdiction to deal with the matter.
iii. Quite a few of the claims made by the plaintiff are not proved or seen to be false.
iv. There was an earlier application for the same purpose which was concealed in the plaint.
v. The decision to refuse rescript was highly belated and objection to the same was taken only by Ext.A4 dated 19.5.2009.
vi. The court held that by virtue of Clause 493 of the Canon Law and provision 174(iii) of the CMC Constitution, Ext.A2 rescript had come into force.
Based on the above findings, the court ultimately concluded that the plaintiff is not entitled to any relief.
7. The plaintiff preferred appeal as A.S. 59 of 2013 before the Additional District Court, North Paravur. The appellate court on an independent evaluation of the materials before it came to the following conclusions:
i. The suit is not maintainable as it relates to a religious matter and does not fall within the ambit of Section 9 of the Code of Civil Procedure.
ii. The appellate court concurred with the trial court as regards the finding of the coming into force of the rescript and consequently the appeal was dismissed confirming the decree of the trial court.
Hence the second appeal.
8. When the matter came up for admission, this Court initially was of the view that there is no illegality, impropriety or irregularity in the judgment of the courts below and there may not be any scope for interference. The learned counsel for the appellant then represented that if notice is issued, there could be a possibility of settlement. Under those circumstances, notice was issued on admission. The respondents entered appearance. The respondents expressed their disinterest for mediation. The records were called for and the matter was elaborately heard.
9. At the time of hearing of the appeal, this Court proceeded as if the suit is maintainable and felt that it will be only appropriate to consider the grievance of the appellant and whether she is entitled to any relief. Since the matter was heard at the admission stage itself, no substantial question of law was framed for consideration.
10. After having heard counsel on both sides and perusing the records, even assuming that the suit may be maintainable, though it is highly debatable, the appellant failed to impress upon this Court that any injustice has been done to her.
11. The plaint is drafted in such a manner that the plaintiff was deeply disturbed and tried to resist the usurping of management of St. Joseph C.B.S.E. School by adopting objectionable means and in order to provide an eye opener to the authorities, request for dispensation was made by her. The plaint would suggest that even at the time of filing of the application for dispensation, the plaintiff had no intention to withdrew from the Congregation and wants to continue in the holy path.
12. The trump card of the plaintiff is Clause 174 (iii) of the Constitution of CMC which reads as follows:
“ØÈcÞØ ØÎâÙ¢ ©çÉfßAáKÄßÈᢠ¥vÞÏàµøÃJßÈᢠ©U ¥ÈáÎÄß ¥ÈßÄcdÕÄÌiçÏÞ ÄßÄcdÕßÄ ÌiçÏÞ ¦Ï ²øá ØßØíxùßÈí ÜÍßAáµÏᢠ¥Äí ÕcµñßæÏ ¥ùßÏßAáµÏᢠæºÏîáKçÄÞ¿áµâ¿ß Õcµñß ÈßøØßAÞJ Éf¢ dÕÄB{ßW ÈßKᢠÄr¢ÌtÎÞÏ ®ÜïÞ µ¿Îµ{ßW ÈßKᢠÈßÏÎJÞW ÄæK dÉØñáÄ Õcµñß ÕßÎáµñÏÞµáKá.”
13. According to the plaintiff, going by the above provision, mere passing of an order of dispensation is not sufficient to cause the applicant to cease to be a member of the Congregation. Only if the order is accepted, it comes into effect. Otherwise, it brings about no change in the status of the applicant and she continues to be in the holy order and retains her membership in the Congregation. According to the plaintiff, admittedly Ext.A3 acknowledgment had not been signed and returned by the plaintiff. Therefore, it could not be said that there is acceptance of the dispensation order. The view taken by the authorities or the Church and the courts below are not right and correct and the plaintiff even after the passing of Ext.A2 order continues to be a member of the Congregation and is entitled to continue as such.
14. It is further contended that at any rate she had indicated her desire to withdrew the application and there is no justifiable reason to reject the same. Referring to the Bible, it was contended on behalf of the appellant that the spirit of Bible is that if any one goes astray, every effort has to be made to bring him to the righteous path and forgiveness is a divine act. According to her, the authorities concerned ought to have considered the circumstances under which the application for dispensation was made and ought to have seen that it was only intended to see that things were set in order and to alert the authorities concerned about the necessity of abating the dispute regarding the management of the School concerned. The adamant attitude adopted by the defendants is far from just and reasonable and is not in tune with the teachings of the Lord.
