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2024 DIGILAW 110 (CAL)

Sayantee Bhattacharyya v. Subrata Bhattacharyya

2024-01-17

HARISH TANDON, MADHURESH PRASAD

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JUDGMENT : 1. The Court:-A piquant situation arose in the instant appeal upon rejection of an application under Section 28 of the Special Marriage Act, 1954 (hereinafter referred to as “the said Act”) that since both the parties to the said application have acquired citizenship of Australia, they are not entitled to seek divorce under the aforesaid Act in view of the provisions contained under Section 1(2) of the said Act. The learned Judge in the Court below relied upon Section 7B of the Citizenship Act, 1955 and construed the aforesaid provision as an embargo in the applicability of the provisions contained under the Special Marriage Act, 1954. 2. The substratum of the core issue is that since the parties to the proceeding have acquired the citizenship of a foreign country and no longer the citizen of India, cannot seek any remedy under the provisions of the said Act. 3. Before we proceed to test the findings made by the Trial Court in this regard, it would be apposite and profitable to quote Section 1 of the said Act, which runs thus: “1. Short title, extent and commencement – (1) This Act may be called the Special Marriage Act, 1954. (2) It extends to the whole of India and applies also to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.” 4. It is manifest from the aforesaid Section that the applicability of the Act is extended to whole of India and applies to citizen of India domiciled in the territories to which the said Act extends who are in the State of Jammu and Kashmir. Sub-section (2) of Section 1 can be segregated in two compartments; firstly it extends to whole of India; secondly applies also to the citizen of India domiciled in the territories to which the Act extends who are in the State of Jammu and Kashmir. 5. A little prelude to the amendments having brought in the aforesaid Subsection is required to be recapitulated in order to ascertain the legislative intent underlying such amendment to be brought in the aforesaid provisions. 6. 5. A little prelude to the amendments having brought in the aforesaid Subsection is required to be recapitulated in order to ascertain the legislative intent underlying such amendment to be brought in the aforesaid provisions. 6. Prior to the amendment, the Act was extended to whole of India except the State of Jammu and Kashmir manifesting that the said Act would not apply to the State of Jammu and Kashmir, but the second compartment as indicated hereinabove was retained for the limited purpose of extending the said Act to Indian citizen domiciled in the territories to which the said Act extends who are in the State of Jammu and Kashmir. 7. It is axiomatic to record that by virtue of deletion of the expression “except the State of Jammu and Kashmir” in the first compartment of the said Sub-section speared intention of the legislature that the Act would apply even to the territories of Jammu and Kashmir and, therefore, the second component of the said Sub-section has to be harmonized in such manner. The concept of restricting the applicability of the citizens of India sees further impetus from Section 4(e) of the said Act providing that where the marriage is solemnized in the State of Jammu and Kashmir between the parties who are the citizen of India domiciled in the territories to which the Act extends comes within the ambit of the said Act. 8. Section 4 is primarily relatable to the conditions relating to the solemnization of marriage under the aforesaid Act keeping the provision under Clause (e) of Section 4 in relation to the marriage solemnized in the State of Jammu and Kashmir, but both the parties being the citizen of India and domiciled in the other territories can contract marriage under the said Act. Therefore, the concept of citizenship in contradiction with the word “any person” has to be understood in a harmonized way so that the object and purpose of extending the applicability of the said Act is not frustrated. Therefore, the concept of citizenship in contradiction with the word “any person” has to be understood in a harmonized way so that the object and purpose of extending the applicability of the said Act is not frustrated. The provision contained under Section 1(2) of the said Act can further be seen from a different angle that by virtue of amendment having brought in the year 1969 the expression “outside the said territories” was substituted by the expression “in the State of Jammu and Kashmir” and a logical inference can be drawn therefrom that the applicability of the said Act was extended only in a case where the marriage is solemnized in the State of Jammu and Kashmir between the parties who are the citizen of India but domiciled in the other part of the country where the said Act extends. 9. The aforesaid finding can further be fortified, as Clause (e) of Section 4 of the said Act was correspondingly amended along with the amendment having brought in the second compartment of Sub-section (2) of Section 1; whereby the expression “outside the said territory” was substituted by the expression “in the State of Jammu and Kashmir”. 