August 26, 2021 2:11:58 pm
Law must not only change with changing social needs, but it must also recognise technological advancements, the Kerala High Court has said while referring to a larger bench the question — whether a wedding under the Special Marriage Act (SMA) can be solemnised online via video conferencing.
Justice P B Suresh Kumar said that the Supreme Court in National Textile Workers’ Union vs. P R Ramakrishnan case had observed that “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.”
The high court said it was constrained to quote the apex court’s observation as there were a large number of cases before it involving situations where one or both the parties to an intended marriage had to leave the country, after giving notice of the wedding as required under the SMA, on account of inevitable social requirements and could not, consequently, solemnise the marriage.
“Cases involving situations where parties to the marriage who have left India after giving notice of the intended marriage, could not come back to India due to reasons beyond their control and could not consequently solemnise the marriage, have also come to the notice of this court,” Justice Kumar said.
The high court said a “pragmatic interpretation” of the provisions of the SMA “would redress the grievances of many such people”.
It also termed as incorrect the views expressed by two other single judge benches of the high court that solemnisation of marriages under SMA via videoconferencing would dilute the provisions of the Act and that physical presence of both parties is mandatory.
“The law must not only change with the changing social needs, it must also acknowledge and recognise technological advancements,” it added.
The high court also referred to the provisions of the Information Technology Act and said that proposal and acceptance made by parties to marriage through videoconferencing cannot be said to be invalid.
“If it is valid and permissible, there is absolutely no reason why the parties to a marriage under the Act (SMA) shall not be permitted to solemnise the marriage by exchange of words through video conferencing,” it said.
The high court also said that the SMA does not prescribe the formal act to be performed by the parties for solemnisation of the marriage and the parties 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,” the high court said.
Justice Kumar also said,”… if a witness in a criminal case can be permitted to depose before the court under oath through video conferencing, according to me, the parties to an intended marriage can certainly be permitted to solemnise the marriage by exchange of words through video conferencing.
“The order came on the pleas by several petitioners who have contended that personal physical presence of the bride and groom is not necessary for solemnisation of nuptials under the law.
The state government, on the other hand, is not in favour of the online solemnisation of marriages under the Act.
It has been contended that solemnization of marriage was mandatory prior to register it under the SMA and therefore, the presence of the two sides and the witnesses is required before the Marriage Officer.
It has further contended that another requirement for solemnisation of the marriage was that at least one of the two parties has to be a resident of the area within the territorial limits of the Marriage Officer for minimum of 30 days prior to issuing the notice of the intended nuptials.
Therefore, two persons living abroad cannot have their marriage solemnised online if they do not satisfy the residence requirement.
The petitioners, represented by advocates A Ahzar, Jawahar Jose and V Ajith Narayanan have contended that when marriages under SMA can be registered online, therefore, solemnisation too does not need physical presence of the parties involved.
They have claimed that there are various judgments that say that appearing via video conferencing is akin to being present in a person with the sole difference that parties cannot be touched.
They said that under SMA the marriage can be solemnized by any means, like exchange of garlands or shaking of hands, as long as both parties make the declaration that they take each other as the lawfully wedded husband and wife.
They also said that signatures can be submitted via digital format and the same was recognised under the Information Technology Act.