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2005 Supreme(Raj) 1172
Rajasthan High Court
Honble PRAKASH TATIA, J.
Varindra Singh and Anr. - Appellant
Versus
State of Rajasthan - Respondents
S.B. Civil Writ Petition No. 1545 of 2005
Decided On : May 05, 2005
Vinod Bhadu, for Petitioners Rameshwar Dave, Dy. GA, for Respondent
Headnote:Hindu Marriage Act, 1955, Secs. 8 and 13; Registration of Hindu Marriage (Rajasthan) Rules, 1956 – Rejection of application for registration of marriage as one of the parties was not of Indian domicile – Petitioner No.2 was residing in Canada and was married – Obtained decree of divorce from Supreme Court of British Columbia for which certificate was issued – Contracted second marriage with petitioner No. 1 at Ganganagar in India according to Hindu law – Held – Sec. 2(1)(a) of the Act of 1955 makes the Act applicable to all persons who are Hindu by religion irrespective of the fact where they reside – Registrar of marriage committed illegality – The foreign judgement is binding u/S. 13 C.P.C. upon the parties as a conclusive judgement – Directed to register the marriage and issue certificate. (Paras 13, 14, 19 & 20)
As per sub-clause (c) of Section 13, any judgment delivered by the foreign court is conclusive between the parties and finally decided the controversy provided except in cases where the said court refuses to recongise Law of India. Therefore, if the foreign court has granted decree of divorce after satisfying itself about availability of the grounds for divorce as provided under Section 13 of the act of 1955 or declare the marriage void, according to the provisions of the Act of 1955, t hen that judgment decides the controversy once and for all between the parties and that judgment in view of Section 13 is a conclusive judgment between the parties. (Para 20)
(2). The petitioners have submitted an application for impleading state as party.
(3). It appears that the petitioners inadvertently did not implead the State of Rajasthan as party and now is seeking to implead it as party. The petitioner inadvertently impleaded the Registrar of Hindu Marriage, who is District Collector, Sri Ganganagar also, as party by name instead of impleading the Registrar of Hindu Marriages and District Collector, Sri Ganganagar as party and also failed to implead the State of Rajasthan as party. However, reply has already been filed by the Officer-in-charge of the State Government through Dy. Government Advocate, therefore, the application for impleading State as party is allowed. Amended cause title, which has already been filed, is taken on record. At the request for learned counsel for the parties, the matter is finally heard as the pleadings are complete.
(4). The petitioner No. 2 was residing in Canada and she was married. She obtained a decree for divorce from Supreme Court of British Columbia and for which a certificate has been issued on 6.10.2004.
(5). The petitioner No. 2 contracted second marriage with the petitioner No. 1 on 21.1.2005 at Sri Ganganagar in India. The Marriage ceremonies performed according to Hindu Law and, therefore, both the petitioners claimed that they are married according to the provisions of Hindu Marriage Act, 1955 (for short the ``Act of 1955). The petitioners submitted an application for registration of their marriage under the provisions of Section 8 of the Act of 1955 and the Rules framed thereunder known as Registration of Hindu Marriage (Rajasthan) Rules, 1956. The petitioners produced the copies of affidavits, passport, certificate of divorce etc. before the Collector who is Registrar of Hindu Marriage under the Rules of 1956. The District Collector cum Registrar of Hindu Marriage, Sri Ganganagar vide order dated 15.2.2005 rejected the petitioners application for registration of their marriage under the Act of 1955 on the grounds that one of the contracting party- petitioner No. 2 is not Indian Domicile as she is resident of Canada and since the divorce decree has not been granted under the Act of 1955 but has been granted under the Divorce Act Canada and has been granted by Supreme Court of British Columbia, therefore, the circumstance of marriage under the Act of 1955 and the Rules framed thereunder cannot be granted.
(6). According to learned counsel for the petitioners, so far as the controversy about domicile is concerned, this Court in S.B. Civil Writ Petition No. 2100/2002 (Smt. Radha vs. State of Raj. and Others) decided on 27.8.2002 held that where one of the parties is domicile in India, the marriage can be registered under the Act of 1955 and the Rules framed thereunder despite the fact that the other party is not domicile.
(7). According to learned counsel for the petitioners, the decree for divorce granted by a foreign court is also binding and the foreign judgment is conclusive unless it falls in exception of Section 13 CPC.
(8). According to learned counsel for the petitioners, have is not finding of the Registrar of Magistrate that the judgment of the Foreign Court, Supreme Court of British Columbia, is falling in any of the exception to Section 13. It is also submitted that by registration of the marriage of the petitioners, the Registrar of Marriages is not deciding the validity of marriage itself and he can issue a proof for marriage only and if the marriage is questioned, then that can be challenged by the concerned party to the marriage in the Court of law.
(9). Learned counsel for the respondent State submitted that the Registrar of Marriage has not committed any illegality in view of the fact that the Act of 1955 applies to the persons mentioned in Section 2 of the Act of 1955 and the Registrar of Marriage rightly held that since one of the party, petitioner No. 2, is not domicile in a St
