The notice period prescribed under S.5 of the Special Marriage Act is mandatory and cannot be relaxed, and there are penal consequences for non-compliance.

JUDGMENT :

1. Petitioners who are employed in Dubai and Abudabi, had submitted Ext.P1 notice for their intended marriage under Special Marriage Act before the second respondent-Marriage Officer, Sub Registrar Office, Mathilakam, on 28.01.2020 by registered post. They were under the fervent hope that they would be able to come to India and get their marriage solemnised and registered immediately on expiry of the notice period. On account of the out break of Covid-19 pandemic they were compelled to work abroad and were unable to reach their home town as planned. In January 2021, they have come and submitted another notice Ext.P4. It is stated that they have to join duty abroad on 13.02.2021. Therefore they had approached the second respondent for taking steps for solemnization and registration of their marriage before completion of the notice period. The Sub Registrar rejected the request as per Ext.P5 letter stating that marriage can be solemnized only after the mandatory notice period prescribed in Section 16 of the Special Marriage Act except after 13.02.2021. Petitioners have therefore filed this Writ Petition challenging Ext.P5 order and seeking a direction to the second respondent to solemnize and register their marriage as applied for in Ext.P1 notice condoning the three months’ period mentioned in S.14 of the Special Marriage Act. According to them when already a notice was published calling for objections as against the proposed marriage between them and when there was no objection received from any corner the purpose for which notice is provided under the Act is achieved; there will not be any impediment in the marriage being conducted under the Special Marriage Act, though the said period prescribed in the Act is not over. They have also got a contention that the marriage can be solemnized online and their personal presence shall not be insisted.

2. Learned Government Pleader points out that the issue is settled by a series of judgments of this Court where it is held that the notice period prescribed under S.5 is mandatory. It is stated that Ext.P1 notice ceased to have any effect on expiry of three months. When the petitioners have submitted another notice Ext.P4 they would have to wait for another month.

3. Learned Government Pleader points out that in the judgment dated 23.01.2019 in W. P.(C).No.1838 of 2019 this Court has considered a similar issue where a direction was sought to the Sub Registrar to register the marriage before expiry of one month on the ground that one of the petitioners therein had to join duty immediately before the expiry of the notice period. That Writ Petition was dismissed rejecting the relaxation of the minimum period of notice as well as the request for conducting the marriage on video conferencing.

4. Heard Sri.Gangesh the learned Counsel for the petitioners and Smt.B.Vinitha the learned Government Pleader.

5. Though the learned counsel for the petitioners have relied on Ext.P9 judgment in W.P.(C).No.12762 of 2020, in support of the claim, the said judgment was only in respect of the registration of a marriage which was already solemnized in accordance with the customary rites. The said judgment cannot have any application in the present case.

6. The provisions in the Special Marriage Act, 1954, under S.5 mandates that the parties to the marriage which is intended to be solemnised under the Act shall give notice in writing to the Marriage Officer in the form specified in the Second Schedule. On receipt of the notice the Marriage Officer shall cause every such notice to be published as provided in S.6. Section 7(2) provides that on expiry of thirty days from the date of publication of the notice, the marriage may be solemnized, unless it has been previously objected to under sub-section (1). Sections 8 to 10 provide for the procedure on receipt of objections. The procedure for solemnisation and issuance of certificate of marriage are dealt with in S.11 to 13 which read as follows:

11. Declarati