Madras HC.: Right to Marry in Fundamental Human Right, Permitted Virtual Solemnization of Marriage

Priya Gour

Published on: 3rd August, 2022 at 19:35 IST

The Madurai Bench of Madras High Court permitted a virtual marriage where it allowed a couple to solemnize their marriage via online mode, since both the partners resided in different countries. The Court also permitted the wife, who is residing in India to sign on the marriage certificate on behalf of her husband, due to power of attorney vested in her.

The Bench of Justice GR Swaminathan observed that parties are free to choose any form to solemnise their marriage under Section 12 of the Special Marriage Act 1954, conditional that the marriage is reasonable and recognised.

An application for registration of a marriage was submitted by a man who resides in the US. by coming to India, along with his partner, under Section 5 of the Act. After the publication of notification, objections were received which were later found to be unreasonable by the marriage officer. When the parties appeared after 30 days notice period for the registration of marriage before the respondent, the respondent denied solemnisation of the marriage for unknown reasons. In the time being, the groom had to return to the USA due to visa requirements.

Hence, the bride who resides in India, filed a plea before the Court to permit the solemnisation of the marriage as well as obtaining a valid marriage certificate.

The Court permitted the request made in the plea by holding that even proxy marriages have been permitted in India at several instances.

The Bench 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.”

The Court also referred to the mythological instance of marriage that took place in the epic Ramayana, where Justice Swaminathan noted:

”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.”

It was also held by the Court that Sections 12 and 13 of the Special Marriage Act, 1954 should be aligned with the ‘Right to Marry’ as a Fundamental Human Right. Alongside, a mention of the recent Judgment of the Kerala High Court where it emphasised on adapting as per the dynamic society, was made.

Henceforth, the Court permitted the solemnisation of the marriage as requested in the plea.

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