Vipin P G vs State Of Kerala
2025 Latest Caselaw 3115 Ker

Kerala High Court

Vipin P G vs State Of Kerala on 31 January, 2025

Author: C.S.Dias

Bench: C.S.Dias

                                                      2025:KER:7805
WP(C) NO.36871 OF 2024
                                   1
             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
     FRIDAY, THE 31ST DAY OF JANUARY 2025 / 11TH MAGHA, 1946
                         WP(C) NO.36871 OF 2024

PETITIONER:
     1     VIPIN P G
           AGED 47 YEARS
           S/O GOPALAN M, 2/65 PARAMEKATTIL (HOUSE), EDAKULAM,
           IRINJALAKKUDA, THRISSUR DISTRICT, PIN - 680688
     2     MADIA SUHARTIKA
           AGED 41 YEARS
           2/65 PARAMEKATTIL (HOUSE), EDAKULAM, IRINJALAKKUDA,
           THRISSUR DISTRICT., PIN - 680688
           BY ADVS.
           P.JINISH PAUL
           ASWINI S.(K/2870/2023)
           SNEHA V.

RESPONDENTS:
     1     STATE OF KERALA
           REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF
           REGISTRATION, GOVERNMENT SECRETARIAT,
           THIRUVANATHAPURAM., PIN - 695001
     2     THE DISTRICT REGISTRAR
           OFFICE OF DISTRICT REGISTRAR, THRISSUR DISTRICT., PIN
           - 680020
     3     SUB REGISTRAR
           OFFICE OF SUB REGISTRAR, VADAKKUMKARA THRISSUR
           DISTRICT., PIN - 680662
  ADDL.R4 MARRIAGE OFFICER APPOINTED UNDER THE FOREIGN MARRIAGE
           ACT, 1969,
           CONSULATE GENERAL, INDIAN EMBASSY, INDONESIA, MINISTRY
           OF EXTERNAL AFFAIRS, INDONESIA (ADDL.R4 IS IMPLEADED
           AS PER ORDER DATED 20.12.2024 IN IA NO.2/2024 IN WP(C)
           NO.36871/2024)

OTHER PRESENT:
           DSGI- T.C.KRISHNA, GP-SMT. VIDHYA KURIAKOSE,
           AMICUS CURIAE - SRI.THOMAS C.ABRAHAM

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.01.2025, THE COURT ON     31.01.2025 DELIVERED THE FOLLOWING:
                                                        2025:KER:7805
WP(C) NO.36871 OF 2024
                                  2




                                                          "C.R"
                         C.S.DIAS, J.
             ---------------------------------------
               WP(C) No. 36871 of 2024
            -----------------------------------------
        Dated this the 31st day of January, 2025

                           JUDGMENT

Is it permissible to register a marriage solemnized outside

India between an Indian citizen and a foreign national under the

Special Marriage Act?

2. The 1st petitioner, an Indian citizen, married the 2nd

petitioner, an Indonesian citizen, on 01.02.2014 at the office of

the Religious Affairs Republic, Jakarta, Indonesia. They have a

child born in their wedlock. Currently, the petitioners are residing

in Poomangalam Grama Panchayath, Thrissur. To formally

recognise their marriage, the petitioners have submitted Ext.P3

joint application before the Marriage Officer (the 3 rd respondent)

to register their marriage under the Special Marriage Act. Instead

of registering the marriage, the 3rd respondent has sought for a

clarification from the District Marriage Officer. Regrettably, the 2 nd

respondent has not responded to the inquiry. The petitioners 2025:KER:7805 WP(C) NO.36871 OF 2024

have fulfilled all the conditions stipulated under the Special

Marriage Act. The refusal on the part of the respondents to

register the petitioners' marriage is violative of Article 21 of the

Constitution of India. Hence, the writ petition.

3. Heard; Sri. Jinish Paul, the learned counsel for the

petitioners, Smt.Vidya Kuriakose, the learned Government

Pleader, Sri. T.C. Krishna, the learned Deputy Solicitor General

of India and Sri.Thomas C.Abraham, the learned Amicus Curiae.

4. Ext.P1 marriage certificate proves that the petitioners'

marriage was solemnised according to the civil laws of

Indonesia. The petitioners now desire to get their marriage

registered as per the provisions of the Special Marriage Act.

