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Unless amended, no relaxation is possible under Special Marriage Act: Kerala High Court

Unless the provisions contained in the Special Marriage Act are amended, it would not be possible either to relax the mandatory period of notice or to permit marriage in digital form, especially when penal consequences are provided in the Act. Kerala High Court bench dismissed the petition in the case of Shitha V.K vs. The District Registrar &others [WP(C).No.3421 OF 2021(C)] by stating the above-cited reasons; presided over by the single bench of Hon’ble Justice P.V Asha.

The petitioner had made a writ petition to permit the solemnization & registration of her marriage through a digital platform. The petitioner along with one Ajith Joseph, Chathurthiakary, Alappuzha submitted Ext.P3 notice of intended marriage before the respondents on 04.02.2021, under the Special Marriage Act, 1954. She intended that she had to report in Queen’s University, Belfast, Northern Ireland, United Kingdom, for admission to full-time Post Graduate course in Master of Science and Advanced Food Safety in School of Biological Sciences urgently and therefore she was not in a position to wait till the notice period expires. The petitioner stated that she got married to Ajith Joseph in a private function but when they went for registration of marriage, it wasn’t accepted because they didn’t belong to the same religion and hence were asked to get their marriage registered under the Special Marriage Act, 1954.

In the writ petition, it was stated that as the petitioner had to leave before the expiry of the 30 days notice period, Ajith Joseph, alone would be available before the Sub Registrar on expiry of the notice period. Petitioner requested that her digital presence be permitted for solemnization and registration of marriage.

Observing the contentions made by the petitioner, the court stated that “The provisions in the Special Marriage Act, 1954, under Section 5 mandates the parties to the marriage, which is intended to be solemnized under the Act shall give notice in writing to the Marriage Officer in the form specified in the Second Schedule.”

The court observed that “As per the proviso to Section 12, marriage is complete and binding on both the parties only on the declaration of either party that they take each other as the lawful wife/husband and that too in presence of the Marriage Officer as well as the three witnesses. It also insists that the marriage if it is not in the office of the Marriage officer shall be solemnized within a reasonable distance from the office. And hence, it would not be possible to observe these procedures online, in the absence of the physical presence of both the parties near the Registering Officer and the witnesses”.

Hence the High Court bench contended that all the provisions under the Special Marriage Act are strict and hence no relaxation can be given to the parties and in the present case, the petitioner could not be given the permit to solemnize her marriage through the digital platform as the Act does not contain any such provisions. And hence, the HC bench opined that “Unless the provisions contained in the Special Marriage Act are amended, it would not be possible either to relax the mandatory period of notice or to permit marriage in digital form, especially when penal consequences are provided in the Act”. Therefore, the writ petition was dismissed by the High Court bench.

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