Arun K. G. S/o Gouthaman v. Marriage Registrar Kozhikode Corporation
2018-10-10
ALEXANDER THOMAS
body2018
DigiLaw.ai
JUDGMENT : The petitioners, who claim that they have solemnized their marriage on 8.9.2017 in accordance with the provisions contained in the Hindu Marriage Act, are aggrieved by the refusal on the part of the 1st respondent-Marriage Registrar in registering their marriage in terms of the provisions contained in the Registration of Marriages (Common) Rules, 2008 (Kerala), on the ground that the 2nd petitioner, who was born as a Christian, cannot be treated as a Hindu at the time of her marriage merely on the basis of the declaration made in the affidavit sworn to by her, as produced before the said respondent. The prayers in this Writ Petition (Civil) are as follows:- “A. Declare that the failure of the respondent to accept the document of self declaration of the second petitioner evidencing her conversion to Hindu-Ezhava religion from the Christian religion, thereby denying the registration of her marriage with the first petitioner solemnized on 08-09-2017 in accordance with the rites and ceremonies followed by the Hindu-Ezhava community, is amounting to dereliction of statutory duties enjoined upon the Marriage registrar and violation of the rights off petitioners and therefore, the said omission is liable to be rectified by the enabling orders of the court; B. Issue a Writ of mandamus or such other Writ or order directing the respondent to accept the Exhibit-P self declaration of the second petitioner as sufficient proof of her conversion to Hindu-Ezhava religion and accordingly accept the application and supporting documents enabling the registration of the marriage of the petitioners, solemnized on 08-09-2017 at Alakapuri hotel, Kozhikode and register their marriage in accordance with the law; C. Issue any other order or direction to the respondent, if the facts and circumstances of the case so warranted, in the interest of justice.” 2. Heard Sri. M.K. Dileep Kumar, learned counsel for the petitioners, Smt. Bindumol Joseph, learned Standing Counsel for Kozhikode Municipal Corporation, appearing for the 1st respondent-Marriage Officer attached to that Corporation and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the additional 2nd respondent-Chief Registrar of Births & Deaths, Government of Kerala. 3. According to the petitioners, the 1st petitioner is a Hindu by religion and belongs to Ezhava community. The 2nd petitioner was born as a Christian to Christian parents.
Saigi Jacob Palatty, learned Senior Government Pleader appearing for the additional 2nd respondent-Chief Registrar of Births & Deaths, Government of Kerala. 3. According to the petitioners, the 1st petitioner is a Hindu by religion and belongs to Ezhava community. The 2nd petitioner was born as a Christian to Christian parents. That the marriage between the petitioners are proposed by family members and the 2nd petitioner had decided to convert as a Hindu and then to join in matrimony with the 1st petitioner so as to solemnize the marriage as conceived in the Hindu Marriage Act, 1955. That under law, no specific ceremony is prescribed for conversion of a non-Hindu as a Hindu and that the 2nd petitioner had decided in unequivocal and unambiguous terms and that too with the consent of her parents to become a Hindu and follow the customs and rites of Hindu community and live in matrimony with the 1st petitioner as Hindu. That the 2nd petitioner had also sworn to Ext.P-1 affidavit dated 31.7.2017 declaring in clear and unequivocal terms that though she was born as a Christian, she is converting herself as a Hindu and the said sworn affidavit of the 2nd petitioner has been attested before the authorised Notary Public. Thereafter, with the consent of both the families, the marriage of the petitioners was held in a Kalyanamandapam attached to the Alakapuri Hotel, Kozhikode and marriage invitation cards as per Ext.P-2 were distributed to the persons concerned and the marriage between the petitioners was formally solemnized as conceived in the Hindu Marriage Act and that Exts.P-3 & P-4 are the photographs regarding the conduct of solemnization of the marriage and Ext.P-5 is the marriage certificate dated 17.9.2017 issued by the body, who is conducting the Hindu Kalyanamandapam, certifying that the marriage between the petitioners was duly solemnized on 8.9.2017. After her conversion as Hindu and before the marriage, the 2nd petitioner was accepted by the community of the family of the 1st petitioner and hence she is following the customs and rites of that community and that she has also accepted a Hindu name as 'Lakshmi' instead of her previous Christian name as 'Tessymol'. The petitioners were advised to register their marriage under the Kerala Registration of Marriages (Common) Rules, 2008, and had approached the 1st respondent, who is the notified Marriage Officer as per the said Rules attached to the Kozhikode Municipal Corporation.
