VINAYA NAIR Vs. CORPORATION OF KOCHI

JUDGEMENT

(1.) This matter has been placed before us on a reference made by a learned single Judge having expressed doubt with regard to the correctness or otherwise of the learned single Judge's judgment in Ramesh Kumar v. Kannapuram Grama Panchayat 1997 (2) KLT 434 wherein the learned single Judge took the view that the Hindu Marriage Act, 1956 would apply to a Hindu outside the territory of India only if he is a Hindu domiciled in the territory of India and that he should have permanent residence in India.

(2.) Petitioners herein are husband and wife who belong to Nair community. Their marriage was solemnized on 13-7-2005 at Vinayaka Kalyana Mandapam at Ernakulam in accordance with the provisions of the Hindu Marriage Act. First petitioner husband is employed at Canada and second petitioner his wife is a native of Kannur District in Kerala. First petitioner's parental home is at Thodupuzha and parents own properties there. First petitioner was born while parents were at Canada. Consequently he acquired Canadian citizenship by birth and therefore he has a Canadian domicile by birth. First petitioner, a Hindu by birth and who professes Hindu Religion has married the second petitioner, a Hindu by religion. After marriage they submitted an application in Form No. 1 of the Kerala Hindu Marriage Registration Rules 1957 to Corporation of Cochin for registering their marriage. Corporation however, refused to register their marriage on the ground that the first petitioner is of Canadian domicile. Petitioners have therefore approached this Court seeking a writ of mandamus directing the respondent to issue a marriage certificate under the Hindu Marriage Act, 1955 read with Hindu Marriage Registration Rules (Kerala) 1957.

(3.) The Registering Authority placed reliance on the judgment of a learned single Judge of this Court in 1997(2) KLT 434 (supra). Learned single Judge took the view that Hindu Marriage Act would apply to a Hindu outside the territory of India only if he is a Hindu domiciled in the territory of India. Learned single Judge also took the view that only those Hindus having permanent residence in India will be covered by the Hindu Marriage Act. Petitioner in that case belonged to Nair community and was a resident of Kerala. He was employed in a Company at Tokyo in Japan during 1989-96. He married a Japanese girl. Marriage was solemnized in Kerala on 27-7-1996 at Kannapuram Grama Panchayat in accordance with the customery rites prevalent in the Nair community. Petitioner's wife is a Buddhist. They claimed that their marriage was solemnized under the Hindu Marriage Act, 1955. They along with their newly born child wanted to go to Japan for employment. For the said purpose they wanted a marriage certificate. Local authority refused the certificate on the ground that petitioners wife is not a Hindu and therefore Hindu Marriage Act would not apply. Learned single Judge accepted the plea of the local authority and dismissed the Writ Petition.