1 WA 385/2016, 398/2016 and 55/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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DB:- Hon’ble Shri Justice N. K. Gupta
Hon’ble Shri Justice S. K. Awasthi
WA 385/2016
Arya Samaj, Naya Bazar, Lashkar, Gwalior
Vs.
State of MP Ors.
WA 398/2016
The Madhya Bharat Arya Pratinidhi Sabha
Vs.
State of MP Ors.
AND
WA 55/2017
Arya Samaj Mandir, Pawansut Colony,
Jain Santar, Morar, Gwalior
Vs.
State of MP Ors.
Shri SS Bansal, counsel for the appellant Arya Samaj, Naya
Bazar, Lashkar, Gwalior (WA 385/2016).
Shri Prashant Sharma, counsel for the appellant- Arya Samaj
Mandir, Pawansut Colony, Jain Santar, Morar, Gwalior (WA 55/2017)
Ku. Sonal Mittal, counsel for the appellant- Madhya Bharat Arya
Pratinidhi Sabha, Tatya Tope Nagar, Bhopal (WA 398/2016)
Shri Vishal Mishra, Additional Advocate General, for the State and
its officers (in all three Writ Appeals)
JUDGMENT
[Delivered on 27 /06/2017]
Per Justice N.K. Gupta:
Since all the writ appeals are filed against the common order
dated 13/10/2016 passed by the Single Bench of this Court in Writ
Petition No.4424/2016 (Habeas Corpus), they are decided by the
present common order.
2 WA 385/2016, 398/2016 and 55/2017
(2) All the three writ appeals have been filed by various Branches
of Arya Samaj challenging the aforesaid order whereby the Single
Bench of this Court has issued some directions in para 12 of the
order.
(3) Facts of the case, in short, are that one Naresh Soni filed a
petition of Habeas Corpus that his daughter was missing. The
corpus was brought before the Single Bench of this Court and it was
informed that she was married to one Sunil Rajak who was
respondent No.4 in the petition and such marriage was performed
by Purohit of Arya Samaj. The petition of Habeas Corpus was
disposed off vide order dated 13/10/2016 with some observations
given in para 12 which are reproduced as under:-
”i- In the event bride and bridegroom present
themselves before the management of the Arya Samaj
Mandir with applications for solemnization of marriage
as per Arya Samaj rites and rituals, it shall be the duty
of the management to first issue notice affixing
photographs of the bride and bridegroom to the
parents/families of both at the declared address and
also affix such notice in that behalf on the notice board
of the Mandir inviting objections, if any, to ensure that;
(i) neither party has a spouse living, (ii) neither party is
incapable of giving a valid consent to it in consequence
of unsoundness of mind or though capable of giving a
valid consent, has been suffering from mental disorder
of such a kind or to such an extent as to be unfit for
marriage and the procreation of children or has been
subject to recurrent attacks of insanity, (iii) declarations
must contain that the marriage is not performed by fear,
threat or coercion; (iv) the male has completed the age
of twenty one years and the female the age of eighteen
years, and (v) the parties are not within the degrees of
prohibited relationship, provided that where a custom
governing at least one of the parties permits of a
marriage between them, such marriage may be
solemnized, notwithstanding that they are within the
degrees of prohibited relationship.
A reasonable time of at least seven days be prescribed
in the notice.
ii- If objection is received, the same shall be dealt with
by the Mandir management, with due verification of
facts. If need be, assistance of local police may also be
3 WA 385/2016, 398/2016 and 55/2017
taken.
iii- Declarations from the bride and bridegroom shall be
obtained not on a cyclostyle format on a piece of paper,
but on a non-judicial stamp paper of the value of
Rs.100/- or more purchased in their names for marriage
purpose that they are aware of the noble ideals, objects,
rituals, traditions of Arya Samaj and endorse faith
belief, practices follows the same, duly notarized by a
licensed Notary with due identification by an Advocate
and Mandir Management shall also verify the credibility
of such declaration from known sources, viz. Arya Samaj
Temples mentioned by them and/or the community of
Arya Samajists known to them, in writing.
iv- The date of birth of bride and bridegroom shall be
verified through the original 10th class mark-sheet of
each one of them.
v- In the event the bride and bridegroom are not
educated, verification of fact of their age shall be done
from the respective families or through the medical
ossification at the Government Hospital or Government
recognized Medical Practitioner with affixation of seal.
vi- The original residential address of bride and
bridegroom shall also be verified either through
documentary evidence or through an enquiry and, if
required, with the help of local police.
vii- Upon verification of aforesaid facts and
ascertainment of bona fide intention of bride and
bridegroom for solemnization of marriage, the mandir
management shall ensure solemnization of marriage
with due observance of Saptpadi and all customary
rites, rituals and ceremonies depending upon the social
and economic status of bride and bridegroom in
presence of two witnesses of each side with their
identity and residential proof with a separate notarized
affidavit, by each of them stating on oath that the bride
and / or bridegroom are personally known to them, on a
non-judicial stamp paper of the value of Rs.100/- or
more.
