PARDEEP KODIVEEDU CLETUS Vs. LOCAL REGISTRAR OF MARRIAGES

JUDGEMENT

(1.) Can the Local Registrar of Marriages under the Kerala Registration of Marriages (Common) Rules, 2008 (the Rules) permit appearance of parties for compliance of the requirements of the Rules through video conferencing, is the moot question that falls for consideration in this matter. 2. The relevant facts are the following : The first petitioner is the husband of the second petitioner. The petitioners were Indian citizens. The first petitioner hails from Alappuzha District and the second petitioner hails from Kollam District. The first petitioner married the second petitioner on 23.01.2000 at St.Casimir's Church, Kadavoor in Kollam District. The first petitioner who was serving the Indian Space Research Organisation took up a foreign assignment in Ireland and was accordingly residing with his family in the said country since 2001. During 2009, the petitioners acquired Irish citizenship. Later, they have applied for and obtained registration as overseas citizens of India as well. It is stated by the petitioners that the employer of the first petitioner namely, M/s.Intel Corporation, Ireland re-located the first petitioner to USA during 2016 and consequently the petitioners are residing with their family in USA since 2016 on the strength of a L-1 Visa which the first petitioner holds and L-2 Visas which the second petitioner and her children hold. 3. It is stated by the petitioners that the Immigration Laws in USA have undergone drastic changes in the recent past and the first petitioner can continue to work in the said country only by upgrading his Visa to permanent resident status. Likewise, it is stated by the petitioners that the second petitioner also needs to upgrade her Visa to permanent resident status to continue to live with the first petitioner. In order to apply for permanent resident status in USA, it is stated that the petitioners need to provide their marriage certificate issued by the competent authority in their country along with their applications. The petitioners have, therefore, applied through their power holder, the father of the second petitioner for registration of their marriage under the Rules. On the said application, the first respondent, the Local Registrar of Marriages (Common), having found after due enquiry that the first petitioner married the second petitioner on 23.01.2000, called upon the petitioners to appear before him to put their signatures in the Register of Marriages maintained under the Rules. Ext.P4 is the communication issued by the first respondent in this connection to the power holder of the petitioners. On receipt of Ext.P4 communication, the power holder of the petitioners sent Ext.P5 communication to the first respondent expressing the inability of the petitioners to appear in person before the first respondent. According to the first respondent, in the light of the provision contained in Rule 11, the marriage cannot be registered under the Rules without the parties being present before him. Consequently, the first respondent issued Ext.P6 communication to the power holder of the petitioners by which the power holder of the petitioners was informed that the application preferred by the petitioners for registration of their marriage would stand dismissed. Exts.P4 and P6 communications are under challenge in the writ petition. 4. The case of the petitioners is that they may face problems for re-entering USA, if they leave USA now for India to get their marriage registered. It is also the case of the petitioners that if they leave USA now for the said purpose, they may not get the benefit of their stay in USA till now to claim permanent resident status. It is the further case of the petitioners that since they have nobody to look after their children in the said country, if at all they leave the country, they have to take their children also with them and if the children are taken out of USA now, it is doubtful as to whether they could re-enter USA on account of the changes in the Immigration Laws of that country. According to the petitioners, in so far as it is found by the first respondent that the first petitioner has married the second petitioner on 23.01.2000 as claimed by the petitioners, no purpose whatsoever would be served by directing their personal appearance. The petitioners, therefore, seek directions to the first respondent to register their marriage by obtaining their personal appearance through video conferencing. 5. Heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 and 2 and the learned Government Pleader for respondents 3 and 4. 6. Rule 9 of the Rules dealing with the procedure for registration of marriage provides that the parties to the marriage shall submit a memorandum signed by them and two persons who witness the marriage in duplicate in the prescribed form along with three set of their photographs to the Local Registrar. The said Rule also provides that in the case of a marriage solemnised as per the religious rites, the marriage can be proved by the certificate of marriage issued by the religious authority concerned. Rule 10 of the Rules provides that as far as marriages solemnized before the commencement of the Rules in respect of which no memorandum for registration was filed on or before 31/12/2013 are concerned, such marriages be registered by the Local Registrar with the permission of the Registrar General. The said Rule also provides that in such cases, the memorandum shall be filed together with a declaration from a gazetted officer/Member of Parliament/Member of the Legislative Assembly/Member of Local Self Government Institutions in the prescribed form or with any other document to prove the solemnisation of marriage to the satisfaction of the Registrar General. The said Rule further provides that the Registrar General may conduct, if necessary, enquiries, through the Local Registrar or otherwise and give suitable direction to the Local Registrar regarding registration. Rule 11 of the Rules dealing with filing of a memorandum and Register of Marriages provides that on receipt of the memorandum, the Local Registrar shall verify the entries in the memorandum for their accuracy and completeness and enter the particulars thereof forthwith in the Register of Marriages maintained by him. The said Rule also provides that the parties to the marriage shall personally appear before the Local Registrar at least once prior to the registration of marriage and put their signatures in the Register of Marriages. As far as the instant case is concerned, it is beyond dispute that the petitioners have submitted the memorandum provided for in the Rules to the Local Registrar with all the requisite documents and fee. Since the marriage of the petitioners was solemnised as per religious rites, they have produced along with the memorandum, Ext.P1 marriage certificate issued by the Parish Priest concerned to prove the marriage. Since the petitioners have not registered their marriage within the time stipulated in the Rules, they have also obtained permission of the Registrar General to register the marriage. Exts.P4 and P6 communications issued by the Local Registrar indicate that permission has been granted by the Registrar General, after satisfying based on enquiries that the marriage of the petitioners has been solemnized on 23.01.2000, as claimed by them. No doubt, the Local Registrar has called upon the petitioners to be present before him in the light of the provision contained in Rule 11 of the Rules referred to above. 7. It is seen that the Rules have been framed by the State in exercise of its powers under Article 162 of the Constitution in compliance with the directions issued by the Apex Court in Seema v. Ashwani Kumar (2006 (1) KLT 791). The said judgment of the Apex Court was one rendered, having regard to the fact that non-registration of marriages affects woman to a greater measure and that a provision making the marriages compulsorily registrable would be in the interest of the society. As far as the marriages took place prior to the Rules are concerned, the registration was not compulsory in terms of the Rules, but only optional. In Nishana Mol v. Alappuzha Municipality (2009 (3) KLT 251), this Court held that insistence on appearance of parties cannot be the rule, but the exception. It is clarified in the said case that the Local Registrar may obtain presence of the parties to the marriage in cases where the Registrar has reasonable doubts as to the identity of persons. A Division Bench of this Court, however, took the view in Sarala Baby v. State of Kerala and others (2010 (2) KLT 66) that if the marriage is to be registered, the parties to the marriage shall be present before the Local Registrar and the inconvenience caused to the parties on account of the provision insisting personal appearance can never be a ground for reading down the provision in a different fashion. In the light of the said decision of the Division Bench, it cannot be held that personal appearance of the parties to the marriage can be dispensed with by the Local Registrar. 8. Coming to the core question posed for decision, it is worth referring to the Rule once again. As noted above, the relevant Rule is Rule 11. The relevant portion of the said Rule reads thus: