Madras High Court
E.Natarajan vs The State Rep By on 18 December, 2015
Bench: P.R.Shivakumar, S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.12.2015
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
and
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
H.C.P(MD)No.1722 of 2015
E.Natarajan .. Petitioner
Vs.
1.The State Rep by
The Superintendent of Police,
Pudukkottai District.
2.The Inspector of Police,
Mandaiyur Police Station,
Pudukkottai District.
3.S.Arockiasamy @ Xavier
4.The Sub Registrar,
District Registrar's Office,
Trichirappalli, Trichy Joint I,
[R-4 suo motu impleaded as per the order of this Court dated 14.12.2015 made
in H.C.P.(MD).No.1722 of 2015] ..
Respondents
PRAYER
Petition filed under Article 226 of the Constitution of India to
issue a Writ of Habeas Corpus, directing the respondents 1 and 2 to produce
the body or person of the petitioner's wife namely Maria Prito, aged about 20
years, before this Court and set her at liberty.
!For petitioner : Mr.S.Titus
For respondent Nos.1,2&4 : Mr.R.Ramachandran
Additional Public Prosecutor
For Respondent No.4 : Mr.D.Rameshkumar
:ORDER
[Order of the Court was made by P.R.SHIVAKUMAR, J.
E.Natarajan, residing at No.1/109, Aalankudi Village, Kulathur Taluk, Pudukkottai District, has filed this Habeas Corpus Petition seeking the production of Maria Prito and to set her at liberty based on his averment that he married Maria Prito on 29.10.2015 and the memorandum of marriage was also registered with the Sub-Registrar, Joint I, in the office of the District Registrar, Trichirappalli; that after the marriage, his wife - Maria Prito went to her parents' house on 03.12.2015 to convey the message that she was pregnant; that thereafter, on the same day at about 10.00 PM, Maria Prito contacted him over cellphone and informed him that the third respondent, who is none other than the father of Maria Prito and her elder sister's husband, had beaten her and were compelling her to cause miscarriage of her pregnancy and that under the said circumstances, she requested the petitioner to rescue her from the custody of the third respondent and the sister's husband of Maria Prito. In this regard, before notice, as ordered by this Court to the third respondent, was served and in particular before steps to serve notice on the third respondent were taken, Maria Prito herself appeared in this Court, not on the date fixed for hearing, but before the said date. On enquiry, this Court entertained a doubt regarding the factum of marriage and also the validity of marriage. This Court also noticed the irregularity committed by the Registering Authority, namely, the Sub Registrar. Hence, the Registering Authority was suo motu impleaded and arrayed as the fourth respondent in the Habeas Corpus Petition. For achieving clarity and to make this order full-fledged order, the entire order passed on 14.12.2015 is re- produced hereunder:-
"The alleged detenu - Maria Prito D/o.Arockiasamy @ Xavier has been produced by the Inspector of Police, Mandaiyur Police Station, Pudukkottai District (the second respondent). Maria Prito states that she is still a Christian and she married the petitioner on 29.10.2015. A copy of the certificate of registration of marriage under the Tamil Nadu Registration of Marriages Act, 2009 has been produced. As per the statement of Maria Prito, the only formality observed in the marriage was tying of a ?Thali? by the petitioner in the presence of the Sub Registrar and signing the memorandum and registers in the Sub Registrar's Office. However, the marriage certificate recites that the marriage was first solemnized at Arulmighu Sakthi Vinayakar Temple, Cantonment, Trichy and thereafter the memorandum declaring their marriage came to be registered on the very same day by the Sub Registrar in the Office of the District Registrar, Tiruchirappalli.
2. This Court came across a number of such certificates of registration of marriage issued by the very same Sub Registrar. The fact that no marriage took place prior to the registration of the memorandum declaring their marriage, as revealed by the statement of Maria Prito, makes it clear that the Sub Registrar concerned has not verified the factum of marriage with reference to proof of such marriage. Even if it is assumed for the argument sake that a customary marriage as per the Hindu custom took place prior to the registration of the memorandum of marriage, the Sub Registrar ought to have verified the particulars of the parties and formed an opinion as to the validity or otherwise of the marriage so as to properly exercise his power of either registering or refusing to register the memorandum of marriage.
3. The Hindu Marriage Act, 1955 (Act 25 of 1955) applies to the marriage between ?two Hindus? and it does not apply to inter religious marriage. Section 2 of the Hindu Marriage Act, 1955 reads as follows;
?2.Application of Act.- (1) This Act applies -
(a)to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c)to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a)any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(c)any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-Section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3)The expression ?Hindu?in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.?
