IMPORTANT POINT
Right to marry is a fundamental human right – Sections 12 and 13 of Special Marriage Act, 1954 should be so construed as to effectuate this right – Section 12 of Act does not exclude virtual presence.

ORDER

“There came a time when Rama was going to perform a huge sacrifice, or yajna, such as the old kings used to celebrate. But no ceremony in India can be performed by a married man without his wife; he must have the wife with him, the sahadharmini, the “co-religionist” - that is the expression for a wife. The Hindu householder has to perform hundreds of ceremonies but not one can be duly performed according to the shastras, if he has not a wife to complement it with her part in it.

Now Rama’s wife was not with him then, as she had been banished. So, the people asked him to marry again. But at this request Rama for the first time in his life stood against the people. He said, “this cannot be. My life is Sita’s”. So, as a substitute, a golden statue of Sita was made, in order that the ceremony could be accomplished”.

The above quotation is from Swami Vivekananda’s lecture delivered at the Shakespeare club, California on 31.01.1900. 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. Recently, a Division Bench of the Hon’ble Supreme Court comprising Justice Indira Banerjee and Justice V. Ramasubramanian orally observed “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”.

2. Vasmi Sudharshini P N is a resident of Kanyakumari. Rahul L. Madhu is an American national. Both fell in love. They want to get married. Rahul came down to India and submitted a joint application with the petitioner before the respondent under Section 5 of the Special Marriage Act, 1954 on 05.05.2022. Notice was published on 12.05.2022. Objections were received from Rahul’s father and another. The marriage officer came to the conclusion that the objections are not reasonable. The mandatory 30 days period expired on 12.06.2022. The parties appeared before the respondent on 13.06.2022. For reasons not quite discernible, the respondent did not facilitate the solemnization of marriage in his presence. Rahul could not wait further as he had to return owing to Visa requirements. Now the demand made by the parties is that they should be allowed to solemnize their marriage under Section 12 of the Act even though the bride is in India and the bridegroom is in USA.

3. Section 12 of the Special Marriage Act, 1954 is as follows:—

“12. Place and form of solemnization.—(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-”I, (A), take the (B), to be my lawful wife (or husband)”.

It can be seen from the above that choice is given to the parties to adopt any form of solemnization of marriage. Of course, the form must be recognised and reasonable and not against public policy. One has read in history books that a Rajput bride can marry a Rajput warrior by garlanding his sword. A hundred years ago when the world witnessed the First World War, the Judge Advocate General rendered an opinion that soldiers abroad might marry their sweethearts in the United States through interchanging a marriage contract by mail, provided that such marriage does not contravene State statutes and that this method might properly be facilitated by the military authorities in France. Ernest G.Lorenzen had written a