Geethu Raj v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 03RD DAY OF SEPTEMBER 2018 / 12TH BHADRA, 1940 WP(C).No. 28730 of 2018** ## **PETITIONER/S:** **GEETHU RAJ,D/O.P.A.RAJU AGED 28 YEARS, PALIATHARA HOUSE, PERAMBRA, NEAR APOLLO TYRES, PERAMBRA, KODAKARA, KANAKAMALA,THRISSUR DISTRICT, PIN - 680 689.** **BY ADVS. SAJU S NAIR SAJAN. A.V.** ## **RESPONDENT/S:** **1 STATE OF KERALA REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF TAXES (REGISTRATION), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE INSPECTOR GENERAL OF REGISTRATION OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 001. 3 THE MARRIAGE OFFICER AND SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, KALLETTUMKARA, THRISSUR DISTRICT, PIN - 680 683.** ## **OTHER PRESENT:** **A.C.VIDHYA, GOVERNMENT PLEADER - R1 TO R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.28730/2018 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.28730 of 2018 ---------------------------------------------Dated this the 3[rd] day of September, 2018 ## **JUDGMENT** The petitioner seeks directions in the matter of her request made before the 3[rd] respondent for solemnization and registration of of her intended marriage in accordance with the provisions contained in the Special Marriage Act, 1954 and the Kerala Special Marriage Rules, 1958 framed thereunder. 2. The prayers in this Writ Petition (Civil) are as follows: “a) Issue writ or order or directions in the nature of or similar to writ of mandamus to direct the 3[rd] respondent to receive notice of intended marriage (Ext-P1) under the Special Marriage Act from the petitioner and process the marriage registration forthwith. b) Issue writ or directions in the nature of or similar to writ of mandamus to direct the respondents to register the marriage between the petitioner with Mr. Joshua Thomas as per the provisions of Special Marriage Act.” 3. Heard Sri. Saju S. Nair, the learned counsel appearing for the petitioner and Smt. A.C. Vidhya, the learned Government Pleader appearing for the respondents. 4. According to the petitioner, she is now aged 28 years and is a divorcee, who intends to marry a United Kingdom citizen of Indian origin, viz, Joshua Thomas, aged 21 years, who is residing in London and who is the bearer of Ext.P5 United Kingdom Passport No.531279360. It is further stated that the above said Joshua Thomas is an Overseas Citizen of India card holder and he is an unmarried person. Her date of birth is shown in Ext.P1 as W.P.(C)No.28730/2018 3 19.9.1989 and the date of birth of the proposed bridegroom (Joshua Thomas) has been shown in Ext.P4 Overseas Citizen of India Certificate of Registration, Ext.P5 United Kingdom Passport etc. as 02.11.1996. 5. According to the petitioner, she and the proposed bridegroom had submitted the requisite notice of intended marriage as envisaged in Section 5 of the Special Marriage Act, 1954 and that the 3[rd] respondent Marriage Officer is refusing to act upon the same on the ground that, as per the norms and instructions issued by the Government Department concerned, the marriage between Indian national and foreign citizen cannot be solemnized in accordance with the provisions contained in the Special Marriage Act, 1954 and further that the presence of the bridegroom is also necessary at the time of submission of Section 5 notice and further that the petitioner or the proposed bridegroom should produce the single status certificate from the Local Government Authority in which he resides. According to the petitioner, there is no dispute that she is a divorcee, which is evident from Ext.P2 judgment and decree rendered by the Family Court, Irinjalakuda on 5.3.2018 in O.P.No.624/2017. 6. The issue as to whether the Marriage Officer functioning with the parameters of the Special Marriage Act could refuse to solemnize and register a marriage on the ground that one of the spouses is not a Indian citizen, is no longer _dis integra_ and is fully covered against the respondents by the W.P.(C)No.28730/2018 4 decisions of this Court as in _**Rajeev**_ v. _**State of Kerala**_ reported in **2001 (1) KLT 578,** _**Vivian Varghese**_ v. _**State of Kerala**_ reported in **2015 (3) KLT 21** and _**Prasyanth Sreenivasan**_ v. _**The Sub Registrar, Alappuzha**_ [2018(3) KLT 545, etc. In the judgment of this Court in _**Prasyanth Sreenivasan**_ v. _**The Sub Registrar, Alappuzha**_ reported in **[2018(3) KLT 545** (a copy of which has been produced as Ext.P8 herein), this Court while considering the circular issued by the departmental authority concerned stipulating that the marriage could be solemnized in accordance with the provisions contained in the Special Marriage Act, 1954 only if both the parties are Indian citizens and that the marriage cannot be solemnized in a case where one of the parties is not a Indian citizen etc. was declared by this Court to be illegal, ultravires and unenforceable and directed the respondent Marriage Registrar therein to solemnize and register the marriage, ignoring such departmental instructions. Accordingly, it is also declared in the instant case that the stand of the 3[rd] respondent Marriage Officer that the marriage between the petitioner and the aforementioned Joshua Thomas cannot be solemnized on the ground that the latter is a United Kingdom citizen etc. is illegal and ultravires and it is ordered that the 3[rd] respondent Marriage Officer cannot refuse to solemnize and register the marriage of the parties on the ground that one of the parties is not a Indian Citizen. 7. As regards the alleged insistence of the 3[rd] respondent that the W.P.(C)No.28730/2018 5 proposed bridegroom should produce the single status certificate from the Local Authority abroad, it is only to be ordered that, in case the said party is able to produce the said certificate, the same may be considered. As regards the above said aspect, it is stated by the learned counsel appearing for the petitioner that, as per the present practice in the local authorities in the United Kingdom, no provision is made for issuing such a certificate and the petitioner placed reliance on Ext.P7 website of the Government of U.K. in that regard. Accordingly, it is ordered that in case the parties are not able to produce the single status certificate of the proposed bridegroom from the local authority in United Kingdom, then an affidavit should be sworn to by the proposed bridegroom declaring that he is single/unmarried etc. and that he satisfies all the eligibility conditions and does not incur any of the disqualifications for the solemnization of the marriage in terms of the provisions contained in the Special Marriage Act and an affidavit in that regard may be sworn to before the authorised Notary. 8. As regards the alleged stand of the 3[rd] respondent that he is insisting for the physical presence of the bridegroom even at the time of Section 5 notice, it is relevant to note the provisions contained in Section 5 of the Special Marriage Act, 1954 and Rule 4 of the Kerala Special Marriage Rules, 1958 . Section 5 of the Kerala Special Marriage Act reads as follows: “ **5. Notice of intended marriage** .- When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the W.P.(C)No.28730/2018 6 Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.” The Second Schedule of the Act prescribed under Section 5 thereof regarding the notice of intended marriage reads as follows: ## “ **NOTICE OF INTENDED MARRIAGE** To Marriage Officer of the …..........District. We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof. > Name Condition Age Dwelling Permanent dwelling place if present Length of place dwelling place not permanent residence AB unmarried Widower Divorcee CD Unmarried Widow Divorcee _______________________________________________________ Witness our hands this ….......day of ….....20..... (Sd.) AB (Sd.) CD” ## Rule 4 of the Kerala Special Marriage Rules, 1958 reads as follows: “ **4** .(a) Notice of any intended marriage under the Act shall be given in writing in the form specified in the Second Schedule to the Act, to the Marriage Officer by both the parties intending to enter into the Marriage either in person or by registered post. (b) Where the notice is delivered in person, the fee prescribed therefor in Rule 10 shall be paid directly in cash to the Marriage officer. Where the notice is sent by registered post, the fee shall be remitted by money order t the remitter's expense and the receipt issued to the remitter by the post office through which the remittance is made shall be attached to the notice. (c) As soon as the notice has been received by the Marriage Officer, a distinctive serial number shall be entered on it and such number and the date of receipt of the notice shall be attested by the signature of the Marriage Officer. If the notice is in conformity with the requirement of the Act, it shall be entered in the Marriage Notice Book which shall be a bound volume, the pages of which are machine-numbered consecutively, with a nominal index attached. If the notice is not in conformity with the W.P.