Annu Susan George v. Sachin Narayana Pillai & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941** **WA.No.2110 OF 2019** **AGAINST THE JUDGMENT DATED 23.7.2019 IN WP(C) 8418/2019(B) OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT IN THE WRIT PETITION:** **ANNU SUSAN GEORGE, AGED 36 YEARS DAUGHTER OF DR.GEORGE VARGHESE, 'NADUVILADATH HOUSE',MUTTAMBALAM.P.O, KANJIKUZHY,KOTTAYAM-686004.** **BY ADVS. SMT.K.MEERA SRI.BOBY MATHEW** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 IN THE WRIT PETITION:** - **1 SACHIN NARAYANA PILLAI, AGED 42 YEARS SON OF LATE NARAYANA PILLAI,PANACKAPARAMBIL HOUSE,KOLANI.P.O,THODUPUZHA,NOW RESIDING AT: DUKES 13 C,SKYLINE IMPERIAL GARDENS, JAWAHARLAL NEHRU INTERNATIONAL STADIUM ROAD,PALARIVATTOM, KOCHI-682025,ERNAKULAM DISTRICT.** - **2 STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM,PIN CODE-695001.** - **3 THE REGISTRAR GENERAL/PANCHAYAT DEPUTY DIRECTOR OFFICE OF THE PANCHAYAT DEPUTY DIRECTOR, IDUKKI,THODUPUZHA-682001.** - **4 THE SECRETARY AND REGISTRAR OF MARRIAGES, KARIMKUNNAM GRAMA PANCHAYAT, KARIMUNNAM.P.O,THODUPUZHA-685586.** ## **ADV.SRI.SREEKUMAR ( CHELUR)** - **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** - **28.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.2110 of 2019 2 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment dated 23.7.2019 in W.P.(C)No.8418 of 2019. The 4[th] respondent therein is the appellant and the first respondent herein was the petitioner therein. The writ petition was moved seeking the following reliefs:- - “i) To issue a writ of Certiorari, or any other appropriate writ, order or direction, to quash the order Ext.P10 dated 05-03-2019 in Appeal No.B4-1797/19 passed by the Registrar General/Deputy Director - Panchayath, Idukki finding that it is illegal, incorrect and improper, devoid of merits; - ii) To declare that the Ext.P1 issued under the Kerala Registration of Marriage's (Common) Rules, 2008 as per the Certificate No.935/2010 dated 27-09-2014 issued by the Registrar of Marriages, Karimkunnam Grama Panchayath is valid, correct and binding on parties; and - iii) to pass such other orders, which in the circumstances of this case, this Hon'ble Court deems fit.” 2. It is thus obvious that the first respondent herein viz., the writ petitioner sought for quashment of Ext.P10 order dated 5.3.2019 passed by the Registrar General in Appeal No.B4-1797/19 in W.P.(C)No.8418 of 2019. The nub of his contentions raised therein was that the Registrar General stepped outside his jurisdiction by deciding the validity of the marriage between himself and the 4[th] respondent viz., the appellant herein. After hearing the rival contentions the learned W.A.No.2110 of 2019 3 Single Judge, as per the impugned judgment, disposed of the writ petition. The impugned Ext.P10 order was set aside and at the same time it was made clear therein that the Court had not accepted the claim of the parties as to the validity of the marriage as per respective personal law applicable to and claimed by them. Further it was held therein thus:- ”It has only invoked public law to the extent of stating that the Registrar is incompetent to decide such matter in summary proceedings of this nature. The impugned order is set aside as above, paving way for parties to adjudicate the entire issue before the Family Court.” It is feeling aggrieved by the said judgment on the aforesaid lines that the captioned appeal has been filed. 3. Heard Sri.Boby Mathew, the learned counsel appearing for the appellant, Sri.Sreekumar (Chelur), the learned counsel appearing for the first respondent and Sri.V.Tekchand, the learned Government Pleader appearing for respondents 2 and 3. 4. For a proper disposal of the appeal it is only apposite to state the facts in succinct. The contentious issue lies in the claim of the appellant is that herself and the first respondent solemnized their marriage in accordance with the Christian rites and ceremonies on 29.08.2010 and further that on 30.08.2010 no marriage following the rites and rituals of the Hindu religion had taken place, as claimed by the W.A.No.2110 of 2019 4 first respondent. Be that as it may, it is a fact that an application was moved for registration of the marriage between them in terms of the provisions under Rule 9 of the Kerala Registration of Marriages (Common) Rules, 2008 (for brevity `the Rules'). Ext.P1 certificate of marriage dated 27.9.2014 was issued by the Registrar of Marriages, Karimkunnam Grama Panchayat. We may hasten to add that the case of the appellant is that Ext.P1 was issued wrongly at the instance of the first respondent. It is to be noted that Rule 6 of the Rules makes registration of all marriages solemnized in the State after the commencement of the Rules compulsory. Whatever be the manner in which their marriage was conducted the fact is that there was not much problems in their marital life, quite sometime and two children are born in their wedlock. However, discordancy among them acquired damning dimension and ultimately the appellant herein moved the Family Court by filing O.P.No.1775/2014 seeking divorce under the Divorce Act, 1869. The first respondent herein has also moved the Family Court, Ernakulam with an application for the custody of the minor children. While so, the appellant moved this Court by filing W.P.