Civil Appeal No 84 of 1975 From the Judgment and order dated 194 1974 of the Karnataka High Court in R S A No 741 of 1971
TS Krishnamurthy Iyers ATM Sampath and Srinivasa Anand for the Appellants BP Halda SS Javeli and Ranjit Kumar for the Respondents
The Judgment of the Court was delivered by DUTT J
This appeal by special leave at the instance of the defendants is directed against the judgment and decree of a learned Single Judge of the Karnataka High Court whereby the learned Judge reversed the judgment and decree of the Additional Civil Judge Mangalore affirming those of the Munsif Mangalore dismissing the suit filed by the plaintiff respondents
The respondents who are the members of the United Basel Mission Church for short UBMC  of South Kanara and Coorg instituted a suit in the court of the Munsif Mangalore praying for a declaration that the resolution dated May 9 1961 passed in the extraordinary meeting of the District Church Council of UBMC of South Kanara and Coorg proposing the merger of UBMC of South Kanara and Coorg with the Church of South India was void illegal and ultra vires the Constitution of UBMC and also the provisions of the Religious Societies Act 1880 and not binding on the respondents or other members of UBMC of South Kanara and Coorg
The respondents also prayed for a permanent injunction restraining the defendants appel 742 lants from implementing the said resolution
The Evangelical Missionary Society in Basel Basel Mission which is a religious Society consisting of missionaries of different denominational churches of Switzerland and Germany constituted UBMC in South Kanara Coorg Malabar and North Karnataka for the purpose of spreading the Gospel
The UBMC has a written constitution exhibit A 1
Under the Constitution the UBMC is divided in three Ecclesiastical Districts namely the South Kanara and Coorg Bombay Karnataka and Malabar
Each District had its own representative body known as the District Church Council to supervise the work of the churches
The District Church Board was the Executive body consisting of a few members of the District Church Council
The highest authority of UBMC is a body known as Synod which is constituted with the representatives of the District Church Councils the Basel Mission and certain ex officio members
In 1905 a number of Congregational Churches under the London Mission Society united with the Congregational Churches and the Presbyterian Churches in South India and such union came to be called the South Indian United Church
Subsequently the South India United Church and the Anglican Church in South India came to be united and this union brought into existence the Church of South India for short CSI  in 1941
After the creation of CSI there had been a move that the churches in the three Districts of UBMC should join the CSI
Indeed in 1943 the Malabar District Church of UBMC joined the CSI with the approval of the Synod
Further it appears that the Bombay Karnataka Unit of UBMC had also joined the CSI
The only Unit of UBMC that remained is the South Kanara and Coorg Unit
By the impugned resolution dated May 9 1961 the majority of members of the District Church Council of UBMC of the South Kanara and Coorg decided to join the CSI
Being aggrieved by the said resolution and to get rid of the same the respondents instituted the said suit in a representative character under order I Rule 8 of the Code of Civil Procedure as representing the members of UBMC of South Kanara and Coorg
The case of the respondents is inter alia that they are Protestant Christians belonging to the Ecclesiastical Districts of South Kanara and Coorg of UBMC
Every member of UBMC has a right vested in him under its Constitution to be a member of a District Church Board 743 and District Church Council and to administer the properties vested in them and to manage their affairs
These rights guaranteed under the Constitution cannot be altered or abridged except under Rule 14 of the Constitution providing for amendment
According to the respondents the CSI is fundamentally different in doctrine faith worship tradition heritage and practices from UBMC of South Kanara and Coorg
An important distinguishing fundamental principle is the principle of Episcopacy adopted by the CSI but rejected by the UBMC which cherishes as a great treasure the principle that priesthood is given to all believers
It is the case of the respondents that the Union of UBMC and CSI would be colourable one since there can be no union of two bodies holding fundamentally different doctrines and believing in different declarations of faith
It is contended that the impugned resolution is ultra vires Rule 14 of the Constitution of UBMC
The resolution is also bad since it is beyond the power of the District Church Council to dissolve the Constitution
It is alleged that the funds and properties of UBMC are held in trust for the propagation and advancement of the faith and doctrine of UBMC and as such they cannot be diverted to different purposes
It is contended that the majority who disagree with the doctrine and faith of UBMC cannot impose on the minority fl ritual a ministry and a Constitution opposed to the doctrinal faith of UBMC
Upon the said pleadings the suit was instituted for the reliefs aforesaid
The suit was contested by the appellants by filing a written statement
It was contended that the suit was not one of a civil nature within the meaning of section 9 of the Code of Civil Procedure and accordingly it was not maintainable
Further the contention of the appellants was that the respondents did not represent the members of UBMC and so the respondents were not entitled to sue the appellants in a representative capacity as representing the members of UBMC in South Kanara and Coorg
