Rajasthan High Court
Smt Ashwani Sharad And Anr vs Registrar Of Hindu Marriage Anr on 7 December, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2023:RJ-JP:38276]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2657/2010
1. Smt. Ashwani Sharad Pendese W/o Shri Manohar Tej,
Resident of Village, Tehsil District Chavan Building, School
No. 7, Uthalser, Thane (Maharashtra)
2. Shri Singh Manohar Tej, son of Shri Bhawar Singh,
Resident of Avenue Foret D.E. Soigenace, 336, 1640,
Forte Saint Gense, Belgium.
----Petitioners
Versus
1. Registrar of Hindu Marriage, Nagar Nigam, District Ajmer
(Raj.)
2. State of Rajasthan through District Collector, District
Ajmer (Raj.)
----Respondents
For Petitioner(s) : Mr.Anirudh Tyagi, Advocate on behalf
of Mr.Kapil Mathur, Advocate.
For Respondent(s) : Mr.Ishan Kumawat, Advocate.
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
RESERVED ON : 23/11/2023
PRONOUNCED ON : 07 /12/2023
Order
REPORTABLE
BY THE COURT:
1. In Ancient Mythology, it was believed worldwide that
"Marriages are made in Heaven, but celebrated on Earth,
Unity of two unknown souls, written right from birth."
2. The above idiom means that "the fate or destiny of whom
one marry is decided by a High Power, such as God, and not
by human choice or action." It is often used to express the belief
[2023:RJ-JP:38276] (2 of 25) [CW-2657/2010]
that marriage is a sacred and divine institution and that married
couples have a special bond that transcends earthly matters.
Marriage is often regarded as a sacred bond, holds a unique
significance in culture, echoing the age-old belief that certain unions
are made in Heaven.
3. Marriages are pious knots in which two people are tied,
not only physically but also emotionally, mentally and
psychologically. Marriage is a legal formality or a sort of
accord between two people, who agree to take care of each
other. In other words, the act of marriage can be put as
development of relationship which brings together two
people, two souls, two families, two tribes and two races.
4. Marriage is the process through which two people make
their relationship public, official and permanent. It joins two
people in a bond that putatively lasts until death.
5. The petitioners are claiming themselves a Hindu married
couple and petitioner No.1 is a resident of India, while the petitioner
No.2 is a resident of Belgium. Both are seeking direction of this
Court to Registrar of Marriage to register their marriage and issue a
marriage certificate to them. The Registrar has refused to register
their marriage by observing that their marriage cannot be registered
because the petitioner No.2 is a Foreign National and he is not a
resident of India. Now, the issue in this petition is "Whether the
Registrar of Marriage can refuse to register a marriage only on the
ground that one person of the couple is not citizen of India?" The
other issue involved in this petition is "Whether denial of registration
[2023:RJ-JP:38276] (3 of 25) [CW-2657/2010]
of a foreign national, who solemnized marriage in India amounts to
violation of his right of equality under Article 14 of the Constitution
of India?" It is in this background, the issues involved in this petition
are required to be considered.
6. The factual matrix of the case, as per the contents of the writ
petition is that the petitioner No.1 is a resident of India, while the
petitioner No.2 is a resident of Belgium and is a frequent traveller in
India. Both the petitioners are claiming themselves as Hindu and as
per their claim, they have performed marriage as per the Hindu rites
and rituals, as per the Hindu Marriage Act, 1955 (for short "the Act
of 1955") on 18.01.2010. As per the contents of the petition, Arya
Samaj, Ajmer has issued a certificate in this regard and thereafter,
they submitted an application on 20.01.2010 before the Registrar of
Marriage for getting their marriage registered and obtaining a
marriage certificate but the Registrar refused to register their
marriage orally, on the ground that one of the petitioners i.e. the
husband is a foreigner and is not a citizen of India. Hence, under
these circumstances, the petitioners have knocked the doors of this
Court by way of invoking the extra-ordinary jurisdiction of this Court
under Article 226 of the Constitution of India, with the following
prayer:-
"It is therefore most respectfully prayed that this Hon'ble
Court:-
1. May be pleased to direct the respondents to register the
marriage of the petitioners.
2. Cost of the petition may be quantified in favour of the
petitioner.
3. Any other relief and direction which this Hon'ble Court
deems fit and proper may be granted."
[2023:RJ-JP:38276] (4 of 25) [CW-2657/2010]
7. The respondents have submitted a very short reply with regard
to the maintainability of the petition only on the ground of Section 3
of the Rajasthan Compulsory Registration of Marriages Act, 2009
(for short "the Act of 2009"). The sole objection of the respondents
in their reply is that one of the persons in the couple is not a citizen
of India. Hence, their marriage cannot be registered.
8. Associate counsel of the arguing counsel has put appearance in
the matter and he pleaded no instructions on behalf of the
petitioners. He submitted that the petitioners are not in his contact
and touch since long, hence he has no instructions to plead on their
behalf.
9. Per contra, the counsel for the respondents opposed the prayer
and contents of the petition and has also taken the objection again
that no valid proof with regard to the marriage, as per Section 5 of
the Act of 1955, has been produced for registration of marriage and
the marriage cannot be registered, as per Section 3 of the Act of
2009 because the petitioner No.2 is not a citizen of India. Counsel
submitted that the certificate issued by Arya Samaj, Ajmer is not a
valid certificate of marriage, as per the judgment passed by the
Allahabad High Court in the case of Ashish Morya Vs. Anamika
Dhiman reported in 2023 DMC 156 (All). Counsel submitted that
in view of the submissions made hereinabove, this petition is liable
to be rejected.
10. Looking to the nature of controversy involved in the petition
and looking to the fact that matter relates to registration of
marriage alleged to have been solemnized in the year 2010 and
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looking to the fact that the matter is pending since 2010 for
adjudication and looking to the peculiar facts and circumstances of
the case, this Court deems it just and proper to decide the issues
involved in this petition without issuing notice to the petitioners to
engage other counsel.
11. This Court has carefully perused the contents of the petition
and the documents available on record and the submissions made
by the counsel for the respondents.
12. The Hindu Marriage Act, 1955 came into force in the year
1955. The main object of this Act was to amend and codify the law
relating to marriage among Hindus and others. Section 2 deals with
the applicability of the Act, Section 4 deals with overriding effect of
this Act, Section 5 deals with conditions of a Hindu marriage,
Section 7 deals with ceremonies for a Hindu marriage and Section 8
deals with registration of Hindu marriages. The provisions contained
under Sections 1, 2, 4, 5, 7 & 8 of the Act of 1955 are reproduced
hereunder:-
"1. Short title and extent.--(1) This Act may be called the
Hindu Marriage Act, 1955.
(2) It extends to the whole of India, and applies also to
Hindus domiciled in the territories to which this Act extends
who are outside the said territories.
2. Application of Act.-- (1) This Act applies--
(a) to any person who is a Hindu by religion in any of its forms
or developments, including a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion,
and
(c) to any other person domiciled in the territories to which
this Act extends who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by
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any custom or usage as part of that law in respect of any
of the matters dealt with herein if this Act had not been
passed.
Explanation.--The following persons are Hindus, Buddhists,
Jainas or Sikhs by religion, as the case may be:--
(a) any child, legitimate or illegitimate, both of whose parents
are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents
is a Hindu, Buddhist, Jaina or Sikh by religion and who is
brought up as a member of the tribe, community, group or
family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu,
Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section
(1), nothing contained in this Act shall apply to the members
of any Scheduled tribe within the meaning of clause (25) of
article 366 of the Constitution unless the Central Government,
by notification in the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall
be construed as if it included a person who, though not a
Hindu by religion, is, nevertheless, a person to whom this Act
applies by virtue of the provisions contained in this section.
3. Definitions.- XX XX XX
4. Overriding effect of Act.--Save as otherwise expressly
provided in this Act,--
(a) any text rule or interpretation of Hindu law or any custom
or usage as part of that law in force immediately before
the commencement of this Act shall cease to have effect
with respect to any matter for which provision is made in
this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to have effect in so
far as it is inconsistent with any of the provisions
contained in this Act.
5. Conditions for a Hindu marriage.--A marriage may be
solemnized between any two Hindus, if the following conditions
are fulfilled, namely:--
(i) neither party has a spouse living at the time of the
marriage;
(ii) at the time of the marriage, neither party--
(a) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been
suffering from mental disorder of such a kind or to
[2023:RJ-JP:38276] (7 of 25) [CW-2657/2010]
such an extent as to be unfit for marriage and the
procreation of children; or
(c) has been subject to recurrent attacks of insanity,
(iii) the bridegroom has completed the age of twenty-one
years and the bride, the age of eighteen years at the time of
the marriage;
(iv) the parties are not within the degrees of prohibited
relationship unless the custom or usage governing each of
them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the
custom or usage governing each of them permits of a
marriage between the two;
6. Guardianship in marriage.- XX XX XX
7. Ceremonies for a Hindu marriage.- (1) A Hindu
marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the
Saptapadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh
step is taken.
8. Registration of Hindu marriages.--(1) For the purpose
of facilitating the proof of Hindu marriages, the State
Government may make rules providing that the parties to any
such marriage may have the particulars relating to their
marriage entered in such manner and subject to such
conditions as may be prescribed in a Hindu Marriage Register
kept for the purpose.
(2) Notwithstanding anything contained in sub-section
(1), the State Government may, if it is of opinion that it is
necessary or expedient so to do, provide that the entering of
the particulars referred to in sub-section (1) shall be
compulsory in the State or in any part thereof, whether in all
cases or in such cases as may be specified, and where any
such direction has been issued, any person contravening any
rule made in this behalf shall be punishable with fine which
may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before
the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable
times be open for inspection, and shall be admissible as
evidence of the statements therein contained and certified
extracts therefrom shall, on application, be given by the
Registrar on payment to him of the prescribed fee.
(5) Notwithstanding anything contained in this section,
the validity of any Hindu marriage shall in no way be affected
by the omission to make the entry."
