Asha Mary George vs State Of Kerala
2022 Latest Caselaw 9189 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
     WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA,
                                    1944
                       WP(C) NO. 24182 OF 2022
PETITIONER/S:

       1       ASHA MARY GEORGE
               AGED 36 YEARS
               D/O. GEORGE VADAKUMKARAPUTHANPURACKAL ABRAHAM,
               VADAKUMKARA PUTHENVEEDU, NALLANIKUNNU,
               ELAVINTHITTA P.O, PATHANAMTHITTA DISTRICT, PIN-
               689 625, NOW RESIDING AT 64 HORSHAM ROAD,
               CRAWLEY, UNITED KINGDOM.
       2       MITHUN JOHN VARGHESE,
               AGED 40 YEARS
               S/O. JOHN P. VARGHESE, PALAVILA HOUSE, H. NO.
               223, AKG NAGAR, PEROORKADA P.O.,
               THIRUVANANTHAPURAM DISTRICT, PIN-695 005.
               BY ADVS.
               SEBASTIAN CHAMPAPPILLY
               ANNIE GEORGE

RESPONDENT/S:

       1       STATE OF KERALA
               REPRESENTED BY THE SECRETARY, DEPARTMENT OF
               REGISTRATION, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695 001.
       2       THE SECRETARY,
               DEPARTMENT OF LAW, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695 001.
       3       THE MARRIAGE OFFICER,
               OFFICE OF THE SUB REGISTRAR, SASTHAMANGALAM,
               THIRUVANANTHAPURAM, PIN-695010.
           THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    10.08.2022,    THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.24182 of 2022

                                        -2-


                                   JUDGMENT

Dated this the 10th day of August, 2022

The first petitioner, though of Indian

origin, is now a citizen of the United Kingdom.

Her first marriage was dissolved by decree dated

11.08.2021, which has attained finality as per

Ext.P1 order of the Family Court of Bury

St.Edmunds Court in the United Kingdom. The

second petitioner is an Indian Citizen and his

earlier marriage was dissolved by mutual consent

vide Ext.P2 judgment dated 02.02.2021 of the

Family Court, Ernakulam. Subsequently, the

petitioners got acquainted through the internet

and decided to get married. Accordingly, they

submitted Ext.P3 notice of intended marriage

before the third respondent on 10.06.2022. On

completion of the 30 days notice period

stipulated in Section 5 of the Special Marriage W.P.(C) No.24182 of 2022

Act, 1954, the second petitioner approached the

third respondent to fix the date for

solemnisation of marriage. Thereupon, the third

respondent informed that the marriage cannot be

solemnised unless the first petitioner produces a

single status certificate from the Embassy. Even

though the first petitioner approached the

British High Commission in New Delhi for securing

a single status certificate, she was issued with

Ext.P5 communication stating that marriages in UK

are governed by separate and different

legislation and the consular staff are not

qualified to assess or verify the marital status

of a British National intending to marry in

India. The first petitioner reached

Thiruvananthapuram on 20.07.2022 for the purpose

of solemnisation of marriage. She has to return

to the UK on 23.08.2022. According to the

petitioners, the insistence on production of a

single status certificate from a country which W.P.(C) No.24182 of 2022

does not issue such a certificate is an

impossible condition. In such circumstances, the

Marriage Officer should be directed to accept

Ext.P7 notarised affidavit of the first

petitioner affirming her single status.

2. Learned Counsel for the petitioners

submitted that the petitioners' right to marry

cannot be curtailed by insisting on the

production of a single status certificate, which

is an impossibility, since the laws pertaining to

marriage in the United Kingdom do not provide for

issuance of such certificates. It is submitted

that the first petitioner has affirmed her single

status in Ext.P7 notarised affidavit. As per the

provision of the Notaries Act 1952 Ext.P7 is a

valid document on which the marriage officer can

act. Attention is drawn to the decision in Shan S

and another v. Marriage Officer [2022 (5) KHC

140], wherein, this Court had declared that, W.P.(C) No.24182 of 2022

marriage between an Indian and a foreign citizen

can be solemnised if the foreign citizen produces

an affidavit attested/notarised in the manner

provided in Section 3 of the Diplomatic and

Consular Officers (Fees and Oaths) Act, 1948.

3. Learned Government Pleader submitted

that, in the case of foreign citizens, the

Government has issued Order No.J3-80/2021 dated

26/7/2021, making it mandatory for foreign

citizens intending to marry in India, to produce

non- objection and bachelorhood certificate from

the Embassy.

4. In Shan S (supra), a Canadian citizen

wanted to marry an Indian citizen, but was being

prevented from solemnising the marriage under the

Special Marriage Act in view of the mandatory

requirement of producing non- objection and

bachelorhood certificate from the Embassy. After

detailed consideration it was held that the W.P.(C) No.24182 of 2022

marriage officer can accept and act upon the

affidavit produced by the foreign citizen,

attested/notarized in the manner provided in

section 3 of the Diplomatic and Consular Officers

(Fees & Oaths) Act 1948. That was a case in which

the spouse who is a foreign citizen, was unable

to physically appear before the marriage officer.

In the instant case, both intending spouses are

in India and willing to physically appear before

the marriage officer for solemnising their

marriage. In Ext.P7 notarized affidavit, the

first petitioner has affirmed that she is a

divorcee and remains unmarried i.e.single and

therefore, entitled to get remarried in

accordance with the Special Marriage Act 1954 and

that she fulfills all eligibility conditions. She

has also stated that single status certificates

are not issued by the authorities in the UK.

5. Circumstances being such, it is only

appropriate that Ext.P7 affidavit, which is a W.P.(C) No.24182 of 2022

duly authenticated document, be accepted and

acted upon,rather than requiring the first

petitioner to perform an impossible condition.

In the result, the writ petition is disposed

of directing the third respondent to accept

Ext.P7 affidavit in lieu of single status

certificate and to solemnise and register the

petitioners' marriage in accordance with the

provisions of the Special Marriage Act 1954.

sd/-

V.G.ARUN JUDGE Scl/10.08.22 W.P.(C) No.24182 of 2022

APPENDIX OF WP(C) 24182/2022

PETITIONER EXHIBITS Exhibit P1 (TRUE COPY OF FINAL DECREE DATED 6TH MAY 2022 ISSUED BY THE FAMILY COURT AT BURY ST. EDMUNDS, UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND) Exhibit P2 (TRUE COPY OF THE JUDGMENT DATED 2ND FEBRUARY 2021 IN O.P. NO. 1855 OF 2019 ISSUED BY THE FAMILY COURT ERNAKULAM). Exhibit P3 (TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE PREFERRED UNDER THE SPECIAL MARRIAGE ACT 1954 DATED 10TH JUNE 2022) .

Exhibit P4 (TRUE COPY OF ORDER NO. J3/8/2021/LD DATED 27TH JUNE 2021) Exhibit P5 (TRUE COPY OF THE INFORMATION NOTE DATED 20TH MAY 2022 ISSUED BY THE BRITISH HIGH COMMISSION IN NEW DELHI). Exhibit P6 (TRUE COPY OF THE AIR TRAVEL TICKET (ELECTRONIC TICKET RECORD) ISSUED BY SOUTHALL TRAVEL).

Exhibit P7 (TRUE COPY OF AFFIDAVIT DATED 21-07-

2022).