Sub clause (1)(a) of Section 2 is to the effect that it applies to any person who is a Hindu by religion in any of its forms or developments. While describing the term ?Hindu? clause (c) excludes a person who is a Muslim, Christian, Parsi or Jew by religion. Section 5 of the Hindu Marriage Act, 1955 says that a marriage may be solemnized between two Hindus if certain conditions are fulfilled. Therefore, it makes it clear that the Hindu Marriage Act, 1955 is applicable to a marriage between two Hindus, in other words, to a marriage when both parties to the marriage are Hindus.
4. Section 4 of the Indian Christian Marriage Act, 1872 reads as follows;
?4.Marriages to be solemnized according to Act.- Every marriage between persons, one or both of whom is or are a Christian, or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.?
5. A comparative reading of Section 4 of the Indian Christian Marriage Act, 1872 and Section 5 of the Hindu Marriage Act, 1955 will make it clear that if any customary marriage under the Hindu Law is to be valid, it shall be between two Hindus alone. If any one of the two parties to the marriage is a Christian by religion, then the Hindu Marriage Act will not apply, even though the other party may be a Hindu and the Indian Christian Marriage Act 1872 alone will apply. As per the Section 4 of the Indian Christian Marriage Act, 1872, the marriage solemnized not in accordance with the Indian Christian Marriage Act, 1872, shall be void, if at least one of the parties to the marriage is a Christian. However, it has not been given overriding effect against the General Marriage Law viz., the Special Marriage Act, 1954 (Act 43 of 1954).
6. The Special Marriage Act, 1954 has been given overriding effect by the opening words of Section 4 which starts with the non obstante clause which reads as follows;
?Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if the conditions prescribed therein are fulfilled.?
7.The procedure contemplated for the solemnization of marriage under the Special Marriage Act is as follows;
(i)the parties intending to solemnize marriage under the Act should give a notice thereof in writing in the prescribed form 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 30 days immediately preceding the date on which such notice is given;
(ii) Such notice shall be entered in the book called 'Marriage Notice Book' which is open to the inspection of persons desirous of inspecting the same. In addition, the Marriage Officer shall also cause publication of the notice by affixture in a conspicuous place in the Office and also transmit a copy of the notice to the Marriage Officer of the other District within whose jurisdiction the other party to the intended marriage is residing and also to the Marriage Officer of the District in whose limits a party to such marriage is permanently residing;
(iii) Objections can be raised and the Marriage Officer has to decide the objections; and
(iv) Only after the expiration of 30 days from the publication of the notice, if there is no objection, the parties can solemnize the marriage under the Special Marriage Act. In case any objection is raised, it shall be decided by the Marriage Officer and such decision shall be subjected to appeal.
8. In the case on hand, the Sub Registrar ought to have directed the parties to approach the Marriage Officer under the Special Marriage Act and the procedure contemplated under the Special Marriage Act, 1954 ought to have been followed. The Sub Registrar concerned, without following the appropriate procedure, seems to have readily accepted the memorandum of declaration of the marriage and issued the certificate of registration of marriage under the Tamil Nadu Registration of Marriages Act, 2009. As pointed out supra, the very same Sub Registrar has issued a number of such certificates and as it has been brought to the notice of the Court that such certificates are arranged by a local legal practitioner, we feel that something is wrong in the Office of the said Sub Registrar. Hence, we do hereby suo motu implead ?the Sub Registrar, District Registrar's Office, Tiruchirappalli (Trichy Joint I) as the 4th respondent in this petition and direct the issuance of notice to the said Sub Registrar through the second respondent.
9. Coming to the facts of the case, the petitioner has come forward with the petition trading wild allegations against the third respondent viz., the father of the Maria Prito, as if he was illegally detaining her. The petition has also been filed as if there was a valid marriage between himself and Maria Prito. We have directed notice to be issued to the third respondent. However, without taking steps to issue notice to the third respondent, Maria Prito seems to have appeared before the Police and thus, she has been produced before this Court. We do have our own doubt as to the bona fide of the petition, since the production of Maria Prito has been made behind the back of the third respondent, that too without serving notice to him. Hence, we further direct that the notice shall be served on the third respondent and the impleaded party (fourth respondent) through the second respondent for their appearance on 18.12.2015.
10.Post the matter for hearing on 18.12.2015, till then Maria Prito shall be kept in ?Sakthi - Vidiyal Home?, 21, Kennet Nagar, Muthupatti East, Madurai ? 625 003 and she shall be produced before the Court on that day by the second respondent".
2. Today, after service of notice, the third respondent - S.Arockiasamy @ Xavier is present along with his counsel Mr.D.Rameshkumar. The petitioner - E.Natarajan and his counsel - Mr.S.Titus are also present. Maria Prito is also present. As directed by this Court, the Sub-Registrar, District Registrar's Office, Trichirappalli, Trichy Joint I, who has been impleaded as the fourth respondent by the order of Court, has also come to this Court in obedience to the direction issued by this Court and he has also brought the file relating to the registration of the memorandum of marriage that allegedly took place between the petitioner and Maria Prito. On perusal of the file, we are able to find that the fourth respondent failed to act diligently in verifying the particulars before registering the memorandum of declaration of marriage as contemplated under the Tamil Nadu Registration of Marriages Act 2009. Section 7 of the said Act makes it incumbent on the Registering Authority to verify the particulars before registering the memorandum of marriage.