viii- The process of Saptapadi with rituals and
solemnization of marriage shall be recorded through
videography by the Mandir Management.
ix- Thereafter, marriage certificate may be issued to the
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bride and bridegroom by authorized signatory of the
Mandir Management.
x- The management shall maintain and keep a record of
complete documentation and visuals of the entire process
of solemnization of marriage and
xi- The District Heads of Police shall issue necessary
instructions to the Station House Officers of various police
stations to conduct enquiry and verify from Arya Samaj
Mandirs within the jurisdiction of their police stations in
the event complaints are made of missing girls or of
fraud, manipulation, etc., in the matter of solemnization
of marriages, in the police stations. ”
Such directions were given to get the evidence relating to various
legal requirements at the time of performance of marriage.
(4) The appellants have challenged the aforesaid directions
mainly on three grounds. First, that in Habeas Corpus petition there
is no scope to issue such directions and that has been done by the
learned Single Judge without jurisdiction. Secondly, that the High
Court is not permitted to create new laws and thirdly, looking to the
various enactments such directions should be within the parameters
of the enactment and they were not required to be given. The
learned counsel for the appellants have relied upon the judgment
passed by the Apex Court in the case of ”Sunil Batra vs. Delhi
Administration” [AIR 1980 SC 1579] and also a judgment passed
by the Division Bench of this Court in the case of ”Laakhan Singh
Rajput vs. State of MP Ors.” [2011 (4) MPJR 13]. In the
aforesaid judgments, the scope of petition of Habeas Corpus is
discussed in detail but it is not mentioned that when the petition is
filed under Article 226 of the Constitution of India, the High Court is
barred from passing any other direction in the matter. It is
observed in various petitions that when corpus being a kidnapped
girl is brought before the Court and it is necessary for the Court to
consider the marriage certificate as produced by the kidnapped girl
or her alleged husband, then it is for the Court to take a decision
for the custody of that girl and hence, it cannot be said that the
5 WA 385/2016, 398/2016 and 55/2017
Court is not competent to give any direction relating to
consideration of marriage certificate.
(5) The second objection of the appellants is that the High Court
is not required to enact a new law. In this connection, the
judgments of the Apex Court in the case of ”Mullikarjuna Rao and
Others vs. State of A.P. And Others” [AIR 1990 SC 1251] and
”Suresh Seth vs. Commissioner, Indore Municipal Corporation”
[2006 AIR (SC) 767] are referred. However, in both the cases, it
is held that the High Court cannot direct the Executive to exercise
its rule-making power. In the present case, the Single Bench of this
Court did not give any direction to the executive authorities to
make rules etc. Hence, these two judgments referred by the
appellants are not applicable in the present case.
(6) The learned counsel for the appellants have also referred the
judgment passed by the Apex Court in the case of “Union of India
and another vs. Deoki Nandan Aggarwal” [AIR 1992 SC 96] in
which it is held that the Court has no power to legislate. Similarly,
the judgment passed by the Apex Court in the case of ”Balram
Kumawat vs. Union of India” [(2003) 7 SCC 628] is referred in
which it is held that making of legislation is not a job of judiciary.
Similarly, reliance has been placed upon the judgment passed by
the Apex Court in the case of “Pravasi Bhalai Sangathan vs. Union
of India and Others” [AIR 2014 SC 1591] in which it is held that
power of the Court to issue directions/guidelines to deal with
certain situation is exerciseable only in the situation when there
exists total legal vacuum. In the light of the aforesaid judgments,
various directions to responsible persons of Arya Samaj to observe
before performance of marriage given by the learned Single Judge
may be examined.
(7) Generally, marriage is to be performed before the Purohit
(performer) of Arya Samaj according to the provisions of the Hindu
Marriage Act 1955. However, some extra authorities given to the
Arya Samaj by provision of Section 2 of the Arya Marriage
6 WA 385/2016, 398/2016 and 55/2017
Validation Act 1937.Provision contained under Section 2 of the Arya
Marriage Validation Act 1937 is hereby reproduced as under:-
”2.Marriage between Arya Samajists not to be invalid.-
Notwithstanding any law, usage or custom to the
contrary no marriage contracted whether before or after
the commencement of this Act between two persons
being at the time of the marriage Arya Samajists shall
be invalid or shall be deemed ever to have been invalid
by reason only of the fact that the parties at any time
belonged to different castes or different sub-castes of
Hindus or that either or both of the parties at any time
belonged to a religion other than Hinduism.”
According to that, if someone is not a Hindu and still interested to
enter in the marriage with the help of Arya Samaj then such person
is permitted by such aforesaid provision. Hence, the authorities of
Arya Samaj have more power than a Pandit who performs a
marriage under the Hindu Marriage Act.
