Gujarat High Court
Nidhi W/O Milind Bhatt vs State Of Gujarat on 9 January, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/19647/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19647 of 2019
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NIDHI W/O MILIND BHATT
Versus
STATE OF GUJARAT
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Appearance:
A R PATEL(7352) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 09/01/2020
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioner for the purpose of rectification and/or issuance of fresh marriage certificate of the petitioner. The prayer clause 6(A) reads as under:-
"6(A) To direct the Respondents to permit the Petitioner either to rectify the memorandum of marriage or to file a fresh memorandum of marriage and consequently, direct the Respondents to issue a fresh marriage certificate (reflecting the correct date of marriage, i.e. 27.01.2018) and cancel the existing marriage certificate dated 18.12.2017 (Annexure-5);"
[2] Learned advocate appearing for the petitioner submits that the petitioner entered into a marriage with her husband as per Hindu Rites and Rituals, who is Permanent Residence permit holder of Germany and is permanently residing there. It is submitted that the marriage was fixed as per the wishes of the family members of both husband and wife and was scheduled to be undertaken on 11.12.2017. However, on the very day i.e. on 11.12.2017, in the midst of the ceremony, the grand-father of the groom was taken seriously ill and was admitted to hospital and Page 1 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER therefore, remaining ceremony could not be completed and the marriage was not performed and ultimately, on 17.12.2017, the grand-father of the groom passed away. It is after that the remaining marriage ceremony is scheduled and the same was performed on 27.01.2018.The subsequent ceremony was also performed by publishing fresh invitation cards for the relatives and friends. The actual marriage ceremony was performed on 27.01.2018. It is submitted that for the purpose of facilitating the travel of the petitioner as wife of a Permanent Residence permit holder of Germany, the procedure for registration of marriage was also undertaken on the basis of marriage ceremony which had commenced on 11.12.2017. Based on such documents, the marriage certificate is also issued and at the relevant time on account of prevailing situation of cancellation of postponement of marriage and sudden hospitalization of the grand-father of the groom, who ultimately expired, family members did not realize the consequences of the application already made for registration of marriage and the certificate was already issued.
[2.1] It is submitted that when the petitioner was to travel Germany to join the husband at the time of Visa formalities, the invitation card which was published for the rescheduled marriage formed the part of the documents which caught the attention of the German Consulate General which issued a letter dated 18.06.2018 to indicate the discrepancies in the date of marriage which is appeared on the marriage certificate as 11.12.2018 and the actual date of marriage is 27.01.2018. it is on account of this communication that the petitioner was inclined to start the proceedings for issuing fresh marriage certificate, reflecting the correct date of marriage as 27.01.2018.
Page 2 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER[3] Learned advocate for the respondent No.2 states that the issuance of marriage certificate which is now sought to be cancelled has been issued on the basis of documents which are produced by the petitioner. The necessary documents are valid and complete and therefore, there is no mistake on the part of the respondent to carry out any rectification for which there is no power. It is submitted that an application dated 11th December, 2017 was submitted by the petitioner as well as her husband Mr.Milind for registration of their marriage solemnized on 11.12.2017 at Junagadh along with documents including Certificate of Priest, Invitation Card (Kankotri) and their own affidavits. It is submitted that necessary procedure was followed and a Certificate of Registration of Marriage was issued on 18.12.2017. It is submitted that after nearly 1 year and 6 months, an application dated 25.06.2019 was addressed by the present petitioner to the Respondent No.2 requesting that as such marriage was not solemnized on 11.12.2017 due to death of a close relative on 17.12.2017 and later on it was solemnized on 27.01.2018 and therefore, a new Certificate be issued.
[3.1] It is submitted that as such the application itself was not only misleading, but contrary to the facts and material on record. It is reiterated that the marriage was solemnized on 11.12.2017 as per the application as well as documents enclosed thereto and Registration Certificate was issued on 18.12.2017. It is submitted that in this factual background, the contents of the application dated 25.06.2019 contending that a close elderly family member has passed away on 17.12.2017 and therefore, the marriage could not be solemnized is unheard of. It is submitted that considering the factual background as well as the provisions of Act, it was thought fit to reject the said application moved after more than one and half years vide order dated 03.07.2019.
Page 3 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER[3.2] It is further submitted that the petitioner herein thereafter preferred Special Civil Application No.13130 of 2019 and the Hon'ble Court was kind enough to pass the order dated 29.08.2019, directing the authorities to consider the application dated 25.06.2019 as an application under Rule 7 of the Gujarat Registration of Marriages Rules. 2006 and take appropriate decision. It is submitted that the same was challenged before the Hon'ble High Court of Gujarat by way of filing Letters Patent Appeal No.1650 of 2019 by the Respondent No.2 and it was disposed of by the Hon'ble Court vide order dated 20.09.2019.