The petitioners were advised to register their marriage under the Kerala Registration of Marriages (Common) Rules, 2008, and had approached the 1st respondent, who is the notified Marriage Officer as per the said Rules attached to the Kozhikode Municipal Corporation. That the said respondent had taken the stand that a mere declaration by the 2nd petitioner in Ext.P-1 sworn notarised affidavit dated 31.7.2017 that she has converted herself as a Hindu, would not suffice and that necessary materials to prove that she was a Hindu at the time of her marriage should be produced in order to consider their request for registration of the marriage. A lawyer's notice was sent on behalf of the petitioners as per Ext.P-6 dated 8.2.2018 to which reply has been given by the 1st respondent as per Ext.P-7 letter dated 9.3.2018. In Ext.P-7 the 1st respondent has taken the stand that all what he has insisted is that the request for registration of marriage under the abovesaid Rules should be submitted in the prescribed proforma as per the Rules and necessary materials should be produced to evidence the fact that the marriage was formally solemnized between the parties as Hindus, etc. Ext.P-8 dated 10.4.2018 is the copy of the application submitted by the petitioners in the prescribed proforma for registration of the marriage under the abovesaid rules. In Ext.P-8(4), the petitioners have informed the Marriage Registrar about Ext.P-1 sworn affidavit and also that even long prior to the conduct of solemnization of marriage on 8.9.2017, the 2nd petitioner had converted herself as a Hindu as evident from Ext.P-1 affidavit dated 31.7.2017 and that the 1st respondent should take necessary steps without any further delay for effectuating registration of their marriage, etc. It is in the light of these factual avernemnts that the petitioners have filed the instant Writ Petition (Civil) with the aforementioned prayers. 4.
It is in the light of these factual avernemnts that the petitioners have filed the instant Writ Petition (Civil) with the aforementioned prayers. 4. When the matter was taken up for consideration on earlier occasion, the learned Standing Counsel for the Kozhikode Municipal Corporation appearing for the 1st respondent, submitted that clarifications have been sought by the said respondent from the Chief Registrar of Births & Deaths, appointed by the Government of Kerala as to whether the declaration made by the 2nd petitioner merely on the basis of Ext.P-1 affidavit is sufficient to treat her as a Hindu in order to evaluate the issue as to whether the claimed marriage was solemnized as Hindus as conceived under the provisions of the Hindu Marriage Act. Accordingly, this Court had suo motu impleaded the Chief Registrar of Births & Deaths, as 2nd respondent in this Writ Petition. 5. The main issue to be determined in this case is as to whether the 2nd petitioner could be treated to have been converted as Hindu prior to the solemnization of her marriage on 8.9.2017, as conceived under the provisions contained in the Hindu Marriage Act, 1955, in the given facts and circumstances of the case for the limited purpose of considering the plea for registration of the marriage. Sec.2 of the Hindu Marriage Act, 1955, which deals with applicability of the said Act provides as follows: “Sec.2: Application of Act.-(1) This Act applies- (a) To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) To any person who is a Buddhist, Jaina or Sikh by religion, and (c) To any other person domiciled in the territoriesto which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be: (a) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) Any child, legitimate or illegitimate, one of whose parents a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe community, group or family to which such parent belongs or belonged; and (c) Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. (2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this act applies by virtue of the provisions contained in this section.” (emphasis supplied). Therefore, a marriage between a man and woman could be legally solemnized as conceived in the Hindu Marriage Act, 1955, if they are Hindus as understood in the abovesaid provisions contained in Sec.2 of the Act and therefore going by the prescription in Sec.2(1)(c) thereof any person who is converted to Hindu religion could also be treated as a Hindu for the purpose of applicability of Hindu Marriage Act, 1955. 6. A similar matter had come up for consideration before the Apex Court in the celebrated decision in Perumal Nadar (dead) represented by Legal Representative v. Ponnuswami Nadar (Minor), reported in AIR 1971 SC 2352 . In the said case, one Perumal Nadar (a Hindu, who belonged to Nadar community) had married Annapazham (daughter of one Kailasa Nadar an Indian Christian) and in that marriage 2 children were born. Annapazham was born to Christian parents and she had followed Christian faith. She had married Perumal Nadar when she was 19 years of age. The marriage was solemnized on 29.11.1950. Prior to that, on 19.11.1950 she went through the ceremony of marriage and lived with Perumal as his wife for several years thereafter. The births of the children born in their marriage were also registered as Hindus in the register of births.