[2023:RJ-JP:38276] (8 of 25) [CW-2657/2010]
13. Perusal of the sub-clause (2) of Section 1 of the Act of 1955
indicates that the provisions contained under the Act of 1955 are
also applicable to the Hindus domiciled in the territories to which this
Act extends who are outside the said territories. Giving
interpretation about applicability of Section 1 of the Act of 1955, the
Hon'ble Supreme Court in the case of Organo Chemical
Industries Ltd. Vs. Union of India reported in AIR 1979 SC
1803 has held that where two persons who are Hindu by religion
and professes Hinduism, comes to a place where the Act of 1955 is
applicable and solemnize their marriage, as per the conditions of
Section 5 and 7 of the Act of 1955, their marriage is treated as valid
marriage. Interpreting the above provisions of the Act of 1955 and
the above judgment, the Division Bench of Kerala High Court in the
case of Vinaya Nair & Anr. Vs. Corporation of Kochi reported in
AIR 2006 Ker 275 has held that the idea of domicile can never be
imported into the marriage of two Hindus married in India according
to Hindu rites. The Court held that non-applicability of the Act of
1955 would be in an extreme case where both the spouses did not
remain in India and both spouses have domiciled outside India.
14. Section 5 and 7 of the Act of 1955 never say that the Hindu
who is solemnizing the marriage under the Hindu Marriage Act,
1955 should have domiciled in India. Meaning thereby this Act is
applicable upon both the Hindus, domiciled in the territories to which
the Act extends who are outside the territories. In the case of
Vinaya Nair (supra) both the spouses were Hindu by religion and
solemnized their marriage in India, as per the provisions of the Act
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of 1955. The husband was employed in Canada and the wife was a
native of Kannur District in Kerala. But the Corporation of Kochi
refused to register their marriage because one person of the couple
has Canadian domicile. Interpreting Sections 2 and 5 of the Act of
1955, the Kerala High Court held as under:-
"6. ....... Though Section 1(2) states that the Act extends to the
whole of India except the State of Jammu and Kashmir and
also to Hindus domiciled in the territories to which the Act
extends, the word "domicile" does not figure in Sub-clauses
(a) and (b) of Section 2(1). Sub-clause (a) of Section 2(1)
states that the Hindu Marriage Act applies to any person who
is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj. Sub-clause (b) of Section 2(1) states
that the Act applies to any person who is a Buddhist, Jaina or
Sikh by religion meaning thereby Clauses (a) and (b) require
the form of Hindu to make the Act applicable. Sub-clause (c)
states that the Act applies to any other person domiciled in the
territories to which the Act extends who is not a Muslim,
Christian, Parsi or Jew by religion, unless it is proved that any
such person would not have been governed by the Hindu law
or by any custom or usage as part of the law. A conjoint
reading of Sections 1 and 2 of the Act would indicate that so
far as the second limb of Section 1(2) of the Act is concerned
its intra territorial operation of the Act applies to those who
reside outside the territories. First limb of Sub-section (2) of
Section 1 and Clauses (a) and (b) of Section 2(1) would make
it clear that the Act would apply to Hindus reside in India
whether they reside outside the territories or not. The word
"Hindu" as such is not defined in the Act. All the same, Sub-
section (3) of Section 2 says that the Act shall be construed as
if it included a person who, though not a Hindu by religion, is,
nevertheless, a person to whom the Act applies by virtue of
the provisions contained in the Section. Section 5 as we have
already indicated, deals with conditions for a Hindu marriage.
It is not a condition in Section 5 that the Hindu who is
solemnising the marriage under the Hindu Marriage Act should
have domiciled in India. We may in this connection refer to the
applicability of the Hindu Succession Act, 1956. Section 1(2) of
the Act states that it extends to the whole of India except the
State of Jammu and Kashmir. Section 2(1) deals with the
applicability of the provisions of the Act and also the
jurisdiction of the court. There is no second part to Sub-section
(2) providing for extra territorial operation. Section 2 of the
Hindu Succession Act also does not contain any reference to
domicile. When we compare the provisions of the Hindu
Marriage Act and the Hindu Succession Act, 1956 it is clear
that the concept of domicile has been brought only in the
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second limb of Sub-section (2) of Section 1 of the Hindu
Marriage Act read with Section 5(1) of the Act. So far as the
present case is concerned, clause applicable is the first limb of
Sub-section (2) of Section 1 read with clause (a) of Sub-
section (1) of Section 2 of the Act. Test to be applied is
whether both the parties are Hindus by religion in any of its
forms and whether they have satisfied the condition laid down
in Section 5 of the Hindu Marriage Act and whether they have
followed the ceremonies of Hindu Marriage Act as provided in
Section 7 of the Hindu Marriage Act. The concept of domicile
as we have already indicated would apply only in a case where
the second limb of Section 1(2) of the Hindu Marriage Act read
with sub-clause (a) of Section 2(1) is attracted. We are of the
view the petitioners have satisfied the conditions laid down in
Section 5 of the Act and also the first limb of Sub-section (2)
of Section 1 read with clauses (a) and (b) of Section 2(1) of
the Hindu Marriage Act, 1955.
