PRAKASH TATIA,CJ - (1.) PETITIONERS are the husband and wife and both are residents of London in the country of United Kingdom and they have preferred this writ petition through their Power of Attorney as the petitioners have faced difficulty in getting registration of their marriage under the provisions of Jharkhand Hindu Marriage Registration Rules, 2002, which provides procedure for registration of the Hindu marriages. As per Sub-rule(3) of Rule 4 of the aforesaid Rules of 2002, the application for registration of marriage is required to be presented personally before the Registrar concerned and the petitioners personally cannot come to present the application of their registration of marriage for peculiar reasons.
(2.) PETITIONER no.1 is citizen of Australia and she was brought up by her maternal grand parents at Australia. She has also obtained Passport from the Australian Government. PETITIONER no.2 is citizen of Sweden and has obtained Passport from the competent authority at Sweden. Presently both the petitioners are residing in the United Kingdom because of the fact that petitioner no.2 is in employment at London. The petitioner no.2 being a European citizen having a Swedish Passport is entitled to live and work in United Kingdom, without any restriction as per the European Economic Area Law. According to the petitioners, relevant certification and information with regard to the countries participating in European Economic Area (E.E.A) and the rights of their citizens to stay in United homeoffice.gov.uk/eucitizens/ . The petitioner no.1 being wife of petitioner no.2 has been issued permanent resident Visa of United Kingdom, copy of which has been placed as Annexure-5 with the writ petition. As per petitioners, their marriage was solemnized on 12th December, 2002, according to Hindi rites and ritual at Ranchi in the State of Jharkhand. PETITIONER no.1 after marriage got her surname changed, according to surname of her husband and change of name certificate was issued by the competent authority from Western Australia, copy of which has been placed as Annexure-2. In sum and substance, both the petitioners are residing at London in the United Kingdom and their marriage was solemnized in the city of Ranchi in the State of Jharkhand in India. Both the petitioners are having Passport and requisite documents for living in the United Kingdom. The petitioners were blessed with a baby boy on 17th January, 2012 at St.Thomas Hospital, Lambeth in United Kingdom and their son's name is Mihir Raj Bali. The birth certificate was also issued by the competent authority for petitioners' son Mihir Raj Bali. The problem came when petitioners desired to visit India , particularly, to Ranchi where the parents of the petitioner no.1, the wife of petitioner no.2, are residing and specially to attend the marriage of the brother of the petitioner no.1, which is to be solemnized in the month of November, 2012. The petitioners, therefore, are in need of getting Passport for their son Mihir Raj Bali, who is entitled to a Passport as a Swedish citizen on account of his father's citizenship but the impediment is that to have Passport issued in his favour the petitioners are required to establish that child's Swedish father was married with his mother and for that purpose a marriage certificate is being demanded by Swedish Consulate. The petitioners also faced difficulty in getting name registration( National I.D.) for their son as it was rejected by the Swedish Tax Agency vide communication dated 29th June, 2012 on the ground that it considers 'name matters' only for Swedish Citizens resident overseas or people resident in Sweden. It was stated in the said rejection note that child was born in Great Britain and has a foreign national mother and Swedish father. Since it is not evident that the child's Swedish father is married to the child's mother, the Swedish Tax Agency decides that the child is not a Swedish citizen. The petitioners placed on record the copy of the said rejection notice along with translated copy thereof as Annexure-7 and 7/1. The petitioners when inquired about obtaining certificate after registration of their marriage before the Marriage registering authority at Ranchi, they came across the sub-rule(3) of Rule 4 of the Jharkhand Hindu Marriage Registration Rules, 2002 and if the said Rule is read literally then it requires personal presence of both the parties to the marriage for submitting the application for registration of the marriage. The petitioners' family is unitary family and they do not have anybody who can take care of their only 8 months old child. Petitioners also cannot bring the child as the child cannot get Passport without petitioners' marriage certificate which can be issued only by Marriage Registering authority from Ranchi in India. Therefore, petitioners can present their