Sunday, 21 March 2021

Whether wife can appear through video conferencing before Marriage Officer for registration of marriage under Special Marriage Act?


 
The Kerala High Court in Pardeep Kodiveedu Cletus vs. Local

Registrar of Marriages (Common), 2018 (1) ILR (Kerala) 377, while examining a case of registration of marriage under the Kerala Registration of Marriages (Common) Rules, 2008, held that personal appearance of the parties to the marriage can be dispensed with by the Local Registrar. It was further observed that the Local Registrar is empowered to obtain their

personal appearance through video conferencing. In para 9 of the judgment, it was observed as under:-

9. True, inconvenience caused by a rule can never be a ground for

annulling the same or reading down the Rule in a different fashion.

But, if the purpose of the rule could be ensured otherwise, should the

parties be put to inconvenience? My conclusion is that if the purpose of the rule can be ensured otherwise, the provision of law can be

interpreted by courts in a fashion not causing any inconvenience to the parties. I am fortified in this view by the principle quod est

 inconveniens, aut contra rationem non permissum est in lege (that

which is inconvenient, or against reason, is not permitted in law). I am

also fortified in this view by the following observation in the

commentaries on 'Statutory Interpretation' by Francis Bennion:

"The court seeks to avoid a construction that causes unjustifiable

inconvenience to persons who are subject to the enactment, since

this is unlikely to have been intended by Parliament. Sometimes

however there are overriding reasons for applying such a

construction, for example where it appears that Parliament really

intended it or the literal meaning is too strong."

I do not find any overriding reason in this matter for the court to

interpret the provision contained in Rule 11 in such a fashion

compelling the parties to the marriage to be physically present before

the local Marriage Officer, for the purpose of registering their

marriage.”

The ratio of judgment passed in Dr. Praful B. Desai's case

(supra) is that statement of a witness or accused can be recorded by way of

video conference in the presence of his pleader/counsel under Section 273

Cr.P.C. This view was taken keeping in view that under Sections 284 and

285 of the Cr.P.C., attendance of the witness can be exempted by appointing a Commission, who can go to the place where the witness or accused is present and record his statement to meet the ends of justice. Hence, for all

intents and purposes, under the criminal law, presence of the witness is not

necessary before the Court for recording of his evidence. In the same

manner, for the purpose of issuing the marriage registration certificate, as

held by the High Court of Jharkhand in Upasana Bali's case (supra), parties

to the marriage can appear before the Registering Officer through video conference.

Appellant No.1-husband, in the present case, is not seeking

complete exemption of appearance of his wife-appellant No.2 (who is

working in USA) before the Registrar of Marriage. He is seeking that his

wife should be allowed to appear through video conferencing, so that the

marriage can be registered. Appellant No.2-Misha Verma, wife of appellant

No.1, was employed in Virginia University School of Medicine as Resident

Doctor. Now, she is working in J.W. Ruby Memorial Hospital at 1 Medical

Center Drive, Morgantown, West Virginia 26505, United States. The

appellants solemnized marriage on 07.12.2019 according to Hindu rites and

ceremonies in the presence of their respective families at Gurugram

(Haryana). In this case, presence of Misha Verma can be secured through

video conferencing and presence of husband-Ami Ranjan and three

witnesses can be marked by their appearance in the office of Registrar of

Marriages. Then, the certificate of marriage can be issued on doing

verification of facts as contemplated under Sections 15 and 16 of the

Special Marriage Act. Once, the marriage certificate is issued, it can be

made part of the public record under Section 47 of the Act by entering it

into the Marriage Certificate Book. There shall be no violation of Section

47 of the Act. The entire process can be done after seeking presence of Misha Verma wife of appellant No.1-Ami Ranjan through video

conferencing. For all intents and purposes, this would be a valid marriage

certificate.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

LPA No.125 of 2021 (O&M)

(in CWP No.20480 of 2020)

Date of decision: 09.03.2021

Ami Ranjan Vs. State of Haryana 

CORAM: HON'BLE MS. JUSTICE RITU BAHRI

HON'BLE MRS. JUSTICE ARCHANA PURI


Author: Ritu Bahri, J. (oral)

The present Letters Patent Appeal has been filed against the

judgment dated 14.12.2020 passed by the learned Single Judge of this

Court, whereby writ petition i.e. CWP No.20480 of 2020, filed by the

petitioner-appellants seeking quashing of the order/letter dated 11.09.2020

(Annexure P-12) issued by the Deputy Collector-cum-Marriage Officer,

Gurugram, has been dismissed and it has been held that there is no

provision for registration of the marriage under the Special Marriage Act,

1954 (hereinafter referred to as 'the Act') without parties appearing in

person before the marriage officer.

