Kerala High Court
Seethal Joseph vs Marriage Officer on 28 November, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 28TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940
WP(C).No. 30673 of 2018
PETITIONER/S:
SEETHAL JOSEPH,D/O LATE T.V. JOSEPH,
THEKKEDATH HOUSE, PARAVATTANI, THRISSUR,
NOW RESIDING IN APARTMENT NO.31130,
EPPLEWORTH ROAD, SCARBOROUGH, TORONTO, ONTARIO,
CANADA-MIK3G9. REP. BY POA, RAJESH JIBI,
S/O P. THANKACHAN, AGED 44 YRS.,
KOTTAPURATH HOUSE, PERUNGALA P.O, KAYAMKULAM.
BY ADV. SMT.M.VANAJA
RESPONDENT/S:
MARRIAGE OFFICER,
KAYAMKULAM MUNICIPALITY, ALLEPPY DISTRICT.
BY ADV. SRI.T.R.RAJAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
The petitioner is aggrieved by the delay on the part of the respondent-Marriage Officer in taking steps for registration of her solemnised marriage, in terms of the provisions contained in the Registration of Marriages (Common) Rules (Kerala), 2008. The prayers in the above Writ Petition (Civil) are as follows:
WP(C).No. 30673 of 2018-2-
"1. To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to issue the Marriage Certificate.
2. Direct the respondent to consider the application filed in Addendum with Exhibit-P2 receipt.
3. To pass such other writ, order or direction that, this Hon'ble court may deem fit and proper in the facts and circumstances of the case and to award the cost of this petition."
2. Heard Smt.M.Vanaja, learned counsel for the petitioner and Sri.T.R.Rajan, learned counsel appearing for the respondent-Marriage Officer.
3. The petitioner is a citizen of India, who is now residing in Canada. Earlier she had married one Premson Mechery Anto on 21.8.2006 in accordance with Christian rites and ceremonies, as both parties to the marriage are Christians and the marriage was solemnized in this State. The petitioner is a trained Physiotherapist and the said Premson Mechery Anto is a qualified Mechanical Engineer and that 2 children were born in their wedlock. They are residents in Canada as they are employed there. It is pointed out that the marriage had hit the rock bottom and the husband has deserted the petitioner and he started living with another woman in Ontario in Canada. Since the marital relationship WP(C).No. 30673 of 2018 -3- has irretrievably so broken down, the petitioner had secured decree of divorce from the Superior Court of Justice, Ontario, on 25.7.2016. It is further stated that the said decree of divorce granted by the Superior Court of Justice, Ontario, has become final and conclusive and the said Premson Mechery Anto had not challenged the same in any manner. Later, the petitioner decided to marry one Sri.Rajesh Jibi, in accordance with the Christian rites as the petitioner belongs to Malankara Orthodox Syrian Church. The said Church was fully satisfied that the petitioner had secured dissolution of her first marriage and she does not suffer from any disqualifications in the solemnisation of the second marriage. Accordingly, the second marriage of the petitioner was solemnized in Kadeesha Orthodox Church, Kayamkulam on 15.7.2018, with Rajesh Jibi, as discernible from Ext.P-7 certificate. The said Cathedral is under the Diocese of Mavelikkara of Malankara Orthodox Syrian Church, it is stated. It has been decided that the petitioner's husband, Rajesh Jibi, would also settle in WP(C).No. 30673 of 2018 -4- Canada as the petitioner is now staying in Canada for employment along with her two minor children. For the purpose of immigration of her husband to Canada, the petitioner has been advised that the solemnization of marriage should be registered and a copy of the marriage certificate issued by the competent Registrar should be produced before the competent authority in Canada before his papers could be processed in that foreign country. In that regard, the petitioner and her husband, Rajesh Jibi, had filed application for registration of their marriage in terms of the provisions contained in the Registration of Marriages (Common) Rules (Kerala), 2008, on 20.7.2018. Ext.P-2 is the copy of the receipt evidencing acceptance of application fee in that regard on 20.7.2018. According to the petitioner, she has also produced all the relevant documents issued by he Superior Court of Justice, Ontario, Canada, to evidence the factum of dissolution of her first marriage. It appears that the respondent-Registrar required some clarifications WP(C).No. 30673 of 2018 -5- from the higher authorities to ascertain about the procedural steps to be taken in this case as the decree of divorce is granted by a foreign court in Canada and he has sought clarifications from the Chief Registrar, thereafter. Thereafter, no effective action is forthcoming in taking steps on the application referred to in Ext.P-2. It is in the light of these aspects, that the instant Writ Petition (Civil) has been filed with the aforementioned prayers.
4. The petitioner is now settled in Canada and the Writ Petition has been filed on her behalf through her husband, Rajesh Jibi, who is her authorised power of attorney. Ext.P-1 is the copy of the power of attorney executed by the petitioner authorising her husband, Rajesh Jibi, to prosecute this litigative proceedings.
5. The following aspects regarding the dissolution of the first marriage of the petitioner would be relevant:-
On account of the irretrievable breaking down of the first marriage due to desertion of her WP(C).No. 30673 of 2018 -6- first husband, the petitioner had filed Ext.P-3 application in Form No.8A of the Family Law Act which regulates such aspects in the Province of Ontario in Canada. Notice was duly served by the Superior Court of Justice Ontario, Canada, to the respondent therein, viz., Premson Mechery Anto, the first husband of the petitioner. It appears that despite service of notice, the respondent therein was not interested to object the prayers of the petitioner for grant of divorce and has not appeared therein to contest the matter. Thereafter, the Superior Court of Justice, Ontario, Canada, has granted a decree of divorce in respect of the abovesaid first marriage of the petitioner as per Ext.P-4 rendered on 25.7.2016. A reading of Ext.P-4 decree would disclose that the same has been rendered by Honourable Mr.Justice Paisley of the Superior Court of Justice, Ontario, Canada. A reading of the documents produced before this Court would show that as per the applicable law in the Province of Ontario, the decree of divorce will take effect 31 WP(C).No. 30673 of 2018 -7- days after the date of Ext.P-4 order. Accordingly, after the expiry of the stipulated time period, the Superior Court of Justice, Ontario, has issued Ext.P-5 Certificate of Divorce on 1.9.2016 certifying that in view of the decree of dissolution of marriage as per Ext.P-4 rendered on 25.7.2016, the same has taken effect from 25.8.2016. This Court had earlier directed the petitioner to produce authenticated/certified copy of Ext.P-4 Divorce decree/order issued by Canadian Court. Accordingly, the petitioner has made available authenticated/certified copy of the said decree of divorce, which has been produced as Ext.P-13 and the same is seen authenticated/attested by Sri.Mehar Singh, Assistant Consular Officer, Consulate General of India, Toronto, Canada, and the same is also notorised by Notary Public, whose signature and seal have also been appended showing the lawful authority granted to him by the Governmental authorities concerned. Ext.P-8 is the extract of the Divorce Act of Canada, pertaining to Ontario WP(C).No. 30673 of 2018 -8- and Ext.P-10 is the copy of the Family Law Rules of the Court of Ontario. Ext.P-9 is the report submitted by the attorney of the petitioner, who conducted the divorce proceedings on her behalf, which culminated in Exts.P-4, P-5 and P-13, etc. A reading of the abovesaid authenticated documents issued by the Superior Court of Justice, Ontario, would indicate that though notice had been duly served on the respondent therein (Premson Mecheri Anto), he has not chosen to object and after following the procedural formalities as per the applicable laws in the Province of Ontario, a decree of divorce was duly rendered by Honourable Mr.Justice Paisley of the Superior Court of Justice, Ontario and later, after waiting for the requisite period of 31 days, Ext.P-5 Certificate of Divorce has also been issued. It is submitted by the petitioner that Exts.P-4 to P-6 and P-13 have become final and conclusive and no challenge has been mounted thereto by the first husband (Premson Mecheri Anto).WP(C).No. 30673 of 2018
-9-
6. It is further stated that Canada is included in the list of reciprocating territory, as envisaged in Explanation I to Sec.44A of the Code of Civil Procedure, 1908. There does not appear to be any serious dispute that Canada is one of the few reciprocating countries as envisaged in Explanation I to Sec.44A of the CPC.
7. The Apex Court in the recent decision in Alcon Electronics (P) Ltd., v. Celem S.A of France & anr, reported in (2017) 2 SCC 253, has held, more particularly, in paras 14 & 19 thereof that a plain reading of Sec.13 CPC would show that, to attain conclusiveness, an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case and when once these requirements are fulfilled, the executing court cannot enquire into the validity, legality or otherwise of the judgment of the Foreign Court concerned. It has also been held in para 19 of the said judgment that principles of comity of WP(C).No. 30673 of 2018 -10- nations demand that respect should be duly rendered to the judgments of the Foreign Court concerned and further that the contention of the appellant therein that the order was not on merits deserves no consideration and has been rejected. It will be profitable to refer to paras 14 & 19 of the abovesaid judgment of the Apex Court in Alcon Electronics' case (supra), reported in (2017) 2 SCC 253, p.p.261, 262, which read as follows:
"14. A plain reading of Section 13 CPC would show that to be conclusive an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case. When once these requirements are fulfilled, the executing court cannot enquire into the validity, legality or otherwise of the judgment.
Xxx xxx xxx
19. The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC. Hence we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 CPC and it is a conclusive one. The contention of the appellant that the order is the one not on merits deserves no consideration and therefore liable to be rejected. Accordingly, Issue (i) is answered."
8. The issues as to the executability of the order/decree passed by a foreign court in a reciprocating territory as understood in Sec.44A of the C.P.C., and explanations appended thereto have been WP(C).No. 30673 of 2018 -11- considered in detail in paras 20 to 24 of the above said judgment of the Apex Court in Alcon Electronics' case (supra), reported in (2017) 2 SCC 253, p.p.262-264, which read as follows:
'20. The next ground put forth by the appellant is that the order being an interlocutory order does not have the shades of a "judgment" to be executed before the Indian Court and hence the order not being a "decree" is unexecutable. To appreciate this, it is appropriate to have a look at Section 44-A CPC "44-A. Execution of decrees passed by courts in reciprocating territory.--(1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. (3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13.
Explanation 1.--"Reciprocating territory" means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and "superior courts", with reference to any such territory, means such courts as may be specified in the said notification.
Explanation 2.--"Decree" with reference to a superior court means any decree or judgment of such court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment."
21. As far as the explanation with regard to reciprocal territory is concerned, there is no dispute that England is a reciprocating territory for the purpose of above section. Section 44-A CPC indicates an independent right conferred on a foreign decree-holder for enforcement of a decree/order in India. Section 44-A was inserted by Section 2 of the Civil Procedure Code (Amendment) Act, 1937 (8 of 1937). This section is meant to give effect to the policy contained in the Foreign Judgments (Reciprocal Enforcement) Act, 1933. It is a part of the arrangement under which on one part decrees of Indian Courts are made executable in United Kingdom and on the other part, decrees of Courts in the United Kingdom and other notified parts of Her Majesty's dominions are made WP(C).No. 30673 of 2018 -12- executable in India. It is to be seen that as United Kingdom is a reciprocating territory and the High Court of Justice, Chancery Division, England being a recognised superior court in England. Therefore, the order passed by that Court is executable in India under Section 44-A CPC.
