Mathew Kadampattu Abraham and Sumi Ann Thomas v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942** ## **WP(C).No.10532 OF 2020(N)** ## **PETITIONERS:** |**1**|**MATHEW KADAMPANATTU ABRAHAM, AGED 71 YEARS,**| |---|---| ||**S/O. LATE MATHEW ABRAHAM,**| ||**KADAMPANATTU (BETHEL COTTAGE)**| ||**PARIYARAM P.O, KOTTAYAM DISTRICT.**| |**2**|**SUMI ANN THOMAS, AGED 29 YEARS,**| ||**W/O. PAUL EAPEN MATHEW,**| ||**KADAMPANATTU (BETHEL COTTAGE),**| ||**PARIYARAM P.O, KOTTAYAM DISTRICT.**| ||**BY ADVS. SRI.V.PHILIP MATHEW**| ||**SRI.GIBI C.GEORGE**| ||**SRI.RADHAKRISHNAN E**| ||**SRI.JEPH JOSEPH**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS,**| ||**KERALA GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**LOCAL REGISTRAR OF MARRIAGE (COMMON)**| ||**PUTHUPPALLY GRAMA PANCHAYAT,**| ||**KOTTAYAM DISTRICT-686 011**| |**3**|**THE SECRETARY,**| ||**PUTHUPPALLY GRAMA PANCHAYAT,**| ||**KOTTAYAM DISTRICT-686 011**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER, SRI.GEORGE**| ||**SEBASTIAN,SC FOR R2, R3**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.10532 OF 2020 -2- ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.10532 of 2020 ---------------------------------------------Dated this the 28[th] day of May, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:The first petitioner's son, Paul Eapen Mathew married the second petitioner on 21.09.2019. Paul Eapen Mathew is working in Australia. After marriage Paul Eapen Mathew left to Australia on 24.09.2019. An application was submitted before the second respondent for registering the marriage under Kerala Registration of Marriages (Common) Rules, 2008. By Exhibit P5 communication the second respondent is insisting for the personal appearance of Paul Eapen Mathew for issuing the marriage certificate. Considering the present travel restrictions in connection with COVID-19 it will not be possible for Paul to come to Kerala soon. Insistence of the personal appearance of Paul by the second respondent for issuing marriage certificate is unnecessary. Petitioners prefer this writ petition seeking direction WP(C).No.10532 OF 2020 -3- to the second respondent to issue marriage certificate to the second petitioner without insisting for the personal appearance of Paul Eapen Mathew. 2. It is in the light of the above factual averments and contentions that the petitioner has filed instant Writ Petition (Civil) with the following prayers:- _“ i) Issue a writ of certiorari or other appropriate writ order quashing Exhibit P5 to the extent it directs the groom (husband of second petitioner) to appear in person for issuing the marriage certificate._ _ii) Issue a writ of mandamus or other appropriate writ order or direction commanding second respondent to issue marriage certificate to the second petitioner based on the application referred to in Exhibit P5 without insisting for the personal appearance of Paul Eapen Mathew (groom) or in the alternative direct the second respondent to permit Paul Eapen Mathew (groom) to appear through video conferencing for processing the application for registration of marriage._ _iii) Pass just and proper reliefs considering the facts and circumstances of the case and the prayer made at the time of hearing.”_ 3. Heard Sri.V. Philip Mathews, learned counsel appearing for the petitioners, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for 1[st] respondent and Sri.George Sebastian, learned counsel appearing for respondents 2 and 3. 4. It is pointed out by Sri.V.Philip Mathew, learned WP(C).No.10532 OF 2020 -4- counsel appearing for petitioners that after solemnisation of the marriage between the 1[st] petitioner's son and the 2[nd] petitioner, the groom had to immediately go back to Australia in connection with his employment and hence the couple was not in a position to take steps for registering the solemnisation of their marriage as per the provisions contained in the Kerala Registration of Marriages (Common) Rules, 2008, etc. Eventhough an application for registration of the said solemnisation of marriage was duly submitted on 24[th] October, 2019, immediately after solemnisation of their marriage on 21.09.2019. Now, the 2[nd] petitioner (wife) has to go abroad and for processing her application for permanent residence and visa, etc. the Australian authorities are insisting for submission of the certificate of marriage by the notified Registrar and the Australian authorities do not accept marriage certificates issued by private bodies like Church, etc., and that the groom would have certainly come down to India but for the extreme travel restrictions that has been imposed on account of the lock down since 24.03.2020 in view of the COVID-19 pandemic, it is impossible for the groom to come to Kerala in the immediate possible future and though he had availed leave and taken the WP(C).No.10532 OF 2020 **==> picture [15 x 8] intentionally omitted <==** flight ticket for travel, the same had to be cancelled, etc. Petitioners would place reliance on the directions issued by this Court in the judgment in W.P.