Kerala High Court
Fini.M.Lasar vs State Of Kerala on 29 January, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940
WP(C).No. 2215 of 2019
PETITIONER/S:
1 FINI.M.LASAR,
S/O.M.V.LASSAR, VILLA 7, SAAV ESTATES,
RAJIV GANDHI ROAD, KAKKANAD, ERNAKULAM.
PERMANENTLY RESIDING AT MULLAKAMOILLY HOUSE,
SREEMOOLANGARAM, ALUVA, ERNAKULAM-683 580.
2 MINI JACOB,
D/O.JACOB ARACKAL, PERMA ARACKAL HOUSE, VYTHIRI,
WAYANAD-673 576.
PRESENTLY RESIDING AT 8904 JODY LANE, DESCPLAINES,
CHICAGO, UNITED STATE OF AMERICA.
BY ADVS.
SRI.C.HARIKUMAR
SRI.RENJITH RAJAPPAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE INSPECTOR GENERAL OF REGISTRATRION,
VANCHIYOOR, THIRUVANANTHAPURAM-695 035.
3 THE MARRIAGE OFFICER,
SUB-REGISTRAR OFFICE, THRIKKAKARA, ERNAKULAM-682 021.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.C.No.2215/2019 2
JUDGMENT
The petitioners are aggrieved by the refusal on the part of the 3 rd respondent Notified Marriage Officer to solemnize their marriage on the ground that the 2nd petitioner is a citizen of the United States of America and that the marriage between a citizen of India and a foreign citizen cannot be solemnized and registered in accordance with the provisions of Special Marriage Act, 1954 (hereinafter referred to as 'Act', for short).
2. The prayers in the above writ petition are as follows:
" i) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction commanding the 3nd respondent to solemnize and register the marriage of the petitioners after 01.02.2019.
ii) Issue such other and further reliefs as this Hon'ble Court may be deem fit and proper in the facts and circumstances of the case."
3. Heard Sri.C.Harikumar, learned counsel for the petitioners and Sri.Saigi Jacob Palatty, learned senior Government Pleader for the respondents.
4. Both the petitioners are divorcees and have not remarried after the dissolution of their first marriage. The 1st petitioner (proposed bridegroom) is a citizen of India and is now settled in India, whereas 2 nd petitioner, though a person of Indian origin has subsequently acquired W.P.C.No.2215/2019 3 citizenship of the United States of America and is now settled in that country in connection with her employment. The 2 nd petitioner was initially living in Australia with her first husband and later her marriage was duly dissolved as per a decree of the Family Court at 150 Terrace Road, Perth in Australia. Ext.P3 is the certificate of divorce dated 29.04.2007, which has been apostilled by the Department of Foreign Affairs and Trade, Perth, Western Australia and the said certificate was duly filed in the Circuit Court of Cook County, Illinois, U.S.A in docket No.07F05277 by Jeffrin Scaria Georege, the former husband of the 2 nd petitioner. The said court had acted upon the said certificate of divorce and authenticated Ext.P3 as per Ext.P4 proceedings dated 22.05.2007. Now as aforestated the 2nd petitioner is settled in U.S.A after having obtained citizenship of that country.
5. Petitioners have now filed Ext.P5 notice of intended marriage dated 01.01.2019 under Section 5 of the Act before the 3 rd respondent Notified Marriage Officer. The grievance of the petitioners is that they could reliably learn from the officials of the 3 rd respondent that as per the circular issued by the Inspector General of Registration, pursuant to certain norms by way of Government Orders issued by the State Government, it has been stipulated therein that marriage of a citizen of India with a foreign citizen cannot be solemnized and registered in accordance with the provisions of the Act and that both the parties should W.P.C.No.2215/2019 4 necessarily be citizens of India to avail the benefit of solemnization and registration of marriage under the Act. It is in the light of these factual aspects the petitioners filed the instant writ petition with the adore- mentioned prayers.
6. The matter in issue is no longer res integra and is covered fully against the respondents and in favour of the petitioners on the basis of the dictum laid down by this Court in a series of cases as in Rajeev v. State of Kerala [2001(1) KLT 578], Vivian Varghese v. State of Kerala [2015(3) KLT 21] and Prasyanth Sreenivasan v. Sub-Registrar, Alapuzha [2018(3) KLT 545], wherein this Court has held in no uncertain terms that there are no provisions whatsoever in the provisions of the Special Marriage Act, 1954, which prohibit marriage between an Indian citizen and a foreign citizen and the administrative circulars issued in that regard by the Department of Registration not to solemnize such a marriage between a citizen of India and a Foreign citizen as per the Special Marriage Act have also been quashed by this Court as ultra vires and unenforceable. Ext.P6 is also one such judgment rendered on 04.01.2019 by this Court in W.P.(C).249 of 2019 wherein the same legal position has been reiterated in no uncertain terms. Accordingly, it is only to be ordered and declared that the stand of the respondents that the marriage between a citizen of India and a Foreign citizen cannot be solemnized under the provisions of the Special Marriage Act, 1954 is illegal, ultra vires and W.P.C.No.2215/2019 5 unenforceable.
7. The petitioners would assert that both of them fulfill all the eligibility conditions as laid down by the Special Marriage Act, 1954 and that they have not incurred any other disqualification for marriage as per that Act. In the light of these aspects, it is ordered that the 3 rd respondent Marriage Officer will accept Ext.P5 notice of intended marriage dated 01.01.2019 filed under Section 5 of the Special Marriage Act, if it is otherwise in order and their marriage may be solemnized and registered by the 3rd respondent in accordance with the provisions of the Act immediately after completion of 30 days time limit after submission of notice of intended marriage. It is also ordered that the petitioners may submit separate sworn affidavits attested before a notary public stating the details of their first marriage and also details of the divorce decree obtained by them and that they are not subsequently remarried and that they fulfill all the eligibility conditions prescribed by the Act and that they have not incurred any disqualifications for marriage under the Act. So also petitioners may ensure that separate sworn affidavits of at least two witnesses from each of their side are submitted before the 3 rd respondent Marriage Officer stating the details of their personal knowledge with each of the petitioners and as to the factum of respective divorces of the petitioners and that they are not re-married and that they are eligible and not disqualified for the solemnization and registration of marriage as per W.P.C.No.2215/2019 6 the provisions of the Act.
With these observations and directions, the above writ petition is disposed of.
Sd/-
ALEXANDER THOMAS
DG JUDGE
W.P.C.No.2215/2019 7
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE FRONT PAGE OF THE
PASSPORT OF THE 2ND PETITIONER.
EXHIBIT P2 THE TRUE COPY OF THE CERTIFICATE OF
REGISTRATION AS OVERSEAS CITIZEN OF INDIA
OF THE 2ND PETITIONER DATED 07/10/2010.
EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE OF DIVORCE
DATED 29/04/2007.
EXHIBIT P4 THE TRUE COPY OF THE NOTICE OF FILLING OF
FOREIGN JUDGMENT IN DOCKET NO.07DO5277
DATED 22.05.2007.
EXHIBIT P5 THE TRUE COPY OF THE NOTICE OF INTENDENT
MARRIAGE PUBLISHED BY THE MARRIAGE OFFICER,
THRIKKAKARA DATED 01/01/2019.
EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT IN
WP(C)NO.249/2019 OF THIS HON'BLE COURT
DATED 04/01/2019.