IMPORTANT POINT
It is not permissible to register a marriage solemnized outside India between an Indian citizen and a foreign national under Special Marriage Act.

JUDGMENT

Is it permissible to register a marriage solemnized outside India between an Indian citizen and a foreign national under the Special Marriage Act?

2. The 1st petitioner, an Indian citizen, married the 2nd petitioner, an Indonesian citizen, on 01.02.2014 at the office of the Religious Affairs Republic, Jakarta, Indonesia. They have a child born in their wedlock. Currently, the petitioners are residing in Poomangalam Grama Panchayath, Thrissur. To formally recognise their marriage, the petitioners have submitted Ext.P3 joint application before the Marriage Officer (the 3rd respondent) to register their marriage under the Special Marriage Act. Instead of registering the marriage, the 3rd respondent has sought for a clarification from the District Marriage Officer. Regrettably, the 2nd respondent has not responded to the inquiry. The petitioners have fulfilled all the conditions stipulated under the Special Marriage Act. The refusal on the part of the respondents to register the petitioners’ marriage is violative of Article 21 of the Constitution of India. Hence, the writ petition.

3. Heard; Sri. Jinish Paul, the learned counsel for the petitioners, Smt.Vidya Kuriakose, the learned Government Pleader, Sri. T.C. Krishna, the learned Deputy Solicitor General of India and Sri.Thomas C. Abraham, the learned Amicus Curiae.

4. Ext.P1 marriage certificate proves that the petitioners’ marriage was solemnised according to the civil laws of Indonesia. The petitioners now desire to get their marriage registered as per the provisions of the Special Marriage Act.

5. The preamble of the Special Marriage Act states that it is an Act to provide a special form of marriage in certain cases and for registration of such and certain other marriages and for divorce. Furthermore, Sub-Section (2) of Section 1 of the Act states that the Act applies to the whole of India and to the citizens of India domiciled in the territories to which the Act extends. Chapter II of the Act delineates the procedure for the solemnisation of special marriages, and Chapter III lays down the procedure for the registration of marriages celebrated in other forms.

6. It is pertinent for the case at hand to juxtapose the provisions of the Special Marriage Act with that of the Foreign Marriage Act.

7. The preamble of the Foreign Marriage Act, 1969, reads as follows:

“An Act to make provision relating to marriage of citizens of India outside India”.

8. Section 2(c) of the Foreign Marriage Act defines a foreign country as a country or place outside India. Likewise, Sections 17, 23, and 24 of the said Act deal with the registration of foreign marriages solemnized under other laws, the recognition of marriages solemnized under the law of other countries, and the certification of documents of marriages solemnized in accordance with local law in a foreign country, respectively.

9. On a comparison of the provisions of the Special Marriage Act and the Foreign Marriage Act, it is apparent that a marriage between parties, of whom at least one is a citizen of India, can be solemnised and/or registered or certified before a Marriage Officer in a foreign country under the provisions of the Foreign Marriage Act and a marriage between two persons can be solemnised and/or registered in India under the provisions of the Special Marriage Act.

10. While considering the validity of a marriage performed in a foreign country, a Bench of this Court in Gracy and others v. P.A.Mathiri and others (2005 KHC 948) has held as follows:

“3. The Foreign Marriage Act generally covers the marriages performed abroad where one of the parties alone is an Indian citizen. The Act covers mainly four types of factual situations; (1) the marriage solemnized before the Marriage Officer appointed by the Government of India in the foreign country, in accordance with S.4, 5, 9, 11 and 13; (2) the deemed solemnization under S.17; (3) recognition of marriages solemnized under the law of the foreign country where th