Jagdish Agurwall a.k.a John Jagdish Agarwalla and Georgeena Mathew v. State of Kerala and Karimannoor Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934** ## **WP(C).No. 13110 of 2012 (K)** ## **---------------------------** ## **PETITIONER(S):** ## **--------------------** **1. JAGDISH AGURWALLA @ JOHN JAGDISH AGARWALLA, AGED 41 YRS, S/O.CHIRANJILAL AGURWALLA, GARODIA RD.JYOTHINAAR DIBRUUARH (DT), ASSAM, PIN 786001 NOW RESIDING AT PALLIKUNNEL HOUSE, PANWOOR P.O., KARIMANNOOR, IDUKKI.** **2. GEORGEENA MATHEW, W/O.JAGATHEESH AGARWALLA, PALLIKUNNEL HOUSE, PANNOOR P.O., KARAMANNOOR, IDUKKI, NOW RESIDING AT SWOLSELEY VILLAGE, TULLOW, CO.CARLOW, IRELAND.** **BY ADVS.SRI.P.HARIDAS SMT.SIKKY RAVISHANKAR SMT.LIJI KUTTAPPAN** ## **RESPONDENT(S):** **----------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT THIRUVANANTHAPURAM-695001.** **2. KARIMANOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY KARIMANNOOR, IDUKKI-685581.** **3. SECRETARY KARIMANNOOR GRAMA PANCHAYAT KARIMANNOOR, IDUKKI-685581.** **BY ADV. SRI.S.MANU BY GOVERNMENT PLEADER SRI JOSEPH GOERGE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **WP(C).No. 13110 of 2012 (K)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT-P1. TRUE COPY OF THE CERTIFICATE OF THE BAPTISM OF 1ST PETITIONER DATED 8.4.2012.** - **EXHIBIT-P2. TRUE COPY OF CERTIFICATE OF THE VICAR SHOWING THE STATUS OF THE 1ST PETITIONER AS A UNMARRIED CATHOLIC DATED 8.4.2012.** - **EXHIBIT-P3. TRUE COPY OF THE PASSPORT OF THE 1ST PETITIONER SHOWING DATE OF BIRTH DATED 5.12.2011.** - **EXHIBIT-P4. TRUE COPY OF THE FACING SHEET OF SSLC BOOK SHOWING THE DATE OF BIRTH OF THE 2ND PETITIONER DATED 31.3.1992.** - **EXHIBIT-P5. TRUE COPY OF THE CERTIFICATE OF REGISTRATION AS AN OVERSEAS CITIZEN OF INDIA DATED 28.3.2012 ISSUED BY EMBASSY OF INDIA DUBLIN.** - **EXHIBIT-P6. TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY EPARCHY OF KOTHAMANGALAM DATED 29.5.2012.** - **EXHIBIT-P7. TRUE COPY OF THE APPLICATION FOR REGISTRATION OF MARRIAGE UNDER SECTION 11(1) OF KERALA MARRIAGE REGISTRATION (COMMON) RULES SUBMITTED BY THE PETITIONERS DATED 29.05.2012.** - **EXHIBIT-P8. TRUE COPY OF THE CERTIFICATE DATED 15.06.2012 ISSUED BY THE VICAR OF THE ST.MARY'S FORINE CHURCH, KARIMANNOOR.** - **EXHIBIT-P9. TRUE COPY OF THE ORDER DATED 13.06.2012 ISSUED BY 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **LSN** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C).No. 13110 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 11TH DAY OF SEPTEMBER, 2012** ## **JUDGMENT** Both the petitioners are husband and wife who are challenging Ext.P9 communication issued by the Registering Officer refusing to register their marriage for the various reasons pointed out in Ext.P9. 2. An application was filed by the petitioners along with certain documents and Ext.P7 is the copy of the application. After hearing parties, this Court has passed an interim order on 11.6.2012 directing the petitioners to re-submit the application with a further direction to the Panchayat to take appropriate decision in the matter. Thereafter Ext.P9 order has been passed. 3. The case of the petitioners is that the first petitioner was originally a Hindu and has embraced Christian faith and baptised as a Christian on 7.4.2004. Ext.P1 is the copy of the certificate of baptism, Ext.P2 is the copy of the certificate issued by the Vicar showing the status of the first petitioner as an unmarried catholic and Ext.P3 is the copy of the relevant page of the passport of the first petitioner. It appears that the second petitioner is now working in Ireland as a Nurse. The details of her birth and W.P.(C).No.13110/2012 -2- other matters are evident from Exts.P4 and P5 documents. Their marriage was solemnised on 29.5.2012 at St. Mary's Forane Church, Karimannoor and Ext.P6 is the copy of the marriage certificate issued by Eparchy of Kothamangalam. 4. Mainly it is pointed out in Ext.P9 that the discrepancies in various documents evidence the fact that the conversion from Hinduism to Christianity has not been properly established. In the light of the above, the Registering authority has taken the view that since the parties belong to different religions, viz. Hindu as well as Christian, their remedy is to register the marriage before the concerned authority provided under a different enactment. 5. Respondents 2 and 3 have filed a counter affidavit justifying the reasons stated in Ext.P9. Reliance is placed on Ext.R2(b) circular dated 20.10.2011 of the Chief Registrar, Registration of Births and Deaths. 6. In fact, in the light of the judgment of this Court in **Deepu Dev and another v. State of Kerala and another** (2012 (2) KHC 497), the issue whether there is any embargo in registering the marriage of people who belong to different faith, is concluded against the Panchayat. Therein, this Court was pleased to hold that the circular cannot survive as it is only W.P.(C).No.13110/2012 -3- an executive order, in the light of the express provisions of Rule 6 of the Registration of Marriages (Common) Rules, 2008 (Kerala). The relevant findings are contained in paragraphs 9 and 10 of the judgment which are extracted below: “9. Learned counsel for the petitioner had drawn my attention to Section (4) of the Christian Marriage Act, 1872, and contended that the marriage between the petitioners, which is solemnised through religious rites prescribed under Christianity, is valid. But I am of the view that for the purpose of deciding the issue involved, I need not adjudicate the validity of the marriage. I take not of the fact that, it is in view of the directives of the Honourable Supreme Court that the State Government have framed the Common Rules, making all the marriages compulsory registrable, irrespective of the religion of the parties, (emphasis supplied). That being so, the State Government by virtue of Exhibit P7 circular which is an executive order, cannot impose any restriction on the scope and applicability of the Rules. Even the proviso to Rule 6 of the Common Rules only provides that a marriage which is compulsorily registrable under any other law need not be registered again under the Common Rules. It only provides an exemption from the obligation provided under Rule 6 for mandatory registration of all marriages solemnised in the State. But it cannot be interpreted in any manner preventing registration of a marriage solemnized within the State, even if it is liable to be W.P.(C).No.13110/2012 -4- registered under any other law, especially in view of wordings of Rule 6 that all marriages irrespective of religion, of the parties should be registered, if it is solemnised within the State. 10. Therefore I am of the view that the instructions issued through Exhibit P7, that the marriages solemnised between persons belonging to different religion are not registrable under the Common Rules is repugnant and contrary to the provisions contained in the Common Rules. The State Government has no power to issue any such executive order contrary to the provisions of a legislation. Hence Exhibit P7 is liable to be quashed.” Therein, the parties were from different religions, viz. Hindu and Christian. In the light of the above, the refusal to register the marriage on the plea that the parties belong to different religion, cannot survive. The circular has been quashed already. 7. Learned counsel for the Panchayat points out that there are certain discrepancies with regard to the name of the first petitioner which will have to be duly explained since the parties could not explain it properly on the previous occasion. It is pointed out that in Ext.P1 the name is shown as John Jagdish Agarwalla, in Exts.P2 and P3 his name is shown as Jagdish Agarwalla, in Ext.P6 it is shown as John Jagdish (Jagdish Agarwalla), in Exts.P7 application and P8 certificate issued by the Church, it is shown as W.P.(C).No.13110/2012 -5- Jagdish Agarwalla. 8. Therefore, what is required is that there should be proper explanation on the part of the parties. In fact, there cannot be any dispute regarding the identity of the person since the details in the passport will prove it. There is a controversy whether the parties actually appeared before the registering officer. It is submitted by the learned counsel for the petitioners that on the second occasion when this Court directed consideration of the application, both of them appeared. But to avoid any further controversy, it is only proper that the first petitioner is directed to file a proper affidavit duly attested by a notary. He will also produce documents to show the identity, viz. the original of the Passport. 9. This is a matter where both parties, viz. the petitioners herein are leading a happy married life and the first petitioner wants to join his wife in Ireland. 10. Ext.P9 is quashed for the reasons stated already. There will be a direction to the third respondent to reconsider the matter. The application will be reconsidered on the petitioners fulfilling the other conditions as directed above. An appropriate decision will be taken within a period of two weeks from the date of receipt of a certified copy of this judgment. It is W.P.(C).No.13110/2012 **==> picture [15 x 9] intentionally omitted <==** made clear that the third respondent will act in terms of the findings and observations made by this Court already. The writ petition is disposed of as above. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**