BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30/09/2008
CORAM
THE HONOURABLE Mr.JUSTICE D.MURUGESAN
AND
THE HONOURABLE Mr. JUSTICE M.SATHYANARAYANAN
Habeas Corpus Petition No.639 of 2008
and
Habeas Corpus Petition No.643 of 2008
B.Jagadeesh Chandra Bose ... Petitioner
Vs.
1. The Superintendent of Police
Kanyakumari District,
Nagercoil.
2. The Inspector of Police
Kulasekaram Police Station
Kanyakumari District.
3. Mani
4. The Inspector General of
Registration,
Govt. of Tamilnadu. ... Respondents
(4th respondent was impleaded suo-motu by the
Court)
Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying to direct the respondents to produce petitioner's wife Sheeja,
aged about 24 years before this Court.
Habeas Corpus Petition No.643 of 2008:
#M. Raju ... Petitioner
Vs.
$1. The Superintendent of Police
Kanniyakumari District.
2. The Sub-Inspector of Police
Anju Kirammam Police Station
Kanyakumari District.
3. Paul Rajarathnam
4. The Inspector General of
Registration,
Govt. of Tamilnadu. ... Respondents
(4th respondent was impleaded suo-motu by the Court)
Habeas Corpus Petition filed under Article 226 of the Constitution
of India praying to direct the respondents 1 and 2 to produce the detenue namely
Jeba Jenitha before this Court.
!For Petitioner in ... Mr.C.K.M.Appaji
HCP No.639/2008
For Petitioner in ... Mr.K.Mahendran
HCP No.643/2008
^For Respondents ... Mr.N.Senthurpandian,
1&2 in both HCPs Addl.Public Prosecutor.
For Respondent -4 ... Mr.T.Raja,
in both HCPs. Addl. Advocate General,
Assisted by Mr.Pala Ramasamy,
Spl.Govt.Pleader.
... Mr.M.Ajmal Khan,
Amicus Curiae.
- - - - -
:ORDER
(Order of the Court was made by D.MURUGESAN,J.)
By the common order in the above two habeas corpus petitions,
dated 02.09.2008, we have directed as follows.
“The petitioner by name M.Raju, S/o. Murugan of Manikkam Nagar, Kumara
Puram Thoppu, Akastiswaram Taluk, Kanyakumari District has approached this Court
with Habeas Corpus Petition No.643 of 2008 seeking for a direction to the
second respondent Sub-Inspector Police, Anju Kirammam Police Station,
Kanyakumari District to produce the body of the detenue namely “Jeba Jenitha”.
2.In support of the petition, it is alleged that he and the detenue were
fallen in love with each other for the past one year and after a clear
understanding, they decided to marry. They appeared before the Parasala Sub-
Registrar Office at Kerala and registered the marriage on 14/8/2008 and lived as
husband and wife.
3.While they were living in Kerala, the detenue wife of the petitioner
wanted to go back to her parents house to get consent for the marriage.
Accordingly, she went to her parents house on 20/8/2008 and thereafter, she was
not allowed to join with the petitioner. As she was illegally confined by the
third respondent, he gave a complaint on 23/8/2008 to the second respondent and
though it was received on 24/8/2008, no action was taken. Hence, he is
constrained to approach this Court by way of Habeas Corpus Petition No.643 of
2008.
4.When this petition came up for hearing on 29/8/2008, it has been
brought to our notice that similar petition has been filed by another petitioner
by name Jagadeesh Chandra Bose in Habeas Corpus Petition in H.C.P. No.639 of
2008.
5.Considering the facts and circumstances of the case, we doubted as to
under which provisions of law, these agreements were being registered?
Accordingly, this Court had directed the Superintendent of Police, Kanyakumari
District to enquire and submit a report as to details of the marriage agreements
that were registered in the said Registrar Office. Accordingly, a report dated
1/9/2008 is filed by the Superintendent of Police, Kanyakumari District, wherein
he had replied as follows:-
“As per Kerala Registration Rules, the Document No.707/2008 has been
registered in this Office and the executants of this agreement doesn’t get the
status of married couple by the above said deed. The agreement has registered
with the consent of the concerned parties. They have produced sufficient stamp
and fees for the registration.
The detenue cancelled the above noted Marriage Document No.707/2008
dated 14/8/2008 vide Marriage Cancellation Document No.760/-8 dated 26/8/2008 of
Sub-Registrar Office, Parasala, in which she has specifically stated that she
never lived with the petitioner as wife.”
6.However, the Superintendent of Police had not furnished the
details of such marriage agreements said to have been registered in the said
Sub-Registrar’s Office.
7.On the above factual background, we heard the counsel appearing
for the petitioners and the Additional Public Prosecutor for the respondents 1
and 2.
8.As far as Habeas Corpus No.643 of 2008 is concerned, the
petitioner claims that he has married the detenue and they lived as husband and
wife and there was co-habitation. Hence, the learned counsel had submitted that
the detenue should be secured and send along with the petitioner. However, we
are not inclined to pass such an order on the facts of this case.
9.First of all, even as per the communication of the Sub-Registrar,
Parasala dated 14/8/2008, it is seen that the agreement does not give any
marital status in law to both the petitioner and detenue. Mere registration of
marriage as has been done in this case cannot give any legal sanctity to the
alleged marriage. The petitioner cannot claim the custody of the detenue on
the ground that she is his wife. Further, the marriage certificate on which the
petitioner had placed heavy reliance had been cancelled by the subsequent
document dated 26/8/2008 registered in the same Office. In these circumstances,
the Habeas Corpus Petition cannot be ordered.
10.The petitioner in Habeas Corpus Petition No.639 of 2008 also
claims that he and the detenue by name Sheeja loved each other and due to love
affair, they decided to marry. They registered their marriage on 27/7/2008 in
Document No.463 of 2007 on the file of the Parasala Sub-Registrar,
Thiruvananthapuram and on the first week of August 2008, the factum of marriage
was leaked and the same was brought to the notice of the third respondent and
therefore, the third respondent forcibly took away the detenue from his custody
and in spite of his attempt to secure the detenue, he could not succeed and
therefore, he preferred a complaint to the Inspector of Police, Kulasekaram
Police Station on 23/8/2008. As the said complaint was not acted upon, a
representation was made to the Superintendent of Police, Kanyakumari District on
25/8/2008, but no effective steps have been taken to secure the girl. Hence
Habeas Corpus Petition No.639 of 2008 is filed.
11.In this case also, the report of Superintendent of Police,
Kanyakumari District dated 1/9/2008 is filed. On a perusal of the report shows
that pursuant to the order of this Court, enquiry was made and the
Superintendent of Police had received communication dated 30/8/2008 from Sub-
Registrar, Parasala which reads as under:-
“The detenue Sheeja says that the petition was filed by the petitioner only with
the ulterior motive to take over the detenue under his custody and she says that
she is not interested to live with him but she is willing to live with her
parents.”
12.Even though the detenue is not willing to go along with the
petitioner, having regard to the fact that the marriage itself is not recognised
under law and the marriage certificate that was registered in Parasala, Sub-
Registrar’s Office has no legal sanctity, the claim of the petitioner that he
is the husband of the detenue, cannot be accepted and accordingly, the detenue
cannot be ordered to be sent along with the petitioner. Hence,the Habeas Corpus
Petition is liable to be dismissed and accordingly the same is dismissed.
13.While hearing the matters, Mr. Ajmal Khan learned counsel who is
present in the Court had brought to our notice that similar marriage agreements
are registered in various Sub-Registrar’s Office in the Tamil Nadu as well.
14.This Court has posed the question as to how the Sub-Registrars
are entertaining such marriage agreements for registration. In fact, in Habeas
Corpus Petition No.639 of 2008, the petitioner is a converted Christian from
Scheduled Caste Shambavar Community and the detenue is a Christian Nadar
Backward Community. Whether the marrige can be performed either under the
Christian Marriage Act or under the Special Marriage Act itself is in question.
In these circumstances, mere registration of the marriage throw serious doubt
and that too in the very same Sub-Registrar Office. This Court had taken note
of the fact that in recent time, a tendency of creating fake marriages have
become popular and under the guise of such marriages, women are being indulged
in trafficking and for commercial exploitation. In fact, such marriage
agreements are being registered in the State of Tamil Nadu as well presumably
not for the intended purpose to live as husband and wife, but for some
extraneous purposes.
15.In these circumstances, we are of the considered view that the
Inspector General of Registration, Government of Tamil Nadu should be impleaded
as one of the respondents in both the Habeas Corpus Petitions to find out as to
the registration of such marriage agreements in the office of the Sub-
Registrar/Registrars in the statement of Tamil Nadu.
16.Accordingly, The Inspector General of Registration, Government of
Tamil Nadu is impleaded and he is directed to furnish the details of such
marriage agreement registered in the State of Tamil Nadu for the last one year
commencing from 1/1/2007. Such reports had to be filed before this Court giving
details of such registration on or before 26/9/2008.
