Kerala High Court
Merin Dominic vs Union Of India on 14 June, 2016
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938
WP(C).No. 3558 of 2017 (T)
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PETITIONER(S):
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MERIN DOMINIC,
AGED 25, D/O DOMINIC RAPHAEL,
M.M.C XXXII/317, ANTHIKATT HOUSE,
NELLIKKUNNATH ROAD, NETTOOR P.O.,
KOCHI, PINCODE NO.682 040.
BY ADVS.SRI.VINCENT RAPHAEL
SRI.P.J.JOSE
SMT.JISA P.JOSE
RESPONDENT(S):
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY OF THE GOVERNMENT,
MINISTRY OF EXTERNAL AFFAIRS,
NEW DELHI. 110 001.
2. THE SUB DIVISIONAL MAGISTRATE,
REVENUE DISTRICT OFFICE,
FORT KOCHI, PINCODE NO.682 001,
ERNAKULAM DISTRICT.
3. DAWNMATHEWS TOM,
KALATHIVEETTIL, AGED 29,
S/O TOMY M KALATHIVEETTIL,
4613 OLDEN ROAD, ROCKVILLE,
MARYLAND, ZIP CODE 20852, USA.
R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R2 BY GOVERNMENT PLEADER SRI.S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 21-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SKG
WP(C).No. 3558 of 2017 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE PHOTOCOPY OF THE LETTER DATED 14.6.2016
ISSUED BY THE SUB REGISTRAR, EDAPALLY
EXHIBIT P2 TRUE PHOTOCOPY OF THE MARRIAGE CERTIFICATE HAVING
REGISTRATION C 3899/2016/K-DIS NO.04/2016 DATED
18.6.2016 ISSUED BY THE SUB DIVISIONAL MAGISTRATE
COURT, FORT KOCHI.
EXHIBIT P3 TRUE PHOTOCOPY OF THE FEE RECEIPT NO.293913 OF
BOOK NO.2940 FOR THE RECEIPT OF FEE TOWARDS THE
SOLEMNIZATION OF MARRIAGE BETWEEN THE PETITIONER
AND THE 3RD RESPONDENT ISSUED BY R.D.O FORT KOCHI
DATED 18.6.2016.
EXHIBIT P4 TRUE PHOTOCOPY OF THE AFFIDAVIT SWORN BY DOMINIC
RAPHAEL THE FATHER OF THE PETITIONER.
EXHIBIT P5 TRUE PHOTOCOPY OF THE AFFIDAVIT SWORN BY CISY
DOMINIC THE MOTHER OF THE PETITIONER.
EXHIBIT P6 TRUE PHOTOCOPY OF THE AFFIDAVIT SWORN BY TOMY M
KALATHIVEETTIL THE FATHER OF THE RESPONDENT NO.3.
EXHIBIT P7 TRUE PHOTOCOPY OF THE AFFIDAVIT SWORN BY KUNJUMOL
TOMY THE MOTHER OF THE RESPONDENT NO.3.
EXHIBIT P8 TRUE PHOTOCOPY OF THE APPLICATION IN FORM 1130
SUBMITTED BY THE 3RD RESPONDENT HEREIN BEFORE THE
U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
DATED 15.8.2016.
EXHIBIT P9 TRUE PHOTOCOPY OF THE LETTER DATED 11.1.2017
ISSUED BY DEPARTMENT OF U.S CITIZENSHIP AND
IMMIGRATION SERVICES (USCIS) WITH RESPECT TO THE
VALIDITY OF THE MARRIAGE REGISTRATION CERTIFICATE.
EXHIBIT P10 TRUE PHOTOSTAT COPY OF MARRIAGE REGISTER
NO.IV/3899/2016 DATED 18.06.2016 ISSUED BY THE SUB
DIVISIONAL MAGISTRATE, FORT KOCHI.
WP(C).No. 3558 of 2017 (T)
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EXHIBIT P11 TRUE PHOTOSTAT COPY OF SECTION 7 NOTICE UNDER
COCHIN CHRISTIAN CIVIL MARRIAGE ACT, V OF 1095
DATED 14.06.2016 ISSUED BY THE SUB DIVISIONAL
MAGISTRATE, FORT KOCHI.
EXHIBIT P12 TRUE PHOTOSTAT COPY OF GAZETTE NOTIFICATION G.O.
(RT)NO.529/2015/LAW DATED 02.05.2015 ISSUED BY THE
SUB REGISTRAR, FORT KOCHI.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/
P.S. TO JUDGE
SKG
C.R.
SHAJI P. CHALY, J.
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W.P.(C) No.3558 of 2017
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Dated this the 21st day of February, 2017
JUDGMENT
This writ petition is filed by the petitioner seeking declaration that Ext.P2 marriage registration certificate issued to the petitioner and the 3rd respondent by the Sub Divisional Magistrate, Fort Kochi is a valid marriage certificate issued in accordance with the provisions of Cochin Christian Civil Marriage Act, 1905 [hereinafter called 'the Act, 1905], which confer upon the petitioner and 3rd respondent, legal marital status which is valid and binding for all purpose including for approval of United States Citizenship and Immigration Services Form I 130 [USCIS], Petition For Alien Relative and thereafter for the issuance of immigrant visa to the petitioner herein, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner herein is a citizen of India and a Roman Catholic Christian by religion. She is residing at Kochi, a place within the jurisdiction and prevalence of Act, 1095.
Respondent No.3 is a US citizen with Indian origin having W.P.(C) No.3558 of 2017 2 ancestral home at Thevara, Kochi, who is also a Roman Catholic Christian coming within the precincts of Act, 1095. The marriage between the petitioner and the 3rd respondent was solemnized and registered as per Act, 1095 by the Sub Divisional Magistrate, Fort Kochi, viz., the 2nd respondent herein, evident from Ext.P2 certificate issued.