(C)No.28730/2018 7 requirements of the Act, it shall be got rectified by the parties if they are present, or returned to them by post for rectification and retransmission within a date to be fixed. Every item of rectification shall be attested by both the parties. (d) The Marriage Officer may for the purpose of satisfying himself that the parties to a marriage have completed the age specified in Section 4(C) require them to produce birth certificate or any other satisfactory evidence to prove their age.” 9. From the reading of the provisions contained in Section 5 and the Second Schedule thereof as well as the provisions contained in Rule 4 of the Kerala Special Marriage Rules, it can be seen that no such condition has been stipulated therein that both the parties to necessarily be physically present before the Marriage Officer at the time of submission of Section 5 notice of intended marriage. Further construing the similar provisions contained in the Registration of Marriages (Common) Rules, 2008, a Division Bench of this Court in the judgment in _**Sarala Baby**_ v. _**State of Kerala and Others**_ reported in _**2010 (2) KHC 334 (DB)**_ held that going by the scheme of the Rules, as disclosed in Rule 8 to 11 thereof, it is clear that the memorandum in Form No.1 thereof could be submitted even through post and that the insistence of the Local Registrar for the personal appearance of the couple to submit the memorandum of From No.1 is illegal and contrary to the scheme of the Rule and so in all cases where the said Form is not received on the ground that both the spouses are not present, then the Local Registrar concerned shall receive the same even if it is presented by third party or through post. Further it has made clear by the Division Bench in that case W.P.(C)No.28730/2018 8 that the spouses should be personally present before the Local Registrar concerned at the time of registration of the marriage in terms of the Rules contained in the Registration of Marriages (Common) Rules, 2008 and they should sign in that Marriage Register in that regard. Accordingly, it is hold that the insistence, if any, of the 3[rd] respondent that both the parties should necessarily be present at the time of submission of Section 5 notice of the intended marriage is illegal and ultravires and that Section 5 notice of intended marriage could be submitted by both parties with their signatures therein, by registered post or through a third person or any other permissible mode like, online etc. 10. However, it is now brought to the notice of this Court by the petitioner's counsel that the parties had submitted notice of intended marriage under Section 5 of the above said Act in online mode as the proposed bridegroom is in United Kingdom and that both of them had not signed in the said notice. It is not known to this Court as to the reasons why both parties have not signed in the notice. The learned Government Pleader has made available a copy of the application in the prescribed proforma to be submitted in online mode in the case of notice of intended marriage under Section 5 of the Special Marriage Act and the table under coloumn 7 thereof deals with the signature of the bridegroom and the signature of the bride and coloumn 11 of the said proforma deals with the details of uploading such W.P.(C)No.28730/2018 9 application. The learned Government Pleader submits that it is for the parties to download the notice in the prescribed proforma and then fill up the same and after appending the signatures of both parties, they have to upload it etc. Now in the instant case, it is the admitted case of the petitioner that both parties have not signed in the so called notice of the intended marriage, which was said to have been submitted in online mode. Further, the learned Government Pleader submits on the instructions of the 3[rd] respondent that the said official has not received the application in online regarding Section 5 notice in the instant case. It is now well established in view of the provisions contained in Section 5 of the Act that both the parties to the intended marriage should give their notice of intended marriage in terms of the provisions contained in the Second Schedule to the Act, which is mandatory and if both the parties have not signed the notice, it cannot be said that it is a lawful notice as contemplated in the mandatory provisions of Section 5 of the above said Act. In the light of these aspects, this Court is not in a position to issue any mandamus or directions to the 3[rd] respondent to act upon the basis of such defective notice said to have been submitted by the parties in the instant case. 11. The learned counsel appearing for the petitioner submits that the proposed bridegroom is still in United Kingdom and he will come down to India only after confirmation about the date of solemnization of marriage and W.P.