[3.3] it is submitted that subsequently the petitioner herein was addressed a letter dated 24.09.2019 to personally remain present and submit her case within a period of 7 days. It is submitted that after considering the facts and material on record as well as relevant provisions of the Act and the rules framed thereunder, it was thought fit to reject the said application through a reasoned order dated 27.09.2019. Further, the said order is now under challenge by way of present Special Civil Application. It is stated that as such there is no justification on part of the present petitioner for issuance of a new Marriage Registration Certificate referring the date of marriage as 27.01.2018. It is stated that as such the petitioner and her husband had jointly applied on 11th December, 2017 with all relevant documents for registration of their marriage and after following due procedure a Marriage Registration Certificate was issued on 18.12.2017. It is submitted that the facts narrated in the application submitted after more than one and half years are contrary to the facts narrated in application dated 11.12.2017 and the documents attached thereto. It is stated that as such the petitioner is trying to mislead the authority to serve her purpose. It is submitted that neither the facts nor the provisions of the Act and the rules framed Page 4 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER thereunder permit the Respondent No.2 to accept the application of the petitioner.
[4] The Court has heard the learned advocates for the parties and perused the documents placed on record. The petitioner is living in Junagadh and her marriage was scheduled to take place on 11.12.2017 with Mr. Milind Bhatt who was a Blue Card visa holder of Germany (now, a Permanent Residence permit holder of Germany) and is working there as a software engineer. On the same day, i.e. on 11.12.2017, the pre-marriage ceremony I.e. engagement ceremony as well as the marriage ceremony both were panned and this type of performance of engagement ceremony as well as marriage ceremony on one and the same day is not uncommon. However, after the engagement ceremony was performed on 11.12.2017, the bridegroom's grandfather Mr. Mulshankar Bhatt (aged about 81 years) who was supposed to travel from Surat to Junagadh along with his wife to attend the marriage ceremony, suddenly got sick. The said grandfather Mr. Mulshankar Bhatt was Immediately admitted at Pramukh Swami Hospital, Surat. Therefore, after performing the pre-marriage ceremony / engagement ceremony, it was decided to postpone the marriage ceremony (which was later rescheduled to 27.01.2018). The grandfather Mr. Mulshankar Bhatt succumbed to his ill health and ultimately expired on 17.12.2017. The grandfather Mr. Mulshankar Bhatt succumbed to his ill health and ultimately expired on 17.12.2017. However, not knowing that the marriage ceremony would be postponed and out of anxiety to have the passport with the name and surname of the husband, the petitioner had already prepared an application dated 11.12.2017 for registration of marriage (reflecting the date of marriage a 11.12.2017) and submitted the same to the Respondent No.2-Registrar. Accordingly, the Respondent No.2- Page 5 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER Registrar issued the Marriage Certificate dated 18.12.2017 showing therein the date of marriage as on 11.12.2017. Thereafter, the marriage ceremony actually took place on 27.01.2018.
[5] Subsequent to the marriage, the petitioner applied on 22.02.2018 to the Consulate General of the Federal Republic of Germany, Mumbai ("Consulate General") for obtaining visa of Germany for the purpose of family reunion. The petitioner, in the interview, also informed the aforementioned facts and circumstances to the Consulate General and nothing was suppressed. However, the Consulate General insisted that since the marriage ceremony had in fact taken place on 27.01.2018, the petitioner's marriage certificate should also reflect the same date (i.e. 27.01.2018) as the date of marriage. The Consulate General vide communication dated 18.06.2018 rejected the petitioner's visa application dated 22.02.2018 on the ground that the petitioner's marriage certificate contained wrong information and therefore the same was invalid. Thereafter, the petitioner addressed a clarifitcatory letter dated 27.06.2018 to the Consulate General, explaining that the pre-marriage ceremony was performed on 11.12.2017, that the grandfather-in-Iaw got ill and expired on 17.12.2017, that thereafter the marriage ceremony was actually performed on 27.01.2018.
[6] On 28.6.2018, the petitioner second time applied for visa to the Consulate General for the purpose of family reunion. However, the same was also rejected by the Consulate General vide communication dated 09.08.2018 on the ground that earlier the petitioner's application was rejected due to false infomation in the marriage certificate, that the petitioner has applied again with the same documents and therefore, valid marriage is not Page 6 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER proven and no legal basis for the intended family reunion. Thereafter, on 20.09.2018, the petitioner got the marriage certificate apostilled (attested) from the Ministry of External Affairs, New Delhi so as to establish the legality and validity of the marriage certificate.
[7] On 26.09.2018, the petitioner again applied for visa to the Consulate General for family reunion alongwith the apostille of the marriage certificate. However, the Consulate General vide communication dated 29.11.2018 again rejected the petitioner's visa application on the same ground as mentioned in earlier communication dated 09.08.2018 and also refused to consider the apostille of the marriage certificate.
