(2012) 253 KLR 277
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.K. Abdul Rehim, J. W.P.(C) No. 5197 of 2012 Dated this the 14th day of March, 2012 Head Note:- Kerala Registration of Marriages (Common) Rules, 2008 - Whether a marriage solemnised between 2 persons belonging to different religions can be registered under the provisions of the 2008 Rules - the instructions issued through Circular No. 63882/RC3/2010/LSGD, that the marriages solemnised between persons belonging to different religion are not registrable under the Common Rules is repugnant and contrary to the provisions contained in the Common Rules. The State Government has no power to issue any such executive order contrary to the provisions of a legislation. For Petitioners :
For Respondents :
J U D G M E N T 1. A question of legal importance arises in this writ petition as to whether a marriage solemnised between 2 persons belonging to different religions can be registered under the provisions of the Kerala Registration of Marriages (common) Rules, 2008 (hereinafter referred to as the Common Rules). 2. The petitioners are husband and wife, the marriage being solemnized on 16-02-2012 as per religious rites at the Infant Jesus Church, South Vazhakkulam, Aluva. The 1st petitioner belongs to Hindu religion and the 2nd petitioner is a Christian. It is stated that on the same day the petitioners have also undergone religious rites and ceremonies of a marriage under Hindu religion, at Sree Sankara Auditorium, East Kadungallur, Aluva. Exhibit P3 is the certificate of marriage issued by the Church and Exhibit P4 is the certificate issued by the authorities of the Auditorium. 3. The petitioners applied for registration under the Common Rules. The Secretary of the 2nd respondent Panchayat (the Registrar), had rejected the application through Ext.P6 for the reason that, as per Government Circular No. 63882/RC3/2010/LSGD, dated 28-02-2011, marriages between persons belonging to different religions has to be registered under the Special Marriage Act, and in such cases registration under the Common Rules cannot be permitted. The petitioner is challenging Exhibit P6 in this writ petition. 4. Heard Government Pleader on behalf of the 1st respondent and counsel appearing for the 2nd respondent Panchayat. Learned Government Pleader sought further time for filing detailed counter affidavit on the basis that the matter requires consultation with the Law Department. But I feel that the issue involved is purely legal for which appreciation of any disputed facts is not necessary. 5. On a perusal of Ext.P7 Government Circular it is evident that instructions have been issued to all local self government institutions clarifying that persons belonging to different religions has to register their marriage under the Special Marriage Act, 1954 and registration of such marriages under the Common Rules cannot be allowed. The petitioners are challenging sustainability of Ext.P7 Circular also, on the ground that it is repugnant to provisions of the Common Rules and is against legal principles and directions contained in the decision of the Honourable Supreme Court in Seema v. Ashwani Kumar, 2006 (1) KLT 791 (SC). Learned counsel appearing for the 2nd respondent submitted that as long as the circular remains valid, the Secretary of the respondent Panchayat is bound by the same and that the rejection is made only on the basis of the circular. 6. For deciding the issue involved, a perusal of the relevant Rules will be beneficial Rule 5 of the Common Rules says that, all marriages solemnised in the State after commencement of the Rules shall compulsory be registered 'Irrespective of the Religion of the parties' (emphasis supplied). Proviso to the said Rule says that, the marriages, registration of which is compulsory under any other statutory provisions, need not be registered under these Rules and such marriages shall be registered under the respective statutory provisions. The second proviso says that the marriages, registration which is optional as per any other statutory provisions shall be registered under these Rules unless registered under such statutory provisions. Rule 9 prescribes the procedure for registration which indicate that the memorandum for registration shall be signed by both parties to the marriage and 2 others who witnessed the marriage. In the case of marriages solemnised as per religious rites, the memorandum should be accompanied by a copy of the certificate of marriage issued by the religious authorities concerned. In the case at hand the petitioners have produced Exhibit P3 and P4 certificate along with the memorandum. Exhibit P3 is a certificate issued by the Vicar of Infant Jesus Church, The wordings of the certificate is as follows:- This is to certify that the marriage of Deepu Dev Pathiyaparambil S/o. P.R. Devadas and Shylaja Devadas - Hindu religion, and Anav Joseph Pranasseril D/o, P. T Joseph and Cicily Joseph was blessed on 16th February 2012, here in this church as per records here. Exhibit P4 is a certificate issued by the Manager of Sree Sankara Auditorium, it certifies that the marriage between the petitioners were held on 16.02.2012 at the said Auditorium between 11.30 a.m. and 12.15 p.m. Therefore it is evident that the marriage was solemnised as per religious rites and that petitioners have produced the certificate of marriage issued by the religious authority concerned. 