Digitalizing Marriage: In the Light of Judicial Perspective

Introduction

Marriage is in our existence since time immemorial. It is considered a sacrosanct union between husband and wife. Indian wedding traditions differ by area, religion, society, and the bride and groom’s individual tastes. In India, they are joyous occasions that are typically marked by elaborate decorations, color, gowns, music, dance, costumes, and customs that are based on the preferences of the bride and groom’s community, area, and religion.

Every year, India witnesses around 10 million weddings, nearly 80% of which are Hindu unions. There are certain legal provisions that every pair has to adhere to in order to solemnize a marriage. Production of certain documents such as residential proof of bride and groom, age verification certificates, and evidence of marriage such as invitation cards and affidavits from local authorities are some of the prerequisites to attain marriage credibility in India.

A new type of union known as an interfaith marriage or mixed marriage, when the bride and groom profess different faiths or religions, is quickly gaining popularity in the wake of modern society. This type of marriage is contrary to the traditional belief that marriage can only be solemnized within one’s religion.

The Analysis

In India marriage is governed by the personal laws of the parties. For instance, Hindu Marriage Act of 1955 governs the marriage of persons professing the Hindu faith. In order to legalize as well as recognize interfaith marriage, the parliament passed Special Marriage Act, 1954. The act’s purpose is to make civil (registered) marriages possible for Indian citizens living abroad as well as for Indian citizens living in India, regardless of the faith followed by either party.

Section 12 of the Special Marriage Act, 1954 specifies physical attendance before the marriage officer along with the production of necessary documents to be filed before the date of solemnization of marriage.

Certain compromises must be made in order to recognize an international marriage. The major beneficiaries of online marriage solemnization are those who reside outside of India and are unable to travel there or supply the required documentation because they are inaccessible or nonexistent in their country.

We have all seen the usefulness of video conferencing over the last few years during the pandemic era when people were confined to their homes. Literally, if there were no electronic media, we would all be inactive for close to two years. The majority of people’s daily tasks, such as going to school or college, appearing before the court of law, and seeing a doctor were completed online.

Since video conferencing has such a wide range of uses, we continue to see its employment even in the post-pandemic era. Additionally, it is a well-established fact that video conferencing is a cost-effective as well as an environment-friendly alternative.  There have been a few judgments where the Hon’ble judges have pointed out the practicality and acceptability of video conferencing.

Vasmi Sudarshini v. The Sub Registrar: A petition for a writ of mandamus was filed under Article 226 of the Indian Constitution before Justice G.R Swaminathan, asking the court to order the respondent to conduct the marriage of the petitioner and the bridegroom via video conference and to register the same under the Special Marriage Act of 1954.

The court is of the opinion that in today’s cyber era, video conferencing is a viable medium of communication especially when physical presence is not possible. Hon’ble Court cited a speech delivered by Swami Vivekananda where he mentioned a scenario where to perform a certain ceremony a golden statue of Sita was erected by Rama to justify her absence.

Hon’ble Court also cited an observation made by a Supreme Court division bench that discussed the fact that the Special Marriage Act was enacted prior to the advancement in computer technology and the internet. It further emphasized that the law should not be too rigid not enabling parties to follow.

Parties should be enabled to choose their preferred way of solemnizing marriage. The court also cited a recent Information Technology Act case that ruled that laws must adapt to the demands of a developing society and that the Act’s interpretation should be practical.

According to the court, Sections 12 and 13 of the Special Marriage Act of 1954 should be interpreted in a way that fully satisfies the right to marriage, which is a basic human right. Thus, the court approved the previous method of marriage solemnization.

According to the Notaries Act of 1952, notarial acts completed by foreign notaries may be accepted in nations that also accept notarial acts completed by Indian notaries. The Diplomatic and Consular Officer (Oath and Fees) Act of 1948, Section 3, gives diplomatic and consular officers serving in foreign countries the authority to administer oaths and affidavits and perform notarial acts that may be performed by any notary public in that State.

Any legitimate authority in the State has reviewed or brought before them the extent of this section. The scope was further clarified in re: KK Ray and Elizabeth Rajan v. Inspector General of Registration and Others. Diplomatic officers in the Indian embassy in Canada are empowered to apostille affidavits and do notarial acts, which shall have the same effect as done by an authorized officer/attorney in India.

Shan S & anr. v. Marriage officer: Recently, the Kerala High Court granted a writ petition that enabled one of the parties to appear via online mode for the marriage ceremony before the marriage commissioner.

The petitioner, a Canadian with an abroad Indian citizen card, was permitted by Justice V.G. Arun to appear before the marriage officer for the solemnization of his marriage. As well, several restrictions were put in place. The petitioner’s attorney argued that it was impossible for the petitioner to provide the non-impediment to marriage certificate as required because Canadian law neither mandates nor allows for the issuance of a non-objection and bachelorhood certificate. This argument was based on the doctrine of impossibility.

The arguments drew significantly from the Apex Court’s ruling in State of MP v. Narmada Bachao Andolan, which considered the application of the doctrine of impossibility. The petitioner was permitted to submit an affidavit that had been properly notarized and attested in accordance with Section 3 in place of the “Non-objection and bachelorhood certificate” by the Hon’ble High Court, who followed the same legal precedent set forth in re: KK Ray and Elizabeth Rajan v. Inspector General of Registration and Others. The court further permitted appearance through online mode with certain conditions.

The crux of the applicability relies upon whether the court shall consider and understand the scope of application of the doctrines of “Lex non cogit ad impossiblilia” (the law does not compel a man to do what he cannot possibly perform). Why should the justice system ignore the highly relevant alternatives if some duties that are ordinarily required to be completed are impossible to complete due to their impracticality?

Conclusion

The more general inquiry would be whether or whether video conferencing should be employed in other unions governed by personal law, as well as any potential barriers. Should the judiciary extend existing rules governing exceptions in appearance, as stipulated in Section 132 of the Code of Civil Procedure, to cases that are more serious, such as Section 205 of the Criminal Procedure Code?

The actual video conferencing is where the main issue is. The conference’s quality will depend on a variety of elements, including network disruptions, the availability of adequate equipment, and user expertise. To enable the same in a wider segment of the community, significant technological reconstructions must be done.

This article has been submitted by Debarun Mukherjee, a student of BBA LL.B. at New Law College, BVDU Pune.