No Inhibition In Law For Notary Public In India To Attest Affidavit Of A Foreign National: Kerala HC Approves Marriage Registration Of Couple

The Kerala High Court recently established that the notary public of India was authorised to attest to the affidavits of foreign nationals in matrimonial matters, thereby directing the Marriage Officer to accept the notarized affidavit of a foreign woman and consequently register her marriage with the petitioner. 

Justice P.B Suresh Kumar while allowing the petition, held that "the purpose of attestation is only to ensure that the signature in the document is one put by the person who purported to have put the signature in the document."

The petitioner Joby Chacko is an Indian citizen who intends to marry an American citizen.

Accordingly, on 31st May 2021, the petitioner gave notice of his intended marriage to the Marriage Officer u/s 5 of the Special Marriage Act. He was then directed to produce a few documents, which the petitioner complied with. 

However, later on, the Marriage officer sought an affidavit of his fiancée to the effect that she does not have a spouse living, attested by a competent officer in the Embassy or Consulate of the USA.

According to the petitioner, such a condition is not insisted in the case of Indian citizens. Marriages are usually permitted to be solemnized and registered under the Act after obtaining notarized affidavits from the parties that they do not have a spouse living.

Advocate S Saju while representing the petitioner argued that although the fiancée is prepared to submit such a notarized affidavit, the officer refused to accept it on the ground that she is a foreign national.

The petitioner alleged that the stand taken by the Marriage Officer was arbitrary, unreasonable, and unjust, and thereby sought directions to accept the notice of the intended marriage given by him and issue a marriage registration certificate in terms of the Act.

Government Pleader Princy Xavier appeared for the respondents and asserted that as per Section 4(a) of the Act, the Marriage Officer is dutybound to ensure that neither party to the intended marriage has a spouse living, before permitting solemnization of the marriage.

Moreover, it was contended that notarized affidavits are normally insisted when the parties were Indian citizens. Since the petitioner's fiancée is a foreign national, her signature in the affidavit cannot be attested by a notary public in India, for the reason that the notary public in India may not be in a position to ensure the correctness of the statements and affirmations made by a foreign national.

Observations of the Court

The Court placed reliance on the decision in Rajeev v. State of Kerala [2001(1) KLT 578], where it was established that an affidavit attested by a notary public can be secured from the foreign national.

However, the question that arose for consideration before the Single Judge was whether a notary public in India is competent to attest to the signature of a foreign national. Similarly, the said decision did not look into the competence of the notary public in India to assess the correctness of the statements and affirmations made in the affidavit.

It was observed that Section 8(1)(e) of the Notaries Act empowered a notary to take an affidavit from any person. Moreover, when a notary public attests the affidavit, he does not take upon himself the responsibility of the correctness of the statements or affidavits sworn to by the signatory. 

On these grounds, Justice P B Suresh Kumar observed thus:

There is no inhibition in law for a notary public in India attesting an affidavit sworn to by a foreign national after ensuring the identity of the person concerned on the basis of the passport or other similar documents.

As such, the Bench decided that the reasons stated by the Marriage Officer for insisting on the attestation of the fiancee's affidavit by the competent officer in the Embassy and Consulate of the USA cannot be accepted.

Consequently, the Marriage Officer was directed to accept the notice of the intended marriage given by the petitioner and register the marriage of the petitioner with his fiancee by accepting from the fiancee an affidavit attested by a notary public to the effect that she satisfies the eligibility conditions and does not incur any disqualification for the solemnization or registration of the marriage under the Act.

Case Title: Joby Chacko vs. State Of Kerala & Ors

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