Allowed

Aswin P P v. the Sub Registrar, Chelannur

Kerala HC11 Jul 2023WP(C)/12142/2023

Case brief

AI extract

What is this about?

The High Court directed the Sub Registrar to register the petitioner's marriage under the Special Marriage Act, rejecting the requirement for a Bachelorhood Certificate that the Philippine authorities could not issue, accepting an apostilled affidavit as sufficient proof.

What did the court decide?

The petition was allowed; Ext. P12 was quashed; the 1st respondent was directed to register the marriage by accepting the affidavit and apostilled documents instead of a Bachelorhood Certificate or NO

Aswin P P Vs the Sub Registrar, Chelannur — Matrimonial and Divorce | Kerala HC (2023)

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WP(C) NO. 12142 OF 2023

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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.V.KUNHIKRISHNAN

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TUESDAY, THE 11^TH DAY OF JULY 2023 / 20TH ASHADHA, 1945

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WP(C) NO. 12142 OF 2023

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PETITIONER/S:

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ASWIN P P AGED 32 YEARS ASWIN P.P, S/O PRABHAKARAN, 32 YEARS, 12/56 PUSHPAPRABHA HOUSE, CHELANNUR 7/6 PO, KOZHIKODE DISTRICT,, PIN - 673616

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BY ADVS. A.K.PREETHA V.T.RAGHUNATH C.V.RAJALAKSHMI

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RESPONDENT/S:

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1 THE SUB REGISTRAR, CHELANNUR THE SUB REGISTRAR CHELANNUR, SUB REGISTRAR'S OFFICE, CHELANNUR PO, KOZHIKODE, PIN - 673616

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2 THE DISTRICT REGISTRAR, KOZHIKODE THE DISTRICT REGISTRAR KOZHIKODE, OFFICE OF THE DISTRICT REGISTRAR, MANANCHIRRA, KOZHIKODE, PIN - 673001

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3 INSPECTOR GENERAL OF REGISTRATION INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM, PIN - 695035

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4 STATE OF KERALA STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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BY ADV ADVOCATE GENERAL OFFICE KERALA

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WP(C) NO. 12142 OF 2023

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OTHER PRESENT:

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SRI. B.S.SYAMANTAK, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 12142 OF 2023

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P.V.KUNHIKRISHNAN, J

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W.P.(C.) No. 12142 of 2023

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Dated this the 11^th day of July, 2023

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JUDGMENT

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The above writ petition is filed with following prayers :

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“a) Call for the records of the 1st respondent leading up to Ext. P12 and to issue a writ of Certiorari or other writ, direction or order quashing Exts. P12 and P13

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b) Issue a writ of mandamus or other writ, direction or order directing the 1^st respondent to register the marriage between the petitioner and ESTRELLA JOY GUADALUPE POBLADOR as per the application submitted on 06.10.2022 by the petitioner. c) Dispense with the statutory period of one month for registration of the marriage and d) Pass any other orders that this Hon'ble court deem fit to grant.”[SIC]

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The petitioner is an Indian citizen. He got acquainted with a female Philippine national namely Estrella Joy Guadalupe Poblador. It is submitted that a female child is already born in the wedlock. Now, the petitioner and the said Estrella Joy Guadalupe Poblador have decided to enter into a

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WP(C) NO. 12142 OF 2023 4

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wedlock in accordance with the Special Marriage Act, 1954. Parents of both of the parties have given free consent and offered all co-operation for the marriage. It is also the case of the petitioner that they have obtained all the necessary certificates and documents from various authorities and departments of Republic of Philippines so as to enable them to register the marriage in India under the Special Marriage Act. It is also submitted that satisfying all the requirements, the petitioner and his fiancee submitted the application for registration of marriage before the 1^st respondent. But the 1^st respondent is not prepared to proceed with the application and to register the marriage. Hence, this writ petition.

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Heard the learned counsel for the petitioner and the learned Government Pleader.

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The main grievance of the respondents is that the petitioner has not produced the bachelorhood certificate. This Court in Joel K Yoyakkim v. Sub Registrar (Marriage Officer) Pampady and others [2022 (1) KHC 851] considered this point in detail. It will be better to extract the relevant portion in detail.

