[Special Marriage Act] Registering Authority Cannot Refuse Online Solemnization Of Marriage: Kerala High Court

The Kerala High Court recently held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas made its interim order dated September 9, 2021

in this regard absolute, and directed the State Government to follow the directions therein until the Government prescribes any other mode for compliance. 

The Court in this case was dealing with a batch of writ petitions on a reference by Justice P.B. Suresh Kumar dated August 25, 2021. The Single Judge had therein, relied upon the doctrine of ‘updating construction’ as enunciated by the Apex Court which enables courts to interpret provisions of an ongoing statute in a manner suitable to the changes that have occurred since the passing of the statute in social conditions, technology, and so on. The doctrine is based on a presumption that the legislature intends the Court to apply to an ongoing statute a construction that continuously updates its wordings to accommodate 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 [Special Marriage Act] 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 Single Judge had observed. 

It had further been stated that marriage, as per common law, constitutes a contract between a man and a woman, and although the Special Marriage Act prescribed a procedure for solemnization of marriage, the basic character of the marriage remained that of a Contract. The Single Judge had therefore added that the provisions of the Information Technology Act, 2000 would also assume relevance in such context.