Madhya Pradesh High Court
Arya Samaj Mandir Pawansut Colony Jain ... vs The State Of Madhya Pradesh Thr on 27 June, 2017
Author: S. K. Awasthi
Bench: S. K. Awasthi
1 WA 385/2016, 398/2016 and 55/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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DB:- Hon'ble Shri Justice N. K. Gupta &
Hon'ble Shri Justice S. K. Awasthi
WA 385/2016
Arya Samaj, Naya Bazar, Lashkar, Gwalior
Vs.
State of MP & Ors.
WA 398/2016
The Madhya Bharat Arya Pratinidhi Sabha
Vs.
State of MP & Ors.
AND
WA 55/2017
Arya Samaj Mandir, Pawansut Colony,
Jain Santar, Morar, Gwalior
Vs.
State of MP & Ors.
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Shri SS Bansal, counsel for the appellant Arya Samaj, Naya
Bazar, Lashkar, Gwalior (WA 385/2016).
Shri Prashant Sharma, counsel for the appellant- Arya Samaj
Mandir, Pawansut Colony, Jain Santar, Morar, Gwalior (WA 55/2017)
Ku. Sonal Mittal, counsel for the appellant- Madhya Bharat Arya
Pratinidhi Sabha, Tatya Tope Nagar, Bhopal (WA 398/2016)
Shri Vishal Mishra, Additional Advocate General, for the State and
its officers (in all three Writ Appeals)
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JUDGMENT
[Delivered on 27 /06/2017] Per Justice N.K. Gupta:
Since all the writ appeals are filed against the common order dated 13/10/2016 passed by the Single Bench of this Court in Writ Petition No.4424/2016 (Habeas Corpus), they are decided by the present common order.
2 WA 385/2016, 398/2016 and 55/2017 (2) All the three writ appeals have been filed by various Branches of Arya Samaj challenging the aforesaid order whereby the Single Bench of this Court has issued some directions in para 12 of the order.
(3) Facts of the case, in short, are that one Naresh Soni filed a petition of Habeas Corpus that his daughter was missing. The corpus was brought before the Single Bench of this Court and it was informed that she was married to one Sunil Rajak who was respondent No.4 in the petition and such marriage was performed by Purohit of Arya Samaj. The petition of Habeas Corpus was disposed off vide order dated 13/10/2016 with some observations given in para 12 which are reproduced as under:-
''i- In the event bride and bridegroom present themselves before the management of the Arya Samaj Mandir with applications for solemnization of marriage as per Arya Samaj rites and rituals, it shall be the duty of the management to first issue notice affixing photographs of the bride and bridegroom to the parents/families of both at the declared address and also affix such notice in that behalf on the notice board of the Mandir inviting objections, if any, to ensure that;
(i) neither party has a spouse living, (ii) neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or has been subject to recurrent attacks of insanity, (iii) declarations must contain that the marriage is not performed by fear, threat or coercion; (iv) the male has completed the age of twenty one years and the female the age of eighteen years, and (v) the parties are not within the degrees of prohibited relationship, provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.
A reasonable time of at least seven days be prescribed in the notice.
ii- If objection is received, the same shall be dealt with by the Mandir management, with due verification of facts. If need be, assistance of local police may also be 3 WA 385/2016, 398/2016 and 55/2017 taken.
iii- Declarations from the bride and bridegroom shall be obtained not on a cyclostyle format on a piece of paper, but on a non-judicial stamp paper of the value of Rs.100/- or more purchased in their names for marriage purpose that they are aware of the noble ideals, objects, rituals, traditions of Arya Samaj and endorse faith & belief, practices & follows the same, duly notarized by a licensed Notary with due identification by an Advocate and Mandir Management shall also verify the credibility of such declaration from known sources, viz. Arya Samaj Temples mentioned by them and/or the community of Arya Samajists known to them, in writing.
iv- The date of birth of bride and bridegroom shall be verified through the original 10th class mark-sheet of each one of them.
v- In the event the bride and bridegroom are not educated, verification of fact of their age shall be done from the respective families or through the medical ossification at the Government Hospital or Government recognized Medical Practitioner with affixation of seal.
vi- The original residential address of bride and bridegroom shall also be verified either through documentary evidence or through an enquiry and, if required, with the help of local police.
vii- Upon verification of aforesaid facts and ascertainment of bona fide intention of bride and bridegroom for solemnization of marriage, the mandir management shall ensure solemnization of marriage with due observance of Saptpadi and all customary rites, rituals and ceremonies depending upon the social and economic status of bride and bridegroom in presence of two witnesses of each side with their identity and residential proof with a separate notarized affidavit, by each of them stating on oath that the bride and / or bridegroom are personally known to them, on a non-judicial stamp paper of the value of Rs.100/- or more.