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WP(C) NO. 12142 OF 2023

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7. “The learned counsel for the petitioner urged that when the Foreign Country does not issue / refuse to issue a Bachelorhood Certificate or Single Status Certificate to an overseas Citizen of India, the authorities in India cannot refuse registration of marriage on that ground. The only legally possible alternative for Miss Jeeva Joy to prove her Single Status was to get a declaration from a competent Attorney abroad. Miss Jeeva Joy has obtained such a declaration as per Ext.P8, which has duly Apostilled by her Majesty's Principal Secretary of State for Foreign, Commonwealth and Development Affairs, as is evidenced by Ext.P9. In the circumstances, the 1st respondent is compellable to solemnise and register the marriage of the petitioner and Miss Jeeva Joy invoking the Special Marriage Act, 1954.

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8. The learned Government Pleader vehemently opposed the prayers in the writ petition. The learned Government Pleader submitted that in view of the Circular dated 27/11/2019 issued by the Home Ministry of Union Government, NOC and Bachelorhood Certificate from the Embassy of the country of the spouse is to be insisted for registration of marriage. There are general observations of this Court also insisting that if an Indian Citizen wants to marry a foreign citizen, a Single Status Certificate from the Embassy is required. In such circumstances, the Government of Kerala has issued Ext.P4 Circular dated 26/07/2021 making it clear that for registration of such marriages, NOC and Bachelorhood Certificate issued by the Foreign Embassy shall be insisted. In view of the above, the marriage of the petitioner with Miss Jeeva Joy cannot be solemnised in the absence of NOC and

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WP(C) NO. 12142 OF 2023

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Bachelorhood Certificate.

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9. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents.

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10. Miss Jeeva Joy is a British Citizen. She holds an Overseas Citizen of India Card. Miss Jeeva Joy intends to marry the petitioner. In view of Ext.P4 Circular dated 26/07/2021, the Marriage Officer insists production of NOC and Bachelorhood Certificate from the Foreign Embassy. Miss Jeeva Joy approached the Foreign Embassy in order to obtain the NOC and Bachelorhood Certificate. Ext.P6 Information Note dated 31/07/2013 issued by the British High Commission, New Delhi, would show that only the Courts in England and Wales can recognise a marriage under the English and Welsh law which has taken place in a foreign jurisdiction. Whether the Court will recognise such a marriage depends on two independent factors being satisfied separately: the parties must have capacity to marry and they must comply with the form of marriage. Capacity to marry is governed by the law of each party's domicile. The usual rule in terms of the form of marriage is that if a marriage is valid under local law, the marriage will be recognised in English and Welsh law. If the use of local form of marriage is impossible, the marriage will be recognised if the marriage is celebrated in accordance with the requirements of the English and Welsh common law. A matter which goes to both capacity and form is consent. No marriage is valid by law of either party's domicile if one party does not consent to marry the other.

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11. S.4 of the Special Marriages Act, 1954 provides that for

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WP(C) NO. 12142 OF 2023 7

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solemnisation of the marriage under the Act, a mandatory condition is that neither party has a spouse living. The problem faced by the petitioner is that the British Embassy does not issue the Certificate insisted by the respondents. Ext.P7 Information Note dated 12/05/2015 issued by the British High Commission, New Delhi, would indicate that the Rules of English law regarding domicile are extremely complex and consular staff are not qualified to assess or verify the domicile of an individual, nor are consular staff able to verify the country of domicile, place of residence, identity of an individual, marital status or criminal antecedents of a British National wishing to marry in India. It is therefore, obvious that Miss Jeeva Joy cannot obtain any Certificate relating to her marital status from the British Embassy.

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12. It is in such circumstances that the petitioner has made Ext.P8 Single Status declaration before a Competent Solicitor of the Supreme Court Authorised to Administer Courts on 10/01/2022. The declaration made in the presence of the Solicitor of the British Supreme Court has been Apostilled also by Her Majesty's Principal Secretary of State for Foreign, Commonwealth and Development Affairs, London as per Ext.P9.

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13. This Court is of the view that if a Foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage. This is for the reason that no one can be compelled to achieve an impossible task. In this case the petitioner has produced Ext.P8 Single Status

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WP(C) NO. 12142 OF 2023 8

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Statutory Declaration apostilled as evidenced by Ext.P9. In the circumstances, refusal to solemnise and register the marriage by the intending parties, would result in grave injustice. In the circumstances, the writ petition is disposed of directing the 1st respondent to accept Exts.P8 and P9 documents submitted by the petitioner and his bride Miss Jeeva Joy and proceed to solemnise and register the marriage, if all other conditions are satisfied.” [SIC]

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In the light of the same, I think the marriage is to be registered in accordance with the provisions of the Special Marriage Act on furnishing a notarized affidavit showing that they have no disqualification. Today, it is submitted that a fresh notice of intended marriage is submitted through online and a physical copy of the same is already served to the 1^st respondent. If that is the case, the prayers in this writ petition can be allowed.

