Allahabad High Court
Smt. Rubi & Another vs State Of U.P. & 3 Others on 16 January, 2015
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 19.12.2014 Judgment delivered on 16.01.2015 Court No. - 7 Case :- WRIT - C No. - 46599 of 2014 Petitioner :- Smt. Rubi & Another Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Rakesh Chandra Yadav Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ramesh Upadhyaya, learned Chief Standing Counsel, Sri Q.H. Siddiqui, learned Chief Standing Counsel-II, Sri S.K. Yadav, learned Additional Chief Standing Counsel and Sri S.S. Shreenet, learned standing counsel for the state Respondents. Sri Rakesh Chandra Yadav learned counsel for the petitioners appeared and made submissions on 2.9.2014.
2. This writ petition has been filed praying for the following relief:
i)issue a writ, order or direction in the nature of mandamus commanding to the respondents to not interfere in the peaceful marriage life of the petitioners, during the pendency of the present writ petition before this Hon'ble Court.
(ii)issue any other, suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iii)award to cost of the petition to the petitioners.
3. Briefly stated the facts of the present case are that the petitioners have filed this writ petition praying for protection as married couple, during the pendeny of the writ petition, on the ground that the petitioners have married with each other as evident from the alleged marriage certificate, issued by Registrar Hindu Marriages, Sub District Etah, Etah (U.P.), a copy of which has been filed as Annexure-5.
4. On 2nd September, 2014 Sri Rakesh Chandra Yadav, learned counsel for the petitioners appeared and made submissions. This Court noticed that the date of birth of petitioner No.2 is 18th August, 1994 as per High School Examination certificate and, as such, he has not attained the minimum age prescribed for marriage. However, in the alleged marriage certificate the date of birth of petitioner No.2 was shown as 25th June, 1991. On these facts this Court passed the order dated 2nd Spetember, 2014 requiring the Registrar Hindu Marriages, District Etah to appear in person or through his counsel to explain the matter. Thereafter on the next date fixed neither the petitioner's counsel appeared nor the Registrar Hindu Marriages appeared. Consequently this Court passed the order dated 25th September, 2014 directing the Registrar Hindu Marriages, Etah to appear in person and submit explanation. An affidavit of compliance of Sri Prem Prakash, Sub Registrar, Etah Sadar was filed. In paragraph 4 of the said affidavit the aforesaid Sub Registrar stated that the alleged marriage certificate of the petitioners is forged and the marriage was not registered. On these facts this Court passed the following order on 14th October, 2014:
1. List has been revised. No one appears on behalf of the petitioner to press this writ petition. Although yesterday, learned counsel for the petitioner was present.
2. Today, in compliance to the order dated 25th October, 2014; an affidavit of compliance of Sri Prem Prakash, Sub-Registrar, Etah Sadar has been filed. In paragraph no.3, he has explained the circumstances in which he could not file earlier affidavit of compliance pursuant to the order dated 2nd September, 2014. Explanation is accepted.
3. Sri Prem Prakash, Sub Registrar, Etah Sadar has produced the record. He stated that at present volume no.5 is running and in which there is no entry of any marriage on 13th August, 2014. In paragraph no.4 of the affidavit, he has stated that the alleged marriage certificate filed by the petitioners dated 13th August, 2014 is a forged paper. The alleged marriage of the petitioners were not at all registered in his office on 13th August, 2014.
4. In view of the aforenoted facts of filing of forged marriage certificate, this Court directs the Principal Secretary of the Registration Department to consider as to whether marriage certificates being issued by the Registrar, Hindu Marriages may be uploaded on Internet in the manner as domicile certificates are issued and uploaded, so as to rule out the possibility of forged marriage certificates and to make convenient to verify such marriage certificates by the persons / authorities concerned. He shall file his personal affidavit in this regard containing appropriate proposal /proposed steps by the next date fixed.
5. List on 10th November, 2014 personal appearance of Sri Prem Prakash, Sub Registrar is exempted on further dates.
5. However, the Principal Secretary of the Registration Department had not filed any affidavit on the date fixed. Consequently a week's further time was granted to him on 10th November, 2014 to comply with the order dated 14.10.2014. On 17th November, 2014 this Court passed the following order:
1. In compliance to the order dated 10th November, 2014 an affidavit of Sri Anil Kumar, Principal Secretary Stamp & Registration , Government of U.P. Lucknow has been filed today in which it is stated that steps are being taken for uploading of marriage certificates by the Registrar. However, it has not been disclosed as to whether any Rules have been framed for compulsory registration pursuant to the direction of Hon'ble Supreme Court in the case of (Smt.) Sheema Vs. Ashwani Kumar, (2006)2 SCC 578 and the order passed in Sheema Vs. Ashwani Kumar (3), (2008) 7 SC 509 para 4 in which it was observed by Hon'ble Supreme Court that draft Rules have been framed by the State of Uttar Pradesh.
2. In view of the above, Principal Secretary (Tax & Registration) / the concerned Principal Secretary of the State Government is directed to file his personal affidavit clearly stating as to whether any Rules have been enacted pursuant to the orders of Hon'ble Supreme Court in the case of (Smt.) Sheema Vs. Ashwani Kumar, and the order passed in Sheema Vs. Ashwani Kumar (3). A copy of the draft Rules and the enacted Rules, if any, shall also be filed along with the affidavit. If the rules have not been framed then the position shall be explained by the said Principal Secretary. 3. As prayed put up on Friday, i.e. on 21st November, 2014.
