Disposed

Priya Lo J., v. State of Kerala

Kerala HC4 Dec 2018WP(C)/37514/2018

Case brief

AI extract

What is this about?

This writ petition sought a direction for the respondent Marriage Officer to solemnize the petitioners' marriage under the Special Marriage Act. The court directed a local enquiry to confirm the second petitioner's residence. Upon confirmation of six-year residence, the court dismissed the requirement for notice transmission under Sec. 6(3) but directed the Marriage Officer to expedite solemnizati

What did the court decide?

Direction to the 2nd respondent Marriage Officer to consider the notice and expeditiously solemnize and register the marriage without further delay within three weeks.

Priya Lo J., Vs State of Kerala — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940

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WP(C).No. 37514 of 2018

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PETITIONER/S:

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1 PRIYA LO J., AGED 19 YEARS D/O JOSEPH LO, MATTATHIL HOUSE, KUMBALAM, PANANGAD.P.O, ERNAKULAM, PIN- 682 506.

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2 ASIM BARI, AGED 25 YEARS S/O. NOUSHAD MANDAL SHIRAMPUR, KUPPILA, MURSHIDABAD, W/BENGAL, NOW RESIDING AT HOUSE NO. 7/326, MATTATHIL HOUSE, PANANGAD P.O, KUMBALAM, ERNAKULAM, PIN 682 506.

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BY ADV. SRI.K.K.RAJEEV

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RESPONDENT/S:

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1 STATE OF KERALA

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REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, MARADU, ERNAKULAM, PIN 682 304.

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3 ADDL.R3 VILLAGE OFFICER KUMBALAM, PANANGAD, ERNAKULAM DISTRICT. (ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 19/11/2018)

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OTHER PRESENT:

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SMT.A.C.VIDHYA,GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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W.P.(C).No. 37514 of 2018

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==================

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Dated this the 4^th day of December, 2018

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J U D G M E N T

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The prayers in this Writ Petition (Civil) are as follows:

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“i) To issue a writ of mandamus or order or direction directing the 2^nd respondent to solemnize the marriage of the petitioners and issue marriage certificate under the Special Marriage Act forthwith.

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ii) To issue a writ of mandamus or any other appropriate order or direction directing the 2^nd respondent to consider Ext.P4 in the light of Ext. P2 and P3 which would sufficiently proves the 2^nd petitioners place of residence during the period of notice of intended marriage and even prior to that since 2012 and solemnize the marriage on the date (24/11/18) convenient as stated in Ext P4 and issue marriage certificate in the ends of justice.

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iii) To issue such other order or direction as this Honourable Court may deem fit and proper to grant in the facts and circumstances including cost of this case.”

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Heard Sri.K.K.Rajeev, learned counsel appearing for the

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petitioners and Smt.A.C.Vidhya, learned Govt. Pleader appearing for the respondents.

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The 1^st petitioner, Priya Lo.J. is a permanent resident of Kerala and the 2^nd petitioner, Asim Bari, though a native of State of West Bengal, is now stated to be settled down in Kerala for the last 6 years in connection with his employment. Exts.P-1 and P-2 are the respective birth certificates of the petitioners evidencing that they have completed more than 19 years and 25 years respectively, etc. The

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W.P.(C)37514/18 - : 3 :-

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petitioners have submitted statutory notice of intended marriage dated 3.10.2018 under the enabling provisions of Special Marriage

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Act, 1954 as referred to in Ext.P-4 for getting their marriage solemnized and registered in accordance with the provisions contained in the Special Marriage Act, 1954 and the rules framed thereunder. The complaint of the petitioners is that even though the statutory period of 30 days have elapsed, after submission of Ext.P-4 statutory notice of marriage, the 2^nd respondent, who is the statutory marriage officer, is not taking any positive steps to get the marriage solemnized and registered as per the said Act. That the 2^nd respondent Marriage Officer has now intimated the petitioners as per Ext.P-6 letter dated 5.11.2018 that as the 2^nd petitioner, Asim Bari, is a permanent resident of State of West Bengal, notice has to be served to the notified Marriage Officer concerned in the State of West Bengal as per Sec. 6(3) of the Special Marriage Act, 1954 and as the 2^nd petitioner is not permanent resident within the ordinary territorial limits of the 2^nd respondent, etc. Sec. 6(3) of the Special Marriage Act, 1954 reads as follows:

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“Sec.6: Marriage Notice Book and publication.-

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(1) .....

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(2)....

