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2021 DIGILAW 356 (MP)

Arjun Singh Kak v. State of M. P.

2021-03-12

GURPAL SINGH AHLUWALIA

body2021
ORDER : Gurpal Singh Ahluwalia, J. 1. Shri Sanjay Kumar Dwivedi, Counsel for the Petitioner. Shri G.K. Agrawal, Govt. Advocate for the respondents No. 1 to 3/State. Shri Gaurav Mishra, Counsel for the respondent No. 4. Shri Raju Sharma, Counsel for the respondents No. 5 to 7. 2. This petition under Article 226 of the Constitution of India has been filed against the Marriage Certificate No. 0101/GWAL/0002698/8000085741/2018 issued by Nodal Officer(E), Municipal Corporation, Gwalior. 3. This Court by order dated 11/02/2021 had observed as under:- "It appears that multiple litigations are going on between the parties in different Courts. Accordingly, counsel for the parties are directed to give details of all the cases which are pending between them in different Courts of the country." 4. Accordingly, the details of various litigations which are pending between the parties before different Courts, have been placed on record. 5. It is the case of the petitioner that he is a permanent resident of Indore. The respondent No. 2/Registrar, Office of the Registrar (Births, Deaths and Marriages), Gwalior has issued the marriage certificate of petitioner with respondent No. 5 on the basis of the application submitted to the Municipal Corporation, Gwalior. It is the case of the petitioner that the respondent Nos. 6 and 7 are the parents of respondent No. 5 and they contacted the parents of the petitioner in the year 2017 and wished to marry their daughter (respondent No. 5) to the petitioner. Accordingly, it was mutually agreed to have a court marriage between the petitioner and the respondent No. 5 in the month of November, 2018 followed by reception and "Vidai" from Gwalior. It is the case of the petitioner that in the month of March, 2018, the parents of the respondent No. 5 informed the parents of the petitioner that there is a Mangal Dosh in the Patrika of their daughter (respondent No. 5) and to remove this Dosh, Mangal Dosh Puja is necessary prior to her marriage and also informed that this Puja would be conducted in Indore by their Guru on 18/04/2018 i.e. Akshya Tritiya, the only auspicious day for the said Puja. Later on, it was informed by the parents of the respondent No. 5 that the venue of Mangal Dosh Puja has been changed from Indore to Bhagirathi Ashram, Rishikesh (Uttarakhand) and they also informed that Mangal Dosh Puja would be followed by an engagement ceremony at Rishikesh and accordingly, on the request of the parents of respondent No. 5, the petitioner, his parents and some relatives went to Rishikesh and stayed at Hotel Divine Resorts from 17/04/2018 to 20/04/2018, whereas the respondent Nos. 5 to 7 and their relatives and friends stayed in Hotel Laxman Jhoola Divine Resorts, Rishikesh from 14/04/2018 to 20/04/2018. On 18/04/2018, a Mangal Dosh Puja and engagement ceremony was conducted at Bhagirath Ashram, Rishikesh organized by the Guru of respondent Nos. 5 to 7. 6. It is also alleged that the complete rituals of the Brahma form of marriage as required by Hindu Shastras were not performed and it was only Mangal Dosh Puja and engagement. At the time of engagement, the parents of the petitioner gave valuable gifts to respondent Nos. 5 to 7 and the ceremonies were treated as "symbolic marriage" required for astrological reasons as per their Guru. Accordingly, it is submitted that neither the petitioner nor respondent No. 5 co-habited or consummated the so-called marriage. On 20/04/2018, the petitioner and his parents returned back to Indore, whereas respondent Nos. 5 to 7 returned back to Gwalior. Thereafter, the petitioner and his parents were unilaterally informed by the respondent Nos. 6 and 7 that "symbolic marriage" organized at Rishikesh would now have to be treated as a "formal marriage''. This came as a shock and surprise to the petitioner and his parents, who had only attended the ceremonies with intention to co-operate in the removal of Mangal Dosh with the Patrika of the girl and under a bona fide impression that the court marriage will be conducted in Gwalior in the month of November, 2018. However, in view of the request made by respondent Nos. 5 to 7, the petitioner and his parents agreed to assist in the registration of "symbolic marriage" in the Office of Registrar of Marriages, at Rishikesh on 18/04/2018. Accordingly, the father of the petitioner asked respondent Nos. However, in view of the request made by respondent Nos. 5 to 7, the petitioner and his parents agreed to assist in the registration of "symbolic marriage" in the Office of Registrar of Marriages, at Rishikesh on 18/04/2018. Accordingly, the father of the petitioner asked respondent Nos. 5 to 7 to take immediate steps to obtain the required certificate from the priest and from Ashram for carrying out registration of "symbolic marriage'' organized by them at Rishikesh which would be necessary under the Uttarakhand Compulsory Registration of Marriage Act, 2010. Accordingly, respondent Nos. 6 and 7 with alleged intent to register the marriage at Rishikesh, sent blank unfilled form and blank untyped stamp papers to the petitioner and his parents for registration of marriage: The signatures were put by the petitioner and his parents on the blank papers and later on, in the month of June, 2018, they received the copy of marriage certificate dated 01/06/2018 issued by respondent No. 2 inter alia certifying the registration of marriage of petitioner with respondent No. 5 on 18/04/2018 at Angre Sahab Ka Bada, Lashkar, Gwalior. Immediately after receipt of marriage certificate, the father of the petitioner enquired into the matter with the parents of respondent No. 5 but every time vague replies were given and no justification and clarification for getting the marriage certificate registered at Gwalior was given. 7. It is submitted that thereafter, the relationship between petitioner and respondent No. 5 which was maintained through digital medium rapidly deteriorated after issuance of impugned marriage certificate. The parents of the respondent No. 5 continued in extending time to find out an acceptable solution. Against the said foul play, the petitioner filed a petition for annulment of so called marriage on 19/03/2019 before the Family Court at Rishikesh, which is pending. Various other litigations have already taken place between the parties which are pending before different Courts of the county and the details were furnished by the parties in compliance of order dated 11/02/2021. 8. Respondent Nos. 2 to 4 have filed their return and submitted that after coming into force of M.P. Compulsory Registration of Marriages Rules, 2008 (in short "the Rules, 2008"), the Municipal Corporation, Gwalior has an authority and jurisdiction to register the marriage solemnized within the limits of Municipal Corporation, Gwalior. 8. Respondent Nos. 2 to 4 have filed their return and submitted that after coming into force of M.P. Compulsory Registration of Marriages Rules, 2008 (in short "the Rules, 2008"), the Municipal Corporation, Gwalior has an authority and jurisdiction to register the marriage solemnized within the limits of Municipal Corporation, Gwalior. A joint application by the petitioner and respondent No. 5 as prescribed in Form-I was submitted before the Municipal Corporation, Gwalior on 30/05/2018 before Jan Mitra Samadhan Kendra, Padav, District Gwalior seeking registration of marriage solemnized on 18/04/2018 at Angre Sahab Ka Bada, Laskhar, Gwalior bearing the signatures of the family members of petitioner and respondent No. 5 as well as of one Anil Athaley and two witnesses, Faraaz Qarnar and Smt. Chandra Singh. The application was also supported by the affidavits of petitioner, respondent No. 5, Shri Anil Athaley (the priest who solemnized the marriage), respondent No. 6 as well as the father of petitioner to the effect that the marriage ceremony was performed on 18/04/2018 at Angre Sahab KaBada, Laskhar, Gwalior. Since the application seeking registration of marriage was tendered after expiry of 30 days from the date of marriage, therefore, an affidavit was also submitted by petitioner as per Rule 7(b) of the said Rules, 2008 stating sufficient explanation for delay in filing the application. Along with the application, the proof of date of birth of the petitioner and respondent No. 5 with self-attested photo copy of identification marks of witnesses Faraaz Qamar, Smt. Chandra Singh, Shri Anil Athaley (the priest who solemnized the marriage), the respondent No. 6, the mother and father of the petitioner, Panchnama attested by Councillor, Ward No. 48 and the marriage photographs of the petitioner and respondent No. 5 along with Marriage Card were also submitted. After examining the documents and the application supported by the affidavit, marriage certificate was duly issued by Municipal Corporation, Gwalior. It is further submitted that the present petition is not maintainable as the declaration for annulment of marriage of the petitioner with respondent No. 5 is pending before the Court of Additional Judge, Family Court, Rishikesh (Uttarakhand) and the marriage certificate is not the conclusive proof of registration of marriage. It is further submitted that the petitioner has an alternative remedy to file an appeal under Rule 9 of the Rules, 2008. It is further submitted that the petitioner has an alternative remedy to file an appeal under Rule 9 of the Rules, 2008. It is further submitted that in exercise of power under Section 69(4) of the Municipal Corporation Act, 1956, the Commissioner, Municipal Corporation has delegated his power to Shri Pradip Shrivastava, Nodal Officer to exercise the power under Rules, 2008 and the certificate has been duly issued in accordance with law. 9. Rejoinder to the return filed by respondent Nos. 2 and 4 has been filed by the petitioner. The contention of the petitioner that Shri Pradip Shrivastava was duly authorized by the Commissioner, Municipal Corporation, Gwalior and was competent to issue the marriage certificate, has been specifically denied. It is the contention of the petitioner that only the Commissioner, Municipal Corporation is competent to exercise his powers under Rules, 2008 and the delegation of powers by Municipal Commissioner, Municipal Corporation, Gwalior by order dated 27/10/2012 is bad in law. 10. Respondent Nos. 5 to 7 have also filed their return and have denied the allegations which have been made on merits of the case. It is the case of the respondent Nos. 5 to 7 that in fact, the marriage was performed at Angre Sahab KaBada, Laskhar, Gwalior on 18/04/2018 and the certificate has been rightly issued. It is further submitted that the application for issuance of certificate was filed under the joint signatures of the petitioner and respondent No. 5 and it is incorrect to say that any fraud was played by respondent Nos. 5 to 7. 11. Heard the learned Counsel for the petitioner. 12. The first question which goes to the root of jurisdiction of the Nodal Officer to issue the marriage certificate is whether the Commissioner, Municipal Corporation, Gwalior was competent to delegate his powers to the Nodal Officer by order dated 27/10/2012 or not? 13. In exercise of powers conferred by Section 15 read with Sections 4 to 14 of the Special Marriage Act, 1954 (No. 43 of 1954), the State Government has framed the Rules which are known as "M.P. Compulsory Registration of Marriages Rules, 2008." 14. Rules 4 of the Rules 2008 specifically provides that the marriage certificate issued under these Rules, 2008 would not be a conclusive proof of marriage. 15. Rules 4 of the Rules 2008 specifically provides that the marriage certificate issued under these Rules, 2008 would not be a conclusive proof of marriage. 15. Rule 5 of the Rules, 2008 provides that the State Government, by issuing a notification, shall appoint Registrar of Marriages for Gram Panchayat or Municipality or Municipal Corporation or Cantonment Board areas and till the notification under sub-rule (1) is issued, the authority who is competent to register the births and deaths, would be competent to perform his duties of Registrar of Marriages. Accordingly, the State Government has issued a notification dated 23rd May, 2019 in exercise of powers under Rule 5(1) of the Rules, 2008, according to which the Commissioner, Municipal Corporation would be the Registrar of Marriages for registration of marriages performed within the limits of Municipal Corporation. 16. It is the case of the respondent Nos. 2 to 4 that the Commissioner, Municipal Corporation, Gwalior by order dated 27/10/2012, has delegated his powers to the Nodal Officer in exercise of powers under Section 69 (4) of the M.P. Municipal Corporation Act and, therefore, the Nodal Officer (E), Municipal Corporation, Gwalior is competent to issue marriage certificates. 17. The only question for consideration is as to whether the Commissioner, Municipal Commissioner, Gwalior is competent to delegate his powers to the Nodal Officer(E), Municipal Corporation, Gwalior under Section 69(4) of the M.P. Municipal Corporation Act or not? 18. Section 69 of the M.P. Municipal Corporation Act reads as under:- "69. Functions of several Municipal Authorities.- (1) The functions of the several municipal authorities shall be such as are prescribed in this Act. (2) Municipal Government of the city vests in the Corporation.- Except as otherwise expressly provided in this Act the Municipal Government of the city vests in the Corporation. Functions of several Municipal Authorities.- (1) The functions of the several municipal authorities shall be such as are prescribed in this Act. (2) Municipal Government of the city vests in the Corporation.- Except as otherwise expressly provided in this Act the Municipal Government of the city vests in the Corporation. (3) Special functions of the Commissioner.