7. In such circumstances, we are of the view, marriage
between the parties is a valid marriage solemnised following
the provisions of the Hindu Marriage Act and therefore the
Corporation is not justified in not registering the marriage. We
are of the view Ramesh Kumar's case has not been correctly
decided. We therefore overrule the said decision. Reference is
answered accordingly. Writ Petition is disposed of with a
direction to the Corporation to issue the marriage certificate at
the earliest."
15. The similar issue came before the Delhi High Court in the case
of Bhumika Mohan Jaisinghani & Anr. Vs. Registrar of
Marriage & Ors. reported in 2019 SCC OnLine Del 6538, where
one spouse was citizen of Canada and other another spouse was a
resident of Britain and both were working with the British High
Commission, New Delhi since 2017. Both of them online applied for
registration of their marriage but the software did not accept their
application because they were not citizen of India. Resolving the
controversy, the Delhi High Court held in para Nos.9 to 16 as
under:-
"9. The petitioners further assert that they also made the
declaration as required under Section 12 of the Act. It is also
not disputed that the Registrar of Marriages duly informed the
petitioners that they were married. The petitioners also
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exchanged rings in his presence and in presence of the
witnesses.
10. Subsequently, the petitioners were informed that the
system is not accepting their citizenship details as indicates
that at least one party has to be an Indian Citizen. Since, both
the petitioners were not Indian citizens, the software did not
accepted their details for generation of a certificate of
marriage.
11. The learned counsel appearing for respondents does not
dispute that the marriage between two foreigners cannot be
registered under the Act. Thus, clearly, the software being
used by the respondents for generation of the certificate
and/or for maintaining the records of the marriages requires to
be modified. Clearly, the issuance of the marriage certificate as
per the Act cannot be withheld on account of the software
being used by the respondents for the said purpose.
12. Sections 12 and 13 of the Act are relevant and are set out
below:-
"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 the (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 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."
13. Admittedly, the marriage between the petitioners have
been solemnized and further, the petitioners have also made
the declaration as required in terms of the proviso to Sub-
section (2) to Section 12 of the Act.
[2023:RJ-JP:38276] (12 of 25) [CW-2657/2010]
14. In view of the above, the respondent is required to issue a
certificate in the form as set out in the Fourth Schedule of the
Act.
15. In view of the above, the present petition is allowed and
the petitioners along with witnesses are required to appear
before respondent no.1 on 29.01.2019 at 10:30 a.m.
Respondent no.1 is directed to issue a Certificate of Marriage
in the form as specified in the Fourth Schedule and also ensure
that a copy of the same as well as other necessary details are
preserved in the records maintained at his office.
16. The respondents are further directed to take the necessary
steps for modification of the software being used for
registration of marriages and issuance of certificates. The
details of the marriage between the petitioners shall be
entered into by respondent no.1 as and when the software is
modified without the presence of the petitioners or the
witnesses."
16. The Delhi High Court not only directed the Registrar of
Marriages to register the marriage of the two foreigners (not citizens
of India) but also directed the authorities for taking necessary steps
for modification of the software, which was being used for
registration of marriages and issuance of certificates.
17. Again the same situation was faced by two foreign nationals
who solemnized marriage at New Delhi but the authorities did not
register their marriage under the Special Marriage Act. For redressal
of their grievance, they approached the Delhi High Court by way of
filing Writ Petition (C) No.7951/2021 titled as Aryan Arianfar
& Anr. Vs. State Government of NCT of Delhi & Ors. wherein
following order was passed on 11.08.2021 at paragraph 5, which
reads as under:-
"5. In the light of the aforesaid facts, the respondent No.2 is
directed to communicate a date for a physical appointment to
the petitioners within the next three days, in order to facilitate
the registration of their marriage. The said communication be
also sent to the learned counsel for the petitioner. It is
expected that in the meanwhile, the respondents will take
expeditious steps for amending the relevant guidelines and
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make the necessary changes in the e-portal to enable foreign
nationals, whose marriages are solemnized in Delhi, to apply
on the e-portal for registration of their marriage."
18. It appears that in spite of issuance of clear and specific
directions by the Delhi High Court in the cases of Bhumika Mohan
Jaisinghani (supra) and Aryan Arianfar (supra), neither the
portal or software was modified nor fresh guidelines were issued by
the Government of NCT of Delhi. Again similar difficulties were faced
by two persons out of which one was Canadian and another was
American Citizen, who were working and residing in Delhi and they
were inclined to solemnize their marriage and register the same
under the Special Marriage Act, 1954, but the website of the
concerned department did not accept their application and the pop-
up message came on the site that 'at least one party should be
Indian'. Again interpreting the provisions contained under Section 4
of the Special Marriage Act, 1954, the following observations were
made and certain directions were issued by the Delhi High Court in
their case titled as Arushi Mehra & Anr. Vs. Govt. (NCT of Delhi)
& Anr. reported in 2023 SCC OnLine Del 187 in paragraphs 9 to
15, which are reproduced as under:-
"9. A perusal of the decisions extracted above shows that the
order passed by the ld. Single Judge makes it clear that the
Respondents have to take expeditious steps for amendment of
the guidelines and make the required changes to the e-portal
to enable foreign nationals whose marriages are to be
solemnized and registered in Delhi to apply online for the
same. The relevant provision in the Act which enables the
same is Section 4 of the Act. Section 4 of the Act is extracted
as under:
"4. Conditions relating to solemnization of special marriages.--
Notwithstanding anything contained in any other law for the
time being in force relating to the solemnization of marriages,
a marriage between any two persons may be solemnized
under this Act, if at the time of the marriage the following
conditions are fulfilled, namely :
[2023:RJ-JP:38276] (14 of 25) [CW-2657/2010]
(a) neither party has a spouse living;
(b) neither party--
(i) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has
been suffering from mental disorder of such a
kind or to such an extent as to be unfit for
marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity
(c) the male has completed the age of twenty-one years
and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited
relationship:
Provided that where a custom governing at least one of
the parties permits of a marriage between them, such
marriage may be solemnized, notwithstanding that they
are within the degrees of prohibited relationship; and
(e) where the marriage is solemnized in the State of
Jammu and Kashmir, both parties are citizens of India
domiciled in the territories to which this Act extends.
