2010(6) ALL MR (JOURNAL) 30
(KERALA HIGH COURT)

K.M. JOSEPH AND M.L. JOSEPH FRANCIS, JJ.

V. G. Rajilal & Anr.Vs.State Of Kerala

W. P. (C) No.11590 of 2010

9th April, 2010

Petitioner Counsel: P. CHANDRASEKHAR
Respondent Counsel: VIPIN DAS

Hindu Marriage Act (1955), S.13B - Divorce by mutual consent - Petitioners filing affidavit to the effect that they were married as per customary law and marriage was not registered - Court cannot insist for marriage certificate as a pre-condition for entertaining petition for divorce. (Para 13)

Cases Cited:
Anitha Marginic Vs. Annadurai, 1992 KLT 2 (Case No.2) [Para PARA8]
Padmakiran Rao Vs. B. Venkateramana Rao [Para PARA 10]


JUDGMENT

-M.L. JOSEPH FRANCIS, J.:- This Writ Petition under Articles 226 and 227 of the Constitution of India is filed with the following prayer :

"to set aside the order dated 19.3.2010 of the Family Court, Malappuram returning Ext.P1 filed by the petitioners under S.13-B of the Hindu Marriage Act for non-production of Marriage Certificate and direct the Family Court to receive Ext.P-1 on file and consider the same on merits."

2. Briefly the case of the petitioner is as follows.

The petitioners belong to Thiyya Community and professing Hindu Religion. The marriage of the petitioners were solemnized on 31.10.2008 as per the customs prevalent among members of Thiyya community of Hindu Religion. The petitioners have decided to dissolve their marriage mutually under Section 13-B of the Hindu Marriage Act. Accordingly, the petitioners submitted a petition dated 16.3.2010 before the Family Court, Malappuram for divorce on mutual consent under Section 13-B of the Hindu Marriage Act. Along with the said petition, the petitioners also submitted a petition dated 16.3.2010 to dispense with the stipulation of 6 months period from presentation of the petition under Section 13-B of Hindu Marriage, for granting of mutual divorce.

3. It is submitted that the Family Court has returned Ext.P1 petition stating that Registration of marriage is compulsory after 28.2.2008 and directed the petitioners to produce the marriage registration certificate. Ext.P-1 is the true copy of the petition dated 16.3.2010 filed by the petitioners under Section 13-B of the Hindu Marriage Act before the Family Court, Malappuram, along with the order of Family Court, Malappuram dated 19.3.2010. Ext.P-2 is true copy of the petition filed by the petitioners dated 16.3.2010 to dispense with the waiting period or 6 months. Aggrieved by the order of the Family Court the petitioners filed this Writ Petition.

4. We heard the learned counsel for the petitioners and the learned Government Pleader.

5. The learned counsel for the petitioners raised the following contentions. The Family Court has no power or authority to return the petition under Section 13-B filed by the husband and wife, whose marriage had been solemnized as per Hindu Customary law, stating that the marriage registration certificate was not produced when the petitioners filed the affidavit stating that they were married as per the Hindu Customary law and that their marriage had not been registered. The Kerala Registration of Marriages (Common) Rules, 2008 do not stipulate that the marriage should be registered as a condition precedent for making application under Section 13-B of the Hindu Marriage Act.

6. The petitioners are entitled to file affidavit to the effect that they were married as per Hindu Customary law in the absence of certified extract of Hindu Marriage Register. The marriage of the petitioners were complete and valid on solemnization of their marriage under the Hindu customary law and non-registration of the marriage of the marriage of the petitioners will not make the marriage void and invalid.

7. There is no law or rule stipulating that the production or Marriage Certificate is compulsory to maintain a petition under Section 13-B of the Hindu Marriage Act. The returning of the petition filed by the petitioners for on-producing the marriage certificate is therefore without jurisdiction.

8. Learned counsel for the petitioners invited our attention to the decision reported in Anitha Marginic Vs. Annadurai, (1992 KLT 2 (Case No.2), in which it was held :

"When the factum of marriage is disputed, evidence regarding performance of marriage according to Hindu rites must be brought on record to show that there had been a valid marriage. The registration is not the sole proof of marriage in order to become a valid marriage."

9. In the present case, the marriage between the petitioners is not disputed. Section 13-B of the Hindu Marriage Act, 1955 was inserted by Act 78 of 1976 and provides for divorce by mutual consent. In order to attract the provisions of this section, the spouses should have been living separately for a period of one year, or more and must not have been able to live together and have mutually agreed that the marriage should be dissolved. If all the three ingredients of Section 13-B are proved by the parties, divorce cannot be refused. In order that they must not hastily apply for divorce by mutual consent it is provided in sub-section (2) that the parties may withdraw the petition. If the parties have not withdrawn the petition, the Court may after six months and before 16 months pass a decree of divorce. Before doing so, the Court must be satisfied after hearing the parties and after making such enquiry as it thinks fit that a marriage has been solemnized and that the averments in the petition are true.

10. In the decision reported in Padmakiran Rao Vs. B. Venkateramana Rao (1996(2) H.L.R. 271) it was held that 'hearing' does not necessarily mean that both the parties have to be examined. The word 'hearing' is often used in a broad sense which need not always mean personal hearing. Where the husband is living in U.S.A., evidence in the form of an affidavit on the husband's side can be legitimately taken into account in view of Order 19, Rule 1, C.P.C. unless there are suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true.

11. Rule 4 of the Hindu Marriage (Kerala) Rules, 1963 provides that the every petition filed under the Hindu Marriage Act, 1955 shall be accompanied by a certified extract from the Hindu Marriage Register maintained under Section 8 of the Act and in the absence of the same an affidavit to that effect that the petitioner was married to respondent.

12. Kerala Registration of Marriages (Common) Rules, 2008 came into force on 29.2.2008. Rule 6 of that Rules provides that all marriages solemnized in the State after the commencement of the Rules shall he registered irrespective of religion of parties. Rule 15 of that Rules reads as follows :-

"Consequences of non-registration: After the commencement of these Rules. the Government shall not accept for any purpose, any certificate of marriage issued by any authority other than those authorised under these Rules or under any other statutory provisions. However this provision is not applicable to the marriages solemnized before the commencement of these Rules."

13. There is no stipulation either in the Hindu Marriage Act or the rules framed there-under that the petitioners in a petition under Section 13-B of the Hindu Marriage Act should compulsorily produce the Marriage Certificate. There is no such stipulation in the Kerala Registration of Marriages (Common) Rules, 2008 also. Rule 3 of the Hindu Marriage (Kerala) Rules, 1955 framed by this Court stipulates that every petition filed under Hindu Marriage Act shall be accompanied by a certified extract from the Hindu Marriage Register maintained under Section 8 of the Act and in the absence of the same, an affidavit to the effect that the petitioner was married to the respondent. The said Rule does not stipulate that the production of marriage certificate is compulsory. The petitioners have filed affidavit to the effect that they were married as per Hindu customary law and that the marriage is not registered. As such the Court below has no jurisdiction to insist for the marriage registration certificate as a pre-condition for entertaining the petition filed by the petitioners.

14. Accordingly this Writ Petition is allowed. We set aside the order dated 19.3.2010 of the Family Court, Malappuram returning Ext.P-1 filed by the petitioners under Section 13-B of Hindu Marriage Act for non-production of the marriage certificate and direct the Family Court to receive Ext.P-1 on file and consider the same on merits and in accordance with law.

Petition allowed.