IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 7468 of 2008(L) -------------------------------------- PETITIONERS: ---------------------- 1. ROOPESH SHANKU, S/O. OF THE LATE CDR.M.SHANKU, NOW R/AT APARTMENT 1101, 135 ROSE AVENUE, TORNOTO, ON M4XIPI, CANADA (REP. HEREIN BY HIS POWER OF ATTORNEYHOLDER REEJA.V.SUBRAMANIAN D/O.SUBRAMANIAN, VADASSERY HOUSE, 21/608, "BAJANAS", SHANKARAYYA ROAD, P.O.POOTHOLE, TRISSUR 2. REEJA V.SUBRAMANIAN, D/O.SUBRAMANIAN, VADASSERY HOUSE, 21/608, "BAJANAS", SHANKARAYYA ROAD, P.O.POOTHOLE, THRISSUR - 680004. BY ADV. SRI.M.AJAY RESPONDENTS: -------------------------- 1. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR - 680001. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7468/2008 L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE THRISSUR TOWN NORTH SNDP SANGHA YOGAM NO. 2076 KANATTUKARA THRISSUR. EXT.P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS TOGETHER TO THE SECOND RESPONDENT DTD. 13/09/07. EXT.P3: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS TO THE SECOND RESPONDENT DTD. 19/09/07. EXT.P4: COPY OF THE EXTRACT OF THE MARRIAGE REGISTER AS OBTAINED UNDER THE RTI ACT. EXT.P5: COPY OF THE RECEIPT NO.152083 ISSUED BY THE THRISSUR CORPORATION DTD. 19/09/07. EXT.P6: COPY OF THE LETTER R.V.S.13906/07 DTD. 22/09/07. EXT.P7: COPY OF THE LETTER R.V.S.13906/07 DTD. 16/11/07. EXT.P8: COPY OF THE LETTER NO.MOH-10M-27172/07 DTD. 23/11/07. EXT.P9: COPY OF THE REPRESENTATION SENT BY THE SECOND PETITIONER TO THE FIRST RESPONDENT DTD. 12/02/08. 2ND RESPONDENT'S EXHIBITS: EXT.R2: COPY OF THE LETTER NO.RVS 13906/07 DTD. 13/09/07 ISSUED TO ADV. SRI.K.B.MOHANDAS. EXT.R2(A): COPY OF THE LEGAL OPINION NO.KBM/404/9/07 – RVS 13906/07 DTD. 14/09/07. /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 7468 OF 2008 ----------------------------------------------- Dated this the day of Msarch, 2008 J U D G M E N T The petitioners are husband and wife. They claim that they are practicing Hindus. First petitioner was born in India to parents who were Hindus and Indian citizens. First petitioner was raised and brought up as Hindu. After taking Bachelors Degree in Civil Engineering from Hyderabad and a Master's Degree in Business Administration from the Cochin University of Science and Technology, first petition took up employment in Canada and has acquired Canadian Citizenship after giving up Indian Citizenship. Nevertheless he continues to be an Indian citizen. They got married each other under rites and customs of Hindu Religion on 9-9-2007 at Durganjali Auditorium Olarikkara, Trichur within the area of second respondent Trichur Corporation. Ext.P1 is copy of the marriage certificate issued by the Trichur Town North SNDP Sakha Yogam attesting to the marriage between the first petitioner and the second petitioner. 2. The first respondent in the writ petition is the secretary to Government, Local Self Government Department. The second respondent secretary of the Trichur Corporation is designated as the local Registrar of Hindu Marriages under the Kerala Hindu Marriage WP(C)N0. 7468/08 -2- Registration Rules 1957. After their marriage the petitioners jointly made an application as required under Rule 6 of the Kerala Hindu Marriage Registration Rules 1957. Ext.P2 is copy of this application. Initially the officers under the second respondent were diffident to entertain Ext.P2 application since they were in confusion as to whether a marriage conducted under the Hindu Marriage Act between two Hindus, one of whom is a foreign citizen, could be registered under the Rules. Later after obtaining advice from the standing counsel for the Corporation and based on the advice it was endorsed on Ext.P1 application that the marriage can be registered under the Rules. Petitioners were informed that they should appear before the second respondent on 19-9-2007 for signing the marriage register and for obtaining marriage certificate after paying the requisite fees. Accordingly both the petitioners appear before the second respondent and submitted application in form No.1 duly attested by two witnesses. Ext.P3 is copy of the above application. Petitioners submit that both of them were permitted to sign the marriage register on its page No.41. Ext.P4 is copy of true extract of the marriage register as obtained by the petitioners under the Right to Information Act. It is pointed out that second respondent did register the marriage of the petitioners WP(C)N0. 7468/08 -3- against registration No.635/07. They were informed that for getting extract of the marriage register a fees of Rs.10/- should be paid to the Corporation and accordingly the above fees was paid and Ext.P5 is copy of the acknowledgment. Grievance of the petitioners is that till this moment the marriage certificate has not been issued to them. They were eagerly waiting for the marriage certificate so that they can present it before the Emigration authorities in Canada to enable the second petitioner to obtain a Canadian Visa to join her husband who has already left for Canada. Second respondent informed the second petitioner that he has written to the Secretary of the Cochin Corporation to find out whether the marriage referred to in the judgment in 2006(3) KLT 17 had been registered and whether it was done in the foreign address of the husband or his Indian address. Ext.P6 is copy of that letter and the petitioner in her anxiety to get the marriage certificate carried this letter as permitted by the second respondent over to Cochin and presented the same before the Secretary of Cochin Corporation. Interestingly the judgment referred to in Ext.P6 is not the judgment in 2006(3) KLT 17, but the judgment which had been overruled in 2006(3) KLT 17, a judgment which had nothing to do with the Cochin Corporation. There was no response WP(C)N0. 7468/08 -4- from the Cochin Corporation to Trichur Corporation to Ext.P6. Second petitioner made repeated attempts to get the marriage certificate and personally met the second respondent a number of times. At last the second respondent wrote another letter Ext.P7 to the Secretary of the Cochin Corporation referring to the judgment in 2006(3) KLT 17. To Ext.P7, Secretary of the Cochin Corporation sent Ext.P8 reply wherein it is stated that the marriage mentioned in the judgment in 2006(3) KLT is not seen registered in the Corporation of Cochin. Even after Ext.P8 the second petitioner made numerous visits to the office of the second respondent to get an extract of Ext.P4 register but without success. Alleging that they are subjected to hostile discrimination in spite of there being a binding declaration by the Division Bench of this court petitioner has at last submitted a representation on 12-2-2008 to the first respondent Government Secretary voicing her grievances and requesting him to issue proper instructions to the Secretary of the Trichur Corporation to issue a copy of the marriage certificate to the petitioners and also take action against second respondent for illegally refusing to issue marriage certificate. Ext.P9 is the copy of the representation. On the above averments the petitioners have raised grounds (A) to (E) and filed this writ petition under Article 226 seeking WP(C)N0. 7468/08 -5- the following prayers. (1) Declare that the petitioners are entitled to have their marriage conducted under Hindu rites and customs in Durganjali Auditorium, Olarikkara, Thrissur on 9-9-07 registered under the Kerala Hindu Marriage Registration Rules, 1957 notwithstanding the fact that the first petitioner is a Canadian Citizen. (2) Issue a writ of mandamus, or any other writ, order or direction to the second respondent to issue the petitioners forthwith a marriage certificate as prescribed under the Kerala Hindu Marriage Registration Rules, 1957. (3) Issue a writ of mandamus or any other writ, order or direction to the first respondent to initiate disciplinary proceedings against the second respondent for willfully and maliciously refusing to exercise his duties and obligations as the Local Registrar under the Kerala Hindu Marriage Registration Rules, 1957. When this writ petition coming up for admission Sri.K.B.Mohandas, standing counsel for Trichur Corporation took notice on behalf of second respondent and Sri.K.J.Muhammed Anzar, Government Pleader took notice on behalf of first respondent. I have heard the submission of Mr.Ajay, counsel for the petitioner, Sri.K.B.Mohandas, standing counsel for the Corporation and Mr.K.J.Muhammed Anzar, learned Government Pleader. Mr.Ajay would submit that the issue is directly covered by the Division Bench judgment of this court in 2006 (3) KLT 17. The second respondent Corporation was refusing statutory duties cast upon him as local WP(C)N0. 7468/08 -6- Registrar of Hindu Marriages under the Kerala Hindu Marriage Registration Rules 1957. The legal adviser of the second respondent had given clear advice to the second respondent that the issue is covered by judgment of this court in Vinaya Nair's case and the refusal of the second respondent is to compel the petitioners to meet his extraneous and illegal demands. More than five months have been elapsed since the application for marriage certificate was made by the petitioners. On account of the inertia on the part of the second respondent in exercising his function as local registrar second petitioner is unable to join her husband who is working in Canada. The refusal of the second respondent to issue marriage certificate amounts to deprivation of second petitioner's fundamental rights guaranteed under Articles 14, 15 and 21. The first petitioner's fundamental right under Article 21 is also being violated since he is constrained to lead a solitary life without conjugal relationship with his wife, second petitioner. Sri.K.B.Mohandas, learned counsel for the Corporation would try to endeavour to resist the submissions of Mr.Ajay. He pointed out that ................................................................ The Government Pleader would submit that the facts situation appears to be comparable to Vinaya Nair's case. The issue raised in this case, WP(C)N0. 7468/08 -7- in my opinion is directly covered by the judgment of the Division Bench in Vinaya Nair's case. May be it is true that in Vinaya Nair's case the petitioner husband who was a Canadian citizen by birth and also by domicile had joined shown his Indian address that is the address of his parental home in India in his application for registration under the Kerala Hindu Marriage Registration Rules 1957. Unlike the first petitioner (prohibits on the consideration for doing more justice to truth) had shown his Canadian address in his application before the second respondent. But the issue is whether the provisions of the Hindu Marriage Act and the Hindu Marriage Registration Rules 1957 will apply to the marriage between the petitioners both of whom are Hindus and whose marriage was solemnized according to the rites and rituals of the Hindu Religion within the area of the second respondent registering authority. It is seen from Exts.P2, P3, and P4 that the marriage has been actually registered as No.635/07 by the second respondent. All that remains is that the second respondent should issue a certified extract of the register. Ext.P5 receipt would show that the requisite fee has been remitted by the petitioners. I am of the view that the petitioners are justified in complaining that there has been gross negligence on the part of the second respondent in WP(C)N0. 7468/08 -8- discharging his statutory duties. Result is that the writ petition will stand allowed. Second respondent is directed to issue to the petitioners forthwith a marriage certificate as prescribed under the Kerala Hindu Marriage Registration Rules 1957 in respect of th marriage which was conducted on 9-9-2007 as certified by Trichur Town North SNDP Sakha Yogam No. 2070 in Ext.P1 certificate. The second respondent shall comply with the above direction at the earliest, at any rate, within 10 days of receiving a copy of the judgment. (PIUS C.KURIAKOSE, JUDGE) ksv/