“The right to a burial in the cemetery must be seen as flowing from his status as a Parishioner of the Church” Reiterating that the Church and the cemetery cannot be confiscated by anybody, the Kerala High Court has held that, irrespective of his allegiance, a parishioner cannot be deprived of his/her right to burial in the church of which he/she is the parishioner. While considering a batch of writ petitions regarding the ongoing turf between Orthodox and Jacobite church factions, the bench comprising Chief Justice Hrishikesh Roy and Justice AK Jayasankaran Nambiar noticed that the parishioners of a particular church, who owe allegiance to the Patriarch faction, were denied their right to bury their family members, in the space allotted for burial of their family members in the cemetery attached to the church concerned.
The bench observed: “This, in our view, would not be in accordance with the declaration of the Supreme Court in the cases referred above. As observed by the Supreme Court in paragraph 228.17 in K.S. Varghese’s case [supra], 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 honourably in the cemetery, in case he continues to have faith in the Malankara Church.” The bench added that, so long as the person claiming a right to burial continues to be a parishioner of the church, and his/her name is not removed from the register of parishioners of the church pursuant to a due process of law, the mere fact of allegiance of the Parishioner to the Patriarch, who is admittedly the spiritual head of the Malankara Church even as per the 1934 Constitution, or his/her inclination to the ideology of the Patriarch faction, cannot deprive the parishioner of his/her right to burial in the church of which he/she is the parishioner.
“This right cannot be taken away even if, in particular circumstances, the parishioner chooses to forego funeral services in the church or its cemetery or opts for a funeral service at any other premises by a priest of his/her choice. The right to a burial in the cemetery must be seen as flowing from his status as a Parishioner of the Church.”, the court added. While closing another connected writ petition, the bench noted that the State Government is brokering peace between the rival church factions.