6. On 21st November, 2014 learned Chief Standing Counsel submitted that he has received instructions from the concerned Principal Secretary i.e. Principal Secretary Woman and Child Development, Government of U.P. Lucknow that exhaustive provisions have been made in the draft rules named 'The Uttar Pradesh Compulsory Marriage Registration Rules' and the enactment of the Rules is in final phase. He also produced a copy of the aforesaid instruction dated 20.11.2014 in which in paragraph 2 it is mentioned as under:
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7. On 28th November, 2014 Sri Q.H. Siddiqui, learned Chief Standing Counsel-IInd assisted by Additional Chief Standing Counsel appeared and filed an affidavit of Renuka Kumar, Principal Secretary, Department of Woman Development, Government of U.P., Lucknow. In paragraph 7 of the affidavit she stated that for making the aforesaid Rules the consent/opinion of the departments namely, Finance Department, Law Department, Personnel Department, Nagar Vikas Vibhag, Panchyati Raj Department and Stamp and Registration Department have already been taken and proceedings for enactment of the aforesaid Rules is in final stage and as soon as the recommendation of the Cabinet is received, the Rule 'The Uttar Pradesh Compulsory Marriage Registration Rules' will be framed/enacted.
8. On 15th December, 2014, learned Additional Chief Standing Counsel has filed an affidavit of Renuka Kumar, Principal Secretary, Department of Woman and Child Development, Government of U.P., Lucknow in which in paragraph Nos. 5,6 and 7 she stated as under:-
5. That in compliance of orders passed by this Hon'ble Court the deponent placed the proposed draft of U.P. Compulsory Marriage Registration Rules, 2014 before the Cabinet on 6.12.2014 at item No. 27 of the agenda. For kind perusal of this Hon'ble Court, a photocopy of the proposed draft of U.P. Compulsory Marriage Registration Rules, 2014 is being filed herewith and marked as Annexure No.1 to this affidavit.
6. That it is also relevant to mention here that the Cabinet deferred the matter of U.P. Compulsory Marriage Registration Rules, 2014 for time being for discussion and study. A photostat copy of order passed by the Cabinet on 9.12.2014, communicated to the answering deponent on 10.12.2014 is being filed herewith and marked as Annexure No.2 to this affidavit.
7. That in view of above, it is expedient in the interest of justice that this Hon'ble Court may kindly be pleased to grant some time for enactment of U.P. Compulsory Marriage Registration Rules, 2014, so that the orders passed by this Hon'ble Court may be complied with in its letter and spirit.
9. Along with the aforesaid affidavit dated 15th December, 2014, the Principal Secretary has filed a copy of "The Uttar Pradesh Compulsory Marriages Rules, 2014" which is reproduced below:
"UTTAR PRADESH SHASAN WOMEN & CHILD DEVELOPMENT DEPARTMENT-1 NO. ......................
Lucknow : Date: 2014
NOTIFICATION
WHEREAS, the Hon'ble Supreme Court of India, in its judgment dated 14.2.2006, in Seema vs. Ashwinikumar [2006 (1) KLT 791 SC], has directed all State Governments to issue Rules for making registration of marriages solemnized in the respective States compulsory irrespective of the religion after calling objection and suggestion;
Whereas marriage is an important and almost universal ritual in the life of the parties, and Procedure of marriage is guided by various legislations related to the faith and religion of the parties. At present there is no compulsion of getting marriage registered in the State of Uttar Pradesh. It has been also observed that lack of registration of marriage deprives the affected individuals specially women in claiming their statutory rights for want of an evidence. The registration process will also ensure strengthening the child marriage cases in the State.
Now therefore, The Governor of Uttar Pradesh in exercise of the powers vested under Article 162 read with Article 154 of the Constitution of India makes "The Uttar Pradesh Compulsory Registration of Marriages Rules, 2014" Rules for its application in the State of Uttar Pradesh hereby notifies for the information of the general public.
1. Short title, extent and commencement-
(1) These Rules may be called The Uttar Pradesh Compulsory Registration of Marriages Rules, 2014.
(2) These Rules shall extend to the whole of the State of Uttar Pradesh.
(3) They shall come into force at once.
2. Definitions-
In these Rules, unless the context otherwise requires,-
(a) "Director General of Registration of Marriage" means Director General Registration of Marriage appointed under Rule 3.
(b) "Local Registrar" means Local Registrar of Marriages (Cumpulsory) appointed under rule 6 and Rule 7.
3. Director General of Registration of Marriage -
The State Government through its notification will appoint a senior official from the Government as Director General of Registration of Marriage (Compulsory).
4. Commissioner Marriages Registration -
The Divisional Commissioner will be Commissioner Marriages Registration for each division and will supervise and review the implementation of these Rules in their respective Division.
5. Deputy Registrar General of Marriage The District Magistrate of each district will be Deputy Registrar General of Marriages and supervise the implementation of these Rules in their respective Districts.
6. District Registrar of Marriages -
The State Government through its notification will appoint District Registrar of Marriages.
7. Sub Registrar of Marriages (Compulsory) The Block Development Officer/ Child Development Project Officer or nominated officials by District Magistrate in consultation with Director General Registrar Marriage shall be the Sub Registrar of Marriages in their respective areas of jurisdiction.
8. Marriages Compulsorily Registrable -
Registration of every marriage or remarriage solemnized between the persons who are citizens of India or one of them shall be citizen of India in the State of Uttar Pradesh after the commencement of this Act shall be compulsory:
Provided that the marriages, the registration of which is compulsory under any other statutory provisions, need not be registered under these Rules and such marriages shall be registered under the respective statutory provisions:
Provided further that marriages, the registration of which is optional as per any other statutory provisions shall be registered under these Rules unless registered under such statutory provisions:
Provided also that the registration of marriages solemnized prior to the date of commencement of these Rules shall be optional.
Provided further also that no marriage shall be deemed to be invalid solely for the reason that such marriage has not been registered under this rule.
9. Jurisdiction -
Marriages shall be registered under these Rules with the District Registrar of Marriage where the bride or bridegroom resides in the state of Uttar Pradesh within the local area of whose jurisdiction the marriage is solemnized.
10. Maintenance of Registrer of Marriages Local Registrar shall maintain a Register of Marriages in Form No. III appended to these Rules.
11. Procedure and time limit for registration -
1.The parties to a marriage shall prepare a memorandum in duplicate in Form No. I appended to these Rules along with two separate sets of photos and shall submit the same to the Local Registrar within a period of Thirty days from the date of solemnization of their marriage.
2.The memorandum of registration of marriages solemnized before the commencement of these Rules may be submitted within a period of one year from the date of commencement of these Rules.
3.The memorandum shall be signed by both the parties to the marriage and two other persons who witnessed the marriage. In the case of a marriage solemnized before a Marriage Officer appointed under any statutory provisions, the entries made in the Register of Marriages or any other register maintained for this purpose and certified by the Marriage Officer and in the case of a marriage solemnized as per religious rites, a copy of the certificate of marriages issued by the religious authority concerned may be a document in proof of the marriage. In cases where the religious authority is not available the memorandum shall be filed together with a declaration from the Gazetted Officer/ Member of Parliament/Member of Legislative Assembly/ Member of a Local Self Government Institutions in Form No. II appended to these Rules or with any other document to prove the solemnization of the marriage to the satisfaction of the Local Registrar.
4.Marriages solemnized after the commencement of these Rules, in respect of which no memorandum is filed within the period of Thirty days and a period of one year has not expired from the date of such solemnization, may e registered subject to sub-rule (3) by the Local Registrar after imposing a fine of rupees one hundred. In such cases the memorandum shall be filed together with a declaration from a Gazetted Officer/ Member of Parliament/ Member of Legislative Assembly/ Member of a Local Self Government Institutions in Form No. II appended to these Rules or with any other document to prove the solemnization of the marriage to the satisfaction of the Local Registrar.
12. Registration of marriages after one year-
Marriages solemnized after the commencement of these Rules in respect of which no memorandum for registration is filed within one year of its solemnization and marriages solemnized before the commencement of these Rules in respect of which no memorandum for registration was filed before the expiry of one year after such commencement shall, subject to sub-rule (3) of Rule 11, be registered, by the Local Registrar on payment of a fine as per sub rule (4) of rule 13. In such cases also the memorandum shall be filed together with a declaration from a Gazetted Officer/ Member of Parliament/ Member of Legislative Assembly/ Member of Local Self Government Institutions in Form No. II appended to these Rules or with any other document to prove the solemnization of marriage to the satisfaction of the Registrar General concerned.
The Deputy Registrar General of Commissioner of Registration of Marriage or Director Registrar General concerned may conduct, if necessary, enquiries, through the Local Registrar or otherwise and give suitable direction to the Local Registrar regarding registration.
13. Registration charges and other fees -
1.A registration fee of Rs. One Hundred shall be payable along with the submission of the memorandum for registration.
2.In cases where the economic status of applying party comes under the purview of Below Poverty Line as decided by the State Government time to time, no registration fee will be charged.
3.The State Government reserve to changes the right any of the charges as and when required.
4.In case of registration of marriage after one year an amount of Rs. One Thousand only will be charged. In cases where the economic status of applying party comes under the purview of Below Poverty Line as decided by the State Government time to time, a fine of Rupees Two hundred and fifty will be charged.
14. Filing of Memorandum and Registrar of Marriages (Compulsory) -
(1) On receipt of a memorandum and the prescribed fee for registration, the Local Registrar shall verify the entries in the memorandum for its accuracy and completeness, and enter the particulars thereof forthwith in the Register of Marriages (Compulsory) maintained by him for this purpose in Form No. III appended to these Rules and affix his signature and seal in the space provided therefore. A certificate of marriage shall be issued to the applicant in Form No. IV appended to these Rules in proof of registration of the marriage within fifteen working days. The Certificate of Marriage should also consist the clear joint photograph of bride and bride groom. The entries relating to each marriage shall be given Registration Numbers consecutively for each calender year and separate registers shall be maintained for each calender year.
(2) Local Registrar may, for reasons to be recorded in writing reject the memorandum for registration if it is not in proper form or not accompanied by the requisite fee and shall intimate the clearly citing the reason to the parties concerned in writing, within a period of 15 days from the date of such rejection. The party may reply through providing requite documents or fee or whatever the case may be to the Local Registrar within Thirty days of the communication.
3.The Local Registrar shall forward the duplicate copies of the memorandum received in a month to the Deputy Registrar General, Commissioner of Registration of Marriage and Director General of Registration of Marriage concerned before the 10th day of every subsequent month. The originals of the memorandum received by the Local Registrar and duplicate copies forwarded to the Deputy Registrar General concerned shall be filed as permanent records.
