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)
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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)
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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
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//TRUE COPY//
P.A. TO JUDGE
Mn
K. VINOD CHANDRAN, J.
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W.P(C). No.16893 of 2015
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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
sp
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 ]