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Joseph George & Another v/s State of Kerala, Represented by The Chief Secretary, State Secretariat, Thiruvananthapuram & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    WP(C). No. 705 of 2019

    Decided On, 11 January 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    For the Petitioners: Navaneeth. N. Nath, K.S. Stejo, Advocates. For the Respondents: Saigi Jacob Palatty, Sr. Govt. Pleader.



Judgment Text

1. The prayers in the above Writ Petition (Civil) are as follows:

“i. Issue a writ of mandamus or any other appropriate writ, direction or order commanding the second respondent to accept the original of Exhibit P-4 application and to register and solemnize the proposed marriage in accordance with Cochin Christian Civil Marriage Act, 1095.

ii. to grant such other further reliefs as are necessary in the interests of justice.”

2. Heard Sri.Navaneeth.N.Nath, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents.

3. The petitioners are aggrieved by the stand taken by the 2nd respondent in refusing to take steps to accept notice of intended marriage and for consequential steps for solemnization and registration of their marriage under the Cochin Christian Civil Marriage Act, 1095 ME (1920 AD) on the ground that the marriage under the said Act can be solemnized only between two Christians and that though the 1st petitioner is a Christian, as the 2nd petitioner is not a Christian (she belongs to Hindu religion), the marriage cannot be solemnized, etc. Further, that when the petitioners had contacted the 2nd respondent, they could also learn that the marriage under the abovesaid Act is solemnized only if both the parties to the proposed marriage are residents within the territorial limits of the erstwhile Cochin State.

4. This Court, while issuing notice before admission on 9.1.2019, had requested the learned Senior Govt. Pleader to get instructions in the matter and also ordered that, since the minimum 4 days' notice period is required under Sec.10(3) of the abovesaid Act and as the 1st petitioner (proposed bridegroom) has to leave India by 18.1.2019, the 2nd respondent Sub Divisional Magistrate, who is empowered to perform the duties and functions of the marriage officer under the abovesaid Act, will take on file Ext.P-4 notice of intended marriage and conduct summary enquiry whether the petitioners are otherwise eligible for solemnization of marriage going by their age, single status, etc. The said order dated 9.1.2019 reads as follows:

“Notice before admission for the respondents is accepted by the learned Sr.Government Pleader concerned. The learned Sr. Government Pleader will get instructions in the matter and also will examine the tenability of the legal grounds urged by the petitioners. Since minimum four day notice period is required under the provisions of Sec.10(3) of the Cochin Christian Civil Marriage Act, 1095 and as the 1 st petitioner (proposed bridegroom), has to leave India by 18.01.2019, it is ordered in the interest of justice that the 2nd respondent-Marriage Officer will take on file Ext.P-4 notice of intended marriage and will also conduct summary enquiry whether the petitioners are otherwise eligible for solemnization of the marriage going by their age limit, single status, etc. The petitioners may file separate sworn affidavits on their behalf, giving the details of their particulars and about their single status and age. So also, the petitioners will also ensure that separate affidavits of the two witnesses mentioned in Ext.P-4 notice will also be given delineating the factual particulars of the petitioners regarding their age, date of birth, single status, etc. So that the 2nd respondent can process and decide otherwise on the eligibility of the petitioners, in the meanwhile.”

5. Sri.Navaneeth N.Nath, learned counsel appearing for the petitioners would submit that the petitioners have already complied with the directions issued by this Court as per order dated 9.1.2019 and had filed separate sworn affidavits giving particulars including age, date of birth, single status and have also produced separate affidavits of two witnesses mentioned in Ext.P-4 notice giving the factual particulars of the petitioners.

6. The matter is issue is no longer res integra and is covered in favour of the petitioners as per the dictum laid down in a series of cases as in judgment dated 3.6.2010 in W.P.(C).No. 17154/2010, judgment dated 11.4.2012 in W.P.(C).No. 9154/2012, judgment dated 10.6.2016 in W.P.(C).No. 19947/2016, Merin Dominic v. UOI & Ors. reported in 2017 (1) KLT 950, etc. It has been held by this Court in Merin Dominic v. UOI reported in 2017 (1) KLT 950 (para 6) that the provisions of the Cochin Christian Civil Marriage Act, 1095 ME are still in force in view of the mandate contained in Art.372 of the Constitution of India.

