The Special Marriage Act, 1954, does not require either one or both parties to be citizens of India for a marriage to be solemnized under the Act, and the requirement of section 6(3) can be complied with by transmitting the notice to a Marriage Officer appointed by the Central Government in a foreign country, if any.

Kamlesh Sharma, J.—The petitioners are aggrieved of the order dated 15-7-1988of Special Marriage Officer, Shimla (Urban), Sub-Division, Shimla, appointed under the Special Marriage Act, whereby he has refused to solemnise their marriage under the Special Marriage Act on the ground that since petitioner No. 1 is a permanent resident of Germany, it is not possible to transmit a copy of notice to Marriage Officer of the District within whose limit, petitioner No I permanently resides, as provided under section 6 (3) of the Special Marriage Act He has assumed that no Marriage Officer under the Special Marriage Act has been appointed in Germany by the Government of India The order dated 15-7-1988 of Special Marriage Officer, Shimla, was challenged before the District Judge In appeal filed under section 8 (2) of the Special Marriage Act, but it has been dismissed as cot maintainable vide judgment dated 25-8-1988 passed by the District Judge, Shimla. Now, by way of this petition under section 227 of the Constitution of India the petitioners have prayed for quashing the order dated 15-7-1988 of Special Marriage Officer, Shimla and for directions to him to solemnise the marriage of the petitioners in accordance with Special Marriage Act.

2. I have heard learned Counsel for the parties and gone through the record. The admitted facts are that on 30-6-1988, both the petitioners jointly gave notice on the prescribed form under section 3 of the Special Marriage Act to the Marriage Officer, Shimla, District Shimla, of their marriage intended to be solemnised under the said Act As petitioner No. 2 has been residing in Shimla on the address given in the notice since his childhood, the Marriage Officer, Shimla, District Shimla, appointed under the Special Marriage Act, 1954, has the jurisdiction to solemnise the marriage of the petitioners under the said Act. Petitioner No. 2 is a Tibetain National though he is born, brought up and educated in Shimla, At the time of giving notice, he was 23 years of age and un-married. His occupation was business So far petitioner No 1 is concerned, she is a German National She was on tour to India and residing in Shimla from 9-4-1988 At the time of giving notice, she was 27 years of age and unmarried Her occupation is nursing, She had declared herself a permanent resident of Germany. All these particulars they had filled-in in the notice,

3. Before examining the legality of the impugned order of Special Marriage Officer, Shimla, it is necessary to refer to some provisions of Special Marriage Act to find out whether the marriage between the petitioners could be solemnised or not. Section 4 of the Special Marriage Act provides conditions relating to solemnisation of Special Marriage and is as under :— “4. Conditions relating to solemnisation of special marriage.—Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely i (a) Neither party has a spouse living ; (b) neither party— (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind, or (ii) though capable of giving a valid consent, has beep suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children ; or (iii) has been subject to recurrent attacks of insanity or epilepsy; (c) the male has completed the age of twenty-one years and the female the age of eighteen years ; (d) the parties are not within the degrees of prohibited relation ship : Provided that where a custom governing atleast one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship ; and (e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens