MARIAN EVA Vs. STATE

JUDGEMENT

(1.) The petitioners are aggrieved of the order dated 15-7-1988 of Special Marriage Officer, Shimla (Urban), Sub-Division, Shimla, appointed under the Spe-cial Marriage Act, whereby he has refused to solemnise their marriage under the Special Marriage Act on the ground that since petitioner No. 1 is a permanent resident of Germany, it is not possible to transmit a copy of notice to Marriage Officer of the District within whose limit, petitioner No. 1 perma-nently resides, as provided under S. 6(3) of the Special Marriage Act. He has assumed that no marriage Officer under the Special Mar-riage Act has been appointed in Germany by the Government of India. The order dated 15-7-1988 of Special Marriage Officer, Shimla, was challenged before the District Judge in appeal filed under S. 8(2) of the Special Marriage Act, but it has been dis-missed as not maintainable vide judgment dated 25-8-1988 passed by the District Judge, Shimla. Now, by way of this petition under Art. 227 of the Constitution of India, the petitioners have prayed for quashing the order dated 15-7-1988 of Special Marriage Officer, Shimla and for directions to him to solemnise the marriage of the petitioners in accordance with Special Marriage Act.

(2.) I have heard learned counsel for the parties and gone through the record. The admitted facts are that on 30-6-1988, both the petitioners jointly gave notice on the pres-cribed form under S. 5 of the Special Marriage Act to the Marriage Officer, Shimla, District Shimla, of their marriage intended to be solemnised under the said Act. As petitioner No. 2 has been residing in Shimla on the address given in the notice since his childhood, the Marriage Officer, Shimla, District Shimla, appointed under the Special Marriage Act, 1954, has the jurisdiction to solemnise the marriage of the petitioners under the said Act. Petitioner No. 2 is a Tibetain National though he is born, brought up and educated in Shimla. At the time of giving notice, he was 23 years of age and unmarried. His occupation was business. So far petitioner No. 1 is concerned, she is a German National. She was on tour to India and residing in Shimla from 9-4-1988. At the time of giving notice, she was 27 years of age and unmarried. Her occupation is nursing. She had declared herself a permanent resident of Germany. All these particulars they had filled in the notice.

(3.) Before examining the legality of the impugned order of Special Marriage Officer, Shimla, it is necessary to refer to some provisions of Special Marriage Act to find out whether the marriage between the petitioners could be solemnised or not. Section 4 of the Special Marriage Act provides conditions relating to solemnisation of Special Marriage and is as under:- "4. Conditions relating to solemnisation of special marriage:- Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are ful-filled, namely :