22. Now we come to the next limb of the argument put forth by the appellant that the order passed by the English Court does not amount to a decree and hence it is not executable. It is no doubt correct, Section 44-A CPC deals with "execution of decrees passed by courts in reciprocating territory". Before we further decide this issue it is appropriate to have a look at how decree, order and foreign judgment are defined under the CPC.
23. As per Section 2(2) CPC, "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 CPC but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.
24. Then a "foreign judgment" is defined under Section 2(6) as judgment of a foreign court.
"Judgment" as per Section 2(9) CPC means the statement given by the Judge on the grounds of a decree or order. "Order" is defined under Section 2(14) CPC as a formal expression of any decision of the civil court which is not a "decree". Then Explanation 2 to Section 44-A(3) says "decree" with reference to a superior court means any "decree" or "judgment". As per the plain reading of the definition "judgment" means the statement given by the Judge on the grounds of decree or order and order is a formal expression of a court. Thus "decree" includes judgment and "judgment" includes "order". On conjoint reading of "decree", "judgment"
and "order" from any angle, the order passed by the English Court falls within the definition of "order" and therefore, it is a judgment and thus becomes a "decree" as per Explanation to Section 44-A(3) CPC. In this case, the Court at England, after following the principles of natural justice, by recording reasons and very importantly basing on the application of the appellant itself, has conclusively decided the issue with regard to jurisdiction and passed the order coupled with costs. Hence in our considered opinion, the order passed by the foreign court is conclusive in that respect and on merits. Hence executable as a decree and accordingly the issue is answered.' WP(C).No. 30673 of 2018 -13-
9. In view of the legal position settled in paras 22-24 of the judgment of the Apex Court in Alcon Electronics' case (supra), Ext.P-4 Divorce decree/order of the Superior Court of Justice, Ontario will amount to a "Decree" of a Superior Court of a reciprocating country as understood in Explanation II of Sec.44A CPC and hence is executable. So also, in view of the legal position settled in Paras 14 and 19 of that Apex Court judgment, Ext.P-4 order/decree of that foreign court of the reciprocating country, will not fall within the exceptions of Sec.13 CPC.
10. Further this Court in the judgment in Moosa v. Bank of Baroda, reported in 2012 (3) KLT 47, has held that mere fact that there has not been much of a discussion of evidence does not reduce the foreign judgment as one given not on merits to come within the exception under Sec.13(b) of the CPC so as to make it not conclusive.
WP(C).No. 30673 of 2018-14-
11. On a perusal of the materials made available in this petition, more particularly Exts.P-4 to P-6 as well as authenticated copy of the decree of divorce as per Ext.P-13 as well as Exts.P-8 to P-10, etc., this Court is of the view that the said decree of divorce and Certificate of Divorce issued in favour of the petitioner by the Superior Court of Justice, Ontario, Canada, is acceptable and the same shall be acted upon by the respondent-Marriage Officer for the purpose of registration of the marriage of the petitioner with Rajesh Jibi and the application of the petitioner as referred to in Ext.P-2 should be duly considered and granted if it is otherwise in order. In other words, the respondent-Marriage Officer will not await or act on any further clarifications or directives from the Chief Registrar, but should act upon Exts.P-4 to P-6 and Ext.P-13 as conclusive to show that the first marriage of the petitioner has been duly dissolved by the Superior Court of Justice, Ontario, Canada. The other eligibility conditions of the spouses WP(C).No. 30673 of 2018 -15- should be duly verified without any further delay.
12. It is now submitted by Smt.M.Vanaja, learned counsel for the petitioner that the petitioner has come down from Canada very recently in order to appear before the respondent-Marriage Officer along with her husband so as to sign in the marriage register and complete necessary formalities and the petitioner has been granted only very short leave by her employer and she has to report back to Canada without any further delay. Hence it is ordered that the respondent- Marriage Officer will expedite the process of consideration of the application for registration without any further delay.