7. Question arises as to whether the local Registrar under the Common Rules is empowered to look into validity of the marriage or in other words, whether lie need to look into such validity for the purpose of giving registration. The Common Rules were formulated in view of directions issued by the honourable Supreme Court in Seema's case (cited supra). The observations in the said judgment are as follows:- "Though most of the States have framed Rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable." 8. As enumerated in the decision of the honourable Supreme Court, the registration is intended mainly for the purpose of protecting rights of women and children. Since, the honourable Supreme Court made it clear that the registration itself cannot be a proof of the validity of marriage, it is clear that, by virtue of registration under the Common Rules no marriage which is inherently invalid will not become validated in any manner. 9. Learned counsel for the petitioner had drawn my attention to Section (4) of the Christian Marriage Act, 1872, and contended that the marriage between the petitioners, which is solemnised through religious rites prescribed under Christianity, is valid. But I am of the view that for the purpose of deciding the issue involved, I need not adjudicate the validity of the marriage, I take not of the fact that, it is in view of the directives of the Honourable Supreme Court that the State Government have framed the Common Rules, making all the marriages compulsory registrable, irrespective of the religion of the parties, (emphasis supplied). That being so, the State Government by virtue of Exhibit P7 circular which is an executive order, cannot impose any restriction on the scope and applicability of the Rules. Even the proviso to rule 6 of the common Rules only provides that a marriage which is compulsorily registrable under any other law need not be registered again under the Common Rules. It only provides an exemption from the obligation provided under Rule 6 for mandatory registration of all marriages solemnised in the State. But it cannot be interpreted in any manner preventing registration of a marriage solemnized within the State, even if it is liable to be registered under any other law, especially in view of wordings of Rule 6 that all marriages irrespective of religion, of the parties should be registered, if it is solemnised within the State. 10. Therefore I am of die view that the instructions issued through Exhibit P7, that the marriages solemnised between persons belonging to different religion are not registrable under the Common Rules is repugnant and contrary to the provisions contained in the Common Rules. The State Government has no power to issue any such executive order contrary to the provisions of a legislation. Hence Exhibit P7 is liable to be quashed. 11. Counsel appearing for the 2nd respondent had pointed out that along with the memorandum submitted seeking registration of the marriage, the petitioners have not produced Exhibit P3 certificate issued from the Church. Exhibit P4 certificate cannot be considered as a certificate issued by any religious authority, is the contention. Learned counsel for the petitioners submitted that they are ready and willing to produce the original or attested copy of Exhibit P3 certificate before the Local Registrar. I am of the view that the 2nd respondent can be directed to reconsider the matter in view of Exhibit P3 if produced. 12. Under the above mentioned circumstances the writ petition is allowed. Exhibit P7 circular of the State Government and P6 decision taken by the 2nd respondent on the basis of the said circular are hereby quashed. The 2nd respondent, the Local Registrar under the Common Rules, is directed to dispose of Exhibit P5 application afresh, notwithstanding the directions contained in Exhibit P7 circular, taking note of the observations contained herein above. The petitioner will be at liberty to produce original or attested copy of Exhibit P3 certificate as well as fresh materials if any required before the 3rd respondent. A final decision in this regard shall be taken at the earliest possible, at any rate within a period of 2 weeks from the date of receipt of a copy of this judgment. |