5. The preamble of the Special Marriage Act states that it is

an Act to provide a special form of marriage in certain cases and

for registration of such and certain other marriages and for

divorce. Furthermore, Sub-Section (2) of Section 1 of the Act

states that the Act applies to the whole of India and to the

citizens of India domiciled in the territories to which the Act

extends. Chapter II of the Act delineates the procedure for the

solemnisation of special marriages, and Chapter III lays down 2025:KER:7805 WP(C) NO.36871 OF 2024

the procedure for the registration of marriages celebrated in

other forms.

6. It is pertinent for the case at hand to juxtapose the

provisions of the Special Marriage Act with that of the Foreign

Marriage Act.

7. The preamble of the Foreign Marriage Act, 1969,

reads as follows:

"An Act to make provision relating to marriage of citizens of India outside India".

8. Section 2(c) of the Foreign Marriage Act defines a

foreign country as a country or place outside India. Likewise,

Sections 17, 23, and 24 of the said Act deal with the registration

of foreign marriages solemnized under other laws, the

recognition of marriages solemnized under the law of other

countries, and the certification of documents of marriages

solemnized in accordance with local law in a foreign country,

respectively.

9. On a comparison of the provisions of the Special

Marriage Act and the Foreign Marriage Act, it is apparent that a

marriage between parties, of whom at least one is a citizen of 2025:KER:7805 WP(C) NO.36871 OF 2024

India, can be solemnised and/or registered or certified before a

Marriage Officer in a foreign country under the provisions of the

Foreign Marriage Act and a marriage between two persons can

be solemnised and/or registered in India under the provisions of

the Special Marriage Act.

10. While considering the validity of a marriage performed

in a foreign country, a Bench of this Court in Gracy and others

v. P.A.Mathiri and others (2005 KHC 948) has held as follows:

"3. The Foreign Marriage Act generally covers the marriages performed abroad where one of the parties alone is an Indian citizen. The Act covers mainly four types of factual situations; (1) the marriage solemnized before the Marriage Officer appointed by the Government of India in the foreign country, in accordance with S.4, 5, 9, 11 and 13; (2) the deemed solemnization under S.17; (3) recognition of marriages solemnized under the law of the foreign country where the marriage is performed and the certification thereof under S.23 read with S.24 of the Act; and (4) marriages solemnized in a foreign country otherwise than under the provisions of the Act.

*** *** ***

5. The second situation is registration of a foreign marriage, where marriage was duly solemnized in a foreign country in accordance with the law of that country between parties of whom one at least is a citizen of India. The procedure is provided under S.17 of the Act. An application has to be made for the purpose of registration before the Marriage Officer and the prescribed fee also has to be remitted. For the registration of the marriages already performed according to the law of the country also, the parties have to satisfy the conditions under S.4. Under S.17, a certificate has to be entered in the prescribed form and in the prescribed manner in the Marriage Certificate Book and the certificate has to be signed by the parties to the marriage and three witnesses. Once a marriage is thus registered, such marriage shall be deemed to have been solemnized under the Act as provided under S.17(6) of the Act, from the date of such registration.

2025:KER:7805 WP(C) NO.36871 OF 2024

6.The third is a situation where the marriage is solemnized under the law of the concerned foreign country. S.23 provides that if the Central Government is satisfied that the law in force in any foreign country for solemnization of marriages contains provisions similar to those contained in the Foreign Marriage Act, 1969, the Government may, by notification in the official gazette declare that the marriages thus solemnized under the law of the foreign country be recognised by the courts in India as valid. S.24 deals with the certification of documents of such marriages. If a party to such marriage solemnized according to the law of the foreign country and which is recognised by the Government of India produces a copy of entry in respect of the marriage in the marriage register of that country certified by the appropriate authority in that country to be a true copy of that entry, the Marriage Officer appointed in the concerned country under S.3 of the Foreign Marriage Act, upon payment of such prescribed fees and upon such enquiry and on being satisfied that the copy produced is a true copy of the entry in the Register of that country, he shall certify upon the copy produced before him that "he is satisfied the copy is a true copy of the entry in the marriage register". A true translation is also liable to be certified as above. S.24(2) provides that "a document relating to a marriage in a foreign country issued under Sub-s.(1) shall be admitted in evidence in any proceedings as if it were a certificate duly issued by the appropriate authority of that country". S.25 provides that every certified copy purporting to be signed by the Marriage Officer of an entry of a marriage in the Marriage Certificate Book shall be received in evidence without production or proof of the original.