Explanation.-- In this section, "custom", in relation to a
person belonging to any tribe, community, group or family,
means any rule which the State Government may, by
notification in the Official Gazette, specify in this behalf as
applicable to members of that tribe, community, group or
family:
Provided that no such notification shall be issued in
relation to the members of any tribe, community, group or
family, unless the State Government is satisfied--
(i) that such rule has been continuously and
uniformly observed for a long time among those
members;
(ii) that such rule is certain and not unreasonable or
opposed to public policy; and
(iii) that such rule, if applicable only to a family, has
not been discontinued by the family."
10. A perusal of Section 4 of the Special Marriage Act, 1953
leaves no doubt that any two persons can seeks solemnization
of their marriage so long as conditions therein are fulfilled.
Sub-Sections (a), (b), (c) and (d) of Section 4 do not make
any reference to citizens. It is only in Sub-Section (e) of
Section 4, where the statute requires that in case of marriages
solemnized in Jammu and Kashmir, both parties have to be
citizens of India.
11. The statute having made a clear distinction between `any
two persons' in the initial part, in contradistinction with
`citizens' in Sub-Section (e) of Section 4, it is clear that the
[2023:RJ-JP:38276] (15 of 25) [CW-2657/2010]
requirement of at least one party being a citizen of India is not
required under the Special Marriage Act.
12. The Guidelines for Issuance of Marriage Registration
Certificate issued by the Revenue Department, Government of
NCT of Delhi are given on the following URL:
https://edistrict.delhigovt.nic.in/eDownload/Eligibility/Guidelin
e_9073.pdf
13. The said guidelines elucidating the eligibility criteria of
marriages under the Special Marriage Act, 1953 read as:
"III. The applicant is entitled for Marriage Registration
Under and Special Marriage Act,1954 if -
• One party either Groom or Bride must be a citizen of
India.
• Marriage has been solemnized within the territorial
jurisdiction of NCT of Delhi.
• Marriage has been solemnized between any two
persons of different religion.
• The groom should be of 21 years of age and the bride
of 18 years. (As on Marriage Date).
• Neither party has at the time of registration more than
one spouse living. Neither party
• is incapable of giving a valid consent of it in
consequence of unsoundness of mind; or
• though capable of giving a valid consent has been
suffering from mental disorder of such a kind or to such
an extent as to be unfit for marriage and the procreation
of children; or
• has been subject to recurrent attacks of insanity or
epilepsy;
• The parties are not within the degrees of prohibited
relationship unless the custom or usage governing each
of them permits of a marriage between the two
• The parties have been living together as husband and
wife.
• The parties have been residing within the district in
Delhi of the Marriage Officer for a period of not less than
thirty days immediately preceding the date on which the
application is made to him for registration of the
marriage.
• Both the parties (Bride and Groom) shall be present in
person along with three witnesses bearing proof of
permanent resident of Delhi who shall certify to the
solemnization of such marriage on the day of
appointment with Marriage officer."
14. Therefore, it is clear that the directions given by various
orders of the Delhi High Court have not been implemented by
the Respondent Authorities and the guidelines are contrary to
the statutory provisions as also the decisions of this Court
extracted above. Accordingly, the following directions are
issued: -
[2023:RJ-JP:38276] (16 of 25) [CW-2657/2010]
(i) The Petitioners are permitted to approach the SDM
Defence Colony on 17th January, 2023 in order to submit
their form for solemnization and registration of marriage
along with the requisite fee.
(ii) The SDM shall process the same in accordance with the
prescribed procedure without taking the objection that
one of the persons has to be a citizen of India. Rest of
the prescribed procedure shall be followed and the
marriage shall be solemnized and registered in
accordance with law.
(iii) A status report shall be placed on record by the Secretary
of the concerned Ministry GNCTD giving the details of the
steps taken for amending the guidelines as also the steps
taken for editing the requirements in the e-portal under
the Special Marriage Act so as to ensure that the
requirement of one of the parties being a citizen is not
insisted upon.
15. Considering the fact that the directions of this Court date
back to the year 2019, the status report indicating compliance
with direction (iii) above shall be filed within four weeks, failing
which, a senior official who is aware of the matter, shall join
the proceedings either virtually or physically."
