The aim of this article is to analyse the possibility of marriages and divorce being conducted in the cyberspace. The article is addressing the Hindu and Muslim law of marriages and is not covering other personal laws.

I. Introduction


The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevails, if there is a conflict between the two laws of the different sovereign States[1]. This is more so when matrimonial matters are involved. If there is any inconsistency between the laws of two sovereign nations, then the law of that country will govern the position with which the parties have a “direct and immediate contact”. This becomes important when the matters of “cyber matrimony”[2] are involved. A marriage is valid if it is entered into as per the personal law of the parties to the marriage. Thus, 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. Similarly, a divorce of Hindu or Muslim parties cannot be valid and effective unless and until it is in accordance with their personal laws.

II. Cyber matrimony

The concept of cyber matrimony is complex and complicated in nature. This is so because it has to deal with two vexing fields of law, i.e. the Private International Law and the law of cyberspace. The Private International Law or the Conflict of Laws inevitably involves an apparent conflict between the laws of two sovereign nations operating in the sphere of matrimonial matters. Similarly, since the Internet is boundary less no country can claim jurisdiction over any particular matrimonial relationship that is effectuated in the cyberspace. Thus, to solve this issue a person is required to be well versed in both the laws of Private International Law and the Cyberspace. If one of them is missing, the concept of “cyber matrimony” can be misunderstood. A cyber marriage to be valid must satisfy “both” the “essential validity” and the “formal validity” of the marriage. An essential validity is generally the requirement of complying with the “capacity” aspect of the marriage. Thus, two parties cannot marry unless they are capable of marrying as per the law applicable to them. On the other hand, the formal validity generally encompasses within its ambit the “formality aspects” of the marriage. For instance, if the parties are Hindu and the ceremony of “saptapdi” is an essential ceremony for them, than non-performance of the same will render the marriage null and void. Thus, both essential validity and formal validity of the marriage must be fulfilled. Similarly, to obtain the divorce a party must prove that the other spouse has committed a “matrimonial wrong” within the meaning of the law governing them. These principles equally apply to cyber marriages as well. There may, however, be certain wrongs that are peculiar to real space only. For instance, a person cannot be held liable for committing the offence/wrong of “adultery” within the meaning of Indian Penal Code/Hindu Marriage Act if he indulges in cyber adultery. He may, however, be held liable for causing “mental cruelty” as mentioned under the Hindu Marriage Act for committing “cyber adultery”.

As far as Hindus are concerned they cannot enter into a cyber marriage under the Hindu Marriage Act unless there is a custom to the contrary that allows the party to marry by simply accepting each other as husband and wife. This is so because the traditional Hindu law of marriage requires certain “formalities” to be complied with to make a marriage valid. In the cyber marriage those formalities cannot be performed and the “essential formality” aspect is not fulfilled. As far as Special Marriage Act is considered the parties can conveniently enter into a valid marriage since they have to sign and accept each other as husband and wife. Using the information technology in this case can conveniently fulfill the legal formalities involved. For instance, the signature aspect can be easily taken care of by using the digital signatures and the witnesses, parties and the registrar of marriage can see each other by using the method of “video conferencing”. It must be noted that in the past the “legislature” has allowed the departure from the tradition formalities of a Hindu Marriage[3] and simplified it to the extent of almost mere acceptance of each other as husband and wife[4].

As far as Muslims are concerned their marriage is primarily considered as “contract” and in the past marriage by telephone was held to be valid. The same logic can conveniently be extended to the cyber marriages as well.

III. The roads ahead

There is nothing that makes the marriages of Hindus and Muslims invalid if the same are entered into using the means of information technology. The same, however, requires a pragmatic and purposive interpretation of the existing provisions of various laws. It would be wrong to suggest that using the means of information technology cannot do the same. There may, however, be certain aspects that require real space dealing. Those natters can simply be bifurcated and the remaining can be safely and conveniently taken care of by the information technology. In the ultimate analysis every case has to be decided on its own facts and the net outcome will depend upon the facts and circumstances of each case.

The article is also available at  http://www.naavi.org/.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at:  pd37@rediffmail.com/  perry4law@yahoo.com
Telephone No: 9899169611.

[1] Praveen Dalal, “The mandates of WTO”,  http://www.naavi.org/, dated: 27-02-05.
[2] The author firmly believes that both marriage and divorce in cyberspace are possible and permissible under the Private International Law. Thus, the expression “Cyber matrimony” is used in that sense.
[3] For instance, the “legislature” of the State of TN has reduced the formalities of marriage drastically by inserting section 7-A in the Hindu Marriage Act, 1955.
[4] Kindly see S.Nagalingam v Sivagami, (2001) 7 SCC 487.