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2014 DIGILAW 1840 (RAJ)

Susan Mathew v. State of Rajasthan

2014-11-17

ALOK SHARMA

body2014
JUDGMENT 1. - The issue in the present writ petition is with regard to the registration of Christian marriages. 2. The petitioner appearing in person states that she got married on 2.3.2014 as per Christian Customs and ceremonies in the presence of the family members and close relatives of both the parties. It has been submitted that her marriage was recorded at Corner Stone A.G Church, Heerapura where a register of Christian's marriage is maintained and certificate thereof issued. The marriage of the petitioner is required to be registered under the Indian Christian Marriage Act, 1872 (hereinafter 'the Act of 1872'). The Hon'ble Apex Court in the case of Seema v. Ashwani Kumar, 2006(2) SCC 578 has mandated that all the hetro sexual marriages in the Country irrespective of the religion of the couple are to be registered. The petitioner submits that under section 7 of the Act of 1872 the State Government indeed has the power to appoint one or more Marriage Registrar/s. Section 7 of the Act of 1872 also provides that where there is a vacancy on the post of a Marriage Registrar for whatsoever reason, the Magistrate of the district shall act as a Marriage Registrar for the period of vacancy. No such Marriage Registrar has in recent memory been appointed under section 7 of the Act of 1872 nor the District Magistrate acted as one to supply the vacancy. The registration of Christian marriages was by practice and convention over the last several years if not decades being done by Zonal Magistrate of Municipalities where the Christian Marriages took place. But since coming into force of the Rajasthan Compulsory Registration of Marriages Act, 2009 (hereinafter 'the Act of 2009'), the Zonal Commissioners of the concerned municipalities in the State of Rajasthan are not registering Christian marriages on the ground that section 20 of the Rajasthan Compulsory Registration of Marriages Act, 2009 (hereinafter 'the Act of 2009') prohibits them.Section 20 of the Act of 2009 provides as under: "20. Act not to apply to certain marriages- This Act shall not apply to marriages solemnized under the Indian Christian Marriage Act, 1872 (Central Act no.15 of 1872), The Parsi Marriage and Divorce Act, 1936 (Central Act No. 03 of 1936) or the Special Marriage Act, 1954 (Central Act No. 42 of 1954)." 3. Act not to apply to certain marriages- This Act shall not apply to marriages solemnized under the Indian Christian Marriage Act, 1872 (Central Act no.15 of 1872), The Parsi Marriage and Divorce Act, 1936 (Central Act No. 03 of 1936) or the Special Marriage Act, 1954 (Central Act No. 42 of 1954)." 3. The petitioner submits that she is not seeking registration of her marriage by the Zonal Commissioner, Jaipur Municipal Corporation under the Act of 2009 but in terms of the guidelines issued by the Jaipur Municipal Corporation with reference to the judgment of the Hon'ble Apex Court in the case of Seema v. Ashwani Kumar (supra) and available on the Jaipur Municipal Corporation's website which mandates that the registration of marriages of all kinds within their jurisdiction shall be done by the Zonal Commissioners. It has been submitted that in-fact the Zonal Commissioners of the concerned Municipalities had indeed been registering Christian Marriages under the Act of 1872 and there is no reason for denying the registration of Christian Marriages by such Commissioners only because of the promulgation of the Act of 2009 when the registration sought is not under the Act of 2009 but the Act of 1872 under the Jaipur Municipal Corporation's own guidelines issued in compliance with the Hon'ble Apex Court's Judgment in the case of Seema v. Ashwani Kumar (supra). 4. Mrs.Naina Saraf, counsel appearing for the respondent Jaipur Municipal Corporation has submitted that as per section 20 of the Act of 2009 there is a statutory bar for registration of marriages solemnized under the Act of 1872. It was submitted that in terms of the Act of 1872, the petitioner is free to have her marriage registered under section 7 thereof either before the Marriage Registrar and even if there is a vacancy on the said post, then by the District Magistrate as provided therein. 5. Mr. Inderjeet Singh -learned AAG with Mr. Dharmendra Pareek appears for the respondent State and stated with reference to registration of Christian Marriages in the State of Rajasthan that the State Government's view is that subsequent to the promulgation of the Act of 2009, Christian Marriages cannot be registered by the Zonal Commissioner in the Jaipur Municipal Corporation or other Municipalities but are to be registered under section 7 of the Act of 1872. He submits that even though in the recent past, Christian Marriages were indeed registered by the Zonal Commissioners/Commissioner of the respective municipalities within which the Christian Marriages were performed, now the State Government's view is that Christian Marriages are to be registered by the Marriage Registrars appointed under section 7 of the Act of 1872 or in the absence of such Marriage Registrars by the District Magistrate on the concerned district. 