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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

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W.P.(C)37514/18 - : 4 :-

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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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When the matter had taken up for consideration on earlier occasion, it was asserted by the petitioners' counsel that the 2^nd petitioner is now permanently residing within the territorial of Kumbalam Village, as evident from Ext.P-2 certificate issued by his employer and Ext.P-3 agreement executed by the 2^nd petitioner with the owner of the rented premises, which has been let to him, etc. Accordingly it is contended by the petitioners that since the 2^nd petitioner is now permanently residing in the State of Kerala for the last more than 6 years, there is no necessity to adhere to the procedure under Sec. 6(3) and that after necessary enuqiries it is the statutory obligation of the 2^nd respondent Marriage Officer to solemnize and register the marriage of the petitioners pursuant to Ext.P-4 notice, etc. Thereupon, this Court had passed order dated 19.11.2018 issuing certain directions, which reads as follows:

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“The learned Government Pleader will get instructions from the 2^nd respondent as to why he is not acting upon Ext.P-4 notice of intended marriage under the Special Marriage Act, 1954 and what are the reasons for the delay in that regard. The 2^nd respondent will also state as to why he is not acting upon Ext.P-2 certificate issued by the employer and Ext.P-3 agreement said to have been executed by the landlord concerned, which according to the 2^nd petitioner would show that he has been residing in Kumbalam Village, Panangad, Ernakulam District, for the last more than 6 years.

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2. The petitioners’ counsel submits that the Village Officer,

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W.P.(C)37514/18 - : 5 :-

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Kumbalam, Panangad, Ernakulam District is a necessary or proper party in these proceedings and the said officer may be suo motu impleaded by this Court. The learned Government Pleader has no serious objection to that course of action. Accordingly, it is ordered that “The Village Officer, Kumbalam, Panangad, Ernakulam District” will stand impleaded as additional respondent No.3 in the W.P(C). Registry will make necessary changes in the cause title.

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3. The 3^rd respondent-Village Officer, Kumbalam will conduct an enquiry and ascertain whether the 2^nd petitioner has been residing in Kumbalam, for the last more than 6 years as stated by him and may also conduct a local enquiry and ascertain the correctness of Ext.P-2 certificate issued by the employer and Ext.P-3 agreement said to have been executed by the landlord. The learned Government Pleader will immediately make available a copy of this W.P(C) to R-2 & R-3. R3Village Officer may also ascertain from the competent police authorities/SHO concerned as to whether the 2^nd petitioner is a resident of Kumbalam Village for the last 5-6 years. The 3^rd respondent-Village Officer will complete the enquiry as aforestated, within 10 days and file a report before this Court.”

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In compliance with this Court's order dated 19.11.2018, the 3^rd respondent Village Officer has filed a report dated 24.11.2018, which has been produced along with a memo of the learned Government Pleader and the said report dated 24.11.2018, reads as follows:

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" ബഹ�മ�നപ�ട ഹഹക��ടത� മ�ൻപ�പ� ബഹ�� ഹഹക��ടത�യ�പട WPC No. 37514/18(L) പ� 19-11-2018 ത�യത�യ�പ� ഉതരവ� പപ��ര� ��മള� വ�ക� ജ ആഫ�സർ സമർ��ന ക'റ)പമൻറ -

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��മള� വ�ക� ജ�ൽ പനങ�ട ക/ശത) മറത�ൽ വ�ട�ൽ കജ�സഫ മ�ൾ പപ�യയ�� , പശ�മ ബ�ഗ�ൾ സ5ക/ശ�യ�� ഇക��ൾ ��മള� പനങ�ട പപവർത��ന ഹനസ കബ�റ� ജ�വന��രന�മ�യ അസ��ബ�ര�യ�� തമ��ള വ�വ�ഹവ�മ�യ� ബനപ�ട) കമൽ ഉതരവ�പപ��ര� വ�ശ/മ�യ അകന5ഷണ� നടത�� ഉണ�യ� . പശ� . അസ��ബ�ര� എനയ�ൾ �ഴ�ഞ ആറ വർഷത�ന കമപ�യ�യ� ��മള� വ�ക� ജ�ൽ പനങ�ട ക/ശത) വ�ട�യ�) ത�മസ�ചF പ��ണ) ��മള� ��കമ�ത) ജ�ഗഷന�ൽ സ�ത� പIയFന NICE BAKERY യ�ൽ പസയ�ൽസ മ�ൻ ആയ� കജ�� കന�� വര�ന� . ട�യ�ൻ 28-09-2018 ൽ പശ� . രകമശൻ , മ�ടത�ൽ , പനങ�ട എന വKക�യ�പട ��മള� പഗ�മപഞ�യത�ൽ ന�ന�� 7 / 326 എന നമർ ഇട�ടFള വ�ട�നപറ പട�ഞ�റ ഭ�ഗ� വ�ട�യ�) ത�മസത�ന�യ� എട�ത�ടFമ�ണ) എന�� അകന5ഷണത�ൽ അറ�യ�ന� എന�ള വ�വര� അറ�യ�ചF പ��ളFന� .”

