UPASANA BALI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) PETITIONERS are the husband and wife and both are residents of London in the country of United Kingdom and they have preferred this writ petition through their Power of Attorney as the petitioners have faced difficulty in getting registration of their marriage under the provisions of Jharkhand Hindu Marriage Registration Rules, 2002, which provides procedure for registration of the Hindu marriages. As per Sub-rule(3) of Rule 4 of the aforesaid Rules of 2002, the application for registration of marriage is required to be presented personally before the Registrar concerned and the petitioners personally cannot come to present the application of their registration of marriage for peculiar reasons.

(2.) PETITIONER no.1 is citizen of Australia and she was brought up by her maternal grand parents at Australia. She has also obtained Passport from the Australian Government. PETITIONER no.2 is citizen of Sweden and has obtained Passport from the competent authority at Sweden. Presently both the petitioners are residing in the United Kingdom because of the fact that petitioner no.2 is in employment at London. The petitioner no.2 being a European citizen having a Swedish Passport is entitled to live and work in United Kingdom, without any restriction as per the European Economic Area Law. According to the petitioners, relevant certification and information with regard to the countries participating in European Economic Area (E.E.A) and the rights of their citizens to stay in United homeoffice.gov.uk/eucitizens/ . The petitioner no.1 being wife of petitioner no.2 has been issued permanent resident Visa of United Kingdom, copy of which has been placed as Annexure-5 with the writ petition. As per petitioners, their marriage was solemnized on 12th December, 2002, according to Hindi rites and ritual at Ranchi in the State of Jharkhand. PETITIONER no.1 after marriage got her surname changed, according to surname of her husband and change of name certificate was issued by the competent authority from Western Australia, copy of which has been placed as Annexure-2. In sum and substance, both the petitioners are residing at London in the United Kingdom and their marriage was solemnized in the city of Ranchi in the State of Jharkhand in India. Both the petitioners are having Passport and requisite documents for living in the United Kingdom. The petitioners were blessed with a baby boy on 17th January, 2012 at St.Thomas Hospital, Lambeth in United Kingdom and their son's name is Mihir Raj Bali. The birth certificate was also issued by the competent authority for petitioners' son Mihir Raj Bali.

(3.) FROM mere reading of sub-rule (3) of Rule 4, it appears that it requires that parties to the marriage shall present personally before the Registrar concerned for submitting the application for registration of marriage. The question arises about the interpretation of the "shall be presented personally" . The word " presence" and it's meaning came for consideration before the Hon'ble Supreme Court , though in a criminal case but is relevant in this case also. The Hon'ble Supreme Court in the case of State of Maharashtra Vs. Dr.Praful B.Desai and another reported in [ (2003) 4 SCC 601 ] in detail has considered the requirement of recording of evidence in presence of the accused as required under Section 273 of the Criminal Procedure, 1973 and held that such requirement of "personal presence" is not the actual physical presence but it can be through video conferencing . The Hon'ble Supreme Court considered a judgment of the Supreme Court of the United States of America, in th case of Maryland Vs. Santra Aun Craig, 497 U.S.836(1990) wherein it has been held that recording of evidence by video-conferencing was not a violation of the Sixth Amendment(Confrontation Clause). The Hon'ble Supreme Court held that Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the leading jurist Francis Bennion in his commentaries titled Statutory Interpretation, 2nd Edition , page-617, which we may also quote here again :