17.Mr.Ajmal Khan learned counsel is also appointed as Amicus Curiae
to assist the Court to resolve the dispute.”
2.Pursuant to the above direction, the Inspector General of
Registration, Chennai, has filed a report giving a list of yearwise registration
of Marriage Agreements in the State of Tamil Nadu, which reads as under.
Sl.No. Name of the Registration Zone Year-2007 Year-2008 Total
1. Coimbatore Nil Nil Nil
2. Tanjore Nil Nil Nil
3 Salem Nil Nil Nil
4. Vellore 1 – 1
5 Chennai 1 1 2
6. Cuddalore 1 3 3
7. Tiruchy 10 6 16
8. Thirunelveli 229 123 352
9. Madurai 268 90 358
TOTAL 509 223 732
3.Apart from giving the above details as to the registration
of Marriage Agreements, the Inspector General of Registration has also stated
that there is no prohibition in the Registration Act or the Stamp Act to refuse
outright the documents presented for registration. He would also state, as
early as on 21.04.1981, the Inspector General of Registration had issued orders
for Registering Officers to desist from registering such marriage agreements.
Subsequently, another order was also passed on similar lines by the Inspector
General of Registration on 15.12.2003 and inspite of these two orders, it is
still found that such documents are continuously registered and the same is
brought to the attention of the Inspector General of Registration. He would
also state that such marriages are not legally valid and registration of such
marriages will create unsolvable problems not only for the executants but also
to their children.
4.On the above backdrop, we heard Mr.M.Ajmalkhan, learned
counsel, appointed to assist the Court and Mr.T.Raja, learned Additional
Advocate General.
5.Mr.M.Ajmal Khan, amicus curiae, took us extensively to
various provisions of Hindu Marriage Act, 1955, The Special Marriage Act, 1954,
The Indian Christian Marriage Act, 1872, the Indian Contract Act, 1872, the
Registration Act, 1908 as well as the Tamil Nadu Hindu Marriages (Registration)
Rules, 1967. In nutshell, he would submit that each of the Acts by itself is a
separate Code, not only providing for solemnization of the marriage but also the
manner by which such marriages should be registered by the empowered Registrars.
He would submit that as none of the provisions of the above Acts recognize
registration of marriage agreements, without there being proper marriage as per
the respective enactments and without there being a proper application made, the
procedure adopted by the various Registrars in entertaining such marriage
agreements and registering the same would only pave way for abuse of such
documents, resulting in abuse of the girls who are shown as a party to the
agreements. He would, therefore, submit that in the absence of any legal
sanctity attached to such marriages, it would be proper and justifiable to pass
an order of injunction restraining all the Registrars/Sub-Registrars from
entertaining and registering such marriage agreements.
6.Mr.T.Raja, learned Additional Advocate General, on the other
hand, would submit that there is no provision in the Registration Act or the
Rules made thereunder prohibiting registration of documents. He would rely upon
Section 34 of the Registration Act, which contemplates enquiry by the
Registering Officer before the registration and Rules 54 and 55 of the
Registration Rules which empower the registering authority to verify as to
whether the parties appearing or about to appear before him are not the persons
they profess to be; whether the document is forged; whether the person appearing
as a representative, assign or agent, has no right to appear in that capacity,
whether the executing party is not really dead, as alleged by the party applying
for registration; or that the executing party is a minor or an idiot or a
lunatic. Hence, learned Additional Advocate General would submit that in the
absence of provisions contrary, the registering authority cannot refuse to
register the document presented before him. He would also submit in this
context that an amendment was brought in by the Tamil Nadu Act 48 of 1997 with
effect from 28.08.1997 inserting Section 22-A in the Registration Act empowering
the State Government to notify in the Tamil Nadu Gazette declaring that
registration of any document or clause of document is opposed to public policy.
Pursuant to the said provision, the Government Tamil Nadu issued G.O.Ms.No.150
Commercial Taxes Department, dated 22nd September, 2000 declaring certain
documents and registration of such documents would be opposed to public policy.
7.The Apex Court had struck down Section 22-A of the Act in
the Judgment reported in 2005 (4) CTC 606 – State of Rajasthan vs. Basant
Nahata. Similarly, the Notification, dated 22.09.2000 was also quashed by the
High Court and, therefore, the said notification was revoked in G.O.Ms.No.1l39,
Commercial Taxes Department, dated 25.07.2007. In view of the above, learned
Additional Advocate General would submit that there is no provision as on today
restraining the registering authority from entertaining Marriage Agreements for
registration. He would also submit that nevertheless, having regard to the fact
that registrants used to enter into agreements to live as husband and wife,
without proper marriage being duly solemnized and registered under the relevant
marriage Act and when there are specific provisions in the Marriage Acts for
dissolution of marriage, the registrants unaware of the same entering into
agreements for divorce, the Government proposed to bring in an amendment to
Registration Act by inserting Section 21-A and by that amendment, among other
things, the registering officer is directed not to register any document
evidencing any agreement relating to marriage or to live together as husband and
wife, divorce, restraining marriages, trade, legal proceedings or bonded labour.
Hence, learned Additional Advocate General has expressed the difficulty of the
Government to presently directing the registering authority to refrain from
registering marriage agreements. He would also draw our attention to Section
7(A) of the Hindu Marriage Act relating to Suyamariyathai and seerthiruthatha
marriage. According to the learned Additional Advocate General, in view of the
said provision, a marriage, if performed under Section 7-A of the Hindu Marriage
Act, can be registered in the manner done presently and therefore such
registration of marriage agreement cannot be said to be against law.
8.We have carefully considered the above submissions.
9.We are conscious of the fact that we are dealing with the
petitions filed under Article 226 of the Constitution of India relating to
illegal custody/detention. As far as the facts leading to the present habeas
corpus petitions are concerned, we have referred the same in the earlier
portion of this order, and, therefore, we are not once again reproducing the
facts.
10.The concern of the Court to direct the Inspector General of
Registration to furnish details as to the number of Marriage Agreements
registered through out the State of Tamil Nadu from 01.01.2007 onwards was
obvious. In the given two cases, when such marriage agreements were registered
and when habeas corpus petitions were entertained and the Superintendent of
Police of Kanyakumari District was directed to file a report, in one case, the
alleged detenue, who was also a party to such marriage agreement, had written to
the Superintendent of Police stating that the petition was filed by the alleged
husband with an ulterior motive to take the her under his custody and she is
not interested to live with him. She has also expressed her willingness to live
with her parents. In another habeas corpus petition, though the petitioner
claimed that a marriage agreement was registered on 14.08.2008, the same was
cancelled by the detenue (the girl) on 26.08.2008 indicating that the marriage
agreement was either forceful or fake. Hence, we entertained a serious and
genuine doubt over the registration of such marriage agreements, as to whether
such marriage agreements are registered either with the consent of the concerned
girls; or only in order to misuse such girls under the cover of the registration
of the marriage agreements and without resorting to the various provisions of
the respective Laws governing marriages and the consequential registration.
11.Only under these circumstances, we directed the Inspector
of General of Registration to submit a report and the registration of marriage
agreements is not a welcoming factor. As many as 732 marriage agreements were
registered in various districts, especially in Tirunelveli Zone alone, in the
year 2007, 229 marriage agreements were registered, apart from 123 in the year
2008 and in all 352 marriage agreements were registered. In Madurai Zone,
during the year 2007, 268 of such marriage agreements have been registered and
in the year 2008, 90 such agreements were registered and in all 358 agreements
were registered.
12.The above particulars take us to the rival contentions of
the respective counsel. The marriage agreements are produced before the Sub-
Registrars or the Registrars, as the case may be, and they are registered. The
marriages are not solemnized in accordance with the respective enactments.
Hence marriages themselves are not valid as per law and a mere registration of
such marriage agreements will not give any legal status to the spouses.
13.Insofar as the Hindu marriages are concerned, Section 5 of
the Hindu Marriages Act contemplates conditions for a Hindu marriage, section 7
relates to ceremonies and Section 8 relates to registration of Hindu Marriages.
Unless conditions under Section 5 relating to a valid consent and either of the
spouse is not insane, the bride groom has completed 21 years and bride completes
18 years and they are not within the prohibited degrees and are not sapindas,
marriage cannot be solemnized. Unless there is solemnization marriage, it
cannot be performed as per the ceremonies under Section 7 and consequently
registration of such marriage under Section 8 cannot be done. Rule 5 of the
Tamil Nadu Hindu Marriage (Registration) Rules, 1969, contemplates compulsory
registration of marriage and the mode of application for registration.
Applications are to be made in Form-I, along with application in Form-III, for
registration of Hindu Marriage on the date of solemnization and a declaration is
also provided as per Rule 10 in Form No.III by the husband and wife where the
marriage is registered on the date of solemnization. Unless conditions under
Sections 5 and 7 are fulfilled, the marriage cannot be registered under Section
8 and the registration of the marriage should also be in conformity with the
Rules referred to above. Without following the above, a Hindu Marriage cannot
be registered. Further, registration of the marriage cannot be equated to a
registration of marriage agreement.