15. Learned counsel appearing for the respondents on the other hand supported the stand of the respondents in this appeal. It was pointed out that the plaintiff conveniently suppressed the fact that she had applied for dispensation on an earlier occasion in the plaint. From the plaint, it would appear that Ext.A1 is the first application filed by her. On the first occasion, she was persuaded to withdraw the application when it was made known to her the seriousness and the consequences of the order accepting the application. Even after being so made aware of the consequences, she chose to file an application on the second occasion. On receipt of the application, the authorities concerned met her and wanted her to have a rethinking of the issue and tried to impress upon her the drastic consequences that may follow in case the application is ordered. Inspite of being so warned and cautioned, she proceeded with her application and therefore the authorities were left with no choice. The General Council in its meeting resolved to recommend the application as per Ext.B10. The Major Arch Bishop passed Ext.A2 order of rescript. According to the learned counsel, the moment the order is passed, it comes into force. Learned counsel went on to contend that there was no refusal to accept the rescript and the only act committed by the plaintiff was that she did not return the acknowledgment duly signed. It is one thing to say that she had not acknowledged the order and it quite another thing to say that she had refused to receive the rescript. The Clause relied on by the plaintiff, is clear to the effect that the act of refusal should be simultaneous with the serving of the order and not at a later point of time as chosen by the plaintiff. Learned counsel placed reliance on Article 493 of the Canon Law which reads as follows:
“CAN. 493 The indult to leave the monastery and return to secular life granted legitimately and intimated to the member, unless it has been rejected by the member of the act of intimation, entails by the law itself the dispensation from the vows and from all obligations arising from profession, but not from the ones that are attached to a sacred order if he is in sacred orders.”
Considerable reliance was also placed on Clause 174 (iii) of the CMC Constitution, though has already been quoted in the vernacular language, as far as the English text is concerned, it reads as follows:
“(iii) The indult of leaving the congregation and returning to secular life granted to a temporarily or perpetually professed sister, unless it was repudiated by the sister in the act of notification, carried with it, by the law itself, the dispensation from the vows as well as from all obligations arising from profession.”
According to the learned counsel, the stand now taken by the plaintiff that her application was only intended to have the dispute regarding the management being given a quietus to, it is far from truth. Even assuming that she did it in a rush of blood, the authorities met her personally and also through Missionaries and made her aware of the seriousness of her act and the drastic consequences that would follow in case the application is accepted. Inspite of best efforts made by the authorities concerned in attempting her to have a rethinking about her application, the applicant insisted that it should be considered in accordance with the Canon Law. Left with no choice, the order was passed.
16. According to the learned counsel for the respondents, even assuming that Ext.A2 rescript order could not have come into force as soon as it is passed, when it was served on the incumbent, it has come into force and thereafter she ceases to be a member of the Congregation. If now the appellant wants to have a rethinking and wants to remain in the holy order, she will have to undergo the entire process all over again. Learned counsel went on to point out that both the courts below have considered the entire matter in considerable detail and have come to the conclusion that the applicant was responsible for her fate and the authorities have acted strictly in accordance with the procedures prescribed by the Canon Law.
17. After having heard learned counsel on both sides, and having perused the records, there seems to be considerable force in the submissions made by the learned counsel for the respondents. As rightly pointed out by the learned counsel for the respondents, the plaint is totally silent about the first application. The records indicate and so also the evidence show that there was an earlier application filed by the plaintiff for the very same purpose. The superiors on receipt of the application approached her and cautioned her about her conduct and could persuade her to withdraw the application. It is therefore clear that she was made aware of the seriousness of the act and even thereafter she preferred Ext.A1 application. As per the materials now available, on receipt of the said application, the Superior General directly and through Missionaries contacted the plaintiff and cautioned her about the consequences of her application. They even believed that she should have a rethinking about the application and should withdraw the same. But for reasons best known to the plaintiff, she insisted that her application be considered. It is interesting to note that even though the plaintiff admits that on filing of the application she was met by the Superior authorities, she denies that she was asked to withdraw the application. However, the evidence is overwhelming to the effect that she was approached by the superior authorities on getting her application and was told about the seriousness of the matter and both the courts below have found that the said stand taken by the defendant is established.
18. The contention that the application was as a result of rush of blood and it was not intended to be acted upon and it was only with the idea of giving a quietus to the dispute regarding the management of St. Joseph's School cannot be easily accepted. She should be credited with the knowledge of the consequences of filing such an application and proceed with the same even if she was warned by the superior authorities. Both the courts below have found that the procedures as set out in the Canon Law have been followed in considering the application and no grounds are made out to interfere with the said finding.
19. Before going further, it is useful to note that the appellate court in its judgment has mentioned the events in the chronological order. The appellate court was also careful only to say that those events are not disputed by the plaintiff. Before this Court, the learned counsel appearing for the appellant did not agree that the said statements are correct.
20. Ext.A3 is an acknowledgment receipt. It is intended to show that the order has been served on the incumbent and the person has received the same. In the light of the finding of the court below, the appellant cannot dispute that the dispensation order has been served on her, i.e., Ext.A2 rescript. There is also no material before this Court to come to the conclusion that the order was refused to be accepted at the time when it was served on her. The mere fact that Ext.A3 acknowledgment has not been returned does not amount to rejection of the order or repudiation of the same. According to the evidence adduced by the defendants, the plaintiff sought time to return the acknowledgment duly signed by her. As per the materials now available, it was only on 19.5.2009, she informed about her desire to withdraw the application and prayed for continuing in the Congregation. It is significant to notice that even though the plaintiff would say that she had not accepted the order, she had filed an appeal against the same, which was dismissed.
21. The combined effect of Cannon Law 493 and Article 174(iii) of the CMC Constitution which have already been extracted is that it could possibly be contended that the incumbent concerned has an opportunity to refuse to accept the rescript. In which case, it could be said that it does not come into effect. It would mean that the order Ext.A2 issued by the second defendant could have been refused by the plaintiff. It is significant to notice that there is no prescribed mode of service of the order. It is also true that the provisions do not indicate as to the time limit within which the refusal has to be made. But on a fair reading of the provisions referred to above, it follows that the refusal should be simultaneous with the service of the order, because as per the provision of the Canon Law at any rate once the intimation is served on the incumbent, the order has come into force.
22. Even though the plaintiff has a case that she had refused to receive Ext.A2 order and it was thrown on her bed, the evidence adduced by the defendant would show otherwise. The evidence discloses that on service of Ext.A2 order on the plaintiff, she enquired about the monetary benefit she would receive from the Congregation and she was given due information regarding the same.
23. A distinction has necessarily to be drawn between a case where there is compulsory dispensation order served on a member and the dispensation order passed pursuant to the application filed by a member. It is difficult to accept the claim of the plaintiff that on her refusal to return the acknowledgment on being received the order, that would put an end of the proceedings and she would continue as a member of the Congregation.
24. A close look at Ext.A3 acknowledgment shows that it has nothing to do with the refusal to receive the order. One cannot compel the incumbent to return Ext.A3 duly served. It is one thing to say that the rescript has not been acknowledged and it is quite another thing to say that it has been refused.
25. Here one may lay emphasis on the words “ÈßøØßAÞJ Éf¢” occurring in Article 173(iii) of CMC Constitution. “ÈßøØßAáµ” means to reject, refuse, despise etc . To recall as per the evidence Ext.A2 order was served on the plaintiff. Though the plaintiff contended that when she refused to receive the same it was thrown on her bed, both the courts below found that version to be untrue. The fact remains that the plaintiff received Ext.A3 acknowledgment receipt and she send communication of withdrawal only on 19.5.2009. Therefore, it is difficult to say that there was either refusal or rejection of Ext.A2 order.
26. As per the details found in the judgment of the lower appellate court in which the events have been chronologically narrated, it is seen that the authorities met her on two occasions after the rescript was served on her and asked her to return the acknowledgment and to leave the Monastery. This aspect noticed by the lower appellate court has not been taken objection to in this appeal.
27. The evidence of P.W.1 is also relevant in this context. In her affidavit in lieu of chief-examination, there is no mention about the first application. The affidavit is also silent about what had happened on 14.3.2009 and 19.5.2009. As per the affidavit so filed, application for withdrawal to the Superior General was made on 19.5.2009. In Cross-examination, the ploy adopted was to deny everything. However, she had to admit that there was an earlier application which she had withdrawn. Most of her answers in cross-examination are evasive and it appears that she had no regard for truth. She in no less terms asserts that when Ext.A2 was attempted to be served on her, she refused to accept and it was thrown on her bed. This is a new stand taken by the plaintiff which does not find a place in the records.
28. The evidence of D.Ws.1 and 2 on the other hand would show that the steps taken by the Superior authorities on receipt of the application for dispensation from the plaintiff and also the subsequent procedures followed in the light of the fact that the applicant persisted with her application. In New Commentary on the Code of Canon Law - Study Edition at page 862 - Canon 692 is referred to and it reads as follows:
“Canon 692- Unless it has been rejected by the member in the act of notification, an indult of departure granted legitimately and made known to the member entails by the law itself dispensation from the vows and from all the obligations arising from profession.”
29. Except for contending that Ext.A3 acknowledgment has not been duly signed by the incumbent, there is absolutely no material to show that at the time when Ext.A2 order was served on the plaintiff, she had refused to accept the same. Apart from the above fact, she also preferred an appeal which was rejected. Even assuming that she could refuse to accept or reject the rescript, that has to be simultaneous with the service of the order and it cannot be done as and when the applicant so pleases. The reason being that as soon as the order is served on the incumbent, it takes effect.
30. A fervent plea was made by the learned counsel for the appellant that there may be a direction to the authorities concerned to reconsider the whole issue. Learned counsel appearing for the respondents then pointed out that as the order came into force, the plaintiff has ceased to be a member of the Congregation. If she now wants to join the holy order, the entire process has to be gone through again. That is a matter left to the authorities. This Court only points out that to err is human, but to forgive is divine.
31. After having given anxious consideration to the various aspects, this Court finds that no substantial question of law arises for consideration warranting interference under Section 100 of the Code of Civil Procedure either on facts or in law.
Accordingly, this second appeal is dismissed.
P. BHAVADASAN, JUDGE sb.