In a landmark ruling by our constitutional court, Justice Vivek Chaudhary of the Allahabad High Court has held that the requirement of publication of notice of intended marriage under Section 6 and entertaining objections under Section 7 of the Special Marriage Act is not mandatory.
Section 6 empowers the Marriage Officer to keep records of such notices of intended marriage and section 7 permits any third party to object to a marriage under the Special Marriage Act. The court held, “The requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.”
Further, while giving notice under Section 5 of the Special Marriage Act, the court observed that “it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954.”
The court added that, in case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage.
“However, it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case”, Justice Vivek observed.
The court was hearing a habeas corpus petition of a married couple, originally of different faiths where the Muslim woman converted to Hinduism and married her Hindu husband under Hindu personal laws. However, her father was not allowing her to live with her husband despite both of them being adults, duly married with their free will.
The young couple expressed to the court that they could have solemnised their marriage under the Special Marriage Act, 1954 but the said Act requires a 30 days’ notice to be published and objections to be invited from the public at large that would be an invasion in their privacy and definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage.
The Court further took note that this was an issue affecting a large number of similarly situated persons who desired to build a life with a partner of their own choice. Further, it was submitted that the issue would become more critical with the notification of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which prohibits conversion of religion by marriage.
It was further submitted through the petitioners that such young couples are not in a position to raise these issues in court either, as litigation would further attract unnecessary attention which would invade their privacy and cause unnecessary social pressure.
So, the court regarded the issue of “whether the social conditions and the law, as has progressed since passing of Act of 1872 and thereafter Act of 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the Act of 1954 and whether with change the said sections no more remain mandatory in nature?”
The court cited a catena of judicial pronouncements on the issue of adults’ right to choose a partner, privacy, free will and consent. Justice Chaudhary also referred to the reports of the Law Commission of India and the development of law till the enactment of Special Marriage Act. He noted that it would be “cruel and unethical” to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.
Paying heed to the actual provisions of the Special Marriage Act, the Single Bench of the Allahabad High Court observed that, “The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, or the persons concerned.”
The court noted the blatant discrimination between marriages under the Special Marriage Act and marriages under personal laws, as for the former a public notice is a prerequisite whereas in the latter there is no such requirement before solemnisation of marriage. He reportedly said, “There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954 (Special Marriage Act), under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage.”
The Court added that even if there is violation of any legal condition in a marriage entered under the Special Marriage Act, the same legal consequences would follow as it would in such a marriage solemnised under personal laws i.e., “the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.”
While referring to landmark Supreme Court judgments of Puttaswamy that upholds privacy as one of the most important rights to be protected both against State and non-State actors and Shafin Jahan that empowers adults to choose their own partners without social approval, Justice Vivek Chaudhary observed that there is a long chain of decisions “growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society.”
Finally, the court directed the Senior Registrar of this Court to ensure that a copy of this order is communicated to the Chief Secretary of the State of Uttar Pradesh who shall “forthwith communicate the same to all the Marriage Officers of the State and other concerned authorities as expeditiously as possible.”
The judgment may be read here: