Naseema Vayakkan PuthiyaPura v. Rasheed Mottammal, Katheeb Uravachal Juma Masjid, Kannur Corporation & The Marriage Registrar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** ## **WP(C).No. 1771 of 2018** ## **PETITIONER/S:** **NASEEMA VAYAKKAN PUTHIYAPURA D/O.MAILANCHI AZEEZ, AGED 36 YEARS, SAINABA MANZIL, CHATHURAKINAR, VARAM, KANNUR-670594.** ## **BY ADVS. SRI.K.RAJESH SUKUMARAN SRI.K.SREENESH SUKUMARAN** ## **RESPONDENT/S:** |**1**|**RASHEED MOTTAMMAL**| |---|---| ||**S/O.M.ABOOBACKER, AGED 47 YEARS, NAFEESA**| ||**MANZIL, ELAYAVOOR, MUNDAYAD, KANNUR-670594.**| |**2**|**THE KATHEEB**| ||**URAVACHAL JUMA MASJID, P.O.CHOVVA, KANNUR-**| ||**670006.**| |**3**|**KANNUR CORPORATION**| ||**KANNUR-670001, REPRESENTED BY ITS SECRETARY.**| |**4**|**THE MARRIAGE REGISTRAR**| ||**KANNUR CORPORATION, KANNUR-670001.**| ||**BY ADVS.**| ||**SMT.S.AMBILY - FOR R3 & R4**| ||**SRI.R.SREEHARI-FOR R1**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.1771 of 2018 ..2.. **ALEXANDER THOMAS, J. ------------------------W.P.(C)No.1771 of 2018 --------------------------Dated this the 03[rd] day of October, 2018** ## **JUDGMENT** **The petitioner is aggrieved by the impugned action on the part of the 4[th] respondent-Marriage Registrar of the Kannur Municipal Corporation to register the marriage between the petitioner and the 1[st] respondent which is already solemnized, on the ground that the parties should produce a decree from a competent court evidencing the factum of divorce from the 1[st] respondent in respect of his previous marriage. In the light of these factual averments that the petitioner filed this writ petition.** **2. Heard Sri.K.Rajesh Sukumaran, learned counsel appearing for the petitioner, Sri.R.Sreehari, learned counsel appearing for** W.P.(C)No.1771 of 2018 ..3.. **respondent No.1 and Sri.K.K.Chandra Pillai, learned Senior Counsel instructed by Smt.S.Ambily, learned counsel appearing for respondents 3 and 4. Though notice has been duly served on respondent No.2 (Juma Masjid), there is no appearance for that party.** **3. The prayers in this writ petition (civil)** ## **are as follows:-** **“** _**I) Issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the 4th Respondent to Register the marriage of the Petitioner with the 1st Respondent which was held on 10.08.2017 as evidenced by Ext. P2 Marriage Certificate issued from Manarulhuda Muslim Jama Ath Committee, Elayavoor, Varam, Kannur and also by considering Ext P1 Talaqnama.**_ _**II) issue any other writ, order or direction that this Honble Court may deem fit and proper.”**_ **4. According to the petitioner, the 1[st] respondent was previously married in accordance** W.P.(C)No.1771 of 2018 ..4.. **with the personal law applicable to Muslims and due to irretrievable break down in relationship, the 1[st] respondent had dissolved the said marriage and had pronounced Talaq as per Ext.P1 dated 12.08.2014. The said previous spouse (N.Rubeena) had accepted the validity of Ext.P1 Talaq and that she has not raised any dispute regarding the validity of Ext.P1 Talaq dated 12.08.2014 and that much more than three years have elapsed after the rendering of Ext.P1 Talaq dated 12.08.2014. Later based on the proposal mooted by the respective families, the 1[st] respondent had married the petitioner in accordance with the personal law applicable to Muslims and the said marriage was solemnized on 10.08.2017 which was certified by the Mahal Committee concerned as per Ext.P2 Marriage Certificate dated 29.8.2017. Thereafter, the application was submitted on** W.P.(C)No.1771 of 2018 ..5.. **behalf of the petitioner and the 1[st] respondent for registering the said marriage in accordance with the provisions contained in the Kerala Registration of Marriages (Common) Rules, 2008 and application as per Exts.P3 and P4 was duly submitted before the 4[th] respondent who is the statutory Marriage Registrar attached to the Kannur Municipal Corporation. The 4[th] respondent has insisted that the petitioner or the 1[st] respondent should produce a decree from the competent court evidencing the dissolution of the first marriage of the 1[st] respondent etc. The petitioner would contend that the said stand taken by the 4[th] respondent is illegal and ultravires in view of the specific decision rendered by this Court in the case in Abdul Khader Suhud v. State of Kerala reported in (2007 (1) KLT 400) wherein it was held that the** W.P.(C)No.1771 of 2018 ..6.. **Marriage Officer could act on the basis of the certificate issued by the Muslim Jamath regarding the Talaq and that going by the very nature of the prescriptions in the Muslim Personal Law, there is no question of securing any divorce decree from a court of law, as the dissolution of the marriage is on the basis of a Talaq. Further it is stated that the petitioner had approached the 2[nd] respondent-Juma Masjid for issuance of certificate regarding the factum of Ext.P1 Talaq and that the authorities of the 2[nd] respondent is not taking any steps to issue a certificate.