Kerala High Court

Ajmal Asharaf M vs State Of Kerala on 4 February, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       WP(C).No.2844 OF 2021(E)


PETITIONERS:

      1        AJMAL ASHARAF M, AGED 26 YEARS
               S/O.M.A.ASHRAF, MULAMPARAMBIL HOUSE,
               KALARIPPARAMBU, MATHILAKAM P.O.,
               THRISSUR DISTRICT-680 685.

      2        ADITHYA VINOD, AGED 24 YEARS
               D/O.VINOD.V.R., MULAMPARAMBIL HOUSE,
               KALARIPPARAMBU, MATHILAKAM P.O.,
               THRISSUR DISTRICT-680 681.

               BY ADVS.
               SHRI.K.B.GANGESH
               SMT.ATHIRA A.MENON

RESPONDENTS:

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

      2        SUB REGISTRAR (MARRIAGE OFFICER),
               SUB REGISTRAR OFFICE, MATHILAKAM,
               THRISSUR-680 685.


OTHER PRESENT:

               SMT.VINITHA.B, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2844 OF 2021(E)

                                        2




                              J U D G M E N T

Petitioners who are are employed in Dubai and

Abudabi, had submitted Ext.P1 notice for their

intended marriage under Special Marriage Act before

the second respondent-Marriage Officer, Sub Registrar

Office, Mathilakam, on 28.01.2020 by registered post.

They were under the fervent hope that they would be

able to come to India and get their marriage

solemnised and registered immediately on expiry of

the notice period. On account of the out break of

Covid-19 pandemic they were compelled to work abroad

and were unable to reach their home town as planned.

In January 2021, they have come and submitted another

notice Ext.P4. It is stated that they have to join

duty abroad on 13.02.2021. Therefore they had

approached the second respondent for taking steps for

solemnization and registration of their marriage

before completion of the notice period. The Sub WP(C).No.2844 OF 2021(E)

Registrar rejected the request as per Ext.P5 letter

stating that marriage can be solemnized only after

the mandatory notice period prescribed in Section 16

of the Special Marriage Act except after 13.02.2021.

Petitioners have therefore filed this writ petition

challenging Ext.P5 order and seeking a direction to

the second respondent to solemnize and register their

marriage as applied for in Ext.P1 notice condoning

the three months' period mentioned in Section 14 of

the Special Marriage Act. According to them when

already a notice was published calling for objections

as against the proposed marriage between them and

when there was no objection received from any corner

the purpose for which notice is provided under the

Act is achieved; there will not be any impediment in

the marriage being conducted under the Special

Marriage Act, though the said period prescribed in

the Act is not over. They have also got a contention

that the marriage can be solemnized online and their WP(C).No.2844 OF 2021(E)

personal presence shall not be insisted.

2. Learned Government Pleader points out that

the issue is settled by a series of judgments of this

Court where it is held that the notice period

prescribed under Section 5 is mandatory. It is stated

that Ext.P1 notice ceased to have any effect on

expiry of three months. When the petitioners have

submitted another notice Ext.P4 they would have to

wait for another month.

3. Learned Government Pleader points out that

in the judgment dated 23.01.2019 in W. P.(C).No.1838

of 2019 this Court has considered a similar issue

where a direction was sought to the Sub Registrar to

the ground that one of the petitioners therein had to

join duty immediately before the expiry of the notice

period. That writ petition was dismissed rejecting

the relaxation of the minimum period of notice as

well as the request for conducting the marriage on WP(C).No.2844 OF 2021(E)

video conferencing.

4. Heard Sri. Gangesh the learned Counsel for

the petitioners and Smt. B. Vinitha the learned

Government Pleader.

5. Though the learned counsel for the

petitioners have relied on Ext.P9 judgment in W.P.

(C).No.12762 of 2020, in support of the claim, the

said judgment was only in respect of the registration

of a marriage which was already solemnized in

accordance with the customary rites. The said

judgment cannot have any application in the present

case.

6. The provisions in the Special Marriage Act,

1954, under Section 5 mandates that the parties to

the marriage which is intended to be solemnised

under the Act shall give notice in writing to the

Marriage Officer in the form specified in the Second

Schedule. On receipt of the notice the Marriage

Officer shall cause every such notice to be published WP(C).No.2844 OF 2021(E)

as provided in Section 6. Section 7(2) provides that

on expiry of thirty days from the date of publication

of the notice, the marriage may be solemnized, unless

it has been previously objected to under sub-section

(1). Sections 8 to 10 provide for the procedure on

receipt of objections. The procedure for

solemnisation and issuance of certificate of marriage

are dealt with in Section 11 to 13 which read as

follows:

11. Declaration by parties and witnesses.--Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

12. Place and form of solemnization.--(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-- "I, (A), take thee (B), to be my lawful wife (or husband)"

13. Certificate of marriage.--(1) When the marriage has WP(C).No.2844 OF 2021(E)

been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

7. Therefore as per the proviso to Section 12,

a marriage is complete and binding on both the

parties only on the declaration of either party that

they take each other as the lawful wife/husband and

that too in presence of the marriage officer as well

as the three witnesses. It also insists that the

marriage if it is not in the office of the Marriage

Officer, shall be solemnised within a reasonable

distance from the office. It is also relevant to note

that Section 13 mandates the Marriage Officer to

enter a certificate in the prescribed form in the

Marriage Certificate Book and to get the said

certificate signed by the parties to the marriage and WP(C).No.2844 OF 2021(E)

the three witnesses.

8. Regarding the effect of a notice given under

Section 5 it is specifically provided under Section

14 of the Act as follows:

14. New notice when marriage not solemnized within three months.--Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by Section 5, or where an appeal has been filed under sub-section (2) of Section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under Section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

9. In view of the expression "shall" employed

in Section 13 i.e., "The Marriage Officer shall

----" and in Section 14 "and no Marriage Officer

shall ---" would further show that there cannot be

any relaxation for the procedures to be followed in

the matter of solemnisation as well as the period of

notice preceding marriage prescribed under Section 5

of the Act. The consequences of non-compliance of the

aforesaid provisions are given in Section 45 as far WP(C).No.2844 OF 2021(E)

as witnesses are concerned and in 46 of the Act as

far as Marriage Officer is concerned.

45.Penalty for signing false declaration or certificate.--Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in Section 199 of the Indian Penal Code, 1860 (45 of 1860).

46. Penalty for wrongful action of Marriage Officer.--

Any Marriage Officer who knowingly and wilfully solemnizes a marriage under this Act,--

(1) without publishing a notice regarding such marriage as required by Section 5, or (2) within thirty days of the publication of the notice of such marriage, or (3) in contravention of any other provision contained in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

10. The aforesaid provisions would show that the

period prescribed for each of the steps leading to

the solemnisation of marriage warrants strict

interpretation and there cannot be any relaxation

even in a case where no objection was received on the

first notice and the prescribed period expired. In

case such relaxation was permissible the language WP(C).No.2844 OF 2021(E)

employed in Section 14 would have been different.

The minimum waiting period for a notice should

therefore be 30 days. The contention of the

petitioners can only be rejected. The judgment in

W.P.(C) No.1839 of 2019 also fortifies the above