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'Right To Marry Is A Fundamental Human Right': Madras HC Allows Couple To Solemnize Marriage Virtually

Upasana Sajeev
3 Aug 2022 2:00 AM GMT
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Coming to the aid of a young couple, the Madras High Court allowed solemnisation of marriage through virtual mode with the groom in USA and bride in India. The court also allowed the bride's plea for getting marriage certificate by observing that she could affix signature in the certificate for both herself and the groom as she had a power of attorney to that effect.

Justice GR Swaminathan of the Madurai bench observed that Section 12 of the Special Marriage Act 1954, gives liberty to the parties to adopt any form of solemnisation of marriage provided that it must be recognised and reasonable and not against public policy. The court also discussed various instances in history where marriages were recognised even in the absence of any one of the parties. Even historically, many countries had recognised proxy marriages.

In the present case, however, the parties were not conducting a proxy marriage. The groom had flown in from USA to submit an application alomg with the bride under Section 5 of the Act. Notice was published and the objections were received from the groom's Father and another. The marriage officer, later came to the conclusion that the objections were unreasonable. After the mandatory 30 days notice period, the parties again physically approached the respodent for solemnisation. However, for unknown reasons, the Respondent officer did not facilitate the solemnization of marriage in his presence. In the meanwhile, the groom had to go back to the USA due to visa requirements. The court thus observed:

If the respondent had taken steps right then, the present situation would not have arisen at all. Just as an act of the court should not harm any party, the default committed by the authority ought not to result in prejudicial consequences.

He quoted Swami Vivekananda's lecture delivered at the Shakespeare club, California, where Swami Vivekananda discussed the story in Ramayana where Ram had placed a golden statue of Sita for performing a ceremony. Justice Swaminathan observed as under:

If a golden statue of Sita can be a substitute for her physical presence, I have no hesitation to hold that virtual presence through online would meet the requirements of law under Section 12 of the Special Marriage Act, 1954.

He also discussed an observation made recently by a division bench of Supreme Court comprising Justice Indira Banerjee and Justice V. Ramasubramanian where they orally observed that "the Special Marriage Act was enacted in 1954 whereas the technology of computer and internet was introduced much later. Law has to march along with technology. Where there is difficulty, the letter of law cannot be so rigid that it makes it impossible for the parties to follow".

The court also noted a recent decision of the Kerala High Court where Justice PB Suresh Kumar, after considering the precedents and the provisions of the Information Technology Act had held that law must respond to the needs of changing society and that a pragmatic interpretation of the Act must be adopted.

Since there was no contrary decision of the Division Bench of the Madras High Court, the court observed that Right to marry was a fundamental human right and Sections 12 and 13 of the Special Marriage Act, 1954 should be so construed as to effectuate this right. The court thus permitted solemnisation of marriage in the manner provided earlier.

Case Title: Vasmi Sudarshini v. The Sub Registrar

Case No: W.P(MD)No.15511 of 2022

Citation: 2022 LiveLaw (Mad) 329

Counsel for the Petitioner: Mr.M.Gnanagurunathan

Counsel for the Respondent: Mr.K.S.Selvaganesan Additional Government Pleader


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