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From a perusal of the abovesaid report of the 3^rd

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W.P.(C)37514/18 - : 6 :-

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respondent Village Officer, it can be seen that it has been clearly found by him that the 2^nd petitioner is employed as salesman in a bakery mentioned in Ext.P-2 and that he is residing for the last 6 years within the territorial limits of Kumbalam and that the 2^nd petitioner is residing in a rented building in Kumbalam Village, etc. In these circumstances it is only to be held that the inquiry by the competent Revenue officials has clearly disclosed that the 2^nd petitioner is now permanently settled in the State of Kerala for the last 6 years or so. Hence there is no necessity to adhere to the special procedure contained in Sec. 6(3) of the Marriage Act. Secs.5 and 14 of the Special Marriage Act, 1954, read as follows:

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“Sec.5: Notice of intended marriage- When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

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Sec.14: New notice when marriage not solemnized within three months.- Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.”

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It is now submitted by Smt.A.C.Vidhya, learned Govt.

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W.P.(C)37514/18 - : 7 :-

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Pleader appearing for the respondents that Sec. 5 notice of intended marriage referred to Ext.P-4 said to have been submitted on 3.10.2018 by the petitioners was a defective one and that a proper notice without defects was filed by them only 4.10.2018. Even if that be so, 30 days' period therefrom has elapsed long ago. Further the maximum outer limit of 3 months from the submission of Sec. 5 notice of intended marriage has not so far expired. Accordingly, it is ordered that the 2^nd respondent Marriage officer will expeditiously take steps to consider the request made by the petitioners pursuant to their Sec. 5 notice of intended marriage and will grant such request if it is otherwise in order, so as to effectuate solemnization and registration of the marriage of the petitioners in terms of the provisions contained in the Special Marriage Act, 1954, without any further delay. The petitioners will appear before the 2^nd respondent Marriage Officer on any day within two weeks from the date notified for receiving certified copy of this judgment and then may also produce necessary documents like Exts.P1 and P-2 certificates, identity cards and they may also submit separate affidavits giving the details that they have fulfilled all the eligibility conditions for solemnization of the marriage as per the abovesaid Act, etc. Necessary action should be finalised by the 2^nd respondent Marriage

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W.P.(C)37514/18 - : 8 :-

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Officer without much delay, preferably within a period of 3 weeks from the date of production of a certified copy of this judgment.

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With these observations and directions, the above Writ Petition

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(Civil) stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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W.P.(C)37514/18

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: 9 :-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE	COPY OF	THE	BIRT	H CERTIF	ICATE OF THE
	1ST FOR K	PETITIONER ODAIKANAL	IS MUNI	SUED CIPA	BY THE LITY DATD	COMMISSIONER 2-3-2015
EXHIBIT P2	TRUE EMPLO DATED	COPY OF YER SHOWI 13-10-201	THE NG 8	CERT THAT	IFICATE I THE 2N	SSUED BY THE D PETITIONER
EXHIBIT P3	TRUE 2ND P 2018	COPY OF T ETITIONER	HE R AND	ENT HIS	AGREEMENT LANDLORD	BETWEEN THE DATED 28-09-
EXHIBIT P4	TRUE DATED	COPY OF T 3-10-2018	HE N OF	OTICE SPEC	OF INTEN IAL MARRI	DED MARRIAGE AGE ACT 1954
EXHIBIT P5	TRUE RECEP PETIT	COPY OF TION A IONER'S RE	THE RRAN SIDE	INV GED NCE	ITATION DATED	FOR MARRIAGE 25-11-2018
EXHIBIT P6	TRUE ISSUE PETIT	COPY OF D BY THE IONER	THE 2N	NO D RE	TICE DAT SPONDENT	ED 5-11-2018 TO THE 1ST

Priya Lo J., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Priya Lo J., v. State of Kerala

Case brief

What is this about?

What did the court decide?

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