viii- The process of Saptapadi with rituals and solemnization of marriage shall be recorded through videography by the Mandir Management.
ix- Thereafter, marriage certificate may be issued to the 4 WA 385/2016, 398/2016 and 55/2017 bride and bridegroom by authorized signatory of the Mandir Management.
x- The management shall maintain and keep a record of complete documentation and visuals of the entire process of solemnization of marriage and xi- The District Heads of Police shall issue necessary instructions to the Station House Officers of various police stations to conduct enquiry and verify from Arya Samaj Mandirs within the jurisdiction of their police stations in the event complaints are made of missing girls or of fraud, manipulation, etc., in the matter of solemnization of marriages, in the police stations. '' Such directions were given to get the evidence relating to various legal requirements at the time of performance of marriage. (4) The appellants have challenged the aforesaid directions mainly on three grounds. First, that in Habeas Corpus petition there is no scope to issue such directions and that has been done by the learned Single Judge without jurisdiction. Secondly, that the High Court is not permitted to create new laws and thirdly, looking to the various enactments such directions should be within the parameters of the enactment and they were not required to be given. The learned counsel for the appellants have relied upon the judgment passed by the Apex Court in the case of ''Sunil Batra vs. Delhi Administration'' [AIR 1980 SC 1579] and also a judgment passed by the Division Bench of this Court in the case of ''Laakhan Singh Rajput vs. State of MP & Ors.'' [2011 (4) MPJR 13]. In the aforesaid judgments, the scope of petition of Habeas Corpus is discussed in detail but it is not mentioned that when the petition is filed under Article 226 of the Constitution of India, the High Court is barred from passing any other direction in the matter. It is observed in various petitions that when corpus being a kidnapped girl is brought before the Court and it is necessary for the Court to consider the marriage certificate as produced by the kidnapped girl or her alleged husband, then it is for the Court to take a decision for the custody of that girl and hence, it cannot be said that the 5 WA 385/2016, 398/2016 and 55/2017 Court is not competent to give any direction relating to consideration of marriage certificate.
(5) The second objection of the appellants is that the High Court is not required to enact a new law. In this connection, the judgments of the Apex Court in the case of ''Mullikarjuna Rao and Others vs. State of A.P. And Others'' [AIR 1990 SC 1251] and ''Suresh Seth vs. Commissioner, Indore Municipal Corporation'' [2006 AIR (SC) 767] are referred. However, in both the cases, it is held that the High Court cannot direct the Executive to exercise its rule-making power. In the present case, the Single Bench of this Court did not give any direction to the executive authorities to make rules etc. Hence, these two judgments referred by the appellants are not applicable in the present case. (6) The learned counsel for the appellants have also referred the judgment passed by the Apex Court in the case of "Union of India and another vs. Deoki Nandan Aggarwal'' [AIR 1992 SC 96] in which it is held that the Court has no power to legislate. Similarly, the judgment passed by the Apex Court in the case of ''Balram Kumawat vs. Union of India'' [(2003) 7 SCC 628] is referred in which it is held that making of legislation is not a job of judiciary. Similarly, reliance has been placed upon the judgment passed by the Apex Court in the case of "Pravasi Bhalai Sangathan vs. Union of India and Others" [AIR 2014 SC 1591] in which it is held that power of the Court to issue directions/guidelines to deal with certain situation is exerciseable only in the situation when there exists total legal vacuum. In the light of the aforesaid judgments, various directions to responsible persons of Arya Samaj to observe before performance of marriage given by the learned Single Judge may be examined.
(7) Generally, marriage is to be performed before the Purohit (performer) of Arya Samaj according to the provisions of the Hindu Marriage Act 1955. However, some extra authorities given to the Arya Samaj by provision of Section 2 of the Arya Marriage 6 WA 385/2016, 398/2016 and 55/2017 Validation Act 1937.Provision contained under Section 2 of the Arya Marriage Validation Act 1937 is hereby reproduced as under:-
''2.Marriage between Arya Samajists not to be invalid.- Notwithstanding any law, usage or custom to the contrary no marriage contracted whether before or after the commencement of this Act between two persons being at the time of the marriage Arya Samajists shall be invalid or shall be deemed ever to have been invalid by reason only of the fact that the parties at any time belonged to different castes or different sub-castes of Hindus or that either or both of the parties at any time belonged to a religion other than Hinduism."
According to that, if someone is not a Hindu and still interested to enter in the marriage with the help of Arya Samaj then such person is permitted by such aforesaid provision. Hence, the authorities of Arya Samaj have more power than a Pandit who performs a marriage under the Hindu Marriage Act.
