Marriage Certificate; Thankamma Koshy Vs. State [Kerala High Court, 19-08-2016]

Special Marriage Act, 1954 – Marriage between two different religions – Marriage Certificate issued by the Organizations – Whether Valid – Held, When the parties belong to two different and distinct religions, a legally valid marriage could be conducted only by having the same registered under the Special Marriage Act. The practice of issuing Certificates by responsible Organizations like the SNDP Yogam is unbecoming of their social status. Appropriate orders shall be issued regulating the manner in which Certificates are to be issued by the Organizations like the SNDP Yogam, Sivagiri Mutt and other similar Organizations certifying that marriages between persons belonging to two different religions were conducted under the auspices of such Organizations.

Registration of Marriages (Common) Rules, 2008 (Kerala) –  Marriage Certificate issued by the Organizations – There could be other instances where the parties continue to live as husband and wife under the mistaken belief that their relationship was legal and valid. The progeny of such marriages would however be illegitimate. Problems would arise regarding succession where one or the other of the parties die or where the parties separate because of disputes between them. The situation that may arise could give rise to various other complications also. Therefore, it is only appropriate that the local authorities as well as such social Organizations exercise restraint and issue Certificates of like nature only after ensuring that a legally valid marriage has taken place.


IN THE HIGH COURT OF KERALAAT ERNAKULAM

K. SURENDRA MOHAN & MARY JOSEPH, JJ.

W.P.(Crl.) No. 294 of 2016

Dated this the 19th day of August, 2016

PETITIONER(S)

THANKAMMA KOSHY

BY ADVS.SMT.P.SAREENA GEORGE SMT.ANN SUSAN GEORGE

RESPONDENT(S)

1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

2. SUB INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION, PIN 689 583.

3. DISTRICT POLICE CHIEF, ERNAKULAM RURAL PIN 682 028.

4. SUB INSPECTOR OF POLICE, VALIYAMALA POLICE STATION, PIN 683 243.

5. ROHIT

R1 TO R4 BY GOVERNMENT PLEADER SRI. N. SURESH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R.

JUDGMENT

Surendra Mohan, J.

The grandmother of Neenu Elizabeth Abraham, aged 19 years, who is the daughter of her eldest son, Abraham Koshy, has filed this writ petition seeking the issue of a writ of habeas corpus for the release of the detenue from the custody and detention of the 5 th respondent.

2. The petitioner’s son, Abraham Koshy died on 6.7.2002 when his daughter was 5 years old. The petitioner has been residing with the family of her younger son Thomas Koshy at Nalanchira, Thiruvananthapuram. The mother of the detenue got remarried in the year 2004 and is in Kuwait along with her husband. The detenue had studied up to her 10th standard in Kuwait. For her plus 2 education, she was brought to India. After completing her plus 2 course, she has joined a degree course, B.A. Animation, in the School of Media and Designing, Puthupadi, which is functioning under the Eldo Mar Baselious College, Kothamangalam. She was attending to her studies residing in a Home Stay conducted by one James Villayil, Vulavoor Junction, Puthupadi. During vacations, the detenue used to be either in the house of the petitioner or at her mother’s house.

3. According to the petitioner, she got information in the above circumstances on 11.8.2016 from the owner of the Home Stay at Puthupady that the detenue had left the place without their permission. Both the petitioner and her younger son tried to contact her over mobile phone. In the evening when they contacted her, she told the petitioner’s younger son that she was on her way to Chengannur to her mother’s paternal home. However, she did not reach there. In the above circumstances, she complained to the police. Crime No. 1875 of 2016 was registered. Thereafter she received information that she was abducted by the 5 th respondent who is working as a taxi driver at Thiruvananthapuram. The investigation conducted by the Police revealed that she was at a house in Valiyamala along with the 5 th respondent. It is alleged that though the petitioner’s family members had gone to the house of the 5 th respondent, he did not permit them to see the detenue. Therefore, contending that the 5 th respondent had no right to detain the detenue, this writ petition is filed.

4. On 16.8.2016, we had passed an order directing production of the detenue before us today. Accordingly, the detenue has appeared before us along with the 5 th respondent. We have interacted with the detenue. She has handed over to us in Court, a Marriage Certificate issued by the SNDP Yogam, Nedumangad Union, Pazhakutty P.O., Nedumangad, SNDP Yogam Branch No. 1386-Chandramangalam. The Certificate is dated 13.8.2016. It is certified by the Secretary of the SNDP Yogam that the marriage of the 5 th respondent to the detenue was solemnized under the auspices of the Branch on 12.8.2016 between about 9.30 a.m. and 10 a.m. at the SNDP Sakha office, Anad. It is also stated that the marriage is registered in their Marriage Register Book No. 1. The detenue has also produced before us the acknowledgment cum receipt for money dated 12.8.2016 issued under

Section 51 of the Special Marriage Act, 1954

evidencing the fact that the petitioner and the 5 th respondent have given notice of their intention to get married. Therefore, we are informed that the parties would be in a position to register their marriage on any day after 12.9.2016. The detenue as well as the 5 th respondent also informs us that they have been living together as husband and wife ever since their marriage on 12.8.2016 believing that the said marriage was legal.

5. We have permitted the petitioner to interact with the detenue in Court. After such interaction, the detenue maintains that she has got married to the 5 th respondent and that she wants to live her life with him. However, we notice that no legally valid marriage has taken place between the detenue and the 5 th respondent.

6. It is true that the SNDP Yogam, Nedumangad Union has issued a Certificate certifying that the detenue and the 5 th respondent had got married on 12.8.2016. But, the said Certificate is misleading and has no validity in the eye of law. This is for the reason that the 5 th respondent is a Hindu while the detenue is a Christian. As per the Certificate, the marriage is alleged to have been conducted at the Sakha Office. How a marriage could be conducted at the Sakha Office of the SNDP Yogam is also not clear. We do not know on what basis such a certificate has been issued by the SNDP Yogam certifying that the parties had got legally married. We do not find from the Certificate that even a traditional marriage has been conducted. What appears from the same is only that the 5 th respondent and the detenue had got married at the SNDP Sakha Office. No law, religious custom or practice, to our knowledge, permits such a marriage.

7. It is a matter of concern for us that an organization like the SNDP Yogam, which is expected to conduct its activities in a legal and responsible manner, has issued such a misleading certificate as in this case. The detenue and the 5 th respondent have been living together as husband and wife under the mistaken belief that they had got legally married and that they were husband and wife. The SNDP Yogam ought to have known that a marriage to be legally valid should either be conducted in accordance with the traditional and religious rites of a community or should be in accordance with the provisions of the law relating to marriages. When the parties belong to two different and distinct religions, a legally valid marriage could be conducted only by having the same registered under the Special Marriage Act, 1954. The practice of issuing such misleading Certificates by responsible Organizations like the SNDP Yogam is, to say the least, unbecoming of their social status. We are constrained to make the above observation because of the fact that, we have noticed in another case, that was disposed of by us, after having a proper marriage under the provisions of the Special Marriage Act conducted, that the parties had earlier got married as per some ceremony conducted at the Sivagiri Mutt. On the basis of a Certificate issued by the said institution, the marriage was also registered under the provisions of the