14.Under The Indian Christian Marriage Act, Section 60
contemplates conditions of marriage, where both the spouses should be Christians
and again the bride groom must be over 21 years and the bride should be over 18
years, apart from some other conditions. Part-VI of the said Act contemplates a
notice of intended marriage before registration of marriage, filing a copy of
the notice to be entered into the marriage notice book, issue a certificate of
notice and the oath made thereon, issue an oath before the issue of certificate,
the consent of father or guardian and thereafter filing petition for
registration. For a false oath, declaration, oath or a certificate for
procuring marriage, a penalty is also contemplated under Section 66 of the Act.
Hence, a procedure is contemplated for the marriage and for the consequential
registration of such marriage and issue of certificates.
15.In terms of Section 3 of the Special Marriages Act,
marriage officers are appointed by the Government by notifying in the official
gazette. Section 4 contemplates conditions relating to solemnization of special
marriages. Section-5 contemplates notice to intended marriage for a period not
less than 30 days immediately preceding the date of such notice. Section 6
contemplates notice book and publication. Section 7 contemplates objection to
marriage. Section 8 contemplates procedure on receipt of petition and an
enquiry as contemplated by the Marriage Officers in terms of Section 9.
Thereafter, the marriage is registered and a certificate could be issued under
Section 3. A procedure is also contemplated under Chapter-III for registration
of marriages celebrated in other forms.
16.On the above backdrop of the specific provisions, any
marriage, which is not solemnized as per the respective provisions of Laws,
cannot be recognized as a valid marriage and consequently the same cannot be
registered. Further, such marriage registration must be by following the
procedures provided under the respective enactments. Under
these circumstances, a mere presentation of documents for registration of
marriage cannot by itself confer any legal status to the parties and such
registration of marriage would be contrary to the procedures provided under the
respective enactments.
17.Insofar as the submission of the learned Additional
Advocate General as to the Suyamariyathai and Seerthiruththa marriages is
concerned, here again, under Section 7-A, the procedure as contemplated under
the Section to recognize the marriage alone is dispensed with and made optional.
Nevertheless, in terms of Section 8 of the Act, registration is compulsory and
must be done only in accordance with Section 8 of the Act and the corresponding
rules, namely Rule 5 and Form Nos.I and II of the Rules.
18.Of course, Section 22-A of the Act was struck down by the
Apex Court on the ground that the term “opposed to public policy” was vague and
consequently the Government Order G.O.Ms.No.150, Commercial Taxes Department,
dated 22.09.2000 was also quashed by this Court. In our opinion, in terms of
Rule 162-A of the Registration Rules, no registration officer shall accept for
registration any document or service agreement evidencing bonded labour or
transaction constituting any offence under any law or opposed to public policy
or morality. Though Section 22-A was struck
down on the ground that the power conferred on the Government to direct the
Registrars not to register certain documents as opposed to public policy, in the
teeth of other conditions, particularly transaction constituting an offence
under any law or morality, the registration of marriage agreement without
following any of the procedures of the respective enactments cannot be
permitted. Of course, knowing the serious implications of registration of such
marriage agreements, the Government themselves have come out with a draft
amendment proposing to insert Section 21-A in the Registration Act whereby under
Section 21-A(3), directing the registering officer not to register any document
evidencing any agreement relating to marriage or to live together as husband and
wife, etc.
19.Under these circumstances, in order to curtail the misuse
of such marriage agreements, whereby the hapless women may also
possibly be misused, we deem it necessary that the Registrars and Sub-
Registrars under the control of the Inspector General of Registration,
Government of Tamilnadu, should be restrained from entertaining any marriage
agreements produced without following the mandatory provisions of respective
enactments and consequently registering them. Accordingly, there will be an
order of injunction. This order shall be communicated by the Inspector General
of Registration to all the Registrars and Sub-Registrars empowered to register
the marriages under respective enactments applicable to the parties to such
registration of marriages. We place our appreciation on record as to the
valuable assistance rendered by Mr.M.Ajmal Khan, learned counsel, appointed by
this Court as amicus curiae to assist the Court.
20.With the above order and direction, the habeas corpus
petitions shall stand dismissed.
gb.
1.The Inspector General of Registration,
Government of Tamil Nadu,
Chennai-4.