(8) Before performing the marriage, it is necessary for every Pandit and every performer of Hindu marriage to examine about various conditions of Hindu marriage as enumerated in Section 5 of the Hindu Marriage Act and while performing the marriage, ceremonies should be required to be performed according to the provision contained under Section 7 of the Hindu Marriage Act.
Also, age of marriageable boy and girl is fixed by the Child Marriage Restraint Act 1929 and, therefore, it is necessary for every performer including Freelancer Pandit to follow the provisions of the Hindu Marriage Act as well as the Child Marriage Restraint Act, 1929. In Hindu Marriage Act, no rules are drafted to be followed by the performer of the marriage as to how he would examine the age of bride and bridegroom and other conditions for a Hindu marriage. Similarly, if marriage is performed at Arya Samaj then it is for them to fulfill various conditions as enumerated in Section 5 of the Hindu Marriage Act and also to follow the provisions of the Child Marriage Restraint Act 1929. If age of bride or bridegroom is not properly assessed then according to Section 5 of the Child Marriage Restraint 7 WA 385/2016, 398/2016 and 55/2017 Act, 1929 then the person who performs, conducts or directs a child marriage then he shall be punished by that penal provision. Hence, the legislature did not enact the provisions for assessment of age of bride or bridegroom or the assessment to get fulfillment of conditions for a Hindu marriage. If the performer violates the settled provisions of various laws then he would also be liable for prosecution for various crimes. Hence, there is no need to give directions as to how the age of the parties be assessed or as to how the conditions for a Hindu marriage shall be assessed. The learned Single Judge has also directed that intimation of marriage application be given to the parents of bride and bridegroom but it is not a condition precedent for performing the marriage under the Hindu Marriage Act and hence, if the entire directions are examined then in nutshell it would be apparent that if the performer of the marriage being a Purohit of Arya Samaj violates any of the conditions of law before performing and while performing the marriage then he shall be liable to face the consequences in criminal side also and, therefore, there was no requirement to lay down such directions so that the Purohit of Arya Samaj should follow such directions.
(9) In this connection, the mandatory marriage registration rules which are framed by the State Government in the name of "Madhya Pradesh Compulsory Registration of Marriages Rules, 2008" may also be considered. According to Rule 4, if marriage is not registered under the Rules, then it will not get a positive effect of registration and if marriage is registered before the concerned Registrar then it would be a conclusive proof relating to marriage of the concerned parties. Hence, it is for the parties to prove that they got legally married though marriage would have been performed by a Pandit or a Purohit of Arya Samaj. Most of the marriages, according to the Hindu Marriage Act, are being performed by various Pandits and there is no provision for registration of such Pandit. When the Court is not in a position to give such directions to 8 WA 385/2016, 398/2016 and 55/2017 the Pandit, in general who performed the marriage of Hindu boy or girl then such directions cannot be given to the Purohit of Arya Samaj otherwise it would cause disparity between two different performers.
(10) Also, as argued by learned counsel for the appellants, there are certain rules framed under Arya Samaj relating to performance of marriage. In such rules, it is mentioned that a person whose marriage is performed may declare within one year of performance of marriage that he was the follower of Arya Samaj. When such internal rules are already framed by the authorities of Arya Samaj then contrary directions could not be given by the learned Single Judge. The Court of Law can always examine the fact of mariage solemnized either by Arya Samaj Purohit under Arya Samaj Marriage Validation Act, 1937 and internal rules of Arya Samaj or by Pandit performing the marriage under Hindu Marriage Act. When the Court finds that a marriage is performed under Arya Samaj by no fulfilling the prerequisites of the Arya Samaj then the Court has to adjudge the validity of the impugned wedding under the Hindu Marriage Act and not otherwise. The Court has no jurisdiction to go beyond the social-network of various religious institutions or a Pandit under the Hindu Marriage Act.
(11) Under these circumstances, in the light of the judgments passed by the Apex Court in Deoki Nandan Aggarwal (supra) and Balram Kumawat (supra) such legislation could not be created by the Single Bench. From perusal of directions issued by learned Single Judge, it is apparent that some of those were contrary to the provisions of the Arya Marriage Validation Act 1937 and internal rules framed under that Act and some of them do not fall within the prerequisites of a valid marriage. Also, when there is no vacuum, the learned Single Judge was not competent to legislate such rules in the shape of directions. Consequently, such directions given by the Single Bench cannot be upheld.
(12) On the basis of aforesaid discussions, all the writ appeals 9 WA 385/2016, 398/2016 and 55/2017 filed by the appellants are hereby allowed and the impugned order dated 13/10/2016 passed by the Single Bench of this Court in Writ Petition No.4424/2016 (Habeas Corpus) is hereby set aside upto the extent relating to various directions given in para 12 of the order.
(N. K. Gupta) (S. K. Awasthi)
Judge Judge
27 /06/2017 27/06/2017
MKB