Sarala Baby v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 25707 of 2009(G) -------------------------- PETITIONER(S): --------------- SARALA BABY AGED 48 YEARS, W/O.BABY JOSEPH, KOKKATTU HOUSE, S.N.PURAM, THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CHOORNIKKARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, CHOORNIKKARA GRAMA PANCHAYATH BY ADV. SRI.P.T.JOSE FOR R2 & R3 SENIOR GOVERNMENT PLEADER SRI.BENNY GERVASIS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, ALONG WITH WPC NO. 25915 OF 2009 , WPC NO. 26118 OF 2009, WPC NO. 26990 OF 2009 & WPC NO. 29396 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25707/2009 ## APPENDIX ## PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 14.8.09 ISSUED BY ST.SEBASTIAN'S CHURCH, ALUVA. EXT.P2 - TRUE COPY OF THE APPLICTION DATED 21.8.09 SUBMITTED BEFORE THE 3RD RESPONDENT. EXT.P3 - TRUE COPY OF THE PASSPORT OF THE PETITIONER. EXT.P4 - TRUE COPY OF THE NO OBJECTION CERTIFICTE DATED 28.8.09 ISSUED TO THE PETITIONER'S HUSBAND. EXT.P5 TRUE COPY OF THE ORDER DATED 7.9.09 OF THE 3RD RESPONDENT. /TRUE COPY/ ## **K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** **------------------------------** W.P.(C) Nos.25707, 25915, 26118, 26990 & 29396/2009 **------------------------------** Dated this, the 16[th] day of March, 2010 ## **JUDGMENT** ## **Balakrishnan Nair, J.** The petitioners in these Writ Petitions are married ladies. Their husbands are working abroad. They are desirous of joining their husbands. It appears, for obtaining necessary travel documents, they are required to produce certificates showing registration of their marriage. In all these cases, the marriages took place as per the customary rites. In some of these cases, the solemnization of the marriage took place before the introduction of the Kerala Registration of Marriages (Common) Rules, 2008 (hereinafter referred to as “the Rules”). The marriages solemnized before or after the commencement of the Rules can be registered under the Rules. So, the petitioners moved the respective Local Registrars, appointed under Rule 5 of the Rules, by filing a memorandum in duplicate in Form No.I WPC No.25707/2009 & conn.cases - 2 - appended to the Rules. In these cases, except in W.P.(C) No.25707/2009, the memoranda submitted in Form No.I were not accepted by the respective Local Registrars, for the reason that they were not presented in person by the husband and wife. In W.P.(C) No.25707/2009, the memorandum in Form No.I was received, but the details of the marriage were not entered in the Register of Marriages maintained in Form No.III and the marriage certificate was not issued to the petitioner within five days, as stipulated under Rule 11, for the reason that her husband did not appear in person and sign the register maintained in Form No.III. In the above factual background, these Writ Petitions were filed, praying, inter alia, for a direction to the Local Registrar concerned to receive the memorandum in Form No.I, register the marriage and issue the marriage certificate in Form No.IV under Rule 11 of the Rules, without insisting personal appearance of the spouses or their signatures in the Marriage Register maintained in Form No.III. 2. In W.P.(C) No.25707/2009, the validity of Rules 8 and 9 of the Rules is also under challenge. The petitioner therein WPC No.25707/2009 & conn.cases - 3 - seeks a declaration that Rules 8 and 9 are unconstitutional to the extent they insist signature of both the parties to the marriage, for registration of the marriage. 3. When the Writ Petitions were heard, the learned Single Judge doubted the correctness of the decision rendered by the said Judge in **Nishana Mol v. Alappuzha Municipality** [2009 (3) KLT 251]. The learned Judge also felt that it is impossible for the spouse in certain cases to appear in person. So, to have an authoritative pronouncement on the point whether the insistence of personal appearance of both the parties to the marriage is warranted in the light of the scheme of the Rules, the learned Single Judge referred the Writ Petitions to be heard by the Division Bench. 4. We heard the learned counsel on both sides. The learned counsel for the petitioners pointed out the inconvenience that is being caused to the couples, who want to go abroad. They also brought to our notice the plight of wives who are trying to secure travel documents to join their husbands abroad. If registration of the marriage requires the WPC No.25707/2009 & conn.cases - 4 - presence of their husbands also, that will cause irreparable injury to the petitioners. Therefore, insistence of the presence of both the spouses for the registration of the marriage in Form No.III, is arbitrary and irrational and therefore, unconstitutional, it is contended. 5. The learned senior Government Pleader, on the other hand, submitted that if the marriage is registered without the presence of both the spouses, the provision can be put to great abuse. One of the parties can create a document regarding the marriage without the knowledge or consent of the other. So, the rule making authority has deliberately provided for the appearance of both the parties to the marriage in person and for putting their signatures in the marriage register, with a purpose. In support of his submissions, the learned senior Government Pleader brought to our notice the decisions of this Court in **Deepak Krishna v. District Registrar** [2007(3) KLT 570] and **Vipin v. Sub Registrar** [2007(3) KLT 818], dealing with the registration of marriages under the Special Marriage Act. 6. We notice that the Rules framed are not under any WPC No.25707/2009 & conn.cases - 5 - particular statute. Regarding registration of marriage, the State Legislature has legislative competence, as the same is included as one of the subjects in List III. So, in relation to matters, relating to which the State Legislature is competent to legislate, the executive Government can issue orders, instructions, rules etc., under Article 162 of the Constitution of India. The Kerala Registration of Marriage (Common) Rules, 2008 is one of such rules, issued under Article 162 of the Constitution of India. The inconvenience caused by a statute or a rule framed thereunder can never be a ground for annulling the same. In this case, for the registration of the marriage, the presence of both the spouses is insisted. We notice that all the laws relating to registration of marriages, including the Special Marriage Act, insist for the personal appearance of the parties. The alleged inconvenience of the spouse to be present before the Local Registrar for the registration of the marriage can never be a ground to invalidate the rule. If the couple want their marriage to be registered, they have to be present before the Local Registrar. There is nothing unusual, irrational or arbitrary about WPC No.25707/2009 & conn.cases - 6 - such a simple stipulation. The contentions to the contrary are only to be rejected. Further, we fully agree with the contention of the learned senior Government Pleader that if registration of marriage is permitted without personal appearance, the said facility can be greatly abused and many a marriage can be registered without the knowledge of one of the parties. 