15. Printing and supply of Forms -
The Director General Registrar of Marriage shall arrange for the printing and supply of Forms and Registrars required for use by Local Registrars coming under their respective areas of jurisdiction.
16.Correction and cancellation of entries -
1.If the Local Registrar is satisfied either suo motu or on application by the parties, that any entry in the Register of Marriages is erroneous in form or substance or has been fraudulently or improperly made, he shall subject to conditions in sub-rule (2), make suitable corrections including cancellation of registration, noting the evidence for such corrections in the margin of the Register of Marriages (Compulsory), without any alteration of the original entry and shall sign the marginal entry with the date of correction of cancellation and shall forward the particulars of the corrections to the Deputy Registrar General concerned.
2.All corrections in material particulars like name, age, date etc., and cancellation shall be done only with the sanction of the Deputy Registrar General concerned:
Provided that no such correction or cancellation shall be made without affording a reasonable opportunity of being heard to the parties concerned.
3.On getting sanction under sub-rule (2), the Local Registrar shall effect the correction or cancellation, as the case may be, in the Register of Marriage.
4.An amount of rupees one hundred shall be charged as fee for making corrections in the Register of Marriages other than clerical mistakes.
5.In every case in which an entry is corrected or cancelled under this Rule, intimation thereof shall be sent to the parties to the marriage and the Local Registrar shall make a report giving necessary details to the Registrar General concerned.
17. Search and obtaining of extracts of the entries -
Any person may upon an application and after remitting a fee of rupees two hundred and fifty only for this purpose, cause a search to be made by the Local Registrar for any entry in the Register of Marriages and obtain a Certificate of Marriage in Form No. IV, appended to these Rules containing an extract of such register. The person concerned should also clearly justify the valid reasons for searching and obtaining of extracts of such entries. The Local Registrar shall certify all such extracts.
18. Consequences of non-registration -
After the commencement of these Rules, the government shall not accept for any purpose, any certificate of marriage issued by any authority other than those authorized under these Rules or under any other statutory provisions. However this provision is not applicable to the marriages solemnized before the commencement of these Rules.
19. Duties of official under "The Uttar Pradesh Compulsory Registration of Marriages Rules, 2014.
(A) Director General Registrar of Marriage : Following would be responsibility of the Director General Registrar of Marriage
1) Have the power to execute all decisions taken by the Office of the Director General of Registrar in order to carry out the power and functions as provided in the rules.
2) Exercise and discharge such powers and perform such duties as are required for the proper administration of the affairs of the Office and its day to day management as specified in the rules.
3) Convene the six monthly meetings of all District Registrar and Sub Registrar of Marriage and serve notices of the meetings to all concerned.
4) Ensure that the procedure of the Office is followed in transaction of its business.
5) Take up all such matters with the Office of the Director General Registrar of Marriage for release of budget, creation of posts, procurement of vehicles appointment of staff and matter requiring approval of the State Government.
6) Exercise all financial powers as are delegated for the completion of the duties as Director General of Registrar of Marriage.
7) Be the appointing and disciplinary authority in respect of officers and other employees of the concerned offices.
8) To serve as final appellate authority in cases of revision and review of the decision, disputes taken against the aggrieved parties.
9) To ensure wider dissemination and publicity of the Compulsory Marriage Registration among the masses.
(B) Commissioner of Marriage: Following would be responsibility of the Commissioner of Marriage.
1) To work in consultation and direction of the Director General of Marriage and Deputy Registrar General of Marriage.
2) Exercise and discharge such powers and perform such duties as are required for the proper administration of the affairs of the Office and its day to day management as specified in the rules.
3) Convene the Six monthly meetings of all Deputy Registrar General and serve notices of the meetings to all concerned.
4) Review the status of registration of marriage in their jurisdiction and ensure implementation of the objectives of the rules.
5) To ensure wider dissemination and publicity of the Compulsory Marriage Registration among in the District.
(C) Deputy Registrar General of Marriage: Following would be responsibility of the Deputy Registrar General of Marriage.
1) Have the power to execute all decisions taken at the District level from the Office of the Deputy Registrar General of Marriage in order to carry out the powers and functions as provided in the rules.
2) To work in consultation and direction of the Commissioner of Registrar at Division level and Director General Registrar of Marriage.
3) Exercise and discharge such powers and perform such duties as are required for the proper administration of the affairs of the Office and its day to day management as specified in the rules.
4) Convene the Quarterly monthly meetings of all Deputy Registrar and Sub Registrar of Marriage and serve notices of the meetings to all concerned.
5) Review the status of registration of marriage in their jurisdiction and ensure implementation of the objectives of the rules.
6) Ensure that the procedure of the Office is followed in transaction of its business.
7) Take up all such matters with the Office of the Deputy Registrar General of Marriage for release of budget and matter requiring approval of the state Government.
8) Exercise all financial powers as are delegated for the completion of the District level.
9) To serve as first appellate authority in cases of revision and review of the decision, disputes taken against the aggrieved parties.
10) To ensure wider dissemination and publicity of the Compulsory Marriage Registration among in masses the District.
D.District Registrar and Sub Registrar of Marriage: Following would be responsibility of the District Registrar and Sub Registrar of Marriage.
1.Have the power to implement all programme of compulsory registration at the District level from the Office of the District Registrar Marriage in order to carry out the powers and functions as provided in the rules.