Brief facts of the case are that petitioner-appellant No.1 (Ami

Ranjan) was working as IT Consultant at Publicist Sapient in London

(United Kingdom) since 2017. Petitioner-appellant No.2 (Misha Verma) is

USA citizen of Indian origin and has been living in USA. She is employed

at Virginia University School of Medicine as Resident Doctor. The

appellants solemnized marriage on 07.12.2019 according to Hindu rites and

ceremonies in the presence of their respective families at Gurugram

(Haryana). After marriage, both of them returned back to their respective

work places in United Kingdom and United States on 10.12.2019 and

15.12.2019 respectively. An application for registration of their marriage

was filed before the Deputy Commissioner-cum-Marriage Officer,

Gurugram on 29.01.2020. A request was made to the Marriage Officer to

permit appellant-petitioner No.2 to appear through video conference for the

purpose of moving the application for registration of marriage. The

Marriage Officer called the appellants to appear before him on 03.04.2020.

In the meantime, due to spread of COVID-19 Pandemic, the appellants

could not return India. Even, the Government of India had imposed a nation

wide lock-down on 24.03.2020. Due to this reason, appellant No.1 made an

application dated 07.08.2020 to the Marriage Officer with a request that the

second motion hearing may also be conducted through video conference.

This request was rejected vide letter/order dated 11.09.2020 (Annexure P-

12).

It was pleaded that appellant No.2 is a medical professional and

she has been put on COVID-19 emergency duty in United States. Appellant

No.1 can go to USA to meet his wife, but for that purpose he has to attach a

marriage certificate along with an application for obtaining VISA. In this

backdrop, on account of lack of marriage certificate, parties are facing

unprecedented hardship.

Before the learned Single Judge, counsel for the petitioners

(appellants) had referred to a judgment passed by the Kerala High Court in

Pardeep Kodiveedu Cletus vs. Local Registrar of Marriages, 2018 (1) KLT

292 and another judgment of Delhi High Court in Charanjit Kaur Negi vs.

Govt. of NCT Delhi, 2007 (42) RCR (Civil) 222 on the proposition that the

parties can be asked to be present before the Embassy/Consulate of India in

United States and United Kingdom to authenticate their identity. Thereafter,

identity of the appellants can be verified through the Government

authorities in the respective countries. By doing so, there would be

sufficient compliance of Sections 15 and 16 of the Act and their marriages

can be registered by the Marriage Officer by conducting virtual hearing.

Learned Single Judge, while dismissing the petition, has held

that as per the provisions of aforesaid Act, procedure prescribed for

registration of the marriage requires that parties should be present in person

along with two witnesses. A new procedure qua appearance of parties for

the satisfaction of the Marriage Officer, as well as, qua maintenance of the

public record called the Marriage Certificate Book, under Section 47 of the

Act, cannot be followed. The process of video conference, at best, can be

resorted to during the intermediatory process of the inquiry to be conducted

by the Marriage Officer. The Marriage Officer, in the present case, had

accommodated the parties at the initial stage and had permitted appellant

No.1 to be present before him through video conference at the stage of first

motion and moving of the application. Thereafter, for the registration of

marriage, parties have to be present in person as per the provisions of the

aforesaid Act. There the parties have to sign the Marriage Certificate Book

in the prsence of witnesses. The Marriage Certificate Book cannot be signed

by a party through a distant mode. Signing the certificate book cannot be interpreted to mean pasting of authenticated sign of a party on that book. It was further observed that the Marriage Certificate Book is a public

document, which is being maintained at a particular office of a District

Marriage Officer. This procedure has to be followed. The integrity and

authenticity of the Marriage Certificate Book cannot be altered.

Learned counsel for the appellants has referred to a judgment

passed by the Division Bench of High Court of Jharkhand in Upasana Bali

and another vs. State of Jharkhand and others, (2013) 1 AIR Jhar R 741,

wherein the husband was citizen of Sweden and the wife was residing in

Australia. They both were residing at London (United Kingdom) and their

marriage was solemnized in Ranchi (Jharkhand). They were having a small

baby boy of eight (08) months. Their son's passport could not be issued

without the marriage certificate of petitioners. The petitioners could not

come to India leaving their eight months' old son alone at London. The

Division Bench allowed the writ petition by holding that application for

registration of marriage under the Jharkhand Hindu Marriage Registration

Rules, 2002, can be made through their power of attorney holder and the

Registering Authority was to safisfy himself about the marriage of the

petitioners through video-conferencing. It was observed that presence of

the parties could be secured through video conference in specific cases,

where such procedure requires because of the peculiar facts of such cases.

While allowing the petition, reference was made to a judgment passed by

Hon'ble the Supreme Court in State of Maharashtra vs. Dr. Praful B.

Desai, 2003 (4) SCC 601.

Mr. Hitesh Pandit, Additional A.G., Haryana, has vehemently

argued that as per Sections 15, 16, 18 and 47 of the Special Marriage Act, 1954, an application for registration of marriage has to be signed by both the parties and thereafter, the Marriage Officer has to give public notice.

After satisfying that all the conditions of Section 15 are fulfilled, the

Marriage Officer has to enter certificate of marriage in the Marriage

Certificate Book. All the procedure has to be carried out in the presence of

Marriage Officer, so as to make it authentic document. As per the Act,

signatures of both the parties have to be there in the application for

registration of the marriage and only thereafter, enquiry as per Section 16 of

the Act starts. Hence, merely because the appellants are working in foreign

countries and their working conditions or their personal compulsions render

it difficult to be present before the Marriage Officer cannot be make a

ground to overlook the provisions of law. Their presence and signatures in

the Marriage Certificate Book are mandatory. Learned State counsel further

argued that only for the intermediatory process, the video conference can be

conducted. The Marriage Officer had accommodated the parties at the

initial stage by permitting petitioner-appellant No.1 to be present before him

through video conference at the time of first motion and moving of the

application for registration of marriage. At the final stage, for signing the

Marriage Certificate Book, their presence is mandatory and hence, the

appeal is liable to be dismissed. Learned State counsel has referred to the

judgment passed by the Division Bench of Kerala High Court in Deepak

Krishan and another vs. District Registrar, Ernakulam and others, 2007

AIR (Kerala) 257 on the proposition that Sections 15 and 16 of the Special

Marriage Act, 1954 are mandatory in nature. The District Marriage Officer

cannot proceed to register the marriage by reducing the period of 30 days as

contemplated under Sections 15 and 16 of the Act. He has further referred to


the judgment passed by the Kerala High Court in Sarala Baby vs. State of

Kerala, 2010 (24) RCR (Civil) 43, wherein while considering Rule 11 of

the Kerala Registration of Marriages (Commom) Rules, 2008, it was held

that personal appearance of the spouses is mandatory for registration of the

marriage. If registration of marriage is permitted without personal

appearance, then this facility can be greately abused.

Heard, learned counsel for the parties.

In Deepak Krishan's case (supra), the parties were seeking

reduction of the period of 30 days, which was required as per Section 15 of

the Act after the Registrar had sent a notice of 30 days inviting objections to

the marriage. It was held that provisions of Section 15 of the Act are

mandatory and this period cannot be reduced.

But, this is not the prayer in the present case. In the facts of the

present case, the appellants are not seeking reduction of 30 days' time as per

Section 15 of the Act when objections were invited after filing of the

application for registration of marriage. However, with respect to the

provision of 30 days' period, as contemplated under Section 15 of the Act,

the Division Bench held that this provision was not mandatory but

directory. Hence, non compliance of this provision would not render the

application for registration of marriage against the provisions of Section 15

of the Act. This judgment is not applicable to the facts of the present case.

In Sarlala Baby's case (supra), prayer made for registration of the marriage

was that presence of the parties should be totally exempted before the

Marriage Officer. Even, this judgment will not be applicable, as in the

present case parties are not seeking exemption from appearance, rather their

prayer is that appearance of appellant No.2-wife should be accepted throughvideo conference as she is in USA and is unable to visit India on account of the prevailing COVID-19 situation.

The Kerala High Court in Pardeep Kodiveedu Cletus's case

(supra) was examining a case of appearance of parties through video

conference. The Marriage of the parties had taken place in the year 2000

and one of the petitioners was in Ireland since 2001. Eventually, in the year

2016, they started residing in USA on the strength of L-1 and L-2 Visas. In

order to apply for permanent resident status in USA, they needed to provide

their marriage certificate issued by the competent authority in their country.

Therefore, they made an application through power of attorney holder

(father of one of the petitioners) for registration of their marriage. In this

backdrop, they were called by the Local Registrar of Marriages (Common) to

appear before him in order to put their signatures in the Register of

Marriages maintaind under the Rules. It was observed that after filing of the

application, the Local Registrar was to verify the entries in the

memorandum of their accuracy and completeness and enter the particulars

thereof forthwith in the Register of Marriages maintained by him. The said

rule provides that the parties to the marriage should be present before the

Registrar. As per Rule 11 of the Kerala Registration of Marriages

(Common) Rules, 2008, parties were to appear in person before the

Registrar, atleast, once prior to the registration of marriage. The learned

Single Judge, while referring to the decision of Hon'ble the Supreme Court

in State of Maharashtra vs. Dr. Praful B. Desai, 2003 (4) SCC 601, held

that the provisions contained in Rule 11 can be interpreted as enabling the

Local Registrar to obtain personal appearance through video conferencing

as well. The writ petition was allowed and direction was given to the

respondents to seek presence of the parties through video conferencing on

the application made by the power of attorney holder of the petitioners and

the latter (power of attorney holder) could sign in the Marriage Register on

behalf of the petitioners.

Recently, the High Court of Kerala in Karthika Salinkumar vs.

Secretary Chempu Grama Panchayath and others, 2021 SCC Online Ker

202, had allowed a writ petition, where the husband of petitioner was unable

to come to India due to COVID-19 restrictions and gave a direction for

registration of the marriage of petitioner by securing presence of her

husband through video conferencing and thereafter, issue marriage

certificate to the petitioner, after obtaining the signatures of the petitioner

and the authorized representative of her husband. The Delhi High Court in

Charanjit Kaur Negi's case (supra) has examined the case of registration of

marriage, where petitioner's husband was living outside India. While

allowing the writ petition, it was observed that compelling the husband of

petitioner to appear simultaneously with her for the purpose of registration

of marriage would entail expense besides loss of time. The certificate has to

be given on the basis of an application given to the Registrar that the parties

were married on a particular date. Now, the developments have changed the

world and it is possible for a person living thousands of kilometers away

from Delhi or anywhere in India to simultaneously communicate with

another party. The technology has enabled the parties to attest documents

digitally and ensure digitally secure transmission through internet. The

objective and philosophy underlying Information Technology Act is based

on these developments. In this backdrop, registration of marriage of spouses

separated by distance has to be addressed keeping in view the changing times. It is open to evolve a suitable mechanism with a mix of technology by incorporating video-conferencing, authentication of identities by Embassies, and attestation of signatures in a similar manner. In para 16 of

the aforesaid judgment, following directions were given:

“16. In view of the above since the petitioner's husband is now in the

United States and requiring him to return India in order to appear before

the Registrar would entail expense besides loss of time, the mater can be

appropriately dealt with by suitable directions. Accordingly, it is

directed:

(1) The petitioner shall fill Form `A' and present it to the second

respondent along with Form A duly signed by her husband. The

husband's signatures shall be attested by the Counsel General

available in the nearest town in the United States along with

description of his passport. His affidavit, attested by the Counsel

General, and attested copy of his photograph, too shall be furnished

to the second respondent.

(2) An attested copy of the petitioner's passport and that of her

husband shall be filed along with the 'Form A'. Likewise, copies of

the birth certificate evidencing the petitioner's son's birth, issued by

the MCD and such other documents evidencing her date of birth and

place of residence shall also be produced by her.

(3) The petitioner shall produce witnesses in accordance with Rule

3. One witness, with a PAN Card and/or copy of ration

card/passport as the case may be shall be present along with the

petitioner. The said witness shall verify about his having witnessed

the marriage between the petitioner and Shri Jaspal Singh. The

petitioner shall also produce other documentary evidence such as

photographs, invitation card, etc.

(4) On being satisfied that all the above requirements are fulfillled

the second respondent shall issue an order and make the necessary

entries in Form B.

(5) Upon completion of the process indicated above the respondent

No. 2 shall ensure that two certificates in the prescribed form are

issued to the petitioner and her husband.”

As per the above said judgment, the identify of the parties can

be verified through video conference and certificate of marriage can be issued to them.

 

Learned Single Judge, from the stage of making the application,

has accepted the process of video conferencing. Hence, for the purpose of

carrying out the procedure, as contemplated under Sections 15 and 16 of the

Act, application for registration of marriage can be accepted by the

Marriage Officer through video conference. However, the next question

would be, whether certificate of marriage in the Marriage Certificate Book,

as prescribed in 5th Schedule, has to be signed by both the parties to the

marriage along with three witnesses and whether this process can be done

by video conrefence?

