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Let's Build a Responsible Cyber Society |
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Let's Build a Responsible Cyber Society |
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DIGITIAL MARRIAGE The present paper tries to analyse the possibility of digital / cyber marriage or simply speaking marriage through the medium of internet with specific reference to the domicile and jurisdictional aspect, which are important parts of law of marriage especially in cases of conflicts of laws. I. INTRODUCTION Since the time when man in primitive society decided to live in groups and formed the society, marriage and family are the institutions which were considered to be not only a union of a man and women but as a sacrament and in upholding of which society at large was deeply interested for a long time. The things have changed with the technological developments made by the mankind and Marriage is not an exception to this. The form and formalities required for the marriages too have changed now. However this law of marriage is not as simple as it seems to be but is rather complex and law governing the marriage varies with community or religion. Every community has its own personal law governing the issues relating to marriage. To be valid a Hindu marriage must be in accordance with either the Hindu Marriage Act or the Special Marriage Act. Similarly, a Muslim marriage must be in accordance with the Muslim Personal law applicable to the parties. Every marriage to be legally valid must satisfy two things
While an essential validity refers to the legal capacity or the requirement of complying with the "capacity" aspect of the marriage which are generally fixed by the law of the land. For example, to enter into a valid marriage contract one must be above the minimum age fixed by the relevant law to which the parties are subject. Whereas, the formal validity generally encompasses within its ambit the "formality aspects" of the marriage i.e. customary rituals which are fixed by the personal law of the parties. II. DIGITAL MARRIAGE There is great
disagreement among the legal scholars over the possibility of Digital
Marriage or marriage with use of internet. The main point of their
disagreement is the relaxation of the requirement of physical presence.
Though at present, marriage under the Hindu Marriage Act can not be
performed in the cyberspace as traditional Hindu Law emphasizes on the
ceremony of "saptapdi" as an essential ceremony for the validity of it
which can not be performed without physical presence of both the parties
to the marriage. But such a marriage would be equally valid if there is a
custom to the contrary that allows the party to marry by simply accepting
each other as husband and wife. As far as marriage under Special Marriage
Act and Muslim marriage are concerned, they can be performed in the
cyberspace since facilities of digital signature and video conferencing
can be used for this purpose. Similarly marriage under Muslim law where
marriage is essentially a contract it is possible. The domicile is the legal relationship between an individual and a territory with a distinctive legal system, which invokes that system as his personal law. The determination of domicile of an individual has a great legal significance. It helps in identifying the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even though his home may be fixed at a particular spot within it. Generally speaking domicile is of 3 types:
Till a new domicile
is acquired by a choice or by operation of law, the domicile of origin
continues. In Mr. Louis De Raedt v U.O.I the Supreme Court observed: "For
the acquisition of a domicile of choice, it must be shown that the person
concerned had a certain State of mind, the animus manendi. If he claims
that he acquired a new domicile at a particular time, he must prove that
he had formed the intention of making his permanent home in the country of
residence and of continuing to reside there permanently. Residence alone,
unaccompanied by this state of mind, is insufficient. The jurisdiction
assumed by the foreign court as well as the grounds on which the relief is
granted must be in accordance with the matrimonial law under which the
parties are married. The exceptions to this rule may be as follows: (i)
where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently resides and the relief is granted
on a ground available in the matrimonial law under which the parties are
married; (ii) where the respondent voluntarily and effectively submits to
the jurisdiction of the forum as discussed above and contests the claim
which is based on a ground available under the matrimonial law under which
the parties are married; (iii) where the respondent consents to the grant
of the relief although the jurisdiction of the forum is not in accordance
with the provisions of the matrimonial law of the parties. V. CONCLUSION There is nothing
that makes a marriage valid or invalid for it being performed with the use
of internet or information technology. Once a person satisfies the
essential and formal validities of the marriage his/her marriage is
perfectly valid. Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com
[Ed: Views
expressed herein are the vies of the author only]
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