2.To work in consultation and direction with Deputy Registrar General of Marriage.
3.Exercise and discharge such powers and perform such duties as are required for the proper administration of the affairs of the Office and its day to day management as specified in the rules.
4.Prepare monthly reports and send it to Deputy Registrar General of Marriage and Commissioner of Marriage and Director General Registrar of Marriage.
5.Review the status of registration of marriage in their jurisdiction and ensure implementation of the objectives of the rules.
6.Ensure that the procedure of the Office is followed in transaction of its business.
7.Take up all such matters with the Office of the District Registrar of Marriage for release of budget and matter requiring approval of the state Government.
8.To ensure wider dissemination and publicity of the Compulsory Marriage Registration among in the District.
20. Appeal -
A appeal shall lie to the Deputy Registrar General concerned against any decision of the Local Registrar and such appeal shall be filed within a period of three months from the date of communication of any such decision. However, the Deputy Registrar General concerned may condone the delay on sufficient grounds.
He shall consider the appeal and dispose of the same within a period of sixty days either confirming the decision of the Local Registrar or allow the appeal after hearing the parties concerned.
21. Revision-
A revision shall lie to the Director General registration of Marriage against the decision of the Deputy Registrar General Marriage concerned and such revision shall be filed within a period of three months from the date of communication of such decision.
However, the Director General Registrar General may condone the delay on sufficient grounds. He shall consider the revision and dispose of the same within a period of sixty days either confirming the decision of the Registrar General or allow the revision hearing the parties concerned.
22. Powers of Inquiry -
Director General registration of Marriage or the person designated by him shall all such powers to call for the applicants, objectors and witnesses at such time and place fixed by them for making enquiry to execute their function under these rules which is conferred by Civil Procedure Code.
In cases where false documents have been submitted with memorandum of registration of marriage the State Government may take legal action as per the existing law against the person.
23. Disposal of amount of registration and fine -
The amount which has been charged for registration, fine or any other purpose so far under this rule will be deposited in the account compatible head of Treasury Director General of Registration Marriage and other officials as decided by the State Government.
24. Control and supervision-
All Deputy Registrar General, Commissioner of Marriage, District Registrar and Sub Divisional Registrars shall be under the control and supervision of Director General of Registration Marriage for discharge of their duties under these Rules.
25. Penalty on Public servants-
Those District Registrar and Sub Divisional Registrars who show dereliction of duty in maintaining information of marriage registration shall be liable for department action under their service rules and on this basis they may be liable for dismissal from service.
26. Maintenance of records-
1.District Registrar for Urban Areas and Sub Divisional Registrar for Rural areas shall maintain Marriage Registration Register permanently. It will be the personal responsibility of concerned officials to get it received to his successor in office in writing.
2.The hard copy of the information maintained on computer in the office of Director General Registrar of Marriage and Deputy Registrar of Marriage Registration shall be printed each year and shall be got bound which shall be the permanent record of that office and read as public document within the meaning of the Indian Evidence Act, 1872.
3.Register of Marriage will be kept with care and if required destroyed in as follow.
S.No. Name of the Documents Period (In years) 1 Receipt Book 10 2 Receipt and Communication sent to Director General Registrar of Marriage.
15 3Letter of Request for change in the Marriage Register 15 4 Cash book 15 5 Formats and Accounts 15 6 Marriage Register 60
27. Power of issuing instructions -
The Director General Registration of Marriage may from time to time issue directions to concerned officials for proper implementation of these Rules.
28. Registrar to be the public servant -
Every Registrar and every employee in the office of the Registrar shall, while acting or purporting to act in pursuance of any of the provisions of this Act, be deemed to be a public servant within the meaning of section 21 of Indian Penal Code, 1860 (Central Act No. 45 of 1860).
29. Indemnity -
No suit, prosecution or other legal proceeding shall be instituted against any person for anything which is done or intended to be done in good faith under this Act or the rules made there under.
30. Miscellanies -
The State Government may time to time will review the structures, creation of post, appointment of personnel, training and budget for the purpose.
31. Power to amend rules-
The State Government will have power to amend rules as and when required for better implementation of this rules.
By order of the Governor, (Renuka Kumar) Principal Secretary, Department of Women Welfare, Government of Uttar Pradesh"
10. An affidavit dated 17th November, 2014 of Sri Anil Kumar, Principal Secretary, Stamp and Registration, Government of U.P. Lucknow was also filed through Sri Ramesh Upadhyay, learned Chief Standing Counsel in which it is stated that for uploading marriage certificates on internet a web-based software application is under preparation by National Information Centre (NIC) and the remaining task for uploading the marriage certificate on the internet are proposed to be completed in a phased manner. It has also been stated in the said affidavit that the Department of Stamp and Registration is planning for on line registration of all instruments including marriage certificates and thereby make all registered instruments available online anywhere anytime 24x7 and the software for handling the entire process is under process by the NIC. Finally he stated in paragraph Nos. 11 and 12 as under:
11. That, for undertaking this huge process, the provisions of civil infrastructure for computerization, establishment of a centralized data centre, computerization of the office not computerized so far, networking and provision of high-speed internet, web-based software application and digitization of the backlog data, among other things, are all required to be done.
12. That, the matters regarding computerization of these activities are under active consideration before the Government and are likely to be finalized in a phased manner as early as possible.
