Physical Presence Not Must To Register Special Marriage Act Wedding: Court

Weddings under the Special Marriage Act can be registered without insisting upon the physical presence of the parties, the Kerala High Court said today.

However, the challenge was identification of both the parties by the marriage officer and one of the options for that is use of technology like facial recognition software or biometrics, the high court said.

Noting that the court does not have the expertise to work out the modalities on use of technology for such matters, a bench of Justices A Muhamed Mustaque and Kauser Edappagath impleaded the Department of Information Technology and the Ministry of External Affairs as parties in the matter.

The bench directed the central government's lawyer to seek instructions on the government policies on facial recognition and other data tools for the identification of the parties.

The court was hearing a batch of pleas referred to a larger bench by a single judge to deal with the issue of whether a wedding under Act can be solemnised/registered online via video conference without insisting on the physical presence of the bride and groom.

The single judge, Justice P B Suresh Kumar, was of the view that parties to an intended marriage can certainly be permitted to solemnise the marriage by exchange of words through video conference.

He had expressed the view while hearing the batch of petitions which had contended that personal physical presence of the bride and groom was not necessary for solemnisation of nuptials under the Act.

Justice Kumar had referred the matter to a larger bench as two other judges of the Kerala High Court had ruled that solemnisation of marriages under Special Marriage Act via videoconference would dilute the provisions of the Act and that physical presence of both parties was mandatory.

Appearing to agree with the view of Justice Kumar and the contentions of the petitioners, the bench today said, "We have no hesitation to hold that the marriage under the SMA can be registered without insisting for physical presence of the parties before the Marriage Officer.

"However, the Marriage Officer must be in a position to identify the parties. But the manner in which such identification can be made online is a concern for us."

The bench said that two modes have been suggested during the hearing and one of them was to be physically present before the Consulate, if the couple was residing abroad, or before the authority recognised under the domestic law.

"The second mode is developing a technology tool for identifying the parties with reference to facial recognition or with bio metrical credentials," it said.

The state, meanwhile, was not in favour of online solemnisation of marriages under the Act.

It had contended before the single judge that solemnisation of marriage was mandatory prior to registering it under the Act and therefore, presence of the two sides and the witnesses is required before the Marriage Officer.

It has further contended that another requirement for solemnisation of the marriage was that at least one of the two parties has to be a resident of the area within the territorial limits of the Marriage Officer for minimum 30 days prior to issuing the notice of the intended nuptials.

Therefore, two persons living abroad cannot have their marriage solemnised online if they do not satisfy the residence requirement, it had argued.