S. Ravindra Bhat, J. (Open Court)— Issue rule. Mr. J.R Midha, learned Counsel waives notice of rule. With consent of Counsel for the parties the matter was heard for disposal.
2. The petitioner is aggrieved by the inaction/refusal of the respondent to take cognizance the request to register her marriage with Shri Jaspal Singh.
3. The brief facts are that the petitioner claims to have got married with Shri Jaspal Singh on 21.4.1991 It is claimed that the couple then lived together. A son was born out of the wedlock on 9.2.1996 This was duly recorded under the Registration of Births and Deaths Act by the local authority i.e the Municipal Corporation of Delhi (MCD). The petitioner's husband apparently went to the United States of America and after living there for quite some time, was issued a green card in 2002. That led later to issuance of a permanent resident status in February, 2004 by Immigration and Naturalisation Service of America. The petitioner applied for an immigration visa. The US Authorities after interviewing her asked her to produce a marriage certificate. Since the marriage was admittedly unregistered she approached the respondents. The Registrar of Marriage i.e the second respondent, declined to take any action on the ground that in terms of Section 8 of the Hindu Marriage Act, 1956, the applicant and her spouse had to appear before the Registering Officer and also satisfy him that the marriage was indeed solemnized as claimed, besides affixing their signatures in his presence, in the Register.
4. It was contended that the rigours of Rule 3 of the Marriage Registration Rules operate onerously and harshly in the cases like the present where one party is compelled to appear, for the purpose of registering the marriage which would entail considerable expense and time.
5. Learned Counsel contended that the rules were framed in 1956 and did not cater to a situation where technology has advanced and facilities such as video conferencing are available but which are not being resorted to. It was contended that there is nothing in Section 8 of the Hindu Marriage Act, 1955 which compels both spouses to be present at the time of registration of marriage. The provision facilitates or enables registration of marriage, but cannot be so construed as to confer wide powers and prescribing a procedure which would defeat its objective.
6. Learned Counsel for the respondent submitted that the procedure prescribed by law i.e Rule 3 read with Forms A and B mandate the presence of the parties to the marriage and submission of an application in Form A which is statutorily prescribed. It was contended that in terms of Section 8(4) a register has to be maintained in a particular form and would be admissible as evidence to the statements made therein. The procedure for presence of the spouses and their satisfying the Officer about the marriage (which is attested to duly by them in) by each of them affirming/signing before him and evidenced by two witnesses, cannot be done away or lightly be brushed aside.
7. Learned Counsel for the respondent also produced the original file containing the notice and submitted that the matter engage the envious attention of the concerned officials. Section 8 of the Hindu Marriage Act reads as follows:
“8. Registration of Hindu Marriages.—(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
(2) Notwithstanding anything contained in Sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in Sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.
(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.”
8. Rule 3 framed in the year 1956 is to the following effect:
“The parties to a Hindu Marriage may apply to the Registrar under Section 8 for having the particulars of their marriage entered in the Register. Every such application shall be made in form ‘A’ and shall be accompanied by a treasury receipt for the amount of fee prescribed in Rule 6.”
9. Section 8 is the only provision which deals with registration of Hindu Marriages. Advisably it uses the expression ‘facilitating the proof of Hindu marriages’. Advisably because there is no mandate that all marriages are to be registered compulsorily in terms of the Act. Of course judgments of the Supreme Court have directed that all marriages in India ought to be registered. But that apart the status of such unregistered marriages has not been spelt out—the requirements of a valid Hindu marriage are provided under Section 5. Therefore a conjoint reading of Section 8 and Rule 3 would imply that the intention was that whoever wanted to secure a certificate evidencing proof of his or her marriage, had to be facilitated the process in an appropriate and reasonable manner through rules. In other words in the absence of a mandate that all Hindu marriages are to be necessarily registered, State intervention is only as a facilitator. Obviously this perspective has to be noticed because it has some significance.
10. Now the State in undoubted exercise of its powers framed rules which indicate that parties to the marriage can apply to the Registrar for having the particulars of their marriage entered in the register.
11. The procedure is not really spelt out in the rules. It is actually contained in Form A. The Form reads as follows:
“FORM ‘A’
(See Rule 3)
Application for registration of a marriage under Section 8 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955)—
1. Name and percentage of parties.______________(Husband) S/o________________(Wife)
2. Age of date of birth_________(Husband)__________(Wife)
3. Permanent dwelling place, if any,
________________________________________(Husband)
__________________________________________(Wife)
4. Present dwelling place:]
_________________________________________(Husband)
____________________________________(Wife)
5. Relationship, if any, of parties before marriage.
6. A Hindu marriage was solemnized between________and __________on at___________________in accordance with our customary rites and ceremonies and we declare that we have been living together as husband and wife ever since the date noted above.
We hereby declare that—
(i) neither of us had a spouse living at the time of the marriage,
(ii) neither of us is an idiot or a lunatic,
(iii). both of us is had completed the age of eighteen years at the time of the marriage.
The husband had completed the age of eighteen years and the wife had completed the age of fifteen years at the time of the marriage and the consent of the guardian of the wife viz. (here enter name, parentage, age and relationship of the guardian) had been obtained for the marriage.
(iv) We are not within the degree of prohibited relationship according to the custom or usage having the force of law, governing each of us a marriage between us is permitted though we are within the degree of prohibited relationship.
(v) We are not Sapindas of each other according to the custom or usage having the force of law, governing each of us a marriage between us is permitted, though we are Sapindas of each other.
(Note: Score out whichever is not applicable).
(vi) We have been residing within the jurisdiction of the Registrar at_________________for a period of not less than thirty days immediately preceding the date of this application.
We also declare that all the above particulars are true to the best of our knowledge and belief.
STATION:
DATED:Signature”
12. From the above form an inference is sought to be drawn by the respondents that both the spouses have to be physically present before the Registrar and satisfy him through declarations that the marriage is a valid one; besides they have to disclose other particulars. The declarations sought apart from details such as name, age, relationship of the parties before marriage, etc. are really matters which are outlined under Section 5.
13. The effect of violation of Section 5 is spelt out in Sections 11 and 12. This aspect therefore is really academic as far as the Registrar is concerned. Whether the parties have contravened any of the provisions of section 5 or not and whether such a declaration is valid or hot is not a matter which can only be gone into by the Courts. The Court in such proceedings cannot in any manner be bound by the declaration made before the Registrar or withheld from him. It has to decide judicially, after considering objective material and evidence, whether such conditions have been satisfied or violated. The declaration before the Registrar, on those aspects, has no special significance.
14. So viewed the real effect of the declaration and the particulars sought are as to the name and parentage of parties, date of birth and details such as residence proof and relations before marriage. As noticed earlier under the Hindu Marriage Act, the marriage is not solemnized by the Registrar, but certified to have been solemnized, by the Registrar on the basis of application to him. Under the Hindu Marriage Act he merely issues a certificate that according to the information supplied to him the parties were married on a particular date. Form B which is in terms of Rule 4 is to the same effect; it is part of the Register under Rule 4.
15. It would be evident from the above discussion that the status of the parties is attested to on basis of information furnished to the Registrar. He is hot the official invested by the State with authority to solemnize the marriage. Prima facie a reading of Form A and B no doubt lends support to the view of the respondents indeed that the normal method is one where spouses are expected to apply and affirm about their marriage. But what ought to be a situation—where parties are living at a considerable distance from each other and yet desire the furnishing of certificate has not been provided for under the Rules.
16. Rule 3 was framed at a time when technology was nascent; developments that have changed the world and the way we view the world today were unimaginable, and perhaps beyond comprehension of the rule makers. It is possible for a person living thousands of kilometres away from Delhi or anywhere in India to simultaneously communicate with another party. Also, technology has enabled parties today to attest documents digitally, and ensure digitally secure transmission, through Internet. The objective and philosophy underlying Information Technology Act is based on these developments. In these circumstances the inaction or indifference of the State to recognise these developments and provide for a suitable mechanism to facilitate (what is required to do) i.e registration of marriage of spouses separated by distance, has to be addressed. The law has to adapt to changing times. Here, the requirements spelt out half a century ago are acting as impediments, even though technology has enabled myriad solutions to the authorities. It is open to evolve a suitable mechanism with a mix of technology by incorporating video-conferencing, authentication of identities by Embassies, and attestation of signatures in a similar manner.
17. In view of the above since the petitioner's husband is now in the United States and requiring him to return India in order to appear before the Registrar would entail expense besides loss of time, the matter can be appropriately dealt with by suitable directions. Accordingly; it is directed:
(1) The petitioner shall fill Form ‘A’ and present it to the second respondent along with Form A duly signed by her husband. The husband's signatures shall be attested by the Consul General available in the nearest town in the United States along with description of his passport. His affidavit; attested by the Consul General, and attested copy of his photograph, too shall be furnished to the second respondent.
(2) An attested copy of the petitioner's passport and that of her husband shall be filed along with the ‘Form A’. Likewise, copies of the birth certificate evidencing the petitioner's son's birth, issued by the MCD and such other documents evidencing her date of birth and place of residence shall also be produced by her.
(3) The petitioner shall produce witnesses in accordance with Rule 3. One witness, with a PAN Card and/or copy of ration card/passport as the case may be shall be present along with the petitioner. The said witness shall verify about his having witnessed the marriage between the petitioner and Shri Jaspal Singh. The petitioner shall also produce other documentary evidence such as photographs, invitation card, etc.
(4) On being satisfied that all the above requirements are fulfilled the second respondent shall issue an order and make the necessary entries in Form B.
(5) Upon completion of the process indicated above the respondent No. 2 shall ensure that two certificates in the prescribed form are issued to the petitioner and her husband.
18. It is clarified that this order is made in the facts of this case and in view of the further consideration that the petitioner's husband is living outside India; compelling him to appear simultaneously with her for the purpose of registration, would entail avoidable delay, and expense.
19. The petition is allowed in the above terms. Order dasti.
Petition allowed.
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