Refusing to register marriage on ground that one spouse is foreign national violates equality: Rajasthan High Court

Authorities cannot refuse to register a marriage merely on the ground that one of the spouse is a foreign national, the Rajasthan High Court recently held [Ashwani Sharad Pendese vs Registrar of Hindu Marriages].

Single-judge Justice Anoop Kumar Dhand was dealing with a plea challenging decision of the Registrar of Hindu Marriages to refuse registration the marriage of a couple on the ground that the husband was a foreigner and a resident of Belgium.

“Marriages are pious knots in which two people are tied not only physically but also emotionally, mentally and psychologically. Marriage is a legal formality or sort of an accord between two people who agree to take care of each other. In other words, the act of marriage can be put as development of relationship which brings together two people, two souls, two families, two tribes and races,” the Court observed.

The Court further referred to the provisions of the Hindu Marriage Act, 1995 particularly Section 8, which deals with the registration of Hindu Marriages.

“But it has no where mentioned that a foreign national Hindu cannot get his marriage registered in India, if s/he has solemnised marriage as per the provisions of the Act of 1995,” the single-judge noted.

Further, he held that the fundamental right to equality (under Article 14 of the Constitution of India) would be applicable to foreigners and authorities cannot refuse to register their marriages.

The basic human rights enshrined in Articles 12 to 35 of the Constitution, are guaranteed to all the citizens, the Court said.

While the rights under Articles 15 (prohibition of discrimination),16 (equal opportunity in public employment), 19 (rights like free speech etc), 29 (protection of minorities’ interests) and 30 (rights of minorities to maintain educational institutions) are applicable only to citizens of India, the other fundamental rights are available not only to the citizens of India but also to non-citizens (foreigners), the Court held.

Majority of the countries adhere to natural justice principles and grant basic rights to foreign nationals, the Court stated.

“The founders of the Constitution were concerned not to deny any basic right to the non-citizens that would be damaging to their existence or deprive them of liberty an equality,” the Court observed.

It noted that the rights contained under Articles 15, 16 and 19 are conferred on “citizens” while the rights under Articles 14 and 21 are conferred on “any person.”

“This distinction between ‘a citizen’ and ‘a person’ was engrafted in our Constitution by its framers with a specific intent – to grant certain fundamental rights to its citizens only and to grant certain rights to any person or individual, which mean some of the rights are available to all the citizens of the country while some are for even non-citizens,” the Court underscored.

These fundamental rights are meant to spread the concept of democracy and to defend people’s freedom and liberties, the Court underscored.

In its judgment, the Court also took into consideration the application form for registration of Hindu Marriages. It noted that the format of the said form nowhere indicates that both the bride and the bridegroom must be citizens of India.

In this backdrop, the Court held that denial of registration of marriage on the said ground amounts to violation of right to equality of the couple.

“The authorities cannot refuse to register the marriage only on this count that one of the couple’s is not a citizen of India and he is a foreign national. If parties applying for registration of marriage proves that they have performed a valid marriage within the territory of India as per the provisions contained under the Hindu Marriage Act or the Special Marriage Act, they can apply for registration of their marriage and the same cannot be refused,” the Court opined.

Lastly, the court issued a general mandamus to the Registrar of Hindu Marriages and the State’s Chief Secretary to amend their guidelines and the requisite format of application for registration of marriage.

“The officials are directed to take steps for editing the requirement on the website under the Hindu Marriage Act as well as the Special Marriage Act 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 marriage,” the Court ordered.