Bertin Chengalai v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **WP(C).No.900 OF 2020(J)** ## **- PETITIONER :** **BERTIN CHENGALAI, AGED 37 YEARS, S/O.JAMES E.V., EDAKALATHUR CHENGALAI HOUSE, ST.PAULS STREET, KURIACHIRA P.O.-680 006, (NOW WORKING AT USA AND REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER JAMES E.V., AGED 68 YEARS, S/O.VARGHESE, EDAKALATHUR CHENGALAI HOUSE, ST.PAULS STREET, KURIACHIRA P.O. - 680 006.** **BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA** ## **- RESPONDENTS :** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 MARRIAGE OFFICER AND SUB REGISTRAR, SUN REGISTRAR OFFICE, THRISSUR - 680 020. 3 INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM - 695 035. BY SMT.VINITHA.B., GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2020, THE COURT ON 27-02-2020 DELIVERED THE FOLLOWING:** WP(C).No.900 OF 2020(J) ## -: 2 :- ## **JUDGMENT** This writ petition is filed seeking the following prayers :- - “(i) To issue a Writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P5 as unjust and illegal. - (ii) To issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to solemnize the marriage of the petitioner with Smt.Greeshma George, by permitting the appearance of the petitioner through video conferencing and obtaining the signature of the power of attorney holder of the petitioner in lieu of petitioner, in necessary records and registers. ## 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The petitioner contends that he is working as a Software Engineer in Houston, Texas, USA. He had given Ext.P1 application online for solemnization of marriage with one Smt.Greeshma George. The notice of intended marriage was published by Ext.P2 on 16.12.2019. The marriage therefore has to be conducted after the statutory notice period of 30 days expires and within a period of three months thereafter. The learned counsel for the petitioner submits that the petitioner's leave was cancelled and he had to return to USA on 22.11.2019 and that he is not in a position to WP(C).No.900 OF 2020(J) -: 3 :- come back to India for completing the procedures. He, therefore, seeks solemnization of the marriage by video conferencing. An application in this behalf submitted by the petitioner is marked as Ext.P4. However, the application was rejected by Ext.P5. The learned counsel for the petitioner submits that since statutory notice had already been submitted by the petitioner and since there were no objections to the marriage of the petitioner to Greeshma George, there is absolutely nothing standing in the way of the marriage being solemnized through video conferencing. 4. Reliance is placed on a decision of this Court in **Pradeep Kodiveedu Cletus and another** v. **Local Registrar of Marriages (Common), Kollam and others** [2018 (1) KHC 280] and of the Apex Court in **State of Maharashtra** v. **Praful B. Desai** [2003 KHC 581] to contend that an appearance through video conferencing is also liable to be considered as appearance before the Marriage Officer for the purpose of registration of the marriage. 5. A statement has been placed on record by the 2[nd] respondent. It is stated by the learned Government Pleader that in view of the specific provisions of the Special Marriage Act, the marriage has to be solemnized in the presence of the Marriage Officer and that it shall not be complete and binding until the WP(C).No.900 OF 2020(J) -: 4 :- solemn oath of marriage is taken by the parties in the presence of each other, three witnesses and the Marriage Officer. It is stated that the appearance of the parties for the solemnization of the marriage is not a procedural formality, but is the integral element of solemnization of the marriage under the Special Marriage Act, which cannot be dispensed with. 6. Referring to the decisions relied on by the learned counsel for the petitioner, the learned Government Pleader would submit that the decision of this Court was rendered under the Kerala Registration of Marriages (Common) Rules, 2008 where a marriage in a customary form had already been solemnized between the parties. All that was being considered was the registration of such a marriage under the Kerala Registration of Marriages (Common) Rules, where it was held that the appearance of the parties before the Registrar can be through the mode of video conferencing as well. Referring to the decision of the Apex Court, it is stated that the decision is authority only on the point that a deposition can be recorded through video conferencing. It is stated that in view of the fact that no marriage has been solemnized in any other form between the parties and what is being sought for is not the registration of marriage under Section 16 of the Special Marriage Act, but the solemnization of the WP(C).No.900 OF 2020(J) -: 5 :- marriage itself, the necessary ingredients for such solemnization cannot be done away with. ## 7. I have considered the contentions advanced. The relevant provisions of the Special Marriage Act are as follows :- “11. **Declaration by parties and witnesses.-** Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer. 12. **Place and form of solemnization.-** (1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may choose to adopt: Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-”I, (A), take the (B), to be my lawful wife (or husband).” 13. **Certificate of marriage.-** (1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses. (2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed WP(C).No.900 OF 2020(J) -: 6 :- to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.” The decisions relied on by the learned counsel for the petitioner are with regard to the registration of a marriage which is already solemnized under the customary law. In the instant case, the petitioner is an unmarried person. He seeks to solemnize his marriage under the Special Marriage Act. The provisions of the Special Marriage Act provide for giving the statutory notice and then for the parties appearing before the Marriage Officer for the solemnization of the marriage. On appearance before the Marriage Officer, the parties can choose the form in which they want their marriage to be solemnized. It could be by exchange of garlands or by any other manner. However, Section 12 specifically provides that the solemnization shall not be complete and binding on the parties unless each party says to the other, in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties that “I, (A), take the (B), to be my lawful wife (or husband)”. A Division Bench of this Court in a decision reported in **Sarala Baby** v. **State of Kerala** [2010 (2) KLT 66] has held that personal presence of both the parties to the marriage is mandatory for registering a marriage under the provisions of the WP(C).No.900 OF 2020(J) -: 7 :- Registration of Marriages (Common) Rules, 2008 and that the inconvenience of the spouse cannot be a ground to invalidate the rule. In the above view of the matter, the provisions of the Statute as they now stand do not permit the solemnization of the marriage through video conferencing or other means. Having considered the request made by the petitioner in Ext.P4 and the reply of the Marriage Officer in Ext.P5, I find that the rejection of the request made by the petitioner for solemnization of the marriage through video conferencing cannot be held to be illegal or unsustainable in view of the specific provisions of the Special Marriage Act. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be allowed. The writ petition is dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/7.2.2020 WP(C).No.900 OF 2020(J) ## -: 8 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A COPY OF THE DETAILS OF APPLICATION NO.P14560607 FOR FURNISHING THE NOTICE INTENDED MARRIAGE DT 15.11.19.** **EXHIBIT P2 A COPY OF THE NOTICE OF THE INTENDED MARRIAGE DATED NIL. EXHIBIT P3 A COPY OF PASSPORT OF THE PETITIONER. EXHIBIT P4 A COPY OF THE APPLICATION FOR VIDEO CONFERENCING FOR COMPLETING THE MARRIAGE PROCEDURE BEFORE THE MARRIAGE OFFICER.** **EXHIBIT P5 A COPY OF THE ORDER OF THE MARRIAGE OFFICER DATED 17.12.2019.** //TRUE COPY// P.A. TO JUDGE