Shitha V.K vs The District Registrar (General)
2021 Latest Caselaw 5832 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                       WP(C).No.3421 OF 2021(C)


PETITIONER:

               SHITHA V.K,
               AGED 25 YEARS,
               D/O. SUNDHU.V.K., VENATTUKUNNATHU HOUSE, MALA P.O.,
               KAKKATTIRI, PALAKKAD-679 534.

               BY ADVS.
               SMT.M.KABANI DINESH
               SMT.PRIYANKA SEBASTIAN

RESPONDENTS:

      1        THE DISTRICT REGISTRAR (GENERAL),
               OFFICE OF THE DISTRICT REGISTRAR, ALAPPUZHA P.O.,
               ALAPPUZHA-688 001.

      2        THE MARRIAGE OFFICER,
               SUB REGISTRAR OFFICE, PULINKUNNU P.O.,
               ALAPPUZHA-688 504.

      3        THE SECRETARY, TRITHALA PANCHAYATH,
               THRITHALA P.O., PALAKKAD-679 534.

               BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION              ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.3421 OF 2021(C)

                                         2

                                JUDGMENT

The petitioner seeks a direction to

the respondents 1 and 2 to permit

solemnisation and registration of her marriage

on digital platform.

2. The petitioner, who belongs to

Scheduled Caste community along with one Ajith

Joseph, Chathurthiakary, Alappuzha submitted

Ext.P3 notice of intended marriage before the

2nd respondent on 04.02.2021, under the

Special Marriage Act, 1954. It is stated that

petitioner has to report in Queen's

University, Belfast, Northern Ireland, United

Kingdom, for admission to full time Post

Graduate course in Master of Science and

Advanced Food Safety in School of Biological

Sciences urgently and therefore she is not in

a position to wait till the notice period

expires.

WP(C).No.3421 OF 2021(C)

3. It is stated that the petitioner and

Ajith Joseph got married on 15.01.2021 in a

private function. Though they approached the

the Marriage Officer at Trithala Panchayat for

registration of their marriage by submitting

Ext.P2 application, the same was not accepted

since they belong to different religions. They

were informed that they have to undergo

marriage under the Special Marriage Act.

Ext.P3 notice was submitted thereafter. It is

stated that as petitioner has to leave before

expiry of the 30 days notice period, Sri.Ajith

Joseph, alone would be available before the

Sub Registrar on expiry of the notice period.

Petitioner states that her physical presence

is liable to be exempted and her digital

presence be permitted for solemnization and

registration of marriage.

4. I heard Smt.Kabani Dinesh the learned WP(C).No.3421 OF 2021(C)

Counsel for the petitioner and Smt.Princy

Xavier, the learned Government Pleader.

5. The provisions in the Special Marriage

Act, 1954, under Section 5 mandates the

parties to the marriage, which is intended to

be solemnized 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 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). Section 8

to 10 provides for the procedure on receipt of

objections. The procedure for solemnization

and issuance of certificate of marriage are

dealt with in Section 11 to 13 which read as WP(C).No.3421 OF 2021(C)

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 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 WP(C).No.3421 OF 2021(C)

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."

6. 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 solemnized 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 WP(C).No.3421 OF 2021(C)

Marriage Certificate Book and to get the said

certificate signed by the parties to the

marriage and the three witnesses. It would not

be possible to observe these procedures

online, in the absence of the physical

presence of both the parties near the

Registering Officer and the witnesses.

7. The expression "shall" employed in

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

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

any relaxation for the procedures to be

followed in the matter of solemnization 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 as witnesses are concerned and in 46 of

the Act as far as Marriage Officer is

concerned.

WP(C).No.3421 OF 2021(C)

"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."

8. The aforesaid provisions would

show that the period prescribed for each of

the steps leading to the solemnization of

marriage warrants strict interpretation and

there cannot be any relaxation. The minimum WP(C).No.3421 OF 2021(C)

waiting period for a notice should therefore

be 30 days. The contention of the petitioner

that she does require the marriage to be

solemnised only on completion of 30 days but

only requires the solemnization on digital

mode cannot also be permitted as there is no

provision in the Act which permits the same

and there is no provision which permits the

procedure in digital platform. The judgment in

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

view.

9. I am of the view that unless the

provisions contained in the Special Marriage

Act are amended, it would not be possible

either to relax the mandatory period of notice

or to permit marriage in digital form,

especially when penal consequences are

provided in the Act. Therefore the relief

prayed for by the petitioner cannot be WP(C).No.3421 OF 2021(C)

granted.

In the judgment in W.P.(C) No. 2844 of

2021, I have already considered a similar

case, where the petitioners therein wanted to

get their marriage solemnized and registered

before the expiry of the 30 days period or in

the alternative to undergo digital marriage.

After considering the relevant provisions in

the Special Marriage Act, it was dismissed.

Accordingly, the writ petition also is

dismissed. Sd/-

P.V.ASHA JUDGE ww WP(C).No.3421 OF 2021(C)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ADMISSION AND ACCESS SERVICES VIDE APPLICATION NO.00661973 DATED 10.11.2020 OF THE QUEEN'S UNIVERSITY, BELFAST, NORTHERN IRELAND UNITED KINGDOM.

EXHIBIT P2 TRUE COPY OF THE MEMORANDUM FOR REGISTRATION OF MARRIAGE SUBMITTED BEFORE THE TRITHALA GRAMA PANCHAYATH BY THE PETITIONER AND HER HUSBAND.

EXHIBIT P3 TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE GIVEN UNDER SECTION 5 OF THE SPECIAL MARRIAGE ACT, DATED 04.02.2021.