For reference, relevant Sections 15, 16, 18 and 47 of the

Special Marriage Act, 1954, are reproduced as under:-

“15. Registration of marriages celebrated in other forms.- Any

marriage celebrated, whether before or after the commencement of this

Act, other than a marriage solemnized under the Special Marriage Act,

1872 or under this Act, may be registered under this Chapter by a

Marriage Officer in the territories to which this Act extends if the

following conditions are fulfilled, namely:

(a) a ceremony of marriage has been performed between the parties and

they have been living together as husband and wife ever since

(b) neither party has at the time of registration more than one spouse

living;

(c) neither party is an idiot or a lunatic at the time of registration:

(d) the parties have completed the age of twenty-one year at the time of

registration;

(e) the parties are not within the degrees of prohibited relationship:

Provided that in case of a marriage celebrated before the commencement

of this Act, this condition shall be subject to any law, custom or usage

having the force of law governing each of them which permits of a

marriage between the two; and

(f) the parties have been residing within the district of the Marriage

Officer for a period of not less than thirty days immediately preceding the

date on which the application is made to him for registration of the

marriage.

16. Procedure for registration.- Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for

objection and after hearing any objection received within that period,

shall, if satisfied that all the conditions mentioned in Sec. 15 are fulfilled,

enter a certificate of the marriage in the Marriage Certificate Book in the

Form specified in the Fifth Schedule and such certificate shall be signed

by the parties to the marriage and by three witnesses.

18. Effect of registration of marriage under this Chapter.-

Subject to the provisions contained in sub-section (2) of Sec.24 where a

certificate of marriage has been finally entered in the Marriage Certificate

Book under this Chapter, the marriage shall, as from the date of such

entry, be deemed to be a marriage solemnized under this Act, and

all children born after the date of the ceremony of marriage (whose names

shall also be entered in the Marriage Certificate Book) shall in all respects

be deemed to be and always to have been the legitimate children of their

parents:

Provided that nothing contained in this section shall be construed as

conferring upon any such children any rights in or to the property of any

person other than their parents in any case where, but for the passing of

this Act, such children would have been incapable of possessing or

acquiring any such rights by reason of their not being the legitimate

children of their parents.

47. Marriage Certificate Book to be open to inspection--(1) The

Marriage Certificate Book kept under this Act shall at all reasonable times

be open for inspection and shall be admissible as evidence of the

statements therein contained.

(2) Certified extracts from the Marriage Certificate Book shall, on

application, be given by the Marriage Officer to the applicant on payment

by him of the prescribed fee.

THE FIFTH SCHEDULE (See section 16) CERTIFICATE OF

MARRIAGE CELEBRATED IN OTHER FORMS I, E.F., hereby

certify that A.B. and CD.* appeared before me this …………day of……

…. 20 and that each of them, in my presence and in the presence of three

witnesses who have signed hereunder have declared that a ceremony of

marriage has been performed between them and that they have been living

together as husband and wife since the time of their marriage, and that in

accordance with their desire to have their marriage registered under this

Act, the said marriage has, this ...... day of 20……............... been

registered under this Act, having effect as from.”


Issue with regard to registration of marriage through video

conference came up for consideration before the Division Bench of the High

Court of Jharkhand in Upasana Bali's case (supra), wherein it was held that

under the Jharkhand Hindu Marriage Registration Rules, 2002, an

application for registration of marriage can be presented by duly authorized

power of attorney of the parties, authorized jointly or separately, coupled

with satisfaction of the registering authority through video-conferencing

from the persons who are seeking registration of their marriage. The

Division Bench was considering a case, where the husband was Swedish

and the wife was Australian and both were Hindu. Wife's parents were

residents of Ranchi (Jharkhand) and the petitioners (therein) marriage was

solemnized in the city of Ranchi in the State of Jharkhand. They were

having a small boy of only eight months and they were unitary family,

consisting of the husband, wife and small kid. They were residing at London

in United Kingdom. The sons's passport could not be issued without

marriage certificate of the petitioners and the petitioners could not come to

India, leaving behind their 08 (eight) months old child at London. The

Division Bench while referring to the judgment passed by Hon'ble the

Supreme Court in Dr. Praful B. Desai's case (supra), allowed the petitioner

and gave direction to the Registering Officer to accept the application for

registration of marriage of the petitioners through their power of attorney

holder Smt. Nandini Gupta wife of Shri Dilip Kumar Gupta and after

satisfying himself about the marriage of the petitioners through videoconferencing,

pass a final order for issuance of marriage registration

certificate within 10 days. In the aforesaid case, Hon'ble the Supreme Court

was examining the procedure of recording the evidence by way of video conferencing. In that case, the witness was living in USA and was not

willing to come India. But, he was willing to give evidence by way of video

conferencing. In para Nos.11, 12 and 19, Hon'ble the Supreme Court

observed as under:-

“11. This argument found favour with the High Court. The High Court

has relied on judgments of various High Courts which have held that

Section 273 is mandatory and that evidence must be recorded in the

presence of the accused. To this extent, no fault can be fund with the

judgment of the High Court. The High Court has then considered what

Courts in foreign countries, including Courts in USA, have done. The

High Court then based its decision on the meaning of the term “precence”

in various dictionaries and held that the term “presence” in Section 273

means actual physical presence in Court. We are unable to agree with

this. We have to consider whether evidence can be led by way of videoconferencing

on the provisions of the Criminal Procedure Code and the

Indian Evidnce Act. Therefore, what view has been taken by Courts in

other countries is irrelevant. However, it may only be mentioned that the

Supreme Court of USA, in the case of Maryland v. Santra Sun Craig

(497 of 836), has held that recording of evidence by video-conferencing

was not a violation of the Sixth Amendment (Confrontation Clause).

12. Considering the question on the basis of Criminal Procedure Code,

we are of the view that the High Court has failed to read Section 273

properly. One does not have to consider dictionary meanings when a

plain reading of the provision brings out what was intended. Section 273

reads as follows:

"Section 273: Evidence to be taken in presence of accused. Except as

otherwise expressly provided, all evidence taken in the course of the trial

or other proceeding shall be taken in the presence of the accused, or,

when his personal attendance is dispensed with, in the presence of his

pleader.

Explanation : In this section, "accused" includes a person in relation to

whom any proceeding under Chapter VIII has been commenced under

this Code.

Thus Section 273 provides for dispensation from personal attendance. In

such cases evidence can be recorded in the presence of the pleader. The

presence of the pleader is thus deemed to be presence of the Accused.

Thus Section 273 contemplates constructive presence. This shows that

actual physical presence is not a must. This indicates that the term

"presence", as used in this Section, is not used in the sense of actual

physical presence. A plain reading of Section 273 does not support the

restrictive meaning sought to be placed by the Respondent on the word

"presence". One must also take note of the definition of the term

'Evidence' as defined in the Indian Evidence Act. Section 3 of the Indian

Evidence Act reads as follows:

"Evidence----Evidence means and includes------

(1)all statements which the Court permits or requires to be made before it

by witnesses, in relation to matters of fact under inquiry;

such statements are called oral evidence (2) all documents including

electronic records produced for the inspection of the Court;

such documents are called documentary evidence"

Thus evidence can be both oral and documentary and electronic records

can be produced as evidence. This means that evidence, even in criminal

matters, can also be by way of electronic records. This would include

video- conferencing.

19. At this stage we must deal with a submission made by Mr Sundaram.

It was submitted that video-conferencing could not be allowed as the

rights of an accused, under Article 21 of the Constitution of India, cannot

be subjected to a procedure involving "virtual reality". Such an argument

displays ignorance of the concept of virtual reality and also of video

conferencing. Virtual reality is a state where one is made to feel, hear or

imagine what does not really exists. In virtual reality one can be made to

feel cold when one is sitting in a hot room, one can be made to hear the

sound of ocean when one is sitting in the mountains, one can be made to

imagine that he is taking part in a Grand Prix race whilst one is relaxing

on one sofa etc. Video conferencing has nothing to do with virtual reality.

Advances in science and technology have now, so to say, shrunk the

world. They now enable one to see and hear events, taking place far

away, as they are actually taking place. To take an example today one

does not need to go to South Africa to watch World Cup matches. One

can watch the game, live as it is going on, on one's TV. If a person is

sitting in the stadium and watching the match, the match is being played

in his sight/presence and he/she is in the presence of the players. When a

person is sitting in his drawing-room and watching the match on TV, it

cannot be said that he is in presence of the players but at the same time,

in a broad sense, it can be said that the match is being played in his

presence. Both, the person sitting in the stadium and the person in the

drawing-room, are watching what is actually happening as it is

happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is

present before you i.e. in your presence. In fact he/she is present before

you on a screen. Except for touching, one can see, hear and observe as if

the party is in the same room. In video conferencing both parties are in

presence of each other. The submissions of Respondents counsel are akin

to an argument that a person seeing through binoculars or telescope is not

actually seeing what is happening. It is akin to submitting that a person

seen through binoculars or telescope is not in the "presence" of the

person observing. Thus it is clear that so long as the Accused and/or his

pleader are present when evidence is recorded by video conferencing that

evidence is being recorded in the "presence" of the accused and would

thus fully meet the requirements of Section 273, Criminal Procedure

Code. Recording of such evidence would be as per "procedure

established by law".

Recording of evidence by video conferencing also satisfies the object of

providing, in Section 273, that evidence be recorded in the presence of

the Accused. The Accused and his pleader can see the witness as clearly

as if the witness was actually sitting before them. In fact the Accused

may be able to see the witness better than he may have been able to if he

was sitting in the dock in a crowded Court room. They can observe his or

her demeanour. In fact the facility to play back would enable better

observation of demeanour. They can hear and rehear the deposition of the

witness. The Accused would be able to instruct his pleader immediately

and thus cross- examination of the witness is as effective, if not better.

The facility of play back would give an added advantage whilst crossexamining

the witness. The witness can be confronted with documents or

other material or statement in the same manner as if he/she was in Court.

All these objects would be fully met when evidence is recorded by video

conferencing. Thus no prejudice, of whatsoever nature, is caused to the

Accused. Of course, as set out hereinafter, evidence by video

conferencing has to be on some conditions.

Reliance was then placed on Sections 274 and 275 of the Criminal

Procedure Code which require that evidence be taken down in writing by

the Magistrate himself or by his dictation in open Court. It was submitted

that video conferencing would have to take place in the studio of VSNL.

It was submitted that that this would violate the right of the Accused to

have the evidence recorded by the Magistrate or under his dictation in

open Court. The advancement of science and technology is such that now it is possible to set up video conferencing equipment in the Court itself.

In that case evidence would be recorded by the Magistrate or under his

dictation in open Court. If that is done then the requirements of these

Sections would be fully met. To this method there is however a draw

back. As the witness is now in Court there may be difficulties if he

commits contempt of Court or perjures himself and it is immediately

noticed that he has perjured himself. Therefore as a matter of prudence

evidence by video-conferencing in open Court should be only if the

witness is in a country which has an extradition treaty with India and

under whose laws contempt of Court and perjury are also punishable.”

Hon'ble the Supreme Court further observed that a witness can

be examined on commissions under Section 284 and 285 Cr.P.C. and

normally a commission would involve recording evidence at the place

where the witness is. However advancement in science and technology has

now made it possible to record such evidence by way of video conferencing

in the town/city where the Court is. Thus in cases where the attendance of a

witness cannot be procured without an amount of delay, expense or

inconvenience the Court could consider issuing a commission to record the

evidence by way of video conferencing. As per Section 3 of the Indian

Evidence Act, evidence can be both oral and documentary and electronic

records can be produced as evidence. Hence, evidence, even in criminal

matters, can also be by way of electronic records and this would include

video conferencing. In the aforesaid judgment, Hon'ble the Supreme Court

had issued directions validating video conferencing at different levels,

modalities to be followed in use of video conferencing. The Presiding

Officer of the Court was given powers in maintaining sufficient distance

while recording evidence and to restrict entry of persons in his/her Court

and points from where arguments could be addressed.

The Kerala High Court in Pardeep Kodiveedu Cletus vs. Local

Registrar of Marriages (Common), 2018 (1) ILR (Kerala) 377, while


examining a case of registration of marriage under the Kerala Registration

of Marriages (Common) Rules, 2008, held that personal appearance of the

parties to the marriage can be dispensed with by the Local Registrar. It was

further observed that the Local Registrar is empowered to obtain their

personal appearance through video conferencing. In para 9 of the judgment,

it was observed as under:-

9. True, inconvenience caused by a rule can never be a ground for

annulling the same or reading down the Rule in a different fashion.

But, if the purpose of the rule could be ensured otherwise, should the

parties be put to inconvenience? My conclusion is that if the purpose of

the rule can be ensured otherwise, the provision of law can be

interpreted by courts in a fashion not causing any inconvenience to the

parties. I am fortified in this view by the principle quod est

inconveniens, aut contra rationem non permissum est in lege (that

which is inconvenient, or against reason, is not permitted in law). I am

also fortified in this view by the following observation in the

commentaries on 'Statutory Interpretation' by Francis Bennion:

"The court seeks to avoid a construction that causes unjustifiable

inconvenience to persons who are subject to the enactment, since

this is unlikely to have been intended by Parliament. Sometimes

however there are overriding reasons for applying such a

construction, for example where it appears that Parliament really

intended it or the literal meaning is too strong."

I do not find any overriding reason in this matter for the court to

interpret the provision contained in Rule 11 in such a fashion

compelling the parties to the marriage to be physically present before

the local Marriage Officer, for the purpose of registering their

marriage.”

