Ajith Balan vs State Of Kerala
2022 Latest Caselaw 3363 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
   TUESDAY, THE 22ND DAY OF MARCH 2022/1ST CHAITHRA, 1944
                      WP(C) NO. 6538 OF 2022


PETITIONER:

         AJITH BALAN, AGED 29 YEARS,
         ETTUNGAPADY HOUSE,
         VADAKKUMBHAGAM VILLAGE,
         KIZHAKKUMBHAGOM, KANJOOR P.O.,
         ERNAKULAM DISTRICT, PIN - 683 575
         PRESENTLY WORKING AND RESIDING AT UAE.

         BY ADVS.
         S.SAJU
         A.V.SAJAN
         ANJANADEVI.G


RESPONDENTS:

    1    STATE OF KERALA REP. BY
         ITS PRINCIPAL SECRETARY
         DEPARTMENT OF TAXES, (REGISTRATION)
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM, PIN - 695 001.

    2    THE INSPECTOR GENERAL OF REGISTRATION,
         OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
         VANCHIYOOR P.O.,
         THIRUVANANTHAPURAM, PIN - 695 001.

    3    THE MARRIAGE OFFICER AND SUB REGISTRAR,
         OFFICE OF THE SUB REGISTRAR, SREEMOOLANAGARAM,
         ERNAKULAM DISTRICT, PIN - 683 580.

         SMT.PARVATHY KOTTOL, G.P.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.6538/2022

                               2




                         JUDGMENT

Dated this the 22nd day of March, 2022

The petitioner who is a citizen of India is before this

Court seeking to direct the 3rd respondent to accept Ext.P3

notice of intended marriage under the Special Marriage Act

from the petitioner and process the marriage registration

forthwith without insisting for attestation of Ext.P3 notice by

a Gazetted Officer.

2. The petitioner submits that he and Anju Johnson

decided to get themselves married under the Special

Marriage Act, 1954. They submitted application and a

notice of intended marriage was issued as is evidenced by

Ext.P3. After issuing the notice of intended marriage, the

Marriage Officer is refusing to solemnise/register the

marriage on the ground that the petitioner has not produced

photographs of the fiancee duly attested by a Gazetted WP(C) No.6538/2022

Officer.

3. The learned counsel for the petitioner relied on

Ext.P9 judgment of this Court in WP(C) No.28730/2018 and

contended that the attestation of photographs of the parties

by a Gazetted Officer can be produce even at the time of

actual solemnisation/registration of the marriage. For the

simple reason that parties could not produce attested

photographs at the time of giving intended marriage, the 3 rd

respondent need not decline solemnisation/registration of

the marriage.

4. The learned Government Pleader filed a

Statement and contested the writ petition on behalf of the

3rd respondent. The Statement filed by the 3 rd respondent

proceeds to disclose that the parties to the marriage have to

produce along with the application two sets of their passport

size photographs duly attested by a Gazetted Officer for

affixing the same in the marriage notice book and marriage WP(C) No.6538/2022

certificate book.

5. The 3rd respondent further stated that as per

Section 5 of the Special Marriage Act, 1954, when a

marriage is intended to be solemnised, the parties to the

marriage shall give notice in writing in the form specified in

the 2nd Schedule, to the Marriage Officer of the District in

which at least one of the parties of the marriage is resided,

for a period of not less than 30 days immediately preceding

the date on which such notice is given. In the present case,

the petitioner and his fiancee were residing abroad and they

were not in a position to reside for a period of not less than

30 days preceding the date of notice of intended marriage.

Therefore, the 3rd respondent is barred from solemnisation/

registration of the marriage of the petitioner with aforesaid

Anju Johnson.

6. I have heard the learned counsel for the

petitioner and the learned Government Pleader WP(C) No.6538/2022

representing the respondents.

7. The petitioner states that the marriage is not

being solemnised/registered for the reason that the

petitioner has not produced photographs of the parties duly

attested by a Gazetted Officer. Assuming for argument

sake that the petitioner can be permitted to produce the

photographs duly attested at the time of registration of

marriage, the fact remains that the petitioner and the

fiancee are not residing in the area for the last 30 days on

the date of submission of the application.

8. Section 5 of the Special Marriage Act, 1954

reads as follows:

"5. Notice of intended marriage When a marriage is intended to be solemnised under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given."

WP(C) No.6538/2022

8. Both the petitioner and Anju Johnson were not

residents in India for the last 30 days preceding the date

from which the intended notice was given. Therefore, the

petitioner's marriage with Anju Johnson pursuant to Ext.P3

cannot be solemnised under the Special Marriage Act,

1954, in view of the specific mandate of Section 5. In the

circumstances, no relief can be granted to the petitioner in

the writ petition. However, the petitioner will be at liberty to

apply afresh for solemnisation/registration of marriage after

satisfying the conditions prescribed in Section 5 of the

Special Marriage Act, 1954.

The writ petition is dismissed with the said

observation.

Sd/-

N. NAGARESH JUDGE ncd/23.03.2022 WP(C) No.6538/2022

APPENDIX OF WP(C) 6538/2022

PETITIONER'S EXHIBITS

Exhibit-P1 TRUE COPY OF THE ONLINE APPLICATION FOR SOLEMNIZATION OF MARRIAGE SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, SREEMOOLANAGARAM SUB REGISTRAR OFFICE DATED 05.02.2022 Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGMENT FOR SOLEMNIZATION OF MARRIAGE AGAINST THE APPLICATION FOR NOTICE OF INTENDED MARRIAGE DATED NIL Exhibit-P3 THE TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE UPLOADED BY THE PETITIONER AND SMT. ANJU JOHNSON DATED 07.02.2022 IN THE WEBSITE WWW.KERALAREGISTRATION.GOV.IN/PEARL PUBLIC Exhibit-P4 TRUE COPY OF THE RECEIPT DATED DATED 08.02.2022 AGAINST THE PAYMENT OF FEES OF RS.110/- BY THE PETITIONER Exhibit-P5 TRUE COPY OF THE ADHAR CARD OF THE PETITIONER Exhibit-P6 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT OF THE PETITIONER Exhibit-P7 TRUE COPY OF THE ADHAR CARD OF THE PETITIONER’S FIANCéE SMT. ANJU JOHNSON Exhibit-P8 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT OF THE PETITIONER’S FIANCéE SMT. ANJU JOHNSON Exhibit-P9 TRUE COPY OF THE JUDGMENT DATED 03.09.2018 IN WP(C) NO. 28730 OF

RESPONDENTS' EXHIBITS WP(C) No.6538/2022

Annexure R3(a) TRUE COPY OF G.O.

                     (P)NO.4/2018/LAW/TVM           DATED
                     12.04.2018.
Annexure R3(b)       TRUE   COPY     OF   ARTICLE   DATED
                     22.05.2018.