Wednesday, 12 August 2015

Whether special marriage Act prohibit Indians to marry foreigners?

 In a case before the Court where the petitioner, an Indian Citizen, was prohibited from marrying a Canadian Citizen on the ground that the provisions of Special Marriage Act, 1954 cannot be invoked in the instant case as one of the party to the marriage is a foreigner, a bench of K.V. Chandran J directed the 3rd respondent (Marriage Officer) to accept the application of the petitioner and permit her to contract the marriage as intended by her, as the Special Marriage Act, 1954 does not bar the solemnization of marriage between an Indian and a foreigner.
The Court read Section 4 of the Special Marriage Act and observed that solemnization of the marriage between “any two persons” could not be prohibited in the present case as the petitioner satisfies the conditions stated in sub-clauses (a) to (d) of the said provision. The Court noted that the word “person” used in Section 4 of the Act does not indicate that either one of the parties or both the parties should be citizens of India. The Court further noted that there is no requirement of informing about the said marriage to a Marriage Officer appointed by the Government of India in its embassy at Canada as Section 6(3) is not applicable in the instant case, because one of the parties is a foreigner and does not have permanent resident in India. Accordingly, the Court permitted the petitioner to contract the marriage as intended by her and directed the Marriage Officer to register the marriage under the Act.
Kerala High Court
Devika Raj vs State Of Kerala on 8 August, 2014

The petitioner, an Indian citizen, desires to enter into a marriage with one Sandeep Devanatha Pillai, who is a person of Indian origin; but now a Canadian citizen. The petitioner, residing under the jurisdiction of the 3rd respondent, made an application for contracting the said marriage under the Special Marriage Act, 1954. An objection was raised by the 3rd respondent, allegedly on the ground that the marriage is intended to be entered into with a Canadian citizen and, hence, the provisions of the Special Marriage Act cannot be invoked.
2. In fact, the said issue was already considered by this Court in Rajeev v. State of Kerala [2001 (1) KLT 578], which relied on a decision of High Court of Himachal Pradesh in Marian Eva v. State of Himachal Pradesh [AIR 1993 Himachal Pradesh 7]. The Court categorically found that the Special Marriage Act does not contain any prohibition for solemnisation of the marriage, if one of the parties is a foreigner. Another  learned Single Judge of this Court also found to the same effect in Exhibit P8 judgment.
3. A reading of the provisions of the Special Marriage Act would also indicate that, Section 4contemplates a marriage between "any two persons" could be solemnized under the Act; if the conditions specified therein are fulfilled. To satisfy the officer of the conditions stated therein, the intending bridegroom has also given Exhibits P5 and P6. Exhibit P5 indicates that there is no provision as per the Canadian law for issuance of a certificate that a Canadian citizen is free to marry and that such a certificate is not required under the Canadian law. Exhibit P6 is the affidavit given by the intending bridegroom, which indicates that he satisfies the conditions in sub-clauses (a) to (d) of Sections 4 of the Act.
4. It is also relevant that, by Exhibit P4 the Government had answered a clarification made by the Inspector General of Registration and specifically indicated after citing the aforesaid decisions that the word "person" used in Section 4 of the Special Marriage Act does not indicate either one of the  parties or both the parties should be citizens of India. The said communication is also accepted by Exhibit P4.
5. The learned Government Pleader contends that there is no Marriage Officer appointed by the Government of India in the Embassy of India at Canada and there is no provision for sending a communication as required under sub-section (3) of Section 6 of the Act.
6. Sub-section (3) of Section 6 requires only that when either of the parties to an intended marriage is not permanently residing within the local limits of the Marriage Officer, then the Marriage Officer of the district in which either of the parties have their residence should be informed of the marriage.
7. In the present case, the petitioner, a citizen of India, is a resident within the jurisdiction of the 3rd respondent. The Canadian citizen, who she intends to marry, is not having permanent residence in India and even if a Marriage Officer is appointed by the Government of India in its Embassy at Canada, there would be no requirement of informing such Marriage  Officer, since the intending bridegroom is a Canadian citizen. In such circumstance, the application of the petitioner shall be accepted and notice shall be given by the 3rd respondent as required under the Act and the petitioner permitted to contract the marriage as intended by her, which shall be registered under the Act.
The writ petition is allowed.
K.Vinod Chandran Judge.
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