Kerala High Court
Arun R.K vs The State Of Kerala on 9 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Thursday, the 9th day of September 2021 / 18th Bhadra, 1943
WP(C) NO. 2072 OF 2021(H)
PETITIONERS:
1. ARUN R.K. AGED 28 YEARS S/O.MADHUSOODANAN.P., RESIDING AT CHITHRA,
KUMMANAM, ELAMPARA (PO), KANNUR DISTRICT, PIN-670 595.
2. MANJUSHA JOSE, AGED 27 YEARS D/O.JOSE MOONNANAL, RESIDING AT
MOONNANAL HOUSE, AINGOTH, PADANEKKAD (PO), KASARAGOD DISTRICT,
PIN-671 314.
RESPONDENTS:
1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
REGISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695
001.
2. THE SPECIAL MARRIAGE OFFICER, SUB REGISTRAR OFFICE, IRITTY ROAD,
MATTANUR (PO),KANNUR DISTRICT, PIN-670 702.
3. ADDL. R3 DEPARTMENT OF INFORMATION TECHNOLOGY, GOVERNMENT OF INDIA.
4. ADDL. R4 MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA ARE
SUOMOTU IMPLEADED AS PER ORDER DATED 06-09-2021.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the 2nd respondent to register the marriage of the
petitioners, without compelling the physical presence of 2nd petitioner,
and permit the presence of 2nd petitioner through video conferencing,
dehors Exhibit P5 order, pending the disposal of Writ Petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
06-09-2021 and upon hearing the arguments of M/S JAWAHAR JOSE, CISSY
MATHEWS, JAISON ANTONY, Advocates for the petitioners,the court passed the
following
A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.
=========================
W.P.(C).Nos.2072/2021, 15244/2021, 16281/2021,
17686/2021 & 18260/2021
~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 9th day of September, 2021
ORDER
A.Muhamed Mustaque, J.
These cases have come up before us to consider a question of
importance having far reaching consequence in public
governance in the era of technology and digital governance.
We, in these matters, are required to decide upon a question of
application of existing law to govern relationship in bricks and
mortar system to govern the relationship in virtual reality. We
cannot hurriedly decide this question. Taking note of the urgency
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
on which we have to address relatable to the plight of the ligitants
before us, we proposed to issue this interim order.
2. The short question having multitudinal dimension in public
governance is this - can solemnisation of marriage or registration
of marriage as referred to in the Special Marriage Act, 1954 be
permitted through online mode or not?
3. A learned Single Judge set out the details in his detailed
reference order on 25/8/2021. The learned Single Judge could
have decided the matter, but referred to us taking note of the
contrary views taken by another learned Single Judge in Dioncey
Augustine v. State of Kerala [2019 SCC Online Kerala 13112] and
Shitha V.K. v. The District Registrar (General) [W.P.(C).No.3421 of
2021]. The learned Single Judge with all clarity and exposition of
law and interpretation of statute was of the firm view that Special
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
Marriage Act is an ongoing statute and provisions therein will
have to be interpreted in tune with the time. The learned Single
Judge placed reliance on the proposition of law laid down in State
of Maharashtra v. Dr.Praful B.Desai [(2003) 4 SCC 601]. We are
in respectful agreement with the learned Single Judge and, for the
same reasons set out in the order dated 25/8/2021, we uphold
this view. However, we will fail in our duty if we do not address
the consequence that would be followed on a direction to the
Marriage Officer to permit solemnisation and registration of
marriage through video conferencing or through online mode.
This is for the simple reason that there are no mechanism in place
governing implementation of statutory provision in the light of
interpretation of law and the meaning assigned to the law in the
era of technology and digital governance. If the public
administration is not modernised - its structure and function, the
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
law would remain incongruous to defeat the objectives it required
to secure.
4. We have to consider three questions in these matters which are
formulated as follows:
i. whether the statutory provisions under the Special Marriage
Act covers solemnisation or registration of the marriage through
online?
ii. Do citizens have right to demand digital service in matters
affecting well being or related to life?
iii. Is the right to marriage a part of right to life or not?
5. In regard to the first question, we have to answer the same
in this interim order itself in the light of the reasons referred in
the reference order. We will elaborately deal with the above
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
point also while pronouncing the final judgment along with the
questions referred to above. Considering the urgency involved,
we pass this interim order with the following directions:
I. The Marriage Officers under the Special Marriage Act in all
these cases are directed to solemnise marriage or register
the marriage, as the case may be, through online subject to
the conditions hereafter referred:
i. The witnesses required for solemnisation of marriage shall
be present before the Marriage Officer.
ii. The witnesses shall identify the parties who are online.
iii. The copies of passport or any other public documents in
respect of the parties who appear online shall be provided to
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
the Marriage Officer for identification by the Marriage
Officer.
iv. Wherever signature of parties are required, that shall be
affixed by the authorised Power of Attorney of the parties or
any agent who produce any other official documents
recognised under the Indian law on behalf of the parties
who appeare online.
II. All other necessary formalities as required by law shall be
complied with before solemnisation of marriage.
III. The Marriage Officer shall fix the date and time and convey
the same to the parties in advance.
IV. The Marriage Officer is free to fix the mode of online
platform.
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
V. The Marriage Officer is directed to comply with the
directions as expeditiously as possible on completion of the
statutory formalities.
VI. On solemnisation of marriage, the certificate of marriage
shall be issued in the manner as referred to in Section 13 of
the Special Marriage Act.
6. These cases are posted for further hearing to await views of
the Central Government and State Government to find
technological solution within the legal frame work to support
online solemnisation or registration of the marriage.
7. In the meanwhile, the learned State Attorney is directed to
place the views of the Government and experts/public officials in
light of the interaction we had with the Principal Secretary of IT
W.P.(C).Nos.2072/2021, 15244/2021,
16281/2021, 17686/2021 & 18260/2021
Department, Shri Mohammad Safarulla, I.A.S. and IT Mission
Director, who came online based on the request made by us.
8. The proceedings conducted for registration or solemnization
of the marriage shall be recorded in the official records. In view
of the fact that the matters are pending before this Court and also
taking note of Covid - 19 situation in the State and the Country,
the outer time limit which has already been expired for
solemnisation or registration of the marriage, will stand extended
by this order, until the time fixed by the Marriage Officer.
Post on 23.9.2021.
Sd/- A.MUHAMED MUSTAQUE, JUDGE
Sd/- DR.KAUSER EDAPPAGATH, JUDGE
ms
09-09-2021 /True Copy/ Assistant Registrar
