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Judgment
Raja Vijayaraghavan V, J
The petitioner states that she is a Nun and a member of the Franciscan Clarist Congregation (‘FCC’ for the sake of brevity). She has filed
this Writ Petition invoking Article 226 of the Constitution of India seeking the following reliefs:
(i) to issue a writ of mandamus, order or direction commanding and compelling the respondents 2 to 4 to afford sufficient, effective and meaningful police protection
to the life and property of the petitioner.
(ii) to issue a writ of prohibition, order or direction restraining the respondents 5 to 8 from interfering with the peaceful living and complete freedom inside the
convent to access all the common areas and to be provided with food and water to survive the life of petitioner in F.C. Convent at Karakkamala in view of the
pendency of O.S.209/2019 before the Munsiff Court, Mananthawady;
(iii) to issue a writ of mandamus, order or direction commanding and compelling the 3rd respondent to preserve and protect the CCTV visuals in and around the
Vicar’s Residence and FC Convent, Karakkamala starting from at least 45 days prior to 28.05.2020 to protect from it being tampered or destroyed;.
Brief facts relevant and essential for disposal of this petition are noted herein below:-
The petitioner states that while she was a member of the FCC, in the exercise of her rights to freedom and expression, she joined in the protests
organised by various organisations to bring to justice Bishop Franco Mullackal, who was accused of committing serious sexual offences. Her activities
did not augur well with respondents 5 to 7, who are her superiors. With intent to silence the petitioner, the 5th respondent initiated proceedings to
terminate her which ultimately led to her dismissal from the congregation. Challenging the procedure and the finding, the petitioner preferred an appeal
before the Grievance Redressal Forum. The appeal was rejected against which the petitioner preferred a review petition which is pending
consideration before His Holiness, the Pope. The petitioner contends that respondents 5 and 6 committed various acts to tarnish her image and
reputation and to drive her off from the convent. She was denied permission to venture out of the convent and this led the petitioner to lodge a
complaint before the 4th respondent. Ext.P2 crime was registered under Section 342 of the IPC on 19.08.2019. Later, when the 7th respondent and
his associates spread canards against her, she lodged Ext.P3 complaint based on which Ext.P4 F.I.R was registered.
Petitioner goes on to assert that she published a book “Karthavinte Namathil†recounting the bitter experiences she faced in her life. This
stirred up quite a controversy and invited the ire of respondents 5 to 7. They intensified the harassment and threats towards the petitioner. When the
petitioner felt that she would be evicted pending the appeal before the Vatican, she instituted O.S.No. 209/2019 before the Court of the Munsiff,
Manathavady and the learned Munsiff granted an order of interim injunction restraining the defendants in the suit from forcefully evicting the petitioner
from the plaint schedule property till 01.01.2020. According to the petitioner, the injunction order could not be extended as the courts were not fully
functioning on account of the restrictions imposed due to the pandemic. The petitioner asserts that the respondentS 6 to 8 took the assistance of some
hooligans to drive the petitioner away and a horde of people assembled outside the convent and openly declared that they would do away with the
petitioner. Immediately, the petitioner lodged a complaint before the 4threspondent based on which Ext.P7 crime was registered. The petitioner
contends that the respondents are acting in clear violation of the fundamental rights guaranteed to her under the Constitution of India. She contends
that though several complaints were lodged before the 4th respondent, no effective action was taken. In the said circumstances, she lodged Ext.P8
complaint before the 3rd respondent and requested that her life and property be protected. However, no support was extended to her. The petitioner
contends that the harassment against the petitioner escalated and she was prevented access to the common areas. CCTV cameras have been
installed in various places inside the convent to monitor her activities. She has been asked to vacate the convent even during the pendency of the Civil
Suit instituted by her.
The petitioner further states that on 28.05.2020 she wanted to meet the 6th respondent. When the 6th respondent did not return after meeting the
Vicar of the church, she went in search. She states that when she went to the kitchen, she had occasion to witness the 6th and 7th respondents
engaged in sexual acts. When the petitioner questioned them for indulging in immoral activities in the holy place, she was allegedly threatened by them.
On 02.06.2020, she is stated to have lodged a complaint before the Station House Officer, Vellamunda Police Station. According to the petitioner, she
requested the police personnel to conduct a detailed investigation and collect the CCTV visuals. The Police, however, did not heed her request. The
petitioner contends that the party respondents would endanger her life if necessary directions are not issued. It is in the above backdrop that she has
approached this Court seeking directions to the Police to afford her adequate protection to the life and property and for incidental reliefs.
In the counter affidavit filed by the 5th respondent, it is stated that the petitioner joined the FCC on 24.06.1982. She made her first profession of
religious vows in the same congregation on 22.05.1985 and her final profession on 21.05.1991. She was sent for University studies by the congregation
and she passed her B.Sc and B.Ed degrees. At the time of filing the writ petition, she was working as a teacher in the Sacred Heart Higher
Secondary School, Dwaraka, Wayanad District. A complaint was received against the petitioner on 03.08.2003 that she had inflicted physical violence
on another sister of the Congregation. She was transferred from FCC Convent, Kommayad to FCC Convent, Dwaraka as per the norms. She refused
to obey the transfer order. She refused to obey the canonical norms and the rules of the congregation and her conduct was unbecoming of a member.
She violated the law of enclosure and travel and even permitted a layperson to stay in the convent against all norms. There were other serious
allegations as well. Disciplinary action was initiated and a show-cause notice was issued by the Superior General of the Congregation. Later, on
11.5.2019, after following the procedure, the General Council held a meeting at the FCC Generalate, Aluva and a decree of dismissal from the FCC
was passed. After her dismissal from the Congregation, the petitioner has no legal right to continue in the convent as a nun. However, to rake up
controversy and for the sake of garnering publicity, the petitioner has been creating issues one after the other to tarnish the image of the congregation.
The allegation that the Sisters of the congregation had harassed and threatened the petitioner, that after the publication of her book, she was victimized
and harassed etc. are denied by the 5th respondent. Insofar as the several crimes registered at the instance of the petitioner is concerned, it is stated
that the allegations are frivolous and have no factual foundation. The fact that the order of injunction was not extended after 28.01.2020 is also
highlighted by the said respondent. It is further stated that the order of the Council dismissing the petitioner from the congregation was upheld by the
Congregation for the Oriental Churches. As per the Canon Law, the petitioner is entitled to file an appeal in the Supreme Tribunal called ‘Signatura
Apostolica’ at the Vatican against the decision of the Congregation for the Oriental Churches. The appeal preferred by the petitioner was also
rejected. It is further stated that the allegation that the petitioner was deprived of food and water in the Convent is untrue. The inmates cook their own
food and the petitioner has been causing disturbances to other inmates. The 5th respondent has vehemently denied the allegations of ill-treatment said
to have been meted out to the petitioner and it was contended that the writ petition is one without merit and do not warrant any interference.
The respondent Nos. 6 to 8 have filed a counter-affidavit, more or less reiterating the contentions raised by the 5th respondent. They have denied
the serious allegations of harassment and torture made by the petitioner on them. It is stated that the allegation in para 12 of the writ petition that the
petitioner had occasion to witness the respondent Nos. 6 and 8 indulging in sexual activities are absolutely baseless and false. They are on the verge of
instituting proceedings to sue the petitioner for defaming and ridiculing them. It is further contended that this Court will not be justified in directing the
police to collect evidence in a writ petition seeking police protection. They have denied that the Sisters of the congregation attempted to endanger the
life of the petitioner. It is further contended that the petitioner had a monthly salary of more than Rs.60,000/- per mensem and that she has not been
contributing any amount for the running of the convent since the month of December 2017. It is further stated that the FCC is a Catholic Religious
Congregation and a person who is not a member of the Congregation cannot be permitted to live in the Convent.
I have heard Lucy Kalappura, the petitioner, who appeared in person, Sri. George Poonthottam, the learned Senior Counsel, who appeared for the
5th respondent, Sri. George Varghese, the learned counsel who appeared for the respondent Nos. 6 to 8 and Sri P.P. Thajudheen, the learned
Government Pleader.