(C)No.28730/2018 10 that the respondents are now insisting, even in the online application, the photographs of both the parties attested by the Gazetted Officer should be submitted and that the proposed bridegroom, who is in United Kingdom, will find it difficult to get his photograph attested by the Gazetted Officer in India etc. Regarding such technical aspects, this Court is now not fully appraised about the technicalities involved in the submission of online application under Section 5 notice and if the departmental authorities are insisting for attested photographs while uploading the online application, the proposed bridegroom will be at liberty to get his photograph attested by a Notary Public or any local County Consul member in U.K. From the reading of the Second Schedule, it is not in dispute that the Second Schedule to the Act has not so far been amended and so long as the details contained in the Second Schedule to the Act are duly filled in the notice, it may not be right and proper on the part of the 3[rd] respondent to reject a notice merely on the ground that the details other than those envisaged in the Second Schedule are required on the basis of the instructions for submission of online notice in that regard. It is made clear that if the proposed bridegroom finds it difficult to satisfy the above requirement of attestation, then he may self attest the photograph and the application may be sent either in online mode or manually by registered post. However, the 3[rd] respondent will be at liberty to insist that both the parties should produce their photographs attested by the gazetted officer at W.P.(C)No.28730/2018 11 the time of solemnization and registration of their marriage. Therefore, it is for the petitioner and the proposed bridegroom to proceed further to ensure that the mandatory provisions of Section 5 notice of intended marriage are complied with in terms of the provisions contained in the Second Schedule of the Act and it is for the 3[rd] respondent to consider the effectuation of the solemnization of the marriage after the 30 days period but within the outer time limit stipulated in Section 14 of the Special Marriage Act. With these observations and directions, the above Writ Petition (Civil) will stand disposed of . Sd/- ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)No.28730/2018 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR SOLEMNIZATION OF MARRIAGE SUBMITTED BY THE PETITIONER IN ONLINE DATED 06/08/2018. EXHIBIT P1 A TRUE COPY OF THE ACKNOWLEDGMENT CUM RECEIPT AGAINST THE APPLICATION FOR NOTICE OF INTENDED MARRIAGE DATED 06/08/2018.** |**EXHIBIT P1 A**|**TRUE COPY OF THE ACKNOWLEDGMENT CUM RECEIPT**<br>**AGAINST THE APPLICATION FOR NOTICE OF**<br>**INTENDED MARRIAGE DATED 06/08/2018.**| |---|---| |**EXHIBIT P2**|**TRUE COPY OF THE JUDGMENT PASSED BY THE**| ||**HON'BLE FAMILY COURT, IRINJALAKUDA DATED**| ||**05/03/2018 IN O.P.NO.624/2017 REGARDING THE**| ||**DISSOLUTION OF MARRIAGE OF THE PETITIONER.**| |**EXHIBIT P3**|**TRUE COPY OF THE AADHAAR CARD OF THE**| ||**PETITIONER.**| |**EXHIBIT P4**|**TRUE COPY OF THE CERTIFICATE OF REGISTRATION**| ||**OVERSEA CITIZEN OF INDIA DATED 18/02/2010 OF**| ||**THE PERSON WITH WHOM THE MARRIAGE OF THE**| ||**PETITIONER IS PROPOSED, IE, WITH MR.JOSHUA**| ||**THOMAS.**| |**EXHIBIT P5**|**TRUE COPY OF THE RELEVANT PAGE OF**| ||**U.K.PASSPORT OF MR.JOSHUA THOMAS.**| |**EXHIBIT P6**|**TRUE COPY OF THE PROVISIONAL DRIVING LICENSE**| ||**ISSUED TO MR.JOSHUA THOMAS BY THE**| ||**U.K.TRANSPORT AUTHORITY DATED 17/06/2016.**| |**EXHIBIT P7**|**TRUE COPY OF THE WEBSITE SCREEN SHOT OF**| ||**GOVERNMENT OF UNITED KINGDOM WWW.GOV.UK.**| |**EXHIBIT P8**|**TRUE COPY OF THE JUDGMENT DATED 10/07/2018**| ||**IN WP(C) NO.22941 OF 2018.**| ||TRUE COPY| ||P.S. TO JUDGE.|