IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18287 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= SUBHASHCHANDRA ISHUDAS PARMAR - Petitioner Versus STATE OF GUJARAT THRO THE SECRETARY & 1 - Respondents ========================================================= Appearance :
MR SAURABH M PATEL for Petitioner MS ASMITA PATEL AGP for Respondent : 1 NOTICE SERVED for Respondents : 1 - 2. NOTICE SERVED BY DS for Respondents : - 2 =========================================================
CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 09/02/2012 ORAL JUDGMENT
1. Rule. Learned AGP waives service of notice of Rule on behalf of respondents. Rule is fixed forthwith.
2. Heard learned advocate for the parties.
3. The petitioner, who is an ex-licensee under the Indian Christian Marriage Act, 1872, has approached this Court by way of this petition under Article 226 of the Constitution of India with following prayers;
“(A) Issue a writ of certiorari and/or a writ of mandamus and/or a writ in the nature of certiorari or mandamus, and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 19.10.2011 (Annexure- B) passed by the respondent No.1- Authority bearing No.GK./27/2011/ICM/1098/860/D as well as impugned order dated 27.07.2010 bearing No.POL(1)/3752/2010 passed by the respondent No.2-District Magistrate and further to restore the status of the petitioner as Government Marriage Registrar as per the Notification dated 08.12.1999 (Annexure-A);
(B) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the further implementation, execution and operation of the impugned order dated 19.10.2011 (Annexure-B) passed by the respondent No.1-Authority bearing No. GK./27/2011/ICM/1098/860/D as well as impugned order dated 27.07.2010 bearing No.POL(1)/3752/2010 passed by the respondent No.2-District Magistrate and further to restore the status of the petitioner as Government Marriage Registrar as per the Notification dated 08.12.1999 (Annexure-A);
(C) Be pleased to grant ex-parte interim relief in terms prayer clause (B) hereinabove;
(D) Grant such further and other relief as may be deemed fit in the interest of justice.”
4. Facts in brief leading to filing this petition, as could be culled out from memo of petition, deserve to be set out as under;
The petitioner was holding license under the said Act for performing marriage ceremony and solemnizing the marriage. The petitioner was doing his job under the licence issued to him. On 10.02.2009, the petitioner issued a certificate in respect of marriage between one Pinakin Macwan and Vishrutiben Shukla in presence of Vishrutiben Shukla's mother i.e. Kailashben A.Shukla to sign as a witness. The requisite entries were made in the Marriage Register Book under the Act. The requisite formality of age etc. were done by the said Vishrutiben Shukla and after performing all these formalities, the marriage was solemnized. The said Vishrutiben Shukla married to Macwan not after her conversion, as it is permissible under Section 4 of the Indian Christian Marriage Act that even a non Christian can marry Christian and non Christian need not under go conversion for these reasons. The conversion is not to be effected without obtaining appropriate permission from the District Magistrate as stipulated under Section 5 of the Gujarat Freedom of Religion Act, 2003. In the instant case, as said Vishrutiben was not marrying after her conversion nor was she converted, the marriage was solemnized as no permission of District Magistrate was required. The petitioner received a letter dated 12.05.2011 calling upon the petitioner to show cause in respect of the statement made in the communication dated 27.07.2010 to the District Magistrate, Kheda, in which, through affidavit she accepted the Christianity. The petitioner answered the notice and ultimately it culminated into passing of the impugned order dated 19.10.2011 under which the license was cancelled, hence, the present petition.
5. This Court (Coram: Smt. Abhilasha Kumari, J.) issued notice on 23.12.2011. When the matter was listed before this Court, this Court passed the following order:
“Shri Saurabh M.Patel, learned advocate appearing for the petitioner seeks time to place on record material indicating clearly the whether non Christian marrying a Christian would ipso facto to be treated as having been converted into Christianity. At his request matter is kept on 25.01.2012.”
6. Apropos the order, further affidavit is filed at page no.62, wherein the deponent of the affidavit i.e. petitioner has in paragraph no.2 narrated the entire procedure for conversion that shows that conversion to Christianity is a specific procedure. The sacrament required to be performed by the concerned authorized bishop and the petitioner is admittedly not a bishop nor a person authorized under the provision for conversion and hence there ought not to have been question of converting said Vishrutiben. The State has not filed any affidavit-in- reply controverting this position. In fact, in my opinion that the concerned authority, before cancelling license, should have inquired and recorded its satisfaction with regard to the conversion of Vishrutiben into Christianity by the appropriate sacrament ceremony. In absence of any proof that Vishrutiben was in fact converted into Christianity against her will, he could not have been proceeded in any manner. Even the show cause notice itself was without jurisdiction, as there existed no proof of Vishrutiben under going any ceremony for conversion into Christianity. When these facts were not existing before authority, the authority did not have any jurisdiction to issue notice in form of show cause notice.
7. In my view, the show cause notice itself was without jurisdiction. When the show cause notice was without jurisdiction, the reasoned order which is passed without ascertaining these facts is also sheer, non application of mind on the part of the concerned authority. The petitioner was unnecessarily compelled to come to the Court, as the cancelling his license is not justified at all.
8. This Court is of the considered view that petition is required to be allowed and accordingly allowed. The order impugned dated 19.10.2011 is quashed and set aside. Rule made absolute.
9. Learned advocate for the petitioner is not insisted for cost, hence no cost is awarded, as the petitioner's advocate has fairly submitted that the cost is not prayed. The consequences of this petition would amount to reviving the license as it is, and no formal license is now required to be obtained. The license is revived. Direct service is permitted.
Pankaj (S.R.BRAHMBHATT, J.)