Marriage Registration Can't Be Denied Because One Is A Foreign National, Right To Equality Applies To Non-Citizens Too: Rajasthan High Court

Rajasthan High Court has recently underscored that the denial of registration of a marriage under the Hindu Marriage Act solely on the ground that one or both of them are foreign nationals is not justified. Such an act of the respondent registrar of marriages amounts to a violation of the right to equality afforded to 'citizens' and 'non-citizens' alike as enunciated in various apex court judgments, the court added.

“…The respondents cannot refuse to register the marriage of the petitioners only because the petitioner No.2 [Husband] is a foreigner and is not a citizen of India…If the petitioners submit valid proof about their marriage, in terms of the provisions contained under the Act of 1954, the respondents are supposed to register their marriage with immediate effect without any further delay…”, the court noted while directing the Registrar to issue marriage certificate upon satisfaction that a valid marriage has been solemnized between the petitioners.

The single-judge bench of Justice Anoop Kumar Dhand also directed the respondent authorities as well as the Chief Secretary of Rajasthan to amend the guidelines and application format for registration of marriage.

“…The above officials of the State and respondents are further directed to take steps for editing the requirement on the e-portal under the Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 to ensure that the requirement of the parties being citizens of India is not insisted upon, if the parties concerned submit a valid proof of their marriage strictly in accordance with law...”, the court has also directed the authorities to comply with the above directions preferably within three months.

Justice Dhand also placed reliance on the apex court judgment in Chairman, Railway Board & Ors. v. Chandrima Das (Mrs.) & Ors. (2000) 2 SCC 465 wherein the availability of fundamental rights to 'citizens', 'persons' and 'non-citizens' were discussed. Supreme Court held therein that equality before law and equal protection of law granted by Article 14 is applicable to 'person', which includes 'citizen' of the country and 'non-citizen' alike.

The respondent authorities had earlier relied on Section 3 of the Rajasthan Compulsory Registration of Marriages Act, 2009 to establish that the marriage in question can't be registered since the husband is not a citizen of India. About this stand taken by the respondents, the court further observed:

“Section 8 of the Hindu Marriage Act, 1955 deals with the process of Registration of Hindu Marriages…. But it has nowhere mentioned that a foreign national Hindu cannot get his marriage registered in India, if he/she has solemnized marriage, as per the requirement of Section 5 and 7 of the Act of 1955. Hence, it is clear that provisions contained under Section 3 of the Act of 2009 are not in consonance with the provisions contained under Section 8 of the Act of 1955”.

Even the format for marriage certificate application does not contain anything that indicates a bar on registration of marriages when foreign citizens are involved. It only demands information about the permanent address of the bride and groom, details about the couple and the place of marriage, the court further pointed out.

Accordingly, the Court directed that the requirement on the e-portal under the Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 be updated to ensure that the requirement of the parties being citizens of India is not insisted upon, if the parties concerned submit a valid proof of their marriage strictly in accordance with law. 

“Section 5 and 7 of the Act of 1955 never say that the Hindu who is solemnizing the marriage under the Hindu Marriage Act, 1955 should have domiciled in India. Meaning thereby this Act is applicable upon both the Hindus, domiciled in the territories to which the Act extends who are outside the territories…”, the bench sitting at Jaipur clarified.

In closing the matter, the Court clarified that its observations were confined to the right of petitioner No.2 to get the registration of his marriage solemnized in India, as per the mandate contained under the Act of 1954 and 1955.

This Court has not expressed its opinion about any other rights of the non-citizens and foreign nationals, which are obviously subject to the restrictions provided under the Constitution of India and other laws applicable within the territory of India, it concluded. 

Accordingly, the plea was allowed, and the marriage regsitrar was directed to issue the couple a marriage certificate. 

Case Title: Smt. Ashwani Sharad Pendese & Anr. v. Registrar of Hindu Marriage & Anr.

Case No: S.B. Civil Writ Petition No. 2657/2010

Citation: 2023 LiveLaw (Raj)

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