Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 97 (KER)

Fini M. Lasar v. State of Kerala

2019-01-29

ALEXANDER THOMAS

body2019
JUDGMENT : Alexander Thomas, J. 1. The petitioners are aggrieved by the refusal on the part of the 3rd respondent Notified Marriage Officer to solemnize their marriage on the ground that the 2nd petitioner is a citizen of the United States of America and that the marriage between a citizen of India and a foreign citizen cannot be solemnized and registered in accordance with the provisions of Special Marriage Act, 1954 (hereinafter referred to as 'Act', for short). 2. The prayers in the above writ petition are as follows: "(i) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to solemnize and register the marriage of the petitioners after 1.2.2019. (ii) Issue such other and further reliefs as this Hon'ble Court may be deem fit and proper in the facts and circumstances of the case." 3. Heard Mr. C. Harikumar, learned Counsel for the petitioners and Mr. Saigi Jacob Palatty, learned Senior Government Pleader for the respondents. 4. Both the petitioners are divorcees and have not remarried after the dissolution of their first marriage. The 1st petitioner (proposed bridegroom) is a citizen of India and is now settled in India, whereas 2nd petitioner, though a person of Indian origin has subsequently acquired citizenship of the United States of America and is now settled in that country in connection with her employment. The 2nd petitioner was initially living in Australia with her first husband and later her marriage was duly dissolved as per a decree of the Family Court at 150 Terrace Road, Perth in Australia. Ext. P3 is the certificate of divorce dated 29.4.2007, which has been a postilled by the Department of Foreign Affairs and Trade, Perth, Western Australia and the said certificate was duly filed in the Circuit Court of Cook County, Illinois, U.S.A. in docket No. 07F05277 by Jeffrin Scaria Georege, the former husband of the 2nd petitioner. The said Court had acted upon the said certificate of divorce and authenticated Ext. P3 as per Ext. P4 proceedings dated 22.5.2007. Now as aforestated the 2nd petitioner is settled in U.S.A. after having obtained citizenship of that country. 5. Petitioners have now filed Ext. P5 notice of intended marriage dated 1.1.2019 under Section 5 of the Act before the 3rd respondent Notified Marriage Officer. P3 as per Ext. P4 proceedings dated 22.5.2007. Now as aforestated the 2nd petitioner is settled in U.S.A. after having obtained citizenship of that country. 5. Petitioners have now filed Ext. P5 notice of intended marriage dated 1.1.2019 under Section 5 of the Act before the 3rd respondent Notified Marriage Officer. The grievance of the petitioners is that they could reliably learn from the officials of the 3rd respondent that as per the circular issued by the Inspector General of Registration, pursuant to certain norms by way of Government Orders issued by the State Government, it has been stipulated therein that marriage of a citizen of India with a foreign citizen cannot be solemnized and registered in accordance with the provisions of the Act and that both the parties should necessarily be citizens of India to avail the benefit of solemnization and registration of marriage under the Act. It is in the light of these factual aspects the petitioners filed the instant writ petition with the aforementioned prayers. 6. The matter in issue is no longer res integra and is covered fully against the respondents and in favour of the petitioners on the basis of the dictum laid down by this Court in a series of cases as in Rajeev v. State of Kerala, I (2001) DMC 562 : 2001 (1) KLT 578 , Vivian Varghese v. State of Kerala, 2015 (3) KLT 21 and Prasyanth Sreenivasan v. Sub-Registrar, Alapuzha, 2018 (3) KLT 545 , wherein this Court has held in no uncertain terms that there are no provisions whatsoever in the provisions of the Special Marriage Act, 1954, which prohibit marriage between an Indian citizen and a foreign citizen and the administrative circulars issued in that regard by the Department of Registration not to solemnize such a marriage between a citizen of India and a Foreign citizen as per the Special Marriage Act have also been quashed by this Court as ultra vires and unenforceable. Ext. P6 is also one such judgment rendered on 4.1.2019 by this Court in W.P.(C) 249 of 2019 wherein the same legal position has been reiterated in no uncertain terms. Ext. P6 is also one such judgment rendered on 4.1.2019 by this Court in W.P.(C) 249 of 2019 wherein the same legal position has been reiterated in no uncertain terms. Accordingly, it is only to be ordered and declared that the stand of the respondents that the marriage between a citizen of India and a Foreign citizen cannot be solemnized under the provisions of the Special Marriage Act, 1954 is illegal, ultra vires and unenforceable. 7. The petitioners would assert that both of them fulfill all the eligibility conditions as laid down by the Special Marriage Act, 1954 and that they have not incurred any other disqualification for marriage as per that Act. In the light of these aspects, it is ordered that the 3rd respondent Marriage Officer will accept Ext. P5 notice of intended marriage dated 1.1.2019 filed under Section 5 of the Special Marriage Act, if it is otherwise in order and their marriage may be solemnized and registered by the 3rd respondent in accordance with the provisions of the Act immediately after completion of 30 days time limit after submission of notice of intended marriage. It is also ordered that the petitioners may submit separate sworn affidavits attested before a Notary Public stating the details of their first marriage and also details of the divorce decree obtained by them and that they are not subsequently remarried and that they fulfill all the eligibility conditions prescribed by the Act and that they have not incurred any disqualifications for marriage under the Act. So also petitioners may ensure that separate sworn affidavits of at least two witnesses from each of their side are submitted before the 3rd respondent Marriage Officer stating the details of their personal knowledge with each of the petitioners and as to the factum of respective divorces of the petitioners and that they are not re-married and that they are eligible and not disqualified for the solemnization and registration of marriage as per the provisions of the Act. With these observations and directions, the above writ petition is disposed of.