A. Vijayalakshmi v. State of Kerala & Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940 WP(C).No. 17698 of 2018** ## **PETITIONER** **A.VIJAYALAKSHMI, AGED 41 YEARS, D/O.LATE N.ARUNAGIRI, MALIYEKKAL, HOUSE NO.36/1992, KATTAKKARA CROSS ROAD, AZAD ROAD, KALOOR, KOCHI-17, REPRESENTED BY HER BROTHER AND POWER OF ATTORNEY HOLDER, SIVAKUMAR A, AGED 39 YEARS, S/O.LATE N.ARUNAGIRI, MALIYEKKAL, HOUSE NO.36.1992, KATTAKKARA CROSS ROAD, AZAD ROAD, KALOOR, KOCHI-17.** **BY ADVS.SRI.VISHAK.K.JOHNSON SRI.S.NITHIN (ANCHAL) SRI.P.B. KRISHNAN** ## **RESPONDENTS:** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, STATE SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE MARRIAGE REGISTRAR, ERNAKULAM-682011.** **3. THE SUB REGISTRAR, ERNAKULAM-682011.** ## ***ADDL.R4 IMPLEADED** **-----------------** ***Addl.4. JAIPRAKASH GANESH, S/O PALANIRAJ.S, 38, FERN'S HABITAT, OUTER RING ROAD, DODDENEKKUNDI, BANGALORE-560037.** ***ADDL. R4 IS IMPLEADED AS PER ORDER DATED 18.06.18 IN IA NO. 10670/18** **/2/** **-2-** ## **WP(C).No. 17698 of 2018** ***ADDL.R5 IMPLEADED** **------------------** ***ADDL.R5 THE OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATS, ERNAKULAM** - ***ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 26.7.2018** **R1 TO R3, R5 BY GOVERNMENT PLEADER SMT. A.C. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17698 of 2018 (J)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE AUTHORIZATION/POWER TO INSTITUTE LITIGATION EXECUTED BY THE PETITIONER IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF CERTIFICATE OF MARRIAGE ISSUED BY THE MADHAWA MANDIRAM TRUST DATED 27/8/1998 EXHIBIT P3 TRUE COPY OF THE REGISTERED MARRIAGE AGREEMENT DATED 24/4/1998 EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER AND HER SPOUSE BEFORE THE 2ND RESPONDENT DATED 16/4/2018** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/4.8.18** **(CR)** **ALEXANDER THOMAS, J. ------------------------------------------W.P.(C)No.17698 of 2018 --------------------------------------------Dated this the 26[th] day of July, 2018** ## **JUDGMENT** It is the case of the petitioner that her marriage with the 4[th] respondent (Jai Prakash Ganesh) was duly solemnized on 27.08.1998, at the Madhwa Mandiram Trust, in accordance with the provisions contained in the Hindu Marriage Act, 1955. It is further stated that prior to the marriage, the parties have entered into an agreement for marriage and the said agreement at Ext.P3 has been duly registered before the 3[rd] respondent, Sub-Registrar, Sub-Registrars Office, Ernakulam. The petitioner and the 4[th] respondent belong to Hindu religion and their marriage has been solemnized in the Kalyanamandapam at the Madhwa Mandiram Trust, Ernakulam, as evident from Ext.P2 certificate of marriage dated 27.08.1998, issued by the said organization. It is the case of the petitioner that though the marriage was thus got duly solemnized in accordance with the provisions contained in the Hindu Marriage Act, 1955, the parties had inadvertently omitted W.P.(C)No.17698 of 2018 ..2.. to get their factum of solemnization of their marriage registered in accordance with the provisions contained in the Kerala Hindu Marriage Registration Rules, 1957, which has been framed by virtue of the enabling provisions contained in Section 8(1) of the Hindu Marriage Act, 1955. The petitioner and the 4[th] respondent have been settled in the United States of America for quite some time and two children (daughters) have been born in that wedlock. It is the further case of the petitioner that the relationship between the petitioner and the 4[th] respondent got strained and they are living apart. The petitioner wanted to institute divorce proceedings before the competent court in the U.S.A. and she has been advised that one of the vital documents required for presentation of the application for divorce or dissolution of marriage as per the Rules of court practice prevailing in that foreign country is that the marriage certificate should also be produced to establish the factum of marriage between the parties. Thereupon the petitioner sought to get the factum of the solemnization of marriage with the 4[th] respondent, registered in accordance with the provisions contained in the Kerala Hindu W.P.(C)No.17698 of 2018 ..3.. Marriage Registration Rules, 1957. Ext.P4 is the application dated 16.04.2018 submitted by the petitioner before the 2[nd] respondent who is stated to be the competent marriage Registrar in that regard. The petitioner's contention is that petitioner could reliably learn from the office of the 2[nd] respondent that the application cannot be entertained unless it is signed by both the spouses (viz., the petitioner and the 4[th] respondent). The petitioner had submitted Ext.P4 application for issuance of marriage certificate under the provisions of the Kerala Hindu Marriage Registration Rules, 1957, on the basis of Ext.P3 registered agreement regarding the marriage between the parties. However the petitioner was informed by the 2[nd] respondent that such an application cannot be entertained and that the petitioner has to submit the application in Form No.I prescribed under Rule 6 of the above said Rules, and that the said application should be duly signed by both the spouses. It appears that the 4[th] respondent is not willing to cooperate with the petitioner in the matter of getting their marriage registered under the above Rules, because of differences of opinion between the spouses. It is in the light of these aspects that the W.P.(C)No.17698 of 2018 ..4.. petitioner filed this instant Writ Petition (Civil) under the enabling provisions contained in Article 226 of the Constitution of India with the following prayers:- _“(I) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 and 2 to issue marriage certificate to the petitioner as prayed for in Exhibit P4 application without insisting on the personal appearance of the petitioner or her spouse._ _(II)Issue such other further reliefs as the necessary in the interest of justice.”_ 2. Heard Sri.P.B.Krishnan, learned Advocate instructed by Sri.Vishak K.Johnson, learned counsel appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for respondents 1 to 3 and 5. Notice to additional respondent No.4 (Jai Prakash Ganesh), has been returned with an endorsement, _“no such address”._ In the nature of the orders proposed to be passed in this petition, notice to respondent No.4 will stand dispensed with. 3. One of the issues to be determined in this case is as to whether the stand of the 2[nd] respondent that both the spouses should necessarily sign the application in Form No.I under Rule 6 W.P.(C)No.17698 of 2018 ..5.. of the above Rules is correct or not. 4. Section 8 of the Hindu Marriage Act, 1955 reads as follows:- _“S. 8. (1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose._ _(2) Notwithstanding anything contained in subsection (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees._ _(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made._ _(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee._ _(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.”_ W.P.(C)No.17698 of 2018 ..6.. 5. It is common ground that it has been notified that marriages solemnized in accordance with the provisions contained in Hindu Marriage Act, 1955 in the State of Kerala requires compulsory registration in terms of Section 8(2) of the above Act. 6. Rule 6 of the Kerala Hindu Marriage Registration Rules, 1957 provides as follows:- “ _R. 6. As soon as may be possible and not later than 15 days after the solemnization of a marriage, the husband may and in compulsory registration area shall give or cause to be given a report about the marriage in Form No. 1 (in original and duplicate) to the Local Registrar in whose jurisdiction the marriage was solemnized. The report may be sent by registered post or delivered personally or through messenger. In case a marriage report is delivered personally or through messenger, the Local Registrar shall give a receipt indicating the fact of his having received the report. The date on which the marriage report was received shall be indicated in the receipt as also in the marriage report and attested by the initials of the Local Registrar._ _[Provided that the Local Registrar may entertain an application whether presented in person or by messenger or sent by registered post after the expiry of the said period of 15 days but within 30 days from the date of marriage if he is satisfied that there is sufficient ground for the delay. Where such application is filed after the period of 30 days, such application may be entertained with the special permission of the District Registrar concerned.]”_ 7. So, under the provisions contained in Rule 6, it is stipulated that not later than 15 days after the solemnization of the W.P.