Submissions on behalf of the State Respondents
11. Learned counsel for the state respondents on the basis of the affidavits of Principal Secretary, Tax and Registration, Principal Secretary, Woman and Child Development and Sub Registrar, Hindu Marriages, Etah submitted as under:
(i) The alleged marriage certificate of the petitioners filed as Annexure No.5 dated 13th August, 2014 was not issued by the Sub Registrar Hindu Marriages Etah and it is forged.
(ii) The web based software application for uploading marriage certificates on the internet is under preparation by the National Information Centre (NIC) and the establishment of centralized data centre and computerization are proposed to be completed in a phased manner.
(iii) The department of Stamp and Registration is planning for on line Registration of all the instruments including marriage certificates and thereby making all registered instruments available on line any where any time and the software for handling the entire process is under preparation by the NIC.
(iv) The draft rules for enactment of 'The Uttar Pradesh compulsory Marriage Registration Rules' has already been framed in view of the directions of Hon'ble Supreme Court in the case of Seema Vs. Ashwani Kumar (2005)4SCC443 and(2006) 2 SCC 578 as also stated before Hon'ble Supreme Court that the draft rules have been framed which fact was also noted in the order of Hon'ble Supreme Court in the case of Seema Vs. Ashwani (3) (2008) 7SCC 509 para 4.
(v) For enactment of the aforesaid 'The U.P. Compulsory Marriage Registration Rules 2014' the consent/opinion of the concerned departments, namely, Law Department, Finance Department, Personnel Department, Nagar Vikas Vibhag, Panchyati Raj Department, and Stamp and Registration Department have already been taken and the proceedings of enactment of the rules is in final stage.
(iv) The aforesaid draft rules, 2014 was placed before the cabinet on 6.12.2014 after the approval of Chief Minister but it was deferred and, therefore, to enact the aforesaid rule some time may be granted.
Submissions on behalf of the petitioners
12. Learned counsel for the petitioners appeared on 2nd September, 2014 and made his submissions but thereafter he had not made any submission.
Discussions and findings
13. It is wholly undisputed that the date of birth of petitioner No.2 is 18th August, 1994 as per High School Examination Certificate-2010 and he has not attained the minimum prescribed marriageable age under Section 4 of Special Marriage Act, 1954 or under Section 5 of the Hindu Marriage Act,1955. It is also undisputed that the whole story of the petitioners about their marriage is based on the alleged marriage certificate dated 13th August, 2014 filed as Annexure 5, allegedly issued by Registrar Hindu Marriage, Etah which has been found to be forged. The facts stated in the affidavit filed on behalf of the Registrar Hindu Marriages as briefly noted above has not been disputed by the petitioners. The petitioners have made false averments in the writ petition about their marriage and filed a fake marriage certificate. Under the circumstances petitioners are not entitled to any relief under Article 226 of the Constitution of India which is an extraordinary, equitable and discretionary jurisdiction.
14. In the case of United India Insurance Company Ltd. Vs. B. Rajendra Singh and others, JT 2000 (3) SC 151, considering the fact of fraud, Hon'ble Supreme Court held in paragraph 3 as under:
"Fraud and justice never dwell together." (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that" no judgement of a Court, no order of a Minister can be allowed to stand if it has been obrtained by fraud, for fraud unravels everythin " (Lazarus Estate Ltd. V. Beasley 1956 (1) QB 702).
15. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, 2004 (6) SCC 325, Hon'ble Supreme Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
19. In Derry V. Peek (1889) 14 AC 337 it was held: "In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."
16. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
17. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
18. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
19. It shall not be out of place to mention here that large number of instances of filing writ petitions for obtaining or attempting to obtain orders on the basis of fake voter I.D. Card, forged certificate as proof of birth and false averments in the writ petition, have been found by this Court. In large number of cases girls have been found to be minor while as per forged birth certificate or voter card or school leaving certificates they were shown to be major. Usually as and when it comes to light that fake/forged certificates etc. have been filed or false averments have been made in the writ petition or the girl is found to be minor, the petitioner's counsel pray to dismiss the writ petition as withdrawn or petitioner's counsel do not appear so as to result in dismissal of the writ petition for non prosecution. Few instances of writ petitions dismissed during the month of October and November 2014, on detection of false averments in the writ petition or filing fake/forged papers are as under:
(i) In WRIT-C No.-52588 of 2014 Smt. Razeena Bano and another Vs. State of U.P. and three others it was stated that the petitioner girl is major aged about 20 years and studied only in Madarsa and the petitioners have married. Subsequently father of the petitioner girl appeared and produced her high school examination certificate which disclosed that her date of birth is 6th February, 1998 and she is minor aged about 16 years old. The writ petition was dismissed on 31.10.2014.
(ii) In WRIT-C No.- 48625 of 2014 Antima Singh Patel and another Vs. State of U.P. and three others dismissed on 30th October, 2014, this Court found the petitioner No.2 to be below marriageable age.
(iii) In WRIT-C No.- 5146 of 2014 Jyoti and another Vs. State of U.P. and three others dismissed on 30.10.2014, this Court found that the petitioner girl was minor.
(iv) In WRIT-C No.- 25021 of 2014 Smt. Manisha alias Shabnam Khan and another Vs. State of U.P. and three others dismissed on 27th October, 2014, this Court found the religion conversion certificate to be forged and manipulated.
(v)In WRIT-C No.- 57049 of 2014 Ajay Kumar and another Vs. State of U.P. and three others, dismissed on 29.10.2014 this Court found the entire allegations of threat and interference was made by the petitioner No.1 against the father of the petitioner No.2 i.e. respondent No.4 while during the course of hearing the petitioner girl stated that her father i.e. respondent No.4 has died about a year ago.
(vi) In WRIT-C No.-55194 of 2014 Smt. Krishna and another Vs. State of U.P. and three others dismissed on 15.10.2014 this Court found that false averments were made. The girl stated that she has not yet married with the petitioner No.2 and she was merely called upon phone by the petitioner No.2 and she came.
(vii) In WRIT-C No.- 28728 of 2014 and another Vs. State of U.P. and three others dismissed on 15.10.2014 this Court found that the petitioner No.1 girl was minor as per high school certificate and FIR was also registered against the petitioner No.2 under Sections 363 and 366 IPC on 17.5.2014 but these facts were concealed.
(viii) In WRIT-C No. 62898 of 2014-Smt. Gudiya & Another Vs. State of U.P. and four others dismissed on 15.10.2014 this Court found that the petitioner No.1 girl was minor as per high school certificate and an FIR was also registered against the petitioner No.2 under Sections 363 and 366 IPC on 17.5.2014 but these facts were concealed.
(ix) In WRIT-C No.-54198 of 2014 Smt. Farheen Bano & Another Vs. State of U.P. and three others dismissed on 17.11.2014 this Court found that a fake nikahanama was filed and the court was misled by the petitioners.
(x) In WRIT-C No.- 59965 of 2014 Smt. Sarita & Another Vs. State of U.P. and three others dismissed on 17.11.2014 this Court found that the marriage certificate was procured by the petitioner No.2 giving false information.
(xi) In WRIT-C No.59288 of 2014 Smt. Chanda Devi & Another Vs. State of U.P. and three others this court found that a fake voter I.D. Card in support of age of petitioner No.1 girl giving fake address was filed along with writ petition.
(xii) WRIT-C No. 59967 of 2014 Mohd. Taqi and other & Another Vs. State of U.P. and two others was dismissed as the identity of both the petitioners was extremely doubtful and both the petitioners stated before this Court that they are resident of Jammu and Kashmir.
(xiii) In Writ C No. 59827 of 2014 Nanhe and another Vs. State of U.P. and two others, the copy of the voter I.D. Card filed along with writ petition in support of age proof and identity, was found to be fake. The writ petition was dismissed on 20.11.2014.
(xiv) In WRIT-C No.60876 of 2014 Mohd. Danis & Another & Another Vs. State of U.P. and three others dismissed on 20.11.2014, the school leaving certificate of petitioner No.2 girl was found to be completely forged and the facts with regard to FIR registered against the petitioner No.1 under Sections 363 and 366 IPC was suppressed. The petitioner No.1 girl was minor as per FIR.
(xv) In WRIT-C No.55965 of 2014 Smt. Kamla Devi & Another Vs. State of U.P. and two others dismissed on 17.11.2014 this Court found that a fake Hindu marriage certificate was filed.
(xv) In WRIT-C No.62898 of 2014 Smt. Rooma & Another Vs. State of U.P. and four others dismissed on 24.11.2014 this Court found that the mark sheet of petitioner No.1 filed in support of her age, was fake.
(xvi) In WRIT-C No.16935 of 2014 Smt. Janki & Another Vs. State of U.P. and three others dismissed on 21.11.2014 it was found that the petitioner No.1 girl was minor as her date of birth was 7.5.1999 as per evidences filed along with counter affidavit. After order of Additional Chief Judicial Magistrate, Court No.9 Basti under Section 156 (3) Cr.P.C. FIR was registered against the petitioner No.2 who was already married with another woman 'Pinki' and has two children, namely, Shivam and Shivani but all these facts were concealed in the writ petition and instead false averments were made that the petitioner No.1 girl is major and marriage of the petitioner No.2 with her is the first marriage.
(xvii) In WRIT-C No.60563 of 2014 Neha Namdev Vs. State of U.P. and three others dismissed on 24.11.2014, it was found that not only false addresses was given but also the petitioner No.2 concealed the fact that he has a living spouse.
(xix) In WRIT-C No.55134 of 2014 Musaida & Another Vs. State of U.P. it was found that the school transfer certificate of petitioner No.2 and the alleged Nikaha Nama both are forged.
(xx) WRIT-C No.60563 of 2014 was dismissed on 24.11.2014 since it was filed annexing fake papers.
(xxi) WRIT-C No.10364 of 2014 Smt. Somwati and others Vs. State of U.P. and three others was initially disposed of. Subsequently recall application was filed by the father of the petitioner girl i.e. Respondent No.4 who disclosed that she was born in the year 1999 and is minor and the order was obtained by suppressing this material facts. The girl was found to be minor and, as such the writ petition was dismissed by order dated 28th October, 2014.
(xxii) In WRIT-C No.58683 of 2014 the petitioner girl was found to be minor and, therefore, the writ petition was dismissed by order dated 21.11.2014.
(xxiii) In WRIT-C No.55388 of 2014 (Smt. Urmila and another Vs. State of U.P. and three others) the school leaving certificate of petitioner No.1 girl was found to be fake and she was found to be minor.
