Bilbin Joy and Vidya T.N. v. Marriage Officer & Sub Registrar, Piravom, Ernakulam District; and Anjusha Kuriaokose and Stephen Joseph v. State of Kerala and Others

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 1[ST] 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 1[ST] 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 1[st ] day of March, 2023. ## 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 : 5: 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 : 6: 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 : 7: 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 : 8: - 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: : 9: ## 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 : 10: ## 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 ## : 11: 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 : 12: ## 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 : 13: ## 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 rv PS To Judge.