3. According to the petitioner, the Special Registrar having charge to solemnize the marriage was absent consequent to transfer, and his office was lying vacant. The absence of the Special Marriage officer was communicated to the Sub Divisional Magistrate, Fort Kochi, as per Ext.P1 letter issued by the Sub Registry Office, Edappally. Thus the Sub Divisional Magistrate, Fort Kochi, who has the power to solemnize and register the marriage as per Section 5 of Act, 1095 has solemnized and registered the marriage and thus issued Ext.P2 marriage certificate dated 18.06.2016. The petitioner and the 3rd respondent ever since the solemnization of the marriage started living as husband and wife. Third respondent returned to USA and submitted Ext.P8 form before the United States Citizenship and Immigration Services, dated 15.08.2016. However, as per Ext.P9 letter dated 11.01.2017, W.P.(C) No.3558 of 2017 3 the said authority has sought clarification on the validity of the above marriage solemnized and registered under Act, 1095. It is under these circumstances, the petitioner has filed this writ petition seeking to declare that Ext.P2 certificate is a valid marriage certificate to be considered for processing Ext.P8 application. Third respondent is served with Ext.P9 notice by the said U.S. authority, by which it is asked to clarify which of the Marriage Act applies to the marriage by checking the appropriate blank under which the following marriage acts are recognized:
(i) Hindu Marriage Act;
(ii) Indian Christian Marriage Act;
(iii) Muslim Law on Marriage; and
(iv) Special Marriage Act.
Petitioner is also asked to submit evidence that the marriage was conducted in accordance with the particular Act governing the 3rd respondent's marriage. These are the background facts available before me to consider the case projected by the petitioner.
4. Heard learned counsel for the petitioner and the respective counsel appearing for respondents 1 and 2. W.P.(C) No.3558 of 2017 4 Perused the documents on record and the pleadings put forth by the petitioner. Since the 3rd respondent is in U.S. and since it is submitted that she has no dispute with respect to the reliefs sought for by the petitioner, notice to the 3rd respondent is dispensed with.
5. Having heard learned counsel for the petitioner and the respective counsel for the respondents, the first question to be decided is whether the 2nd respondent is vested with powers to solemnize a marriage under Act, 1095? As per Section 5, Marriage Registrars are defined to mean; one or more Christians either by name or holding any office for the time being, to be the Marriage Registrar or Marriage Registrars for any local area specified by notification in the Cochin Government Gazette. Paragraph 3 of Sec.5 deals with the power of a Magistrate to be Marriage Registrar which specifies that, when there is only one Marriage Registrar in any specified local area, and such Registrar is absent from such local area, or when his office is temporarily vacant, the Magistrate having jurisdiction over the local area shall act as and be Marriage Registrar thereof during such absence, illness or temporary vacancy.
W.P.(C) No.3558 of 2017 5
6. Apparently, the Act was brought into force when the Cochin State was existing. However, Article 372 of the Constitution provides that, "notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of the Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution, shall continue in force therein until altered or repealed or amended by a competent authority". Explanation 1 to Article 372 states that: "the expression 'law in force' in the Article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas". Therefore, it can be seen that by virtue of Article 372, the Act 1095 is protected, and it is not repealed thereafter. Therefore, the provisions of the Act is in force.
7. Petitioner has produced Ext.P12 along with I.A.No.2246 of 2017, which is a Gazette publication dated 06.05.2015, wherein as per Sec.5 of Act, 1095, Government of Kerala appointed one Joy Varghese, Sub Registrar, Edappally, W.P.(C) No.3558 of 2017 6 Ernakulam District as the Marriage Registrar for the local area of jurisdiction in Ernakulam District in the place of one K.P. Xavier. However, as per Ext.P1 issued by the Sub Registrar, Edappally dated 14.06.2016, it is pointed out that Sri. Joy Varghese T., appointed as the Marriage Officer is transferred as Sub Registrar of Kothamangalam SRO, and therefore, the office is lying vacant. Therefore, it is evident that 2nd respondent is vested with powers under Sec.5 of Act, 1095 to perform the functions of a Marriage Officer. The 2nd respondent has solemnized the marriage and Ext.P2 marriage certificate is issued in accordance with the formalities and stipulations prescribed under Act, 1095. Therefore, Ext.P2 marriage registration certificate is a valid document under law to ensure that the marriage between the petitioner and the 3rd respondent was solemnized in accordance with the provisions of Act, 1095.
8. This Court in 'Paul Thomas v. State of Kerala' [2004 KHC 4] had occasion to consider the nature of power exercised by a Marriage Officer under the provisions of Act, 1095, and held that the statute does not require solemnization of the marriage in the Church before registration under the Act W.P.(C) No.3558 of 2017 7 and further that the Act itself contemplates solemnization of the marriage after receipt of notice by the Registrar. So also, the power of a Sub Divisional Magistrate to constitute as a Marriage officer was considered by this Court in the judgment in W.P.(C) No.19947 of 2016 dated 10.06.2016, and held that in the absence of a Marriage Officer, under Sec.5 of Act, 1095, the Sub Divisional Magistrate is vested with powers to function himself as a Marriage Officer.
9. Taking into account the totality of the factual circumstances and reckoning the law involved in the subject matter, I am of the considered opinion that Ext.P2 Marriage Certificate issued by the 2nd respondent is a validly constituted one and in the absence of any other contra evidence, I have no hesitation to declare that the marriage between the petitioner and the 3rd respondent was solemnized in accordance with law as per the provisions of Act, 1095, and the same is valid for all purposes by and between the petitioner and the 3rd respondent.
W.P.(C) No.3558 of 2017 8
The writ petition is allowed accordingly.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
22.02.2017