Rince Marin Ninan and Derin Panackamannil Roy v. Registrar Kerala Registration of Marriage (Common) and The State of Kerala represented by Secretary, Department of Local Self Government

W.P.(C).No.3026/22 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 WP(C) NO. 3026 OF 2022** ## **PETITIONERS:** 1 RINCE MARIN NINAN AGED 32 YEARS D/O. JOHN NINAN, HEBRON NILAYA, THIRUVALLA, KUTTUPUZHA, PATHANAMTHITTA, KERALA - 689103. 2 DERIN PANACKAMANNIL ROY AGED 36 YEARS S/O. ROY GEORGE P., VALAKOM, AMBALAKARA, KOLLAM, KERALA - 691 532, RESIDENT OF 7126, CHEROKEE CT., WARR ACRES, OK 73132-5926, OKLAHOMA STATE, USA. BY ADVS. NOBEL RAJU C.R.JAYAKUMAR P.K.VINAYA ## **RESPONDENTS:** 1 THE REGISTRAR KERALA REGISTRATION OF MARRIAGE (COMMON), SECRETARY, THIRUVALLA MUNICIPALITY, MUNICIPAL OFFICE, THIRUVALLA, THIRUVALLA, PATHANAMTHITTA - 689101. 2 THE STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY ADV SHRI.S.SUBHASH CHAND, SC, THIRUVALLA MUNICIPALITY 2 W.P.(C).No.3026/22 ## **OTHER PRESENT:** VINITHA B-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON 16.02.2022 DELIVERED THE FOLLOWING: W.P.(C).No.3026/22 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(c).No.3026 of 2022** **= = = = = = = = = = = = = = = = Dated this the 16[th] day of February, 2022** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “i)To issue a Writ in the nature of mandamus directing the 1[st] respondent to treat the exhibit P4 decree of dissolution of marriage of the 2[nd] petitioner as a valid, foreign judgment by a competent court of jurisdiction ii) To issue a writ in the nature of mandamus directing the 1[st] respondent to accept the exhibit P5 application and register the marriage as per the Kerala Registration of Marriages (Common) Rules 2008 and to issue the marriage registration certificate. iii) To issue a writ in the nature of mandamus directing the 1[st] respondent to make arrangement to complete the process of registration through video conferencing with the petitioners and dispense with the personal attendance of the petitioners as they would be abroad. ” - 2.Heard the learned counsel for the petitioners, the learned counsel appearing for the 1[st] respondent as well as the learned Government Pleader. W.P.(C).No.3026/22 4 3. It is submitted by the learned counsel for the petitioners that the 1[st] petitioner is employed in Australia and the 2[nd] petitioner is an Overseas Citizen of India holding a passport of the United States of America. The petitioners are nurses by profession. They have solemnized their marriage on 15.1.2022 at KGA Elite Continental Hotel Thiruvalla as per the rites of the Christian Pentecostal Church. Certificate of Marriage is Exhibits P2 and P2A. Both the petitioners are divorcees and have obtained legal divorce. Ext.P3 is the judgment in O.P.No.972/2016 of Family Court, Pathanamthitta dissolving the marriage of the 1[st] petitioner, while Exhibit P4 is the certified copy of the decree of dissolution of the 2[nd] petitioner's marriage in the District Court of Oklahoma County, Sate of Oklahoma, USA. It is submitted that when the petitioners made applications for registration of their marriage pursuant to Exhibit P2, the 1[st] respondent refused to register the marriage, raising a doubt regarding the enforceability of Exhibit P4 decree. The learned counsel for the petitioners submits that since the petitioners are both divorcees and since there is no dispute with regard to the W.P.(C).No.3026/22 5 marital status, the refusal on the part of the 1[st] respondent to register their marriage is completely unsustainable. It is submitted that the petitioners have thereafter gone abroad for employment purposes and that the 1[st] respondent may be directed to consider the application for registration of their marriage by appearance of the petitioners online before him through video conferencing. The learned counsel for the petitioners relies on the decisions of this Court **Arun K.G.and Another v. Marriage Registrar and Another** [2018 KHC 798] and **Vinson Thomas v. Marriage Officer and Chitt Auditor and others** in W.P.(C).No.3180/2022 dated 3.02.2022. The learned counsel for the petitioners also submits that the issue stands covered by a decision of this Court in **Jithin Varghese Prakash v. Registrar of Marriage, Piravom Municipality** [2019(4) KHC 39]. 4. The learned counsel appearing for the 1[st] respondent would, on the other hand, contend that Section 13 of the C.P.C is of no help to the petitioners, in view of the fact that the decree is one issued on mutual consent between the parties and that it W.P.(C).No.3026/22 6 is not a decree on merits. It is, therefore, contended that since the decree is one on consent, the foreign judgment is not conclusive. 5.I have considered the contentions advanced. In **Augustine Kalathil Mathew v. Marriage Officer (Sub Registrar), Pathanamthitta** [ 2016 (4) KLT 415] this Court held as follows:- “It is thus evident that though the general rule is that a foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married, such judgments can be accepted as conclusive in India where the respondent voluntarily and effectively submits to the jurisdiction of the forum and consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. As stated above, the materials on record indicate beyond doubt that the petitioner and his divorced wife have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them. In the circumstances, I am of the view that the courts in India have to recognise Ext.P4 divorce certification. “ W.P.(C).No.3026/22 7 6.In **Arun K.G.and Another v. Marriage Registrar and Another** [2018 KHC 798] this Court held that Rule 6 of the Kerala Registration of Marriages (Common) Rules 2008 provides a limited power to the Registrar to conduct a summary enquiry as to the legality of the marriage. It was held that he needs only to have a _prima facie_ view that the marriage has been conceived as per law and once such satisfaction has been entered into by the Registrar, he need not conduct further enquiry into the facts stated in the applications. ## 7. In **Jithin Varghese Prakash v. Registrar of Marriage,** **Piravom Municipality** [2019(4) KHC 39], this Court held that there is no provision under the Kerala Registration of Marriages (Common) Rules, 2008 to register a divorce, especially one obtained from a foreign court. However, it was held that where a record that shows that marriage subsists is available in the public domain, the parties would have every right to insist that the dissolution of the said marriage should 8 ## W.P.