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2021 DIGILAW 110 (KER)

Ajmal Asharaf v. State of Kerala

2021-02-04

P.V.ASHA

body2021
JUDGMENT : 1. Petitioners who are employed in Dubai and Abudabi, had submitted Ext.P1 notice for their intended marriage under Special Marriage Act before the second respondent-Marriage Officer, Sub Registrar Office, Mathilakam, on 28.01.2020 by registered post. They were under the fervent hope that they would be able to come to India and get their marriage solemnised and registered immediately on expiry of the notice period. On account of the out break of Covid-19 pandemic they were compelled to work abroad and were unable to reach their home town as planned. In January 2021, they have come and submitted another notice Ext.P4. It is stated that they have to join duty abroad on 13.02.2021. Therefore they had approached the second respondent for taking steps for solemnization and registration of their marriage before completion of the notice period. The Sub Registrar rejected the request as per Ext.P5 letter stating that marriage can be solemnized only after the mandatory notice period prescribed in Section 16 of the Special Marriage Act except after 13.02.2021. Petitioners have therefore filed this Writ Petition challenging Ext.P5 order and seeking a direction to the second respondent to solemnize and register their marriage as applied for in Ext.P1 notice condoning the three months’ period mentioned in S.14 of the Special Marriage Act. According to them when already a notice was published calling for objections as against the proposed marriage between them and when there was no objection received from any corner the purpose for which notice is provided under the Act is achieved; there will not be any impediment in the marriage being conducted under the Special Marriage Act, though the said period prescribed in the Act is not over. They have also got a contention that the marriage can be solemnized online and their personal presence shall not be insisted. 2. Learned Government Pleader points out that the issue is settled by a series of judgments of this Court where it is held that the notice period prescribed under S.5 is mandatory. It is stated that Ext.P1 notice ceased to have any effect on expiry of three months. When the petitioners have submitted another notice Ext.P4 they would have to wait for another month. 3. It is stated that Ext.P1 notice ceased to have any effect on expiry of three months. When the petitioners have submitted another notice Ext.P4 they would have to wait for another month. 3. Learned Government Pleader points out that in the judgment dated 23.01.2019 in W. P.(C).No.1838 of 2019 this Court has considered a similar issue where a direction was sought to the Sub Registrar to register the marriage before expiry of one month on the ground that one of the petitioners therein had to join duty immediately before the expiry of the notice period. That Writ Petition was dismissed rejecting the relaxation of the minimum period of notice as well as the request for conducting the marriage on video conferencing. 4. Heard Sri.Gangesh the learned Counsel for the petitioners and Smt.B.Vinitha the learned Government Pleader. 5. Though the learned counsel for the petitioners have relied on Ext.P9 judgment in W.P.(C).No.12762 of 2020, in support of the claim, the said judgment was only in respect of the registration of a marriage which was already solemnized in accordance with the customary rites. The said judgment cannot have any application in the present case. 6. The provisions in the Special Marriage Act, 1954, under S.5 mandates that the parties to the marriage which is intended to be solemnised under the Act shall give notice in writing to the Marriage Officer in the form specified in the Second Schedule. On receipt of the notice the Marriage Officer shall cause every such notice to be published as provided in S.6. Section 7(2) provides that on expiry of thirty days from the date of publication of the notice, the marriage may be solemnized, unless it has been previously objected to under sub-section (1). Sections 8 to 10 provide for the procedure on receipt of objections. The procedure for solemnisation and issuance of certificate of marriage are dealt with in S.11 to 13 which read as follows: 11. Declaration by parties and witnesses.—Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer. 12. Declaration by parties and witnesses.—Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer. 12. Place and form of solemnization.—(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may choose to adopt: Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,— “I, (A), take thee (B), to be my lawful wife (or husband)” 13. Certificate of marriage.—(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses. (2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. 7. Therefore as per the proviso to S.12, a marriage is complete and binding on both the parties only on the declaration of either party that they take each other as the lawful wife/husband and that too in presence of the marriage officer as well as the three witnesses. It also insists that the marriage if it is not in the office of the Marriage Officer, shall be solemnised within a reasonable distance from the office. It is also relevant to note that S.13 mandates the Marriage Officer to enter a certificate in the prescribed form in the Marriage Certificate Book and to get the said certificate signed by the parties to the marriage and the three witnesses. 8. It is also relevant to note that S.13 mandates the Marriage Officer to enter a certificate in the prescribed form in the Marriage Certificate Book and to get the said certificate signed by the parties to the marriage and the three witnesses. 8. Regarding the effect of a notice given under S.5 it is specifically provided under S.14 of the Act as follows: 14. New notice when marriage not solemnized within three months.—Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by Section 5, or where an appeal has been filed under sub-section (2) of Section 8, within three months from the date of the decision of the District Court on such appeal or, where the record of a case has been transmitted to the Central Government under Section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act. 9. In view of the expression “shall” employed in S.13 i.e., “The Marriage Officer shall ----” and in S.14 “and no Marriage Officer shall ---” would further show that there cannot be any relaxation for the procedures to be followed in the matter of solemnisation as well as the period of notice preceding marriage prescribed under S.5 of the Act. The consequences of non-compliance of the aforesaid provisions are given in S.45 as far as witnesses are concerned and in 46 of the Act as far as Marriage Officer is concerned. 45. Penalty for signing false declaration or certificate.—Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in Section 199 of the Indian Penal Code, 1860 (45 of 1860). 46. 46. Penalty for wrongful action of Marriage Officer.— Any Marriage Officer who knowingly and wilfully solemnizes a marriage under this Act,— (1) without publishing a notice regarding such marriage as required by Section 5, or (2) within thirty days of the publication of the notice of such marriage, or (3) in contravention of any other provision contained in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both. 10. The aforesaid provisions would show that the period prescribed for each of the steps leading to the solemnisation of marriage warrants strict interpretation and there cannot be any relaxation even in a case where no objection was received on the first notice and the prescribed period expired. In case such relaxation was permissible the language employed in S.14 would have been different. The minimum waiting period for a notice should therefore be 30 days. The contention of the petitioners can only be rejected. The judgment in W.P.(C) No.1839 of 2019 also fortifies the above view. I am of the view that unless the provisions contained in the Special Marriage Act are amended, it would not be possible to relax the mandatory period of notice especially when there are penal consequences provided in the Act. Therefore the relief prayed for by the petitioners cannot be granted. Accordingly, the Writ Petition is dismissed.