K.S. Radhakrishnan, J.
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.
4. Hindu Marriage Act, 1955 is an act to amend and codify the law relating to marriage among Hindus. Section 5 of the Act lays down the conditions for the solemnization of a Hindu marriage. Ceremonies for a Hindu marriage are provided under Section 7 of the Act. Section 8 of the Act deals with registration of Hindu marriages. Petitioners have complied with all the conditions for a valid Hindu marriage under Section 5 of the Hindu Marriage Act and that they had undergone all the ceremonies as provided under Section 7 of the Act and that they have solemnized the marriage at Ernakulam a place to which Hindu Marriage Act applies. The sole reason for denying the marriage certificate by the local authority is that even though the first petitioner is a Hindu by birth he was born in Canada and has acquired Canadian citizenship by birth and has his domicile in Canada. Question is whether the local authority could deny registration of a marriage entered into between a Hindu, having Canadian domicile and a person who is having Indian domicile, if their marriage is solemnised following the conditions laid down in Sections 5 and 7 of the Hindu Marriage Act at a place where Hindu Marriage Act applies. Contention was raised, by local authority placing reliance on the judgment of the learned single Judge that unless and until the first petitioner is a Hindu domiciled in the territory of India to which Hindu Marriage Act applies no certificate of registration as provided under Section 8 of the Hindu Marriage Act could be issued. Certificate was refused not because the petitioners are not Hindus and not because their marriage was not solemnized at Ernakulam following the ceremonies of Hindu Marriage and following the conditions for a Hindu marriage but due to the sole reason that first petitioner is having Canadian domicile and not Indian. Question is whether such a stand of the local authority is legal or not.
5. The Hindu Marriage Act came into force on 18th May 1955 which has amended and codified the law relating to marriage among Hindus. Section 2 of the Act states that the Act applies to any person who is a Hindu by religion in any of its forms or developments, which includes a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Act also applies to any person who is a Buddhist, Jaina or Sikh by religion. Section 4 of the Act gives -overriding effect to the provisions of the Hindu Marriage Act which provides that any text, rule or interpretation of Hindu Law or any custom or usage having the force of law ceases to have effect with respect to all matters dealt with in the Act. The Act also supersedes any such law contained in any Central or State enactment and any other law in force immediately before it came into operation by enacting that all such laws shall cease to have effect in so far as they are inconsistent with any provisions contained in the Act. Section 1 of the Act deals with extent of its application. Act extends to the whole of India except Jammu and Kashmir and applies also to Hindus domiciled in the territories to which the Hindu Marriage Act extends who are outside the said territories. For easy reference we may extract Section 1 which reads as follows:
1. Short title and extent--
(1) This Act may be called the Hindu Marriage Act, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.
Previously the words 'domiciled in India' found a place in Sub-section (2) of Section (1) which was later changed and the words 'domiciled in the territories to which this Act extends' was substituted making the Act applicable to all Hindus with such domicile who may for the time being be outside the said territories whether they be in Jammu Kashmir or outside India altogether.
The Apex Court in Organo Chemical Industries Ltd. v. Union of India AIR 1979 SC 1803 held that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficent legislation to futility. Legislature in our view would not envisage a situation where persons who are of Hindu religion, professes Hinduism, comes to a place where Hindu Marriage Act is applicable and solemnise their marriage, even then the marriage would not be treated as a valid marriage even if they satisfied all the conditions laid down in the Hindu Marriage Act and followed all the customs, on the mere ground that one of them has acquired domicile by birth outside India not. by choice, but due to accident. We have to interpret the provisions especially Sections 1 and 2 of the Hindu Marriage Act bearing in mind the above principle. The Calcutta High Court in Prem Singh v. Dulari Bai and Anr. : AIR1973Cal425 had occasion to consider a similar issue. The Bench considered the scope of Sub-section (1) of Section.1as well as Sub-section (1) Section 2 of the Hindu Marriage Act, 1955. That was a case where the husband submitted an application for restitution of conjugal rights against respondent wife. According to him he had married the respondent according to Hindu rites in February 1955 in India. After marriage they continued, to live as husband and wife and a daughter was born. Complaint of the petitioner was' that respondent had failed to return to the matrimonial home which led the petitioner's filing of application for restitution of conjugal rights. Trial court noticed that the petitioner therein was a Nepali and he was not a domiciled Indian and therefore he could not have invoked the provisions of the Hindu Marriage Act, 1955. Consequently it was held that his application under Section 9 for restitution of conjugal rights was not maintainable. While interpreting Sections 1(1) and 2(1) of Hindu Marriage Act the Court held that as regards the intra territorial operation of the Act it is clear that it applies to all Hindus, Buddhists, Jains or Sikhs irrespective of the question whether they are domiciled in India or not. Above mentioned decision of the Calcutta High Court was however distinguished by a Special Bench in Gour Gopal Roy v. Sipra Roy AIR 1978 Cal. 163 expressing the view that it is not enough for the applicability of the Act if one of the parties is of Indian domicile. A learned single Judge of the Gujarat High Court in Nitaben v. Dhirendra Chandrakant Shukla and Anr. I (1984) D.M.C. 252 disagreed with the views expressed by the Special Bench of the Calcutta High Court in Gour Gopal Roy's case and quoted with approval the Division Bench judgment in Prem Singh's case. Learned single Judge of the Gujarat High Court, in our view has extensively considered the