Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

Petitioner prayed that proper Rules be framed for making provisions for registration of marriage of people of Sikh community.

State submitted that in the State, under the Uttarakhand Compulsory Registration of Marriage Rules, 2012, formulation of an arrangement/mechanism for the purposes of facilitation of proof of marriage ceremony (commonly known as Anand Karaj) customary among the Sikhs, had been proposed.

The Court considered it appropriate that necessary Rules must be framed by the State of Uttarakhand for registration of marriage of people of Sikh community under the Anand Marriage Act, 1909.

The Court directed the Chief Secretary, State of Uttarakhand to take appropriate steps for putting the aforesaid proposal before the Cabinet and after approval of the Cabinet also take steps for publishing the same in the Gazette and place the same before the Legislative Assembly.[Amanjot Singh Chadha v. State of Uttarakhand, 2022 SCC OnLine Utt 228, decided on 23-03-2022]


For State: Mr B.S. Parihar


Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Petitioner was an unmarried Indian Citizen working and had approached seeking the quashing of a Circular and to direct respondent 1 — Marriage Officer to accept documents submitted by the petitioner and his bride.

Petitioner’s bride was a British Citizen holding an Overseas Citizen of India card (OCI). Petitioner and his bride decided to solemnize their marriage under the provisions of the Special Marriage Act, 1954.

NOC and Bachelorhood Certificate

Respondent 1 – Marriage Officer informed that for solmenisation and registration of the marriage, petitioner had to produce a No Objection Certificate (NOC) and Bachelorhood Certificates issued by the Embassy of the Foreign Nation concerned.

Bride of the petitioner on returning to Britain was informed that, British Government no longer issue a Certificate of Impediment or No Objection Certificate to British Citizens to get married in Commonwealth Countries for the reason that the marriage in the UK is governed by separate and different legislations in England and Wales, Scotland and Northern Ireland.

Hence, she executed a Single Status statutory declaration before a Solicitor, and it was Apostilled.

Petitioner sought to direct respondent 1 to accept the said documents and take appropriate steps for the solemnization and registration of their marriage.

Analysis and Decision

High Court held that if a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Stating the above, Court remarked that, “no one can be compelled to achieve an impossible task.”

 Since the petitioner had produced the Single Status Statutory Declaration apostilled, the refusal to solemnize and register the marriage by the intending parties, would result in grave injustice.

Therefore, in view of the above Bench disposed of the petition directing respondent 1 to accept the documents submitted by the petitioner and his bride.[Joel K. Yoyakkim v. Sub Registrar (Marriage Officer), WP (C) No. 3055 of 2022, decided on 3-1-2022]


Advocates before the Court:

For the Petitioner: Advocate U. Jayakrishnan

For the Respondents: Appu P S, GP

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Bench of N.Nagresh, J., directed the Local Registrar to register the marriage of couple living in Israel through virtual mode.

The petitioner is the father of one Mohan Sebastian. Mr. Mohan Sebastian married Mrs. Sonia Raju on 13-01-2020 and both of them were working in Israel. Due to COVID-19 pandemic, the couple was unable to travel back to India and get their marriage registered before the Local Registrar. The couple had a child on 26-02-2021 but to obtain Birth Certificate and passport of the newborn child, Marriage Certificate from the Local Self Government Authority has to be produced before the Israeli Authorities.

Although, the couple had applied for registration before the local Registrar their application was rejected due to non-appearance of parties in person before the Registrar. The petitioner argued that due to the pandemic situation, his son and daughter-in-law were not in a position to travel from Israel to Kerala. However, they can appear before the Registrar by virtual mode. It was urged that unless the marriage is registered utilising virtual mode, the future of the newborn child will be put to difficulties and it will affect the family adversely.

Considering the facts and circumstances of the case, and also taking into account the pandemic situation prevailing and the impending lockdown, the Bench directed the Local Registrar to register the marriage of the petitioner’s son and daughter-in-law adopting video conferencing facility as expeditiously as possible. The reliance was placed by the Court on Mathew T.K. v. Secretary and Registrar of Marriages, 2020 (4) KLT 853. The petition was disposed of accordingly.

[Sebastian Thomas v. Local Self Government Department, 2021 SCC OnLine Ker 2180, decided on 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Ajeesh S.Brite, Abhilash Augustine M., Stephy Joseph and Sereena P.A.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Sudhir Mittal, J., addressed a matter of registration of marriage.

Issue in focus 

Application for registration of marriage was filed in the year 2019, yet the same has not been registered till date.

Counsel for the petitioners submit that petitioner 2 was below 21 years of age on the date of marriage and thus it is in violation of Section 5 of the Hindu Marriage Act, 1955.

However, in view of Section 11 and 12 of HMA, marriage was only voidable. Parties did not seek to avoid marriage and thus, there is no legal bar on registration of the same.

Bench

In view of the Hindu Marriage Act, 1955, in case a marriage is solemnized in violation of the age restriction laid down therein, the marriage is only voidable.

Since parties have not sought the annulment of marriage the same is being sought to get registered and thus there is no legal bar to its registration.

Court directed Respondents 2 to 4 to ensure that the marriage be registered within 2 weeks. [Deepak Kumar v. State of Haryana, 2020 SCC OnLine P&H 759 , decided on 15-06-2020]

Case BriefsHigh Courts

Madras High Court: In a landmark Judgment, G.R. Swaminathan, J. has held that a marriage solemnized between a male and a transwoman, both professing Hindu Religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. While holding so, said the Court, “this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”

Facts

Arunkumar and Srija got married to each other in October, 2018 at a temple in Tuticorin as per Hindu rites and customs. It may be noted that Srija is a transgender. The marriage was certified by the Village Administrative Officer. The temple authorities where the marriage was performed, declined to vouch for it. When Arun and Srija went to register their marriage, the Joint Registrar refused the registration which was confirmed by the District Registrar. Challenging the refusal to register their marriage, Arunkumar and Srija filed the present petition.

