Registration of a marriage to secure visa would be made only on the
volition of the parties to the alleged marriage. They cannot get those
entries cancelled once they changed their mind. The authority under
the Rules exercises a very serious function of registering marriages.
A marriage certificate is a permanent record. The authorities under
the Rules are expected to keep the records as permanent records.
The entries made in the memorandum and which were later carried
out in the Marriage Register cannot be altered except on the ground
of errors or on the ground that the entries were fraudulently or
improperly made.
The parties who submitted the memorandum in
Form No.I with a declaration that the details shown therein are true
to the best of their knowledge and belief cannot turn round and say
that the said declaration was made for a particular purpose and,
therefore, the entries are liable to be corrected and the registration is
liable to be cancelled. The entries in the Marriage Register and the
marriage certificate are not liable to be corrected at the whims and
fancies of the parties to the marriage. The corrections are to be
carried out only in the manner provided under Rule 13 of the Rules.
Wide powers are given to the Local Registrar for correction of entries
and for cancellation of entries and registration.
There may be
instances were an entry relating to marriage was fraudulently made
and the victim thereof is entitled to approach the Registrar for
cancellation of the entries or registration.
In the case of such
fraudulent acts, one of the parties to the marriage may be a victim of
fraud. But the parties to the marriage cannot approach the Local
Registrar and say that for a particular purpose they made a false
entry and since that purpose could not be achieved, they want to
resile from the declaration.
That is not the jurisdiction to be
exercised by the Local Registrar under Rule 13. That is not the
liberty provided to the parties to the marriage to apply before the
Local Registrar for correction and cancellation of the entries.
12. The remedy of the petitioner lies elsewhere and he cannot
make any application under Rule 13 of the Rules for the purposes
mentioned in the application.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE K.T.SANKARAN
MONDAY, THE 8TH DAY OF JUNE 2015
WP(C).No. 5911 of 2015 (L)
RAJESH RAJAN, Vs CHIEF REGISTRAR GENERAL OF MARRIAGES (COMMON),
The question involved in this Writ Petition is whether a
marriage registered under the provisions of the Kerala Registration
of Marriages (Common) Rules, 2008 could be cancelled at the
instance of one of the parties to the alleged marriage on the ground
that the marriage was not solemnized and the marriage certificate
was obtained only to facilitate both parties to go abroad.
2.
The petitioner states that he is working as an Analysis
Engineer in a company in Germany. The averments in the Writ
Petition, inter alia, are the following: During 2013, the parents of the
petitioner came across the matrimonial profile of Neethu Vasanth,
the third respondent.
At that time, the third respondent was
undergoing her medical studies in Valgograd State Medical
University in Russia. She was expected to complete her studies by
June, 2014.
Since the profiles of the petitioner and the third
respondent were found matching, on 25.8.2013, a marriage fixation
ceremony was held at Das Continental Hotel, Thrissur. It was also
decided to solemnize the marriage on 17.8.2014, by which time, the
third respondent was expected to complete her studies in Russia. To
show that the marriage was scheduled to be solemnized on
17.8.2014, the petitioner relies on 'Vivahapathrika' issued by the
SNDP Sakha at Kottarakkara and Thrissur Town South (Exts.P1 and
P2). For the purpose of marriage, the petitioner could take a leave
for only three to four weeks and it was difficult to secure visa papers
for the third respondent during such a short visit.
In these
circumstances, the parents of the third respondent advised the
petitioner to secure a marriage certificate and apply for visa papers
sufficiently early so that the petitioner could take the third respondent
along with him to Germany immediately after solemnization of the
marriage on 17.8.2014. Therefore, on 26.8.2013, on the next day on
which the marriage was fixed, the petitioner, the third respondent and
their parents went to the office of the Registrar of Marriages
(Common), Thrissur and submitted an application for registration of
the marriage and for obtaining the marriage certificate. Accordingly,
Ext.P3 marriage certificate was issued by the Registrar of Marriages
(Common), Thrissur on 26.8.2013 showing that the marriage of the
petitioner and the third respondent was solemnized on 25.8.2013.