** **5. Sri.K.K.Chandra Pillai, learned Senior counsel instructed by Smt.S.Ambily appearing for respondents 3 and 4 would submit on the basis of the instructions that the 4[th] respondent has only insisted that the petitioner or the 1[st] respondent** W.P.(C)No.1771 of 2018 ..7.. **should produce a valid decree from a competent court regarding the factum of dissolution of the first marriage of the 1[st] respondent or should produce a certificate from the Jumath concerned in respect of the factum of Ext.P1 Talaq.** **6. This Court in the judgment in Abdul Khader Suhud v. State of Kerala has held that it is not right and proper for a Marriage Officer to insist that decree from the court of law should be produced to evidence the factum of the dissolution of the first marriage on the basis of Talaq and that at best the Marriage Officer can insist for the production of a certificate from the Jumath regarding the factum of the Talaq. It has also to be borne in mind that more than four years have elapsed after the rendering of Ext.P1 Talaq dated 12.8.2014.** W.P.(C)No.1771 of 2018 ..8.. **7. It is pointed by Sri.R.Sreehari, learned counsel appearing for respondent No.1, that despite diligent efforts, the Jama-ath Committee is not issuing the certificate regarding the factum of Ext.P1 Talaq. Though notice has been duly served on respondent No.2, respondent No.2 has not entered appearance. Therefore, it is only to be held that respondent No.2 has no dispute regarding the correctness of the factual assertions made by the petitioner regarding the factum of Ext.P1 Talaq dated 12.08.2014. According to the petitioner and the 1[st] respondent their marriage has already been solemnized on 10.8.2017 in accordance with the Muslim Personal Law. Mere registration of the marriage by itself will not validate a marriage if it is otherwise illegal or a nullity. Since the Jamath is not prepared to issue the certificate, it is only** W.P.(C)No.1771 of 2018 ..9.. **just and proper that direction is issued to the 1[st] respondent to swear to an affidavit attested before a Notary Public giving the details of his first marriage and the factum of Talaq on the basis of Ext.P1 Talaq dated 12.8.2014 and about the fact that the 1[st] respondent had attempted to secure certificate from the Jamath Committee regarding Ext.P1 and that he has been unsuccessful in that regard. If such an affidavit is filed by the 1[st] respondent, then that could be the valid basis for the 4[th] respondent to act upon Exts.P3 and P4 applications for registration of the marriage between the petitioner and the 1[st] respondent. This Court is following this course of action only because the Jamath is not prepared to issue the certificate and has not even cared to enter appearance before this Court to appraise their** W.P.(C)No.1771 of 2018 ..10.. **stand in spite of due service of notice. Hence it is only to be held that the factual averments made by the petitioner regarding the correctness of Ext.P1 is not in any manner objected to by the 2[nd] respondent. Accordingly it is ordered that it is for the 1[st] respondent to produce the requisite affidavit as afore stated regarding the factum of Ext.P1 Talaq and on the basis of such affidavit the 4[th] respondent may proceed further for considering action for registration of marriage on the basis of Exts.P3 and P4 applications, provided all other eligibility conditions for the marriage are duly satisfied by the parties concerned. Action in this regard should be duly completed by the 4[th] respondent within two weeks from the date of production of the afore said affidavit by the 1[st] respondent along with certified copy of this judgment.** W.P.(C)No.1771 of 2018 ..11.. **8. Needless to say that the petitioner and the 1[st] respondent shall be personally present before the 4[th] respondent Registrar for appending their signatures in the marriage register, at the time of issuance of the marriage certificate.** **With these observations and directions this writ petition (civil) will stand finally disposed of.** **Sd/-** **ALEXANDER THOMAS,** **JUDGE** **skj** W.P.(C)No.1771 of 2018 ..12.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1COPY OF THE TALAQNAMA DATED 12/08/2014 SEND BY THE 1ST RESPONDENT TO HIS EARLIER WIFE SMT.RUBEENA.** **EXHIBIT P2COPY OF THE MARRIAGE CERTIFICATE DATED 29/08/2017 ISSUED FROM MANARULHUDA MUSLIM JAMA ATH COMMITTEE, ELAYAVOOR, VARAM, KANNUR.** **EXHIBIT P3COPY OF THE APPLICATION FOR REGISTRATION OF MARRIAGE MADE TO THE 3RD RESPONDENT CORPORATION DATED 30/08/2017.** **EXHIBIT P4COPY OF THE MEMORANDUM FOR REGISTRATION OF MARRIAGE IN FORM NO.1 MADE TO THE 3RD RESPONDENT.**