NEYAN VEETTIL BEHSANA v. LOCAL REGISTRAR FOR BIRTHS AND DEATHS & MARRIAGES

respondent to issue necessary direction to the first respondent if need be. (iii) any other order or direction that this Hon'ble Court deems fit and proper under the circumstances of the case.”

3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader.

4. It is an admitted fact that the marriage between the petitioner and the 3rd respondent is registered under the Rules 2008. It is also an admitted fact that there is no provision under the aforesaid Rules to register a divorce. Ext.P2 is the Talaq pronounced by the 3rd respondent and Ext.P3 is the agreement executed by the 3rd respondent with the father of the petitioner about the payment of legal dues to the petitioner. The Talaq was intimated to the Thalasseri WP(C) NO. 9162 OF 2015 6 Mahal Khazi as evidenced by Ext.P4. The petitioner submitted Ext.P5 application before the 1st respondent for making necessary entries in the records maintained in the Register about the divorce. But there is no provision in the Rules 2008 to record the divorce. Then what is the remedy? In such a situation, I am of the considered opinion that the principle in the general power under Section 21 of the General Clauses Act, 1897 can be adopted. It will be better to extract Section 21 of the General Clauses Act: “21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”

5. Section 21 of the General Clauses Act says that, where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is WP(C) NO. 9162 OF 2015 7 conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. The petitioner is a divorced wife. According to the petitioner, the 3rd respondent pronounced Talaq as evident by Ext.P2 and it is informed to the authority concerned and the authority concerned issued a Divorce certificate as evident by Ext.P4. In such a situation, a divorced woman shall not be handicapped by registering the marriage, following the registration rules under the Rules 2008. It is true that there is no power to record the divorce in the Rules 2008. But I am of the considered opinion that such power is inherent to the authority concerned. Such power is ancillary to the power to register the marriage. This point is considered by this Court in Jithin Varghese Prakash v. Registrar of Marriage [2019 (3) KLJ 603]. WP(C) NO. 9162 OF 2015 8

6. Simply because a person registered the marriage as per Rules 2008, she need not be dragged to a court of law for making entries in the Marriage Register regarding the divorce if she obtained the same as per her personal law. If there is the power to register the marriage, the power to record the divorce is also inherent and ancillary to the authority who registers the marriage, if there is a divorce under the personal law. A divorced Muslim woman need not be sent to a court of law for recording the Talaq if it is otherwise in order as per the personal law. The officer concerned can record the Talaq without insisting on a court order. I think that there is a lacuna in Rule 2008 in this regard. The legislature should think about the same. The registry will forward a copy of this Judgment to the Chief Secretary of the state to do the needful in accordance with law.

7. There is a dialogue in the Oliver twist, one of the WP(C) NO. 9162 OF 2015 9 famous novels by Charles Dickens. It is like this; "...If the law supposes that…..the law is an ass – a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience-- by experience…….”. The law is an ass is a derisive expression said when the rigid application of the letter of law is seen to be contrary to common sense. In such a situation, I am of the considered opinion that, the constitutional court should step in.

8. Therefore, this Writ petition can be disposed of directing the 1st respondent to consider Ext.P5 with notice to the 3rd respondent and if the 3rd respondent concedes the Talaq, consequential entry shall be made in the Register of Marriage. If there is any dispute regarding the validity of divorce, the Registrar need not record such divorce in the Register without an order from the competent court. Accordingly, this Writ petition is disposed of in the WP(C) NO. 9162 OF 2015 following manner: 10

1. The 1st respondent is directed to consider Ext.P5 and pass appropriate orders in it, with notice to the 3rd respondent in the light of the observations in this judgment, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a stamped certified copy of this judgment.

2. Petitioner will produce a certified copy of this judgment before the 1st respondent for compliance.

3. The registry will forward a copy of this judgment to the Chief Secretary, State of Kerala, for the reason mentioned in Paragraph 6 of this judgment. Sd/- P.V.KUNHIKRISHNAN JUDGE JV/DM WP(C) NO. 9162 OF 2015 11 APPENDIX OF WP(C) 9162/2015 PETITIONER EXHIBITS EXHIBIT P1. TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 17.01.2013. EXHIBIT P2. TRUE COPY OF THE TALAQ ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3. TRUE COPY OF THE AGREEMENT DATED 02.11.2014. EXHIBIT P4. TRUE COPY OF DIVORCE CERTIFICATE ISSUED BY THALASSERI MAHAL KHAZI, DATED 30.10.2014. EXHIBIT P5. TRUE COPY OF APPLICATION. EXHIBIT P6. TRUE COPY OF THE ACKNOWLEDGMENT DATED 18.11.2014. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE