Provisions of The Special Marriage Act regarding registration of marriage and effect of registration of said Marriage

Q :- Conditions under the Special Marriage Act, 1954 for registration of marriages celebrated in forms other than the said Act and effect of registration of marriages under the said Act.

 Ans:- Chapter III

REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS

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 the16 Special Marriage Act, 1872 (3 of 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—

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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)

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Whether Registrar of Marriage can refuse to register Marriage if it is in Violation Of Minimum Age Limit Under Hindu Marriage Act?

Learned counsel for the petitioners submits that petitioner No.1,

namely, Deepak Kumar, was less than 21 years of age on the date of the

marriage and thus, there was a violation of Section 5 of the Hindu Marriage

Act, 1955. However, in view of Sections 11 and 12 of the said Act, the

marriage was only voidable. Neither of the parties has sought to avoid their

marriage and thus, there is no legal bar in registration of the same. 

A perusal of the Hindu Marriage Act, 1955, shows that in case,

a marriage has been solemnized in violation of the age restriction laid down

therein, the marriage is only voidable. However, neither of the parties have

sought annulment of the marriage. In fact, the parties are seeking to register

their marriage. In law, the marriage is legal and there is no bar to its

registration. This case is squarely covered by Baljit Kaur Boparai’s and

Jyoti’s cases (supra).

The writ petition is accordingly, allowed

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CWP-5135-2020 (O&M)

Date of decision : 15.6.2020

Deepak Kumar Vs  State of Haryana 

CORAM: HON’BLE MR. JUSTICE SUDHIR MITTAL

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Bom HC: Circular mandating presence of priest during registration of marriage as witness is quashed

In the present case, the petitioner ordinarily performs the rites and ceremonies for solmanization of marriages in Kalaram temple at Nashik and the nearby places. According to him, he assists in performing a number of marriages. If that be so, it would certainly be difficult for him to quit his place of working for attending the Offices of Registrars of Marriages at various places away from Nashik for signing as a witness to the memorandums of marriages. He would be required to spend a lot of time and money for visiting those places. His absence from his place of working would certainly hamper his daily work, which would adversely affect on his source of livelihood. All these difficulties should have been anticipated by respondent no. 1 while incorporating the condition in the Circular making it compulsory for the Priest/Purohit to attend his office as a witness to the marriage for signing the memorandum of marriage. There is absolutely no rational behind imposing the said condition. The said condition is not in consonance with the provisions of Clause (b) of sub-section (1) of Section 6 of the Act. It is ex-faciearbitrary. Consequently, it is liable to be quashed and set aside.

11. In the result, we pass the following order:—

(i) The Writ Petition is allowed.

(ii) The condition imposed by respondent no. 1 in the Circular requiring presence of the Priest/Purohit as a witness to the marriage for signing of memorandum of marriage in the presence of respondent no. 1, is quashed and set aside.

In the High Court of Bombay at Aurangabad

(Before S.C. Dharmadhikari and Sangitrao S. Patil, JJ.)

Umesh @ Girish Arvind Pujari,v.

 Registering Authority, Jalgaon City Municipal Corporation, Jalgaon

Writ Petition No. 1010 of 2017

Decided on August 1, 2017,

Citation:2017 SCC OnLine Bom 7240 : 

(2017) 5 Bom CR 331

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Whether registration of marriage is permissible between Indian citizen and citizen of any other country?

It further appears from the impugned order that Opp. party no. 4 has refused to register the marriage between the Petitioners purportedly under Section 1(2) of the Act. A reading of the said provision clearly shows that it is provided therein that the Act extends to the whole of India except the State of Jammu and Kashmir and also applies to the Citizens of India domiciled in the territories to which the Act extends, who are in the State of Jammu and Kashmir. We find, nothing has been brought out to show that the provisions of the Act bars Registration of Marriage between an Indian Citizen and a Citizen of any other country. Section 15 of the Act also imposes no bar for marriage between a Citizen of India and a Citizen of any other country. We also find in the present case that the parties fulfilled all the conditions as laid down in Section 4 of the Act and did not suffer any disability as stated in Sections 4(b) and 4(d) of the Act.

Orissa High Court

Firoz Khan And Anr. vs Union Of India (Uoi), Represented ... on 31 October, 2006

Equivalent citations: AIR 2007 Ori 81, 103 (2007) CLT 168, I (2007) DMC 626

Bench: B Das, M Das

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Whether there is bar to Registration of marriage between Indian citizen and citizen of any other country?

Learned counsel for the petitioners has argued that Section 1(2) of the Act of 1954 do not bar registration of marriage between Indian citizen and citizen of any other country. In support of his submission learned counsel for the petitioners has placed reliance on a judgment passed by Division Bench of Orissa High Court in the case of Firoz Khan & anr. vs. Union of India [AIR 2007 Orissa 81].

Having gone through the aforesaid judgment of the Division Bench of Orissa High Court in which it has been categorically held that Sec. 1(2) of the Act of 1954 does not bar registration of marriage between an Indian citizen and a citizen of any other country and that Section 15 of the Act of 1954 also imposes no bar for registration of marriage between the citizen ... of India and citizen of any other country, in my considered view learned 4th Additional District Judge, Jabalpur has committed error in dismissing the petitioners' appeal on the ground that since the petitioner No.2 is not a citizen of India, the marriage solemnized between petitioner No. 1 and 2 cannot be registered under Section 15 of the Act of 1954. 

Madhya Pradesh High Court

Mr.Rajesh Kumar Tripathi vs The State Of Madhya Pradesh on 17 November, 2014

      Citation;AIR 2015 MP 61

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Whether invalid marriage can be validated by registration of marriage?

 Admittedly, in this particular case, no notice was given under Section 5 of the said Act for the intended marriage and the registration was not made under the Special Marriage Act, 1954. But it was a case of marriage under the Hindu Marriage Act, 1955 and that in order to become a valid registered marriage under the provisions of the Hindu Marriage Act, two ceremonies essential had to be performed, namely, (I) Invocation before the sacred fire and (2) Saptapadi, and the absence of these two essential commodities invalidates the marriage. Such invalidity could not be cured simply by registration in accordance with the provisions of Section 8 of the said Act. If there was a valid marriage, registration of that marriage under Section 8 becomes the proof of a valid marriage under the Act.

Calcutta High Court

Mousumi Chakraborty vs Subrata Guha Roy on 7 February, 1991

Equivalent citations: 95 CWN 380, II (1991) DMC 74

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Whether Marriage can be registered through power of attorney and through video conferencing?

Therefore, we are of the considered view that the requirement of

presentation of application for registration of the marriage under the Jharkhand

Hindu Marriage Registration Rules, 2002 can be met fully, when such application is

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 and for

that reason the registering authority may permit appearance through video-

conferencing whenever any need arise for opting for such procedure.

14. Learned counsel for the petitioners also submitted that the document for

registration can be submitted through power of attorney, which is specifically

provided in the Registration Act itself. However, that provision can be used only for

the purpose of presentation of the application by power of attorney of the party to

the marriage and to avoid any future dispute, a cheap mode of video conferencing

can be used for the purpose of verifying the facts from the party to marriage, for

which registering authority may take help of video conferencing facility provided by

several providers, like Skype or even provided by Email providers, like yahoo. com

and gmail. com etc. The video conferencing is not new and out of reach mode but it

is readily available with public at large and is also not expensive one rather a cheap

mode to live Internet. Normally the Government officers of the rank of the

Registering authority or Registrar of the Marriages, may have been provided with

Computer and Laptop facility with Internet connection, which can be used by such

officer and if they are not having that facility then the parties may be asked to

provide this facility for satisfaction of the registering authority about the genuineness

of the parties to the marriage.

15. In view of the above reasons, it is held that any application for registration of 

the marriage can be submitted by the parties to the marriage through power of

attorney and physical presence of the parties can be secured through video-

conferencing in specific cases, where such procedure is required because of the

peculiar facts of such case.

16. Here, in this case, as we have noticed that the husband is Swedish and wife

is Australian and both are Hindu and wife's parent are residents of

Ranchi(Jharkhand) and the petitioners marriage was solemnized in the city of

Ranchi in the State of Jharkhand in India and they are having a small boy of only

eight months and they are unitary family, consist of the husband,wife and small kid.

They are residing at London in United Kingdom. Thus the son's Passport cannot be

issued without marriage certificate of the petitioners and petitioners cannot come to

India, leaving behind their son of eight months only at London.

17. Therefore, in these circumstances, the writ petition of the petitioners is

allowed. The Registering authority under the Jharkhand Hindu Marriage Registration

Rules, 2002, framed under the Hindu Marriage Act, 1955, is directed 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 may satisfy

himself about the marriage of the petitioners through Video-conferencing, which

facility may be provided to the Registering authority by the petitioners' Power of

Attorney holder. 

Jharkhand High Court

Upasana Bali vs Secretariat on 19 September, 2012

      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                                     W.P.(C) No. 5288 of 2012

                 

       CORAM :      THE  CHIEF JUSTICE

                             MRS JUSTICE JAYA ROY

                                                                            

Citation; AIR 2013 jharkhand 34

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