Not All Divorces Have To Be Mutual, Nature Of Previous Divorce Irrelevant To Permit Marriage Under Special Marriage Act: Kerala High Court

The bench observed that the Registering Authority only has to be satisfied that neither party who intends to marry has a living spouse at the time of registration of marriage.

“Going by the mandate of Section 8 of the ‘Act’, it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered. Therefore, the only aspect to be decided by the respondent is this and nothing more.”

The case involved a couple seeking to marry under the Special Marriage Act. Their application was denied by the Sub Registrar, who cited the lack of sufficient evidence to prove that both parties were single and without living spouses, a requirement under Section 8 of the Act. It was said that they did not prove that they dissolved their previous marriage by mutual consent.

The bench observed that the law does not mandate that all divorces have to be obtained by mutual consent only.

“This opinion cannot be countenanced by this Court since it falls foul of the forensic scheme, because no law mandates that all divorces have to be obtained by ‘mutual consent’. It is not the nature of the divorce which is relevant, but the factum of such having been obtained by the parties to the intended marriage validly.

The counsel for the petitioners, Advocate Sajeev Kumar K Gopal argued that the couple had provided documents demonstrating that they had previously been married but had obtained divorces from their respective spouses. This evidence, according to the counsel, should have been sufficient to establish their single status.

However, the respondent, the Sub Registrar, rejected their application, insisting that the divorces should have been obtained on mutual consent. This reason was challenged as being both illegal and untenable.

Government Pleader Vidya Kuriakose submitted that the registering authority might not have received sufficient information regarding the nature of the divorce obtained by the bride and groom. It was argued that he might not be satisfied that the bride and groom are currently without a living spouse.

Upon examining the submissions and the provided documents, the court found that prima facie, the couple had obtained divorces from their earlier spouses, as indicated by the UK authorities' orders.

It emphasised that Section 8 of the Special Marriage Act only requires applicants to demonstrate that they have no living spouses at the time of the application. Therefore, the Sub Registrar's decision should have been solely based on this criterion.

Critically, the court observed that the Sub Registrar had misunderstood the scope of Section 8 of the Act. The requirement for divorces to be obtained by mutual consent was deemed erroneous and legally unfounded.

Thus, the High Court set aside the Sub Registrar's decision and issued a directive for the reconsideration of the couple's application. The Sub Registrar was instructed to assess the application in light of all relevant evidence.

Accordingly, the court ordered the Sub Registrar to grant the request for marriage if satisfied that the documents establish that the couple is without living spouses at the time of their intended marriage.

Citation: 2023 LiveLaw (Ker) 525

Case title: Antony Joseph v The Sub-Registrar

Case number: WP(C) NO. 30787 Of 2023

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