High Court of KeralaSingle JudgeDisposed of

Puthiya Kottal Faizal Musaliar v. Marriage Officer, Chalai and Addl. Respondent Rosa Maria Di Benedetto (Di Benedetto Rosa Maria Roma Giuseppa)

Case / Petition Number:WP(C).No. 7799 of 2013 (Y)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P.R.RAMACHANDRA MENON
Judgment Date
2013-08-05
Court Decision / Holding
Writ petition disposed of; the first respondent is directed to proceed with Ext.P1 application for registration under the relevant provisions of law, subject to satisfaction of statutory requirements, notwithstanding expiry of the notice period under Section 14 of the Special Marriage Act; proceedings to be finalised at the earliest, within one month from the receipt of a copy of this judgment.
Final Disposition
Disposed of

Parties to the Case

Appellants / Petitioners

  • PUTHIYA KOTTAL FAIZAL MUSALIAR S/O. THANGAL KUNJU MUSALIAR KAMALUDDIN MUSALIAR 'SITARA', RESIDENTY ROAD, ASARAMOM.P.O. KOLLAM-691002.

Respondents

  • MARRIAGE OFFICER, CHALAI SUB REGISTRAR OFFICE, NEAR KILLIPPALAM BRIDGE KARAMANA.P.O., THIRUVANANTHAPURAM-695002
  • ADD L.2. DI BENEDETTO ROSA MARIA ROMA GIUSEPPA AGED 57 YEARS, D/O.FARINA DI BENEDETTO COTTON HILL HEIGHTS, APT 1M, VAZHUTHACAUD THIRUVANANTHAPURAM -695010 ORIGINALLY FROM 158 ERROL STREET, NORTH MELBOURNE, VIC AUSTRALIA 3051.

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI.C.UNNIKRISHNAN (KOLLAM)
  • • SRI.D.JAYAKRISHNAN

Counsels for Respondents

  • • SENIOR GOVERNMENT PLEADER JOSEPH GEORGE
  • • SRI.NIDHI BALACHANDRAN

Case Synopsis & Summary

This writ petition challenges the delay and alleged ultra vires action of the first respondent in processing an application for solemnisation of marriage under Section 5 of the Special Marriage Act, 1954, filed by the petitioner with his bride, an Australian citizen brought on record as Addl. Respondent 2. The petitioner, a resident of Kollam, sought mandamus to solemnise the marriage and to direct the respondent to act on Ext.P1 immediately, while contending that the respondent cannot insist on registration of Ext.P2, a lease deed of 11 months, as it is not within the compulsory registration ambit under Section 17(1)(d) of the Registration Act, 1908. The petitioner relied on the law laid down by the Supreme Court in K.B.Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564 to argue that registration of Ext.P2 is not mandatory. The court, after examining the record, found that the Addl. Second Respondent was resident in Kerala and that the concerns about visa and arrival dates were unfounded. It held that Ext.P2 is outside the scope of Section 17(1)(d) and that non-registration cannot bar the relief sought. Consequently, the court directed the first respondent to proceed with Ext.P1, subject to statutory requirements, notwithstanding expiry of notice under Section 14 of the Special Marriage Act, and ordered finalisation within one month. The writ petition is disposed of.

Provisions of Law Cited

Special Marriage Act, 1954 - Section 5Special Marriage Act, 1954 - Section 14Registration Act, 1908 - Section 17(1)(d)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted Ext.P1 under Section 5 of the Special Marriage Act for solemnising the marriage with the Addl. Respondent, a citizen of Australia, and urged that the respondent authority could not insist on registering Ext.P2 (a lease deed) as a precondition since Ext.P2 is for 11 months and not within Section 17(1)(d) of the Registration Act. Reliance was placed on the Supreme Court’s ruling in K.B.Saha and Sons Private Limited v. Development Consultant Limited (2008) to contend that registration is not mandatory for such leases, and non-registration cannot bar relief. The petitioner asserted that Ext.P5 demonstrates identity and residence, and that the respondent’s scrutiny is beyond statutory limits. He prayed for mandamus to proceed with Ext.P1 and to solemnise the marriage, subject to statutory requirements, notwithstanding the expiry of notice under Section 14. The petitioner also sought a declaration that officers have no power to conduct roving enquiries beyond what is prescribed under the Act.

