Dismissed

Aiswarya Suresh v. State of Kerala

Kerala HC4 Aug 2021WP(C)/14832/2021

Case brief

AI extract

What is this about?

Petitioners sought directions to solemnize their marriage immediately despite failing to pay the prescribed registration fee until after the 30-day waiting period mandated under the Special Marriage Act. The Court held that fees must accompany the notice for it to be valid, rendering the claim without merit and dismissing the writ petition.

What did the court decide?

Petitioner's claim for immediate solemnization of marriage was dismissed as the notice was defective due to late payment of fees.

Aiswarya Suresh Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2021)

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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 P.B.SURESH KUMAR

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WEDNESDAY, THE 4^TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943

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WP(C) NO. 14832 OF 2021

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PETITIONER:

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1 AISWARYA SURESH AGED 28 YEARS D/O SURESH KUMAR K.P, KONATHUMEKKATHIL MAMMOOD, NOORANAD, ALAPPUZHA DISTRICT-690 504.

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2 JOSEPH SIMON, AGED 29 YEARS, S/O SIMON, NISHA BHAVANAM, KIDANGAYAM, PANDALAM, PATHANAAMTHITTA DISTRICT-690 525

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BY ADVS. R.RAJESH (VARKALA) M.KIRANLAL T.S.SARATH MANU RAMACHANDRAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT , REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR, ALAPPUZHA, 1ST FLOOR, COLLECTORATE, ALAPPUZHA DISTRICT688 001.

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3 THE DISTRICT REGISTRAR, REGISTRATION COMPLEX, NEAR IRON BRIDGE, ALAPPUZHA DISTRICT-688 011.

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4 THE SUB REGISTRAR/MARRIAGE OFFICER, OFFICE OF THE SUB REGISTRAR, NOORANAD, ALAPPUZHA DISTRICT-690 504.

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BY ADV VINITHA B, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 14832 OF 2021

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W.P.(C) No.14832 of 2021

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J U D G M E N T

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The first petitioner is stated to be working as a Nurse in Saudi Arabia and the second petitioner is stated to be a person doing business in India. The petitioners belong to different religions. It is stated that on 11.06.2021, the petitioners have given notice of their intended marriage in terms of the Special Marriage Act, 1954 (the Act) to the fourth respondent, the Marriage Officer under the Act. It is also stated that since the petitioners could not remit the fee prescribed for giving notice of the intended marriage on 11.06.2021, the fees was remitted later on 09.07.2021. The case set out by the petitioners in the writ petition is that despite lapse of 30 days from the date on which notice of the intended marriage was given, the Marriage Officer is not permitting solemnization of the marriage. It is alleged by the petitioners that the first petitioner has to leave the country on 05.08.2021 and if the first petitioner leaves the country before the solemnization of the marriage, the first petitioner may not be able to obtain visa for the second

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WP(C) NO. 14832 OF 2021

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petitioner to join her in Saudi Arabia. The petitioners, therefore, seek directions to the fourth respondent to register their marriage on or before 04.08.2021.

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2 . A statement has been filed in the matter on behalf of the fourth respondent. It is stated in the statement that the not ices of the intended marriage are now given only through online mode; that the petitioners have not given the notice of the intended marriage on 11.06.2021 and that they have given the notice only on 09.07.2021 along with the requisite fee. It is also stated that since notice of the intended marriage along with the requisite fee was given only on 09.07.2021, the marriage can be solemnized on or after 09.08.2021 only.

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3 . Heard the learned counsel for the petitioners as also the learned Government Pleader.

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4 . The learned counsel for the petitioners asserted that the petitioners have submitted notice of the intended marriage online on 11.06.2021. He relied on Ext.P1, a copy of the notice stated to have been given, in support of the said stand. It is, however, conceded by the learned counsel that the requisite fee was remitted by the petitioners only on 09.07.2021. According to the learned

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WP(C) NO. 14832 OF 2021

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counsel, once the notice is given, fee can be remitted at any time before the marriage. The learned counsel attempted to substantiate the said stand, placing reliance on the copies of the relevant pages of the web portal in which noti ces are now permitted to be uploaded. The learned counsel has also argued that the Rules framed under the Act, viz, the Kerala Special Marriage Rules, 1958 (the Rules), only prescribe that the fee shall be levied for every notice of the intended marriage and it does not say that the same shall be paid along with the notice.

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5 . Per contra, the learned Government Pleader

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asserted that the petitioners have not given the notice of the intended marriage on 11.06.2021, as claimed in the writ petition. It is submitted by the learned Government Pleader that having realised that the notice has not been uploaded from the Akshaya Centre, whom the petitioners have approached for the said purpose, they have submitted notice online along with the fees on 09.07.2021 . The learned Government Pleader has also submitted that the scheme of the Act and the Rules is that the notice of the intended marriage shall be accompanied by the fees prescribed. It was pointed by the learned Government

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WP(C) NO. 14832 OF 2021

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Pleader that in so far as it is admitted by the petitioners that they have remitted the fees only on 9.7.2021, the petitioners are not entitled to the relief claimed in the writ petition.

