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2022 Supreme(Online)(KER) 39685
HIGH COURT OF KERALA
V. G. Arun, J
SHAN S – Appellant
Versus
THE MARRIAGE OFFICER – Respondent
WP(C)/17818/2022
R.V.SREEJITH, ADVOCATE GENERAL OFFICE KERALA, SRI. P. S. APPU - GP, ADV. SHYAM PADMAN, ADV LAYA MARY JOSEPH
A statutory requirement may be relaxed when compliance is rendered impossible by circumstances beyond control, allowing alternative proof to facilitate the legal process, especially in marriage matters.
Headnote:
Marriage - Writ Petition - Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, Sections 3; Notaries Act, 1952, Section 14 - The court permitted a second petitioner to submit an affidavit as proof of single status due to the impossibility of producing a non-impediment certificate from a non-member country.
Fact of the Case:
The petitioners, one Indian and one Canadian citizen, sought to marry online due to inability of the Canadian citizen to appear in person for solemnization. Delay was caused by the requirement for a non-impediment certificate, which the Canadian Embassy was unable to provide due to local laws.
Finding of the Court:
The court recognized the impossibility of fulfilling the requirement for the non-impediment certificate and accepted the alternative of a notarized affidavit based on the powers granted under relevant Indian statutes, emphasizing the need for legal flexibility in marriage formalities.
Issues: Whether the second petitioner could submit an affidavit as a substitute for a non-impediment certificate, and if online solemnization of marriage is permissible.
Ratio Decidendi: The court applied the doctrine of impossibility and relevant statutory provisions to establish that where legal requirements cannot be fulfilled due to external circumstances, alternatives should be considered to facilitate the rights of the parties involved.
Final Decision: The court allowed the affidavit submission and permitted online solemnization of the marriage subject to conditions.
JUDGMENT
The first petitioner is an Indian citizen and the second petitioner, a Canadian citizen with an Overseas Citizen of India card. Being desirous of entering into matrimony, the petitioners gave Exhibit P1 notice of intended marriage. Based on Exhibit P1 an intimation was sent to the petitioners, requiring them to appear on 22.5.2022 for solemnisation of the marriage. In the meanwhile, the second petitioner had to rush back to Canada at her employer’s behest. The second petitioner therefore requested the respondent to permit her to appear through online mode. The respondent having refused to accede to the request, this writ petition is filed seeking the following reliefs;
“I. to issue a writ of mandamus or any other appropriate
ii. to issue a writ of mandamus or any other appropriate
pass orders on Exhibit P4 as expeditiously as possible and at any rate within a time frame to be fixed by this Hon’ble Court.”
2. Adv.R.V.Sreejith appearing for the petitioner submitted that, right of an intending spouse working/residing abroad, to get his/her marriage solemnized by appearing through virtual mode, is no longer res integra in view of the directions in Exhibit P7 order of the Division Bench. It is submitted that ,after Exhibit P7 order, a series of judgments have been rendered, granting permission for solemnization of marriage, by one spouse appearing virtually. It is pointed out that the only distinctive feature of the case at hand is that the second petitioner is a Canadian citizen. Therefore, ‘a non- objection and bachelorhood certificate' to prove her single status has to be obtained from the Canadian Embassy in India. The request in that regard submitted by the second petitioner was answered by the Canadian Embassy expressing its inability, since Canadian law neither requires nor provides from issuance of non- objection and bachelorhood certificate. It is contended that the second petitioner cannot be compelled to perform the impossible task of producing bachelorhood certificate and should, in the alternative, be permitted to produce an affidavit as to her single status, notarised by an Attorney in Canada.
3. Learned Government Pleader pointed out that, Exhibit R1(a) order mandates the production of non-objection and bachelorhood certificate from the Embassy, if one of the applicants is a foreign national. On being informed about this requirement, the second petitioner produced Exhibit R1(b) certificate, the relevant portion of which reads as under;
“Canadian law neither requires nor provides for the issuance of such certificates. Therefore, the High Commission of Canada in New Delhi, is not in a position to issue the certificate required.”
In view of the mandatory stipulation in Exhibit R1(a), it is impossible to solemnize the marriage, without the certificate. It is contended that, affidavits apostilled in a foreign country will be acceptable only if the foreign country is a member of the Hague Apostille Convention, 1961. Canada not being a member of the Hague Convention, the 2nd petitioner's affidavit, even if apostilled by a Notary in Canada, cannot be accepted.
4. On being requested to assist the Court in resolving the question as to the acceptability or otherwise of affidavits apostilled by Attorneys in foriegn countries, Adv.Shyam Padman responded with alacrity and made the following submissions;
In view of the Canadian High Commission’s stand that it does not issue certificates of non-impediment to marriages abroad, the option available to the petitioner is to file a properly authenticated and attested single status affidavit. Many countries are accepting such affidavits in lieu of bachelorhood certificates. The Hague Apostille Convention of 1961 is an international treaty creating a unified process for
