Aiswarya Suresh vs State Of Kerala
2021 Latest Caselaw 16218 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
    WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                        WP(C) NO. 14832 OF 2021
PETITIONER:

    1     AISWARYA SURESH
          AGED 28 YEARS
          D/O SURESH KUMAR K.P, KONATHUMEKKATHIL MAMMOOD,
          NOORANAD, ALAPPUZHA DISTRICT-690 504.

    2     JOSEPH SIMON,
          AGED 29 YEARS, S/O SIMON, NISHA BHAVANAM, KIDANGAYAM,
          PANDALAM, PATHANAAMTHITTA DISTRICT-690 525

          BY ADVS.
          R.RAJESH (VARKALA)
          M.KIRANLAL
          T.S.SARATH
          MANU RAMACHANDRAN



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT ,
          REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.

    2     THE DISTRICT COLLECTOR,
          ALAPPUZHA, 1ST FLOOR, COLLECTORATE, ALAPPUZHA DISTRICT-
          688 001.

    3     THE DISTRICT REGISTRAR,
          REGISTRATION COMPLEX, NEAR IRON BRIDGE, ALAPPUZHA
          DISTRICT-688 011.

    4     THE SUB REGISTRAR/MARRIAGE OFFICER,
          OFFICE OF THE SUB REGISTRAR, NOORANAD, ALAPPUZHA
          DISTRICT-690 504.

          BY ADV VINITHA B, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14832 OF 2021

                                 2




                 W.P.(C) No.14832 of 2021
           -----------------------------------------------
                          JUDGMENT

The first petitioner is stated to be working as a

Nurse in Saudi Arabia and the second petitioner is stated to

be a person doing business in India. The petitioners belong

to different religions. It is stated that on 11.06.2021, the

petitioners have given notice of their intended marriage in

terms of the Special Marriage Act, 1954 (the Act) to the

fourth respondent, the Marriage Officer under the Act. It is

also stated that since the petitioners could not remit the fee

prescribed for giving notice of the intended marriage on

11.06.2021, the fees was remitted later on 09.07.2021. The

case set out by the petitioners in the writ petition is that

despite lapse of 30 days from the date on which notice of

the intended marriage was given, the Marriage Officer is not

permitting solemnization of the marriage. It is alleged by

the petitioners that the first petitioner has to leave the

country on 05.08.2021 and if the first petitioner leaves the

country before the solemnization of the marriage, the first

petitioner may not be able to obtain visa for the second WP(C) NO. 14832 OF 2021

petitioner to join her in Saudi Arabia. The petitioners,

therefore, seek directions to the fourth respondent to

register their marriage on or before 04.08.2021.

2. A statement has been filed in the matter on

behalf of the fourth respondent. It is stated in the statement

that the notices of the intended marriage are now given

only through online mode; that the petitioners have not

given the notice of the intended marriage on 11.06.2021

and that they have given the notice only on 09.07.2021

along with the requisite fee. It is also stated that since

notice of the intended marriage along with the requisite fee

was given only on 09.07.2021, the marriage can be

solemnized on or after 09.08.2021 only.

3. Heard the learned counsel for the

petitioners as also the learned Government Pleader.

4. The learned counsel for the petitioners

asserted that the petitioners have submitted notice of the

intended marriage online on 11.06.2021. He relied on

Ext.P1, a copy of the notice stated to have been given, in

support of the said stand. It is, however, conceded by the

learned counsel that the requisite fee was remitted by the

petitioners only on 09.07.2021. According to the learned WP(C) NO. 14832 OF 2021

counsel, once the notice is given, fee can be remitted at any

time before the marriage. The learned counsel attempted to

substantiate the said stand, placing reliance on the copies

of the relevant pages of the web portal in which notices are

now permitted to be uploaded. The learned counsel has also

argued that the Rules framed under the Act, viz, the Kerala

Special Marriage Rules, 1958 (the Rules), only prescribe that

the fee shall be levied for every notice of the intended

marriage and it does not say that the same shall be paid

along with the notice.

5. Per contra, the learned Government Pleader

asserted that the petitioners have not given the notice of

the intended marriage on 11.06.2021, as claimed in the writ

petition. It is submitted by the learned Government Pleader

that having realised that the notice has not been uploaded

from the Akshaya Centre, whom the petitioners have

approached for the said purpose, they have submitted

notice online along with the fees on 09.07.2021. The

learned Government Pleader has also submitted that the

scheme of the Act and the Rules is that the notice of the

intended marriage shall be accompanied by the fees

prescribed. It was pointed by the learned Government WP(C) NO. 14832 OF 2021

Pleader that in so far as it is admitted by the petitioners that

they have remitted the fees only on 9.7.2021, the

petitioners are not entitled to the relief claimed in the writ

petition.

