Anshika Tiwari-
The High Court of Kerala has recently laid down that the notary public of India is authorised to attest the affidavit of foreign nationals in matrimonial cases and there is nothing in the law that prevents them from doing so. The court directed the Marriage Officer to accept the notarised affidavit of a foreign woman and thereafter register her marriage with the petitioner.
While allowing the petition in question, Justice P.B. Suresh Kumar clarified what was the ‘purpose of attestation’.
The court said, “The only purpose of attestation is to ensure that the signature in the document is one put by the person who claims to have done it”
The petitioner in the present case is Joby Chacko, an Indian citizen who purports to marry an American National, in pursuance of which on May 31st this year he gave notice of his intended marriage to the Marriage Officer under Section 5 of the Special Marriage Act. Post this, he was directed to produce certain documents to which he complied.
Later on, the Marriage Officer sought an affidavit from the fiancé, duly attested by an American Consulate to the effect that she does not have a spouse living. Even though she was willing to give the same, the Marriage Officer refused to accept it because she was a foreign national. The petitioner alleged the officer’s stand to be arbitrary, unreasonable and unjust and sought that the court directs the officer to accept the notice of intended marriage and issue a marriage registration certificate under the Act.
Government pleader Princy Xavier, the counsel for respondents asserted that the notary public was not in a position to attest to the signature put by the petitioner’s fiancée in the affidavit because she was a foreign national and the respondent cannot cross-check the veracity of statements made by her therein.
The Court laid down that Section 8(1)(e) of the Notaries Act empowered a notary to take an affidavit from any person. Moreover, when a notary public attests the affidavit, he does not take upon himself the responsibility of the correctness of the statements or affidavits sworn to by the signatory.
In holding so, the court placed reliance on the decision given in Rajeev v. State of Kerala where it was established that,
“An affidavit attested by a notary public can be secured from the foreign national.”
The court added that the reasons cited by the Marriage Officer cannot be accepted. It also added that the competence of the notary public to assess the correctness of statements made in the affidavit does not matter.