She had married Perumal Nadar when she was 19 years of age. The marriage was solemnized on 29.11.1950. Prior to that, on 19.11.1950 she went through the ceremony of marriage and lived with Perumal as his wife for several years thereafter. The births of the children born in their marriage were also registered as Hindus in the register of births. On the occasion of the marriage, printed invitation cards were sent to the relatives of Perumal Nadar and Annapazham and an agreement was executed by Perumal Nadar and Annapazham stating that they have married as settled by their parents and that their parents and relatives have fully consented to their marriage and that they have agreed to lead a family life as husband and wife and that they will have the rights in respect of the properties belonging to them under the Hindu Mitakshara Law. Further the marriage ceremony was performed according to Hindu religious custom and a bridal platform was constructed and Perumal Nadar had tied the sacred thali, which is customary for a Hindu husband to tie in acknowledgment of the marriage. The Apex Court in para 6 of the said judgment held that the findings made by the courts below that Annapazham was converted as Hindu before her marriage with Perumal are supported by evidence and it was further held therein that a person may be Hindu by birth or by conversion and a mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism, but a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion and that no formal ceremony of purification or expiation is necessary to effectuate such conversion of non-Hindu as a Hindu.
Further it was also held in para 9 thereof that the evidence clearly establishes that the parents of Annapazham arranged the marriage and the marriage was performed according to Hindu rites and ceremonies in the presence of relatives, who were invited to attend customary ceremonies peculiar to a marriage between Hindus was performed and no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the husband has also treated her as a Hindu. It was held therein that on the evidence, there can be no doubt that Annapazham bona fide intended to contract Hindu marriage with Perumal and the absence of specific expiatory or purificatory ceremonies will not be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. Further it was held that the fact that Perumal Nadar (husband) chose to go through the marriage ceremony according to Hindu rites with Annapazham (wife) in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed. It will be profitable to refer to paras 6 & 9 of the decision of the Apex Court in Perumal Nadar's case (supra), reported in AIR 1971 SC 2352 , p.p. 2353-2354, which read as follows: “6. It is not necessary to decide in this case whether marriage between a Hindu male and an Indian Christian female may be regarded as valid for, in our judgment, the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal is amply supported by evidence. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith; accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. xxx xxx xxx 9. The evidence clearly establi shes that the parents of Annapazham arranged the marriage.
But a bona fide intention to be converted to the Hindu faith; accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. xxx xxx xxx 9. The evidence clearly establi shes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend: customary ceremonies peculiar to a marriage between Hindus were performed: no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed.” 7. A similar issue was also considered by a Division Bench of this Court in the case in In Re Betsy and Sadanandan, reported in 2009 (4) KLT 631 , wherein the first appellant was a Christian by birth and the 2nd appellant was a Hindu by birth. Before the marriage the first appellant had claimed that she had converted to Hindu and their marriage was taken place as per the Hindu rites and ceremonies and the marriage was registered on 16.7.1989. It was held by the Division Bench that an assertion of the first appellant that she had, prior to her marriage embraced Hinduism will have to be given due weight. She had worshiped as Hindu and that she had held out to the world that she is a Hindu as on the date of her marriage and the said uncontroverted assertion could be acted upon. It will be profitable to refer to para 13 of the above said judgment rendered by this Court in In Re Betsy and Sadanandan, reported in 2009 (4) KLT 631 , p.637, which reads as follows: “13.
It will be profitable to refer to para 13 of the above said judgment rendered by this Court in In Re Betsy and Sadanandan, reported in 2009 (4) KLT 631 , p.637, which reads as follows: “13. But the courts cannot throw their hands up. Resolve they must, in the event of controversy or conscientious and objective doubt (even when parties raise no controversy) of the question whether there was conversion or reconversion to Hinduism in a given case as asserted by the litigant. We are certain that it must be possible for the court below with the help of the above guidelines, on the basis of evidence presently available and further evidence that may be adduced, to decide whether the 1st appellant has become a Hindu by conversion under Explanation (c) to S.2(1) of the Hindu Marriage Act. We may broadly indicate that an assertion of the 1st appellant that she had, prior to her marriage, embraced Hinduism will have to be given due weight. She can explain the assertion and satisfy the court that the tests indicated above have been satisfied by her in accepting conversion to Hinduism. She can prove the conduct of having her marriage with the 2nd appellant solemnised in accordance with Hindu religious rites and ceremonies. She can certainly show before court that she had, after such conversion, been worshipping Hindu Gods. She can also adduce evidence to show that after such conversion, she has held out to the world that she is a Hindu. All these circumstances, if established, we find no reason why the uncontroverted assertion of the appellants that the 1st appellant had become a Hindu by conversion before marriage cannot be accepted and the marriage performed in accordance with Hindu rites cannot be accepted as valid under the Hindu Marriage Act by the court below.” 8. A learned Single Judge of this Court in the case in Pranav v. Engandiyur Grama Panchayat, reported in 2018 (2) KLT 870 , has considered a similar issue with respect to the claims made for registration under the abovesaid Common Rules and held that when a person declares that he is converted as Hindu, that would be sufficient for the public authorities to act. The registration of the marriage is not automatic and legality of such marriage would depend upon the law applicable in India.
The registration of the marriage is not automatic and legality of such marriage would depend upon the law applicable in India. The limited question is as to the mode of satisfaction for registering the marriage to be entered into by the registering officer and that would give answer to the issue which is germane to the public law remedy in the context of claims for registration of the marriage under the abovesaid Common Rules. Further it was held that there is no formal ceremony of expiration necessary in law to effectuate conversion as Hindu so long as there are no ulterior or mala fides that can be pointed out, the public authority cannot refuse to act upon such request. Further, it was held that the Registrar was not the competent authority to decide on the validity of such marriage and his limited duty is to conduct summary enquiry as to the legality of the marriage and he need to have only a prima facie view that the marriage has been conceived in law and once such satisfaction has been entered into by the Registrar he need not conduct further enquiry to the fact whether conversion to Hinduism or other religion is valid or not. Further, it was held that the very purpose of registration of marriage is only to give prima facie indication to accord evidence of marriage and not validity of such marriage. It will be profitable to prefer paras 5 & 6 of the abovesaid judgment of this Court in Pranav's case (supra), reported in 2018 (2) KLT 870 , p.p.872-874, which read as follows: “5. I find force in the submission made by the learned Amicus Curiae. The registration of the marriage is not automatic. The legality of such marriage would depend upon the law applicable in India. What is the mode of satisfaction for registering the marriage to be entered by the registering officer, is the question that would give answer to the issue which is germane to the public law remedy. When a person declares that he is converted to Hindu, that would be sufficient for the public authorities to act. There is no formal ceremony of expiation necessary to effectuate a conversion to Hinduism.
