Kerala High Court
Susan Iember Mtsor vs Union Of India on 21 January, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
WP(C) NO. 3575 OF 2021
PETITIONER:
SUSAN IEMBER MTSOR,
AGED 39 YEARS,
W/O.ANAKUZHIYIL GEORGE FRANK OLIVER,
ZION ANAKUZHIYIL HOUSE,
ETTICHUVADU P.O.,
RANNI, ANGADI,
PATHANAMTHITTA-689 675.
BY ADVS.
SRI.T.K.BIJU (MANJINIKARA)
SMT.ANNIE M.ABRAHAM
RESPONDENTS:
1 UNION OF INDIA,
REP.BY ITS SECRETARY TO THE GOVERNMENT,
MINISTRY OF EXTERNAL AFFAIRS,
NEW DELHI 110 001.
2 FOREIGNERS REGIONAL REGISTRATION OFFICER,
OFFICE OF THE FRRO,
AMRITH PLAZA, 1ST FLOOR,
T.C.NO.30/1398, 3, NALUMUKKU,
PETTAH (P.O.), TRIVANDRUM 695 024.
3 DISTRICT POLICE CHIEF,
THAZHEVETTIPURAM,
PATHANAMTHITTA-689 645.
BY ADV SRI.P.L.VENUKUMAR, CGC
SRI.APPU P.S., GOVERNMENT PLEADER
SRI.S.MANU, ASGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.3575/2021
2
JUDGMENT
Dated this the 21st day of January, 2022 The petitioner, a Nigerian citizen, is before this Court seeking to direct the 2nd respondent to consider Ext.P1 application for OCI card on the basis of Exts.P2 and P3 Marriage Certificates and take action expeditiously at any rate prior to 01.04.2021, without insisting to prove spinstership.
2. The petitioner states that she is a Nigerian citizen wedded to Anakuzhiyil George Frank Oliver, who is an Indian citizen and Ex-servicemen. The petitioner and her minor son Jerome George Oliver, who is an Indian citizen, are residing in Ranni, in the house of her husband. The petitioner got married on 05.10.2018, as per Nigerian Law. Ext.P2 would evidence the said fact.
WP(C)No.3575/20213
3. The petitioner wanted to have a long stay in India along with her husband. Therefore, the petitioner submitted an application for OCI card. The petitioner submitted Ext.P2 Marriage Certificate issued by the Federal Republic of Nigeria as well as Ext.P3 Certificate of Marriage issued under Section 16 of the Special Marriage Act, 1954. The 2 nd respondent- FRRO is not entertaining the application stating that Ext.P2 being a Certificate issued by a Foreign Country, the petitioner should get the said document authenticated by the Embassy in Nigeria, without which the petitioner's application for OCI card cannot be considered.
4. The petitioner argued that the petitioner and her husband married as per Nigerian Law before the Marriage Registrar there. Later on, they re-registered their marriage in India before the Marriage Officer at Ranni in Pathanamthitta under the Special Marriage Act, 1954. Since the Marriage Registrar in India has issued a Certificate of Marriage, the petitioner cannot be denied OCI card on the ground that WP(C)No.3575/2021 4 Ext.P2 Marriage Certificate issued by the Foreign Country is not authenticated. The 2nd respondent cannot also insist that the petitioner should produce a Spinster Status Certificate from the Foreign Country.
5. Respondents 1 and 2 contested the writ petition filing a statement. Respondents 1 and 2 submitted that it is the duty of the FRRO to verify that all procedures relating to the Institution of Marriage are adhered to under Section 15 of the Foreign Marriage Act, 1969, since the marriage of the petitioner was a Foreign Marriage falling within the ambit of the Foreign Marriage Act, 1969. As per Section 15 of the Foreign Marriage Act, 1969, the marriage solemnised shall be good and valid in law. The petitioner has to establish the same. As per Section 17(2) of the Act, 1969, no marriage shall be registered under this Section unless at the time of registration it satisfies the condition that neither party has a spouse living.
WP(C)No.3575/20215
6. The respondents further submitted that the Ministry of Home Affairs, New Delhi has issued a Circular No.M551/03/2019 stipulating the submission of "Non Objection Certificate and Bachelorhood Certificate" from the Embassy concerned. Since Nigeria is not a part of the Hague Convention, such foreign documents shall be attested by the Embassy of India in Nigeria for making it a document to be accepted. The petitioner failed to produce the duly attested documents. Respondents 1 and 2 submitted that the petitioner is now over staying in India after the expiry of the Visa period.
7. I have heard the learned counsel of the petitioner and the learned Central Government Counsel representing the respondents.
8. The contention of the 2nd respondent is that since the marriage of the petitioner was solemnised in Nigeria, the said marriage should satisfy all the requirements warranted WP(C)No.3575/2021 6 under the Foreign Marriage Act, 1969. The FRRO has a duty to ensure that the Foreign Marriage satisfies the requirements under the Foreign Marriage Act, 1969. Therefore, it is necessary that the petitioner to produce a Spinster Certificate. The petitioner also has to get Ext.P2 Certificate of Marriage attested from the Embassy in Nigeria.
9. Going through the pleadings in the writ petition, it can be seen that the marriage of the petitioner was originally solemnised in Nigeria. After coming to India, the petitioner and her husband had approached the Marriage Officer, Ranni, Pathanamthitta and the Marriage Officer has registered the Marriage of the petitioner with Anakuzhiyil George Frank Oliver invoking Section 16 of the Special Marriage Act, 1954 on 25.04.2019. Ext.P3 Certificate of Marriage issued by the Marriage Officer, Ranni states that the petitioner and her husband appeared before him. The Marriage Officer, accordingly, declared that a ceremony of marriage has been performed between them and that they WP(C)No.3575/2021 7 have been living together as husband and wife since the time of the marriage and that in accordance with their desire to have a marriage registered under the Special Marriage Act, 1954, the said marriage has been registered under the Special Marriage Act, 1954 invoking Section 16.
10. The registration of marriage celebrated in other forms are governed by Chapter 3 of the Special Marriage Act, 1954. As per Section 15 of the Special Marriage Act, 1954, any marriage celebrated, whether before or after the commencement of the Act, other than a marriage solemnised under the Special Marriage Act, 1872 may be registered under Chapter 3 by a Marriage Officer in the territories to which the Act extends if certain conditions are fulfilled. Section 18 of the Special Marriage Act states that subject to the provisions contained in sub-section (2) of Section 24, where a Certificate of Marriage has been finally entered in the Marriage Certificate Book, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnised WP(C)No.3575/2021 8 under the Act and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents.
11. In the present case, the petitioner has approached the Marriage Officer, Ranni, Pathanamthitta and the marriage of the petitioner has been registered under the Special Marriage Act, 1954, as is evidenced by Ext.P3. Therefore, in view of Section 18 of the Special Marriage Act, the marriage of the petitioner so registered should be deemed to be a marriage solemnised under the Special Marriage Act. If that be so, there is no justification for the 2 nd respondent-FRRO not to rely on Ext.P3 Certificate of Marriage for the purpose of considering the application of the petitioner for OCI card. In view of Ext.P3, it will also be not justified to insist that the petitioner shall produce a Spinster Certificate. Therefore, the petitioner is entitled to get relief in the writ petition. WP(C)No.3575/2021 9
The writ petition is hence disposed of directing the 2nd respondent to consider the application for OCI card submitted by the petitioner without insisting for authenticated copy of Ext.P2 Marriage Certificate. The 2nd respondent shall rely on Ext.P3 Certificate of Marriage issued by the Marriage Officer, Ranni, Pathanamthitta under Section 16 of the Special Marriage Act, 1954 for the purpose of consideration of application for OCI card submitted by the petitioner.
Sd/-
N. NAGARESH JUDGE SR WP(C)No.3575/2021 10 APPENDIX OF WP(C) 3575/2021 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ONLINE APPLICATION FOR LIFE LONG VISA/OCI WITH INSTRUCTION FOR FILLING APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE AMAC MARRIAGE REGISTRY, ABUJA DATED 5/10/2018. EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE OF RE REGISTRATION OF THE MARRIAGE BEFORE MARRIAGE OFFICER (SRO), RANNI ON 25/4/2019 AS PER SPECIAL MARRIAGE ACT, 1954 EXHIBIT P4 A TRUE COPY OF THE EXTENSION OF HE PETITIONER STAY VISA UP TO 1/4/2020 EXHIBIT P5 A TRUE COPY OF THE EXTENSION OF STAY VISA OF THE PETITIONER UP TO 1/4/2021 EXHIBIT P6 A TRUE COPY OF THE RELEVANT EXTRACT OF THE PASSPORT OF THE PETITIONER EXHIBIT P7 A TRUE COPY OF THE NOTARIZED AFFIDAVIT BY THE PETITIONER SUBMITTED TO 2ND RESPONDENT EXHIBIT P8 A TRUE COPY OF POSTAL ACKNOWLEDGMENT RECEIPT BY 2ND RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE INTERIM ORDER DATED 29/3/2019 IN WP(C) NO.9251/2019 (F) OF THE HON'BLE HIGH COURT.