Kerala High Court Allows Bride To Appear Through Online Mode For The Solemnization Of The Marriage

The Kerala High Court recently in a Writ Petition allowed one of the parties to appear through online mode for the solemnization of their marriage before the Marriage Officer. 

Justice V.G. Arun allowed the second petitioner, who is a Canadian citizen with an Overseas Citizen of India Card to appear before the Marriage office in online mode for the solemnization of their marriage, however, this is subject to certain conditions. 

 Being desirous of entering into matrimony, the petitioners gave notice of intended marriage and were required to appear before the marriage officer, sub-registrar office for the solemnisation of the marriage. However, the second respondent had to return to Canada in the meanwhile and therefore requested that the petitioner may be allowed to appear through online mode. 

Counsel appearing for the petitioners, Advocate R. V. Sreejith, relied on the Doctrine of impossibility to contend that it was impossible for the second petitioner to produce the non-impediment to marriage certificate as mandated as the Canadian law neither requires nor provides for the issuance of non-objection and bachelorhood certificate. Further, submitting that in such circumstances, the authority will have to either exempt the person from performing the impossible act or provide a viable alternative. To substantiate their contention, the counsel appearing for the petitioner relied heavily on the Apex Court decision in State of M.P. v. Narmada Bacho Andolan, where the scope of the doctrine of impossibility was examined. The court has to consider and understand the scope of application of the doctrines of lex non cogit ad impossibilia (the law does not compel a man to do what he cannot possibly perform) held that when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, the circumstances will be taken as a valid excuse.

The Court after perusing the relevant provisions of the Hague Apostille Convention of 1961 which is an international treaty creating a unified process for confirming the authenticity of documents and for recognising the documents of other participating countries, drew the inference that the decision of the Convention will only apply to a member state and since Canada is not a signatory to the treatise, a document apostilled/notarised in Canada cannot be accepted.  

However, the Notaries Act 1952, provides for acceptance of notarial acts done by notaries within the countries that recognise notarial acts done by the notaries within India. Furthermore, Section 3 of the Diplomatic and Consular Officer (Oaths and Fees) Act, 1948, empowers diplomatic or consular officers, exercising functions in any foreign country to administer oaths, take affidavits and do notarial acts which any notary public may do within that State. Such oath, affidavit and notarial act administered, sworn or done by or before any such diplomatic officer shall be effectual as if duly administered, sworn or done by or before any lawful authority in the State. The scope of this section was examined in In re: K.K.Ray and Elizabeth Rajan v. Inspector General of Registration and others, the court after scrutinising section 3 and considering the aforementioned decisions held that the diplomatic officers of the Indian Embassy in Canada are empowered to apostille affidavits and do notarial acts, which shall have the same effect as done by an authorised officer/attorney in India. Thereby, permitting the petitioner to produce an affidavit duly attested/notarised in the manner provided in Section 3, instead of the 'non-objection and bachelorhood certificate'.

 The Court permitted the petitioner to appear  through online mode, however, subjected to certain conditions.

Case Title: Shan S & anr. v. Marriage Officer

Citation: 2022 LiveLaw (Ker) 374

Click Here To Read/Download The Order.