It was denied by them that there was any fundamental difference between UBMC and CSI in doctrine faith worship tradition heritage and practices
It was averred that the Constitution of the CSI and the doctrinal faith the ministry and the form of worship adopted by the CSI were in no way fundamentally different from those adopted and practised by the UBMC
The Protestant Churches were not committed to any doctrine regarding historic Episcopacy
The constitutional Episcopacy adopted by the CSI was not contrary to the Presbyterian heritage and the ministers of UBMC were also ordained
The freedom of interpretation given with regard to the Creeds was not opposed to the union
The contention of the respondents that in case of merger there would be diversion of the 744 properties of the UBMC was emphatically disputed by the appellants
It was averred that as the impugned resolution was passed by an overwhelming majority of the members of UBMC it was binding upon the respondents
They denied that the resolution was ultra vires Rule 14 of the Constitution of UBMC
The appellants accordingly prayed that the suit should be dismissed
The respondents examined the 4th plaintiff as PW 1 and the appellants also examined on their behalf the Moderator Head Bishop of CSI as DW 1
Both parties filed and proved a number of documents in support of their respective cases
The learned Munsif after considering the evidences and the sub missions made on behalf of the parties came to the findings that the suit was maintainable but the respondents were not entitled to file the suit in a representative character as representing the UBMC of South Kanara and Coorg
Further the learned Munsif found that there was no fundamental difference between UBMC and CSI in matters of doctrine faith worship tradition heritage and practices
The impugned resolution was held by the learned Munsif to be legal and valid
Upon the said findings the learned Munsif dismissed the suit
On appeal by the respondents the learned Additional Civil Judge came to the same findings as that of the learned Munsif except that it was held by him that the respondents were entitled to file the suit in a representative character
The appeal preferred by the respondents was consequently dismissed by the learned Additional Civil Judge
Being aggrieved by the judgment and decree of the learned Additional Civil Judge the respondents preferred a second appeal to the High Court
A learned Single Judge of the High Court took a contrary view and held that there were fundamental differences in doctrine faith worship tradition heritage and practices between UBMC and CSI
The impugned resolution was held by the learned Judge as illegal and void
The learned Judge accordingly allowed the appeal of the respondents and set aside the judgments and decrees of the first appellate court and of the trial court and dismissed the suit
Hence this appeal
The first point that has been urged by Mr Krishnamurthy Iyer learned Counsel appearing on behalf of the appellants is that the dispute between the parties is not one of a civil nature and as such the suit was not maintainable
It has been already noticed that all the courts below including the High Court have concurrently come to the 745 finding that the suit was of a civil nature within the meaning of section 9 of the Code of Civil Procedure and accordingly it was maintainable It is the case of the respondents that if the impugned resolution is implemented or in other words UBMC of South Kanara and Coorg is allowed to merge in CSI the right of worship of the members of UBMC will be affected
It is now well established that the dispute as to right of worship is one of a civil nature within the meaning of section 9 of the Code of Civil Procedure and a suit is maintainable for the vindication or determination of such a right
The question came up for consideration before this Court in Ugamsingh  Mishrimal vs Kesrimal 1971  2 SCR 836 where this Court observed as follows It is clear therefore that a right to worship is a civil right interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed  In the instant case also there is a question as to whether the right of worship of the respondents will be affected in case of implementation of the impugned resolution
It must be made clear that maintainability of the suit will not permit a court to consider the soundness or propriety of any religious doctrine faith or rituals
The scope of the enquiry in such a suit is limited to those aspects only that have direct bearing on the question of right of worship and with a view to considering such question the court may examine the doctrines faith rituals and practices for the purpose of ascertaining whether the same interfere with the right of worship of the aggrieved parties
In view of section 9 of the Code of Civil Procedure the enquiry of the court should be confined to the disputes of a civil nature
Any dispute which is not of a civil nature should be excluded from consideration It is the case of the respondents that there is a fundamental difference in doctrine faith worship tradition heritage and practices between UBMC of South Kanara and Coorg and the CSI and in case of implementation of the impugned resolution leading to the merger of UBMC with CSI the right of worship of the respondents would be greatly affected
Both the Churches are Protestant Churches
The fundamental doctrines faith and belief appear to be the same
Both UBMC and CSI believe in Jesus Christ the Incarnate Son of God and Redeemer of the World
Both also believe that man is saved from sin through Grace in Jesus Christ the Son of God
Both the Churches 746 believe in The Holy Spirit and in the Supreme power of the Holy Spirit and that there should be free access of man to God
One of the principal objections of the respondents to the merger of UBMC with CSI is that CSI believes in Episcopacy which is said to have been rejected by the UBMC
The High Court had devoted several pages relating to the origin growth and other aspects of Episcopacy
It is not necessary for us to consider the origin or growth of Episcopacy and suffice it to say that Episcopacy means Church ruled by Bishops
UBMC is a Presbyterian Church and according to the respondents they do not believe in the concept of Episcopacy or apostolic succession which is associated with historic Episcopacy
Rule 11 of the Constitution of CSI exhibit B 39 provides inter alia that CSI accepts and will maintain the historic Episcopacy in a constitutional form
Rule 11 further provides that as Episcopacy has been accepted in the Church from early times it may in this sense fitly be called historic and that it is needed for the shepherding and extension of the Church in South India and any additional interpretations though held by individuals are not binding on the CSI
It is true UBMC is opposed to Episcopacy but Episcopacy which has been adopted by the CSI is not that historic Episcopacy but historic Episcopacy in a constitutional form
In other words the Bishop will be one of the officials of the Church under its Constitution performing certain duties and functions
The Bishops are appointed by election and there are provisions for the retirement of Bishops at the age of 65 years and also for their removal
It is significant to notice that CSI believes that in all ordinations and consecrations the true ordainer and consecrator is God
From all this the irresistible conclusion is that there is neither apostolic succession nor historical Episcopacy in CSI as contended on behalf of the respondents
The grievance of the respondents is that universal priest hoodthat is recognised in UBMC is not there in the CSI
In view of such universal priesthood a layman can administer sacraments in UBMC
It is not disputed that there are two sacraments namely 1 Lord s Supper and 2 Baptism
It is urged that in the CSI a layman cannot administer these sacraments and it is only the ordained minister who can administer the sacraments
It is contended that the absence of universal priesthood in the CSI is due to the fact that Episcopacy is still maintained there
The learned Judge of the High Court observes that Presbyters under the CSI are ordained persons whereas Presbyters in UBMC are all unordained elders
In the CSI only the Bishops and the 747 Presbyters who are ordained ministers can administer sacraments of Lord s Supper
But in UBMC the sacraments can be administered by a layman
It is submitted on behalf of the respondents that in case of union of UBMC with the CSI the form of worship will change and that the person doing the service of Holy Communion that is Lord s Supper will be changed and only ordained persons will do the service
This it is submitted will affect the right of worship of the respondents
Much reliance has been placed on behalf of the respondents on the universal priesthood that is said to be prevalent in UBMC
The submission in this regard however does not find support from the Constitution of UBMC
Under the heading The Local Church paragraph 4 of the Constitution of UBMC exhibit A 1 provides as follows Church workers are those either paid or honorary ordained or lay who are appointed by the church for a definite piece of work under the supervision of the church
It is the duty of the Pastors appointed to shepherd the churches to teach the Word of God to administer the sacraments and to propagate the Gospel among those who have not yet come to the saving knowledge of Christ Evangelists and lay preachers appointed to the charge of churches shall have no authority to administer the sacraments
In places where it is impossible for the pastor to administer the sacraments regularly the District Church Board may give evangelists in pastoral charge authority to fulfil this duty
 It is apparent from paragraph 4 that Evangelists and lay preachers have no authority to administer the sacraments
It is only in exceptional cases where it is impossible for the Pastor to administer the sacraments regularly the District Church Board may give Evangelists in pastoral charge authority to fulfil this duty
Thus the universal priesthood which is said to be prevalent in UBMC does not permit lay preachers and Evangelists to administer the sacraments
It is true that in the CSI the Presbyters are ordained persons but in UBMC they are unordained as has been noticed by the learned Judge
But nothing turns out on that distinction
In UBMC the Pastor is an ordained minister and paragraph 4 exhibit A 1 extracted above provides that it is the duty of the Pastors to shepherd the churches to teach the Word of God to administer the sacraments and to propagate 748 the Gospel among those who have not yet come to the saving knowledge of Christ
While a Presbyter in the CSI is an ordained minister in UBMC the ordained minister is a Pastor
In the CSI Presbyters have the authority to administer the sacraments and in UBMC the Pastors who are ordained ministers are authorised to administer the sacraments
There is therefore no distinction between a Pastor in UBMC and a Presbyter in the CSI
As the functions and duties of Presbyters and Pastors are the same and as both of them are ordained ministers no exception can be taken by the respondents if the sacraments are administered by Pastors instead of by the Presbyters
No objection can also be taken to the Bishops administering the sacraments for they do not emerge from the apostolic successsion which is the main characteristic of historical episcopacy