(C) No.37100 of 2017 in _**Pardeep**_ ## _**Kodiveedu Cletus v. Local Registrar of Marriages (Common)**_ _**2018**_ [2018 (1) KLT 292] wherein it has been held by this Court that for such purpose of registration of already solemnised marriage, in extreme cases where the parties find it difficult to personally appear before the notified Registrar for registration of their already solemnised marriage, the same could also be effected through the process of video conferencing. It has been held by this Court in paragraph No.8 of _**Pardeep Kodiveedu Cletus'** s_ case (supra) that there cannot be any doubt with respect to the personal appearance of the parties to the marriage which is insisted in terms of the Rules for registration of the marriage to ensure that the marriage is registered with their knowledge. If the purpose of the Rule which insists personal appearance of the parties to the marriage could be ensured by video conferencing, there shall not be any impediment for the court in interpreting the provisions in such a way as permitting insistence of personal appearance through video conferencing. That it is common knowledge that the virtual presence of a person living in a different country can be ensured by video conferencing and that the WP(C).No.10532 OF 2020 -6- Apex Court in _**State of Maharashtra v. Praful B. Desai (Dr.) [(2003) 4 SCC 601]**_ [2003(2) KLT SN 35 (C. No.45)] SC], has approved in the context of criminal trial that the requirement of 'personal appearance' can be ensured through video conferencing as well. Hence it was held by the Apex Court that there could not be any doubt that the Local Registrar can certainly ensure if the application for registration of the marriage is preferred with the knowledge of the parties through video conferencing and if that be so, the provision contained in Rule 11 of the Rules can certainly be interpreted as enabling the Local Registrar to obtain personal appearance through video conferencing as well, etc. The directions issued by this Court in paragraph Nos.9 and 10 of the above said judgment, is as follows:- _“ 9. True, inconvenience caused by a rule can never be a ground for annulling the same or reading down the Rule in a different fashion. But, if the purpose of the rule could be ensured otherwise, should the parties be put to inconvenience? My conclusion is that if the purpose of the rule can be ensured otherwise, the provision of law can be interpreted by courts in a fashion not causing any inconvenience to the parties. I am fortified in this view by the principle quod est inconveniens, aut contra rationem non permissum est in lege (that which is inconvenient, or against reason, is not permitted in law). I am also fortified in this view by the following observation in the commentaries on 'Statutory Interpretation' by Francis Bennion:_ _“The court seeks to avoid a construction that causes unjustifiable inconvenience to persons who are subject to the enactment, since this is unlikely to have been intended by Parliament. Sometimes however there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong”_ _I do nof find any overriding reason in this matter for the court to interpret the provision contained in Rule 11 in such a fashion compelling the parties to the marriage to be physically present before the local Marriage Officer, for the purpose of registering their_ WP(C).No.10532 OF 2020 -7- ## _marriage._ _10. In the result, the Writ Petition is allowed and the first respondent is directed to satisfy that the application of the petitioners is one preferred with their knowledge, through video conferencing, which facility may be provided to the first respondent by the power holder of the petitioners. Needless to say, the power holder of the petitioners can be permitted to sign in the Marriage Register on behalf of the petitioners.”