The petitioner contended that she was working as a school teacher and she has retired from her service this year. A suit has been instituted by the
petitioner seeking to interdict the respondents from evicting her, and respondents 6 and 7 have instituted a suit with a prayer to evict her from the
Karakkamala Convent. The 6th respondent has also instituted another suit seeking to recover the retirement benefits and the said suit is also pending.
Disciplinary proceedings were initiated only because the petitioner supported the cause of the nuns who were victimised by Bishop Franco Mulakkal.
The petitioner was singled out and she was discriminated against as she had attempted to air her views in the exercise of her rights under the
Constitution of India. It is contended that the petitioner is a nun and her status cannot simply be taken away by the respondents. It was urged that her
right to live in the Convent is intertwined with her status as a nun and therefore, the respondent Nos. 5 to 8 are not justified in insisting that the
petitioner should remove herself from the Convent. Her right to live in the Convent is being adjudicated by the Civil Court and until the said court takes
a decision one way or the other, the petitioner is entitled to reside and the police are bound to ensure that her life and property are protected. It is also
contended that she has been defrocked pursuant to proceedings initiated under the Canon Law and according to the petitioner, the provisions of the
Canon Law is directly in conflict with the law of the land. The petitioner would contend that the order of dismissal passed against her is unsustainable
under law.
Sri. George Poonthottam, the learned senior counsel appearing for the 5th respondent would refer to the findings of the General Council in the
Decree of Dismissal and it was argued that the petitioner had repeatedly violated the vows of poverty and obedience which she professed in the
Franciscan Christ Congregation. She has also violated the proper law of the FCC regarding religious habits and enclosure. There is also a finding that
the petitioner violated the norms of the Syro-Malabar Church which prohibits the appearance of the religious in TV shows. According to the learned
senior counsel, by joining a religious congregation of the catholic church, the petitioner is required to faithfully observe the religious vows made in the
FCC. The petitioner has taken the vows of obedience, chastity and poverty to be observed as per the proper law of the FCC which include ‘The
Rule and Constitution of the FCC’ and ‘The Way of Life of the FCC’. He contends that repeated warnings were issued to the petitioner to
correct and mend her ways and it was when all attempts failed that the competent authority, with the consent of the Council, dismissed the petitioner
from the Congregation. It was contended that the other members of the convent are living a life of renunciation and detachment from the world and
have been observing the Law regarding enclosure and religious habits. The petitioner has been swimming against the tide and she has managed to
drastically unsettle the life of the other inmates of the convent. Reliance is placed on the show cause notice issued to the petitioner to substantiate that
there were serious allegations against the petitioner which were all found against her. It is submitted by referring to paragraph No.12 of the writ
petition that the petitioner has even raised sexual allegations against the Mother Superior and the Vicar of the Church. The learned counsel points out
that numerous crimes were registered at the instance of the petitioner and some of those crimes have already been referred to as false. The learned
senior counsel would urge that it is beyond comprehension that the other nuns in the Convent would go to the extent of harassing the petitioner.
However, according to him, if the petitioner continues to reside in the Convent after her final dismissal from the Congregation, it would only lead to
continuous strife and conflicts.
Sri.John Varghese, the learned counsel appearing for the respondent Nos. 6 to 8 supported the arguments of the learned senior counsel. The
learned counsel would contend that baseless and untenable allegations have been raised against the Mother Superior and Vicar and even the other
inmates of the Convent. The learned counsel would point out that at the time of filing of the writ petition, the contention of the petitioner was that she
had preferred a review petition challenging the order passed by the Grievance Redressal Cell at the Vatican. The learned counsel would refer to
Ext.R6(a) and it was pointed out that the Supremum Tribunal by decree dated 27.05.2021 has rejected the review petition as well. According to the
learned counsel, the petitioner has also retired from the School where she was working. After the final order of dismissal, the petitioner has no right to
live in the Convent and her further stay within the FC Convent is clearly unlawful. It would cause serious disturbance to the other inmates who have
taken the vow of obedience, chastity and poverty.