6. The petitioner in rejoinder would submit that section 7 of the Act of 1872 is impliedly repealed by the doctrine of desuetude as the State Government over the last several years/decades did not appoint any Marriage Registrars or required the District Magistrates to register Christian Marriages. By consistent practice it was done by Zonal Commissioner of the municipalities under Births, Deaths and Marriages Registration Act, 1886 (hereinafter 'the Act of 1886'). Thus section 7 thereof should be taken to have been repealed impliedly. And in such a situation the guidelines of the Jaipur Municipal Corporation with regard to the registration of marriages under all religions formulated pursuant to the Judgment of the Hon'ble Apex Court in the case of Seema v. Ashwani Kumar (supra) covered the field and thereunder the Zonal Commissioners of the respective municipalities are under an obligation to register even a Christian Marriage under the Act of 1872 and not the Act of 2009. She submitted that she neither averred a case in the writ petition nor has submitted before this Court that her marriage solemnized under the Act of 1872 should be registered under the Act of 2009. She submitted that the bar of section 20 of the Act of 2009 would only operate if the person married under the Act of 1872 were to seek registration under the Act of 2009. The petitioner submitted that the defence of both the Jaipur Municipal Corporation and the State Government is callous, unusual in seeking to revive section 7 of the Act of 1872 despite its implied repeal on the doctrine of desuetude applicable in the present case for non-use of section 7 and practice contrary thereto over the last several decades. 7. Heard counsel appearing for the respective parties. 8. I am of the considered view that admittedly the marriage of the petitioner having been solemnized under the Act of 1872, section 7 thereof would be operative for its registration. 7. Heard counsel appearing for the respective parties. 8. I am of the considered view that admittedly the marriage of the petitioner having been solemnized under the Act of 1872, section 7 thereof would be operative for its registration. That is apparent on the plain reading of the aforesaid section. A similar stand has been taken by the learned Additional Advocate General even while admitting that no Marriage Registrar under section 7 of the Act of 1872 has been appointed for any district in the State of Rajasthan. But the non-appointment of the Marriage Registrar/s, however in terms of clause 3 of section 7 of the Act of 1872 would be not an obstruction for the registration of Christian marriages. Under clause 3 of section 7 of the Act of 1872 for reason of a vacancy in the office of a Marriage Registrar, the District Magistrate of the concerned district is required to act as Marriage Registrar and register Christian Marriages. 9. I am not inclined to invoke the doctrine of desuetude in the case at hand qua section 7 of the Act of 1872 as advocated by the petitioner on the ground that for decades no Marriage Registrar has been appointed under the Act of 1872 nor the District Magistrate of the district where Christian Marriage have been solemnized registered such marriage and the contrary and consistent practices of Christian Marriage being registered by the Zonal Commissioners of the respective municipalities. To my mind, the doctrine of desuetude ought to be invoked only in a case of necessity and where if not invoked the result would entail unconscionable prejudice to a party acting contrary to promulgated law and as per consistent contra practice. The petitioner's aggrievement of non-registration of her marriage can be addressed as even while Marriage Registrar/s under the Act of 1872 have not been appointed by the State Government, the District Magistrate, Jaipur in term of section 7 of the Act of 1872 can register the petitioner's marriage. He is directed to do so within seven days from the presentation of certified copy of this order and requisite document/s. The petitioner should not be put to any inconvenience on any specious ground and the direction of this Court not stalled for any but the most sterling legal reason. 10. He is directed to do so within seven days from the presentation of certified copy of this order and requisite document/s. The petitioner should not be put to any inconvenience on any specious ground and the direction of this Court not stalled for any but the most sterling legal reason. 10. At this stage it is also relevant to note the submissions of the petitioner that neither Marriage Registrars having been appointed by the State Government under section 7 of the Act of 1872 for decades nor the jurisdictional District Magistrate having acted so all the marriages registered by the Zonal Commissioners/Commissioners of the Municipalities thus far be saved. The submission is fair and it is accordingly directed. 11. The writ petition stands disposed of.Petition Disposed of. *******