7. In this context, we refer to the decision of the Division Bench of this Court in **Deepak Krishna v. District Registrar** [2007(3) KLT 570], arising under the provisions of the Special Marriage Act. This Court was considering whether the period of 30 days provided under the said Act for registering a marriage could be waived or not. In this context, this Court held as follows: “19. Let us now examine whether on a plea of hardship or inconvenience can a Court interpret a statutory provision in a manner inconsistent with its expressed language. The Apex Court in M/s.Easland Combines, Coimbatore v. Collector of Central Excise, Coimbatore (AIR 2003 SC 843) held that merely because a law causes hardship it cannot be interpreted in a manner so as to defeat its WPC No.25707/2009 & conn.cases - 7 - object. Courts are not concerned with the legislative policy and with its results, whether injurious or otherwise by giving effect to the language used. The Apex Court in Morvi Mercantile Bank Ltd. v. Union of India (AIR 1965 SC 1954) held that a plea of inconveniences and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure. It is trite law, that where the meaning of the statute is clear and explicit, but if any hardship or inconvenience is felt, it is for the Parliament to take appropriate steps to amend the law and not for the Courts to legislate under the guise of interpretation. Hard cases make bad law and the plea of hardship and inconvenience has been said to be a dangerous and misleading one and if acceded to, would lead the Court to forbidden territories. 20. Legislature, in our view, has fixed the time frame of thirty days under S.16 therefore, the public can respond by filing objections if any, and the Marriage Officer who has to act as a quasi judicial authority would be in a better position to examine the materials furnished and if satisfied that all the conditions stipulated in S.15 have been complied with, enter a certificate of marriage. WPC No.25707/2009 & conn.cases - 8 - Legislature in its wisdom felt that thirty days' time should be given under S.16 to the public to file objections which in our view cannot be tinkered with by the Marriage Officer or by this Court sitting under Article 226 of the Constitution of India. 21. The Apex Court has highlighted the necessity of registering all marriages of Indian citizens belonging to various religions in their respective States immediately after the solemnization of the marriage in its judgment in Seema v. Ashwani Kumar (2006(1) KLT 791). Following the above decision of the Apex Court, State Government have published draft rules called the Kerala Registration of Marriages (Common) Rules, 2006 which was published in the Kerala Gazette Extra Ordinary No.1835 dated 16.11.2006. Learned Government Pleader has informed us that the same has not been given effect to so far. We feel much of the hardships and inconveniences caused to the parties could be redressed if the above mentioned Rules are given effect to at the earliest. Government would bestow their serious attention to give effect to the above rules at the earliest.” Again, this Court in **Vipin v. Sub Registrar** [2007(3) KLT 818] WPC No.25707/2009 & conn.cases - 9 - held as follows: “5. Under such circumstances since S.15(f) is a directory provision, it is meant for compliance and no writ of mandamus can be issued to the Marriage Officer to violate that statutory provision. The Marriage Officer was therefore justified in rejecting the application for non-compliance of S.15(f) of the Special Marriage Act. We are inclined to reject the request of the petitioners to issue a direction to the respondents to receive the application for registration of their marriage due to non-compliance of the condition mentioned in S.15(f) of the Act. Writ Petition is therefore dismissed.” 8. Though the above principles were laid down concerning registration of marriage under the Special Marriage Act, those principles will squarely apply to the facts of the present cases also. So, the prayer of the petitioners to permit registration of their marriage without the presence of both the spouses and their further prayer to declare the rules standing in the way of registration of their marriage as unconstitutional, cannot be allowed. Going by the scheme of the Rules, as disclosed from Rules 8 to 11, it is clear that the memorandum in Form No.I can WPC No.25707/2009 & conn.cases - 10 - be submitted through post also. The insistence of the Local Registrar for the personal appearance of the couple, to receive the memorandum in Form No.I, is illegal and contrary to the scheme of the Rules. So, in all the cases where the memorandum in Form No.I is not received for the reason that both the spouses are not present, the Local Registrar shall receive the same, even if it is presented by a third party or sent through post. We notice that going by Rule 11, the Local Registrar has to take a decision on the application within five days. The details furnished in Form No.I have to be entered in Form No.III, after verification of the accuracy and completeness of the particulars. The parties have to personally appear and sign the register maintained in Form No.III. Within five days of such submission of the memorandum, the Local Registrar is bound to take a decision, either granting the certificate of marriage under Form No.IV or intimating the reason for not issuing the certificate of marriage. In the result, the Writ Petitions are disposed of, directing the Local Registrars concerned to accept the memorandum in WPC No.25707/2009 & conn.cases **==> picture [33 x 9] intentionally omitted <==** Form No.I, even if it is presented by a third party or sent through post. The prayer of the petitioners to register their marriages in Form No.III and issue the certificates in Form No.IV without the presence of both the spouses, is declined. **K. Balakrishnan Nair, Judge.** **P.N.Ravindran, Judge.** **nm.**