Sri. P.P.Thajudheen, the learned Government Pleader on instructions submitted that pursuant to the interim order passed by this Court, the police
have been maintaining a beat book and has been regularly visiting the convent to ensure that law and order is maintained. It is further submitted that
numerous complaints have been received and crimes have also been registered. The petitioner had lodged a complaint before the 3rd respondent
alleging that the police are acting hand in glove with the party respondents. The said complaint was investigated and it was found that there was no
merit in the accusations levelled by the petitioner and Ext.P11 communication was issued to her. Insofar as her prayer to preserve and protect the
CCTV visuals are concerned, it is contended that investigation is in the domain of the investigating officer and if the petitioner has any grievance, she
is required to move the learned Magistrate seeking directions instead of this Court. Reliance is placed on Sakiri Vasu v. State of U.P. and Others
[2008 (2) SCC 409] and Aleque Padamsee and Others v. Union of India and Others [2007 (6) SCC 171] and it is argued that under Section 156(3) of
the Cr.P.C., there is an implied power in the Magistrate to direct the officer in charge of the concerned police station to hold a proper investigation and
take all such steps that may be necessary for ensuring a proper investigation including monitoring the same.
I have anxiously considered the submissions advanced and have perused the materials produced by the contesting parties.
This writ petition was filed on 08.07.2020 and when this matter had come up before this Court an order dated 09.07.2020 was passed directing the
4th respondent to ensure that law and order is maintained and if necessary, to afford adequate protection to the life and property of the petitioner from
any incursions by the respondent Nos. 5 to 8.
At the time of filing of the writ petition, Ext.R5(a) order passed by the General Council, FCC ordering the dismissal of the petitioner from the
Congregation had been upheld in appeal by the Congregation of the Oriental Churches. However, the petitioner had a right to prefer a further appeal
in the Segnatura Apostolica at the Vatican. The said appeal had also been rejected. The petitioner had then an opportunity to prefer a review petition
before the Supreme Tribunal. From Ext.R6(b), it is evident that the review petition preferred by the petitioner has also been dismissed. As things stand
now, the petitioner is not a member of the Congregation. This fact however is disputed by the petitioner.
A reading of the writ petition filed by the petitioner would show that she has raised serious accusations against the inmates of the convent, the
Mother Superior as well as the Vicar of the Karakkamala Church. She states that on 19.08.2019, she was illegally confined and she had to lodge a
complaint before the police leading to registration of Ext.P2. Later, on 13.12.2019, she lodged another complaint and Ext.P7 crime was registered. She
has also lodged Ext.P8 representation before the 3rd respondent seeking the appointment of a neutral and impartial investigating officer. Later, she
lodged Ext.P9 complaint wherein it was alleged that she was being denied access to all the common areas and that the 5th respondent has installed
cameras inside the convent to monitor her activities. She alleges that she has been receiving threatening calls which led her to lodge Ext.P10 complaint
before the police. The most serious allegation levelled by her is that on 28.05.2020, she went in search of the 6th respondent to have interaction and
she alleges that the 6th and 8th respondents were found engaged in sexual acts inside the kitchen. A perusal of the complaints lodged by the petitioner
would reveal that allegations have been raised against the other inmates and nuns as well. In other words, much deliberation is not required to come to
a conclusion that the relationship between the petitioner and the other inmates is quite embittered. The police are required to visit the convent every
now and then based on one allegation or the other raised by the petitioner alleging wrongdoing by the other inmates.
The contention of the learned counsel appearing for the party respondents essentially is that there is no justification on the part of the petitioner in
insisting to live in the Convent. The order dismissing the petitioner from the congregation has attained finality. She has retired from the School as well.
Some of the other inmates in the convent as well as her superiors have been arrayed as either respondent or as accused in the proceedings initiated by
the petitioner. In that view of the matter, the insistence of the petitioner that she should be permitted to remain the convent till finality is attained in the
suit instituted before the learned Munsiff is not justifiable is essentially the contention. There appears to be considerable merit in the submission of the
learned counsel appearing for the respondents. The continued presence of the petitioner in the convent would only trigger the dispute and there will be
continued disharmony.
