Marriage under Special Marriage Act can be registered through video conference: Kerala High Court

The Kerala High Court on Monday stated that in view of technological advancements, marriages under Special Marriage Act (SMA), 1954 could be registered though video conference (Dhanya Martin v State of Kerala)..The observation was made by a Division Bench of Justices A Muhamed Mustaque and Kauser Edappagath while hearing a group of petitions filed by persons seeking to solemnise their marriage under SMA through video conference.These cases were placed before the Division Bench after they were referred to it by a single-judge on August 25.The Court on Monday stated at the outset that it is inclined to allow the matter and that its only concern was regarding the method of identification of parties as they appear online for registration of their marriage. "We have no difficulty to hold that, in the era of technology, marriage under SMA can be registered without insisting on the physical presence of the parties before the marriage officer. However the marriage officer must be in a position to identify the parties. The manner in which such identification is to be made online is a concern for us", the Court stated. The Court proceeded to note that the parties have suggested two modes for identification. "One, physical presence of the parties before the Consulate, if they are residing abroad or before such authority which could be recognised under domestic law. Second mode is developing technological tools for identifying the parties with reference to facial recognition and biometric credentials," the order stated. .The Court informed Assistant Solicitor General (ASG) R Suvin Menon that it would require the Central government's assistance in formulating a mechanism that would enable usage of already existing data and technology for this purpose. While the ASG raised concerns regarding misuse of data and restrictions on usage of facial recognition even in criminal trials, the Court emphasised that such concerns can be addressed but the use of technological advancements for positive purposes must be encouraged."It may have limitations for using against a person, but it can be used to further the interest of individuals. We can maximise the positives and we can restrict the negative aspects," the Court said.The Court also touched upon the importance of establishing a uniform marriage law for ease of online registration of marriage and divorce in the future."We should shift everything online. That's the reason we need to have a common marriage law. Every marriage should be compulsorily registered.Whether you marry in personal way or Hindu or Christian or Muslim way, that can be private and personal. But marriage should be under public law where it should be compulsorily registered. We will stress on this again. Because in the technological era, you can't still bank on the physical form of registration of marriage" ,the Bench said..Government Pleader Gopi Nathan, appearing for the Government of Kerala, contended that there is no provision under SMA to register marriages before solemnisation before a marriage officer.To this, the Court remarked that such provision is not required in view of the Information Technology Act. "The provisions of the IT act, especially Sections 4, 5 and 6, are read into all relevant existing statues," the Court remarked.It also referred to the judgement of the Supreme Court in State of Maharashtra v. Paful B Desai which decreed that evidence could now be recorded by means of video conferencing..The Court also remarked that while the Government seems to be in favour of shifting more processes online, it is facing resistance from people. It also made an apparent reference to the opposition of lawyers to the electronic filing system introduced at Courts."On the very first day, the Chief Minister (Pinarayi Vijayan) announced that their entire office is going to be online. Of course, I don't know if others follow it, but even our small attempt here is being faced with resistance. This Government is very proactive but their followers are not, I’m sorry to say," said Justice Mustaque..The Court evetually directed the State to get the input of persons who are experts in the field of development of technological tools.It directed the ASG to get instructions from the ministry as to the policies of the government, in regard to usage of facial recognition and other data tools for identification of parties.The matter will be heard again tomorrow. .[Read Order]