AI Structured Summary
Not yet generated for this judgment
Judgment
Anu Sivaraman, J.
This writ petition is filed with the following prayers:-
“i)To issue a Writ in the nature of mandamus directing the 1st respondent to treat the exhibit P4 decree of dissolution of marriage of the 2nd petitioner as a valid,
foreign judgment by a competent court of jurisdiction
ii) To issue a writ in the nature of mandamus directing the 1st respondent to accept the exhibit P5 application and register the marriage as per the Kerala Registration
of Marriages (Common) Rules 2008 and to issue the marriage registration certificate.
iii) To issue a writ in the nature of mandamus directing the 1st respondent to make arrangement to complete the process of registration through video conferencing
with the petitioners and dispense with the personal attendance of the petitioners as they would be abroad. â€
Heard the learned counsel for the petitioners, the learned counsel appearing for the 1st respondent as well as the learned Government Pleader.
It is submitted by the learned counsel for the petitioners that the 1st petitioner is employed in Australia and the 2nd petitioner is an Overseas
Citizen of India holding a passport of the United States of America. The petitioners are nurses by profession. They have solemnized their marriage on
15.1.2022 at KGA Elite Continental Hotel Thiruvalla as per the rites of the Christian Pentecostal Church. Certificate of Marriage is Exhibits P2 and
P2A. Both the petitioners are divorcees and have obtained legal divorce. Ext.P3 is the judgment in O.P.No.972/2016 of Family Court, Pathanamthitta
dissolving the marriage of the 1st petitioner, while Exhibit P4 is the certified copy of the decree of dissolution of the 2nd petitioner's marriage in the
District Court of Oklahoma County, Sate of Oklahoma, USA. It is submitted that when the petitioners made applications for registration of their
marriage pursuant to Exhibit P2, the 1st respondent refused to register the marriage, raising a doubt regarding the enforceability of Exhibit P4 decree.
The learned counsel for the petitioners submits that since the petitioners are both divorcees and since there is no dispute with regard to the marital
status, the refusal on the part of the 1st respondent to register their marriage is completely unsustainable. It is submitted that the petitioners have
thereafter gone abroad for employment purposes and that the 1st respondent may be directed to consider the application for registration of their
marriage by appearance of the petitioners online before him through video conferencing. The learned counsel for the petitioners relies on the decisions
of this Court Arun K.G.and Another v. Marriage Registrar and Another [2018 KHC 798] and Vinson Thomas v. Marriage Officer and Chitt Auditor
and others in W.P.(C).No.3180/2022 dated 3.02.2022. The learned counsel for the petitioners also submits that the issue stands covered by a decision
of this Court in Jithin Varghese Prakash v. Registrar of Marriage, Piravom Municipality [2019(4) KHC 39].
The learned counsel appearing for the 1st respondent would, on the other hand, contend that Section 13 of the C.P.C is of no help to the petitioners,
in view of the fact that the decree is one issued on mutual consent between the parties and that it is not a decree on merits. It is, therefore, contended
that since the decree is one on consent, the foreign judgment is not conclusive.
I have considered the contentions advanced. In Augustine Kalathil Mathew v. Marriage Officer (Sub Registrar), Pathanamthitta [ 2016 (4) KLT
415] this Court held as follows:-
“It is thus evident that though the general rule is that a foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign
court as well as the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married, such judgments can be
accepted as conclusive in India where the respondent voluntarily and effectively submits to the jurisdiction of the forum and consents to the grant of the relief
although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. As stated above, the materials on record indicate
beyond doubt that the petitioner and his divorced wife have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented
to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them. In the
circumstances, I am of the view that the courts in India have to recognise Ext.P4 divorce certification. “
In Arun K.G.and Another v. Marriage Registrar and Another [2018 KHC 798] this Court held that Rule 6 of the Kerala Registration of Marriages
(Common) Rules 2008 provides a limited power to the Registrar to conduct a summary enquiry as to the legality of the marriage. It was held that he
needs only to have a prima facie view that the marriage has been conceived as per law and once such satisfaction has been entered into by the
Registrar, he need not conduct further enquiry into the facts stated in the applications.
