Special Marriage Act: Does the law require notice to be sent to the applicant's residence?

Delhi HC Image Courtesy:journalsofindia.com

The Delhi High Court has issued a notice of contempt against Sub-Divisional Magistrate (SDM) of South West Delhi for sending notice under Special Marriage Act (SMA) to the residence of one of the applicants. The single-judge bench of Justice Najmi Waziri cited an earlier order passed by the court in 2009 in Pranav Kumar Mishra and Anr. v. Govt. Of NCT of Delhi & Anr. (W.P.(C) No.748/2009; decided on April 8, 2009) where it was clearly stated that marriage under SMA should be solemnised without sending notice to their residences, and the court had directed that all Marriage Officers be directed to follow this procedure henceforth.

Accordingly, the Delhi government had issued direction to all the Deputy Commissioners that as per the court’s orders, marriage under SMA be solemnised without sending notice to their residences but permitted the Marriage Officers to display the notice on the office notice board in accordance with the law. The Delhi High Court has thus, issued a notice to the concerned SDM in this case to show cause why contempt proceedings be not initiated against him for obstructing the administration of justice and for committing contempt of court. The SDM clearly acted in contravention of the court’s orders and the court observed that he had committed contempt of court.

“In other words, whenever a couple desire to get their marriage registered under the Special Marriage Act, 1954, notices are not to be sent to their residences. There is prohibition to send such notices which could jeopardize the plans of the applicants or become a cause for threat to their lives or limb,” the court said.

The law in question

While the Delhi High Court’s clear pronouncement in Pranav Kumar Mishra’s case states that notice should not be sent to the residence of the applicants, it is pertinent to look at the law. The Special Marriage Act deals with issuing notice during registration of marriage under Chapter II sections 5 to 10. The section 5 of SMA states as follows:

“When a marriage is intended to be solemnised under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.”

Section 6 sets out the procedure for the notices to be published in the Marriage notice book and such notices to be displayed at some conspicuous place in the office. In these provisions, there is absolutely no mention of sending such notices of intended marriage under SMA to be sent to the residences of the applicants. Thus, when the law does not even provide for it, it is erroneous on the part of the authority to follow any such procedure which is not under the ambit of the law.

The only form of giving notice to the public under the Act is by displaying it in the office and keeping it in the notice book which anyone is free to inspect without any costs. As such, anybody can raise an objection to such notice of intended marriage and the procedure then follows thereon.

Allahabad HC waives notice

In a landmark ruling passed in January, Justice Vivek Chaudhary of the Allahabad High Court 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.

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.

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. 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.”

Certainly, displaying such notice in the Marriage Officer’s office violates the Right to Privacy of the individual and sending such notice to their residence could pose a threat to the lives of the couple. In India, where the society has not yet come to terms with amicable inter-faith marriages, and where anti-conversion laws continue to impede inter-faith couples and their hope to live a normal life, such notices if issued to their residence could only make matters worse for them. Primarily, such procedure is not in accordance with the law and furthermore, as the Allahabad High Court has rightly observed, the practice of issuing notice and displaying it in the office should be done away with unless the parties consent to it. The fact that the law allows absolutely anybody to raise an objection to an inter-faith marriage is an infringement of the Right to Privacy and the right to choose a life partner and has no place in a democracy.

The Delhi High Court order may be read here: