Kerala High Court
Sosamma Kurian Bernt vs State Of Kerala on 19 April, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 29TH DAYOF AUGUST 2014/7TH BHADRA, 1936
WP(C).No. 22261 of 2014 (G)
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PETITIONER:
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SOSAMMA KURIAN BERNT,
D/O.SMT.MARIAMMA STANLY, EAGLE CREST,
TELEPHONE EXCHANGE ROAD, ELATHOR,
KOZHIKODE-673 303.
BY ADVS.SRI.B.RAGUNATHAN,
SRI.G.GOPALAKRISHNA PILLAI,
SRI.M.SALIM,
SRI.P.KARTHIKEYAN,
SRI.R.SRINATH,
SRI.V.M.JACOB.
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY
TO GOVERNMENT, TAXES (REGISTRATION) DEPARTMENT,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001.
2. INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR, THIRUVANANTHAPURAM-695 035.
3. SUB REGISTRAR,
REGISTRATION DEPARTMENT,
WEST HILL, KOZHIKODE-673 005.
BY SR. GOVT. PLEADER SRI.VIJU ABRAHAM.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 22261 of 2014 (G)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE PASSPORT DATED 19/04/2005 OF THE PETITIONER
ISSUED BY THE PASSPORT OFFICE, ERNAKULAM.
EXT.P2 COPY OF THE PASSPORT DATED 24/08/2009 OF
MR.RUDOLF ERWIN HUBER ISSUED BY GERMAN REPUBLIC.
EXT.P3 COPY OF THE RATION CARD DATED 27/11/2013 OF THE
PETITIONER ISSUED BY TALUK SUPPLY OFFICER, KOZHIKODE.
EXT.P4 COPY OF THE FINAL DECREE DATED 26/06/2014 OF THE
LOCAL COURT (AMTSGERICHT) DILLINGEN A.D. DONAU,
GERMANY.
EXT.P4A THE CERTIFIED ENGLISH TRANSLATION OF EXT.P4.
EXT.P5 COPY OF THE RESIDENCE PERMIT DATED 29/07/2014 ISSUED
BY V. GEM. GUNDELFINGEN, A.D. DONAU.
EXT.P5A TRUE CERTIFIED ENGLISH TRANSLATION OF EXT.P5.
EXT.P6 COPY OF THE CERTIFICATE OF CAPACITY TO CONTRACT
MARRIAGE BETWEEN THE PETITIONER AND MR.RUDOLF
ERWIN HUBER DATED 01/08/2014 ISSUED BY CIVIL REGISTRY
OFFICE, GUNDELFINGEN, A.D. DONAU, GERMANY.
EXT.P7 COPY OF THE NO OBJECTION CERTIFICATE DATED 13/08/2014
ISSUED BY VICE CONSUL, CONSULATE GENERAL OF THE
FEDERAL REPUBLIC OF GERMANY,BANGALORE.
EXT.P8 COPY OF THE NOTICE OF INTENDED MARRIAGE DATED 14/08/2014
SUBMITTED TO THE 3RD RESPONDENT.
EXT.P9 COPY OF THE CIRCULAR DATED 08/08/2014 OF THE
2ND RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
A.MUHAMED MUSTAQUE, J.
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WP(C).No.22261 of 2014-G.
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Dated this the 29th day of August, 2014.
J U D G M E N T
The petitioner is an Indian citizen and lives in Germany. The petitioner has given notice of marriage in terms of Section 5 of the Special Marriage Act, 1954 to marry Sri.Rudolf Erwin Huber, a German citizen. Ext.P8 is the notice. Section 6 of the Act prescribes manner and publicity of the notice. It appears that the 3rd respondent refused to receive the application for registration relying on a circular based on Ext.P9 to the effect that the permission granted to the marriage under the Special Marriage Act has been withdrawn on the basis of a communication dated 16.7.2014. It is apparent that it is on account of the reason that Section 5 mandates if either of the parties to the marriage has not resided for a period of not less than thirty days immediately preceding the date on which such notice is given within jurisdiction of the Marriage Officer of the WP(C).No.22261/2014-G. 2 District, the Marriage Officer shall cause to serve such notice by affixture in the place where non-resident permanently resides. This has to be effected through marriage of the Officer in that District.
2. The learned Sr.Govt.Pleader points out Section 29 of the Foreign Marriage Act and submits that there is no Marriage Officer in Germany and it is not possible to verify the credentials, identity and background of the parties. The learned counsel for the petitioner relying on a decision reported in Rajeev v. State of Kerala (2001(1) KLT 578) and would submit that even if one of the parties is not an Indian citizen, the marriage can be solemnized under the Special Marriage Act. Therefore, I am of the view there cannot be any prohibition for solemnization of the marriage under the Special Marriage Act. But the aspect relating to the mandatory procedure are to be complied in terms of Sections 5 and 6(3) under the Special Marriage Act. Notice under Section 5 is a mandatory. In a sense the observation of the procedure is essential for allowing the parties to WP(C).No.22261/2014-G. 3 marry under the Special Marriage Act. However, in this case the petitioner has produced Exts.P6 and P7. Ext.P7 is the no objection certificate issued by the Consulate General of the Federal Republic of Germany, Bangalore. If the purpose is achieved in a credible manner it is sufficient to satisfy the mandate of the Section 5. In view of the above, I am of the view, treating Ext.P8 has been lodged on 14.8.2014 the petitioner's marriage with Sri.Rudolf Erwin Huber shall be solemnized in accordance with law reckoning notice of the marriage as on 14.8.2014.
Writ petition is disposed of as above.
A.MUHAMED MUSTAQUE, (Judge) Kvs/-