6. As noted, while the petitioners assert that

they have submitted the notice of the intended marriage on

11.6.2021, the fourth respondent asserts that the notice of

the intended marriage was given by the petitioners only on

9.7.2021. It is unnecessary to adjudicate the said factual

dispute, for I am of the view that even if the case of the

petitioners that they have given the notice of the intended

marriage on 11.6.2021, the relief claimed cannot be granted

to them. Rule 4 of the Rules reads thus :

4.(a) Notice of any intended marriage under the Act shall be given in writing in the form specified in the Second Schedule to the Act, to the Marriage Officer by both the parties intending to enter into the Marriage either in person or by registered post.

(b) Where the notice is delivered in person, the fee prescribed therefor in Rule 10 shall be paid directly in cash to the Marriage Officer. Where the notice is sent by registered post, the fee shall be remitted by money order at the remitter's expense and the receipt issued to the remitter by the post office through which the remittance is made shall be attached to the notice.

WP(C) NO. 14832 OF 2021

(c) As soon as the notice has been received by the Marriage Officer, a distinctive serial number shall be entered on it and such number and the date of receipt of the notice shall be attested by the signature of the Marriage Officer. If the notice is in conformity with the requirement of the Act, it shall be entered in the Marriage Notice Book which shall be a bound volume, the pages of which are machine-numbered consecutively, with a nominal index attached. If the notice is not in conformity with the requirements of the Act it shall be got rectified by the parties if they are present, or returned to them by post for rectification and retransmission within a date to be fixed. Every item of rectification shall be attested by both the parties.

(d) The Marriage Officer may for the purpose of satisfying himself that the parties to a marriage have completed the age specified in Section 4(c) require them to produce birth certificate or any other satisfactory evidence to prove their age.

In terms of the extracted rule, the fee

prescribed for notice shall be paid directly in cash to the

Marriage Officer, if notice is given in person and if notice is

sent by registered post, the fee shall be remitted by money

order and the receipt issued to the remitter by the Post

Office through which the remittance is made shall be

attached to the notice. It is also evident from the extracted

rule that the Marriage Officer is obliged to act upon the WP(C) NO. 14832 OF 2021

notice only if the notice is in conformity with the

requirement of the Act. The extracted rule clarifies that if

the notice is not in conformity with the requirement of the

Act, the defect shall be rectified by the parties if they are

present or return to them by post for rectification and re-

transmission within a date to be fixed. Rule 10 of the Rules

prescribes the fee for notice of the intended marriage. It is

evident from the aforesaid provision that if notice is given

without remitting the fees, the same cannot be considered

as one given in conformity with the requirement of the Act.

If that be so, the Marriage Officer is not obliged to act upon

such notice. Admittedly, the fees to be paid for giving

notice of the intended marriage was given by the petitioners

only on 9.7.2021. In other words, even if it is accepted that

the notice of the intended marriage has been given online

by the petitioners on 11.6.2021, the same was defective

and the Marriage Officer cannot be blamed for having not

acted upon the same. Sub-section (2) of Section 7

mandates that marriage under the Act shall be solemnized

only after the expiration of thirty days from the date on

which notice of the intended marriage had been published

under sub-section (2) of Section 6. The petitioners have no WP(C) NO. 14832 OF 2021

case that the notice of the intended marriage given by them

has been published in the office of the fourth respondent on

11.6.2021. The materials indicate that the notice of the

intended marriage given by the petitioners was published

only on 9.7.2021. The fourth respondent, in the

circumstances, cannot be found fault with for having not

permitted solemnization of the marriage before 9.8.2021.

The writ petition, in the circumstances, is without merits and

the same is, accordingly dismissed.

Sd/-

P.B.SURESH KUMAR JUDGE Mn WP(C) NO. 14832 OF 2021

APPENDIX OF WP(C) 14832/2021

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE APPLICATION DATED 11.6.2021

Exhibit P2 THE TRUE COPY OF THE ACKNOWLEDGMENT UM RECEIPT

Exhibit P3 THE TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE.

Exhibit P4 THE TRUE COPY OF THE PASSPORT AND VISA BELONGING TO THE 1ST PETITIONER

Exhibit P5 THE TRUE COPY COPY OF THE FLIGHT TICKET OF THE 1ST PETITIONER