Renchu Joseph and Jobin Pichanattu James v. The Marriage Registrar (The Sub Registrar), Sub Registrar Office, Perunadu, Ranny City, Pathanamthitta

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 ## WP(C) NO. 7002 OF 2023 ## PETITIONER/S: 1 RENCHU JOSEPH AGED 34 YEARS D/O JOSEPH K.D, KUZHITHOTTIYIL HOUSE, RAMAPURAM BAZAR P.O., VELLILAPPALLI VILLAGE, MARANGADU MURI, MANJADIMATTAM, MEENACHIL TALUK, KOTTAYAM DISTRICT – 686 576. REPRESENTED BY HER POWER OF ATTORNEY HOLDER, JOSEPH K.D, AGED 65 YEARS S/O DEVASYA, KUZHITHOTTIYIL HOUSE, RAMAPURAM BAZAR P.O., VELLILAPPALLI VILLAGE, MARANGADU MURI, MANJADIMATTAM, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN – 686 576. 2 JOBIN PICHANATTU JAMES AGED 34 YEARS S/O JOHN JAMES, PICHANATTU HOUSE, KUMPLAMPOIKA P.O., VADASSERIKKARA, PATHANAMTHITTA, PIN – 689 661. BY ADV AJEESH K.SASI ## RESPONDENT/S: THE MARRIAGE REGISTRAR ( THE SUB REGISTRAR), SUB REGISTRAR OFFICE, PERUNADU, RANNY CITY, PATHANAMTHITTA -, PIN – 689 711. SMT. RESHMI.K.M, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 7002/2023 : 2 : **SHAJI P. CHALY, J.** --------------------------------------------------------W.P.(C). No. 7002 of 2023 --------------------------------------------------------Dated this the 10[RD] day of March, 2023. **JUDGMENT** The petitioners have filed this writ petition seeking a direction to the respondent—Marriage Registrar (the Sub Registrar), Sub Registrar Office, Perunadu, to permit the first petitioner to appear online or through video conferencing for solemnization of marriage as sought for in Exhibit P2 notice of intended marriage; and for other related reliefs. 2. Basic material facts for the disposal of the writ petition are as follows: The petitioners, being desirous of entering into a marriage, preferred an application/notice of intended marriage under the Special Marriage Act, 1954 (‘Act, 1954’ for short) before the respondent Marriage Registrar on 18.01.2023. It is submitted that based on the above application, the respondent sent intimation to the petitioners requiring them to appear on 24.02.2022 for solemnization of marriage. 3. According to the petitioners, in the meanwhile, the first petitioner received an intimation from his employer to return back on 10.02.2023 for joining duty at Saudi Arabia. Thereupon, the first petitioner has made Exhibit P3 request before the respondent on W.P.(C) No. 7002/2023 : 3 : 24.02.2023 for solemnization of marriage with the second petitioner. However, the same was not considered and the respondent Marriage Registrar has insisted for the personal appearance of the parties to solemnize the marriage. It was in the said background that instant writ petition is filed. 4. I have heard the learned counsel for the petitioner Shri. Ajeesh K. Sasi and the learned Senior Government Pleader Smt. Reshmi K.M, and perused the pleadings and materials on record. 5. 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, 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. 6. The learned Senior Government Pleader 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. 7. I have evaluated the rival submissions made across the Bar. W.P.(C) No. 7002/2023 : 4 : 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. - 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 W.P.(C) No. 7002/2023 : 5 : 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: 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 W.P.(C) No. 7002/2023 : 6 : 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 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 W.P.(C) No. 7002/2023 : 7 : 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 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.” 8. 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 respondent Marriage Registrar to solemnize the marriage of the petitioner 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 petition is allowed as above. sd/- **SHAJI P. CHALY, JUDGE.** Rv W.P.(C) No. 7002/2023 : 8 : ## **APPENDIX OF WP(C) 7002/2023** ## PETITIONER’S EXHIBITS: Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 06.02.2023 EXECUTED BY THE FIRST PETITIONER. Exhibit P2 TRUE COPY OF THE NOTICE OF INTEND TO MARRIAGE BY THE PETITIONERS BEFORE THE RESPONDENT. Exhibit P3 TRUE COPY OF THE REQUEST/REPRESENTATION DATED 07.02.2023 PREFERRED BY THE 1ST PETITIONER. Exhibit P4 TRUE COPY OF THE RETURN E-TICKET COPY OF THE 1ST PETITIONER. ## RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge. rv