By expressing a view that the two parties can solemnize marriage via video conferencing and physical presence is not needed under the Special Marriage Act (SMA), Justice PB Suresh Kumar of the Kerala High Court referred the issue to a larger bench.
The court came across cases where the parties could not solemnize marriage physically and they have to leave the country due to inevitable circumstances after registering the marriage under SMA. The petitioners have contended that the personal physical presence of the bride and groom is not necessary for the solemnization of nuptials under the law.
The high court has 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 solemnize 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 solemnization 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 solemnized by exchange of words as well," the high court said.
Citing Supreme Court judgment in case of National Textile Workers' Union vs. P R Ramakrishnan case, Justice Suresh Kumar noted "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."
It also termed as incorrect the views expressed by two other single judge benches of the high court that solemnization 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 recognize technological advancements. 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 solemnize the marriage by exchange of words through video conferencing," the court observed.
The state government, on the other hand, is not in favour of the online solemnization of marriages under the Act. It has been contended that solemnization of marriage was mandatory prior to registering it under the SMA and therefore, the presence of the two sides and the witnesses are required before the Marriage Officer.
It has further contended that another requirement for solemnization 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 a minimum of 30 days prior to issuing the notice of the intended nuptials. Therefore, two persons living abroad cannot have their marriage solemnized online if they do not satisfy the residence requirement.
The petitioners, represented by advocates A Azhar, Jawahar Jose and V Ajith Narayanan have contended that when marriages under SMA can be registered online, therefore, solemnisation too does not need the 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.
Petitioner contended 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 can be recognized under the Information Technology Act.
(Inputs from PTI)