(C)No.41778 of 2018 mainly with the prayer to quash Exts.P5 and P7, marked as such therein, which are respectively true copies of the marriage certificate issued by the Local Registrar of Marriages (Common), Karimkunnam W.A.No.2110 of 2019 5 Grama Panchayat and communication bearing No.B3-1592(1)/17 dated 26.05.2017 issued by the said authority to the parents of the appellant. Taking note of the pendency of an appeal preferred against the certificate of registration issued by the 2[nd] respondent before the Registrar General of the Registration Department under Rule 16 of the Rules this Court, as per Ext.P5 judgment directed the appellate authority to take a final decision in the appeal within the time stipulated thereunder. Subsequent to Ext.P5 judgment the Registrar General after hearing both sides and considering the rival contentions passed Ext.P10 order, the order impugned in W.P.(C)No.8418 of 2019. In the context of the contentions, it is profitable to extract that portion of Ext.P10 which led to the dispute involved in this case:- “Therefore the Karimkunnam Grama Panchayat local Registrar is permitted to cancel the said registration of marriage which has been registered against the Rules; and in accordance with the judgment of the Hon'ble High Court cited as Reference No:2 above, the Appeal submitted, cited as Reference No:1 above is ordered and disposed of. On the basis of this Order, the Karimkunnam Grama Panchayat Registrar shall cancel the marriage registered on 05/10/2010 as 445/2010 and inform the concerned parties. In relation to this, the Information Kerala Mission shall take necessary steps to cancel the Registration in the civil registration software.” (emphasis added) 5. As noticed hereinbefore, the first respondent herein was constrained to approach this Court by moving W.P.(C)No.8418 of 2019 W.A.No.2110 of 2019 6 as he felt aggrieved by the direction of the Registrar General viz., the 3[rd] respondent herein, to the Grama Panchayat to cancel the marriage registered on 5.10.2010 as 445/10 and to inform the parties concerned. The learned Single Judge considered the rival contentions and ultimately disposed of the matter, in the manner referred hereinbefore. Hence, this appeal. 6. The appellant challenges the impugned judgment on the ground that the judgment is erroneous both in law and on facts. The tenor of the contentions advanced by the learned counsel for the appellant is that the 3[rd] respondent, while exercising the power under Rule 16 of the Rules, is having the power even to consider the validity of marriage. We say so, because the learned Single Judge virtually took note of the fact that as per Ext.P10 the 3[rd] respondent had also issued a direction to the Grama Panchayat to cancel the marriage registered on 5.10.2010 as 445/2010 and to inform the parties concerned and evidently, the endeavour of the appellant is to get sustained Ext.P10 that carries such a direction. In this regard, it is also relevant to refer to ground `H' raised by the appellant in this appeal. It reads thus:- “The learned single Judge ought to have considered that the 3[rd] respondent Registrar General had gone into the matter based on the direction issued by this Hon'ble Court as per Ext.P5 Judgment. It was after noticing the W.A.No.2110 of 2019 7 statutory provisions and tracing the power of the Registrar General that the direction in Annexure A1 had been issued. On receiving such direction, the Registrar General went to the question as per the Rules and decided the matter after holding a proper enquiry. Without appreciating the manner in which the Registrar General proceeded with the enquiry under the Rules, the impugned judgement travels beyond the scope to hold that the Registrar does not have the power and that it is only the Family Court which can decide the issue. This again is on a wrong promise that it is the validity of the marriage that is being challenged by the Appellant, when in reality it is the unsustainability of the Registration of the alleged marriage at the instance of the 1[st] Respondent what is actually being challenged by her.” The appellant contents that she had not actually challenged the validity of the marriage and had actually challenged only the registration of the alleged marriage at the instance of the first respondent. But, when it is evident that the 3[rd] respondent has issued direction to cancel the marriage as well, under Ext.P10 and the appellant seeks for its sustainment and further that the first respondent's challenge against Ext.P10 is that the 3[rd] respondent got no jurisdiction to decide validity of a marriage, it has to be taken that the appellant, in troth, canvasses existence of power to decide validity of a marriage, with the Registrar General. 