In Jithin Varghese Prakash v. Registrar of Marriage, Piravom Municipality [2019(4) KHC 39], this Court held that there is no provision under the
Kerala Registration of Marriages (Common) Rules, 2008 to register a divorce, especially one obtained from a foreign court. However, it was held that
where a record that shows that marriage subsists is available in the public domain, the parties would have every right to insist that the dissolution of the
said marriage should also be recorded in the public record. Relying on Section 21 of the General Clauses Act, 1897 it was held that the registrar was
bound to record a divorce obtained from a foreign court in the register maintained by him acting upon a decree of a competent court, even if the court
is a foreign court.
In Vinson Thomas v. Marriage Officer and Chitt Auditor and others by judgment dated 3.02.2022 in W.P. (C).No.3180/2022, this Court had
considered a notice to marry under the Special Marriage Act. The 1st petitioner had obtained a decree of dissolution of marriage on consent of parties
from the Family Court, Birmingham the parties had thereafter given notice of marriage under the Special Marriage Act. However, the Marriage
Registrar had taken a stand that the marriage can be solemnized only on getting instructions from the 2nd respondent regarding validity of judgment of
divorce of a foreign court in India. Relying on Augustine Kalathil Mathew v. Marriage Officer (Sub Registrar), Pathanamthitta [ 2016 (4) KLT 415]
this Court held that the marriage under the Special Marriage Act is liable to be solemnized in view of the fact that the 1st petitioner had obtained a
valid decree of divorce from a foreign court.
Having considered the contentions advanced, I am of the opinion that the contention raised that the decree of divorce under mutual consent is not a
decree on merits cannot be accepted. An irretrievable break down of marriage has evidently been accepted under Section 10A of the Indian Divorce
Act as a ground for divorce. Exhibit P4 decree admittedly is one issued on the ground that the marriage has irretrievably broken down. That the
parties have agreed on the point, cannot be a ground to hold that the irretrievable break down of the marriage is not found on merits. As the parties to
the marriage had admittedly submitted to the jurisdiction of the court in the USA and had obtained a decree of divorce on mutual consent, I am of the
opinion that the said decree is liable to be accepted by the marriage registrar exercising power under Rule 6 of the Kerala Registration of Marriages
(Common) Rules, 2008.
10.In the instant case the marriage between the petitioners has been solemnized according to the religious rites. The petitioners only seek a registration
of the said marriage under the Kerala Registration of Marriages (Common) Rules, 2008. In the above view of the matter, I am of the opinion that the
said application is liable to be acted upon and the marriage is liable to be registered in accordance with law.
11.There will accordingly be a direction to the 1st respondent to accept Exhibit P5 application and to take steps for registration of the marriage as per
the Kerala Registration of Marriages (Common) Rules, 2008.  The presence of the parties to ascertain their consent to the
registration of the marriage shall be obtained by video conferencing.  The authorised representatives of the petitioners shall appear before the 1st
respondent and make all necessary arrangements for the appearance of the petitioners through video conferencing and shall pay all fees as
required by law. The application preferred by the petitioners, the identity of the petitioners and the persons appearing on their behalf shall be duly
verified by the 1st respondent. Thereafter, the 1st respondent shall secure the attendance of the parties to the marriage through video conferencing
and shall verify that the application for registration of marriage is one made with the knowledge of the parties to the marriage. On being so satisfied,
the 1st respondent shall permit the authorised representatives of the petitioners to sign the marriage register on behalf of the petitioners and the
marriage certificate shall be duly issued to such authorised representatives.
12.However, it is made clear that the directions are issued considering the travel restrictions and the extreme urgency of the matter. The
representatives of the petitioners shall give an undertaking before the 1st respondent that the petitioners shall appear before the 1st  respondent
within one year from the date of registration of the marriage and sign the register maintained for the purpose. The petitioners shall, within one
month from the date of their next arrival in India, approach the 1st respondent and affix their signature personally in the register.
Writ petition is ordered accordingly.