SIDHARTH SWAMINATHAN Vs. SUB REGISTRAR

JUDGEMENT

(1.) The first petitioner is an Indian citizen who is stated to be employed abroad. The second petitioner is a citizen and permanent resident of United Kingdom. It is stated that the marriage between the petitioners will be solemnised in accordance with the Hindu rites between 1.3.2014 and 3.3.2014 at Kumarakam in Kerala, that as they intend to reside in United Kingdom after marriage they require a marriage certificate issued by the Marriage Officer appointed under the Special Marriage Act, 1954 and for that purpose they have filed Ext.P5 application for registration of their marriage under S. 15 of the Special Marriage Act, 1954, (hereinafter referred to as 'the Act' for short) before the respondent Sub-Registrar/the Marriage Officer appointed under the Act, by sending the application by registered post acknowledgment due on 3.2.2014. In this Writ Petition filed under Art. 226 of the Constitution of India on 28.2.2014, the petitioners pray for an order directing the respondent Sub-Registrar to register their marriage pursuant to Ext.P5 application and to issue the marriage certificate without further delay. The petitioners have averred that they have already booked tickets to United Kingdom, that they have to be back in the United kingdom on 9.3.2014, that the period of 30 days stipulated in S. 16 of the Act is not mandatory and can be waived by the Sub-Registrar in the interests of justice as held by a Division Bench of this Court in John Lukose v. District Registrar, 2007 1 KerLT 247 and by a learned single Judge of this Court in Giby George v. Marriage Officer, 2007 2 KerLT 270 and in such circumstances, the respondent should register their marriage which is proposed to be solemnised on 3.3.2014 without waiting for the expiry of the period of 30 days from the date of Ext.P5 application.

(2.) I heard Sri. Mathew John, learned counsel appearing or the petitioners and SmtM.J.Rajasree, learned Senior Government Pleader appearing for the respondent. Sri. Mathew John, learned counsel appearing for the petitioners contended relying on the decision of a Division Bench of this Court in John Lukose v. District Registrar, 2007 1 KerLT 247 and the decision of a learned single Judge of this Court in Giby George v. Marriage Officer, 2007 2 KerLT 270 that in exceptional cases, as in the case on hand, a marriage solemnised otherwise than under the Act can be registered under S. 16 of the Act, before the expiry of the period of 30 days from the date of the application. The learned counsel contended that unless the petitioners report back in United Kingdom on 9.3.2014 they will lose their employment thereby visiting them with adverse consequences, that Exts.P1 and P2 marriage invitations prove the fact that the marriage between them was solemnised on 3.3.2014 at Kumarakam in Kerala, that they have jointly submitted an application for registration of their marriage by post and therefore, as the bona fides of the application is spelt out from the attendant circumstances, the Sub-Registrar ought to have waived the notice period of 30 days, registered their marriage and issued the marriage certificate.

(3.) Per contra, Smt. M.J. Rajasree, learned Senior Government Pleader appearing for the respondent invited my attention to the decision of a Division Bench of this Court in Deepak Krishna v. District Registrar, 2007 3 KerLT 570 and submitted that the Division Bench has held that the principles laid down by this Court in John Lukose v. District Registrar, 2007 1 KerLT 247 would be confined to the facts and circumstances of that case, overruled the decision of the learned single Judge of this Court in John Roji v. Marriage Officer, 2004 1 KerLT 687 to the extent it holds that the Marriage Officer need not wait for 30 days and the decision in Giby George v. Marriage Officer, 2007 2 KerLT 270, affirmed the judgment of the Division Bench in W.A. No. 675 of 2004 and held that the procedure prescribed in S. 16 of the Act is mandatory and gives no discretion to the Marriage Officer to deviate from the prescribed procedure and therefore, the petitioners cannot seek or be granted a writ in the nature of mandamus commanding the respondent Sub-Registrar to register their marriage even before the notice period of 30 days has expired. The learned Senior Government Pleader also submitted that though the original of Ext.P5 application was received by the respondent by post on 6.2.2014, the requisite fee was paid only on 11.2.2014, that it was entered in the register only on that day and therefore, as the application was defective till the prescribed fee was paid, the period of 30 days prescribed in S. 16 of the Act would begin to run only from 11.2.2014 and before the expiry of the period of 30 days computed from 11.2.2014, the petitioners cannot insist on their marriage being registered.