[8] In view of the aforesaid circumstances, the petitioner preferred an application dated 25.06.2019 before the Respondent No.2-Registrar for correction in marriage certificate for the purpose of changing the date of marriage from 11.12.2017 to 27.01.2018. The respondent No.2-Registrar by communication dated 03.07.2019, rejected the petitioner's application dated 25.6.2019.
[9] From the record, it appears that the application for registration of marriage came to be issued on an application (Annexure-4) dated 11.12.2017. Such application was annexed with the necessary documents like birth certificate, school leaving certificate, Aadhar Card, invitation card, certificate of the priest and necessary affidavits. On the basis of such application, certificate of registration came to be issued vide No.1727 dated 18.12.2017 (Annexure-5). The documents indicate that the petitioner had annexed documents which included the invitation card which mentioned the marriage ceremony from 09.12.2017 Page 7 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER to 11.12.2017. However, it is also on record that the ground- father of groom namely Mulshankar Parshottam Bhatt was on the very day was taken seriously ill and was hospitalized. From the averments made in the affidavit and not being controverted, the Court is inclined to believe that the grand-father of the groom fallen seriously ill and was required to be hospitalized and as result of such serious illness has expired on 17.12.2019. Annexure-3 to the petition is the death certificate of the grand- father of the groom-Mulshankar Parshottam Bhatt. On this document on record, the Court is inclined to believe the averments made in the petition in this regard.
[10] It appears that on account of the death in the family of the groom, the marriage ceremony which was scheduled on 11.12.2017, obviously could not be concluded and hence, the marriage ceremony was required to be rescheduled and with the agreement of all concerned, including both families, marriage was rescheduled on 27.01.2018 which is evidenced from the invitation card produced alongwith the petition at Annexure-6.
[11] It is obvious that the certificate issued by the respondent cannot be said to be a certificate which has been erroneously issued in fact the certificate issued which is now sought to be cancelled/rectified has been issued on the basis of an application made by the petitioner herself and the information provided by her. On the other hand, the situation and circumstance which arose on account of sudden death in the family also has resulted in a situation as existed in the present case, where the certificate is issued correctly on the basis of information supplied by the petitioner, but it is also equally true that the marriage was not in fact solemnized on 11.12.2017, which is completely attributable to the prevailing situation at the relevant time that is arising out Page 8 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER of death of a close family member. It is pertinent to note her that after the death of the family member, the marriage has been rescheduled and the ceremony of marriage was concluded thereafter, on 27.01.2018.
[12] In the opinion of the Court, the certificate of marriage is only recording of a fact of marriage and it is the party to the marriage which is a best person to declare the date on which the marriage is performed. Considering the averments made in the petition on affidavit and considering the documents on record, the Court is of the view that the marriage of the petitioner was solemnized on 27.01.2018.
[13] In the situation as arisen in the present case, it cannot be said that the respondent authority is at fault in taking the impugned decision. The respondent No.2 was within his power to issue the certificate and was also within his power to pass the impugned order dated 27.09.2019 as there is no provision of law which can enable the respondent No.2 to take cognizance of the facts prevailing and to entertain an application of the petitioner to rectify the marriage certificate. At this stage, the Court is bound to invoke Article 226 of the Constitution of India to overcome the situation faced by the petitioner which prevents the petitioner from co-habiting with her husband in Germany.
[14] The petitioner is left without remedy as on the one hand it cannot be said that respondent No.2 has fallen in error for invoking writ of mandamus, on the other hand, the date of marriage in the marriage certificate does not reflect the date of marriage accordingly. This is attributable to the factual prevalent circumstances in which petitioner has no role to play. It is this situation which the Court deems it fit to invoke Article 226 of the Constitution of India for remedy a situation.
Page 9 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020 C/SCA/19647/2019 ORDER[15] In the peculiar facts and circumstances of the case, the Court deems it to be a fit case to interfere and direct the respondent No.2 to quash and set aside the impugned order dated 27.09.2019 and direct the respondent No.2 to cancel the certificate of marriage No.1727 dated 18.12.2017. At the same time, permitted the petitioner to make a fresh application with all the necessary details about the ceremonisation of marriage on 27.01.2018. The respondent No.2 shall consider such application afresh and treat the same to be made in time without being influenced by the fact of issuing earlier certificate as the same is treated to be cancelled and the decision dated 27.09.2019, which is ordered to be quashed and set aside and issue fresh certificate of marriage.
[16] With the aforesaid, the present petition stands allowed. Direct service is permitted.
(A.Y. KOGJE, J) SIDDHARTH Page 10 of 10 Downloaded on : Sun Feb 16 15:40:14 IST 2020