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Therefore, this writ petition is allowed in the following manner :

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Ext.P12 is quashed.

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There will be a direction to the 1^st respondent to register

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the marriage between the petitioner and Estrella Joy

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WP(C) NO. 12142 OF 2023 9

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Guadalupe Poblador as per the application submitted by the petitioner on 11.07.2023 in accordance with Special Marriage Act without insisting the Bachelorhood certificate and Non objection certificate from the Philippine authorities on furnishing an affidavit by the petitioner and her fiancee.

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SD/-

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P.V.KUNHIKRISHNAN JUDGE

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SKS

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WP(C) NO. 12142 OF 2023

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APPENDIX OF WP(C) 12142/2023

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PETITIONER EXHIBITS

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Exhibit	P1 TRUE COPY OF THE RELEVANT PAGE OF HIS PASSPORT SHOWING PETITIONER'S DATE OF BIRTH DATED NIL
Exhibit	P2 TRUE COPY OF THE CERTIFICATE OF LIVE BIRTH ISSUED BY THE OFFICE OF THE CIVIL REGISTRAR GENERAL OF THE PHILIPPINES STATISTICS AUTHORITY OF THE REPUBLIC OF PHILIPPINES DATED NIL
Exhibit	P3 TRUE COPY OF THE RELEVANT PAGE OF PASSPORT OF ESTRELLA JOY GUADALUPE POBLADOR DATED NIL
Exhibit	P4 COPY OF THE CERTIFICATE OF LIVE BIRTH OF THE TIONA JOY GUDALUPE PRABHAKARAN ISSUED BY THE CIVIL REGISTRAR GENERAL OF REPUBLIC OF PHILIPPINES DATED 27.08.2018
Exhibit	P5 TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT OF THE TIONA JOY GUDALUPE PRABHAKARAN DATED NIL
Exhibit	P6 TRUE COPY OF THE INDIAN E-VISA IN RESPECT OF THE TIONA JOY GUDALUPE PRABHAKARAN DATED NIL
Exhibit	P7 COPY OF THE AFFIDAVIT OF PARENTAL CONSENT ISSUED BY THE PARENTS OF ESTRELLA JOY GUADALUPE POBLADOR EXECUTED AND SIGNED BEFORE AND ATTESTED BY NOTARY PUBLIC IN PHILIPPINES DATED 20.9.2022
Exhibit	P8 TRUE COPY OF CERTIFICATE DT. 22.06.2022 ISSUED BY CIVIL REGISTRAR GENERAL OF PHILIPPINES STATISTICS AUTHORITY OF THE REPUBLIC OF PHILIPPINES
Exhibit	P8(a) TRUE COPY OF APOSTILLE CENOMAR CERTIFICATE OF NO MARRIAGE DATED 30.06.2022 ISSUED BY

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WP(C) NO. 12142 OF 2023

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		THE DEPARTMENT OF FOREIGN AFFAIRS OF PHILIPPINES DATED 30.6.2022
Exhibit	P9	TRUE COPY OF CERTIFICATE OF AUTHENTICATION DT. 18.10.2022 ISSUED BY THE EMBASSY OF THE REPUBLIC OF THE PHILIPPINES AT NEW DELHI DATED 18.10.2022
Exhibit	P10	TRUE COPY OF APOSTILLE BIRTH CERTIFICATE DATED 30.06.2022 CERTIFYING THE DATE OF BIRTH OF ESTRELLA JOY GUADALUPE POBLADOR
Exhibit	P11	TRUE COPY OF THE INDIAN E-VISA ISSUED BY THE INDIAN EVISA.GOV.IN TO ESTRELLA JOY GUADALUPE POBLADOR DATED NIL
Exhibit	P12	TRUE COPY OF LETTER NO. C112/2022 DATED 25.10.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER
Exhibit	P13	TRUE COPY OF DEPARTMENTAL CIRCULAR NO. J3/80/2021/TAX DT.26.07.2021
Exhibit	P14	TRUE COPY OF AFFIDAVIT OF THE PETITIONER DATED 09.12.2022
Exhibit	P15	TRUE COPY OF AFFIDAVIT SWORN BY PETITIONER'S FIANCE' ESTRELLA JOY GUADALUPE POBLADOR DATED 9.12.2022
RESPOND	ENT EXHIBITS
Exhibit	R1(a)	True copy of communication issued by the Embassy of Republic of the Philippines

Aswin P P v. the Sub Registrar, Chelannur

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Aswin P P v. the Sub Registrar, Chelannur

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