13. It is now brought to the notice of this Court that Exts.P-4 to P-6 were earlier produced before the respondent-Registrar. The authenticated copy of the Decree of Divorce as per Ext. P-13 may not have been produced and that the same will be produced before the respondent-Marriage Officer without any further delay, if not so far produced. WP(C).No. 30673 of 2018 -16-
14. Sri.T.R.Rajan, learned counsel appearing for the respondent-Marriage Officer would submit that the respondent had sought for clarification of the Chief Registrar and thereupon the entire papers in relation to Ext.P-2 application were forwarded to the Chief Registrar for his examination. The matter was referred by the respondent-Marriage Officer to the Chief Registrar only for the purpose of getting clarifications only in respect of the decree of divorce of the Superior Court of Justice, Ontario, Canada. In view of the abovesaid findings and directions issued by this Court hereinabove, no further clarifications or directives are required from the Chief Registrar for the respondent-Marriage Officer to proceed further. As the petitioner has to report back to Canada immediately, it is ordered that the respondent may send a personal messenger to the Office of the Chief Registrar, whereupon the WP(C).No. 30673 of 2018 -17- latter shall immediately handover the entire papers in relation to Ext.P-2 application so that the same could be returned back to the respondent- Marriage Officer without any further delay. The respondent-Marriage Officer will, without any further delay, expedite the process of consideration of the request made by the petitioner and her husband for registration of their solemnised marriage as per Ext.P-2 application without any further delay and will grant the request, if it is otherwise in order. Thereafter, the petitioner and her husband may be permitted to append their signatures in the marriage register without any further delay. As the petitioner has to report back to Canada, the entire process in this regard should be completed within a period of 10 days from the date of production of a certified copy of this judgment.
15. The Registry will furnish a copy of this judgment to the learned Senior Government Pleader, who is requested to convey the above directions in this judgment to the Chief Registrar so as to WP(C).No. 30673 of 2018 -18- ensure early return of necessary papers to the respondent-Marriage Officer for compliance of the abovesaid directions without any further delay.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE.
Bkn/-
WP(C).No. 30673 of 2018-19-
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 POWER OF ATTORNEY DATED 5TH SEPTEMBER 2018 EXHIBIT P2 TRUE COPY OF THE APPLICATION FEE RECEIPT NO.8010107174 DATED 20.7.2018 EXHIBIT P3 TRUE COPY OF APPLICATION NO.FS-16- 410371 FOR DIVORCE EXHIBIT P4 TRUE COPY OF THE DIVORCE ORDER ISSUED BY THE COURT OF ONTARIODATED 25.7.2016 EXHIBIT P5 TRUE COPY OF DIVORCE CERTIFICATE UNDER FORM 36B ON 1ST SEPTEMBER 2016 EXHIBIT P6 TRUE COPY OF THE NOTICE U/S 23C IS PRODUCED EXHIBIT P7 TRUE COPY OF THE KADEESHA ORTHODOX CATHEDRAL, KAYAMKULAM DATED 15.7.2018 HEREWITH THE CERTIFICATE OF MARRIAGE ISSUED BY THE VICAR EXHIBIT P8 TRUE COPY OF THE EXTRACT OF DIVORCE ACT CANADA(OTARIO).
EXHIBIT P9 TRUE COPY OF THE DETAILS REPORT FROM LAWYER THAMPIAH SIRIPATHY, COURT OF ONTARIO.
EXHIBIT P10 TRUE COPY OF THE FAMILY LAW RULES, COURT OF ONTARIO.
EXHIBIT P11 TRUE COPY OF THE E-MAIL BETWEEN THE LAWYER OF ONTARIO, MR.THAMPIAH SIRIPATHY.
EXHIBIT P12 REPLY SENT BY THE COURT OFFICER AKINSYOSOYE, WALLY(MAG) EXHIBIT P13 TRUE COPY OF THE CONSULAR ATTESTED COPY OF CERTIFICATE OF DIVORCE.