(C)No.17698 of 2018 **==> picture [16 x 8] intentionally omitted <==** marriage, the husband may and in compulsory registration areas shall give or cause to be given a report about the marriage in Form No.I, (in original and duplicate), to the Local Registrar in whose jurisdiction the marriage was solemnized and the report in Form No.I, may be sent by registered post or delivered personally or through messenger. The proviso to Rule 6 further stipulate that the Local Registrar may entertain an application after expiry of the said period of 15 days but within 30 days from the date of marriage, if he is satisfied that there is sufficient ground for the delay. Further it is stipulated in the said proviso that, if the application is filed after the period of 30 days, such application may be entertained with the special permission of the Registrar General. 8. Going by the pleadings in this case, as the marriage was solemnized on 27.08.1998, the registration of such a marriage, could be considered by the Local Registrar only after getting special permission of the Registrar General (5[th] respondent herein), in terms of the proviso to Rule 6. Form No.I prescribed under Rule 6 reads as follows:- W.P.(C)No.17698 of 2018 ..8.. ## “ _FORM NO.1_ _Received on................. Initials of Local Registrar................._ _Place of Taluk marriage Town Village_ _Date of marriage_ _________________________________________ Particulars Husband Wife ________________________________________ Name A.B C.D. Age Birth place (if available) Civil condition (at the time of marriage) Occupation Residence Name of father or guardian_ _________________________________________ We hereby declare that the particulars specified above are correct to the best of our knowledge._ _Signature of Husband............................ Signature of Wife................................. (if the wife is a minor, signature of legal guardian at the time of marriage) Two witnesses:_ _1. Name Address Signature 2. Name Address Signature_ _Registered as No....... Date................._ _Signature of Local Registrar”_ ## 9. Rule 7 stipulates as follows:- - “ _R. 7. The Local Registrar shall after verifying the_ W.P.(C)No.17698 of 2018 ..9.. _entries in the marriage report referred to in Rule 6 for accuracy and completeness enter the various particulars in Form II and attest his signatures in the space specified therein. The entries relating to each marriage shall be given serial numbers consecutively beginning with the first day of January and ending with the last day of December.”_ ## 10. Form No.II prescribed under Rule 7 reads as follows:- ||“_FORM NO. 11_|“_FORM NO. 11_|| |---|---|---|---| ||_[See Rule 7]_||| |_Place of_|_Taluk_||| |_marriage_|_Town_|_Date of marriage_|| ||_Village_||| |__________________________________________|||| |_Particulars_||_Husband_|_Wife_| |__________________________________________|||| |_Name_||_A.B._|_C.D._| |_Age_|||| |_Birth Place if available_|||| |_Civil condition at_|_the time_||| |_of marriage_||_Unmarried/_|_unmarried/_| |||_widower/_|_widow/_| |||_Divorcee_|_Divorcee_| _Occupation Residence Name of father or guardian_ _________________________________________ We hereby declare that the particulars specified above are correct to the best of our knowledge._ _Signature of Husband............................ Signature of Wife................................._ _if the wife is a minor, signature of legal guardian at the time of marriage_ _Two witnesses: 1. Name Address_ W.P.(C)No.17698 of 2018 ..10.. _Signature_ _2. Name Address Signature_ _Registered as No....... Date................._ _Signature of Local Registrar”_ 11. A reading of Rule 6 and Rule 7 would clearly indicate that both the spouses should sign in Form No.I, (prescribed under Rule 6) as well as in Form No.II (prescribed under Rule 7). As stated hereinabove, Rule 7 prescribes that the Local Registrar, shall after verifying the entries in the marriage report referred to in Rule 6 for accuracy and completeness, enter the various particulars in a register in Form-II and attest his signature in the space provided thereunder and the entries relating to each marriage in the marriages' report. Further it is stipulated therein that entries relating to each marriage shall be given serial numbers consecutively between the first day of January and ending with the last day of December. Further, Rule 8 stipulates as follows:- _“R.8. The Register referred to in Rule 7 shall be a bound book, the pages of which are machine numbered.”_ W.P.(C)No.17698 of 2018 ..11.. 12. Hence, it is clear from a reading of Rule 6 that both the spouses should sign the report of marriage in Form No.I (prescribed under Rule 6) and if it is presented after the prescribed 30 days time limit, the report of marriage can be considered by the local Registrar only after getting special permission of the Registrar General. After securing such permission, it is for the Local Registrar to take the next steps as prescribed in Rule 7 and if he is satisfied about the factum of marriage, he shall verify the entries in the marriage report referred to in Rule 6 for accuracy and completeness and then enter the various particulars in FormII register maintained in his office. The register of Form II would show that both the spouses will also have to sign Form II register prescribed under Rule 7. The Local Registrar should also attest his signature as against the entries made in Form II register. 13. Construing broadly similar provisions engrafted in the Kerala Registration of Marriages (Common) Rules, 2008, a Division Bench of this Court in the judgment in **Sarala Baby v. State of Kerala & Others (2010 (2) KHC 334 (DB))** , has held that it is not necessary that both the spouses should be W.P.(C)No.17698 of 2018 **==> picture [22 x 7] intentionally omitted <==** present before the notified Registrar concerned for submitting their application for registration of marriage and that such application could be submitted even through post or through messenger. The spouses should sign the application in question under that Rules but need not be present before the notified Registrar at the time of submission of the application which could be made through registered post or through messenger. But both the spouses should be present before the notified Registrar under those Rules prior to the issuance of the marriage certificate and that they will have to personally appear and sign in the register maintained in Form No.III of those Rules etc. 14. Hence it is clear from a reading of the prescriptions made in the above said Hindu Marriage Rules that though the spouses need not necessarily present personally before the notified Registrar for submitting their Form II report of marriage, both of them should necessarily sign in Form II report of marriage as per Rule 6 and they need not be personally present before the Local Registrar at the time of submission of such a report which could be sent through registered post or messenger. But at the time of W.P.(C)No.17698 of 2018 **==> picture [22 x 9] intentionally omitted <==** entering the details of the marriage in Form II register, under Rule 7, both the spouses should append the signatures in Form II register in the presence of the notified Registrar and thereafter the notified Registrar will have to attest his signature in the space provided therefor in the said Form II register. In these circumstance it is only to be held that in a case where the marriage is sought to be registered in accordance with the provisions contained in the Kerala Hindu Marriage Registration Rule, 1957, the Form I report of marriage has to be signed by b0th the spouses and Form II register should also be signed by both the spouses etc. So, the personal presence of both the spouses at the time of entering of the particulars in Form II register by the Local Registrar under Rule 7 is necessary, as stated above. 15. Therefore, in these circumstances it is for the petitioner to proceed in accordance with the prescribed procedure as per the above said Hindu Marriage Rules. It is also declared that in case both the spouses are not appending the signature in Form No.I and Form No.II (Under Rules 6 and 7 above), then the notified Registrar has no jurisdiction to proceed further with the W.P.(C)No.17698 of 2018 **==> picture [22 x 9] intentionally omitted <==** consideration of the aspect relating to the registration of their marriage and he is not competent to register such a marriage. 16. In case the petitioner has a case that she is otherwise legally entitled to get her marriage with the 4[th] respondent dissolved, then it is for her to take appropriate steps in that regard in accordance with law before the court of competent jurisdiction. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** skj