Research › Browse › Judgment

Kerala High Court · body

1997 DIGILAW 306 (KER)

Remesh Kumar v. Kannapuram Grama Panchayat

1997-08-12

K.A.ABDUL GAFOOR

body1997
Judgment :- K.A. Abdul Gafoor, J. The Petitioner is a resident of Kannapuram Amsom Desom. He was working in a Company in Tokyo in Japan during 1989-1996. He happened to fall in love with a Japanese lady employed in Japan and they decided to get married. Accordingly, when the petitioner's wife reached at Kannapuram Amsom Desom in India, their marriage was solemnised on 27.7.1996, according to the petitioner, in accordance with the customary rites prevalent in the Nair community to which the petitioner belongs. The petitioner's wife is a Buddhist. It is further submitted by the petitioner that their marriage was solemnised under the 'Hindu Marriage Act 1955'. The petitioner, his wife and the newly born child want to go to Japan for employment purpose. For this purpose, the petitioner requires a Marriage Certificate relating to the marriage of the petitioner with his wife Yumi Ito. The marriage was held on 29.9.1996. The petitioner made an application to local authority. That was not considered. Therefore, the petitioner has approached this Court seeking a direction to the first respondent to issue a Marriage Certificate relating to his marriage under the Hindu Marriage Act, 1955 and Kerala Registration of Hindu Marriage Rules, 1957. 2. A counter Affidavit has been filed on behalf of the first respondent. It is stated that no application had been received from the petitioner seeking registration of Marriage or copy of the certificate. It is further submitted that the application, if received, will be considered, examined and disposed of in accordance with the law governing the issue. It is also mentioned that as the petitioner's wife is not a Hindu, to whom alone Hindu Marriage Act 1955 applies, such certificate cannot be issued. 3. The petitioner submits that the contention of the first respondent that his wife is not a Hindu and the Hindu Marriage Act is not applicable to their marriage is not correct. Placing reliance on S.2(3) of the said Act, the petitioner contends that the expression 'Hindu' in the Act includes 'any person who is a Buddhist, Jaina of Sikh by religion'. Therefore, the petitioner's wife is a person to whom the Act applies. Therefore, their marriage is a Hindu Marriage coming within S.5 of the said Act. Placing reliance on S.2(3) of the said Act, the petitioner contends that the expression 'Hindu' in the Act includes 'any person who is a Buddhist, Jaina of Sikh by religion'. Therefore, the petitioner's wife is a person to whom the Act applies. Therefore, their marriage is a Hindu Marriage coming within S.5 of the said Act. It is also submitted that the expression 'Hindu' in the Act includes ' a person who, though not a Hindu by religion, is nevertheless a person to whom this Act applies". Therefore, by S.2(1)(b) read with sub-s.3 of S.2, the petitioner submits that the Act applies to the petitioner's wife. Therefore, he is entitled to a Certificate. 4. The registration has to be applied for in terms of R.6 of Kerala Hindu Marriage Registration Rules, 1957 issued under S.8 of the Hindu Marriage Act. The said section provides for issuance of rules regarding registration of Hindu Marriage upon conditions to be prescribed in such Rules, The said Rule provides that "as soon as may be possible and not later than fifteen days after solemnization of a Marriage, the Husband may and in compulsory registration area, shall give or caused to be given a report about the Marriage for it being registered". The petitioner was unable to prove that he had made an application within fifteen days. The Rule is such that the application shall be filed on a date "not later than fifteen days after the solemnization of a Marriage". The petitioner contends that when the expression "as soon as may be possible" and the expression "not later than fifteen days" are read as disjunctive from each other, the fifteen days time shall not be insisted upon strictly. If more wait age is given to the expression "as soon as may be possible", the importance of the expression "not later than fifteen days", shall be read down and in such case the petitioner can apply on any date after the marriage within a reasonable time which, according to the petitioner he has followed. As the rule had employed the expressions as conjunctives to link the said two expressions, it makes the meaning that the application shall be made as soon as possible after the marriage and such application shall be not later than fifteen days. As the rule had employed the expressions as conjunctives to link the said two expressions, it makes the meaning that the application shall be made as soon as possible after the marriage and such application shall be not later than fifteen days. It' is more so, because the registration is provided under S.8 "for the purpose of facilitating the proof of Hindu Marriage" as Hindu Marriages are normally solemnised in accordance with the customs and to this there should be some proof. In such case, it is imperative that any application for registration shall be within a time frame, as otherwise, one applying for registration long after the marriage cannot get it registered as the registering authority may not be able to rely only on his words without any evidence or proof of marriage. Therefore, the time frame contained in R.6 has to be strictly followed. A Circular dated 3.3.1997 had been pointed out by the petitioner to contend that the registration is intended for the purpose of facilitating the proof of marriage and statistics and therefore, application received out of time can also be accepted. That circular is issued by the Government. But is it not Government Order under s.16(6). Even if it is a Government Order that cannot supplement the statutory Rules. 5. Even if the petitioner's contention with regard to the time frame is accepted, the petitioner cannot escape another clutch that the Act does not apply to the petitioner's wife. Admittedly by the petitioner, his wife is a Japanese Lady having Japanese Citizenship and is on temporary visit to India, the husband's place. S.5 makes it clear that the Hindu Marriage shall be a marriage between two Hindus. That means that they shall be Hindus to which the Act applies. S.1(2) of the Act specifically makes it clear that the Act extends to the whole of India except the State of Jammu & Kashmir and also that it applies to Hindus domiciled in the territories to which this Act extends, who are outside the said territories. Therefore, the Act will apply to a Hindu outside the territory of India, only if he is a Hindu domiciled in the territory of India. Therefore, only those Hindus having permanent residence in India will be covered by the Hindu Marriage Act. Therefore, the Act will apply to a Hindu outside the territory of India, only if he is a Hindu domiciled in the territory of India. Therefore, only those Hindus having permanent residence in India will be covered by the Hindu Marriage Act. In other words, the petitioner's wife, a Buddhist, can be taken as a Hindu for the purpose of application of this Act, as contained in S.2(1)(b) if she should also satisfy the application clause as contained in S.1(2)(b) of the said Act. For that, she shall be domicile of India residing in Japan. Domicile means permanent resident. The petitioner's wife is not a permanent resident of India and therefore, the Act does not apply to her. So, the marriage between the petitioner and his Japanese wife is not a Hindu Marriage to be registered under S.8 reads with the rules framed there under. Therefore, the petitioner is not entitled to any of the reliefs prayed for. The Original Petition fails. The Original Petition is dismissed.