10. The logical inference which can be drawn from the aforesaid incidents and events having brought by way of amending the Act that the exclusion of operation of the said Act cannot be activated if the parties are not the citizen of India, as the concept of citizen of India was restricted to the marriage having solemnized in the State of Jammu and Kashmir and the parties are domiciled within the said territory. The expression “any two person” appearing in Section 4 of the said Act does not restrict the applicability of the said Act between the two citizen of the country, but have expanded its horizon between two foreign nationals or between Indian citizen and the foreign national. 11. The inference can further be drawn from the judgment of the Himachal Pradesh High Court delivered in case of Marian Eva & Anr. vs. State of Himachal Pradesh reported in AIR 1993 HP 7 ; where the application for registration of the marriage under the said Act filed by the petitioners therein was rejected and the marriage under the said Act was ultimately refused, as one of the parties to the marriage is a permanent resident of Germany. vs. State of Himachal Pradesh reported in AIR 1993 HP 7 ; where the application for registration of the marriage under the said Act filed by the petitioners therein was rejected and the marriage under the said Act was ultimately refused, as one of the parties to the marriage is a permanent resident of Germany. The High Court took note of the provisions contained under Section 4(e) and Section 1(2) of the said Act and an attempt was made to harmonize the aforesaid provisions relating to the applicability of the said Act in the following: “4. Under this Section, marriage between any two persons can be solemnised if neither party has spouse living, neither party is suffering from disabilities mentioned in sub-secs. (b) and (d) and the male has completed the age of 21 years and female the age of 18 years. From the words “persons” used in this Section, it is clear that for solemnisation of marriage under the Special Marriage Act, it is not necessary that either one of the parties or both the parties should be citizen of India. In other words, marriage under the Special Marriage Act may be solemnised between two citizens of India or two foreigners or between a citizen and a foreigner. This is further clear from S. 1(2) of the Special Marriage Act, whereby it has been extended to whole of India except the State of Jammu and Kashmir and applies also to citizens of India domiciled in the territories to which the Act extends and who are in the State of Jammu and Kashmir. Therefore, the Special condition that both parties should be Indian citizens applies only where this Act is made applicable to territories of Jammu and Kashmir. In the present case, both the parties are foreigners and fulfil the condition laid down in Sections 4(a) and 4(c), and do not suffer from any disability stated in Sections 4(b) and 4(d) of the Special Marriage Act, therefore, their marriage can be solemnised under the Special Marriage Act.” 12. The Delhi High Court in case of Arushi Mehra & Anr. vs. Govt. (NCT of Delhi) & Anr. reported in 2023 SCC OnLine Del 187 was considering a case where one of the parties to the marriage was Hindu by religion but a Canadian citizen and the other party was Christian by religion but an American citizen. The Delhi High Court in case of Arushi Mehra & Anr. vs. Govt. (NCT of Delhi) & Anr. reported in 2023 SCC OnLine Del 187 was considering a case where one of the parties to the marriage was Hindu by religion but a Canadian citizen and the other party was Christian by religion but an American citizen. Both of them decided to solemnize the marriage under the said Act, as they were working at Delhi, but the authority refused to accept such application on the ground that they are not the citizen of India. The Delhi High Court held that the expression “two persons” does not create any distinction between the Indian citizen and the foreign citizen and, therefore, the conditions enshrined in Section 4(e) of the said Act has to be understood and interpreted in the manner which does not put any fetter in extending the operation of the said Act to the foreign nationals. The contradiction between “two persons and citizen of India” creates a clear distinction that the requirement of at least one party to be a citizen of India is not imperative in the following: “10. A perusal of Section 4 of the Special Marriage Act, 1953 leaves no doubt that any two persons can seeks solemnisation of their marriage so long as conditions therein are fulfilled, Sub-sections (a), (b), (c) and (d) of Section 4 do not make any reference to citizens. It is only in sub-section (e) of Section 4, where the statute requires that in case of marriages solemnised in Jammu and Kashmir, both parties have to be citizens of India. 11. The statute having made a clear distinction between “any two persons” in the initial part, in contradistinction with “citizens” in subsection (e) of Section 4, it is clear that the requirement of at least one party being a citizen of India is not required under the Special Marriage Act.” 13. The judgment of the Delhi High Court was considered by another Single Bench of this Court in case of Ruma Dutta vs. State of West Bengal & Anr. reported in 2023 SCC OnLine Cal 4503 and held: “10. Hence, by specific exclusion, the Special Marriage Act is the only remaining statute in India which provides for a marriage between an Indian national and Foreign National, if held within the confines of India. 11. reported in 2023 SCC OnLine Cal 4503 and held: “10. Hence, by specific exclusion, the Special Marriage Act is the only remaining statute in India which provides for a marriage between an Indian national and Foreign National, if held within the confines of India. 11. That apart, as held in the judgment of the Delhi High Court cited by the petitioner, the expression “between any two persons” under Section 4 of the 1954 Act sheds sufficient light on the fact that there is no other fetter, than those stipulated in the subsequent part of Section 4 of the said Act, for marriage to be contracted between an Indian national and a Foreign national under the said Act. 12. For the sake of comprehensiveness, we are required to look into the Section 1 of the 1954 Act as well. The same stipulates that the Act extends to the whole of India except the State of Jammu and Kashmir and applies also to citizens of India domiciled in the territories to which the Act extends who are in the State of Jammu and Kashmir. 13. However, nothing in the said provision puts a fetter on a marriage of the type as in the present case, to be contracted under the said Act. The only condition is that the marriage is required to be held in India, since the Act operates to the whole of India and not abroad.” 14. The aforementioned decisions as quoted hereinabove leaves no ambiguity with regard to exposition of law that it is not imperative or mandatory that the marriage under the said Act can only be solemnized between the citizen of India and excludes its operation either where one of the parties is a foreign national or both are foreign nationals. The Act does not create any embargo in contracting/solemnizing the marriage under the Special Marriage Act by the parties who are not citizen of India, as the concept of ‘citizen of India’ is applicable in the event the marriage is solemnized in the State of Jammu and Kashmir and they are domiciled in the territory to which the Act extends. 15. In view of the law as enunciated we do not find any fetter in the applicability of the said Act even in case the persons have acquired the citizenship of another country. 16. 15. In view of the law as enunciated we do not find any fetter in the applicability of the said Act even in case the persons have acquired the citizenship of another country. 16. It takes us to another issue highlighted by the learned Judge in the Court below in relation to the provisions contained under Section 7B of the Citizenship Act, 1955. The learned Trial Judge was of the considered opinion that certain restrictions have been imposed in Section 7B of the Citizenship Act in juxtaposition with a notification dated 4th March, 2021 published by the Ministry of Home Affairs with regard to the overseas citizen of India card holder and surreptitiously jumped to the conclusion that Section 1(2) of the said Act does not extend to a foreign citizen or the persons of foreign nationality. It is pertinent to quote the provisions contained under Section 7B of the Citizenship Act, which runs thus: “7B. Conferment of rights on Overseas Citizen of India Cardholder:-Notwithstanding anything contained in any other law for the time being in force an Overseas Citizen of India Cardholder shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central Government may, by notification in the Official Gazette, specify in this behalf. Conferment of rights on Overseas Citizen of India Cardholder:-Notwithstanding anything contained in any other law for the time being in force an Overseas Citizen of India Cardholder shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central Government may, by notification in the Official Gazette, specify in this behalf. (2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India – (a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment, (b) under article 58 of the Constitution for election as President, (c) under article 66 of the Constitution for election as Vice-President, (d) under article 124 of the Constitution for appointment as judge of the Supreme Court, (e) under article 217 of the Constitution for appointment as a Judge of the High Court, (f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter, (g) under sections 3 & 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a Member of the House of the People or of the Council of States, as the case may be; (h) under sections 5, 5A and section 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a Member of the Legislative Assembly or the Legislative Council, as the same may be, of a State; (i) for appointment to the public services and posts in connection with affairs of the Union or any State except for appointment in such services and posts as the Central Government may, by special order in that behalf, specify. (3) Every notification is issued under sub-section (I) shall be laid before each House of Parliament.” 17. The meaningful reading of the provisions contained in the aforesaid provisions throws light on the proposition that overseas citizen of India card holder shall be entitled to certain rights as a citizen of India except taken away by a valid piece of legislation. (3) Every notification is issued under sub-section (I) shall be laid before each House of Parliament.” 