Kerala High Court
Anjusha Kuriakose vs State Of Kerala on 1 March, 2023
W.P.(C) No. 1749 & 1858 of 2023
: 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
WP(C) NO. 1749 OF 2023
PETITIONER/S:
1 BILBIN JOY
AGED 30 YEARS
SON OF JOY M.M., AGED 30 YEARS, MOONJANATTU, VANNAPURAM,
VANNAPURAM P.O., IDUKKI DISTRICT., PIN - 685 607.
2 VIDYA T.N.,
AGED 25 YEARS
DAUGHTER OF NADARAJAN T.G., AGED 25 YEARS, THOTTIYIL
KANDATHIL, KAKKAD, PIRAVOM, PIN - 686 664.
BY ADVS.
P.M.MOHAMMED SHIRAZ
AMJATHA D.A.
RESPONDENT/S:
THE MARRIAGE OFFICER & SUB REGISTRAR
SUB REGISTRY OFFICE, MINI CIVIL STATION, PIRAVOM,
ERNAKULAM DISTRICT, PIN - 686 664.
BY ADV ADVOCATE GENERAL OFFICE KERALA
SMT.DEEPA NARAYANAN,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2023,
ALONG WITH W.P.(C) NO 1858/2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C) No. 1749 & 1858 of 2023
: 2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
WP(C) NO. 1858 OF 2023
PETITIONER/S:
1 ANJUSHA KURIAKOSE
AGED 26 YEARS
D/O KURIAKOSE.T.C AGED 26 YEARS THEKKUMKATTIL HOUSE
PALAKUZHA,MARIKA.P.O MUVATTUPUZHA,ERNAKULAM DT ,, PIN -
686 662.
2 STEPHEN JOSEPH
S/O N.C.CHACKO AGED 27 YEARS NARICHUKUNNEL,EDANADU
VALLICHIRA, ARUNAPURAM.P.O KOTTAYAM DT,, PIN - 686 574.
BY ADVS.
FRANKLIN ARACKAL
P.D.JAYAN MON
NEETHU SOMAN
RESPONDENT/S:
1 STATE OF KERALA
REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF TAXES,
(REGISTRATION) GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
2 THE INSPECTOR GENERAL OF REGISTRATION
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR P.O., THIRUVANANTHAPURAM -, PIN - 695 001.
3 THE MARRIAGE OFFICER AND SUB REGISTRAR,
OFFICE OF THE SUB REGISTRAR, MEENACHIL SUB-REGISTRAR
OFFICE, KOTTAYAM DISTRICT PIN-, PIN - 686 575.
4 THE DEPARTMENT OF INFORMATION AND TECHNOLOGY,
REP. BY ITS SECRETARY, GOVERNMENT OF INDIA, ELECTRONICS
NIKETHAN, 6,CGO COMPLEX, LODHI ROAD, NEW DELHI., PIN - 110
003.
5 THE MINISTRY OF EXTERNAL AFFAIRS,
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF INDIA,
J674+54V, E BLOCK, CENTRAL SECRETARIAT, NEW DELHI,, PIN -
110 001.
BY ADV ADVOCATE GENERAL OFFICE KERALA
W.P.(C) No. 1749 & 1858 of 2023
: 3:
R1 to R3 BY SMT.RESHMI.K.M,SENIOR GOVERNMENT PLEADER
R4 & R5 BY SRI.S.MANU, DEPUTY SOLICITOR GENERAL OF INDIA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.03.2023, ALONG WITH W.P.© NO. 1749/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 1749 & 1858 of 2023
: 4:
SHAJI P. CHALY, J.
---------------------------------------------------------
W.P.(C). Nos. 1749 & 1858 of 2023
---------------------------------------------------------
Dated this the 1st day of March, 2023.
JUDGMENT
The captioned writ petitions are filed by the petitioners
basically seeking a writ of mandamus permitting the petitioners to
appear online for registering the marriage under the Special
Marriage Act, 1954 ('Act, 1954' for short) and to do consequential
acts through a power of attorney. Therefore, I heard them together
and proposed to pass this common judgment.
2. The petitioners in W.P.(C) No. 1749 of 2023 are citizens of
India and they have attained majority. With the intention of getting
married under the provisions of the Act, 1954, they gave Exhibit P1
Notice of intended marriage dated 30.12.2022 to the Marriage
Officer and Sub Registrar, Piravom, Ernakulam District.
3. The convenient date of marriage was fixed as 30.01.2023
and the first petitioner remitted the requisite fee on 03.01.2023, as
is evident from Exhibit P2. According to the petitioners, notice was
published in the notice board of the Sub Registry Office as is
required under the statute.
4. The case of the petitioners is that the first petitioner was
W.P.(C) No. 1749 & 1858 of 2023
selected for M.Sc Global Logistics Operations and Supply Chain
Management at a University in the United Kingdom and the course
was scheduled to start physically on 23.01.2023, as is evident from
Exhibit P3 confirmation of acceptance for studies details. Therefore,
he submitted an application before the Marriage Officer seeking
exemption from personal appearance, and requested the
respondent to exempt him from appearing in person before the
Marriage Officer at the time of marriage, as is evident from Exhibit
P4 application dated 09.01.2023.
5. The first petitioner has also appointed one Gopalakrishnan
M.K as his power of attorney for the purpose of performing
essentials for registering the marriage and has undertaken to
appear before the Marriage Officer through any online medium.
According to the first petitioner, even though he personally met the
Marriage Officer, he insisted that both the petitioners have to
appear in person to register the marriage, evident from Exhibit P5
dated 12.01.2023. According to the first petitioner, since he is
away in the United Kingdom, he will not be in a position to return
within the prescribed period for registering the marriage.
6. The petitioners in W.P.(C) No. 1858 of 2023 are
permanent residents of Kottayam, evident from Exhibits P1 and P2
aadhaar cards. On 16.01.2023, a notice under Section 5 of the
W.P.(C) No. 1749 & 1858 of 2023
Act, 1954 was given for physically appearing before the Marriage
Officer and the Sub Registrar, Office of the Sub Registrar,
Kottayam District, evident from Exhibit P3. But, fact remains,
petitioner No.1 is a graduate in B.Sc Nursing and since March,
2022, she is working at University Hospitals of Leicester NHS Trust,
England, U.K as a registered nurse; whereas, the second petitioner
is working as Hospitality Manager in Dubai, U.A.E.
7. Therefore, according to the petitioners, in order to
register the marriage, Exhibit P3 Notice of intended marriage dated
16.01.2023 was given and there is no other alternative than
solemnization of marriage online.
8. I have heard the learned counsel for the petitioner Shri.
Muhammad Shiraz and Sri. Franklin Arackal, learned Senior
Government Pleaders Smt. Deepa Narayanan and Smt. Reshmi
K.M.and the learned Deputy Solicitor General of India Sri. S. Manu,
and perused the pleadings and materials on record.
9. The learned counsel for the petitioners submitted that the
question with respect to the validity of solemnization of marriage
under the provisions of the Act, 1954 through Video Conferencing
was considered by a Division Bench of this Court in Arun R.K. and
anr. v. State of Kerala and Ors. [2023(1) KLJ 758 = 2023 SCC
Online Ker. 817], and after considering the provisions of the Act,
W.P.(C) No. 1749 & 1858 of 2023
1954, Information Technology Act, 2000 and the proposition of law
evolved by the various High Courts, it is held that the marriages
under the Act, 1954 can be solemnized online.
10. The learned Senior Government Pleaders submitted that
going by the provisions of the Act, 1954, they are peremptory in
nature and the marriage can be solemnized under the Act, 1954
only if the parties personally appeared before the marriage Officer
concerned.
11. I have evaluated the rival submissions made across the
Bar. In my considered opinion, this question was elaborately
considered by the Division Bench in Arun R.K (supra) and after
analysing the pros and cons, it is held as follows:
"...
Thereafter, the matter came before us for passing interim orders.
We also, holding the same view of the learned Single Judge and
following the judgment of the Apex Court in State of Maharashtra v. Dr.
Praful B. Desai [(2003) 4 SCC 601], passed the following order on
9/9/2001.
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.
W.P.(C) No. 1749 & 1858 of 2023
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 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 appears 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.
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.
3. The Special Marriage Act, 1954 is an ongoing statute. The Court often,
while referring to the intent and purpose of the Statute, will have to adopt
tools of interpretation in the context of the statute. The Supreme Court in
Senior Electrical Inspector v. Laxmi Narayana Chopra [AIR 1962 SC 159] while
interpreting the expression 'telegraph line' under the Indian Telegraph Act,
1885 held that it would take in the wires used for the purpose of the
apparatus of the Post and Telegraph Wireless Station. It is appropriate to
refer to the opinion of the Apex Court in giving a wider meaning to the
expression 'telegraph line' thus:
W.P.(C) No. 1749 & 1858 of 2023
The legal position may be summarized thus:
The maxim contemporanea expositio as laid down by Coke was applied to
construing ancient statutes, but not to interpreting Acts which are
comparatively modern. There is a good reason for this change in the mode of
interpretation. The fundamental rule of construction is the same whether the
Court is asked to construe a provision of an ancient statute or that of a modern
one, namely, what is the expressed intention of the Legislature. It is perhaps
difficult to attribute to a legislative body functioning in a static society that its
intention was couched in terms of considerable breadth so as to take within its
sweep the future developments comprehended by the phraseology used. It is
more reasonable to confine its intention only to the circumstances obtaining at
the time the law was made. But in a modern progressive society it would be
unreasonable to confine the intention of a Legislature to the meaning
attributable to the word used at the time the law was made, for a modern
Legislature making laws to govern a society which is fast moving must be
presumed to be aware of an enlarged meaning the same concept might attract
with the march of time and with the revolutionary changes brought about in
social, economic, political and scientific and other fields of human activity.