If the respondents or any of the members of UBMC have or has any objection to the administering of sacraments by the Bishops the sacraments can be administered by the Presbyters
It may be recalled that units of UBMC namely Malabar and Bombay Karnataka units have already joined the CSI
The CSI has accepted the form of worship which used to be followed in UBMC before the union of the two units with CSI and such acceptance has been indicated in Rule 12 of Chapter II of the Constitution of CSI exhibit B 39
Rule 12 specifically provides that no forms of worship which before the union have been in use in any of the united churches have been forbidden in the CSI nor shall any wonted forms be changed or new forms be introduced into the worship of any congregation without the agreement of the Pastor and the congregation arrived at in accordance with the conditions laid down in Chapter X of the Constitution
Thus the CSI has already accepted the form of worship which the members of UBMC used to follow before the union of UBMC with the CSI
In view of this specific provision in exhibit B 39 it is difficult to accept the contention of the respondents that in case of merger or the implementation of the impugned resolution the right of worship of the members of UBMC will be affected
The learned Judge of the High Court has referred to the manner of consecration and ordination in the CSI
Clause iv of Rule 11 Chapter II of exhibit B 39 inter alia provides that every ordination of Presbyters shall be performed by the laying on of hands by the Bishops and Presbyters and all consecrations of Bishops shall be performed by the laying on of hands at least of three Bishops
Clause iv further provides that the CSI believes that in all ordinations and consecrations the ordainer and Consecrator is God who in response to the prayers of His Church and through the words and acts of its l representatives commissions and empowers for the office and work to 749 which they are called the persons whom it has selected
It may be mentioned here that in UBMC the method of consecration and ordinar Action is also the same as in the CSI
After an elaborate discussion the learned Judge of the High Court has come to the conclusion that the laying of hands on the person to be ordained in the case of Episcopal Church meaning thereby the CSI has a spiritual significance of a transfer of Grace whereas it has no such spiritual significance in UBMC but is a symbol of conferment of authority only
After a person is appointed a Bishop or a Presbyter in the CSI or a Pastor in UBMC he has to be ordained in almost the same manner as indicated above
We do not think it is within the purview of the enquiry in this litigation whether such ordination in the CSI has a spiritual significance of a transfer of Grace or whether it is only a symbol of conferment of authority so far as UBMC is concerned
The mode or manner of ordination or the underlying of such ordination has in our opinion nothing to do with the right of worship of the respondents
UBMC believes in Apostle s Creed and Nicene Creed
Creeds are biographical sketches of Lord Jesus and they are the main items of all Church Services
Under its Constitution exhibit B 39 the CSI also accepts the Apostle s Creed and the Nicene Creed
The complaint of the respondents is that while the Shorter Catechism of Luther is placed on the same footing as the Apostle s Creed and the Nicene Creed in UBMC there is no reference to this in Constitution exhibit B 39 of the CSI
The Shorter Catechism of Luther is the instruction in the form of a series of questions and answers to be learnt by every person before he is baptised
According to W 1 the Shorter Catechism of Luther is a statement of faith in the form of questions and answers based upon Scriptures and Creeds intended to be used in instructing those who are to be baptised
That statement of DW 1 has not been challenged in cross examination on behalf of the respondents
Both UBMC and the CSI believe in Apostle s Creed and Nicene Creed
If Shorter Catechism as stated by DW 1 consists of the Creeds in the form of questions and answers we do not think that merely because there is no mention about Shorter Catechism the Constitution of the CSI exhibit B 39 it can be said that there is a difference in the faith and doctrine of the two Churches as held by the learned Judge
Moreover this has nothing to do with the right of worship of the respondents and accordingly we do not think we are called upon to consider the effect of non mention of Shorter Catechism in exhibit B 39
It is however urged on behalf of the respondents that the right of worship of the respondents will be greatly affected in case of union 750 of the two Churches as the CSI uses in prayers Apocrypha the meaning of which will be indicated presently
The Bible consists of 66 Cannonical Books39 books of the old Testament and 27 books of the New Testament
Later on 14 additional books were added to the old Testament
These 14 additional books are together named Apocrypha 
The Bible that CSI uses contains not only Canonical Books but also those 14 books known as Apocrypha 
It is apprehended by the respondents that in case of merger there is a possibility of their being subjected to accept Apocrypha in their prayers stated to be prevalent in the CSI
It is submitted by the learned Counsel for the respondents that as Apocrypha has been eschewed completely and not at all used in Church Service by UBMC it would affect the right of worship of the respondents by reason of merger as Apocrypha would be imposed on them
In support of the contention much reliance has been placed by the learned Counsel for the respondents on a decision of the Privy Council in Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu vs Prathivathi Bhayankaram Venkatacharlu In that case there was a dispute between two sections of the Vaishnavites one known as Vadagalais and the other as Tengalais
The question that came up for consideration by the Privy Council was whether in the Vaishnavite temples situate in Trimulai and in Tripatti worship would be conducted exclusively in Tengalai order or the Vadagalai ritual would form part of the worship in these temples
The Privy Council came to the conclusion that Vadagalai community was not entitled to interfere with Tengalai ritual in the worship in those temples by insisting on reciting their own Manthram simultaneously with the Tengalai Manthram
The suit instituted by the High Priest of the Tengalai community was decreed and the Vedagalai community was restrained from interfering with the Tengalai ritual in worship in those temples conducted by the appellant or his deputy by insisting on reciting their own Manthram simultaneously with the Tengalai Manthram 
The above decision of the Privy Council only lays down that if the right of worship is interfered with the persons responsible for such interference can be restrained by an order of injunction
Even if Apocrypha is followed in the CSI that would not interfere with the right of worship of the respondents
We have already referred to Rule 12 Chapter II of the Constitution of the CSI exhibit B 39 inter alia providing that no forms of worship which before the union have been in use in any of the united churches shall be forbidden in the CSI nor 751 shall any wonted forms be changed or new forms introduced into the worship of any congregation
There is therefore no cause for apprehension of the respondents that in case of merger the Apocrypha will be imposed upon them which is repugnant to their religious faith
Moreover in the liturgy of the CSI the prayer from Apocrypha has been made optional which shows that there is no scope for the imposition of Apocrypha on the respondents in case of union of UBMC and CSI
It is vehemently urged on behalf of the respondents that in case of merger the property held in trust by the United Basel Mission Church in India Trust Association hereinafter referred to as UBMC Trust Association for UBMC of South Kanara and Coorg will be diverted to the CSI and such diversion will be in complete breach of trust and the court should not allow such breach of trust taking place by the merger of UBMC of South Kanara and Coorg in the CSI
It is the case of the respondents in the plaint that the properties of UBMC have been vested by the Evenglical Missionary Societies in Basel Basel Mission in the UBMC Trust Association by a declaration of trust
It appears that by a deed dated September 18 1934 exhibit A 146 the Evenglical Missionary Society in Basel Basel Mission declared itself as the trustee seized of or entitled to the lands and premises mentioned in the schedule to the said deed holding the same in trust inter alia for the benefit of the members of the Church founded by the Society in the districts of South Kanara Bombay Karnataka and Malabar known as UBMC in India
Further it appears that the said Society appointed the UBMC Trust Association a Company incorporated under the Indian Companies Act 1913 the managers of the trust properties which belong to the Society and not to the UBMC Trust Association
Indeed it has been noticed that in the plaint the respondents also admit that the properties belong to the Society and the Society holds the same as the trustee for the benefit of UBMC in India
In case of merger there cannot be any diversion of the properties held in trust by the Society and managed by the UBMC Trust Association
The properties will remain the properties of the Society which holds them only for the purposes as mentioned in the said deed exhibit A 146
In other words even though there is merger the properties or the income thereof will be utilised only for the benifit of the memhers of the UBMC of South Kanara and Coorg
Although the UBMC Trust Association and the Society have been made parties in the suit as defendants Nos 9  l0 respectively 752 no relief has been claimed against either of them and there is no prayer for restraining them from diverting the property upon merger
It may be inferred from the absence of such a prayer that it was known to the respondents that there would be no diversion of the properties upon such merger
It has been rightly observed by the learned Munsif that as the respondents have not prayed for any relief against the Society and the UBMC Trust Association they cannot urge that UBMC of South Kanara and Coorg will lose their rights in the properties held by the UBMC Trust Association if a merger is permitted with the CSI
There is no material to show that the UBMC Trust Association has agreed to transfer the properties to the CSI in case of merger
There is no allegation in that regard in the plaint
In the circumstances it is difficult to accept the contention of the respondents that in case of merger there will be diversion of the properties in the hands of the UBMC Trust Association to the CSI in breach of trust
Much reliance has been placed on behalf of the respondents in the decision of the House of Lords in General Assembly of Free Church of Scotland vs Lord overtoun which in our opinion has no application to the facts and circumstances of the instant case in view of our finding that there will be no diversion of the trust properties in the hands of the UBMC Trust Association to the CSI
What happened in Free Church case was that majority of the members of Free Church of Scotland united and used the funds of which they claimed to be the beneficial owners for the use of the new united body