One of the prayers sought for by the petitioner is for a direction to the respondents 5 to 8 from interfering with the peaceful living and complete
freedom inside the convent, to access all the common areas and to be provided with food and water to survive the life of petitioner in F.C. Convent at
Karakkamala in view of the pendency of O.S.209/2019 before the Munsiff Court, Mananthawady. However, I find that the petitioner has already
approached the Civil court seeking to interdict the respondents from evicting her from the convent. It is borne out from the submissions that O.S
No.209 of 2019 is still pending consideration of the Munsiff Court, Mananthawady. An interim order was passed by the Munsiff Court on 18.12.2019
restraining the respondents from forcefully evicting the petitioner from the plaint schedule property until 01.01.2020. However, due to various factors
which include the restrictive functioning of the court owing to the pandemic, the interim order was not extended.
The Apex Court as well as this Court has held in a catena of decisions that in matters involving civil rights, or disputes regarding title and
possession over property, it would not be proper for this Court to invoke the extraordinary powers under Article 226 of the Constitution and order
police protection. It is also equally settled that a writ of mandamus directing the police authorities to give protection to the person or property can be
issued when the court is satisfied that there is a threat to the person and the authorities have failed to perform their duties. However, it is quite a
different matter to grant relief to a person either to allegedly protect his right to property especially when the pleading themselves disclose that
disputed questions are revolved. (See State of M.P. and Ors. v. Bhailal Bhai and Ors. [AIR 1964 SC 1006], P.R.Muralidharan v. Swami
Dharmananda Theertha Padar [(2006) 4 SCC 501]. It is also trite that the special remedy provided under Article 226 of the Constitution of India is not
intended to supersede completely the modes of obtaining reliefs by an action in a civil court or to deny defences legitimately open in such actions. The
police will have no authority to adjudicate on such disputes nor would it be proper for them to do so. Since the matter is in seisin of the civil court, it
would not be proper for this Court to enter into a finding with regard to the right of the petitioner to reside in the convent as requested by the petitioner
or to order her eviction as sought for by the party respondents. I am of the view that in the interest of justice, it would be appropriate for the learned
Munsiff to hear the interlocutory application and take a decision expeditiously. If either of the parties moves the jurisdictional Munsiff within a period
of one week from the date of receipt of a copy of the judgment, the interim application shall be heard and disposed of within a further period of three
weeks. The parties shall be bound by the order passed by the Munsiff. If either of the parties violates the orders passed as above by the Civil Court,
they may move the court and get the order enforced. For the reasons elucidated above, I am not persuaded to order police protection to enable the
petitioner to continue to reside in the FCC convent, Karakkamala.
Prayer (i) sought for by the petitioner is for a direction commanding and compelling the respondent Nos.2 to 4 to afford sufficient, effective and
meaningful police protection to the life and property of the petitioner. I find from the various complaints lodged by the petitioner that she is
continuously being threatened with physical harm by known and unknown persons. As stated earlier, the petitioner has been swimming against the tide
and her commissions and omissions have created quite an amount of controversy. In this writ petition, this Court is not called upon to decide on the
truthfulness of the rival versions. If the petitioner is residing elsewhere than at the FCC Convent at Karakkamala and if she approaches either the 3rd
or the 4th respondent and lodges a complaint that the party respondents or any other person have been raising threats or interfering with her peaceful
living, the said respondents shall ascertain the truthfulness of the allegations and afford adequate protection to the petitioner.
Insofar as prayer (iii) is concerned, the petitioner seeks a direction to the 3rd respondent to preserve and protect the CCTV visuals in and around
the Vicar’s Residence and FC Convent, Karakkamala starting from at least 45 days prior to 28.05.2020 to protect from it being tampered or
destroyed. As held by the Apex Court in Sakiri (supra) and reiterated in Alyque ( supra) the jurisdictional Magistrate has very wide powers to direct
registration of an FIR and to ensure a proper investigation. The Court is also empowered to monitor the investigation to ensure that the investigation is
done properly. If the petitioner has a grievance that the investigation is not proper, it is for her to approach the learned Magistrate and seek directions.
Furthermore, investigation of a crime is in the domain of the police and it would not be proper for this Court to direct as to how and in what manner
the investigation is to be proceeded with.
With the above directions, this Writ petition will stand disposed of.
There will be no order as to costs.