Kerala High Court · 2012

WP(C).No. 5197 of 2012 (Y) APPENDIX PETITIONER(S) EXHIBITS:- EXHIBIT P1- COPY OF THE INVITATION CARD OF THE MARRIAGE FROM THE FIRST PETITIONER'S SIDE.EXHIBIT P2- COPY OF THE INVITATION CARD OF THE MARRIAGE FROM THE SECOND PETITIONER'S SIDE.EXHIBIT P3- COPY OF THE CERTIFICATE ISSUED BY THE VICAR, INFANT JESUS CHURCH, SOUTH VAZHAKULAM, ALUVA DATED 19.2.2012.EXHIBIT P4- COPY OF THE CERTIFICATE ISSUED BY THE MANAGER, SREE SANKARA AUDITORIUM, EAST KADUNGALLUR, ALUVA, ERNAKULAM DISTRICT, DATED 16.2.2012.EXHIBIT P5- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT/REGISTERING OFFICER DATED 21.2.2012.EXHIBIT P6- COPY OF THE ORDER, REJECTING THE APPLICATION FOR REGISTERING THE MARRIAGE ISSUED BY THE 2ND RESPONDENT DATED 22.2.2012.EXHIBIT P7- COPY OF THE CIRCULAR ISSUED BY GOVERNMENT OF KERALA AS NO.63882/RC3/2010/LSGD DATED, 28.2.2011.RESPONDENTS' EXHIBITS :- NIL/TRUE COPY/P.A. TO JUDGE DCS C: R:C.K. ABDUL REHIM, J.------------------------------------WP(C). No. 5197 of 2012 ------------------------------------------Dated this the 14th day of March, 2012JUDGMENTA question of legal importance arises in this writpetition as to whether a marriage solemnised between 2persons belonging to different religions can be registeredunder the provisions of the Kerala Registration of Marriages(common) Rules, 2008 (hereinafter referred to as theCommon Rules). 2. The petitioners are husband and wife, the marriagebeing solemnized on 16.02.2012 as per religious rites at theInfant Jesus Church, South Vazhakkulam, Aluva. The 1stpetitioner belongs to Hindu religion and the 2nd petitioneris a Christian. It is stated that on the same day thepetitioners have also undergone religious rites andceremonies of a marriage under Hindu religion, at SreeSankara Auditorium, East Kadungallur, Aluva. Exhibit P3 is WP(C). No. 5197 of 20122the certificate of marriage issued by the Church and ExhibitP4 is the certificate issued by the authorities of theAuditorium. 3. The petitioners applied for registration under theCommon Rules. The Secretary of the 2nd respondentPanchayat (the Registrar), had rejected the applicationthrough Ext.P6 for the reason that, as per GovernmentCircular No. 63882/RC3/2010/LSGD, dated 28.02.2011,marriages between persons belonging to different religionshas to be registered under the Special Marriage Act, and insuch cases registration under the Common Rules cannot bepermitted. The petitioner is challenging Exhibit P6 in thiswrit petition. 4. Heard; Government Pleader on behalf of the 1strespondent and counsel appearing for the 2nd respondentPanchayat. Learned Government Pleader sought further WP(C). No. 5197 of 20123time for filing detailed counter affidavit on the basis thatthe matter requires consultation with the Law Department.But I feel that the issue involved is purely legal for whichappreciation of any disputed facts is not necessary. 5. On a perusal of Ext.P7 Government Circular it isevident that instructions have been issued to all local selfgovernment institutions clarifying that persons belonging todifferent religions has to register their marriage under theSpecial Marriage Act, 1954 and registration of suchmarriages under the Common Rules cannot be allowed. Thepetitioners are challenging sustainability of Ext.P7 Circularalso, on the ground that it is repugnant to provisions of theCommon Rules and is against legal principles and directionscontained in the decision of the Honourable Supreme Courtin Seema V. Ashwani Kumar (2006 (1) KLT 791 (SC).Learned counsel appearing for the 2nd respondent submittedthat as long as the circular remains valid, the Secretary of WP(C). No. 5197 of 20124the respondent Panchayat is bound by the same and thatthe rejection is made only on the basis of the circular. 6. For deciding the issue involved, a perusal of therelevant Rules will be beneficial. Rule 6 of the CommonRules says that, all marriages solemnised in the State aftercommencement of the Rules shall compulsory be registered'irrespective of the Religion of the parties' (emphasissupplied). Proviso to the said Rule says that, the marriages,registration of which is compulsory under any otherstatutory provisions, need not be registered under theseRules and such marriages shall be registered under therespective statutory provisions. The second proviso saysthat the marriages, registration which is optional as per anyother statutory provisions shall be registered under theseRules unless registered under such statutory provisions.Rule 9 prescribes the procedure for registration whichindicate that the memorandum for registration shall be WP(C). No. 5197 of 20125signed by both parties to the marriage and 2 others whowitnessed the marriage. In the case of marriagessolemnised as per religious rites, the memorandum shouldbe accompanied by a copy of the certificate of marriageissued by the religious authorities concerned. In the case athand the petitioners have produced Exhibit P3 and P4certificate along with the memorandum. Exhibit P3 is acertificate issued by the Vicar of Infant Jesus Church. Thewordings of the certificate is as follows; This is to certify that the marriage of Deepu DevPathiyaparambil S/o. P.P.Devadas and ShylajaDevadas - Hindu religion, and Ancy JosephPranasseril d/o. P.T. Joseph and Cicily Joseph wasblessed on 16th February 2012, here in this church,as per records here. Exhibit P4 is a certificate issued by the Manager ofSree Sankara Auditorium, it certifies that the marriagebetween the petitioners were held on 16.02.2012 at the saidAuditorium between 11.30 a.m. and 12.15 p.m. Therefore it WP(C). No. 5197 of 20126is evident that the marriage was solemnised as per religiousrites and that petitioners have produced the certificate ofmarriage issued by the religious authority concerned. 7. Question arises as to whether the local Registrarunder the Common Rules is empowered to look into validityof the marriage or in other words, whether he need to lookinto such validity for the purpose of giving registration.The Common Rules were formulated in view of directionsissued by the honourable Supreme Court in Seema's case(cited supra). The observations in the said judgment are asfollows; “Though most of the States have framed Rulesregarding registration of marriages, registration ofmarriage is not compulsory in several States. If therecord of marriage is kept, to a large extent, thedispute concerning solemnization of marriagesbetween two persons is avoided. As rightlycontended by the National Commission, in most WP(C). No. 5197 of 20127cases non registration of marriages affects thewomen to a great measure. If the marriage isregistered it also provides evidence of the marriagehaving taken plance and would provide a rebuttablepresumption of the marriage having taken place.Though, the registration itself cannot be a proof ofvalid marriage per se, and would not be thedeterminative factor regarding validity of amarriage, yet it has a great evidentiary value in thematters of custody of children, right of childrenborn from the wedlock of the two persons whosemarriage is registered and the age of parties to themarriage. That being so, it would be in the interestof the society if marriages are made compulsorilyregistrable.” 8. As enumerated in the decision of the honourableSupreme Court, the registration is intended mainly for thepurpose of protecting rights of women and children. Since,the honourable Supreme Court made it clear that the WP(C). No. 5197 of 20128registration itself cannot be a proof of the validity ofmarriage, it is clear that, by virtue of registration under theCommon Rules no marriage which is inherently invalid willnot become validated in any manner.9. Learned counsel for the petitioner had drawn myattention to Section (4) of the Christian Marriage Act, 1872,and contended that the marriage between the petitioners,which is solemnised through religious rites prescribedunder Christianity, is valid. But I am of the view that for thepurpose of deciding the issue involved, I need notadjudicate the validity of the marriage. I take not of thefact that, it is in view of the directives of the HonourableSupreme Court that the State Government have framed theCommon Rules, making all the marriages compulsoryregistrable, irrespective of the religion of the parties,(emphasis supplied). That being so, the State Governmentby virtue of Exhibit P7 circular which is an executive order, WP(C). No. 5197 of 20129cannot impose any restriction on the scope and applicabilityof the Rules. Even the proviso to Rule 6 of the CommonRules only provides that a marriage which is compulsorilyregistrable under any other law need not be registeredagain under the Common Rules. It only provides anexemption from the obligation provided under Rule 6 formandatory registration of all marriages solemnised in theState. But it cannot be interpreted in any mannerpreventing registration of a marriage solemnized within theState, even if it is liable to be registered under any otherlaw, especially in view of wordings of Rule 6 that allmarriages irrespective of religion, of the parties should beregistered, if it is solemnised within the State. 10. Therefore I am of the view that the instructionsissued through Exhibit P7, that the marriages solemnisedbetween persons belonging to different religion are notregistrable under the Common Rules is repugnant and WP(C). No. 5197 of 201210contrary to the provisions contained in the Common Rules.The State Government has no power to issue any suchexecutive order contrary to the provisions of a legislation.Hence Exhibit P7 is liable to be quashed. 11. Counsel appearing for the 2nd respondent hadpointed out that along with the memorandum submittedseeking registration of the marriage, the petitioners havenot produced Exhibit P3 certificate issued from the Church.Exhibit P4 certificate cannot be considered as a certificateissued by any religious authority, is the contention.Learned counsel for the petitioners submitted that they areready and willing to produce the original or attested copy ofExhibit P3 certificate before the Local Registrar. I am ofthe view that the 2nd respondent can be directed toreconsider the matter in view of Exhibit P3, if produced. 12. Under the above mentioned circumstances the WP(C). No. 5197 of 201211writ petition is allowed. Exhibit P7 circular of the StateGovernment and P6 decision taken by the 2nd respondent onthe basis of the said circular are hereby quashed. The 2ndrespondent, the Local Registrar under the Common Rules,is directed to dispose of Exhibit P5 application afresh,notwithstanding the directions contained in Exhibit P7circular, taking note of the observations contained hereinabove. The petitioner will be at liberty to produce originalor attested copy of Exhibit P3 certificate as well as freshmaterials if any required before the 3rd respondent. A finaldecision in this regard shall be taken at the earliestpossible, at any rate within a period of 2 weeks from thedate of receipt of a copy of this judgment.C.K. ABDUL REHIM, JUDGEPn