When a person declares that he is converted to Hindu, that would be sufficient for the public authorities to act. There is no formal ceremony of expiation necessary to effectuate a conversion to Hinduism. In the absence of any particular mode prescribed for conversion as a Hindu, without there being any mala fides that can be pointed out, the public authority cannot refuse to act upon such request. I am fortified with such a view, in the light of the judgment of the Hon'ble Supreme Court in Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (Minor) (1971 KLT OnLine 1002 (SC) : AIR 1971 SC 2352 : 1978 KHC 429), the Division Bench judgment of this Court in Betsy & Anr. v. Nil ( 2009 (4) KLT 631 : 2009 (4) KHC 560 ) and the judgment of the learned single Judge in Ram Mohan Das v. Travancore Devaswom Board & Ors. (1975 KLT SN 1 (C.No.3) : 1975 KHC 299). The freedom to practice any religion as mentioned in Article 25 of the Constitution of India is available to both the citizens as well as non-citizens. The Government or any other public offices cannot insist that they can only act upon such declaration based on a certificate issued by any authority appointed by the Government in this regard (see the judgment of this Court in Aysha v. The Director, Office of the Directorate of Printing Department ( 2018 (2) KLT 85 : 2018 (2) KHC 116 ). It is to be noted that the Registrar is only duty bound to conduct the summary enquiry as to the legality of the marriage. The Registrar is not the competent authority to decide on the competency to marry or validity of such marriage. He needs to have a prima facie view that the marriage has taken place in accordance with the personal law applicable to the parties. Once such a satisfaction is entered by the Registrar, he need not conduct further enquiry to the fact whether conversion to Hinduism or other religion is valid or not. As rightly pointed out by the learned Amicus Curiae that, in Indian context acceptance or acknowledgment into a community is understood based on the social interactions of such convertee.
Once such a satisfaction is entered by the Registrar, he need not conduct further enquiry to the fact whether conversion to Hinduism or other religion is valid or not. As rightly pointed out by the learned Amicus Curiae that, in Indian context acceptance or acknowledgment into a community is understood based on the social interactions of such convertee. However, an enquiry to be conducted for registering a marriage under the Rules is very limited as it has to be done within a shortest period of 45 days of marriage. On such background, it is very difficult for the Registrar to find out whether such convertee has been accepted by the community or not. It is to be noted that the validity of the marriage in accordance with the person is still open for consideration by the court concerned in appropriate stage if any dispute arises in such marriage. In fact, the Rules were framed pursuant to the directions in Seema v. Ashwani Kumar (2006 (1) KLT 791 (SC) : 2006 KHC 121), wherein, the Hon'ble Supreme Court also observed that registration itself cannot be a proof of valid marriage per se and would not be the determinative factor regarding validity of a marriage. Therefore, it is clear that the very purpose of registration of marriage is only to give a prima facie indication to accord evidence of marriage and not validity of such marriage. The validity of marriage depends upon the personal law applicable, if the parties get married in accordance with the personal law or depend upon the secular law that is applicable to such marriage. 6. The question in regard to the marriage under the context of the Rules is only limited for conducting an enquiry whether the parties are married in accordance with the personal law applicable to the parties or in accordance with the secular law applicable. Once that satisfaction is entered into by the Registrar, the Registrar is bound to register such marriage, notwithstanding that he had entertained a doubt regarding the competency or capacity of the persons to contract or solemnize such marriage in accordance with the law applicable.” 9.