Contentions of Respondents

The respondents argued that Ext.P2 was not satisfactorily proven to be exempt from registration and that identity/residence details required careful verification. They contended that statutory requirements must be satisfied and that the authorities are entitled to scrutinise evidence to ensure compliance with the Act and Registration Act. They asserted the need to adhere to procedural requirements before granting relief and insisted on observing the boundaries of the interplay between the Special Marriage Act and the Registration Act.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
K.B.Saha and Sons Private Limited v. Development Consultant Limited2008 (8) SCC 564PositiveThe Apex Court’s ruling that registration is not mandatory for the lease in question is cited to support the petitioner's position that Ext.P2 need not be compulsorily registrable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935** **WP(C).No. 7799 of 2013 (Y) ---------------------------** **PETITIONER(S):** **--------------** **PUTHIYA KOTTAL FAIZAL MUSALIAR S/O. THANGAL KUNJU MUSALIAR KAMALUDDIN MUSALIAR 'SITARA', RESIDENTY ROAD, ASARAMOM.P.O. KOLLAM-691002.** **BY ADVS.SRI.C.UNNIKRISHNAN (KOLLAM) SRI.D.JAYAKRISHNAN** **RESPONDENT(S):** **--------------** - **1.MARRIAGE OFFICER, CHALAI** **SUB REGISTRAR OFFICE, NEAR KILLIPPALAM BRIDGE KARAMANA.P.O., THIRUVANANTHAPURAM-695002.** **Addl.2. DI BENEDETTO ROSA MARIA ROMA GIUSEPPA AGED 57 YEARS, D/O.FARINA DI BENEDETTO COTTON HILL HEIGHTS, APT 1M, VAZHUTHACAUD THIRUVANANTHAPURAM -695010 ORIGINALLY FROM 158 ERROL STREET, NORTH MELBOURNE, VIC AUSTRALIA 3051.** - **ADDL. R2 IS IMPLEADED AS PER ORDER DATED 15.07.2013 IN IA NO.9025/2013.** **R1 BY SENIOR GOVERNMENT PLEADER JOSEPH GEORGE** **R2 BY ADV. SRI.NIDHI BALACHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7799 of 2013 (Y) ---------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** |**EXT.P1**|**TRUE COPY OF APPLICATION UNDER SECTION 5 OF THE SPECIAL**| |---|---| ||**MARRIAGE ACT. 1954.**| |**EXT.P2**|**TRUE COPY OF THE RENT DEED DATED 1-5-12**| |**EXT.P3**|**TRUE COPY OF 'C' FORM SUBMITTED ON 20-11-12**| |**EXT.P4**|**TRUE COPY ACKNOWLEDGMENT CARD.**| |**EXT.P5**|**TRUE COYP OF THE LETTER NO. SPL 16/13 DATED 8-3-13.**| |**EXT.P6**|**COPY OF ADVICE TO FOREIGNERS PUBLISHED ON THE OFFICIAL**| ||**WEBSITE OF THE KERALA POLICE AT WWW.KERALAPOLICE.ORG**| |**EXT.P7**|**COPY OF VISA NO.AP0340803.**| |**EXT.P8**|**COPY OF C FORM FOR ARRIVAL DATED 12.11.2011.**| |**EXT.P9**|**COPY OF THE MEDICAL RECORDS.**| |**EXT.P10**|**COPY OF APPLICATION FOR EXTENSION AND TREASURY CHELLAN**| ||**DATED 29.02.2012.**| |**EXT.P11**|**COPY OF CERTIFICATE OF REGISTRATION AND RESIDENTIAL**| ||**PERMIT DATED 24.02.2012.**| |**EXT.P12**|**COPY OF VISA NO.VI2884113.**| |**EXT.P13**|**COPY OF C FORM RELEVANT TO EXT.P12.**| |**EXT.P14**|**COPY OF CREDIT CARD STATEMENT ISSUED BY HSBC BANK**| ||**AUSTRALIA LTD. FOR HSBC PREMIER WORLD MASTER CARD.**| |**EXT.P15**|**COPY OF COMPOSITE STATEMENT DATED 03.11.2012 ISSUED BY**| ||**THE HSBC BANK, THIRUVANANTHAPURAM BRANCH.**| |**EXT.P16**|**COPIES OF AIRTEL PHONE BILLS OF THE BRIDE DATED**| ||**25.10.2012, 27.11.2012, 27.12.2012, 27.01.2013 &**| ||**27.04.2013.**| ## **RESPONDENT'(S) EXHIBITS:** **EXT.R1(a) COPY OF THE PASSPORT AND ARRIVAL REPORT IN FORM C OF SMT. DI BENEDETTO ROSA MARIA GIUSEPPA.** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No.7799 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of August, 2013 ## **JUDGMENT** The petitioner has approached this Court with the following prayers : _“ I. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondent to solemnise the marriage of the petitioner and his bride as per Ext.P1 application immediately upon the receipt of this Honourable Court's order._ _II. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondent to not act ultra vires of the Special Marriage Act, 1954 and Registration Act, 1908 in any way._ _III. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondent to not to insist the petitioner and his bride to register a document that is not compulsorily registrable._ _IV. Declare that the respondent and like officers have no power to conduct a roving enquiry into the details of the applicants for marriage beyond what is_ W.P.(C)No.7799/2013 2 _prescribed under the Special Marriage Act, 1954._ _V. Issue such other writ or order as this Honourable Court deems fit and proper in the facts and circumstances of this case.”_ 2. The case of the petitioner is that he proposed to marry the additional 2[nd] respondent, who was not in the party array earlier when the writ petition was filed and came to be impleaded only pursuant to the order dated 15.07.2013 in I.A.No.9025/2013. The additional second respondent is a citizen belonging to Australia and was residing within the jurisdiction of the first respondent in a rented building. A copy of the rent deed has been produced as Ext.P2. In furtherance to the desire of the petitioner and the additional second respondent to marry each other, Ext.P1 application was submitted under Section 5 of the Special Marriage Act. But the same was not duly acted upon, simply saying that the rent deed was not registered and hence not acceptable. Ext.P5 is the communication issued by the first respondent, also satisfying the requirements to make available the relevant certificate for establishing the identity and residence. This made the 3 W.P.(C)No.7799/2013 petitioner to approach this Court by filing the present writ petition. 3. A statement has been filed from the part of the first respondent, referring to some glaring inconsistency/discrepancy with regard to the residence and as to the date of arrival of the additional second respondent in India. It is pointed out that the 'Visa' was issued on 10/09/2012 and her arrival at the Thiruvanathapuram Airport was on 15/09/2012 and this being the position, the additional second respondent could have been a person who was residing in the concerned rented building on the strength of Ext.P2 lease deed executed with effect from 'May 2012'. In the course of further proceedings, the petitioner filed a reply affidavit producing copies of the relevant documents, including the testimonials to substantiate the registration and the residential permit issued as early as on 20.04.2012 vide Ext.P11 and other proceedings, including Bank statements. 4. After going through the pleadings as above and on hearing the submissions made by the learned counsel for the petitioner, this Court finds that the additional second respondent was very much available in Kerala and as such, the doubts expressed from the part of W.P.(C)No.7799/2013 4 the first respondent with regard to the entires in the 'Visa' and such other records, is rather wrong and unfounded. Since the requirements as to the identity and residence of the additional second respondent stands established, it is for the first respondent to proceed with Ext.P1 application for registration of the marriage under the relevant provisions of law. 5. The remaining question is with regard to the necessity to have Ext.P2 lease deed registered. The learned counsel for the petitioner submits with reference to the law declared by the Apex Court in **K.B.Saha and Sons Private Limited v. Development Consultant Limited ( 2008 ( 8) SCC 564)** that registration is not at all necessary. Even otherwise, this Court finds that Ext.P2 lease deed is only for a period of '11 months' and the mandate under Section 17(1)(d) of the Registration Act is only in respect of an 'yearly lease' or for a period exceeding one year . This being the position, Ext.P2 is not a deed which comes within the purview of Section 17(1)(d) to have compulsory registration. As such, the consequences by virtue of Section 49(c) of the Registration Act in respect of a document, if not 5 W.P.(C)No.7799/2013 registered, which otherwise is compulsorily registrable under the relevant provisions of law, is not attracted to the case in hand. Therefore, non-registration of Ext.P2 lease deed cannot bar the way of the petitioner in seeking for the relief sought for. Accordingly, there will be a direction to the first respondent to proceed with further steps based on Ext.P1 application, subject to satisfaction of the statutory requirements, notwithstanding the expiry of the notice period as per Section 14 of the Special Marriage Act in respect of Ext.P1, in view of the pendency of the proceedings before this Court. The proceedings as above shall be finalised at the earliest, at any rate within 'one month' from the date of receipt of a copy of this judgment. Writ petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.7799/2013 6