_ 5. Petitioners also placed reliance on the judgment of the Apex Court in _**State of Maharashtra v. Praful B. Desai (Dr.) [(2003) 4 SCC 601]**_ [2003(2) KLT SN 35 (C. No.45)] SC,] Reliance has also been placed on the latest judgment of the Apex Court in _**In Re: Guidelines for Court Functioning through Video Conferencing during COVID 19 Pandemic**_ [2020(2)KHC 521 (SC)] emphasizing the necessity of adopting Video Conferencing for functioning of the legal system, etc. 6. After hearing all the parties concerned, this Court is of the view that the directions and orders issued by this Court in _**Pardeep Kodiveedu Cletus'** s_ case (supra) could be made applicable in this case as well. One minor difference in the facts of this case is that the 1[st] petitioner herein, who is the father of the groom has not secured a formal power of attorney executed by his son, who is now in Australia. But it is seen that the groom has executed Ext.P4 affidavit dated 24.09.2019, when he was in India at that time, authorizing the 1[st] petitioner, who is his father, to receive the marriage certificate, etc. WP(C).No.10532 OF 2020 -8- 7. A reading of Ext.P5 -communication No.A1-6758/19 dated 24.04.2020, issued by the 2[nd] respondent to the 2[nd] petitioner would show that he is satisfied with the factum of the solemnisation of the marriage between the 1[st] petitioner's son and the 2[nd] petitioner and that further steps for registration of their solemnised marriage would be taken as per the Rules, etc. Accordingly, the following directions and orders are passed:- (a) The 2[nd] respondent-Local Registrar of Marriage (Common) is directed to act upon the application mentioned in Ext.P5 for registration of the already solemnised marriage of 1[st] petitioner's son and 2[nd] petitioner, through video conferencing, which facility shall be provided to the 2[nd] respondent by the petitioners herein. (b) The 1[st] petitioner may be permitted to sign on behalf of the groom, who is his son, on the basis of Ext.P4 authorisation and the 2[nd] petitioner shall sign on her behalf. (c) Thereafter the 2[nd] respondent-Local Registrar of Marriage (Common) may forthwith issue the certificate of registration of the marriage to the 2[nd] petitioner. WP(C).No.10532 OF 2020 -9- 8. However, in the interest of justice and for the purpose of completion, it is also ordered that after permitting the petitioners to sign in the Register, as above, the 2[nd] respondent Local Registrar of Marriage (Common) will ensure that the column immediately after the column which has been signed by the petitioners should be left blank and registration of the next marriage should be endorsed and entered only in a column subsequent to the said vacant space. 9. It is further ordered that the 1[st] petitioner's son, who is the groom as well as the 2[nd] petitioner shall later sign in the said vacant column of the register, within a period of ten months from the date of signing of the petitioners in the register, as afore permitted. 10. In this regard, Sri.V.Philip Mathew, learned counsel appearing for the petitioners would submit that the 1[st] petitioner's son would certainly come back to India as early as possible, at any rate, within the afore said outer time limit, subject to availing his leave, etc. and thereupon 1[st] petitioner's son as well as the 2[nd] petitioner would immediately personally appear before the 2[nd] WP(C).No.10532 OF 2020 **==> picture [21 x 7] intentionally omitted <==** respondent-Local Registrar of Marriage (Common) and then sign in the vacant column of the register for obeying and complying with above said directions of this Court. 11. However, the issuance of the formal certificate to the 2[nd] petitioner, which shall be done immediately after both the petitioners signing the register and handing over of the register shall not await any longer as the 2[nd] petitioner requires it immediately for processing the request for visa abroad, etc. However, if the 1[st] petitioner's son does not comply with the above said direction within the above said permitted time limit of ten months, then the 2[nd] respondent-Local Registrar of Marriage (Common) will be at liberty to take steps to revoke the marriage certificate, etc. Needless to say that the marriage certificate so issued by the 2[nd] respondent-Local Registrar of Marriage (Common) to the 2[nd] petitioner shall be unconditional and no conditions shall be stipulated therein, as otherwise, it would go against the very spirit and substance of the directions herein and in view of no use to the 2[nd] petitioner and her husband in processing the claims of the 2[nd] petitioner for her visa and permanent residence in the foreign country concerned. WP(C).No.10532 OF 2020 -11- With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//05062020 WP(C).No.10532 OF 2020 -12- ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 COPY OF PASSPORT OF PAUL EAPEN MATHEW** **EXHIBIT P2 COPY OF THE CERTIFICATE OF MARRIAGE DATED 23-09-2019 ISSUED FROM CHURCH OF GOD (FULL GOSPEL) IN INDIA** ## **EXHIBIT P3** **COPY OF THE CERTIFICATE OF REGISTRATION AS OVERSEAS CITIZEN OF INDIA ISSUED TO PAUL** **EXHIBIT P4** **COPY OF THE AFFIDAVIT DATED 24-09-2019 AUTHORIZING THE FIRST PETITIONER TO COLLECT THE MARRIAGE CERTIFICATE** **EXHIBIT P5** **COPY OF COMMUNICATION NO. A1-6758/19 DATED 24-04-2020 ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER.** ## **RESPONDENTS'EXHIBITS : NIL.**