3. In the case on hand, the fourth respondent seems to have readily accepted the memorandum, without causing verification of the facts mentioned therein. Though a document, namely, marriage invitation card was produced, such marriage invitation card does not contain the name of the printing press in which it was printed. Furthermore, in serial No.7 of the memorandum of declaration of marriage, which is meant for writing the date of marriage, nothing has been mentioned and the column provided for the same has been left blank. Without even verifying the memorandum as to the vital aspect, namely, the date of marriage, the fourth respondent seems to have registered the memorandum of marriage. Time of registration of the memorandum of declaration of marriage has also not been noted.
4. Apart from the same, the Registering Authority is supposed to satisfy himself prima facie that a marriage, in fact, took place and the said marriage was a valid marriage. The petitioner - E.Natarajan is a Hindu. Maria Prito, admittedly, is a Chiristian. Even in the memorandum of declaration of marriage, her religion has been noted as "Christian". As pointed out in the earlier order of this Court, which has been re-produced supra, if any of the parties to the marriage is a Christian, the marriage shall be solemnized either in accordance with the Indian Christian Marriage Act, 1872 or in accordance with the Special Marriage Act 1954. All special marriages under the Special Marriage Act 1954 should have been registered by the Registrar of Marriage. The alleged marriage between the petitioner and Maria Prito was not solemnized either in accordance with the provisions of the Indian Christian Marriage Act, 1872 or in accordance with the Special Marriage Act 1954. The Hindu Marriage Act, 1955 will apply to marriages between two Hindus alone. So far as the inter-religious marriages are concerned, either it shall be under the Special Marriage Act, 1954 or under the Indian Christian Marriage Act, 1872 if one or both of the parties to the marriage is a Christian or are Christians. The inter-religious marriages between a male Muslim and a female Hindu is recognized under the Muslim Personal Law, which is called as "Muta Marriage". Even if one of the parties to the marriage happens to be a Muslim, in case the other party to the marriage is a Christian, then the marriage shall be solemnized either in accordance with the provisions of the Indian Christian Marriage Act, 1872 or in accordance with the Special Marriage Act, 1954. An official, who is not thoroughly conversant with the Marriage Laws of the land, has been allowed to act as Registrar of Marriages under the Tamil Nadu Registration of Marriages Act 2009.
5. We take pain to note that the registration of such marriages are done casually and in fact, a series of similar registrations by another Registrar of Marriage, namely, Sub-Registrar Rayapuram, Chennai came to be noticed by a Division Bench of the Madras High Court in H.C.P.No.2767 of 2013 batch, dated 17.10.2014 and the Division Bench came down heavily upon the said Registering Authority. Now we have come across yet another case of the Registering Authority casually dealing with the registration of the memorandum of declaration of marriages. While we disapprove the manner in which the fourth respondent acted not only in this case, but also in a couple of similar cases, which also came to this Court, we are constrained to direct that a copy of this order shall be marked to the Inspector General of Registration for necessary action and for issuing suitable instructions to the Registrars of Marriage throughout the State.
6. In the background of the aforesaid observation, we have also considered the Habeas Corpus Petition on merits. The alleged detenu - Maria Prito has come with a statement that she herself was able to come out of the clutches of her father, namely, the third respondent and her sister's husband. However, the third respondent, who is present in Court, states that he has not kept her under custody. But, the way in which he posed himself before this Court when Maria Prito made a statement in his presence that the third respondent arranged for her custody under the husband of her elder sister, the third respondent confronted her by posing a question whether he himself accompanied her. The reply of Maria Prito was that her junior paternal uncle took her to Karur and made her to be in the custody of her elder sister's husband.
7. Now, Maria Prito is not in the custody of anyone. She is aged about 19 years and her date of birth is 01.01.1996 as revealed from the entry made in the Transfer Certificate a copy of which has been produced along with the petition. When we enquired Maria Prito, she made it clear that she was a major and she was not prepared to go with her father and on the other hand, she would prepare to go with the petitioner as per her own choice.
8. Since Maria Prito is a major, we cannot compel her to go with her father, even though we are convinced with the fact that the alleged marriage between the petitioner and Maria Prito is not proved to be valid.
9. In view of the aforesaid finding, we have no other alternative than to close the Habeas Corpus Petition holding that Maria Prito, who is not under the custody of anyone, is free to move anywhere, according to her own choice. Accordingly, the Habeas Corpus Petition is closed.
To
1.The Superintendent of Police, Pudukkottai District.
2.The Inspector of Police, Mandaiyur Police Station, Pudukkottai District.
3.The Inspector General of Registration, Chennai.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..