(C).No.3026/22 also be recorded in the public record. Relying on Section 21 of the General Clauses Act, 1897 it was held that the registrar was bound to record a divorce obtained from a foreign court in the register maintained by him acting upon a decree of a competent court, even if the court is a foreign court. ## 8. In **Vinson Thomas v. Marriage Officer and Chitt Auditor** **and others** by judgment dated 3.02.2022 in W.P. (C).No.3180/2022, this Court had considered a notice to marry under the Special Marriage Act. The 1[st] petitioner had obtained a decree of dissolution of marriage on consent of parties from the Family Court, Birmingham the parties had thereafter given notice of marriage under the Special Marriage Act. However, the Marriage Registrar had taken a stand that the marriage can be solemnized only on getting instructions from the 2[nd] respondent regarding validity of judgment of divorce of a foreign court in India. Relying on **Augustine Kalathil Mathew v. Marriage Officer (Sub Registrar), Pathanamthitta** [ 2016 (4) KLT 415] this Court W.P.(C).No.3026/22 9 held that the marriage under the Special Marriage Act is liable to be solemnized in view of the fact that the 1[st] petitioner had obtained a valid decree of divorce from a foreign court. 9. Having considered the contentions advanced, I am of the opinion that the contention raised that the decree of divorce under mutual consent is not a decree on merits cannot be accepted. An irretrievable break down of marriage has evidently been accepted under Section 10A of the Indian Divorce Act as a ground for divorce. Exhibit P4 decree admittedly is one issued on the ground that the marriage has irretrievably broken down. That the parties have agreed on the point, cannot be a ground to hold that the irretrievable break down of the marriage is not found on merits. As the parties to the marriage had admittedly submitted to the jurisdiction of the court in the USA and had obtained a decree of divorce on mutual consent, I am of the opinion that the said decree is liable to be accepted by the marriage registrar exercising power under Rule 6 of the Kerala Registration of Marriages (Common) Rules, 2008. W.P.(C).No.3026/22 10 - 10.In the instant case the marriage between the petitioners has been solemnized according to the religious rites. The petitioners only seek a registration of the said marriage under the Kerala Registration of Marriages (Common) Rules, 2008. In the above view of the matter, I am of the opinion that the said application is liable to be acted upon and the marriage is liable to be registered in accordance with law. - 11.There will accordingly be a direction to the 1[st] respondent to accept Exhibit P5 application and to take steps for registration of the marriage as per the Kerala Registration of Marriages (Common) Rules, 2008. The presence of the parties to ascertain their consent to the registration of the marriage shall be obtained by video conferencing. The authorised representatives of the petitioners shall appear before the 1[st] respondent and make all necessary arrangements for the appearance of the petitioners through video conferencing and shall pay all fees as required by law. The application preferred by the petitioners, the identity of the petitioners and the W.P.(C).No.3026/22 11 persons appearing on their behalf shall be duly verified by the 1[st] respondent. Thereafter, the 1[st] respondent shall secure the attendance of the parties to the marriage through video conferencing and shall verify that the application for registration of marriage is one made with the knowledge of the parties to the marriage. On being so satisfied, the 1[st] respondent shall permit the authorised representatives of the petitioners to sign the marriage register on behalf of the petitioners and the marriage certificate shall be duly issued to such authorised representatives. - 12.However, it is made clear that the directions are issued considering the travel restrictions and the extreme urgency of the matter. The representatives of the petitioners shall give an undertaking before the 1[st] respondent that the petitioners shall appear before the 1[st] respondent within one year from the date of registration of the marriage and sign the register maintained for the purpose. The petitioners shall, within one month from the date of their next arrival in India, approach the 1[st] respondent and affix their signature personally in the 12 W.P.(C).No.3026/22 register. Writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.3026/22 13 ## **APPENDIX OF WP(C) 3026/2022** PETITIONER EXHIBITS Exhibit P1 - TRUE COPY OF 1ST PETITIONER'S INDIAN PASSPORT NUMBER T9724729. - Exhibit P1A A TRUE COPY OF THE 2ND PETITIONER'S USA PASSPORT NUMBER 596398353. - Exhibit P1B A TRUE COPY OF THE 2ND PETITIONER'S OVERSEAS CITIZEN OF INDIA CARD NUMBER A 3173001. - Exhibit P2 TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY KGA ELITE DATED 18.01.22. - Exhibit P2A A TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE DIVINE MINISTRIES INDIA TRUST DATED 15.01.22. - Exhibit P3 A TRUE COPY OF THE JUDGMENT IN OP 972/2016 OF FAMILY COURT, PATHANAMTHITTA. - Exhibit P4 A TRUE COPY OF CERTIFIED COPY OF THE DECREE OF DISSOLUTION IN FD 2018-1588 IN THE DISTRICT COURT OF OKLAHOMA COUNTRY, STATE OF OKLAHOMA, USA. - Exhibit P5 A TRUE COPY OF THE MEMORANDUM FOR REGISTRATION OF MARRIAGE SUBMITTED TO THE 1ST RESPONDENT BY THE PETITIONERS. - Exhibit P6 A TRUE COPY OF THE RECEIPT NO.2148 DATED 24.01.22 ISSUED BY THE 1ST RESPONDENT. True copy PS to Judge