7. As far as all the above three factual situations are concerned, i.e., (1) the marriage solemnized in accordance with the procedure under the Act, (2) deemed solemnization as per S.17 and (3) the certification under S.23, the evidence is the certification of the Marriage Officer in the foreign country. The only difference in the third situation is that the certification is on the copy of the marriage certificate of the concerned country. In other words, no attested copy of the certificate of marriage performed in a foreign country, be it attested by a notary, shall be accepted in evidence as proof of valid marriage. The same has to be duly certified by the Marriage Officer appointed by the Government of India in the concerned country".

11. The view expressed in Gracy's case has been

reiterated by another Bench of this Court in Thresiamma

Manshoven v. Manshoven Jacques Joseph (2019 (3) KHC

404).

2025:KER:7805 WP(C) NO.36871 OF 2024

12. On analysing the scheme and provisions of both the

Acts and their interpretation by this Court, there is no doubt that

the petitioners are precluded from getting their marriage

registered under the provisions of the Special Marriage Act.

Hence, the stand of the 3rd respondent in refusing to register the

petitioner's marriage is justifiable.

13. During the pendency of the writ petition, this Court

impleaded the Marriage Officer, Embassy of India, Indonesia, as

the additional fourth respondent and directed the learned DSGI

to ascertain the modalities for registering/certifying the

petitioners' marriage through online means.

14. The learned DSGI submitted that the petitioner's

marriage certificate was attested by the Embassy of India,

Indonesia.

15. On verifying the Ext.P1 marriage certificate, this Court

finds that Ext.P1 is only attested by the Embassy of India,

Indonesia, and not registered/certified under the Foreign

Marriage Act.

16. This Court, in Arun R.K. v. State of Kerala (2023 (2)

KHC 391) and in a series of decisions, has held that the 2025:KER:7805 WP(C) NO.36871 OF 2024

Registering Authority under the Special Marriage Act cannot

refuse to solemnise marriage through the online mode. This

Court has outlined the procedural framework to be followed in

such cases.

17. Given the fact that the petitioners are currently

residing in Kerala and Ext.P1 marriage certificate has already

been attested by the Embassy of India in Indonesia, this Court is

inclined to extend the guidelines laid down in Arun.R.K's case to

the petitioners, to facilitate the registration/certification of their

marriage according to the provisions of the Foreign Marriage

Act, through the online mode, which would obviate the

petitioners from travelling to Indonesia for the purpose. If the

petitioners submit an online request for the above purpose, the

4th respondent shall compassionately consider the application in

accordance with the law and register/certify the petitioners'

marriage. The assistance rendered by the learned DSGI and the

learned Amicus Curiae is appreciated.

2025:KER:7805 WP(C) NO.36871 OF 2024

Thus, the writ petition is disposed of in the following

manner:

(i) The petitioners' prayer to register their marriage under the provisions of the Special Marriage Act is declined.

(ii) The petitioners are at liberty to submit an online request to the 4th respondent to get their marriage registered/certified as per the provisions of the Foreign Marriage Act.

(iii) If the petitioners submit the request, the 4th respondent shall process it through video conferencing as per the guidelines laid down in Arun. R.K's case (supra).

(iv) The office of the learned DSGI shall extend all the necessary support to the petitioners for the above purpose.

Sd/-C.S.DIAS, JUDGE rkc/29.01.2025 2025:KER:7805 WP(C) NO.36871 OF 2024

APPENDIX OF WP(C) 36871/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE RESIDENTIAL CERTIFICATE DATED 18-07-2024 ISSUED BY POOMANGALAM GRAMA PANCHAYAT

Exhibit P2 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 01-02-2014 ISSUED BY THE OFFICE OF THE RELIGIOUS AFFAIRS REPUBLIC OF INDONESIA

Exhibit P3 TRUE COPY OF APPLICATION DATED 23-07- 2024 UNDER SECTION 15 OF THE SPECIAL MARRIAGE ACT SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT ALONG WITH ITS ACKNOWLEDGEMENT

Exhibit P4 TRUE COPY OF THE LETTER DATED 05-09-2024 FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.

Exhibit P5 TRUE COPY OF THE COMMUNICATION DATED 18/11/2024 ISSUED BY THE 3RD RESPONDENT.