All Divorces Need Not Be Necessarily Obtained By Mutual Consent: Kerala High Court

The Kerala High Court directed the respondent (Sub-registrar) to reconsider the application preferred by the proposed groom on the touchstone of all relevant materials so as to establish that both the groom and bride had been earlier married, but obtained divorce from their respective spouses; and are, therefore, presently single and without living spouses.

The High Court also pointed that if the Registrar is satisfied that said documents establish that the parties to the applied marriage are without living spouses at this time, he will accede to the request for marriage in terms of law.

A Single Judge Bench of Justice Devan Ramchandran observed that “no law mandates that all divorces have to be obtained by ‘mutual consent’. It is not the nature of the divorce which is relevant, but the factum of such having been obtained by the parties to the intended marriage validly”.

Advocate Sajeev Kumar K. Gopal appeared for the Petitioner, whereas Advocate Vidya Kuriakose appeared for the Respondent.

The brief facts of the case were that the petitioners challenged an order, whereby, the request made by their son (Joby Antony), to marry under the Special Marriage Act, has been rejected on the ground that there are no sufficient materials to show that he and his proposed bride are single, or without a living spouse, so as to satisfy the rigour of Section 8 of the Special Marriage Act.

After considering the submission, the Bench found from the orders obtained by the proposed groom and bride from the Authorities/Courts in the United Kingdom, that both have obtained divorces from their respective earlier spouses.

Going by the mandate of Section 8 of the Special Marriage Act, the Bench noted that it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered.

Therefore, the only aspect to be decided by the respondent is this and nothing more, added the Bench.

Accordingly, the High Court allowed the petition.

Cause Title: ANTONY JOSEPH and Anr. v. THE SUB REGISTRAR [Neutral Citation: 2023/KER/57887]

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