Can Registration of marriage be denied to one of the couples being non-Indian?
Extra ordinary jurisdiction of the High Court under Article 226 of the Constitution of India was invoked by the petitioners for direction to the Registrar to register their marriage.
Background
The petitioners are claiming themselves to be a Hindu married couple and petitioner No.1 Ashwani Sharad Pendese is a resident of India, while the petitioner No.2 Singh Manohar Tej is a resident of Belgium. Both are seeking direction from the High Court to direct Registrar of Marriage to register their marriage and issue a marriage certificate to them. The Registrar has refused to register their marriage observing that their marriage cannot be registered because the petitioner No.2 is a Foreign National and he is not a resident of India.
Issue
Whether the Registrar of Marriage can refuse to register a marriage only on the ground that one person of the couple is not citizen of India?
Whether denial of registration to a foreign national, who solemnized marriage in India amounts to violation of his right of equality under Article 14 of the Constitution of India?
Facts
Both petitioners are claiming themselves as Hindu & state that their marriage is performed as per the Hindu rites and rituals, provided under the Hindu Marriage Act, 1955.
Arya Samaj, Ajmer has issued a certificate in this regard and thereafter, they submitted an application on 20.01.2010 before the Registrar of Marriage for getting their marriage registered and obtaining a marriage certificate but it was refused.
Objection of the Respondent State
The respondents had submitted a very short reply with regard to the maintainability of the petition only, on the ground of Section 3 of the Rajasthan Compulsory Registration of Marriages Act, 2009. Sole objection of the Respondents was one of the persons in the couple is not a citizen of India. Hence, their marriage cannot be registered, as per Section 3 of the Act of 2009.
No valid proof of marriage has been submitted by the respondents.
The certificate issued by Arya Samaj; Ajmer is not a valid certificate of marriage as per judgement of Allahabad High Court given in the case of Ashish Morya Vs. Anamika Dhiman reported in 2023 DMC 156 (All).
Observation of the Court
Section 1 of the act says Hindu Marriage Act (HMA) is applicable to the whole of India & to Hindus domiciled outside the territories.
Meaning thereby this Act is applicable upon both the Hindus, domiciled in the territories to which the Act extends & also to those who are outside the territories.
Section 8 of the Hindu Marriage Act, 1955 deals with the process of Registration of Hindu Marriages and mechanism have been provided for the State Government for compulsory registration of the marriages.
But it nowhere provides that a foreign national Hindu cannot get his marriage registered in India, if he/she has solemnized marriage, as per the requirement of Section 5 and 7 of the Act of 1955.
Hence, it is clear that provisions contained under Section 3 of The Rajasthan Compulsory Registration of Marriages Act 2009 are not in consonance with the provisions contained under Section 8 of the Hindu Marriage Act 1955.
On perusal of the format for registration of marriage as applicable in Rajasthan it is found that nowhere it is mentioned that both the bride and the bridegroom must be citizens of India.
As such denial of registration of a married couple only on this ground that one of them is not a citizen of India is not sustainable in the eye of law and the same is contrary to their own application form.
Similar issue came before various High Courts of India & looking to the legal pronouncements, it is explicit and ipso facto clear that for getting registration of marriage, it is not necessary that the party must be Citizen of India. The issue No.1 is answered in negative.
Fundamental rights are the basic human rights, exclusively reserved for the citizens of India and the same are not available to foreign nationals.
Except fundamental rights, the other rights are available not only to the citizens of our country but the same are available to the non-citizens as well.
The fundamental rights for foreigners in India are conditional and the same are not absolute, they can be subjected to reasonable limits rather than absolute.
Except for the rights protected by Article 20 and 21 of the Indian Constitution, the rest rights can be suspended during operation of any national emergency.
The constitution guarantees these rights without prejudice against any individual. They are meant to spread the concept of political democracy. They defend the people’s freedom and liberties.
Denial of registration of marriage to the petitioner No.2, being a foreign national, amounts to violation of Right to Equality (Article-14). The issue No.2 is answered in affirmative.
Observation of the Court on Objection of the State
If the parties applying for registration of marriage proves that they have performed a valid marriage within the territory of India, as per the provisions contained under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954, they can apply for registration of their marriage and the Registrar of Marriage cannot refuse or deny to register their marriage and issue certificate of marriage.
In the present case, two objections have been raised by the respondents for denying registration of marriage of the petitioners. The first objection is that one of the petitioners i.e. the petitioner No.2 is not a citizen of India, this objection is not sustainable for the reasons stated in the previous paragraphs.
The second objection is that no valid proof of marriage has been submitted by the respondents, as per the terms of Sections 5 and 7 of the Hindu Marriage Act, 1955. If the petitioners submit valid proof about their marriage, in terms of the provisions contained under the Act of 1954, the respondents are supposed to register their marriage with immediate effect without any further delay.
Order
This writ petition stands disposed of with directions to Marriage Registrar to register the marriage of the petitioners and issue them the certificate of registration of their marriage, subject to the satisfaction that the petitioners have solemnized valid marriage.
Direction to the State
A general mandamus is issued to the respondents and the Chief Secretary of the State of Rajasthan to amend their guidelines and the requisite format of application for registration of marriage.
The above officials of the State and respondents are further directed to take steps for editing the requirement on the e-portal under the Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 to ensure that the requirement of the parties being citizens of India is not insisted upon, if the parties concerned submit a valid proof of their marriage strictly in accordance with law.
The Chief Secretary and the Principal Secretary, Department of Economics and Statistics, Government of Rajasthan are further directed to take steps for compliance of the above directions within a period of three months from the date of receipt of this order
Clarification of the Court
Court has not expressed its opinion about any other rights of the non-citizens and foreign nationals, which are obviously subject to the restrictions provided under the Constitution of India and other laws applicable within the territory of India
Seema Bhatnagar