Indeed, unless a contrary intention appears, an interpretation should be given
to the words used to take in new facts and situations, if the words are capable
of comprehending them. We cannot, therefore, agree with the learned Judges
of the High Court that the maxim contemporanea expositio could be invoked
in construing the word "telegraph line" in the Act.
4. The Apex Court in Praful D. Desai (Dr) case (supra), after referring to the
principles of interpretation of an ongoing statute by Francis Bennion in his
commentaries titled Statutory Interpretation, opined that the ongoing
statute must be interpreted in space and time to give effect to the intention
of the legislature. The learned Judge reproduced the relevant paragraphs of
the said judgment at para.10 of his reference order as mentioned in the
W.P.(C) No. 1749 & 1858 of 2023
aforenoted paragraph.
5. The Special Marriage Act has to be construed with time, especially, in the
light of the Information Technology Act, 2000. Section 6 of Information
Technology Act recognise the use of electronic records in Government and
its agencies. Section 6 reads thus:
6. Use of electronic records and electronic signatures in government and its
agencies.
(1) Where any law provides for--
(a) the filing of any form, application or any other document with any
office, authority, body or agency owned or controlled by the
appropriate government in a particular manner;
(b) the issue or grant of any licence, permit, sanction or approval by
whatever name called in a particular manner;
(c) the receipt or payment of money in a particular manner, then,
notwithstanding anything contained in any other law for the time being
in force, such requirement shall be deemed to have been satisfied if
such filing, issue, grant, receipt or payment, as the case may be, is
effected by means of such electronic form as may be prescribed by the
appropriate government.
(2) The appropriate government may, for the purposes of sub-section (1), by
rules, prescribe---
(a) the manner and format in which such electronic records shall be filed,
created or issued;
(b) the manner or method of payment of any fee or charges for filing,
creation or issue any electronic record under clause (a).
6. Therefore, we have no difficulty to hold that the registering
W.P.(C) No. 1749 & 1858 of 2023
authority under the Special Marriage Act cannot refuse solemnisation of
marriage online. We make our interim order dated 9/9/2021 absolute and
we also direct the State Government to follow the directions in the interim
order for solemnisation of marriage under the Special Marriage Act in all
other matters until the Government prescribes any other mode for
compliance.
7. These writ petitions stand disposed of as above."
12. Therefore, it can be seen that the interim order passed
by the Division Bench was made absolute and issued directions
accordingly. I am in respectful agreement with the findings
rendered by the Division Bench and accordingly, there will be a
direction to the respective Marriage Officers to solemnize the
marriage of the petitioners online, in terms of the judgment in Arun
R.K (supra). The petitioners are also directed to comply with the
directions contained in the said judgment.
Writ petitions are allowed as above.
sd/- SHAJI P. CHALY, JUDGE.
Rv
W.P.(C) No. 1749 & 1858 of 2023
APPENDIX OF WP(C) 1749/2023
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE PHOTOCOPY OF NOTICE OF INTENDED
MARRIAGE DATED 30/12/2022 OF THE PETITIONERS.
Exhibit P2 TRUE PHOTOCOPY OF ACKNOWLEDGMENT CUM
RECEIPT FOR SPECIAL MARRIAGE DATED 03/01/2023.
Exhibit P3 TRUE PHOTOCOPY OF CONFORMATION OF
ACCEPTANCE FOR STUDIES DETAILS DATED NIL
Exhibit P4 TRUE PHOTOCOPY OF APPLICATION DATED
09/01/2023 OF THE 1ST PETITIONER.
Exhibit P5 TRUE PHOTOCOPY OF LETTER DATED 12/01/2023 OF
THE RESPONDENT.
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
W.P.(C) No. 1749 & 1858 of 2023
APPENDIX OF WP(C) 1858/2023
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE
PETITIONER NO.1
Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE
PETITIONER NO.2
Exhibit P3 TRUE COPY OF THE NOTICE OF INTENDED MARRIAGE
DATED 16/1/2023 GIVEN BY THE PETITIONERS TO
THE THE 3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE E TICKET RECEIPT DATED
8/12/2022 CONFIRMING THE FLIGHT BOOKING OF
THE PETITIONER NO.1 TO HEATHROW, ENGLAND, U.K
Exhibit P5 TRUE COPY OF THE ELECTRONIC TICKET RECORD
DATED 8/12/2022 , CONFIRMING THE FLIGHT
BOOKING OF THE PETITIONER NO.2 TO DUBAI,UAE
Exhibit P6 TRUE COPY OF THE JUDGMENT IN W.P(C)NO
12019/2022 DATED 07.04.2022 PASSED BY THE
HON'BLE HIGH COURT OF KERALA.
Exhibit P7 TRUE COPY OF THE POWER OF ATTORNEY DATED
18/1/2023 EXECUTED BY THE PETITIONER NO.1 IN
FAVOUR OF HER FATHER
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