scope of Sections 1(1) and 2(1) of Hindu Marriage Act and took the view, the idea of domicile can never be imported into the marriage of two Hindus married in India according to Hindu rites. Court held that non applicability of the Act would be in an extreme case where both the spouses did not remain in India, both the spouses have domiciled outside India and both married outside India. Reference may also be made to a judgment of the Karnataka High Court in Vatsala v. Sub Registrar & Marriage Officer and Anr. 1991(1) Kar. L.J.294. That was a case where a foreigner got married in India with a girl of Indian nationality under the provisions of the Special Marriage Act, 1954. The point that came up for consideration in that case was whether the marriage can be solemnized of an Indian citizen with a foreign national in India under the provisions of the Special Marriage Act, 1954. Court interpreting Sub-section (2) of Section 1 of Special Marriage Act and Section.4 and Section 4(e) of the Act held that the marriages could be solemnized in India between any two persons whether both of them are Indian Nationals or one of them is a foreign, national or both of them are foreign nationals. A learned single Judge of this Court in Rajeev v. State of Kerala 2001 (1) KLT 578 has also taken the view that even if one of the parties is not an Indian citizen the marriage can be solemnised under the Special Marriage Act. Section 1 of the Act deals with territorial operation. Sub-section (2) of Section 1 of the Act has two limbs. First limb states that the Hindu Marriage Act extends to the whole of India except the State of Jammu and Kashmir. Counsel highlighted the general principle of intra territorial operation to the whole of India. Second limb of Sub-section (2) highlights its extra territorial operation. Extra territorial operation connotes that that it applies to all persons even if they reside in different parts outside the country. The expression has got another meaning with reference to nationals residing outside. First limb of Sub-section (2) of Section 1 gives no emphasis to the expression 'domicile'.
6. Section 2 of the Hindu Marriage Act deals with application of the Act. The said provision is extracted below for easy reference.
2. Application of Act.
(1) This Act applies-
(a) to any person who is a Hindu by religion many of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any of the matters dealt with herein if this Act had not been passed.
Explanation.-- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged', and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in Sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government by notification in the Official Gazette, otherwise directs.
(3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
Though Section 1(2) states that the Act extends to the whole of India except the State of Jammu and Kashmir and also to Hindus domiciled in the territories to which the Act extends, the word 'domicile' does not figure in Sub-clauses (a) and (b) of Section 2(1). Sub-clause (a) of Section 2(1) states that the Hindu Marriage Act applies to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Sub-clause (b) of Section 2(1) states that the Act applies to any person who is a Buddhist, Jaina or Sikh by religion meaning thereby Clauses (a) and (b) require the form of Hindu to make the Act applicable. Sub-clause (c) states that the Act applies to any other person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of the law. A conjoint reading of Sections 1 and 2 of the Act would indicate that so far as the second limb of Section 1(2) of the Act is concerned its intra territorial operation of the Act applies to those who reside outside the territories. First limb of Sub-section (2) of Section 1 and Clauses (a) and (b) of Section 2(1) would make it clear that the Act would apply to Hindus reside in India whether they reside outside the territories or not. The word 'Hindu' as such is not defined in the Act. All the same, Sub-section (3) of Section 2 says that the Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom the Act applies by virtue of the provisions contained in the Section. Section 5 as we have already indicated, deals with conditions for a Hindu marriage. It is not a condition in Section 5 that the Hindu who is solemnising the marriage under the Hindu Marriage Act should have domiciled in India. We may in this connection refer to the applicability of the Hindu Succession Act, 1956. Section 1(2) of the Act states that it extends to the whole of India except the State of Jammu and Kashmir. Section 2(1) deals with the applicability of the provisions of the Act and also the jurisdiction of the court. There is no second part to Sub-section (2) providing for extra territorial operation. Section 2 of the Hindu Succession Act also does not contain any reference to domicile. When we compare the provisions of the Hindu Marriage Act and the Hindu Succession Act, 1956 it is clear that the concept of domicile has been brought only in the second limb of Sub-section (2) of Section 1 of the Hindu Marriage Act read with Section 5(1) of the Act. So far as the present case is concerned, clause applicable is the first limb of Sub-section (2) of Section 1 read with clause (a) of Sub-section (1) of Section 2 of the Act. Test to be applied is whether both the parties are Hindus by religion in any of its forms and whether they have satisfied the condition laid down in Section 5 of the Hindu Marriage Act and whether they have followed the ceremonies of Hindu Marriage Act as provided in Section 7 of the Hindu Marriage Act. The concept of domicile as we have already indicated would apply only in a case where the second limb of Section 1(2) of the Hindu Marriage Act read with sub-clause (a) of Section 2(1) is attracted. We are of the view the petitioners have satisfied the conditions laid down in Section 5 of the Act and also the first limb of Sub-section (2) of Section 1 read with clauses (a) and (b) of Section 2(1) of the Hindu Marriage Act, 1955.
7. In such circumstances, we are of the view, marriage between the parties is a valid marriage solemnised following the provisions of the Hindu Marriage Act and therefore the Corporation is not justified in not registering the marriage. We are of the view Ramesh Kumar's case has not been correctly decided. We therefore overrule the said decision. Reference is answered accordingly. Writ Petition is disposed of with a direction to the Corporation to issue the marriage certificate at the earliest.