[Special Marriage Act] Registering Authority Cannot Refuse Online Solemnization Of Marriage: Kerala High Court

The Kerala High Court recently held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas made its interim order dated September 9, 2021 in this regard absolute, and directed the State Government to follow the directions therein until the Government prescribes any other mode for compliance. 

The Court in this case was dealing with a batch of writ petitions on a reference by Justice P.B. Suresh Kumar dated August 25, 2021. The Single Judge had therein, relied upon the doctrine of 'updating construction' as enunciated by the Apex Court which enables courts to interpret provisions of an ongoing statute in a manner suitable to the changes that have occurred since the passing of the statute in social conditions, technology, and so on. The doctrine is based on a presumption that the legislature intends the Court to apply to an ongoing statute a construction that continuously updates its wordings to accommodate changes since the statute was initially framed.

"If a witness in a criminal case can be permitted to depose before the court under oath through video conferencing, according to me, the [Special Marriage Act] Act being an ongoing statute, the parties to an intended marriage can certainly be permitted to solemnize the marriage by exchange of words through video conferencing," the Single Judge had observed.

It had further been stated that marriage, as per common law, constitutes a contract between a man and a woman, and although the Special Marriage Act prescribed a procedure for solemnization of marriage, the basic character of the marriage remained that of a Contract. The Single Judge had therefore added that the provisions of the Information Technology Act, 2000 would also assume relevance in such context. 

"If that be so, in the light of Section 10A of the Information Technology Act, it cannot be said that proposal and acceptance made by the parties to a marriage through videoconferencing is invalid. If it is valid and permissible, there is absolutely no reason why the parties to a marriage under the Act shall not be permitted to solemnize the marriage by exchange of words through video conferencing," the Single Judge had declared. 

On the basis of the same, the Division Bench had, as per its earlier interim order, directed the Marriage Officers under the Special Marriage Act to solemnize or register the marriage online subject to the conditions prescribed by the Court therein.

Finally observing that the Special Marriage Act, 1954 is an ongoing statute, and the Court would have to adopt tools of interpretation in the context of the statute, while ascertaining the intent and purpose of the Statute, the Division Bench issued the present order making its earlier interim order absolute. 

"The Special Marriage Act has to be construed with time, especially, in the light of the Information Technology Act, 2000," the Bench observed while passing its Order. 

The writ petitions were thus disposed on these grounds. 

Case Title: Dhanya Martin v. State of Kerala & Anr. and other connected cases

Citation: 2023 LiveLaw (Ker) 221

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