It was contended on behalf of the minority who chose to be out of such union that the user of such funds constituted breach of trust
The enquiry in that decision was consequently directed to the question whether there was a breach of trust or not and it was held by majority of the Law Lords that there was such a breach of trust
As there is no question of such breach of trust in the instant case the Free Church case has no manner of application even though the High Court had made elaborate discussions over the case and came to the finding that certain observations made by Lord Halsbury LC were applicable
It appears that in considering the question as to whether there was a breach of the trust or not Lord Halsbury made the following incidental observations My Lords I am bound to say that after the most careful examination of the various documents submitted to us I cannot trace the least evidence of either of them having abandoned their original views
It is not the case of two associated bodies of Christians in complete harmony as to 753 their doctrine agreeing to share their funds but two bodies each agreeing to keep their separate religious views where they differ agreeing to make their formularies so elastic as to admit those who accept them according as their respective consciences will permit
Assuming as I do that there are differences of belief between them these differences are not got rid of by their agreeing to say nothing about them nor are these essentially diverse views avoided by selecting so elastic a formulary as can be accepted by people who differ and say that they claim their liberty to retain their differences while purporting to join in one Christian Church
It becomes but a colourable union and no trust fund devoted to one form of faith can be shared by another communion simply because they say in effect there are some parts of this or that confession which we will agree not to discuss and we will make our formularies such that either of us can accept it
Such an agreement would not in my view constitute a Church at all or it would be to use Sir William Smith s phrase a Church without a religion
Its formularies would be designed not to be a confession of faith but a concealment of such part of the faith as constituted an impediment to the union  The observations extracted above have been strongly relied upon by the learned Counsel for the respondents
According to the observations no objection can be taken if there be complete harmony as to their doctrine
As discussed above there is little or no difference between the doctrines faith and religious views of UBMC and the CSI
The objection of the respondents to historical Episcopacy has no solid foundation inasmuch as historical Episcopacy is not in existence in the true sense of the term in the CSI and it is now in a constitutional form
In other words as earlier pointed out the Bishops are elected and apostolic succession which is associated with historical Episcopacy is totally absent
Moreover the observations in the Free Church case have been made in connection with the question whether there was breach of trust or not
Therefore the said observations cannot in any event be applicable to the facts of the present case which are different from those in the Free Church case
We accordingly reject 754 the contention of the respondents that following the observations made by Lord Halsbury the impugned resolution should be struck down and the appellants should be restrained from effecting any merger
Now the question that remains to be considered is whether the District Church Council had the authority to pass the impugned resolution for the union of UBMC of South Kanara and Coorg with the CSI
The impugned resolution dated 9 5 1961 exhibit A 39 runs as follows 
6104
Afterwards Rev SR Furtado moved the following resolution Resolved that the suggestion appearing in Minute 6016 of the District Church Council held on 12 5 60 that our South Kanara and Coorg District Church should join the Church of South India is adopted confirmed and finally passed
Therefore this District Church Council besides resolving to accept the constitution of the Church of South India authorises the District Church Board to proceed to correspond in connection with this matter with the authorities of the Church of South India after obtaining permission of the Synod of the United Basel Mission Church
 under the Constitution of UBMC exhibit A 1 Item 9 is the District Church Council
Paragraph 1 of Item 9 provides as follows 1
The governance of the United Basel Mission Church in India shall in each District be vested in a body called the District Church Council which shall be the final authority in all matters relating to the church except those of faith and order and the disciplining of pastors evangelist and Thus the District Church Council is the final authority in all matters relating to the Church except those of faith and order and the disciplining of Pastors Evangelist and Elders
Rule 14 of the Constitution confers power on the District Church Council relating to the amendment of the Constitution
Rule 14 provides as follows 755 Whenever an amendment to the constitution is found necessary any member of the Church Council may propose the same in the meeting of the Council and if it is duly seconded it shall be included in the minutes of the Council
When the Council meets again the proposed amendment shall once more be moved and seconded and if three fourth of the members present vote in favour of the amendment it shall be passed and the fact be communicated immediately to the Synod
 It is however submitted on behalf of the respondents that Rule 14 only relates to the amendment of the Constitution but in case of merger there will be a total abrogation of the Constitution of UBMC
The Constitution has not conferred any power on the District Church Council to abrogate the Constitution
It is contended that amendment of the Constitution and abrogation of the same are completely different and as no such power of abrogation of the Constitution has been conferred on the District Church Council it had no authority whatsoever to pass the impugned resolution which would mean the complete abrogation of the Constitution of UBMC
In support of their contention the learned Counsel for the respondents has pressed into service the decision of the Special Bench of the Allahabad High Court in NF Barwell vs John lackson AIR 1948 All
146 SB
In that case the members of unregistered Members  Club owning certain properties passed a resolution by a majority vote that the Club should be dissolved
It was held by the Special Bench that in the absence of any provision in the Rules of the Club laying down the circumstances and the manner in which the dissolution of the Club could take place the dissolution of the Club would not be brought about by a majority vote
The Club could be dissolved only if all the members unanimously agreed to such dissolution
We are afraid this decision has no manner of application to the facts of the instant case
Here we are not concerned with the question of dissolution of UBMC of South Kanara and Coorg but with the question of merger
Dissolution contemplates liquidation of the Club and distribution of all assets among the members but in the case of merger there is no question of liquidation or distribution of assets
Moreover we have already discussed above that the properties held in trust for UBMC will not be diverted to the use of the CSI but will continue to be held in trust by the UBMC Trust Association for the benefit of the 756 members of the UBMC of South Kanara and Coorg even if a merger takes place
It is the contention of the appellants that the District Church Council had the authority to pass the impugned resolution
It is submitted that in any event the Synod of UBMC having permitted the
District Church Council of South Kanara and Coorg to join the CSI the validity of the resolution is beyond any challenge
Our attention has been drawn on behalf of the appellants to Rule 132 of the Constitution of UBMC exhibit A 1 which deals with the functions of the Synod
Rule 132 reads as follows R 132
Its functions shall be a to hear the reports of church and mission work of each District b to suggest such measures of uniformity as may be necessary for the mission and church work in the three districts c to give suggestions on problems pertaining to 1 the spiritual life and work of the different churches 2 the common evangelists activities of church and mission 3 the church union and 4 the administration of Church property funds etc d to decide finally all questions of faith and order in the United Basel Mission Church of India provided that all that all such decisions are arrived at by a majority of three fourths its total strength One of the functions of the Synod as contained in clause c3 is to give suggestions on problems pertaining to the Church Union
Another function is that contained in clause d upon which much reliance has been placed on behalf of the appellants
Clause c3 and clause d read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order
It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI
It is also their case that the resolution has already been implemented
The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the 757 appellants
The question before us is not whether there has been any implementation of the resolution or not but the question is whether the District Church Council had the authority to pass such a resolution
It is true that the District Church Council has only the power of amendment of the Constitution
No power has been conferred on it to pass a resolution relating to the union of UBMC of South Kanara and Coorg with the CSI
But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI
On 24 6 1968 the Synod of UBMC passed the following resolution Resolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease to exist The learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on 24 6 1968
The resolution was passed unanimously by all the members present on that date
It is however faintly suggested by the learned Counsel for the respondents that Synod was not in existence after the merger of Bombay Karnataka and Malabar units of UBMC in the CSI
The suggestion is not correct for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution
As the Synod was a representative body of the units it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI
But until such a resolution was passed it did exist as the highest authoritative and administrative body of UBMC
Another ground challenging the validity of the resolution that has been urged on behalf of the respondents is that it violates the provision of section 6 of the Religious Societies Act 1880
Section 6 provides as follows section 6
Provision for dissolution of societies and adjustment of their affairs
Any number not less than three fifths of the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved and thereupon it shall be dissolved forthwith or at the time when agreed upon and all neces 758 sary steps shall be taken for the disposal and settlement of the property of such body its claims and liabilities according to the rules of such body applicable thereto if any and if not then as such body at such meeting may determine Provided that in the event of any dispute arising among the members of such body the adjustment of its affairs shall be referred to the principal Court of original civil jurisdiction of the district in which the chief building o such body is situate and the Court shall make such order in the matter as it deems fit
