Allowed

C.S.Sujith v. Sub Registering Officer/Marriage Officer

Kerala HC6 Jul 2018WP(C)/19694/2018

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging the rejection of a marriage registration application. It held that a foreign spouse of an Indian citizen can marry in India under the Special Marriage Act, without being barred by the absence of Indian diplomatic marriage officers abroad.

What did the court decide?

The petitioner was permitted to contract the marriage as proposed, and the Registrar was directed to issue notice and solemnize the marriage without delay.

C.S.Sujith Vs Sub Registering… — Contract and Commercial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940

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WP(C).No. 19694 of 2018

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PETITIONER :

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C.S. SUJITH, AGED 36 YEARS, S/O.SURESH, CHAMAIPARAMBIL HOUSE, HOUSE NO.14/809, NORTH NAZRETH, MATTANCHERRY, ERNAKULAM DISTRICT, COCHIN-682002.

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BY ADV.SRI.ANTONY KUREETHARA

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RESPONDENT :

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SUB REGISTERING OFFICER/MARRIAGE OFFICER, SUB REGISTRAR OFFICE, MATTANCHERRY, COCHIN-2.

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BY GOVERNMENT PLEADER SRI.A.C.VIDHYA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 19694 of 2018 (J)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF RELEVANT EXTRACT OF THE PASSPORT OF THE PETITIONER BEARING NO.K 0071684 ISSUED AT COCHIN ON 9.2.2012 WHICH IS VALID UP TO 8.2.2022.
EXHIBIT P2 TRUE COPY OF RELEVANT EXTRACT OF THE PASSPORT OF NAKAJI TAKAKO BEARING NO.TK 8314551 ISSUED ON 23.5.2018 WHICH IS EXPIRING ON 22.11.2018.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE NO.C18-37 DATED 6.6.2018 REGARDING THE FAMILY STATUS OF NAKAJI TOKAKO ISSUED BY THE CONSULATE GENERAL OF JAPAN IN CHENNAI.
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE NO.18-38 DATED 6.6.2018 REGARDING THE MARITAL STATUS AND ATTAINMENT OF MARRIAGEABLE AGE OF NAKAJI TOKAKO ISSUED BY THE CONSULATE GENERAL OF JAPAN IN CHENNAI.

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RESPONDENT(S)' EXHIBITS

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NIL

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TRUE COPY P.S. TO JUDGE

12.7.2018

ALEXANDER THOMAS, J.

W.P(C).No.19694 Of 2018

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Dated this the 6th day of July, 2018.

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It is stated that the petitioner is an Indian citizen and is permanently residing in the address shown in the cause title of the Writ Petition and he is the holder of Indian Passport, bearing No.K 0071684 issued at Cochin, which is valid up to 8.2.2022, as borne out by Ext.P-2. It is the case of the petitioner that he has fallen in love with a Japanese lady named Nakaji Takako and both of them are eligible to get registered their marriage under the Special Marriage Act, 1954 as per the legal position well settled in the decisions as in Rajeev v. State of Kerala , reported in 2001 (1) KLT 578 and Vivian Varghese v. State of Kerala , reported in 2015 (3) KLT 21, etc. That the respondent is the notified Registrar for solemnizing the marriage under the provisions of the Special Marriage Act and the Rules framed thereunder. That when the petitioner and his fiancee had approached the Registrar for registering their marriage, the same was declined by the respondent since the proposed bride is a foreign national. It is the case of the petitioner that the petitioner and proposed bride, who is born on

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W.P(C).No.19694 Of 2018

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2.3.1977 (as borne out by Ext.P-2 certificate) are matured persons and that both of them have decided to enter into relationship of marriage voluntarily knowing the full consequences of the same and that they are qualified and eligible as per the provisions in the Special Marriage Act to get the marriage registered under that Act and there are no provisions in the Act or in the Rule or in any other enactments which prohibits the marriage between them. The petitioner would also state that Ext.P-4 certificate dated 6.6.2018 has been issued by the authorised official of the Consulate General of Japan in Chennai, certifying that the petitioner's fiancee, Takako Nakaji, is unmarried and has attained the age of marriage under the relevant laws of Japan and that details of the Japanese lady was obtained from the family register issued by the Acting Mayor of the town concerned in Japan, etc.

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Heard Sri.Antony Kureethara, learned counsel for the

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petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondent-Registrar.

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Secs. 4 & 6 of the Special Marriage read as follows:

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“Sec.4: Conditions relating to solemnization of special marriages .- Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:--

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(a) neither party has a spouse living;

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(b) neither party--

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W.P(C).No.19694 Of 2018

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(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

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(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

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(iii) has been subject to recurrent attacks of insanity .

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(d) the parties are not within the degrees of prohibited relationship:

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Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

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(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.

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Explanation .- In this section, "custom", in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family:

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Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied--

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(i) that such rule has been continuously and uniformly observed for a long time among those members;

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(ii) that such rule is certain and not unreasonable or opposed to public policy; and

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(iii) that such rule, if applicable only to a family, has not been discontinued by the family.

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xxx xxx xxx

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Sec. 6: Marriage Notice Book and publication .- (1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.

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(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

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W.P(C).No.19694 Of 2018

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(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.”

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4. This Court in the judgment in Rajeev v. State of Kerala,

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reported in 2001 (1) KLT 578, has held that even if one of the parties is not an Indian Citizen, the marriage can be solemnized under the Special Marriage Act and the Act also does not contain any prohibition for solemnization of the marriage, if one of the parties is a foreigner. Further this Court has held in the case in Vivian Varghese v. State of Kerala, reported in 2015 (3) KLT 21 , para 6 thereof, that while construing the provisions under the Special Marriage Act, the requirement of the marriage officer of the district in which the other party to the marriage has residence would operate only within the territories of India as per the existing law contained in the Special Marriage Act and Sec.6 thereof requires that when either parties to an intended marriage is not permanently residing within the local limits of the marriage officer, then the marriage officer of the district in which the other party has the residence should be informed of the marriage and this would operate only within the territories of India and the foreign citizen is not residing

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W.P(C).No.19694 Of 2018

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within India. In that case the respondent State authority has placed reliance on a public notice bearing No.R.R.6/23638/2014 dated 21.10.2014 to support the rejection of the proposed marriage by the respondent-Registrar therein and it was contended that there is no marriage officer appointed by the Government of India in the Embassy of India at Finland and there is no provision for sending a communication as required under sub-sec.(3) of Sec.6 of the Special Marriage Act. This Court has held in para 5 of the judgment in Vivian Varghese's case (supra) that a reading of the said notice dated 21.10.2014 would indicate that as per the Special Marriage Act, 1954, diplomatic and consular officers of the Embassies of India, abroad were appointed as marriage Officers under the Special Marriage Act. The contention of the Government expressed in that public notice dated 21.10.2014 was that a foreign citizen seeking registration of marriage with an Indian citizen, within the territories of India, the Government could get confirmation on the status of such foreign citizens from such Marriage Officers appointed in the Embassy. On this aspect of the matter, this Court held in para 5 thereof that by introduction of Foreign Marriage Act, 1969, the provisions for making Rules with respect to the diplomatic and consular officers and others as provided in Sec.50 of the

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W.P(C).No.19694 Of 2018

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Act of 1954 was taken away and in such circumstances, there are no marriage officers as of now appointed by the Government of India, abroad, etc. This Court held that marriage of the parties concerned cannot be kept in abeyance only by reason of such law having not been introduced and accordingly held that the petitioners are entitled to get a direction that his application shall be accepted and notice shall be given by the respondent-Registrar concerned as required under the Special Marriage Act and the petitioner was permitted to contract the marriage as intended by him which shall be solemnized by the registrar as per the provisions of the Special Marriage Act. The above judgment in Vivian Varghese v. State of Kerala , reported in 2015 (3) KLT 21, reads as

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follows:

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“The petitioner, an Indian citizen, desires to enter into a marriage with one Satu Anniina, who is a Finnish citizen. The petitioner, residing under the jurisdiction of the 3rd respondent, made an application for contracting the marriage under the Special Marriage Act, 1954. An objection was raised by the 3rd respondent, allegedly on the ground that the marriage is intended to be entered into with a Finnish citizen and, hence, the provisions of the Special Marriage Act, 1954 cannot be invoked.

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In fact, the said issue was already considered by this Court in Rajeev v. State of Kerala [2001 (1) KLT 578], which relied on a decision of High Court of Himachal Pradesh in Marian Eva v. State of Himachal Pradesh [AIR 1993 Himachal Pradesh 7]. This Court categorically found that the Special Marriage Act does not contain any prohibition for solemnisation of the marriage, if one of the parties is a foreigner. Another learned Single Judge of this Court also found to the same effect in Exhibit P5 judgment.

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A reading of the provisions of the Special Marriage Act would also indicate that, Section 4 contemplates, marriage between “any two

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W.P(C).No.19694 Of 2018

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persons” to be solemnized under the Act; if the conditions specified therein are fulfilled. To satisfy the officer of the conditions stated therein, the intending bride has produced Ext.P2 issued by the Local Register Office of the West Uusimaa at Finland. The status of the said person is shown as single and it is also specifically declared that according to Finnish law there is no impediment to the proposed marriage. It was on the strength of the above document that Ext.P3 application was given by the petitioner herein to register the marriage.

