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2018 DIGILAW 749 (KER)

Fathima Sheriff v. Sub Registrar

2018-09-19

ALEXANDER THOMAS

body2018
JUDGMENT : The 1st petitioner who is a divorced Muslim lady, is aggrieved by the impugned Ext.P3 order dated 14.9.2018 rendered by the respondent Sub Registrar, SRO, Ernakulam to the extent he has insisted that the first petitioner should necessarily produce a decree from the competent Court for proving the dissolution of her marriage, before her application for solemnization of marriage with the proposed groom under the provisions of the Special Marriage Act, 1954 could be considered by him. 2. The prayers in this Writ Petition (Civil) are as follows : “(i) Issue a Writ of Certiorari or such other Writs, Order or Direction quashing Exhibit P3 Order Dt.14.09.2018 passed by the Second Respondent. (ii) Issue a Writ of Mandamus or such other Writ, Order, or Direction directing the Respondents to register the marriage of the Petitioners immediately upon completion of the statutory time limit of 30 days from Exhibit P1 Application Dt.13.09.2018 as prescribed under S.5 of the Special Marriage Act, 1954. (iii) Issue a Writ of Mandamus or such other Writ, Order or Direction directing the Respondents to consider afresh and pass appropriate Orders and dispose off Exhibit P1 Application Dt.13.09.2018 submitted by the Petitioners in accordance with law in a time frame manner as stipulated by this Hon'ble Court.” 3. Heard smt. Sangeetha Lakshmana, the learned counsel appearing for the petitioners and Smt. A.C. Vidhya, the learned Government Pleader appearing for the respondent Sub Registrar. 4. According to the petitioners, the 1st petitioner belongs to the Muslim Community had earlier contracted a marriage on 20.5.2007 with one Dr. Saruddin Shazeer Majeed, who is also a Muslim. The relationship between the 1st petitioner and her spouse got irretrievably broken down and her spouse had pronounced 'talak' (divorce) in respect of the above said marriage, as per the enabling provisions in the Muslim Personal Law, on 14th June, 2014. Ext.P1(6) is the 'talak' rendered by the 1st petitioner's husband on 14.6.2014. The Muslim Jama-Ath, Thrissur has issued Ext.P1(7) certificate dated 14.09.2018 certifying that the marital relationship between the 1st petitioner (Dr.Fathima Sheriff) and the above said Dr. Saruddin Shazeer Majeed has been dissolved by 'talak' rendered on 14.6.2014 etc. Et.P1(7) certificate dated 14.9.2018 issued by the Thrissur Muslim Jama-Ath reads as follows : “Date 14.09.2018 xxxxxxx (Seal) THRISSUR MUSLIM JUMA-ATH KOKKALAI” 5. Saruddin Shazeer Majeed has been dissolved by 'talak' rendered on 14.6.2014 etc. Et.P1(7) certificate dated 14.9.2018 issued by the Thrissur Muslim Jama-Ath reads as follows : “Date 14.09.2018 xxxxxxx (Seal) THRISSUR MUSLIM JUMA-ATH KOKKALAI” 5. The 1st petitioner now intends to marry the 2nd petitioner who belongs to Hindu Religion and therefore, the marriage could be solemnized and registered only in accordance with the provisions contained in the Special Marriage Act, 1954. The petitioners have submitted the statutory notice of intended marriage dated 14.9.2018 as per Section 5 of the said Act read with the 2nd Schedule thereto as evident from Ext.P1 to the respondent, who is the statutorily notified Marriage Officer as per the provisions of the above said Act. According to the petitioners, they have submitted all the necessary materials for supporting their Section 5 notice and that Ext.P1 (6) 'talak' (divorce) and Ext.P1 (7) certificate of the Thrissur Muslim Jama-Ath etc. have also been made available before the respondent Marriage Officer and that the requisite fee has also been paid as per Ext.P2. Now the respondent Marriage Officer has issued the impugned Ext.P3 letter dated 14.9.2018 intimating the 1st petitioner that her application for solemnization of marriage under the above said Act could be taken up only after she produces a decree from the competent Court to evidence the dissolution of her first marriage. It is this order Ext.P3 that is under challenge in this Writ petition. 