 This challenge is misconceived
Section 6 deals with dissolution of Societies and adjustment of their affairs
It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc
 consequent upon such dissolution as provided in section 6 and as such the provision of section 6 is not at all applicable to the facts and circumstances of the instant case
The contention made on behalf of the respondents is without any substance 
We are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger the High Court was not justified in striking down the impugned resolution of the ground that it was beyond the authority of the District Church Council to pass such a resolution
In our opinion the impugned resolution is legal and valid
In the result the appeal is allowed
The judgment and decree of the learned Judge of the High Court are set aside and the judgment and decree of the first appellate court affirming those of the trial court are restored
In the facts and circumstances of the case we direct the parties to J hear their own costs in this Court
SL Appeal allowed


Summary:
 The appellant was married to the first respondent by observance of rites under Hindu Law in June 1974 while the first respondent s earlier marriage was subsisting and the wife was alive
After living with the first respondent for a week she left the house alleging ill treatment
She filed an application for maintenance in 1976 which was dismissed by the trial Court
Her appeal to the High Court was dismissed by a Full Bench
In the appeal to this Court it was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom and in any event the marriage would be voidable under section 12 of the  that the term wife in section 125 of the Cr
PC 1973 should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law that the personal law of the parties to a proceeding under section 125 of the Cr
PC should be excluded from consideration and since a divorcee has been held to be entitled to the benefits of the section a woman in the same position as the appellant should also be brought within the sweep of the section and since the appellant was not informed about the respondent s earlier marriage when she married him who treated her as his wife her prayer for maintenance should be allowed
810 It was contended on behalf of the respondent that the term wife used in Section 125 of the Cr
PC meant only a legally wedded wife and as the marriage of the appellant must be held to be null and void by reason of the provisions of the the appellant was not entitled to any relief under the section
Dismissing the appeal  HELD l
The marriage of a woman in accordance with the Hindu rites with a man having legal spouse after coming into force of the is a complete nullity in the eye of law and she is not entitled to the benefit of Sec 125 of the Criminal Procedure Code 1973
813D 21 Clause 1i of section 5 of the  lays down for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage and therefore a marriage in contravention of this condition is null and void under section 11 of the Act
813G 22 By reason of the overriding effect of the Act as mentioned in section 4 no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law inconsistent with any provisions of the Act
Section 12 is confined to other categories of marriages and is not applicable to one solemnized in violation of section 51i of the Act
Cases covered under section 12 are not void ab initio
813H 814A B 23 The marriage covered by section 11 are void ipso jure that is void from the very inception and have to be ignored as not existing in law at all if and when such a question arises
Although the section permits a formal declaration to be made on the presentation of a petition it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose
814B C The marriage of the appellant must therefore be treated as null and void from its verv inception
815C 31 Section 125 has been enacted in the interest of a wife and one who intends to take benefit under sub section la has to establish the necessary condition namely that she is the wife of the person concerned
This issue can be decided only by a reference to the law applicable to the parties
815E 811 32 It is only where an applicant establishes her status or relationship with reference to the Personal Law that an application for maintenance can be maintained
Once the right under the section is established by proof of necessary conditions mentioned therein it cannot be defeated by further reference to the Personal Law
816D E 33 For the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect but has not done so with respect to women not lawfully married
816F 34 The word wife is not defined in the Cr
PC except indicating in the Explanation to section 125 its inclusive character so as to cover a divorcee
A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status
The expression must therefore be given the meaning in which it is understood in law applicable to the parties subject to the Explanation b
A divorcee is included in the section on account of cl
b of the Explanation
815D E 35 Principle of estoppel cannot be relied upon to defeat the provisions of the Act
So far as the first respondent treating her as wife is concerned it is of no avail as the issue has to be settled under the law
It is the intention of the legislature which is relevant and not the attitude of the parties
The prayer of the appellant for maintenance cannot therefore be allowed even if the appellant was not informed at the time of her marriage to the respondent about his earlier marriage
816G H Mohd Ahmed Khan vs Skah Bano Beghum   distinguished