Court allowed online marriage registration as per Special Marriage Act procedures despite one party's physical absence.

JUDGMENT

The above writ petition is filed with the following prayers:-

“1.Issue a writ of mandamus or any other appropriate writ, order, or direction directing the third respondent to permit the solemnisation of marriage of the petitioners under the Special Marriage Act, 1954 , without insisting on the personal appearance of the first petitioner

2. Declare that insistence on mandatory personal appearance of both parties, in the facts and circumstances of the case, is illegal and unconstitutional”

2. The grievance of the petitioners is that the first petitioner, due to certain employment exigencies, had to return to Dubai and is not in a position to appear in person before the registering authority. Though it is stated in the writ petition that they had given representation before the registering authority to permit them to appear online, the registering authority has not considered the said representation. However, no representation is filed by the petitioners before this Court to show that any such request was made before the registering authority.

3. The learned Government Pleader, on instructions, submits that the registering authority is ready and willing to permit the first petitioner to appear online after the notice period on proper application.

4. This Court, in Arun R.K. v. State of Kerala [2023(2)

KHC 391][DB], has held that the registering authority under the Special Marriage Act, 1954 (for short, “the Act”), cannot refuse the solemnisation of marriage online. This Court also delineated the procedure to be followed in such cases until the Government prescribes any other mode for compliance. In Arun R.K. (supra), the Division Bench of this Court has clearly formulated the procedures to be followed when one of the parties to the marriage is not able to be physically present before the registering authority. The Government, as per the judgment of this Court in W.P(C) No.2072/2021 and connected cases [vide Circular No.J2/238/2023/TD dated 03.11.2023], has also instructed all marriage officers of the State for the online registration of marriage under the Act. The Marriage Officer cannot refuse solemnisation or registration of marriage online.

5. Since the first petitioner is not in a position to appear personally before the registering authority to register the marriage on completion of thirty days waiting period, as held by the division bench of this Court in Arun R.K. (supra), the registering authority can permit the first petitioner to appear online and be represented through his power of attorney holder.

6. Therefore, considering the facts and circumstances of the case and the prayer made in the writ petition, I find that the writ petition can be disposed of, directing the third respondent to register the marriage through online subject to the following conditions:

a) The third respondent shall permit the parties to the marriage to appear online.

b) The witnesses required for registration of marriage shall be present before the third respondent.

c) The witnesses shall identify the party who is online.

d) The copy of passport or any other public document in respect of the party, who appear online, shall be provided to the third respondent for identification by the third respondent.

e) Wherever signature of the party is required, that shall be affixed by the authorised Power of Attorney of the party or any agent, who produces any other official document recognised under the Indian law on behalf of the party, who appears online.

f) All other necessary formalities as required by law shall be complied with before registration of marriage. g) The third respondent shall fix the date and time and convey the same to the parties in advance.

h) The third respondent is free to fix the mode of the online