This Article is authored by Advocate Anil Malhotra.
Most English and Vernacular papers carry classified advertisements of public notices inserted by Indian nationals abroad, seeking marriageability or unmarried status certificates. These declarations are issued by local District Marriage Officers or Indian Embassies abroad with particulars of the concerned Indian national, seeking such ‘unmarried certificates’. The website of the Ministry of External Affairs (MEA) indicates that “a certificate of bachelorhood/single-status/eligibility to get married can be issued by a competent court/SDM having jurisdiction of the area of the residential address of the applicant. This can be in the form of a certificate/affidavit notarized by SDM which is required to be counter-attested by the Home Department of the State concerned. Thereafter, it is to be attested/apostilled by the Attestation Section of the Consular, Passport & Visa (CPV) Division of the Ministry of External Affairs, New Delhi.”
Such single status certificates stem from the requirements of European countries and some Asian countries like Philippines, Malaysia, China and Indonesia, besides mid-east countries, seeking proof of bachelorhood or certificate of no marriage. Such a declaration is a single status affirmation from the country of origin, as proof of being single. There is no provision under the Hindu Marriage Act (HMA) or the Special Marriage Act (SMA) to certify unmarried status. Indian laws do not mandate any certification of singlehood prior to marriage and hence, there is no designated competent authority notified under any domestic law to issue such unmarried certificates.
The Family Courts Act (FCA), empowers Family Courts to exercise all powers pertaining to Civil Courts in relation to, among other matters, matrimonial status of any person or validity of a marriage. All Civil Courts are barred from exercising jurisdiction in matters to be dealt with by Family Courts. A clear demarcation between Executive and Civil Courts further clearly divides exercise of powers by Executive Officers and Judicial Officers or Judges. As a logical conclusion, any person seeking a declaration of his ‘single matrimonial status,’ has to file a proceeding in the Family Court under the FCA, which after following the legal procedure contained in the FCA, is competent and authorized to grant a judicial declaration of marital status. These powers cannot be transgressed by Executive Authorities. Therefore, by no stretch of imagination, an Executive Magistrate or Marriage Officer is legally authorized to declare the matrimonial status of any person. Hence, unmarried status certificate said to be issued by such Executive Officers are clearly without any authority of law.
The illegality is further perpetuated when the MEA has to further accord legitimacy of the single status certificate, which will ultimately permit an Indian to marry a foreign national. Under the Hague Convention, 1961, the MEA must ‘Apostille’ or authenticate a single status certificate. The Hague Conference on Private International Law (HCCH) member countries requires that the single status certificate must be Apostilled by MEA. This is to prevent any fraudulent document being utilized. With the Apostille stamp, the single status certificate becomes legal and valid for use in foreign countries. An Apostille stamp is an equivalent of a certification about the authenticity of the certificate being endorsed by MEA so as to meet approval of HCCH member countries. This process certifies the legitimacy of single status certificates to ultimately marry foreign nationals in Hague or other countries abroad. Accordingly, marriages of overseas Indians then get registered easily under foreign laws in such countries.
What, perhaps in sublime ignorance started as a routine practice of Marriage Officers issuing marriage certificates under the SMA, after issuing notices and inviting objections, transcended into another unauthorized mundane exercise of granting unmarried certificates. Seemingly, nobody applied his mind or realized that such single status certificates cannot be issued by Marriage Officers. The powers of the Family or Civil Courts were mechanically used by Marriage Officers, in wanton, without any check or supervisory exercise. The MEA, in bliss, routinely authenticated such illegal certificates, without any thoughtful consideration. A routine exercise became a prohibited practice and a thriving money spinning industry for mass producing marriageability certificates without any prerogative. The Marriage Officers never realized that they had no powers to issue such certificates on declarations purportedly given by individuals, which had neither been verified nor ascertained. Logically, such declarations can only be established by presenting proper pleadings to a Family Court and thereafter proving them with cogent evidence according to law, followed by judicial application of mind by a Family Court in a reasoned judgment. As of now, Marriage Officers issue such unmarried status declarations in contravention of law. Should these practices continue. Ought they be stopped. Perhaps, on judicial notice being taken by a Constitutional Court, this illegal regime must come to an end. Rule of law must prevail.