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On the strength of public notice bearing No.R.R.6/23638/2014 dated 21.10.2014 produced along with Ext.P4 the learned Government Pleader would seek to support the rejection made by the 3rd respondent. The learned Government Pleader contends that there is no Marriage Officer appointed by the Government of India in the Embassy of India at Finland and there is no provision for sending a communication as required under sub-section (3) of Section 6 of the Act.

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A reading of the said notice would indicate that as per the Special Marriage Act, 1954 diplomatic and consular officers of the Embassies of India, abroad were appointed as Marriage Officers under the Special Marriage Act. The opinion of the Government expressed in Ext.P4 is that on a foreign citizen seeking registration of marriage with an Indian citizen, within the territories of India, the Government could get confirmation on the status of such foreign citizens from such Marriage Officers appointed in the Embassy. However, by introduction of Foreign Marriage Act, 1969, the provision for making Rules with respect to the diplomatic and consular officers and others as provided in Section 50 of the Act of 1954 was taken away. In such circumstance, there are no marriage officers as of now appointed by the Government of India, abroad. It was in such circumstance that now the public notice at Ext.P4 was issued, by which it is indicated that the Government is endeavouring to make suitable amendments, to facilitate the marriage of Indian citizens with foreign citizens within the territories of India.

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Essentially a marriage cannot be kept in abeyance only by reason of such law having not been introduced. Then Foreign Marriage Act, 1969 is: “An Act to make provision relating to marriages of citizen of India outside India”. Here the petitioner, an Indian citizen intends a marriage with a foreigner within the territory of India. Further in Ext.P4 public notice, the decision in Rajeev v. State of Kerala [2001 (1) KLT 578], produced as Ext.P6 has been noticed. The declaration in the aforesaid decision remains as such even now, as per the existing law, being the Special Marriage Act; section 6 of the Act, requires that when either of the parties to an intended marriage is not permanently residing within the local limits of the marriage officer, then the marriage officer of the district in which the other party has the

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residence should be informed of the marriage. This would operate only within the territories of India. The foreign citizen is not residing within India.

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The public notice proceeds on a completely wrong premise. The absence of a provision, for enabling Government of India to appoint Marriage Officers in its embassies abroad only disables an Indian citizen residing abroad from entering into a marriage in the Indian Embassy of that country in which he resides. Also if an Indian citizen residing abroad enters into a marriage, within the territories of India, then probably there would be a requirement of sending the intimation to the Marriage Officer appointed in the Embassy at the place of residence of such Indian citizen to ensure that he does not enter into another marriage. But in the context of there being no Marriage Officers appointed, there can be no marriage contracted at the Embassy. (The reference to territory of India in this judgment is to the territories within its physical boundaries as distinguished from the Embassy in a foreign land.)

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That is not the issue which has to be considered at present. A foreign citizen seeks to enter into a marriage with an Indian citizen within the territories of India. The foreign citizen has produced a document by which her status is clearly stated to be single. The application has been made by an Indian Citizen, the petitioner; who has permanent residence within the jurisdiction of the 3rd respondent. The Marriage Officer even if appointed in the Embassies abroad, would have no authority to conduct the marriage of a citizen of that country; unless it be contracted with an Indian Citizen.

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In such circumstance, the application of the petitioner at Ext.P3 shall be accepted and notice shall be given by the 3rd respondent as required under the Act and the petitioner shall be permitted to contract the marriage as intended by him which shall be solemnised by the 3rd respondent as per the provisions of the Special Marriage Act.

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The Writ petition is allowed.”

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5. Accordingly, this Court is of the view that the matter in this

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case is essentially covered in favour of the petitioner by virtue of the dictum of law laid down by this Court in the decisions as in Rajeev v.

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State of Kerala , reported in 2001 (1) KLT 578 and Vivian Varghese v. State of Kerala , reported in 2015 (3) KLT 21, etc. Accordingly, it is ordered

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W.P(C).No.19694 Of 2018

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that it is for the petitioner to ensure that necessary application in the prescribed proforma is submitted in the matter of request for solemnization of the marriage of the petitioner with the above referred lady and thereafter the respondent-Registrar shall give notice as required under the provisions of the Special Marriage Act and the petitioner shall be permitted to contract the marriage as proposed by him, which shall be solemnized by the respondent-Registrar as per the provisions of the Special Marriage Act. Necessary action in this regard should be ensured by the respondent-Registrar without much delay and immediately on presentation of the application by the petitioner for the intended marriage.

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

Sd/-

Bkn/-

// True copy //

P.A to Judge.

C.S.Sujith v. Sub Registering Officer/Marriage Officer

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C.S.Sujith v. Sub Registering Officer/Marriage Officer

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