-Subject to the approval or sanction of the Corporation or of the Mayor-in-Council, whenever it is in this Act expressly so directed and subject also to all other restrictions, limitations, and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in Commissioner who shall also- (a) perform all the duties imposed or conferred upon him by this Act; (b) prescribed the duties, and exercise supervision and control over the acts and proceedings of all Municipal Officers and servants other than the officers and servants of Corporation office and subject to the rules or bye-laws for the time being in force, dispose of or questions relating to the services of the said officer and servants and their pay, privileges and allowances; (c) on the occurrence of any accident or unforeseen event or on the threatened occurrence of any disaster, involving or likely to involve extensive damage to any property of Corporation or danger, to human or animal life, take such immediate action as the emergency shall appear to him to justify and require reporting forthwith to the Mayor-in-Council or the Corporation, when he has done so, the action he has taken and his reasons for taking the same and the cost if any incurred in consequence of such action and not covered by a current budget grant. (4) Municipal Officers may be empowered to exercise the powers of Commissioner.-Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by this Act may be exercised, performed or discharged under the Commissioner's control, and subject to his superintendence and to such conditions and limitations if any as he may think fit to prescribe, by any Municipal Officer whom the Commissioner may generally or specially empower in writing in this behalf." 19. From the plain reading of Section 69(4) of M.P. Municipal Corporation Act, it is clear that any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by this Act, may be exercised, performed or discharged under the Commissioner's control, and subject to his superintendence. 20. Section 68 of the Municipal Corporation Act reads as under:- "68. Entrustment of certain functions by State Government to Corporation.- (1) The State Government may entrust either conditionally or unconditionally to the Corporation functions in relation to any matter specified in the Schedule or in relation to any other matter to which the executive authority of the State extends or in respect of which functions have been entrusted to the State Government by the Central Government and the Corporation shall be bound to perform these functions. (2) Where functions are entrusted to the Corporation under the section, the Corporation shall, in the discharge of these functions, act as an agent for the State Government. (3) where by virtue of this section, powers and duties have been conferred or imposed as agency functions upon the Corporation, there shall be paid by the State Government to the Corporation such sum as may be determined by the State Government in respect of any extra costs of administration incurred by the Corporation in connection with the exercise of those powers and duties. (4) Insofar as the Corporation is required to act under this section, it shall be under the general control of, and comply with such particular directions, if any, as may, from time to time, be given to it by the State Government or any other authority appointed by the State Government in this behalf. (5) The State Government may, by order, place at the disposal of the Corporation, and the Corporation shall utilize, the services of such servants of the State or such classes of servants of the State as are employed in the city in connection with a matter entrusted to the Corporation under this section, and all such servants shall discharge their duties under the general supervision and control of the Commissioner; Provided that the extent of the said general supervision and control shall be such as may be [prescribed by bye-laws made under section 427.]" 21. It is the case of the respondent Nos. It is the case of the respondent Nos. 2 to 4 that the Corporation is bound by the executive authority of the State in respect of which the functions have been entrusted to the State Government by the Central Government. It is further submitted that the State Government may entrust either conditionally or unconditionally to the Corporation functions in relation to any matter specified in the Schedule. Accordingly, it is submitted that the order dated 27/10/2012 issued by the Commissioner, Municipal Corporation, Gwalior thereby delegating his powers to the Nodal Officer (E) to perform his duties as a Registrar of Marriages is in accordance with law. 22. Heard the learned counsel for the parties. 