Joby Chacko v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 WP(C) NO. 12456 OF 2021** ## **PETITIONER/S:** **JOBY CHACKO AGED 40 YEARS S/O. LATE K.K. CHACKO, SOJU BHAVAN, KUNNICODE P.O, VILAKKUDY, KOLLAM DISTRICT, PIN - 691508. BY ADVS. S.SAJU A.V.SAJAN NEELANJANA NAIR POOJA SEBASTIAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF TAXES, (REGISTRATION) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.** - **2 THE INSPECTOR GENERAL OF REGISTRATION OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR P.O, THIRUVANANTHAPURAM - 695001.** - **3 THE MARRIAGE OFFICER AND SUB REGISTRAR, OFFICE OF THE REGISTRAR, PUNALUR, PUNALUR P.O, KOLLAM DISTRICT, PIN - 691305.** ## **BY SMT.PRINCY XAVIER, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.12456 of 2021 ## **P.B.SURESH KUMAR, J.** **----------------------------------------------W.P.(C) No.12456 of 2021** **----------------------------------------------Dated this the 29[th] day of June, 2021.** ## **J U D G M E N T** Petitioner, an Indian citizen, intends to marry Ms.Sherlyn Verghese, a citizen of America. On 31.5.2021, the petitioner gave notice of his intended marriage online to the third respondent in terms of Section 5 of the Special Marriage Act, 1954 (the Act). It is stated by the petitioner that on receipt of the notice, the third respondent has directed the petitioner to produce a few documents, and the petitioner has produced all the documents required by the third respondent. It is alleged by the petitioner that later, the third respondent has directed the petitioner to produce an affidavit of his fiancee attested by a competent officer in the Embassy or Consulate of the United 3 W.P.(C) No.12456 of 2021 States of America, to the effect that she does not have a spouse living. According to the petitioner, such a condition is not insisted in the case of Indian citizens, and the marriages are permitted to be solemnized and registered under the Act after obtaining notarized affidavits from the parties concerned that he/she does not have a spouse living. It is stated by the petitioner that though the fiancee of the petitioner is prepared to submit a notarized affidavit, the third respondent is not prepared to accept such an affidavit as she is a foreign national. The case set out by the petitioner in the writ petition is that the stand aforesaid of the third respondent is arbitrary, unreasonable and unjust. The petitioner therefore, seeks directions to the third respondent to accept the notice of the intended marriage given by him and issue certificate of registration of the marriage in terms of the Act. 2. The learned Government Pleader submitted that in the light of Section 4(a) of the Act, the third respondent, the Marriage Officer under the Act is duty bound to ensure that 4 W.P.(C) No.12456 of 2021 neither party to the intended marriage has a spouse living, before permitting solemnization of the marriage. It was conceded by the learned Government Pleader that notarized affidavits of the parties are normally insisted to ensure compliance of the requirement under Section 4(a) of the Act. It was, however, pointed out that in so far as the fiancee of the petitioner is a foreign national, her signature in the affidavit cannot be attested by a notary public in India and it is on account of the said reason that an affidavit attested by the competent authority in the Embassy or Consulate of the United States of America was insisted for permitting solemnization of the marriage. It was also pointed out by the learned Government Pleader that yet another reason for insisting the affidavit attested by the competent authority in the Embassy or Consulate is that the notary public in India may not be in a position to ensure the correctness of the statements and affirmations made by a foreign national. 5 W.P.(C) No.12456 of 2021 3. It is seen that there existed a doubt earlier as to whether a marriage between an Indian citizen and a foreign national could be solemnized in terms of the provisions of the Act, and the said question was resolved by this court in **Rajeev v. State of Kerala** , 2001(1) KLT 578. In large number of cases disposed of later following the dictum in **Rajeev** , this court directed that in order to comply with the conditions relating to solemnization of marriage including the condition stipulated in Section 4(a), an affidavit attested by a notary public can be secured from the foreign national. W.P.(C) Nos.22941 of 2018 and 249 of 2019 are two among such cases. Of course, the question whether a notary public in India is competent to attest the signature of a foreign national and the question whether he would be in a position to ensure the correctness of the statements and affirmations made in the affidavit have not been considered in those cases. 6 W.P.(C) No.12456 of 2021 4. There is no inhibition in law for a notary public in India attesting an affidavit sworn to by a foreign national after ensuring the identity of the person concerned on the basis of the passport or other similar documents. Section 8(1)(e) of the Notaries Act, 1952 empowers a notary to administer oath to, or take affidavit from, any person. Similarly, when a notary public attests the affidavit, he does not take upon himself the responsibility of the correctness of the statements or affidavits sworn to by the signatory. The purpose of attestation is only to ensure that the signature in the document is one put by the person who purported to have put the signature in the document. In other words, the reasons stated by the Marriage Officer for insisting the attestation of the signature in the affidavit of the fiancee of the petitioner by the competent officer in the Embassy and Consulate of the United States of America cannot be accepted. 7 W.P.(C) No.12456 of 2021 In the result, the writ petition is allowed and the third respondent is directed to accept the notice of the intended marriage given by the petitioner and register the marriage of the petitioner with his fiancee referred to in the writ petition by accepting from the fiancee of the petitioner an affidavit attested by a notary public to the effect that she satisfies the eligibility conditions and does not incur any disqualification for the solemnization or registration of the marriage under the Act. Sd/- **P.B.SURESH KUMAR, JUDGE** PV 8 W.P.(C) No.12456 of 2021 ## **APPENDIX OF WP(C) 12456/2021** **PETITIONER ANNEXURE Exhibit P1 TRUE COPY OF THE APPLICATION OF SOLEMNIZATION OF MARRIAGE SUBMITTED BY THE PETITIONER DATED 31.05.2021. Exhibit P2 TRUE COPY OF THE ACKNOWLEDGMENT FOR SOLEMNIZATION OF MARRIAGE AND ACKNOWLEDGMENT CUM RECEIPT FOR THE RECEIPT OF RS.110/- DATED 31.05.2021. Exhibit P3 TRUE COPY OF THE FORM OF NOTICE OF INTENDED MARRIAGE UPLOADED BY THE PETITIONER DATED 31.05.2021.** **Exhibit P4 TRUE COPY OF THE ADHAR CARD OF THE PETITIONER. Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT OF THE PETITIONER'S FINANCE MISS.SHERLYN VARGHESE. Exhibit P6 TRUE COPY OF THE DRIVING LICENSE OF MISS.SHERLYN VARGHESE ISSUED FROM NEW YORK STATE.** **Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 03.09.2018 IN WP(C) NO. 28730 OF 2018 OF THE HON'BLE KERALA HIGH COURT.**