Tuesday, June 30, 2015

Read Full Judgment Here - No ban for Indians to marry foreigners, Kerala HC rules

Read Full Judgment Here for Free - No ban for Indians to marry foreigners, Kerala HC rules

Article on Times of India

  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                      THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                    FRIDAY, THE 5TH DAY OF JUNE 2015/15TH JYAISHTA, 1937

                                   WP(C).No. 16893 of 2015 (J)
                                      ----------------------------

PETITIONER :
---------------------

            SANDHU SIMON, AGED 24,
            D/O. SIMON, AGASALAYIL HOUSE, KEEZHOOR P.O.,
            MULAKKULAM, KOTTAYAM DISTRICT, PIN - 686 605.

            BY ADV. SRI.JACOB E. SIMON

RESPONDENT(S) :
----------------------------

        1. THE SUB REGISTRAR/ MARRIAGE OFFICER
            SUB REGISTRAR OFFICE, THALAYOLAPARAMB
            THALAYOLAPARAMB P.O., KOTTAYAM DISTRICT, PIN - 686 605.

        2. INSPECTOR GENERAL OF RGISTRATION,
            VANCHIYOOR, THIRUVANAMTHAPURAM, PIN - 595 035.

        3. THE STATE OF KERALA
            REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT
            TAX (REGISTRATION) DEPARTMENT, SECRETARIAT
            THIRUVANANTHAPURAM, PIN-695 001

            R1 TO R3 BY SR. GOVT. PLEADER SMT. C.K. SHERIN

            THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
            ON 05-06-2015, THE COURT ON THE SAME DAY DELIVERED THE
            FOLLOWING:


Mn


                                                                            ...2/-
 
WP(C).No. 16893 of 2015 (J)
--------------------------------------

                                                     APPENDIX

PETITIONERS' EXHIBITS :l
-------------------------------------

EXHBIIT P1           TRUE COPY OF THE RELEVANT PORTION OF THE PASSPORT OF THE
                     NITIN JOSEPH.

EXHBIIT P2           TRUE COPY OF THE REGISTRATION OF OVERSEAS CITIZEN OF INDIA
                     OF THE NITIN JOSEPH.

EXHIBIT P3           NOTICE OF MARRIAGE SUBMITTED BEFORE THE FIRST RESPONDENT
                     AS PER THE PROVISIONS OF SECTION 5 OF THE SPECIAL MARRIAGE
                     ACT -1954 ON 02-06-2015.

EXHIBIT P4           TRUE COPY OF THE REJECTION ORDER OF THE FIRST RESPONDENT
                     NUMBERED AS 137/2015 DATED 08-06-2015.

EXHIBIT P5           TRUE COPY OF THE CERTIFICATE ISSUED BY THE STATE REGISTRAR
                     OF THE PUBLIC HEALTH DEPARTMENT OF ILLINOIS STATE OF UNITED
                     STATES DATED 18/05/2015.

EXHIBIT P6           TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN
                     WP(C) NO. 3045 OF 2015.

RESPONDENT(S)' EXHIBITS :                       NIL
-----------------------------------------------------

                                                                   //TRUE COPY//




                                                                    P.A. TO JUDGE
Mn
 


                   K. VINOD CHANDRAN, J.
              ---------------------------------------
                  W.P(C). No.16893 of 2015
              ---------------------------------------
             Dated this the 5th day of June, 2015.

                         JUDGMENT

     The petitioner, an Indian citizen, desires to enter into a

marriage with one Nitin Joseph, who is a U.S. National of Indian

origin. The petitioner, residing under the jurisdiction of the 1st

respondent, made an application for contracting the said

marriage under the Special Marriage Act, 1954. An objection was

raised by the 1st respondent, allegedly on the ground that the

marriage is intended to be entered into with a foreign citizen and,

hence, the provisions of the Special Marriage Act cannot be

invoked.

     2. In fact, the said issue was already considered by this

Court in Rajeev v. State of Kerala [2001 (1) KLT 578], which

relied on a decision of the High Court of Himachal Pradesh in

Marian Eva v. State of Himachal Pradesh [AIR 1993

Himachal Pradesh 7]. The Court categorically found that the
 
W.P(C). No.16893 of 2015          2




Special Marriage Act does not contain any prohibition for

solemnisation of the marriage, if one of the parties is a foreigner.

Another learned Single Judge of this Court also found to the same

effect in Ext.P6 judgment.

       3. A reading of the provisions of the Special Marriage Act

would also indicate that, Section 4 contemplates a marriage

between "any two persons" could be solemnized under the Act;

if the conditions specified therein are fulfilled. To satisfy the

officer of the conditions stated therein, the intending bridegroom

has also given Ext.P5 Certificate dated 18.05.2015 issued by the

State Registrar of the Public Health Department of Illinois State

of United States, wherein it is stated that after an extensive and

diligent search of all records available, and based on the

information provided, no record of such person can be found,

with respect to 'marriage'.

       4. It is also relevant that, by Circular No.R.R.3-25537/00

dated 8.8.2014, the Government had answered a clarification

made by the Inspector General of Registration and specifically

indicated after citing the aforesaid decisions that the word
 
W.P(C). No.16893 of 2015             3




"person" used in Section 4 of the Special Marriage Act does not

indicate either one of the parties or both the parties should be

citizens of India.

       5. In the present case, the petitioner, a citizen of India, is a

resident within the jurisdiction of the 1st respondent. The

American citizen, who she intends to marry, is not having

permanent residence in India and even if a Marriage Officer is

appointed by the Government of India in its Embassy at United

States of America, there would be no requirement of informing

such Marriage Officer, since the intending bridegroom is a U.S.

citizen. In such circumstance, the application of the petitioner

shall be accepted and notice shall be given by the 1st respondent

as required under the Act and the petitioner permitted to contract

the marriage as intended by her, which shall be solemnised under

the Act.

             The writ petition is allowed.

                                                        Sd/-
                                           K. VINOD CHANDRAN,
                                                      JUDGE

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                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                               PRESENT:

                   THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

               MONDAY,THE 1ST DAY OF JUNE 2015/11TH JYAISHTA, 1937

                             W.P.(C).No.13276 of 2015 (H)
                             ---------------------------------------------------
PETITIONER(S):-
--------------------------

           DEVIKA RAJ, AGED 25 YEARS, D/O. RAJENDRAN PILLAI,
           RESIDING AT T.C.8/1976(3),
           BN-434.A, BAPUJI NAGAR, PONGUMOODU,
           MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.

            BY ADVS.SRI.R.S.KALKURA
                         SRI.M.S.KALESH
                         SRI.HARISH GOPINATH
                         SMT.R.BINDU


RESPONDENT(S):-
----------------------------

       1. STATE OF KERALA,
           REPRESENTED BY SECRETARY TOGOVERNMENT,
           DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695001.

       2. THE INSPECTOR GENERAL OF REGISTRATION,
           VANCHIYOOR, THIRUVANANTHAPURAM-695035.

       3. THE SUB REGISTRAR (MARRIAGE OFFICER),
           PATTOM, THIRUVANANTHAPURAM-695025.

           R1 TO R3 BY GOVERNMENT PLEADER SRI.S.JAMAL.


               THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 
WP(C).No.13276 of 2015 (H)
----------------------------------------

                                            APPENDIX

PETITIONER(S)' EXHIBITS:-
---------------------------------------

EXHIBIT P1: TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT
                   ISSUED BY THE PASSPORT OFFICER, THIRUVANANTHAPURAM
                   IN THE NAME OF THE PETITIONER.

EXHIBIT P2: THE TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT
                   OF SANDEEP DEVANATHA PILLAI.

EXHIBIT P3: TRUE COPY OF THE ONLINE NOTICE SUBMITTED BY THE
                   PETITIONER UNDER THE SPECIAL MARRIAGE ACT.

EXHIBIT P4: THE TRUE COPY OF CIRCULAR NO.R.R.3-25537/00 DATED 8.8.2014
                   ISSUED BY THE SECOND RESPONDENT.

EXHIBIT P5: TRUE COPY OF THE STATEMENT IN LIEU OF CERTIFICATE OF
                   NON-IMPEDIMENT ISSUED BY THE FOREIGN AFFAIRS TRADE AND
                   DEVELOPMENT, CANADA DATED 27.3.2015.

EXHIBIT P6: TRUE COPY OF THE AFFIDAVIT DULY SWORN BY
                   SANDEEP DEVANATHAPILLAI BEFORE THE NOTARY PUBLIC.

EXHIBIT P7: THE TRUE COPY OF THE JUDGMENT DATED 9.12.2014 IN
                   WPC NO.32876 OF 2014.

EXHIBIT P8: TRUE COPY OF THE JUDGMENT IN WPC NO.29057 OF 2014
                   DATED 5.11.2014.


RESPONDENT(S)' EXHIBITS:-
-----------------------------------------          NIL.


Vku/-                                      [ true copy ]
 


                       K. Vinod Chandran, J
                   --------------------------------------
                   W.P.(C).No.13276 of 2015-H
                   -------------------------------------
               Dated this the 01st day of June, 2015

                             JUDGMENT

           The petitioner, an Indian citizen, desires to enter into

a marriage with one Sandeep Devanatha Pillai, who is a person

of Indian origin; but now a Canadian citizen. The petitioner,

residing under the jurisdiction of the 3rd respondent, made an

application for contracting the said marriage under the Special

Marriage Act, 1954. An objection was raised by the 3rd

respondent, allegedly on the ground that the marriage is intended

to be entered into with a Canadian citizen and, hence, the

provisions of the Special Marriage Act cannot be invoked.

           2. In fact, the said issue was already considered by

this Court in Rajeev v. State of Kerala [2001 (1) KLT 578],

which relied on a decision of High Court of Himachal Pradesh in

Marian Eva v. State of Himachal Pradesh [AIR 1993 Himachal

Pradesh 7]. The Court categorically found that the Special

Marriage Act does not contain any prohibition for solemnisation

of the marriage, if one of the parties is a foreigner. Another
 
WP(C).No.13276 of 2015            - 2 -



learned Single Judge of this Court also found to the same effect

in Exhibit P8 judgment.

             3. A reading of the provisions of the Special Marriage

Act would also indicate that, Section 4 contemplates a marriage

between "any two persons" could be solemnized under the Act;

if the conditions specified therein are fulfilled. To satisfy the

officer of the conditions stated therein, the intending bridegroom

has also given Exhibits P5 and P6. Exhibit P5 indicates that there

is no provision as per the Canadian law for issuance of a

certificate that a Canadian citizen is free to marry and that such a

certificate is not required under the Canadian law. Exhibit P6 is

the affidavit given by the intending bridegroom, which indicates

that he satisfies the conditions in sub-clauses (a) to (d) of

Sections 4 of the Act.

             4. It is also relevant that, by Exhibit P4 the

Government had answered a clarification made by the Inspector

General of Registration and specifically indicated after citing the

aforesaid decisions that the word "person" used in Section 4 of

the Special Marriage Act does not indicate either one of the
 
WP(C).No.13276 of 2015           - 3 -



parties or both the parties should be citizens of India. The said

communication is also accepted by Exhibit P4.

            5. The learned Government Pleader contends that

there is no Marriage Officer appointed by the Government of

India in the Embassy of India at Canada and there is no provision

for sending a communication as required under sub-section (3)

of Section 6 of the Act.

            6. Sub-section (3) of Section 6 requires only that

when either of the parties      to an intended marriage is not

permanently residing within the local limits of the Marriage

Officer, then the Marriage Officer of the district in which either of

the parties have their residence should be informed of the

marriage.

            7. In the present case, the petitioner, a citizen of

India, is a resident within the jurisdiction of the 3rd respondent.

The Canadian citizen, who she intends to marry, is not having

permanent residence in India and even if a Marriage Officer is

appointed by the Government of India in its Embassy at Canada,

there would be no requirement of informing such Marriage
 
WP(C).No.13276 of 2015              - 4 -



Officer, since the intending bridegroom is a Canadian citizen. In

such circumstance, the application of the petitioner shall be

accepted and notice shall be given by the 3rd respondent as

required under the Act and the petitioner permitted to contract

the marriage as intended by her, which shall be registered

under the Act.

            The writ petition is allowed.




                                                Sd/-
                                           K.Vinod Chandran
                                                Judge.
vku/-

                               [ true copy ]