23. Section 69(4) of the M.P. Municipal Corporation Act specifically provides that any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner, by this Act (M.P. Municipal Corporation Act) may be exercised, performed or performed or discharged under the Commissioner's control, and subject to his superintendence. 24. Section 68 of the Municipal Corporation Act deals with the functions in relation to the matters specified under the Schedule. 25. In the Schedule issued under Section 68 of the M.P. Municipal Corporation Act, the registration of marriage is not provided. Rules, 2008 have been framed in exercise of powers under Section 5 of the Special Marriage Act. Merely because the Commissioner, Municipal Corporation, has been given the powers to act as a Registrar of Marriages, would not mean that the said powers would be exercised by the Commissioner, Municipal Corporation under the M.P. Municipal Corporation Act, 1956. The Special Marriage Act as well as Rules, 2008 framed therein are not subordinate to the M.P. Municipal Corporation Act, 1956, and is a separate Act. The very basis for entrusting the powers of Registrar of Marriages on Panchayat Secretary, CMO, Commissioner and Cantonment Board is to provide the facility of registration of marriage in the nearby office. 26. By no stretch of imagination, it can be held that the Commissioner, Municipal Corporation, Gwalior was competent to issue an order under Section 69(4) of the M.P. Municipal Corporation Act, thereby delegating his powers to the Nodal Officer(E), Municipal Corporation, Gwalior for acting as a Registrar of Marriages. Thus, this Court is of the considered opinion that the order dated 27/10/2012 is not in accordance with law. 27. Thus, this Court is of the considered opinion that the order dated 27/10/2012 is not in accordance with law. 27. It is further submitted by the Counsel for the respondent Nos. 2 to 4 that since the validity of the order dated 27/10/2012 has not been challenged by the petitioner, therefore, until and unless the same is set aside, it would hold the field and accordingly, the marriage certificate issued by the Nodal Officer(E), Municipal Corporation, Gwalior is in accordance with law. 28. Heard the learned Counsel for the respondent Nos. 2 to 4. 29. The respondent Nos. 2 to 4 have failed to justify the delegation of powers by the Commissioner, Municipal Corporation, Gwalior to the Nodal Officer(E), Municipal Corporation, Gwalior. 30. It is well established principle of law that any party, either by waiver or by consent, cannot confer jurisdiction on an authority which otherwise does not have the same. Merely because the petitioner has not chosen to challenge the order dated 27/10/2012 would not confer a jurisdiction on the Nodal Officer (E), Municipal Corporation, Gwalior specifically, when it has been found that the order dated 27/10/2012 issued by the Commissioner, Municipal Corporation, Gwalior under Section 69(4) of the M.P. Municipal Corporation Act, is without jurisdiction and accordingly would not confer any jurisdiction on the Nodal Officer (E), Municipal Corporation, Gwalior. 31. Rule 5(1) of the Rules, 2008 issued by the State Government, has appointed the Municipal Commissioner, Municipal Corporation to be a Registrar of Marriages. Nobody except the Commissioner, Municipal Corporation can act as Registrar of Marriages. 32. Accordingly, it is held that the marriage certificate (Annexure P1) which has been issued by the Nodal Officer (E), Municipal Corporation, Gwalior is without jurisdiction. As a consequence thereof, the said marriage certificate is quashed. The application filed by the petitioner as well as respondent No. 5 for registration of their marriage is directed to be placed before Commissioner, Municipal Corporation, Gwalior/Registrar of Marriages for consideration of the same in accordance with law. 33. Let the entire exercise be completed within a period of two months from today. 34. The Registrar of Marriages/Commissioner, Municipal Corporation, Gwalior is directed to decide the said application after following the procedure as laid down in Rule 7 of Rules, 2008. 35. 33. Let the entire exercise be completed within a period of two months from today. 34. The Registrar of Marriages/Commissioner, Municipal Corporation, Gwalior is directed to decide the said application after following the procedure as laid down in Rule 7 of Rules, 2008. 35. Since this Court has come to a conclusion that the marriage certificate (Annexure P1) has not been issued by a Competent Authority, under these circumstances, it would not be proper for this Court to consider the allegations and counter-allegations made by the parties, on merits. 36. With aforesaid observations, this petition is finally disposed of.