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Bride can appear in online mode for solemnization of marriage, subject to certain conditions: Kerala High Court

The Kerala High Court allowed a bride to appear for the solemnization of her marriage in a virtual mode through THE HONOURABLE MR.JUSTICE V.G.ARUN in the case of Shan S & anr. v. Marriage Officer (WP(C) NO. 17818 OF 2022)

FACTS OF THE CASE:

The first petitioner was an Indian citizen, and the second petitioner was a Canadian citizen with an Overseas Citizen of India card. The petitioners were desirous of entering into matrimony and gave notice of their intended marriage. Following this, an intimation was sent to the petitioners, requiring them to appear on 22.5.2022 for the marriage’s solemnization. Meanwhile, the second petitioner was forced to return to Canada at her employer’s request. As a result, the second petitioner requested that the respondent allow her to appear via online mode. The respondent declined to comply with the request. As a result, this writ petition was filed.

Adv.R.V.Sreejith appearing for the petitioner, submitted that right of an intending spouse working/residing abroad to get his/her marriage solemnized by appearing through virtual mode is no longer res integra based on a series of judgments that have been rendered, granting permission for solemnization of marriage, by one spouse appearing virtually. 

 As the second petitioner was Canadian, ‘a non-objection and bachelorhood certificate’ to prove her single status had to be obtained from the Canadian Embassy in India. It was submitted that this was not possible the Canadian Embassy expressed its inability since Canadian law neither requires nor provides for the issuance of nonobjection and bachelorhood certificate. As it was impossible to solemnize the marriage without the certificate, it was submitted that the petitioner could not be compelled to perform such an impossible task. 

JUDGEMENT:

After reviewing the relevant provisions of the 1961 Hague Apostille Convention, an international treaty that establishes a unified process for confirming the authenticity of documents and recognizing the documents of other participating countries, the Court concluded that the decision of the Convention would only apply to a member state. Because Canada is not a signatory to the treaty, a document apostilled/notarized in Canada cannot be accepted.

The Court observed that the second petitioner couldn’t produce the non-impediment to the marriage certificate. In such circumstances, the authority must either exempt the person from performing the impossible act or provide a viable alternative. In this regard, the judgement of  State of M.P. v. Narmada Bachao Andolan [(2011) 7 SCC 639] was relied upon. 

It was also noted that the Notaries Act,1952 provides for the acceptance of notarial acts performed by notaries in countries that recognize notarial acts performed by notaries in India. Furthermore, Section 3 of the Diplomatic and Consular Officer (Oaths and Fees) Act of 1948 authorizes diplomatic or consular officers serving in any foreign country to administer oaths, take affidavits, and perform notarial acts that any notary public may perform within that State. Any oath, affidavit, or notarial act administered, sworn, or performed by or before any such diplomatic officer shall be as effective as if administered, sworn, or performed by or before any lawful authority in the State.

In this regard, it was stated that the respondent would accept the affidavit produced by the second petitioner, attested/notarized in the manner provided in Section 3 of the Diplomatic and Consular Officers (Fees and Oaths) Act, 1948. Furthermore, the marriage of the petitioners was allowed to be solemnized by permitting the second petitioner to appear through online, subject to the fulfilment of necessary formalities. Thus, the writ petition was disposed of accordingly.

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JUDGEMENT REVIEWED BY REETI SHETTY

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