The ratio of judgment passed in Dr. Praful B. Desai's case

(supra) is that statement of a witness or accused can be recorded by way of

video conference in the presence of his pleader/counsel under Section 273

Cr.P.C. This view was taken keeping in view that under Sections 284 and

285 of the Cr.P.C., attendance of the witness can be exempted by appointing a Commission, who can go to the place where the witness or accused is present and record his statement to meet the ends of justice. Hence, for all

intents and purposes, under the criminal law, presence of the witness is not

necessary before the Court for recording of his evidence. In the same

manner, for the purpose of issuing the marriage registration certificate, as

held by the High Court of Jharkhand in Upasana Bali's case (supra), parties

to the marriage can appear before the Registering Officer through video

conference.

Appellant No.1-husband, in the present case, is not seeking

complete exemption of appearance of his wife-appellant No.2 (who is

working in USA) before the Registrar of Marriage. He is seeking that his

wife should be allowed to appear through video conferencing, so that the

marriage can be registered. Appellant No.2-Misha Verma, wife of appellant

No.1, was employed in Virginia University School of Medicine as Resident

Doctor. Now, she is working in J.W. Ruby Memorial Hospital at 1 Medical

Center Drive, Morgantown, West Virginia 26505, United States. The

appellants solemnized marriage on 07.12.2019 according to Hindu rites and

ceremonies in the presence of their respective families at Gurugram

(Haryana). In this case, presence of Misha Verma can be secured through

video conferencing and presence of husband-Ami Ranjan and three

witnesses can be marked by their appearance in the office of Registrar of

Marriages. Then, the certificate of marriage can be issued on doing

verification of facts as contemplated under Sections 15 and 16 of the

Special Marriage Act. Once, the marriage certificate is issued, it can be

made part of the public record under Section 47 of the Act by entering it

into the Marriage Certificate Book. There shall be no violation of Section

47 of the Act. The entire process can be done after seeking presence of Misha Verma wife of appellant No.1-Ami Ranjan through video

conferencing. For all intents and purposes, this would be a valid marriage

certificate.

In view of the above discussion, this appeal is allowed and the

impugned judgment dated 14.12.2020 along with order/letter dated

11.09.2020 (Annexure P-12) issued by the Deputy Collector-cum-Marriage

Officer, Gurugram is set aside. Following directions are given:-

(i)Since the Marriage Officer had permitted appellant No.1-

Ami Ranjan to file the application through video conference

at the stage of first motion, he can now proceed to register

the marriage after 30 days as per Section 16 of the Special

Marriage Act, 1954.

(ii) Presence of appellant No.2-Misha Verma can be secured

through video conferencing and she can appear before J.W.

Ruby Memorial Hospital, at 1 Medical Center Drive,

Morgantown, West Virginia 26505, United States at an

appropriate date and time fixed in consultation with both

Deputy Commissioner-cum-Marriage Officer and J.W. Ruby

Memorial Hospital or the Indian Consulate/High

Commission at 2107 Massachusetts Ave NW, Washington,

DC 20008, United States.

(iii) Three witnesses namely, (i) Vishwa Vijay Ranjan Prasad

son of late Dineshwar Prasad (father of appellant No.1), (ii)

Sh. Vibhav Bhusan son of Kul Bhushan (cousin brother of

appellant No.1) or in the alternative Sh. Kumar Sambhava

son of M.N. Prasad (Maternal Uncle of appellant No.1) and


(iii) Sh. Vinay Gopal son of Madan Gopal Prasad (Maternal

Uncle of appellant No.2-wife), can appear physically before

the Registrar of Marriages/Marriage Officer. All the

witnesses can produce their PAN cards/copies of ration

cards/passports, as the case may be and shall appear along

with appellant No.1-husband, before the Marriage Officer on

the date of registration of marriage. The said witnesses shall

verify with regard to their attendance in the marriage of the

appellants. Appellant No.1 shall also produce other

documentary evidence such as photographs, invitation cards

etc. before the Registrar of Marriages/Marriage Officer.

(iv)On being satisfied that all the above requirements are

fulfilled, Deputy Collector-cum-Marriage Officer,

Gurugram/respondent No.2 will issue an order; make the

necessary entries and issue the marriage certificate in the

prescribed form to appellant No.1 (Ami Ranjan) and his wife

appellant No.2-Misha Verma.

(RITU BAHRI)

JUDGE

(ARCHANA PURI)

JUDGE

09.03.2021


Print Page

No comments:

Post a comment