7. It has already been held by this Court in the judgment dated 11.4.2012 in W.P.(C).No. 9154/2012 that the law on the subject is clear and that one of the parties being a Christian, then the couple are entitled to have notice of marriage processed under the Cochin Christian Civil Marriage Act and this Court had directed the notified Christian marriage officer to take further steps in accordance with the said Act on the request of the petitioners therein for solemnization and registration of their marriage under the said Act, etc. That apart, it is crystal clear from a mere reading of provisions contained in Sec.4 of the abovesaid Act, which stipulates that a marriage between persons, one or both of whom is or are a Christian or Christians but neither of whom is a Christian British subject may be solemnized by or in the presence of a Marriage Registrar appointed under the said Act. Hence it is clear that the statute itself in clear terms stipulated that only one among the proposed couple need be a Christian and the only exception made is that the benefit of the said Act cannot be claimed by a Christian British subject. It has to be borne in mind that the abovesaid law was enacted as Act 5 of 1095 ME (1920 AD) and the said exception would have been only to take care of the fact situation then prevailing that there could be Christian British subject for whom the Legislature has made it clear that they cannot claim the benefit of the Act. The said exception has not much relevance in the present scenario, more particularly in the facts and circumstances of this case. Hence the first objection that both the couple should necessarily be belonging to Christian religion in order to enable them to avail the benefit of the provisions of the Cochin Christian Civil Marriage Act, 1095 ME, is untenable and the same will stand overruled. Further it has also been held in the judgments as in the one dated 3.6.2010 in W.P.(C).No. 17154/2010 that only the Christian party among the couple need be a resident of the area covered in the erstwhile Cochin State in order to get the benefit to the said Act. In the instant case, the 1st petitioner is a permanent resident of Ernakulam, which is within the territorial limits of erstwhile Cochin State and the 2nd petitioner is a permanent resident of Pathanamthitta, which is in the territorial limits of erstwhile Travancore State. Since the 1st petitioner (Christian) is indisputably permanently residing and domiciled within the territorial limits of the erstwhile princely State, there are no impediments in that regard for solemnization of the proposed marriage under abovesaid Act.

8. Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader would submit on the basis of the instructions of the respondents that the notified marriage registrar, who belongs to Christian religion, was earlier transferred and no substitute has been appointed and posted in his place till now. If that be so, certainly the 2nd respondent Sub Divisional Magistrate, who is the Magistrate having jurisdiction over the local area of the residence of the 1st petitioner, could perform the duties and functions of the marriage registrar in view of the specific provisions in that regard contained in the third paragraph of Sec. 5 of the abovesaid Act. That aspect of the matter has also been clarified and declared by this Court in the judgment in Merin Dominic v. UOI reported in 2017 (1) KLT 950 (judgment dated 21.2.2017).

9. Accordingly, it is only to be held that the abovesaid objections raised on behalf of the respondents are untenable and will stand overruled. On being satisfied that the petitioners are otherwise eligible for solemnization of their marriage, the 2nd respondent Sub Divisional Magistrate will take on file and accept Ext.P-4 notice of intended marriage given under Sec. 7 of the Act and will immediately take steps under Sec. 8 of the Act to ensure that the copy of the said notice is affixed in some conspicuous place in his office and since the 1 st petitioner has to leave India by 18.1.2019, steps in that regard should be emergently taken. 4 days after the receipt of the abovesaid notice, the petitioners may request the 2nd respondent to issue certif

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icate of the notice and to give oath as conceived in Secs.10 & 11 of the Act. Immediately, thereafter, the 2nd respondent will solemnize the marriage of the petitioners as per Sec. 19 of the Act and then will forthwith take steps to register the solemnization of such marriage as per Sec. 22 of the Act so as to make necessary entries in the marriage register book in the form of the III schedule and also to issue the certificate of marriage in the marriage register book as per the prescribed proforma in terms of Sec.22. The 2nd respondent will ensure that the entire process is completed with all expedition so that immediately after the expiry of 4 days after receipt of Sec.7 notice, the marriage between the parties would be solemnized and registered as aforestated. The certificate of marriage should also be given to the petitioners without any further delay. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
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