Division Bench Of Kerala High Court To Examine If Marriages Under SMA Can Be Solemnised Via Video Conferencing

A Division Bench of the Kerala High Court will examine whether a marriage under the Special Marriage Act (SMA) can be solemnised online through video conferencing.

Justice P B Suresh Kumar on Wednesday referred the matter to a larger Bench for further consideration. In the previous hearing, the Court had heard arguments on the issue, and had reserved order in the matter. 

While referring a batch of petitions to a larger Bench, the Court observed that a pragmatic interpretation of the provisions of the Special Marriage Act was necessary to redress the grievances of similarly placed people.

The Court while commenting on the matter, opined as such:

"If a witness in a criminal case can be permitted to depose before the court under oath through video conferencing, according to me, the 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 Registry was accordingly directed to place these matters before a larger Bench for a decision on the question, if necessary, after obtaining orders of the Chief Justice.

The common question that arose for consideration in these matters was whether the solemnization of a marriage in terms of the Special Marriage Act, 1954 could be permitted through video conferencing. 

Background:

The order came on the pleas moved by several petitioners who wished to solemnise their marriage under SMA through video conferencing since they could not make physical appearance owing to the pandemic. They contended that the personal physical presence of the bride and groom is not necessary for the solemnisation of nuptials under the law.

Contentions Raised:

The petitioners argued that once notice of the intended marriage is given as provided for in Section 5 of the Act to the Marriage Officer of the district in which at least one of the parties to the marriage has resided, there cannot be any impediment in solemnizing the marriage through video conferencing.

On the other hand, the State contended that the physical presence of the parties to the intended marriage was necessary for solemnising the marriage under the Act.

They referred to the decision in Dioncey Augustine v. State of Kerala where it was held that Sections 11 and 12 are intended to upkeep the solemnity of the solemnization of the marriage and if the marriage is permitted to be solemnised through video conferencing, the same will trifle and dilute the provisions in Sections 11 and 12 of the Act.

Reliance was also placed on Shitha V.K. v. The District Registrar (General) where it was held that without the physical presence of the parties to the marriage, the requirements in Sections 11 to 13 of the Act cannot be complied with.

They further argued that even if it is conceded that the parties can affix their signatures in the declaration form through their power of attorney holders or authorised representatives, the solemnization of the marriage is one to be performed physically, and therefore, the question of granting permission for the same through video conferencing does not arise.

However, according to the petitioners, the view taken by the Court in these cited decisions was incorrect and required reconsideration.

Observations of the Court

Although the Act provides that the parties to the marriage shall affix their signatures in the declaration form in the presence of the Marriage Officer, the fact that this Court and other High Courts have permitted them to appear before the authorities for registration of marriages under the Act through video conferencing is not disputed by the State.

The Court noted that Section 12 of the Act deals with the place and form of solemnisation of marriage. Upon examination, it was found that Section 12(2) clarified that the marriage may be solemnised in any form which the parties may choose to adopt.

The SIngle Bench remarked that this implied that while the statute contemplates that the marriage shall be solemnised, it does not prescribe the formal act to be performed by the parties for the said purpose, and the parties to the marriage are given the freedom to choose the act.

"In other words, the act to be performed for solemnizing the marriage need not be a physical act. The marriage can be solemnised by exchange of words as well."

Similarly, the proviso to Section 12(2) also clarified that the solemnization would be complete and binding only when each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, Therefore, marriage under the Act can be solemnized even by exchange of words.

The next question that arose for consideration was whether the same could be performed through video conferencing. The Court relied on the decision of the Apex Court in State of Maharashtra v. Praful B. Desai (Dr) to answer this.

Here, the Apex Court had applied the doctrine "updating construction", which enables courts to interpret provisions of an ongoing statute in a manner suiting to the changes that have occurred since the passing of the statute in social conditions, technology, the meaning of words and other matters, on a presumption that the legislature intends the Court to apply to an ongoing statute a construction that continuously updates its wording to allow for 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 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."

It was also found that Section 10A of the Information Technology Act if the communication of proposal and the acceptance thereof in a contract are expressed in electronic form, the same will not be unenforceable on that ground.

The Court noted that 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.

It was further observed by the Bench that the decisions relied on by the respondents do not appear to be correct.

"Needless to say, the view in the said cases needs to be reconsidered, or else, according to me, as observed by the Apex Court in National Textile Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, we will be allowing the dead hand of the past to stifle the growth of the living present. The law must not only change with the changing social needs, but it must also acknowledge and recognise the technological advancements."

As observed by the Apex Court in the said case, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress, or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth.

Considering that a large number of cases are coming up before this Court involving situations where one or both the parties to the intended marriage had to leave the country, after giving notice of the intended marriage, on account of the inevitable social requirements and could not, consequently, solemnise the marriage.

Holding that a pragmatic interpretation of the provisions of the Act would redress the grievances of many such people, the matter was referred to a larger bench.

The Supreme Court had dismissed an appeal challenging the Punjab and Haryana High Court's order of granting a marriage certificate under the Special Marriage Act through video conferencing earlier this week.

"Law has to march along with technology," a Division Bench comprising Justice Indira Banerjee and Justice V. Ramasubramanian had orally observed.

Case Title: Dhanya Martin v. State of Kerala 

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