19. Section 8 of the Hindu Marriage Act, 1955 deals with the
process of Registration of Hindu Marriages and a complete
mechanism has been provided for the State Government for
compulsory registration of the marriages. But it has no where
mentioned that a foreign national Hindu cannot get his marriage
registered in India, if he/she has solemnized marriage, as per the
requirement of Section 5 and 7 of the Act of 1955. Hence, it is clear
that provisions contained under Section 3 of the Act of 2009 are not
in consonance with the provisions contained under Section 8 of the
Act of 1955.
20. During the course of arguments, the counsel for the
respondents has submitted a format of application for Registration of
Marriage, issued by the Department of Economics and Statistics,
Government of Rajasthan and the same is reproduced as under:-
[2023:RJ-JP:38276] (17 of 25) [CW-2657/2010]
"Application for Registration of Marriage
(Fill the application for registration of marriage both in Hindi & English)
The Marriage Registrar
__________________
I have to apply for marriage registration. Particulars are given below:-
(A) Details of Bridegroom
Name of husband:_________________________________________________
Name of husband's father:__________________________________________
Name of husband's mother:_________________________________________
Caste:___________________ Citizen__________ Qualification____________
Permanent Address________________________________________________
Distt:____________ State_________ Pin Code:__________
(B) Details of Bride
Name of wife:____________________________________________________
Name of wife's father:______________________________________________
Name of wife's mother:_____________________________________________
Caste:___________________ Citizen__________ Qualification____________
Permanent Address________________________________________________
Distt:____________ State_________ Pin Code:__________
(C) Details of Marriage
Address of place of Marriage:________________________________________
Distt:____________ State_________ Pin Code:__________
4x5 cm 4x5 cm
passport Seal of amount passport
size deposited size
I - Witness II - Witness
Signature_______________ Signature_______________
Name__________________ Name__________________
Father's name___________ Father's name___________
Address________________ Address________________
Mob.No.____ Aadhar______ Mob.No.____ Aadhar______
Declaration
I_____________son/daughter of _____________ aged ___ resident of
______________________ do hereby declare that the information & details
furnished in the application are true and correct. If any information & details are
found to be incorrect then I would be responsible for the action taken against
me.
Applicant's signature/thumb impression________________________________
Full name of the applicant & Address__________________________________
Pin Code:______________
Relation of applicant with Husband/Wife_______________________________
Mobile No. of applicant___________________________________________"
20. Perusal of the above format of application form indicates that
even there is no column which prohibits any foreign national to get
[2023:RJ-JP:38276] (18 of 25) [CW-2657/2010]
registration of his/her marriage. Only details of permanent address
of the bridegroom and bride are required to be filled with the details
of the couple and place of their marriage. This application format
nowhere indicates that both the bride and the bridegroom must be
citizens of India. Hence, the action of the respondents in denying
registration of a married couple only on this ground that one of them
is not a citizen of India is not sustainable in the eye of law and the
same is contrary to their own application form.
21. In view of the above legal pronouncements, it is explicit and
ipso facto clear that for getting registration of marriage, it is not
necessary that the party must be Citizen of India. The issue No.1 is
answered accordingly.
22. Now this Court proceeds to decide the second issue that when
a foreign national has solemnized marriage in India, as per the
provisions contained under the Act of 1955, whether the denial of
his/her marriage registration amounts to violation of his/her right of
equality under Article 14 of the Constitution of India?
23. Fundamental rights are the basic human rights, enshrined in
Part-III (Articles 12 to 35) of the Constitution of India, which are
guaranteed to all citizens. The fundamental rights, contained under
Articles 15, 16, 19, 29 and 30 are exclusively reserved for the
citizens of India and the same are not available to foreign nationals.
These rights are:-
a) Article 15 - Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.
b) Article 16 - Equality of opportunity in matters of public
employment.
[2023:RJ-JP:38276] (19 of 25) [CW-2657/2010]
c) Article 19 - Protection of certain rights regarding
freedom of speech, etc.
d) Article 29 - Protection of interests of minorities.
e) Article 30 - Right of minorities to establish and
administer educational institutions.
But except the above fundamental rights, the other rights are
available not only to the citizens of our country but the same are
available to the non-citizens as well. Since, India was signatory of
the Universal Declaration of Human Rights, adopted by the UN
General Assembly on 10.12.1948, therefore, a detailed endeavour
was undertaken by the Constituent Assembly of India to harmonize
the fundamental rights, enumerated in Part-Three of the Constitution
of India with the principles delineated in the Universal Declaration of
Human Rights. Thus, fundamental rights are open to both citizens of
India and foreigners. However, certain rights, contained under
Articles 15, 16, 19, 29 and 30 of the Constitution of India are solely
available to Indian Nationals as fundamental rights. The majority of
sovereign Nations adhere to natural justice principles and grant
basic rights to foreign nationals. The Founders of the Constitution
were concerned not to deny any basic right to non-citizens that
would be damaging to their existence or deprive them of liberty and
equality. It is vital to understand the distinction between the rights
of citizens and those of foreign nationals to assess whether their
rights have been violated. The fundamental rights of citizens,
persons and non-citizens are as follows:-
a) Article 14 - Equality before law.
b) Article 20 - Protection in respect of conviction for
offences.
c) Article 21A - Right to education.
[2023:RJ-JP:38276] (20 of 25) [CW-2657/2010]
d) Article 22 - Protection against arrest and detention in
certain cases.
e) Article 23 - Prohibition of traffic in human beings and
forced labour.
f) Article 24 - Prohibition of employment of children in
factories, etc.
g) Article 25 - Freedom of conscience and free profession,
practice and propagation of religion.
h) Article 26 - Freedom to manage religious affairs.
i) Article 27 - Freedom as to payment of taxes for
promotion of any particular religion.
j) Article 28 - Freedom as to attendance at religious
instruction or religious worship in certain educational
institutions.
Meaning thereby, the above fundamental rights are available to
both citizens and non-citizens except enemy aliens. The
fundamental rights for foreigners in India are conditional and the
same are not absolute, they can be subjected to reasonable limits
rather than absolute. Except for the rights protected by Article 20
and 21 of the Indian Constitution, the rest rights can be suspended
during operation of any national emergency.
24. The constitution guarantees these rights without prejudice
against any individual. They are meant to spread the concept of
political democracy. They defend the people's freedom and liberties.
The fundamental rights contained under Articles 15, 16 and 19 of
the Constitution of India confer these rights on the "citizens" only
while Articles 14 and 21 of the Constitution of India confer
fundamental rights on "any person". This distinction between a
"citizen" and a "person" was engrafted in our Constitution by its
framers with a specific intent - to grant certain fundamental rights
to its "citizens" and to grant certain rights to any "persons". There is
[2023:RJ-JP:38276] (21 of 25) [CW-2657/2010]
no ambiguity in the language of the Articles referred above and the
intent is expressed with sufficient linguistic precision.
25. The fundamental rights are available to all the "citizens" of the
country but a few of them are available to the persons i.e. "non-
citizens" as well. In the case of STC of India Ltd. Vs. CTO reported
in AIR 1963 SC 1811, the Hon'ble Apex Court has held that the
word "citizen" in Article 19 of the Constitution of India has not been
used in a sense different from that in which it has been used in Part-
II of the Constitution dealing with "citizenship". It has been held in
this case that the words "all citizens" have been deliberately used to
keep out all "non-citizens" which would include "aliens".
26. Similarly, in the case of Anwar Vs. State of J&K reported in
(1971) 3 SCC 104 the Hon'ble Supreme Court has held that the
rights under Articles 20, 21 and 22 of the Constitution of India are
available not only to "citizens" but also to the "persons" which would
include "non-citizens".
27. Dealing with the issue of availability of fundamental rights to
the "citizens", "persons" and "non-citizens", the Hon'ble Supreme
Court in the matter of Chairman, Railway Board & Ors. Vs.
Chandrima Das (Mrs.) & Ors. reported in (2000) 2 SCC 465 has
held in paragraph No.28, 29, 34, 35, 37 as under:-
"28. The Fundamental Rights are available to all the "citizens"
of the country but a few of them are also available to
"persons". While Article 14, which guarantees equality before
law or the equal protection of laws within the territory of India,
is applicable to "person" which would also include the "citizen"
of the country and "non- citizen" both, Article 15 speaks only
of "citizen" and it is specifically provided therein that there
shall be no discrimination against any "citizen" on the ground
only of religion, race, caste, sex, place of birth or any of them
nor shall any citizen be subjected to any disability, liability,
[2023:RJ-JP:38276] (22 of 25) [CW-2657/2010]
restriction or condition with regard to access to shops, public
restaurants, hotels and places of public entertainment, or the
use of wells, tanks, bathing ghats, roads and places of public
resort on the aforesaid grounds. Fundamental Right
guaranteed under Article 15 is, therefore, restricted to
"citizens". So also, Article 16 which guarantees equality of
opportunity in matters of public employment is applicable only
to "citizens". The Fundamental Rights contained in Article 19,
which contains the right to "Basic Freedoms", namely, freedom
of speech and expression; freedom to assemble peaceably and
without arms; freedom to form associations or unions;
freedom to move freely throughout the territory of India;
freedom to reside and settle in any part of the territory of
India and freedom to practise any profession, or to carry on
any occupation, trade or business, are available only to
"citizens" of the country.
29. The word "citizen" in Article 19 has not been used in a
sense different from that in which it has been used in Part II of
the Constitution dealing with "citizenship". (See STC of India
Ltd. v. CTO). It has also been held in this case that the words
"all citizens" have been deliberately used to keep out all "non-
citizens" which would include "aliens". It was laid down in Hans
Muller of Nuremburg v. Suptd., Presidency Jail AIR at p.374
that this Article applies only to "citizens". In another decision
in Anwar v. State of J & K it was held that non-citizen could not
claim Fundamental Rights under Article 19. In Naziranbai v.
State and Lakshmi Prasad v. Shiv Pal it was held that Article 19
does not apply to a "foreigner". The Calcutta High Court in
Sk.Md. Soleman v. State of W.B. held that Article 19 does not
apply to a Commonwealth citizen.