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6. As noted, while the petitioners assert that they have submitted the notice of the intended marriage on 11.6.2021, the fourth respondent asserts that the notice of the intended marriage was given by the petitioners only on 9.7.2021. It is unnecessary to adjudicate the said factual dispute, for I am of the view that even if the case of the petitioners that they have given the notice of the intended marriage on 11.6.2021, the relief claimed cannot be granted to them. Rule 4 of the Rules reads thus :

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4.(a) Notice of any intended marriage under the Act shall be given in writing in the form specified in the Second Schedule to the Act, to the Marriage Officer by both the parties intending to enter into the Marriage either in person or by registered post.

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(b) Where the notice is delivered in person, the fee prescribed therefor in Rule 10 shall be paid directly in cash to the Marriage Officer. Where the notice is sent by registered post, the fee shall be remitted by money order at the remitter's expense and the receipt issued to the remitter by the post office through which the remittance is made shall be attached to the notice.

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WP(C) NO. 14832 OF 2021

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(c) As soon as the notice has been received by the Marriage Officer, a distinctive serial number shall be entered on it and such number and the date of receipt of the notice shall be attested by the signature of the Marriage Officer. If the notice is in conformity with the requirement of the Act, it shall be entered in the Marriage Notice Book which shall be a bound volume, the pages of which are machine-numbered consecutively, with a nominal index attached. If the notice is not in conformity with the requirements of the Act it shall be got rectified by the parties if they are present, or returned to them by post for rectification and retransmission within a date to be fixed. Every item of rectification shall be attested by both the parties.

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(d) The Marriage Officer may for the purpose of satisfying himself that the parties to a marriage have completed the age specified in Section 4(c) require them to produce birth certificate or any other satisfactory evidence to prove their age.

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In terms of the extracted rule, the fee prescribed for notice shall be paid directly in cash to the Marriage Officer, if notice is given in person and if notice is sent by registered post, the fee shall be remitted by money order and the receipt issued to the remitter by the Post Office through which the remittance is made shall be attached to the notice. It is also evident from the extracted

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rule that the Marriage Officer is obliged to act upon the

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WP(C) NO. 14832 OF 2021

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notice only if the notice is in conformity with the requirement of th e Act. The extracted rule clarifies that if the notice is not in conformity with the requirement of the Act, the defect shall be rectified by the parties if they are present or return to them by post for rectification and retransmission within a date to be fixed. Rule 10 of the Rules prescribes the fee for notice of the intended marriage. It is evident from the aforesaid provision that if notice is given without remitting the fees, the same cannot be considered as one given in conformity with the requirement of the Act. If that be so, the Marriage Officer is not obliged to act upon such notice. Admittedly, the fees to be paid for giving notice of the intended marriage was given by the petitioners only on 9.7.2021. In other words, even if it is accepted that the notice of the intended marriage has been given online by the petitioners on 11.6. 2021, the same was defective and the Marriage Officer cannot be blamed for having not acted upon the same. Sub-section (2) of Section 7 mandates that marriage under the Act shall be solemnized only after the expiration of thirty days from the date on which notice of the intended marriage had been published under sub-section (2) of Section 6. The petitioners have no

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case that the notice of the intended marriage given by them has been published in the office of the fourth respondent on 11.6.2021. The materials indicate that the notice of the intended marriage given by the petitioners was published only on 9.7.2021. The fourth respondent, in the circumstances, cannot be found fault with for having not permitted solemnization of the marriage before 9.8.2021. The writ petition, in the circumstances, is without merits and the same is, accordingly dismissed.

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Sd/P.B.SURESH KUMAR JUDGE

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WP(C) NO. 14832 OF 2021

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APPENDIX OF WP(C) 14832/2021

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PETITIONER EXHIBITS

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Exhibit P1 THE TRUE COPY OF THE APPLICATION DATED 11.6.2021 Exhibit P2 THE TRUE COPY OF THE ACKNOWLEDGMENT UM RECEIPT Exhibit P3 THE TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE. Exhibit P4 THE TRUE COPY OF THE PASSPORT AND VISA BELONGING TO THE 1ST PETITIONER Exhibit P5 THE TRUE COPY COPY OF THE FLIGHT TICKET OF THE 1ST PETITIONER

Aiswarya Suresh v. State of Kerala

Case brief

What is this about?

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Aiswarya Suresh v. State of Kerala

Case brief

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