Ancy Rajan vs. Marriage Registrar, Kottayam Municipality & Registrar General Joint Director of Urban Affairs

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **WP(C).No.15475 OF 2020(H)** ## **PETITIONERS:** - **1 ANCY RAJAN AGED 45 YEARS W/O. RAJAN FREDERIC, 55/1900A, PARAYIL HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P O, ERNAKULAM 682020, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ROJY KUNNUMPURATHU PHILIP, S/O. RAJAN PHILIP, KUNNUMPURATHU HOUSE, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, VALKUZHY PO, PATHANAMTHITTA - 689544.** - **2 RAJAN FREDERIC S/O. FRANCIS FREDERIC, 55/1900A, PARAYIL HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P O, ERNAKULAM 682020, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ROJY KUNNUMPURATHU PHILIP, S/O. RAJAN PHILIP, KUNNUMPURATHU HOUSE, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, VAKKUZHY PO, PATHANAMTHITTA - 689544.** **BY ADVS. SRI.DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR** ## **RESPONDENTS:** - **1 MARRIAGE REGISTRAR KOTTAYAM MUNICIPALITY, KOTTAYAM - 686001.** - **2 REGISTRAR GENERAL JOINT DIRECTOR OF URBAN AFFAIRS, COLLECTORATE, KOTTAYAM- 686001.** ## **BY ADVS.** **SRI SAIGI JACOB PALATTY, SR.GP SRI.SIBYCHERAPPADY SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 15475 of 2020 ## ALEXANDER THOMAS, J. ------------------------------------ ## W.P(C) No. 15475 of 2020 ------------------------------------ Dated this the 5[th ] day of August, 2020 ## **JUDGMENT** ## The prayers in the above Writ Petition (C) are as follows: - _“(i) Issue a writ of mandamus or any other writ or order or direction directing the respondents to accept Exhibits P-10 & P-11 applications submitted by petitioners through Power of Attorney and complete the registration process through the power of attorney holder by acknowledging the presence of the petitioners through video conferencing._ - _(ii) Issue a writ of mandamus or any other writ or order or direction directing the respondents to expedite the registration process and issue the Certificate of Marriage within 3 days from the date of registration of marriage as stipulated under Exhibit P-9._ - _(iii) Issue a writ of mandamus or any other writ or order or direction directing the respondents to consider the Exhibit P10 and P11 application and to complete the registration process of the marriage between the petitioners by video conferencing._ - _(iii) Pass such other orders as are deemed necessary on the facts and circumstances of the case.”_ 2. Heard Sri.Deepu Thankan, learned counsel appearing for the petitioners, Sri.Siby Chenappady, learned Standing Counsel for Kottayam Municipality appearing for R1 and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R2. 3. The case of the petitioners is that their marriage was solemnised in accordance with the customs and traditions of the 3 W.P(C) No. 15475 of 2020 Christian religion on 29-01-1984, in the Lourdes Forane Church under the Arch Diocese of Changancherry, as evidenced from Ext.P1 certificate dated 04-02-1984 issued by the Vicar of the said church. Now they had settled in the United States of America since the year 2018. Exhibits P2 & P3 are the copies of the passports of the 2[nd] petitioner and 1[st] petitioner respectively. The 2[nd] petitioner (husband) has obtained Social Security Card from the competent authority of the United States Government as per Ext.P5 and later the 1[st] petitioner (wife) had also applied for the same, in which time the Governmental authorities in the foreign country has insisted that the 1[st] petitioner should produce marriage certificate from the Governmental authorities concerned to evidence the factum of the solemnised marriage between the petitioners or otherwise her claim for social security will not be acceded to etc., as evidenced from Ext.P6. That thereupon the petitioners have lawfully appointed their Power of Attorney and have also submitted Exts.P10 & P11 application dated 15-07-2020, before the 1[st] respondent Local Registrar for registration of the solemnisation of the marriage, in accordance with the provisions contained in the Kerala Registration of Marriages (Common) Rules, 2008. Along with Exts.P10 & P11 4 W.P(C) No. 15475 of 2020 applications the petitioners have also produced Exts.P12 & P13 affidavits of the witnesses to the solemnisation of marriage etc,. 4. The problem now faced by the petitioner is the 1[st] respondent is insisting that both the petitioners should personally appear before the 1[st] respondent in order to effectuate the final steps for registration of the solemnised marriage in accordance with the abovesaid rules. 5. The petitioner would place reliance on various decisions of this Court as in _**Pardeep Kodiveedu Cletus v. Local Registrar of Marriages (Common)**_ [2018 (1) KLT 292], wherein this Court has held that for the purpose of registration of already solemnised marriage, in extreme cases where the parties find it difficult to personally appear before the notified Registrar for registration of their solemnised marriage, the same could be effected through the process of video conferencing etc,. 