3. It is stated in the Writ Petition that after the fixation of the
marriage, the petitioner and the third respondent were interacting
with each other and exchanging e-mails. While so, the relationship
between the petitioner and the third respondent got strained due to
various reasons.
The relationship between the parents of the
petitioner and that of the third respondent also got strained. It is
stated that “due to incompatibility of temperament, approaches,
attitude and mindsets, it was impossible for the petitioner to get
united in marriage with the third respondent”.
4. The petitioner, represented by his power of attorney holder
(K.S.Rajan, father of the petitioner), filed Ext.P4 application dated
24.12.2014 to the Registrar of Marriages (Common), Thrissur to
cancel “the entries relating to the petitioner and respondent dated
26.8.2013 in the Marriage Register maintained by the Trichur
Corporation under Kerala Registration of Marriages Rules (Common)
2008”. The application was filed under Rule 13(1) of the Kerala
Registration of Marriages (Common) Rules, 2008. In the application
it is stated thus:
“6. The Marriage Certificate was obtained bonafide,
with no intention to commit any fraud upon anybody and in
fact the suggestion for securing the Marriage Certificate came
from the parents of the respondent and they secured the
presence of respectable witnesses before the Marriage
Registrar.”
5. It is stated that though the Registrar of Marriages received
Ext.P4 application, he refused to entertain the same and returned the
application to the petitioner. The relief prayed for in the Writ Petition
is to issue a writ of mandamus or any other appropriate writ, order or
direction directing the Chief Registrar General of Marriages
(Common), Thiruvananthapuram and the Registrar of Marriages
(Common), Thrissur (respondents 1 and 2) to exercise the
jurisdiction under Rule 13 of the Kerala Registration of Marriages
(Common) Rules, 2008, after receiving Ext.P4 application. There is
also a prayer to direct the second respondent to cancel the entry in
the Register of Marriages (Common) in the matter of Ext.P3
certificate exercising his power and authority under Rule 13 of the
Kerala Registration of Marriages (Common) Rules, 2008.
6. Notice issued in the Writ Petition to the third respondent
was returned stating that there was no such addressee.
Later,
service of notice was completed by newspaper publication. There is
no appearance for the third respondent.
7. Respondents 1 and 2 opposed the reliefs prayed for in the
Writ Petition. It is submitted by the learned Government Pleader that
Ext.P4 application submitted by the petitioner is not maintainable in
law and Rule 13 cannot be invoked in a case of this nature.
8.
The Kerala Registration of Marriages (Common) Rules,
2008 was published following the direction of the Supreme Court in
Seema v. Ashwani Kumar ((2006) 2 SCC 578 = 2006 (1) KLT 791
(SC)), wherein the Supreme Court directed the States to frame rules
to register the marriages. The Supreme Court held thus:
“15. As is evident from narration of facts, though most
of the States have framed rules regarding registration of
marriages, registration of marriage is not compulsory in
several States. If the record of marriage is kept, to a large
extent, the dispute concerning solemnisation of marriages
between two persons is avoided. As rightly contended by the
National Commission, in most cases non-registration of
marriages affects the women to a great measure. If the
marriage is registered it also provides evidence of the
marriage having taken place and would provide a rebuttable
presumption of the marriage having taken place. Though, the
registration itself cannot be a proof of valid marriage per se,
and would not be the determinative factor regarding validity
of a marriage, yet it has a great evidentiary value in the
matters of custody of children, right of children born from the
wedlock of the two persons whose marriage is registered and
the age of parties to the marriage. That being so, it would be
in the interest of the society if marriages are made
compulsorily registrable. The legislative intent in enacting
Section 8 of the Hindu Act is apparent from the use of the
expression "for the purpose of facilitating the proof of Hindu
Marriages".”
9. Rule 6 of the Kerala Registration of Marriages (Common)
Rules, 2008 (hereinafter referred to as 'the Rules') provides that all
marriages solemnized in the State after the commencement of the
Rules shall compulsorily be registered irrespective of religion of the
parties. However, marriages, the registration of which is compulsory
under any other statutory provisions, need not be registered under
the Rules of 2008. The registration of marriages solemnized prior to
the date of commencement of the Rules shall be optional.
The
marriages shall be registered under the Rules with the Local
Registrar within the local area of whose jurisdiction the marriage is
solemnized.
The Local Registrar shall maintain a Register of
Marriages (Common) in Form No.III. Rule 9 provides that the parties
to a marriage shall prepare a memorandum in duplicate in Form No.I
appended to the Rules along with one set of photos and shall submit
the same to the Local Registrar within a period of forty five days from
the date of solemnization of their marriage. The memorandum shall
be signed by both the parties to the marriage and two other persons
who witnessed the marriage. In the case of a marriage solemnized
as per religious rites, a copy of the certificate of marriage issued by
the religious authority concerned or a declaration from a Gazetted
Officer/Member of Parliament/Member of Legislative Assembly/
Member of Local Self Government Institution in Form No.II may be
considered as a document in proof of the marriage.
Rule 10
provides for registration of marriages after one year of the
solemnization of marriage, in which case, a memorandum shall be
filed together with a declaration from a Gazetted Officer/Member of
Parliament/Member of Legislative Assembly/ Member of Local Self
Government Institution in Form No.II or with any other document to
prove the solemnization of marriage to the satisfaction of the
Registrar General concerned.
The Registrar General means the
Registrar General of Marriages (Common) appointed under Rule 4,
while the Local Registrar means Local Registrar of Marriages
(Common) appointed under Rule 5 of the Rules. Rule 11 provides
for the procedure for registration of marriage. The parties to the
marriage shall personally appear before the Local Registrar prior to
the registration of the marriage and they shall put their signature in
the space provided for the purpose in the Register of Marriages
(Common).
Thereafter, the Local Registrar shall record in the
Register of Marriages (Common) to the effect that the marriage has
been registered and he shall put his signature and affix the office
seal. The Local Registrar is given the power to make such further
enquiry as he deems fit, where any doubt arises regarding the
correctness of any entry in the memorandum. Rule 11(1) provides
that the entries relating to each marriage shall be given registration
numbers consecutively for each calendar year and separate
registers shall be maintained for each calendar year. Sub-rule (3) of
Rule 11 provides that the Local Registrar shall forward the duplicate
copies of the memorandum received in a month to the Registrar
General concerned before the 10th day of every subsequent month.
The originals of the memorandum received by the Local Registrar
and duplicate copies forwarded to the Registrar General concerned
shall be filed as permanent records.
10. Rule 13 provides for correction and cancellation of entries,
which reads as follows:
“13. Correction and cancellation of entries.-- (1) If
the Local Registrar is satisfied either suo motu or on
application by the parties, that any entry in the Register of
Marriages (Common) is erroneous in form or substance or has
been fraudulently or improperly made, he shall subject to
conditions in sub-rule (2), make suitable corrections including
cancellation of registration, noting the evidence for such
corrections in the margin of the Register of Marriages
(Common), without any alteration of the original entry and
shall sign the marginal entry with the date of correction or
cancellation and shall forward the particulars of the
corrections to the Registrar General concerned.
(2) All corrections in material particulars like name,
age, date, etc., and cancellation shall be done only with the
sanction of the Registrar General concerned:
Provided that no such correction or cancellation shall
be made without affording a reasonable opportunity of being
heard to the parties concerned.
(3) On getting sanction under sub-rule (2), the Local
Registrar shall effect the correction or cancellation, as the case
may be, in the Register of Marriages (Common).
(4) An amount of rupees one hundred shall be charged
as fee for making corrections in the Register of Marriages
(Common) other than clerical mistakes.
(5) In every case in which an entry is corrected or
cancelled under this Rule, intimation thereof shall be sent to
the parties to the marriage and the Local Registrar shall make
a report giving necessary details to the Registrar General
concerned.”
11. Under sub-rule (1) of Rule 13, the Local Registrar has
jurisdiction for correction and cancellation of entries and for
cancellation of registration, either suo motu or on application. The
jurisdiction under Rule 13 can be exercised if an entry is erroneous
in form or substance or has been fraudulently or improperly made.
The jurisdiction to be exercised under sub-rule (1) of Rule 13 is
subject to conditions in sub-rule (2), which provides that all
corrections in material particulars like name, age, date etc. and the
cancellation shall be done only with the sanction of the Registrar
General concerned.
No such correction or cancellation shall be
made without affording a reasonable opportunity of being heard to
the parties concerned. When the parties make an application jointly
stating that their marriage was solemnized and when they produce
proof of the same, the Local Registrar is duty bound to register the
marriage. The power of correction is regarding any mistake in the
marriage certificate. The mistakes may be either those committed by
the Local Registrar while making the entries in the certificate; or the
mistakes may be those mistakes which the parties committed while
submitting the memorandum for registration.
Cancellation of the
entries can be made only if the Local Registrar is satisfied that an
entry in the Register of Marriages (Common) is erroneous in form or
substance or has been fraudulently or improperly made. There is no
case for the petitioner that he had any intention to commit any fraud.
Registration of a marriage to secure visa would be made only on the
volition of the parties to the alleged marriage. They cannot get those
entries cancelled once they changed their mind. The authority under
the Rules exercises a very serious function of registering marriages.
A marriage certificate is a permanent record. The authorities under
the Rules are expected to keep the records as permanent records.
The entries made in the memorandum and which were later carried
out in the Marriage Register cannot be altered except on the ground
of errors or on the ground that the entries were fraudulently or
improperly made.
The parties who submitted the memorandum in
Form No.I with a declaration that the details shown therein are true
to the best of their knowledge and belief cannot turn round and say
that the said declaration was made for a particular purpose and,
therefore, the entries are liable to be corrected and the registration is
liable to be cancelled. The entries in the Marriage Register and the
marriage certificate are not liable to be corrected at the whims and
fancies of the parties to the marriage. The corrections are to be
carried out only in the manner provided under Rule 13 of the Rules.
Wide powers are given to the Local Registrar for correction of entries
and for cancellation of entries and registration.
There may be
instances were an entry relating to marriage was fraudulently made
and the victim thereof is entitled to approach the Registrar for
cancellation of the entries or registration.
In the case of such
fraudulent acts, one of the parties to the marriage may be a victim of
fraud. But the parties to the marriage cannot approach the Local
Registrar and say that for a particular purpose they made a false
entry and since that purpose could not be achieved, they want to
resile from the declaration.
That is not the jurisdiction to be
exercised by the Local Registrar under Rule 13. That is not the
liberty provided to the parties to the marriage to apply before the
Local Registrar for correction and cancellation of the entries.
12. The remedy of the petitioner lies elsewhere and he cannot
make any application under Rule 13 of the Rules for the purposes
mentioned in the application. It is relevant to note that the petitioner
has not approached the Local Registrar under Rule 13 on his own.
He has executed a power of attorney for that purpose. I do not think
that a power of attorney holder of one of the parties to the marriage
would be entitled to make an application under Rule 13. A power of
attorney holder would not be entitled to say that an entry in the
Register of Marriages (Common) or in the memorandum for
registration is erroneous and therefore the entry is to be corrected or
the registration is liable to be cancelled. A party to a marriage cannot
relegate the right to apply under Rule 13 to a power of attorney
holder.
For the aforesaid reasons, the Writ Petition is dismissed.
(K.T.SANKARAN)
Judge
No comments:
Post a Comment