application for registration of their marriage through their Power of Attorney which they have executed in favour of petitioner no.1's mother-Smt.Nandini Gupta. The petitioners are informed that, for presentation of application for the registration of their marriage, their personal presence is essential. Because of the above peculiar situation, the petitioners proceed to challenge the vires of sub-rule(3) of Rule 4 of Jharkhand Hindu Marriage Registration Act, 2002 on various grounds. However, petitioners also raised question whether the provisions of sub-rule(3) of Rule 4 of Jharkhand Hindu Marriage Registration Act, 2002 does put a mandatory condition of 'personal presence' of the petitioners applying for marriage registration certificate. If it is so, then unless said rule is read down to include Power of Attorney or presence through video-conferencing, it may violate the test of reasonableness. If answer to this question goes in favour of the writ petitioners, the other issues may not survive, which includes the challenge to the constitutional validity of the said sub rule on various grounds. Since after hearing the arguments, we are of the considered opinion that we need not to go into other issues and we may consider the above referred issue that whether for getting the registration of marriage under the Jharkhand Hindu Marriage Registration Act, 2002, it is mandatory that applicant should physically appear before the registering authority for presentation of the application for registration of the marriage? Sub rule(3) of Rule 4 of The Jharkhand Hindu Marriage Registration Rules, 2002 (in short " Rules of 2002") is as under : "The application mentioned in sub-rule(2) shall be accompanied with a certificate issued by a Gazetted Officer, Mukhiya, Up- Mukhiya of a Gram Panchayat or Pramukh of a Panchayat Samiti as to the identity of the parties to the marriage and the correctness of other particulars appearing in the application and shall be presented personally to the Registrar concerned. Where the persons presenting the application so desires he shall be given a receipt for the application in the following form: Received an application for registration of marriage between ...... and .......... presented by ....... dated ....... Signature ...... [ Registrar or Sub -Registrar of Hindu Marriages ..]
(3.) FROM mere reading of sub-rule (3) of Rule 4, it appears that it requires that parties to the marriage shall present personally before the Registrar concerned for submitting the application for registration of marriage. The question arises about the interpretation of the "shall be presented personally" . The word " presence" and it's meaning came for consideration before the Hon'ble Supreme Court , though in a criminal case but is relevant in this case also. The Hon'ble Supreme Court in the case of State of Maharashtra Vs. Dr.Praful B.Desai and another reported in [ (2003) 4 SCC 601 ] in detail has considered the requirement of recording of evidence in presence of the accused as required under Section 273 of the Criminal Procedure, 1973 and held that such requirement of "personal presence" is not the actual physical presence but it can be through video conferencing . The Hon'ble Supreme Court considered a judgment of the Supreme Court of the United States of America, in th case of Maryland Vs. Santra Aun Craig, 497 U.S.836(1990) wherein it has been held that recording of evidence by video-conferencing was not a violation of the Sixth Amendment(Confrontation Clause). The Hon'ble Supreme Court held that Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the leading jurist Francis Bennion in his commentaries titled Statutory Interpretation, 2nd Edition , page-617, which we may also quote here again : "It is presumed Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters.... That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials." y ( Emphasis supplied) In the case of National Textile Workers' Union vs. P.R. Ramakrishnan [(1983) 1 SCC 228], the Hon'ble Supreme Court in paragraph-9 observed as under : "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast- changing society and not lag behind." ( Emphasis supplied) In the case of Dr.Praful B.Desai itself the Supreme Court has followed the principle of updating construction, as enunciated by Francis Bennion and those principles have been quoted in the case of C.I.T. Vs. Poddar Cement(P)Ltd. , reported in [ (1997)5 SCC 482] , wherein also it has been held that Evidence Act is also an ongoing Act and it has been held that "handwriting" includes "typewriting". In the case of SIL Import,USA Vs. Exim Aides Silk Exporters [ ( 1999) 4 SCC, 567, certain other words have been interpreted, so as to make the law, in fact, ongoing laws rather than stagnant laws making them befitting to the advancement of the technology in various fields. ;