6. Further it appears that Rule 9 (2) of the Kerala Registration of Marriages (Common) Rules, 2008 (Ext.P8) notified on 29-022008 would mandate that where the marriage has been solemnised prior to the commencement of the said Rules (29-02-2008) then the application for registration of marriage has to be submitted within 5 W.P(C) No. 15475 of 2020 one year from the commencement of the said Rules. Further Rule 10 of Ext.P8 Rules would further mandate that where application for registration of such solemnized marriage is not made before the notified Registrar within a period of one year from the date of commencement of the said Rules then, the Local Registrar can takes steps for registration of marriage only after getting permission of the Registrar General (2[nd] respondent) and after payment of fine of Rs. 250/-. In such case, along with the memorandum, a declaration from Gazatted Officer/Member of Parliament/Member of Legislative Assembly/Member of Local Self Government Institutions has also to be given in Form No.II appended to the said Rules or with any documents to prove the solemnisation of marriage to the satisfaction of the Registrar General concerned. 7. This Court has held in the abovesaid decision in the judgment of this Court in _**Pardeep Kodiveedu Cletus v. Local Registrar of Marriages (Common)**_ [2018 (1) KLT 292], as follows in Paragraph Nos. 9 and 10 thereof: “ _9. True, inconvenience caused by a rule can never be a ground for annulling the same or reading down the Rule in a different fashion. But, if the purpose of the rule could be ensured otherwise, should the parties be put to inconvenience? My_ 6 W.P(C) No. 15475 of 2020 _conclusion is that if the purpose of the rule can be ensured otherwise, the provision of law can be interpreted by courts in a fashion not causing any inconvenience to the parties. I am fortified in this view by the principle quod est inconveniens, aut contra rationem non permissum est in lege (that which is inconvenient, or against reason, is not permitted in law). I am also fortified in this view by the following observation in the commentaries on 'Statutory Interpretation' by Francis Bennion:_ _“The court seeks to avoid a construction that causes unjustifiable inconvenience to persons who are subject to the enactment, since this is unlikely to have been intended by Parliament. Sometimes however there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong.”_ _I do not find any overriding reason in this matter for the court to interpret the provision contained in Rule 11 in such a fashion compelling the parties to the marriage to be physically present before the local Marriage Officer, for the purpose of registering their marriage._ _10. In the result, the writ petition is allowed and the first respondent is directed to satisfy that the application of the petitioners is one preferred with their knowledge, through video conferencing, which facility may be provided to the first respondent by the power holder of the petitioners. Needless to say, the power holder of the petitioners can be permitted to sign in the Marriage Register on behalf of the petitioners.”_ 8. The petitioners have also placed reliance on the judgment of the Apex Court in the case in _**State of Maharashtra v. Praful B.Desai (Dr.) [2003 (4) SCC 601]**_ [2003 (2) KLT SN 35 (C. 7 W.P(C) No. 15475 of 2020 No.45)] SC,] Reliance has also been placed on the latest judgment of the Apex Court in _**In Re: Guidelines for Court Functioning through Video Conferencing during Covid 19 Pandemic**_ [ 2020 (2) KHC 521 (SC)] emphasizing the necessity of adopting Video Conferencing for functioning of the legal system, etc. 9. This Court has followed the dictum laid down by this Court in _**Pardeep Kodiveedu Cletus's**_ case (supra) in subsequent judgments as in the judgment dated 28-05-2020 in W.P(C) No.10532/2020 & judgment dated 30-06-2020 in W.P(C) No.12762/2020 etc,. 10. Since the Rule insists for personal attendance of the parties at the time of the registration of the marriage and also taking into consideration the directions issued by this Court in _**Pardeep Kodiveedu Cletus's**_ case (supra), this Court has issued the following directions and orders in the judgment dated 30-06-2020 in W.P(C) No.12762/2020. - _“(i) The 1[st] respondent Registrar of Marriages/Secretary of the Grama Panchayat will act upon the application already submitted by the above said couple on 6.1.2020 for registration of their solemnized marriage and the factual aspects in that regard may be immediately ascertained. The petitioner will provide video conferencing facility to enable the 1[st] respondent Registrar to interact with the above said couple to_ 8 W.P(C) No. 15475 of 2020 _ascertain the factum of the solemnization of the marriage and also as to whether they have authorised the petitioner and his wife to be the signatories in the marriage register for and on behalf of the said couple._ - _(ii) The petitioner will file an affidavit stating that he has been fully authorised by the bride groom, to sign the marriage register for and on behalf of the bride groom and the petitioner's wife will also file a separate affidavit to the effect that she has been duly authoised by the bride to sign the marriage register for and on behalf of the bride._ - _(iii) If it is ascertained that the petitioner herein and his wife (who are the parents of the bride groom) have been authorised by the said couple to sign the marriage register for and on behalf of the bride groom and the bride respectively, then after completing the necessary formalities, the 1[st] respondent will permit the petitioner herein to sign in the marriage register for and on behalf of the bride groom and the petitioner's wife should be permitted to sign the marriage register for and on behalf of the bride._ - _(iv) Thereafter, the 1[st] respondent will forthwith issue the certificate of the registration of the marriage to the petitioner herein regarding the factum of the solemnization of the marriage of the above said couple._ - _(v) Further it is ordered that the 1[st] respondent will ensure that the column immediately after the column, which has been signed by the petitioner and his wife in the marriage register, shall be left blank and registration of the further marriages should be endorsed and entered only in the column subsequent to the said vacant space in the marriage register. It is further ordered that the above said couple, shall personally appear before the 1[st] respondent Registrar and shall personally sign in the vacant column of the said marriage register within a period of 10 months from the date of issuance of the marriage certificate as afore stated. In case the above said couple do not comply with the above said directions and they do not personally appear and sign in the marriage register before the 1[st] respondent within the said outer time limit of 10 months from the issuance of the above said marriage certificate, then the 1[st] respondent Registrar will be at liberty to issue notice to the petitioner herein_ 9 W.P(C) No. 15475 of 2020 _and give opportunity to the couple to personally report before him within a short time as may be given by the 1[st] respondent and still if the couple does not comply the said direction, then the 1[st] respondent Registrar will be at liberty to take steps to revoke the said registration and consequently to revoke the certificate of marriage so given. Thereupon the couple will be liable to surrender the original of such certificate of marriage to the 1[st] respondent Registrar. But such action of the 1st respondent will be without prejudice to the right of the couple to subsequently approach the 1[st] respondent to seek for fresh registration of the solemnized marriage in accordance with the Rules. But in such an eventuality they will have to personally appear and sign in the marriage register.”_ 11. Since admittedly there is a delay in filing Exts.P10 & P11 applications for registration of the solemnised marriage, petitioners will have to necessarily comply with the requirements in Rule 10 of Ext.P8 Rules. 12. Accordingly the following directions and orders are passed in regard to the requirements in Rule 10 of Ext.P8 Rules. - _(i) The petitioners through the Power of Attorney will immediately file requisite application before the 2[nd] respondent Registrar General, for condoning the delay in filing Exts.P10 & P11 applications for registration of marriage and should also produce the requisite declaration in Form No.II from any of_ 10 W.P(C) No. 15475 of 2020 _the dictatories mentioned in that Rule, to prove the solemnisation of marriage and on filing of such application along with the requisite details, the 2[nd] respondent will afford opportunity of being heard to the Power of Attorney of the petitioners or any authorised representative and after due regard to the declaration given in Form No.II, may consider and pass orders on the plea for condonation of delay, without any further delay, at any rate, within one week from the date of filing of such application along with the requisite documents and if the fact regarding the solemnisation of the marriage of the petitioners are made out to the satisfaction of the 2[nd] respondent, he shall ensure that orders are passed condoning the delay and then may also insist that the petitioners should pay the fine of Rs.250/-._ - _(ii) Thereafter, after obtaining orders condoning the delay from the 2[nd] respondent petitioners may ensure that challan is also produced before the 1[st]_ 11 W.P(C) No. 15475 of 2020 - _respondent evidencing the payment of the fine amount of Rs.250/- and thereafter Exts.P10 & P11 applications may be so re-presented through the Power of Attorney of the petitioners for consideration, along with other requisite supporting documents like Ext.P1 Marriage Certificate, Exts.P12 & P13 affidavits etc,._ - _(iii) The 1[st] respondent will then conduct a summary enquiry and after having due regard to the documents as per Ext.P1 Marriage Certificate, the entries in Exts.P2 and P3 passports, the declaration produced in Form No.II etc, and may complete the formalities to satisfy himself about the solemnisation of the marriage of the petitioners, within five days from the date of filing of such application with all the requisite supporting materials. Thereafter, the petitioners will ensure that video conferencing facility is duly provided in order to enable the 1[st] respondent to interact with both the petitioners to have final satisfaction about_ 12 W.P(C) No. 15475 of 2020 - _the solemnisation of the marriage of the petitioners. Thereupon after completing these formalities the 1[st] respondent without insisting on the personal attendance of the petitioners, should permit the Power of Attorney to sign in the marriage register on behalf of both the petitioners._ - _(iv) Thereafter, the 1[st] respondent will forthwith issue the certificate of the registration of the marriage of the petitioners to the Power of Attorney of the petitioners, in accordance with the Kerala Registration of Marriages (Common) Rules, 2008, without any further delay and without insisting on the personal attendance of the petitioners._ - _(v) Further it is ordered that the 1[st] respondent will ensure that the column immediately after the column, which has been signed on behalf of the petitioners through their Power of Attorney in the marriage register, shall be left blank and registration of the further marriages shall be endorsed and entered only in the column_ 13 W.P(C) No. 15475 of 2020 _subsequent to the said vacant space in the marriage register. It is further ordered that the petitioners shall thereafter personally appear before the 1[st] respondent Registrar and personally sign in the vacant column of the said marriage register within a period of 10 months from the date of issuance of the marriage certificate as aforestated. In case the petitioners do not comply with the abovesaid directions and they do not personally appear and sign in the marriage register before the 1[st] respondent within the said outer time limit of 10 months from the issuance of the above said marriage certificate, then the 1[st] respondent Registrar will be at liberty to issue notice to the petitioners through their Power of Attorney and give opportunity to the petitioners to personally report before the 1[st] respondent within a further short time as may be fixed by the 1[st] respondent and still if the petitioners do not comply with the said direction, then the 1[st] respondent Registrar will be_ 14 W.P(C) No. 15475 of 2020 _at liberty to take steps to revoke the said registration of the solemnised marriage and consequently to revoke the certificate of marriage so given. Thereupon the petitioners will be liable to surrender the original of such certificate of marriage to the 1[st] respondent Sub-Registrar. But such action of the 1[st] respondent will be without prejudice to the right of the petitioners to subsequently approach the 1[st] respondent to seek for fresh registration of the solemnized marriage in accordance with the Rules. But in such an eventuality the petitioners will have to personally appear before the 1[st] respondnet so as to sign in the marriage register._ - _(vi) However it is made clear that, issuance of the marriage certificate to the petitioners by the 1[st] respondent as per direction No.iv, shall be without showing any condition in such certificate that it will be subject to the abovesaid conditions, as otherwise it will cause unnecessary hardships and difficulties_ 15 W.P(C) No. 15475 of 2020 _to the petitioners, if they produce such registration_ _certifcate of the marriage with such conditions before the authorities of the foreign Government._ 13. The petitioner will produce certified copies of the judgment along with copies of the memorandum of W.P(C) with all the Exhibits before both the respondents for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** KAS 16 W.P(C) No. 15475 of 2020 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**A TRUE COPY OF THE CERTIFICATE OF**| ||**MARRIAGE DATED 04/02/1984 ISSUED BY THE**| ||**LOURDES FORANE CHURCH KOTTAYAM.**| |**EXHIBIT P2**|**A TRUE COPY OF THE PASSPORT OF THE**| ||**FIRST PETITIONER DATED NIL**| |**EXHIBIT P3**|**A TRUE COPY OF THE PASSPORT OF THE**| ||**SECOND PETITIONER DATED NIL.**| |**EXHIBIT P4**|**A TRUE COPY OF THE GRANT DEED DATED**| ||**28.02.2019.**| |**EXHIBIT P5**|**A TRUE COPY OF THE SOCIAL SECURITY CARD**| ||**OF THE SECOND PETITIONER DATED**| ||**17.06.2020.**| |**EXHIBIT P6**|**A TRUE COPY OF THE REQUEST FOR EVIDENCE**| ||**ISSUED BY THE U.S. CITIZENSHIP AND**| ||**IMMIGRATION SERVICE DATED 11.06.2020.**| |**EXHIBIT P7**|**A TRUE COPY OF THE COMMUNICATION LETTER**| ||**DATED 21.07.2020 ISSUED BY THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE KERALA REGISTRATION OF**| ||**MARRIAGES (COMMON) RULES 2008 DATED**| ||**29.02.2008.**| |**EXHIBIT P9**|**TRUE COPY OF THE KERALA REGISTRATION OF**| ||**MARRIAGES(COMMON) AMENDMENT RULES,**| ||**2010, 25.02.2010.**| |**EXHIBIT P10**|**TRUE COPY OF THE APPLICATION MADE BY**| ||**THE PETITIONERS AS PER RULE 9(1) OF THE**| ||**KERALA REGISTRATION OF**| ||**MARRIAGES(COMMON) RULES, 2008 BEFORE**| ||**THE FIRST RESPONDENT DATED 15.07.2020.**| |**EXHIBIT P11**|**A TRUE COPY OF THE APPLICATION MADE BY**| ||**THE PETITIONERS BEFORE THE FIRST**| ||**RESPONDENT DATED 15.07.2020.**| 17 W.P(C) No. 15475 of 2020 **EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT DATED 15.07.2020 SUBMITTED BY THE WITNESSES NAMED SIMON THOMAS WITH THE FIRST RESPONDENT. EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT DATED 15.07.2020 SUBMITTED BY THE WITNESSES NAMED K T K NAIR WITH THE FIRST RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**