20. The aforenoted cases have been referred merely as exemplars of prevailing practice of filing writ petitions by suppressing material facts and annexing fake certificates in support of age proof, identity and marriage proof which is becoming a regular feature to obtain order under Article 226 of the Constitution of India on the allegation that the petitioners are married couple. In large number of writ petitions petitioner girl have been found to be minor. Such girls are usually under influence of the petitioner boy or they are compelled for variety of reasons. Number of instances have also been found that even FIR of parents of such girls are not registered by the police. The situation is well illustrated in one of the judgments of this Court in Writ C No. 52588 of 2014 Smt. Razeena Bano and another Vs. State of U.P. and others decided on 4th December, 2014.
21. In these situations enactment of compulsory marriage registration rules containing provisions for compulsory registration of marriages and consequences of giving false information and filing fake papers, appears to be the urgent need so as to protect genuine couples on one hand and on the other hand to deal sternly with the law breakers.
22. In the Report No. 211 of October, 2008 the Law Commission of India noted the fact that in February, 2006 Hon'ble Supreme Court has in the case of Seema Vs. Ashwani Kumar directed the State Government thrice to frame rules for compulsory registration of marriages irrespective of religion and personal law of the parties and the States are in process of implementing these directives in various ways.
23. In the case of Seema Vs. Ashwani Kumar (2006) 2 SCC 578 paragraph No. 13) Hon'ble Supreme Court observed that in large number of cases some unscrupulous persons are denying the existence of the marriage taking the advantage of the situation that there is no official record of marriage. Such a law may be a step in the right direction for the prevention of child marriages still prevalent. Hon'ble Supreme Court also noted the opinion of the National Commission for Women that such a law would be of critical importance to various women- related issues such as prevention of child marriages and to ensure minimum age of marriage, prevention of marriages without the consent of the parties, to check illegal bigamy/polygamy, to enable married woman to live in the matrimonial house, maintenance etc. to enable widows to claim their inheritance and several benefits and privileges which they are entitled to after the death of their husband, deterring men from deserting women after marriage and deterring parents/guardians from selling daughters/young girl to any person including a foreigner under the garb of marriage.
24. In para 15 of the aforesaid judgment Hon'ble Supreme Court observed that if the record of marriage is kept, to a large extent the dispute concerning solemnization of marriages between two persons is avoided. Non registration of marriages affects the women to a great extent. Registration of marriage provides evidence of marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though the registration itself cannot be a proof of valid marriage per se and would not be determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, rights of children born from the wedlock of the two persons whose marriage is registered and age of the parties to the marriage. Therefore it would be in the interest of the society that if the marriages are made compulsory registrable.
25. In paragraph Nos. 17 and 18 of the aforesaid judgment in the case of Seema (supra) Hon'ble Supreme Court observed/directed as under:
17. Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective states, where the marriage is solemnised.
18. Accordingly, we direct the States and the Central Government to take the following steps:
(i) The procedure for registration should be notified by respective states within three months from today. This can be done by amending the existing rules, if any, or by framing new rules. However, objections from members of the public shall be invited before bringing the said rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bring the rules into force.
(ii) The officer appointed under the said rules of the States shall be duly authorised to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said rules. Needless to add that the objection of the said rules shall be to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.
(Emphasis supplied by me)
26. In the case of Seema Vs. Ashwani Kuymar (3) (2008)7 SCC 509 para 4 Hon'ble Supreme Court observed that the draft rules ave been prepared by the State of Uttar Pradesh.
27. From the affidavits filed by the Principal Secretary, Woman and Child Development, Government of U.P. it is evident that there is concurrence of all the concerned departments of the State Government for enactment of the 'The U.P. Compulsory Registration of Marriages Rules 2014'. The Chief Minister has also given in principle his approval. Hon'ble Supreme Court has issued direction in the year 2006 to the State Government in the case of Seema (supra)to enact compulsory marriage registration rules within three months and the state government had stated in the year 2007 before Hon'ble Supreme Court that draft rules have been framed which fact has also been noted by Hon'ble Supreme Court in the case of Seema (3) (supra).
28. The state government has also shown its clear intention to enact the aforesaid compulsory marriage registration rules as evident from the instruction and two affidavits referred in para 6,7 and 8 above. It has merely sought some time for enactment of the aforesaid rules. Seeking time even after 8 years of the directions of Hon'ble Supreme Court to enact the Rules, cannot be appreciated particularly in view of the fact that according to the state government the draft rules were framed about seven years ago and there is concurrence of all the concerned departments to enact the rules. Enactment of an appropriate marriage registration rules containing provisions for compulsory registration of marriages as well as provisions for consequences for filing fake papers and giving false information for registration of marriages, is even acceptable to the government as evident from the affidavits filed before this Court. It has merely sought some time for enacting the Rules as evident from the affidavit of the Principal Secretary Women and Child Development dated 15.12.2014, the relevant portion of which has been reproduced in para 8 above. The state government has also sought some time for uploading on internet marriage certificates being issued by the Registrar Hindu Marriages and also for on line Registration of all instruments. Relevant portion of the affidavit in this regard has been reproduced in para 10 above.
29. In view of the above discussions, as prayed, three months time is granted to the State Government to enact 'The Uttar Pradesh Compulsory Registration of Marriages Rules'. The State Government may also consider to prescribe admissible proof of age under the rules.
30. In result the writ petition fails and is hereby dismissed with the above directions to the State Government. Let a copy of this order be sent by the Registrar General of this Court to the State Government through the Chief Secretary as well as the Principal Secretary, Women and Child Development, Government of Uttar Pradesh, Lucknow, for necessary action and compliance.
Order Date:16.01.2015 MT**