17. The meaningful reading of the provisions contained in the aforesaid provisions throws light on the proposition that overseas citizen of India card holder shall be entitled to certain rights as a citizen of India except taken away by a valid piece of legislation. The said provision starts with a non-obstante clause which indicates that the right which is conferred upon the citizen of India can be enjoyed by the overseas citizen of India card holder except taken away by any other law for the time being in force. 18. Sub-section (2) of Section 7B creates a bridled or fetter on the part of such persons of their rights which on a bare reading does not manifest the curtailment of the rights conferred under the said Act. The embargo is restricted to a public employment, exercising the right in relation to the election in hierarchical system introduced in the Constitution of India or some other rights as may be notified by the Central Government. The Notification dated 4th March, 2021 as relied upon by the learned Trial Judge is not a restriction in the sense but an enlargement of certain other rights which also do not engulf within its to the exclusion of the applicability of the said Act. The Notification dated 4th March, 2021 as relied upon by the learned Trial Judge is not a restriction in the sense but an enlargement of certain other rights which also do not engulf within its to the exclusion of the applicability of the said Act. The said Notification is reproduced as under: (1) grant of multiple entry lifelong visa for visiting India for any purpose; Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely; (i) to undertake research; (ii) to undertake any Missionary or Tablish or Mountaineering or Journalistic activities; (iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organisations in India or to take up employment in any foreign Diplomatic Missions in India; (iv) to visit any place which falls within the protected or restricted or prohibited areas as notified by the Central Government or competent authority; (2) exemption from foreign registration with the Foreigners Regional Registration Officer or Foreigner Registration Officer for any length of stay in India; (3) parity with Indian nationals in the matter of: (i) tariffs in air fares in domestic sectors in India, and (ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India; (4) parity with Non-Resident Indians in the matter of,- (i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption, (ii) appearing for the all India entrance tests such National Eligibility cum Entrance Test, Joint Entrance (Mains), Joint Entrance Examination (Advance) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat; Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens, (iii) purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and (iv) pursuing the following professional in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:- (a) doctors, dentists nurses and pharmacists; (b) advocates, (c) architects, (d) chartered accountants; (5) in respect of all other economic, financial and cultural fields not specified in this notification or the rights and privileges nor covered by the notification made by the Reserve Bank of India under the Foreign Exchange Management Act, (42 of 1999), the OCI cardholder shall have the same rights and privileges as a foreigner. Explanation:- For the purposes of this notification,- (1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India. (2) “Non-Resident Indian” shall have the same meaning as assigned to it in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations 2018, made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999) and who fulfills the “Non-Resident Indian” status as per the Income Tax Act, 1961 (43 of 1961).” 19. The findings of the Trial Court that even though the petitioners are Hindus by birth and were Indian and were Indian nationals at the time of their marriage but the moment they stayed in Australia and acquired nationality of the said country, they are regarded as foreign nationals and, therefore, even if they acquired the status of overseas citizen card holders, they are not entitled to any remedies provided under the said Act is not sustainable. As held such findings run counter to the object and purpose of the Act and, therefore, we cannot countenance such notion as a hurdle in exhausting the remedy under the said Act. 20. Though the above noted Reports are in relation to denial in solemnization of marriage under the said Act, but as a logical corollary, we do not find the applicability of the ratio laid down therein in relation to dissolution of marriage under the said Act. If the marriage is permitted to be solemnized under the said Act even in the eventuality of the persons being foreign nationals, the dissolution of marriage is also permissible under the aforesaid Act. 21. We, therefore, do not find that the order impugned can be sustained. 22. The order impugned is thus set aside. The application for dissolution of marriage by mutual consent is hereby allowed. 23. With the above observations the appeal is allowed. Consequently the connected application is also disposed of. 24. There will be no order as to costs.