7. In the light of the rival contentions raised on the aforesaid lines the question whether the 3[rd] respondent, the Registrar General got power to order for cancellation of the marriage was W.A.No.2110 of 2019 8 considered by the learned Single Judge and ultimately, held that the said action is _ultra vires,_ the power under Rule 16 of the Rules. In that context, it is only appropriate to refer firstly, to Rule 9 of the Rules. It reads thus:- ## “ **9. Procedure and time limit for registration.-** (1) The parties to a marriage shall prepare a memorandum in duplicate in Form No.1 appended to these Rules along with two separate sets of photos and shall submit the same to the Local Registrar within a period of forty-five days from the date of solemnization of their marriage. (2) The memorandum for registration of marriages solemnized before the commencement of these Rules may be submitted within a period of one year from the date of commencement of these Rules. (3) The memorandum shall be signed by both the parties to the marriage and two other persons who witnessed the marriage. In the case of a marriage solemnized before a Marriage Officer appointed under any statutory provisions, the entries made in the Register of Marriages or any other register maintained for this purpose and certified by the Marriage Officer and in the case of a marriage solemnized as per religious rites, a copy of the certificate of marriage issued by the religious authority concerned may be a document in proof of the marriage. A registration fee of rupees ten shall be payable along with the submission of the memorandum for registration. (4) Marriages solemnized after the commencement of these Rules, in respect of which no memorandum is filed within the period of forty-five days and a period of one year has not expired from the date of such solemnization, may be registered subject to sub-rule (3) W.A.No.2110 of 2019 9 by the Local Registrar after imposing a fine of rupees one hundred. In such cases the memorandum shall be filed together with a declaration from a Gazetted Officer/Member of Parliament/Member of Legislative Assembly/Member of a Local Self Government Institutions in Form No.II appended to these Rules or with any other document to prove the solemnization of the marriage to the satisfaction of the Local Registrar.” 8. The power exercisable rather, duty to be discharged under Rule 9 of the Rules by the Local Registrar is administrative in nature. If after solemnization of marriage an application for its registration is made along with the requisite certificates or materials in appropriate form, as provided under Rule 9 of the Rules, the Local Registrar concerned is empowered to register the marriage of the parties concerned. Rule 11 of the Rules makes it clear that a certificate of marriage issued in form No.IV appended to the Rules is in proof of registration of marriage. In the case on hand, the appellant herein felt aggrieved by the registration of the marriage and the consequential issuance of marriage certificate. Obviously, she took up the matter before the appellate authority in terms of the provisions under Rule 16 thereunder viz., before the Registrar General. As noticed hereinbefore, after moving the appellate authority she approached this Court on being aggrieved by the delay in the matter of its consideration. Pursuant to Ext.P5 judgment the appellate authority considered the appeal which W.A.No.2110 of 2019 10 ultimately culminated in Ext.P10 order. We have already extracted the relevant portion in Ext.P10, the order impugned in the writ petition. It would reveal that besides ordering the Information Kerala Mission to make necessary steps to cancel the registration in the civil registration software Registrar General has also directed to cancel the marriage registered on 5.10.2010 as 445/2010. It is to be noted that after such direction it was further ordered that after its cancellation it should inform the parties concerned. Now, we will refer to Rule 16 of the Rules. It runs as follows:- “ - **16. Appeal.** An appeal shall lie to the Registrar General concerned against any decision of the Local Registrar and such appeal shall be filed within a period of three months from the date of communication of any such decision. However, the Registrar General concerned may condone the delay on sufficient grounds. He shall consider the appeal and dispose of the same within a period of sixty days either confirming the decision of the Local Registrar or allow the appeal after hearing the parties concerned.” It is to be noted that the appellant has not approached the Local Registrar for correction or cancellation of the entries in the Register of Marriages (Common). In fact, the appeal was filed against the issuance of marriage certificate seeking for its cancellation. Bearing in mind the aforesaid circumstances and also the provisions under Rules 9 and 13 of the Rules it can only be taken that the Registrar General, under Rule 16 W.A.No.2110 of 2019 11 of the Rules can order only for cancellation of the certificate or correction in the register. But, ordering for cancellation of marriage and to inform the parties accordingly, is certain outside the scope of his power. In such circumstances, we are of the view that the learned Single Judge was right in considering the question whether the 3[rd] respondent was having the power to cancel marriage, in other words, to decide upon the validity of the marriage. On going through the provisions under Rules 9, 13 and 16 of the Rules, we have absolutely no hesitation to hold that those provisions did not clothe the 3[rd] respondent with the power to decide upon the validity of a marriage. In that context, it is also relevant to refer to Rule 9(3) of the Rules which in unambiguous terms states that a copy of certificate of marriage issued by the religious authority concerned may be a document in proof of the marriage and Rule 11 of the Rules which makes it clear that a certificate of marriage issued in Form No.IV appended to the Rules is in proof of marriage. The learned Single Judge only found that the Registrar General could not conduct a roving enquiry and decide the validity of a marriage. Further it was held in the impugned judgment thus:- “When there is a serious dispute in regarding to the law applicable relating to the marriage, the Registrar cannot adjudicate such dispute and act like a competent court to decide the matter.” W.A.No.2110 of 2019 12 Decision on the validity of a marriage can be made only by exercising the judicial power and therefore, the aforesaid conclusions call for no interference. Thus, on a careful consideration of the relevant provisions and on going through the impugned judgment we are of the considered view that a rightful decision was arrived at by the learned Single judge to the effect that the 3[rd] respondent, the Registrar General is not having the jurisdiction to decide the validity of a marriage. Needless to say that, essentially, it is a power available to the Family Court. It is holding such a view that, as per the impugned judgment, the learned Single Judge set aside Ext.P10 order while making it clear that it is so done, only to pave way for parties to get adjudicated the entire issues before the Family Court. In such circumstances, we do not find any reason to interfere with that part of the judgment whereby the learned Single Judge set aside Ext.P10. 9. Now, we will consider whether the learned Single Judge has right in holding that the fate of Ext.P10 would depend upon the outcome of the decision in the matters pending before the Family Court. In that context, paragraph 7 of the impugned judgment assumes relevant. The learned Single Judge held:- “7. There is no scope for interfering with this matter, by the Registrar General for the simple reason W.A.No.2110 of 2019 13 that the parties do not dispute the status of marriage but only dispute the manner of performance of marriage. If ultimately, the Family Court finds that both parties were Christian at the time of marriage was solemnized in accordance with the Christian Personal Law, the certificate of marriage would be valid to that extent as above. If it finds that the marriage was in accordance with the Hindu Law, and parties were Hindu at that time, the certificate of marriage would be valid to that extent. However, if ultimately it finds that the parties belonged to different faith at the time of marriage, it is open for the Registrar to cancel that marriage because there was no marriage in accordance with law. All this would depend upon a decision to be made by the Family Court in the aforesaid proceedings.” 10. The learned counsel appearing for the appellant attempted to canvass the position that the judgment of the learned Single Judge invites interference in the light of the two Bench decisions of this Court in **Sabu K. Eliyas** v. **State of Kerala & Ors. (2014 (2) KLJ 556)** and **Thankamma Koshy** v. **State of Kerala (2016 (3) KLT 978)** . We have already held that there is no reason to interfere with the finding of the learned Single Judge that the Registrar General is not having the competence to decide upon the validity of the marriage. The learned Single Judge has permitted the parties to take up all contentions before the Family Court to adjudicate the entire issues by the Family Court, after observing that there is no dispute regarding the factum of performance of marriage between them. In the aforesaid circumstances, the learned Single Judge is also correct in holding that W.A.No.2110 of 2019 14 the validity of the marriage would depend upon the decision of the Family Court. Taking into account such circumstances, we are of the view that it is only proper to permit the appellant to rely on those decisions as well while the matter is being considered by the Family Court. The upshot of the discussion is that we do not find any illegality or perversity in the impugned judgment passed by the learned Single Judge to invoke the appellate jurisdiction. Consequently, the appeal stands dismissed subject to the liberty and observations made above. Sd/- **S.MANIKUMAR Chief Justice** **S.MANIKUMAR** Sd/- **Judge** **C.T.RAVIKUMAR** TKS ## **APPENDIX** ## **APPELLANT'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE WRIT PETITION -W.P(C)NO.41778 OF 2018 DATED 18/12/2018 FILED BY THE APPELLANT.** TKS