Once that satisfaction is entered into by the Registrar, the Registrar is bound to register such marriage, notwithstanding that he had entertained a doubt regarding the competency or capacity of the persons to contract or solemnize such marriage in accordance with the law applicable.” 9. It has also been held by the learned Single Judge of this Court in the decision in Aysha v. Director, Office of the Directorate of Printing Department, reported in 2018 (2) KLT 85 , that the right to profess and practise a religion is a fundamental right and one has the liberty to choose his own faith and freedom of conscience and religion as enshrined in the Constitution, is not a mere declaration of a Constitutional right, but a declaration of a right already existed in the society and that public authority will have to act upon one's declaration as to the change of his faith or conscience and maturity of such decision cannot be subjected to examination by any authority. Further that Government are not competent to compel a person to affirm his change of religion, only through a particular mode vis-a-vis the certificate issued by the authorised organisation, etc. It will be profitable to refer to paras 5, 6 & 7 of Aysha's case (supra), reported in 2018 (2) KLT 85 , p.p.87-88, which read as follows: “5. The right to profess and practice a religion is a fundamental right. One has the liberty to choose his own faith. Freedom of conscience and practice, as enshrined under the Constitution, is not a mere declaration of a Constitutional right, but a declaration of a right that already exists in the society. The liberty of an individual is a primordial right from time immemorial. The Constitution only had declared such existing right through Article 25 of the Constitution. The Government, therefore, will have to act upon one's declaration as to the change of his faith or conscience. Maturity of such decision cannot be subjected to any examination by any authority. 6. If the Government doubts as to the genuineness of such claim, the Government can conduct an enquiry as to the veracity of such declaration. No doubt, for the purpose of effecting changes in the Government records and streamlining any procedure, the Government may require some evidence.
Maturity of such decision cannot be subjected to any examination by any authority. 6. If the Government doubts as to the genuineness of such claim, the Government can conduct an enquiry as to the veracity of such declaration. No doubt, for the purpose of effecting changes in the Government records and streamlining any procedure, the Government may require some evidence. But that does not mean that, for effecting any changes, the Government can insist for production of any certificate issued by certain authority or organization which has been given an exclusive power for issuance of such certificate. The right to practice cannot be burdened with, based on the certificate issued by an organization or an institution. Free exercise of religion means there are no restraints in practice. If the Government order as such is implemented, a person who changes his faith would be at the mercy of such organization to declare his status of change of faith. The Government cannot compel a person to affirm his change of religion, only through a particular mode vis-a-vis the certificate issued by the authorized organization. Freedom of practice of religion, as guaranteed under the Constitution is unrestricted by any qualification. The power of faith is something which one has inherently possessed in himself. Mere declaration of change of religion would be sufficient for the Government to act upon such changes to be effected in the Government records. As already adverted, the Government, if entertains any doubt as to the genuineness of such declaration, it can conduct an enquiry through the revenue official like Tahsildar. If the Government insist that to effect changes one need to produce such certificate issued by the organization authorized by the State, certainly, that would amount to a fetter on the freedom guaranteed to such persons by the Constitution. The right to practice religion also includes his right to be known, as belonged to a particular faith or religion. 7. Though there is a challenge regarding the Government order, this Court need not interfere with the order, in the sense that the Government cannot give any exclusive right to such authority for acting upon any request made by a citizen for declaring the status. The direction in the Government order can be treated only as directory and not as mandatory.” 10.
The direction in the Government order can be treated only as directory and not as mandatory.” 10. The upshot of the above discussion is that a mere declaration by a person that he has converted to Hindu by itself does not convert him into a Hindu and a bona fide intention to be converted to the Hindu faith accompanied by conduct unequivocally expressing that intention would be sufficient to effectuate such conversion. No formal ceremony of purification or expiation is necessary in law to effectuate conversion as a Hindu. Further the competence of the Registrar, notified under the Registration of Marriages (Common) Rules, 2008 (Kerala), is limited to conduct summary enquiry as to the legality of the marriage and he need to have only a prima facie view that the marriage has been conceived as per law and once such satisfaction has been entered into by the Registrar he need not conduct further enquiry to the fact whether conversion to Hinduism or other religion is valid or not. So also, no public authority can compel a person to affirm his change of religion only by fulfilling the mode as prescribed in any Governmental guidelines which insist that certificate should be issued by the authorized organization in such governmental guidelines to prove the factum of conversion. If such materials to prove the factum of conversion on the basis of such certificate issued by organization authorized by the Governmental guidelines are produced, certainly that would be a relevant piece of evidence and mere absence of such evidence would not by itself lead to the situation of rejection of the claim regarding conversion of religion and consequential solemnization of marriage merely because such certificates are not produced. This Court is now embarking consideration only on the limited perspective to decide whether necessary directions could be issued for registration of the marriage between the petitioners. Going by the abovesaid legal position settled in the aforementioned judgments, more particularly in Perumal Nadar's case (supra), this Court has no hesitation to hold that for the limited purpose of deciding on the claims of the petitioners for registration of marriage under the abovesiad Rules, the submission of the petitioners that the 2nd petitioner had converted as a Hindu prior to her marriage, appears to be bonafide and cannot be said to be motivated by any malafide or ulterior considerations.
The unequivocal and categorical declaration made by the 2nd petitioner as per Ext.P-1 affidavit sworn on 31.7.2017, which is about 6 weeks prior to the solemnisation of her marriage, shows her bonafide intention to convert as Hindu. Her subsequent conduct in voluntarily undergoing ceremonial marriage as per Hindu customs and rites on 8.9.2018 is a clear conduct on her part in declaring to the outside world that she has become a Hindu. Coupled with this, the acceptance of her marriage as per Hindu customs, by her own family, the family members of her husband and his community members would reinforce the bonafides of her intention and conduct in converting as a Hindu, etc. The abovesaid decision is rendered by this Court only from the limited point of view as to whether the marriage could be registered in accordance with the abovesaid provisions of the abovesaid Rules. Going by the tests laid down in the abovesaid decisions, the overwhelming factual aspect is that the 1st respondent-Registrar is bound to consider the registration of the marriage of the petitioners by treating that the 2nd petitioner has converted as Hindu prior to her marriage for the limited purpose of deciding whether marriage should be registered in accordance with the above said Rules. Accordingly, it is ordered that the 1st respondent- Marriage Registrar will take up the request of the petitioners in Ext.P-8 series of applications for registering their marriage, solemnized on 8.9.2017 as per the provisions contained in the Registration of Marriages (Common) Rules, 2008 (Kerala), without any further delay, subject to fulfilment of all other necessary and eligibility conditions in that regard and in the light of the observations and findings by this Court in this judgment. The petitioners may be given reasonable opportunity of being heard by the 1st respondent before he takes a decision on the abovesaid aspects. The entire formalities in that regard may be duly completed by the 1st respondent-Registrar preferably within a period of 3 weeks from the date of production of a certified copy of this judgment. 11. The 2nd petitioner had insisted that her name should be entered as “Lakshmi” instead of her Christian name “Tessy Mol” in the application and in the marriage register, etc., which have been contested by the 1st respondent-Registrar on the ground of change of name has not been effectuated in the manner known to law.
11. The 2nd petitioner had insisted that her name should be entered as “Lakshmi” instead of her Christian name “Tessy Mol” in the application and in the marriage register, etc., which have been contested by the 1st respondent-Registrar on the ground of change of name has not been effectuated in the manner known to law. It is not in dispute that the name of the 2nd petitioner (Tessy Mol) has not been changed as “Lakshmi” in the manner known to law, as of now. No Gazette publication regarding effectuation of such change of name has so far been produced. So long as the 2nd petitioner has not produced any such Gazette publication regarding change of name, the 1st respondent is right in insisting that name of the 2nd petitioner can be shown only as “Tessy Mol” and not as “Lakshmi” in Ext.P-8 series of application as well as in consequential records. However, it is made clear that, if subsequently, the 2nd petitioner takes necessary steps to effectuate the change of her name through Gazette publication, then it is for her to subsequently make request for correction of the records including the certificate of marriage that may be issued by the 1st respondent by producing such Gazette publication. The petitioners may produce a certified copy of this judgment before the 1st respondent for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.