6. At the outset it is to be noted that Ext.P1(6) 'talak' (divorce) has been rendered more than three years ago. The respondent Marriage Officer has no case that either of the parties to the first marriage has any dispute regarding the validity of Ext.P1 (6) 'talak' (divorce). The 1st petitioner, who was the wife in that marriage, has no dispute regarding the legality and correctness of Ext.P1(6) 'talak'(divorce) and on the other hand, she is banking upon and placing reliance on Ext.P1 (6) 'talak' (divorce) to substantiate a claim that being a divorced lady, she fulfills all the eligibility conditions in the above said Act and that she does not incur any of the disqualifications under the above said Act. Ext.P1(7) is the certificate dated 14.09.2018 issued by the Thrissur Muslim Jama-Ath evidencing about Ext.P1(6) talak' (divorce) in respect of the first marriage. Ext.P1(7) is the certificate dated 14.09.2018 issued by the Thrissur Muslim Jama-Ath evidencing about Ext.P1(6) talak' (divorce) in respect of the first marriage. This Court in the judgment in Abdul Khader Suhud v. State of Kerala reported in [ 2007(1) KLT 400 ] has dealt with similar issue and has held that the certificate issued by the Muslim Jama-Ath is sufficient proof for dissolution of marriage and that the Marriage Officer under the Special Marriage Act, 1954 cannot insist on the production of a decree of divorce to prove the condition in clause (a) of Section 4 of the Special Marriage Act, 1954, which stipulates that neither party to the proposed marriage under the Special Marriage Act, should have a spouse living etc. It was held by this Court in Abdul Khader Suhud's case (supra) that under Muslim Personal Law, a Muslim can validly divorce his wife without resorting to proceedings before a Civil Court or Family Court and therefore the statutory Marriage Officer cannot, under law, insist on production of a decree of divorce in the earlier marriage for solemnizing and registering the second marriage of the petitioner therein when the party has produced adequate of proof of divorce of the first marriage as required under Muslim Personal Law and that the Marriage Officer can act on the basis of the certificate issued by the Muslim-Jama-Ath and since the party had submitted a declaration in which it is specifically declared that the petitioner is a divorcee at present, it was held by this Court that those are sufficient formalities for proving that the party therein had in fact divorced his first spouse etc. 7. As stated herein above, nobody has a case that any of the parties to the first marriage has disputed about the legality and correctness of Ext.P1(6)'talak'(divorce). In such cases, ordinarily, the grievance to challenge legality and correctness of 'talak' (divorce) is with the muslim wife concerned and in the instant case, the 1st petitioner herself is banking upon and relying on Ext.P1(6) 'talak' (divorce). Moreover, Ext.P1(7) is the certificate issued by the Thrissur Muslim Jama-Ath evidencing the factum of Ext.P1(6) 'talak' (divorce). Under these circumstances, it is not right and proper for the respondent Marriage Officer to insist as per the impugned Ext.P3 order that the petitioner should necessarily produce the decree of the competent Court evidencing dissolution of her first marriage. Moreover, Ext.P1(7) is the certificate issued by the Thrissur Muslim Jama-Ath evidencing the factum of Ext.P1(6) 'talak' (divorce). Under these circumstances, it is not right and proper for the respondent Marriage Officer to insist as per the impugned Ext.P3 order that the petitioner should necessarily produce the decree of the competent Court evidencing dissolution of her first marriage. In the facts and circumstances of the case, it is only to be held that it is an impossibility for the first petitioner, who is the Muslim lady to secure such a decree, when the dissolution is on the basis of Ext.P1(6) 'talak'(divorce). However, to facilitate further action, it is ordered that the 1st petitioner will ensure that an affidavit sworn to by the competent office bearer of the Muslim Jama-Ath and attested by a Notary Public is produced before the Marriage Officer stating about the authenticity of Ext.P1(7) certificate issued in regard to the factum of Ext.P1(6) 'talak' (divorce). Such notarized affidavit of the Jama-Ath may be made available by the 1st petitioner before the respondent Marriage Officer without much delay preferably within one week from the date notified for receiving a certified copy of this judgment. Accordingly, Ext.P3 dated 14.9.2018 will stand set aside. 8. Upon such production of affidavit, the respondent Marriage Officer will take further action in the matter of the request made by the petitioners for solemnization and registration of their marriage in accordance with the provisions contained in the Special Marriage Act, 1954 subject to satisfaction of all other conditions under the Act. Needless to say, that the commencement of the Section 5 statutory notice of intended marriage will commence from the actual date of submission of that notice by the petitioners. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.