Who is a “bride”

It was contended on behalf of the authorities that as per Section 5 of the Hindu Marriage Act, 1955, the “bride” must have completed that age of 18 years, and further that the term “bride” can only refer to a “woman on her day of wedding”. Srija, it was contended, is not a woman, but a transgender.

The Court did not agree with such a contention. It relied on the path-breaking judgment of National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein the Supreme Court has upheld the transgender persons’ right to decide their self-identified gender. That decision has been cited with approval in K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. In the present case, the Court observed that: “the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning.” It was observed that a statute must be interpreted in the light of the legal system as it exists today. It was also noted that in Shafin Jahan v. Asikan K.M., (2018) 16 SCC 368the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution.

For too long the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.”

The Court held: “Seen in the light of the march of law, the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The duty consideration is how the person  perceives herself.”

Ban on sex reassignment surgeries on children

The Supreme Court in the NALSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. The High Court, however, noticed that the mandate in NALSA Case was not being honoured. The Court directed the Government of T.N. to issue a Government Order so as to effectively ban sex reassignment surgeries on infants and children. The Secretary to Government, Health and Family Welfare Department was directed to file a compliance report within 8 weeks.

“Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream.”

Financial incentive for inter-caste marriage 

The Court noted Arunkumar is a Hindu Kuravan and Srija belongs to Saiva Vellar community. The Government of India has introduced “Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages” to encourage inter-caste marriages. Arunkumar and Srija were held to be clearly entitled to get a financial incentive as set out in the said scheme. They were permitted to submit an application to the Director, Ambedkar Foundation, who shall on being satisfied about their eligibility, disburse the incentive amount.

Decision

Holding that Srija’s fundamental rights guaranteed under Articles 14, 19(1)(a), 21 and 25 have been infringed, the Court quashed the impugned orders and directed the Joint Registrar to register Arunkumar and Srija’s marriage. With the directions as noted above, the present petition was disposed of. [Arunkumar v. Inspector General of Registration, WP(MD) No. 4125 of 2019, dated 22-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.C. Dharmadhikari and Sangitrao S. Patil, JJ. heard a petition for quashment of circular issued by the respondent, Registrar of Marriages, appointed under the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998 to the extent it mandates presence of priest/purohit, who performs the ceremony to be present before the office of the Registrar of Marriage during the registration of marriage as a witness. The Bench allowed the petition and the memorandum was quashed and set aside.

While the reason for issuing the circular was to prevent registration of fake marriages, the petitioner contended that the Act only provided for the presence of the parties and three witnesses while registration of marriage and that the priest/purohit who performed it was not required. It would become highly difficult for the petitioner to be present for the registration of each and every marriage that he performs and also he would not be able to attend his regular functions in the temples or the other places, through which he earns his livelihood.

Even the provisions of the Hindu Marriage Act, 1955 leave it to the volition of the parties to take assistance of a priest in the solemnization of a marriage. Therefore, it would be difficult for the followers of certain groups or faiths who do not engage any priest in the performance of any ceremony to ensure his presence during registration. [Umesh@ Girish Arvind Pujari v. Registering Authority, Jalgaon City Municipal Corporation, 2017 SCC OnLine Bom 7240, decided on 01.08.2017]

Hot Off The PressNews

The Department of Legal Affairs forwarded a request received from the Legislative Department, asking the Law Commission to examine and submit a report with regard to various issues relating to compulsory registration of marriages. This Report proposes to amend the Registration of Births and Deaths Act, 1969 to include compulsory registration of marriage within its purview.

The Commission highlights that the recommendation is neither aimed at eliminating diversity of personal laws nor it aims to nullify the existing provisions for registration of marriages under different state laws. The Commission notes that in different parts of the country marriage registration is regulated by one of the three central laws – the Births, Deaths and Marriages Registration Act, 1886, the Registration Act, 1908 and Registration of Births and Deaths Act, 1969, this creates lot of confusion with registration officials as well as people.

The Commission suggested that “the Births, Deaths and Marriages Registration Act, 1886 be repealed and Births and Deaths Registration Act, 1969 be re-named as ‘Births, Deaths and Marriages Registration Act’ with a provision that officials working and records maintained under the former Act shall be deemed to be working and maintained under the latter Act”. The idea of these recommendations is not to lay down a procedure recognised for solemnisation of marriage but only for registration of marriages.

The Commission also recommends making registration of marriage online as far as possible and also to link registration of marriage to the unique identification number (UID). Here are some other important recommendations:

i. Separate standalone legislation may not be required so long as an amendment is made to the Births, Deaths Registration Act to include Marriages.

ii. The recommended bill would only serve as a guiding principle which would apply across the country but specific amendments to the scheme can be added by the States.

iii. The Registrar who is responsible for the registration of births and deaths shall be responsible for the registration of marriages as well.

iv. if the Birth or Marriage or Death is not registered within the specified time limit, then the Registrar shall on the payment of a late fee, register the death or birth (a) within a period of 30 days (b) within one year, only with the written permission of the prescribed authority; and (c) after one year, only on an order of a First Class Magistrate. It provides for a penalty of Rs. 5 per day in case of delay in registration of ‘marriage without a reasonable cause’.

v. Village Panchayats, local civil bodies and municipalities should create awareness with regard to marriage registration.

To read the Report, click HERE