(8) Before performing the marriage, it is necessary for every
Pandit and every performer of Hindu marriage to examine about
various conditions of Hindu marriage as enumerated in Section 5 of
the Hindu Marriage Act and while performing the marriage,
ceremonies should be required to be performed according to the
provision contained under Section 7 of the Hindu Marriage Act.
Also, age of marriageable boy and girl is fixed by the Child Marriage
Restraint Act 1929 and, therefore, it is necessary for every
performer including Freelancer Pandit to follow the provisions of the
Hindu Marriage Act as well as the Child Marriage Restraint Act,
1929. In Hindu Marriage Act, no rules are drafted to be followed by
the performer of the marriage as to how he would examine the age
of bride and bridegroom and other conditions for a Hindu marriage.
Similarly, if marriage is performed at Arya Samaj then it is for them
to fulfill various conditions as enumerated in Section 5 of the Hindu
Marriage Act and also to follow the provisions of the Child Marriage
Restraint Act 1929. If age of bride or bridegroom is not properly
assessed then according to Section 5 of the Child Marriage Restraint
7 WA 385/2016, 398/2016 and 55/2017
Act, 1929 then the person who performs, conducts or directs a child
marriage then he shall be punished by that penal provision. Hence,
the legislature did not enact the provisions for assessment of age of
bride or bridegroom or the assessment to get fulfillment of
conditions for a Hindu marriage. If the performer violates the
settled provisions of various laws then he would also be liable for
prosecution for various crimes. Hence, there is no need to give
directions as to how the age of the parties be assessed or as to how
the conditions for a Hindu marriage shall be assessed. The learned
Single Judge has also directed that intimation of marriage
application be given to the parents of bride and bridegroom but it is
not a condition precedent for performing the marriage under the
Hindu Marriage Act and hence, if the entire directions are examined
then in nutshell it would be apparent that if the performer of the
marriage being a Purohit of Arya Samaj violates any of the
conditions of law before performing and while performing the
marriage then he shall be liable to face the consequences in
criminal side also and, therefore, there was no requirement to lay
down such directions so that the Purohit of Arya Samaj should
follow such directions.
(9) In this connection, the mandatory marriage registration rules
which are framed by the State Government in the name of “Madhya
Pradesh Compulsory Registration of Marriages Rules, 2008” may
also be considered. According to Rule 4, if marriage is not
registered under the Rules, then it will not get a positive effect of
registration and if marriage is registered before the concerned
Registrar then it would be a conclusive proof relating to marriage of
the concerned parties. Hence, it is for the parties to prove that they
got legally married though marriage would have been performed by
a Pandit or a Purohit of Arya Samaj. Most of the marriages,
according to the Hindu Marriage Act, are being performed by
various Pandits and there is no provision for registration of such
Pandit. When the Court is not in a position to give such directions to
8 WA 385/2016, 398/2016 and 55/2017
the Pandit, in general who performed the marriage of Hindu boy or
girl then such directions cannot be given to the Purohit of Arya
Samaj otherwise it would cause disparity between two different
performers.
(10) Also, as argued by learned counsel for the appellants, there
are certain rules framed under Arya Samaj relating to performance
of marriage. In such rules, it is mentioned that a person whose
marriage is performed may declare within one year of performance
of marriage that he was the follower of Arya Samaj. When such
internal rules are already framed by the authorities of Arya Samaj
then contrary directions could not be given by the learned Single
Judge. The Court of Law can always examine the fact of mariage
solemnized either by Arya Samaj Purohit under Arya Samaj
Marriage Validation Act, 1937 and internal rules of Arya Samaj or
by Pandit performing the marriage under Hindu Marriage Act. When
the Court finds that a marriage is performed under Arya Samaj by
no fulfilling the prerequisites of the Arya Samaj then the Court has
to adjudge the validity of the impugned wedding under the Hindu
Marriage Act and not otherwise. The Court has no jurisdiction to go
beyond the social-network of various religious institutions or a
Pandit under the Hindu Marriage Act.
(11) Under these circumstances, in the light of the judgments
passed by the Apex Court in Deoki Nandan Aggarwal (supra) and
Balram Kumawat (supra) such legislation could not be created by
the Single Bench. From perusal of directions issued by learned
Single Judge, it is apparent that some of those were contrary to the
provisions of the Arya Marriage Validation Act 1937 and internal
rules framed under that Act and some of them do not fall within the
prerequisites of a valid marriage. Also, when there is no vacuum,
the learned Single Judge was not competent to legislate such rules
in the shape of directions. Consequently, such directions given by
the Single Bench cannot be upheld.
(12) On the basis of aforesaid discussions, all the writ appeals
9 WA 385/2016, 398/2016 and 55/2017
filed by the appellants are hereby allowed and the impugned order
dated 13/10/2016 passed by the Single Bench of this Court in Writ
Petition No.4424/2016 (Habeas Corpus) is hereby set aside upto
the extent relating to various directions given in para 12 of the
order.
(N. K. Gupta) (S. K. Awasthi)
Judge Judge
27 /06/2017 27/06/2017
MKB