30. to 33. XX XX XX XX
34. On this principle, even those who are not citizens of this
country and come here merely as tourists or in any other
capacity will be entitled to the protection of their lives in
accordance with the Constitutional provisions. They also have
a right to "Life" in this country. Thus, they also have the right
to live, so long as they are here, with human dignity. Just as
the State is under an obligation to protect the life of every
citizen in this country, so also the State is under an obligation
to protect the life of the persons who are not citizens.
35. The rights guaranteed under Part III of the Constitution
are not absolute in terms. They are subject to reasonable
restrictions and, therefore, in case of non- citizen also, those
rights will be available subject to such restrictions as may be
imposed in the interest of the security of the State or other
important considerations. Interest of the Nation and security of
the State is supreme. Since 1948 when the Universal
Declaration was adopted till this day, there have been many
changes - political, social and economic while terrorism has
disturbed the global scenario. Primacy of the interest of Nation
[2023:RJ-JP:38276] (23 of 25) [CW-2657/2010]
and the security of State will have to be read into the Universal
Declaration as also in every Article dealing with Fundamental
Rights, including Article 21 of the Indian Constitution.
36. XX XX XX XX
37. Now, Smt. Hanuffa Khatoon, who was not the citizen of
this country but came here as a citizen of Bangladesh was,
nevertheless, entitled to all the constitutional rights available
to a citizen so far as "Right to Life" was concerned. She was
entitled to be treated with dignity and was also entitled to the
protection of her person as guaranteed under Article 21 of the
Constitution. As a national of another country, she could not be
subjected to a treatment which was below dignity nor could
she be subjected to physical violence at the hands of Govt.
employees who outraged her modesty. The Right available to
her under Article 21 was thus violated. Consequently, the State
was under the Constitutional liability to pay compensation to
her. The judgment passed by the Calcutta High Court,
therefore, allowing compensation to her for having been gang-
raped, cannot be said to suffer from any infirmity."
28. In view of the discussions made hereinabove, it is explicitly
clear that denial of registration of marriage of the petitioner No.2,
being a foreign national, amounts to violation of Right to Equality
(Article-14). The respondents cannot refuse to register the marriage
of the petitioners only on this count that one of the couples i.e. the
petitioner No.2 is not a citizen of India and he is a foreign national.
29. If the parties applying for registration of marriage proves that
they have performed a valid marriage within the territory of India,
as per the provisions contained under the Hindu Marriage Act, 1954
or the Special Marriage Act, 1955, they can apply for registration of
their marriage and the Registrar of Marriage cannot refuse or deny
to register their marriage and issue certificate of marriage.
30. In the present case, two objections have been raised by the
respondents for denying registration of marriage of the petitioners.
The first objection is that one of the petitioners i.e. the petitioner
No.2 is not a citizen of India, this objection is not sustainable for the
[2023:RJ-JP:38276] (24 of 25) [CW-2657/2010]
reasons stated in the previous paragraphs. The respondents cannot
refuse to register the marriage of the petitioners only because the
petitioner No.2 is a foreigner and is not a citizen of India. The
second objection is that no valid proof of marriage has been
submitted by the respondents, as per the terms of Sections 5 and 7
of the Hindu Marriage Act, 1955. If the petitioners submit valid proof
about their marriage, in terms of the provisions contained under the
Act of 1954, the respondents are supposed to register their
marriage with immediate effect without any further delay.
31. In such circumstances, this writ petition stands disposed of
with directions to Marriage Registrar to register the marriage of the
petitioners and issue them the certificate of registration of their
marriage, subject to the satisfaction that the petitioners have
solemnized valid marriage, in terms of Sections 5 and 7 of the Act of
1955.
32. Before parting with the order, a general mandamus is issued to
the respondents and the Chief Secretary of the State of Rajasthan to
amend their guidelines and the requisite format of application for
registration of marriage. The above officials of the State and
respondents are further directed to take steps for editing the
requirement on the e-portal under the Hindu Marriage Act, 1955 as
well as the Special Marriage Act, 1954 to ensure that the
requirement of the parties being citizens of India is not insisted
upon, if the parties concerned submit a valid proof of their marriage
strictly in accordance with law. The Chief Secretary and the Principal
Secretary, Department of Economics and Statistics, Government of
Rajasthan are further directed to take steps for compliance of the
[2023:RJ-JP:38276] (25 of 25) [CW-2657/2010]
above directions within a period of three months from the date of
receipt of this order.
33. Office/Registry of this Court is directed to forward a certified
copy of this order to the Chief Secretary and the Principal Secretary,
Department of Economics and Statistics, Government of Rajasthan
as well as the petitioners for intimation, necessary action and
compliance.
34. Before closing this matter, it is made clear that whatever has
been observed by this Court in this order is confined to the right of
petitioner No.2 to get the registration of his marriage solemnized in
India, as per the mandate contained under the Act of 1954 and
1955. This Court has not expressed its opinion about any other
rights of the non-citizens and foreign nationals, which are obviously
subject to the restrictions provided under the Constitution of India
and other laws applicable within the territory of India.
35. The parties are left free to bear their own costs.
(ANOOP KUMAR DHAND),J
Solanki DS, PS
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