Find Technological Solutions Within Legal Framework To Support Online Registration Of Marriages Under SMA: Kerala High Court To Centre, State

The Kerala High Court is now awaiting the views of the Central and the State Governments respectively to find a technological solution within the legal framework to support online solemnisation or registration of the marriage. 

Meanwhile, the Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath has issued an interim order containing directions 

The question posed before them was whether solemnisation of marriage or registration of marriage as referred to in the Special Marriage Act, 1954 can be permitted through online mode.

The Court observed that this question touches upon the application of existing law to govern relationships in bricks and mortar system to govern the relationships in virtual reality.

"These cases have come up before us to consider a question of importance having far-reaching consequences in public governance in the era of technology and digital governance."

Therefore, it was observed that the Bench cannot decide the question in a hurry. 

However, considering the urgency of the matter and to address the plight of the litigants who approached the Court, an interim order was passed. 

While agreeing that SMA is an ongoing statute and provisions therein will have to be interpreted in tune with the time, the Court noted that it was dutybound to address the consequences that would follow on a direction to the Marriage Officer to permit online solemnisation and registration of marriage.

One such serious consequence observed by the Court was that there was no mechanism in place to govern the implementation of the statutory provision in the light of interpretation of the law and the meaning assigned to the law in the era of technology and digital governance.

"If the public administration is not modernised - its structure and function, the law would remain incongruous to defeat the objectives it required to secure."

Issues Before the Court:

(1) Whether the statutory provisions under the Special Marriage Act covers online solemnisation or registration of marriages?

(2) Do citizens have the right to demand digital service in matters affecting well being or related to life?

(3) Is the right to marry a part of the right to life?

Since these questions would require an elaborate judgment touching upon all intricate aspects, the Court was inclined to pass an interim order with clear directions to be followed during online registration of marriages considering the urgency involved in the matters. 

Directions Issued:

I. The Marriage Officers under the Special Marriage Act in all these cases are directed to solemnise a marriage or register the marriage, as the case may be, online, subject to the conditions hereafter referred:

(a) The witnesses required for solemnisation of marriage shall be present before the Marriage Officer.

(b) The witnesses shall identify the parties who are online.

(c) The copies of passport or any other public documents in respect of the parties who appear online shall be provided to the Marriage Officer for identification by the Marriage Officer.

(d) Wherever signature of parties are required, that shall be affixed by the authorised Power of Attorney of the parties or any agent who produce any other official documents recognised under the Indian law on behalf of the parties who appear online.

II. All other necessary formalities as required by law shall be complied with before solemnisation of marriage.

III. The Marriage Officer shall fix the date and time and convey the same to the parties in advance.

IV. The Marriage Officer is free to fix the mode of the online platform.

V. The Marriage Officer is directed to comply with the directions as expeditiously as possible on completion of the statutory formalities.

VI.On solemnisation of marriage, the certificate of marriage shall be issued in the manner as referred to in Section 13 of the Special Marriage Act. 

Till the views of the Centre and the State reached the Court, the State Attorney was directed to place the views of the Government and experts/public officials in light of the interaction the Bench had with the Principal Secretary of IT Department and IT Mission Director.

Further, it was made clear that the proceedings conducted for registration or solemnization of the marriage shall be recorded in the official records. 

The interim order also extended the outer time limit which has already been expired for solemnisation or registration of the marriage, until the time fixed by the Marriage Officer.

Case Title: Dhanya Martin v. State of Kerala 

Advocate A. Ahzar for the Petitioner and State Attorney N Manoj Kumar for State of Kerala 

Click Here To Read The Order