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Judgment
Heard the parties.
As directed by this Court, the Respondent No. 3 has been produced in this Court by the Officer-in-Charge of Hindpiri police station. The Respondent No. 3 is represented by his counsel.
The petitioner has prayed for direction upon the Respondent No. 2, the Senior Superintendent of Police, Ranchi to produce Respondent No. 4 Sonali Kumari before this Court from the clutches of her father Respondent No. 3 -on the ground that the petitioner is legally married husband of the Respondent No. 4 but the Respondent No. 3 is not allowing her to live with the petitioner.
It has been stated that earlier there was love affair between the petitioner and Respondent No. 4 which culminated in their marriage.
In support of claim of their marriage the petitioner has brought a certificate (Annexure-3) appears to be issued u/s 16 of the Special Marriage Act, 1954 (Act XLIII of 1954).
Learned Counsel appearing on behalf of Respondent No. 3 submitted that the petitioner''s claim of marriage with the Respondent No. 4 is wholly false, baseless and malicious. The petitioner is a Muslim and Respondent No. 4 is a Hindu. There is no claim of solemnization of marriage either according to the Hindu ritual or Muslim law and custom. The marriage has also not been solemnized before the Marriage Officer as provided under the provisions of Special Marriage Act, 1954, under which certificate (Annexure-3) is said to be issued. He further submitted that there is not even the statement in the writ petition regarding the solemnization of marriage either in accordance with Hindu/Muslim rituals and customs or in accordance with the Special Marriage Act, 1954. The writ petition is thus wholly frivolous and baseless and the same has been maliciously filed with ulterior malafide motive to put the family of the Respondent No. 3 to unnecessary harassment and to damage their social prestige.
Learned Counsel appearing on behalf of petitioner submitted that though there is no statement regarding solemnization of marriage, yet the Marriage Officer has issued the certificate of marriage on his satisfaction. That is the legal evidence of marriage of the petitioner with Respondent No. 4. The respondents cannot dispute the said marriage in view of the said certificate issued u/s 16 of the Special Marriage Act, 1954.
Having heard learned Counsels, we examined the record, we find that the petitioner has not uttered even a word regarding the solemnization of marriage between the petitioner and Respondent No. 4. The only statement regarding marriage is that they had a ''Court marriage'' before Marriage Office in presence of independent witnesses on 19.05.2007. However in the certificate we do not find any mention regarding the solemnization of marriage at the office of Marriage Officer or in presence of Marriage Officer. The certificate (Annexure-3) reads as follows:
I Sushil Kumar Dutta hereby certify that Usman Ghani son of Mumtaz Ghani and Sonali Kumari daughter of Sunil Kumar Dev appeared before me this 16th day of April 2007 and that each of them in my presence and in the presence of three witnesses who have signed hereunder, has declared that a ceremony of marriage has been performed between them and that they have been living together as husband and wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under Act XLIII of 1954, the said marriage has, this 19th day of May 2007 been registered under this Act, having effect as from 19/5/07.
(Signature of Officer) Sd/-Sushil Kumar Dutta Marriage Officer under Act XLIII of 1954 For the district Purulia
Solemnization of Special Marriages is dealt with in Chapter-II of the Special Marriage Act, 1954 hereinafter referred as ''the said Act''.
Section-5 provides for notice of intended marriage. It reads thus;
when a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the Form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
It is to be noted that both the parties are residents of Ranchi (Jharkhand). None of them resided in Purulia (West Bengal).
The said Act further provides for marriage notice book and publication (Section-6), Objection to marriage (Section-7), Procedure on receipt of objection (Section-8), Powers of Marriage Officers in respect of inquiries (Section-9), Declaration by parties and witnesses (Section-11).
Section 12 of the said Act provides for "Place and form of solemnization" Sub-section 1 reads as follows:
(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.
(2) The marriage may be solemnized in any form which the parties may choose to adopt:
Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,--"I, (A), take thee (B), to be my lawful wife (or husband).
Section 13 provides "(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.
It is not the case of the petitioner that the said procedure prescribed for marriage before the Marriage Officer was followed. Had it been so the Marriage Officer would have issued certificate u/s 13 of the Act. The petitioner though has made a vague statement that there was court marriage between the petitioner and respondent No. 4. He has brought a certificate (Annexure-3) purportedly issued u/s 16 of the Act.
Section 16 of the Act prescribed procedure for registration of the Marriage celebrated in the form other than the marriage before the Marriage Officer. It would be clear on reading the provisions of Sections 15 and 16, under Chapter-III of the Act.
Section 15 -Registration of marriages celebrated in other forms.-Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e)the parties are not within the degrees of prohibited relationship; Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
Section 16-Procedure for registration.--Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned is Section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the Form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.
The certificate of registration, annexed by the petitioner also clearly mentions thus "ceremony of marriage has been performed between them and they have been living together as husband and wife since the time of their marriage". In the said certificate there is no mention of performance of marriage before the Marriage Officer as stated by the petitioner. The petitioner''s claim of ''court marriage'' is, thus, falsified by the said certificate (Annexure-3).
That apart, we find that the marriage was claimed to be registered on 19th May, 2007. The date of birth of the girl, as appears from examination admit card, is 26th February, 1988. The girl (Respondent No. 4) is, therefore, less than 21 years of age. The essential condition prescribed in Section 15 Clause (d) is that the parties must have completed the age of 21 years at the time of registration of marriage. There is, thus, apparent violation of Clause (d) of Section 15 of the Act. Section 24 Sub-section 2 provides that nothing contained in that Section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter -III may be declared to be of no effect if the registration was in contravention of any conditions specified in Clause (a) to (e) of Section 15.
Though, in the instant case, we are not concerned with the said issue and such declaration as to be made by different forum, we examined the relevant provisions of Act to test the so called marriage registration certificate (Annexure-3) which has been made basis for the relief, as prayed for in this petition.
We, therefore find no legal basis for the claim of the petitioner''s ''Court Marriage'' and issuance of certificate u/s 16 of the Act. Moreover, Respondent No. 3, the father of Respondent No. 4 has also disputed the factum of marriage between the petitioner and Respondent No. 4.
In view of the above and also in view of the said disputed position regarding the factum of marriage between the petitioner and Respondent No. 4, we find no ground for allowing the petitioner''s prayer.
This writ petition is accordingly dismissed.