Kerala High Court Rules In Favour Of Registering Marriages Under SMA Via Video Conference, Expresses Concerns Regarding Implementation

The Kerala High Court on Monday ruled that considering the technological advancements in place, marriages under the Special Marriage Act (SMA), 1954 can be registered through video conference. 

A Division Bench of Justice A Muhamed Mustaque and Justice Kauser Edappagath observed so while hearing a batch of petitions filed by individuals seeking to solemnize their marriages under SMA through video conference.

A Single Bench had reserved its order in the case and had later referred it to a Division Bench. 

The Court declared, while it is inclined to allow the petitions, it is concerned about the method of identification of parties as they appear online to register their marriage.

"We have no difficulty to hold that, in the era of technology, marriage under SMA can be registered without insisting on the physical presence of the parties before the marriage officer. However, the marriage officer must be in a position to identify the parties. The manner in which such identification is to be made online is a concern for us", the Bench observed.

The Court proceeded to note that the parties have suggested two modes for their identification.

"One is the physical presence of the parties before the Consulate, if they are residing abroad or before such authority which could be recognised under domestic law. The second mode is developing technological tools for identifying the parties with reference to facial recognition and biometric credentials." 

The Court informed ASG R Suvin Menon that it would require the Centre's assistance in formulating a mechanism that would enable using already existing data and technology for this purpose.

While the ASG raised concerns regarding misuse of data and restrictions on usage of facial recognition even in criminal trials, the Court emphasised that such concerns can be addressed but the use of technological advancements for positive purposes must be encouraged.

"It may have limitations for using against a person, but it can be used to further the interest of individuals. We can maximise the positives and we can restrict the negative aspects," the Court said

The Court also pondered over the importance of establishing a uniform marriage law for ease of online registration of marriage and divorce in the future.

"We should shift everything online. That's the reason we need to have a common marriage law. Every marriage should be compulsorily registered. Whether you marry in a personal way or Hindu or Christian or Muslim way, that can be private and personal. But marriage should be under public law where it should be compulsorily registered. We will stress this again. Because in the technological era, you can't still bank on the physical form of registration of marriage" , the Bench said.

Government Pleader Gopi Nathan, appearing for the State contended that there is no provision under SMA to register marriages before solemnisation, before a marriage officer.

To this, the Court remarked that such provision is not required in view of the Information Technology Act.

"The provisions of the IT Act, especially Sections 4, 5 and 6, are read into all relevant existing statutes," the Court remarked.

The Court also remarked that while the Government seems to be in favour of shifting more processes online, it is facing resistance from people. It also made an apparent reference to the opposition of lawyers to the electronic filing system introduced at Courts.

"On the very first day, the Chief Minister announced that their entire office is going to be online. Of course, I don't know if others follow it, but even our small attempt here is being faced with resistance. This Government is very proactive but their followers are not, I'm sorry to say," the Bench remarked.

The Court eventually directed the State to get the input of persons who are experts in the field of development of technological tools.

It directed the ASG to get instructions from the Ministry as to the policies of the government, in regard to the usage of facial recognition and other data tools for the identification of parties.

The matter will be heard again tomorrow.

Click Here To Read More

Case Title: Dhanya Martin v State of Kerala

Click Here To Download The Order