The judgement also states that transgender persons have the right to marry under the Special Marriages Act (SMA). The majority opinion by Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha differed with the minority opinion of Chief Justice of India (CJI) D.Y. Chandrachud and Justice S.K. Kaul, on the issue of validity of adoption regulations that restricted unmarried couples to adopt children.

This article is the second part of a series that will explain and analyse the judgement with respect to different ways in which the judges reached their conclusions, the jurisprudence they created and sidelined, and the consequences of this judgement.

You can read part I of the series here. This one dealt with the court’s decision over fundamental right to marry. This part will deal with what the Court has said on the Right to enter into a Union.

The following were the issues decided by the court:

1. Whether the Right to Marry is a Fundamental Right or not.
2. Whether there is a Fundamental right to enter a Civil Union or not.
3. Whether the SMA is unconstitutional for excluding non-heterosexual persons from its scope or not.
4. Whether non-heterosexual marriage can be read within the framework of SMA or not.
5. Whether Transgender Persons have a right to marry under the SMA or not.
6. Whether the adoption Regulations that restrict unmarried non-heterosexual couples in adopting children are valid or not. 

Right to Enter a Union

While the court ruled that there is a no fundamental right to Marry, it had varying opinions on the right to enter a union and the obligation on state’s part to recognise such union. The CJI opined that there is a right to enter into an abiding civil union that can be traced to Articles 19, 21 and 25 and that the state is under obligation to give such relationships the due recognition to give meaning to the rights, Justice S.K. Kaul agreed with CJI’s opinion. The majority-consisting of Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha disagreed with this construction of the right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status under Fundamental Rights. Apart from agreeing to the reasons noted in Justice Bhat’s opinion, P.S. Narasimha gives additional reasons in his opinion regarding why there cannot be a right to a civil union within the Fundamental Rights having the effect of the state recognising it.

First, I will present the CJI’s opinion which forms the minority opinion and then the majority opinion. This is because the majority opinion regarding Right to Civil Union was a response to the system of rights propounded by CJI in his opinion.

There is a Right to a Civil Union or an Abiding Cohabitational Relationship- CJI DY Chandrachud

CJI Chandrachud traces the right to enter into a union other than marriage-since he had denied the fundamental right to marriage-to Article 19, 21 and 25. Before doing so, he relies on American Philosopher Martha Nussbaum to describe what it means to be Human to emphasise on the importance of- relationships and official recognition to such relationships. He states that “the Constitution, through both positive and negative postulations, inter alia capacitates citizens in their quest to develop themselves.” He connects this Constitutional Aim or a common constitutional theme of development of citizens to Martha Nussbaum’s list of ten capabilities which are central requirements to live a quality life. Among those requirements, CJI emphasises- firstly on the capability of humans to emote love and other such feelings in their private space and secondly on the capability to be able to live with and toward other, and having such institutional arrangements or affiliations protected.

To put it simply, the Constitution, through its various provisions in Fundamental Rights and Directive Principles of State Policy, aims at the development of people and a quality life for them. This quality life, CJI states, includes the ability to form meaningful relationships and the ability to have those relationships recognised by the state.

Article 19 and Right to enter a Union

Article 19(1) (a) states as follows: All citizens shall have the right— (a) to freedom of speech and expression. CJI relied on the well-established jurisprudence that freedom of speech enshrined in Article 19(1) (a) also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner and the expression of sexual desire to a consenting party.

Article 19(1) (c) states that “all citizens shall have the right to form associations or unions or co-operative societies.” While holding that associations include the traditional coming together of people for a cause or such kind of associations, other forms of association are also protected under Article 19 (1) (c). To realise all forms of expression protected under Article 19(1)(a), CJI relied on a United States’ case Roberts vs. United States Jaycees which stated that freedom of association includes freedom to form intimate relationships. He observed that state recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations and the state by not endorsing some form of relationships, encourages certain preferences over others. He states as follows:

“For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples. Unlike heterosexual couples who may choose to marry, queer couples are not conferred with the right to marry by statute. To remedy this, during the course of the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions. The Committee shall set out the scope of the benefits which accrue to such couples.”

Another right that the CJI traces the right to a civil union to, is the Right to Settle in any part of India. Article 19(1)(e) guarantees that All Citizens shall have the right to reside and settle in any part of the territory of India. CJI read two definitions into the word ‘settle.’

One:  that an exercise of Article 19(1)(e) can be by building a life in any part of the country and reside there permanently with or without a partner-an exercise that is uniquely significant to queer, inter-caste and inter-faith couples) who migrate from their hometowns to other places in the country including cities. Another definition is that citizens may ‘settle down,’ meaning entering a relationship with another person. He also stated that settling down in any city encompasses entering a relationship with another person since building a life includes choosing their life partner. Therefore, he declared that Right to enter a Union is protected under Article 19 (1) (e).

In all the relevant rights guaranteed under Article 19, the CJI’s opinion not only traces the queer couples’ right to a union but also acknowledges that state recognition to these unions is necessary for the complete enjoyment of these rights by individuals.

Article 21 and Right to Enter a Union

CJI traced the right to enter a civil union to three facets of Article 21. Article 21 states that No Person shall be deprived of his life or personal liberty except according to procedure established by law. First, he observes and acknowledges the legitimacy of an atypical family i.e., a family that does not conform to the traditional notions of natal mother and father. He recognsied the right of atypical families to be different to the conventional ones and ruled that “Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights of every citizen and not some citizens.”

Second, he ruled that the act of entering intimate relationships and choices made in such relationships are protected under Right to Privacy under Article 21, and that a right to intimacy exists emanating from right to privacy, autonomy, and dignity.

Third, the CJI read right to health, emphasizing mental health on which the Parliament too has enacted a legislation on, into Article 21- supporting the right of people to enter a civil union. He states that rights of Queer Persons to access mental healthcare is recognised by Section 18 of the Mental Healthcare Act, 2017-which stipulates that persons have access to mental healthcare without being discriminated on the basis of sex, gender, or sexual orientation. Reading Article 21 with Section 18 of the Mental Healthcare Act- CJI stated- would deem the natural consequence to be the one where queer people have the right to enter a lasting relationship with their partner and have the right not to be subjected to inhumane and cruel practices and procedures.

Article 25 and Right to Enter a Civil Union

Article 25(1) states as follows:

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

CJI expanded the scope of freedom of conscience from just freedom to practice and profess a religion to a freedom and right to judge the moral quality of one’s actions in one’s life. The application of a sense of what is right and wrong and a decision on what they want to do and what they do not-individuals are entitled to decide for themselves in accordance with their conscience- he stated. This included whether they want to choose a partner and what kind of partner would they choose, he held.

By tracing the right to enter an abiding union to all these articles, CJI held that the right extends to queer relationships too. This was however different from a right to marriage which the CJI had denied in his judgement, along with the rest of the bench. CJI’s opinion on marriage, when read in combination with the opinion on right to an abiding civil union means that although there is no right to marriage to individuals since marriage is an institution accorded recognition by the state and therefore not as fundamental, there is a right to an abiding civil union which is fundamental to live a quality life and to exercise rights under Articles 19, 21 and 25.

By directing a committee to be set up to set out the scope of benefits that should accrue to Queer couples, the CJI’s opinion asks the state to act and recognise the relationships between Queer people.

Right to Relationship exists but no obligation on the state to take measures to recognise it- Justice Ravindra Bhat

While Justice Bhat and the CJI agreed on the point of there being no fundamental right to marry, they disagreed on whether the right to a relationship other than marriage-can be traced back to Article 19 and 25, and whether the state is under obligation to create conditions for the exercise of those rights.

Firstly, Justice Bhat characterises the right to union as propounded by the CJI, as Right to Relationship so as to differentiate between the two. Therefore, in this article too, Right to Relationship will be used when referring to Justice Bhat’s opinion and Right to Union will be used when referring to CJI’s opinion.

While Right to Relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity, does not trace these rights to Articles 19 or 25. He merely places them within the wide ambit of Article 21 and argues that these rights being included in Article 21 is  natural consequence of Supreme Court’s judgements in Navtej Johar vs. Union of India(Decriminalization of Section 377), Justice K.S. Puttaswamy vs. Union of India[(2017) 10 SCC 1)] (Right to Privacy a Fundamental Right), Shafin Jahan vs. Asokan K.M [(2018) 16 SCC 368] (Right to Marry is within Right to Life under Article 21), Shakti Vahini vs. Union of India[(2018) 7 SCC 192] (Khap Panchayats cannot prevent a consenting couple from marrying).

Disagreement with the CJI over the flow of Rights from Articles 19 and 25, on positive obligations of the state

Justice Bhat disagreed on CJI’s point of there being a positive obligation on state to create an institutional scheme to give recognition to queer civil unions. He stated that Article 19(1) (a) does not oblige the state to enact a law or frame a regulation which enables the facilitation of that expression. He takes the example of Limited Liability Partnership (LLP) – a form of association to argue that if there was not a law on LLP, the court could not have validly created such a regime enabling the recognition or regulating such associations under Article 19(1) (c); or a demand for construction of a house by the state could not be made under Article 19(1) (e). Justice Bhat did not rule out court scrutiny or court’s power to direct the government altogether, but he opined that assertion of a right in the face of some threat by state action or despite state protection-becomes subject of state scrutiny. This means that if there is a particular order or law made by the government which discriminates against Queer Couples, then the court can interfere and direct the state to do something different, but this interference cannot flow from the rights under Article 19 or 25. In the absence of any law, the court cannot ask the state to create a new system and therefore, the positive obligation imposed by the CJI on the state was disagreed with.

Justice P.S. Narasimha disagreed with the CJI in his concurring opinion to Justice Bhat’s opinion by stating that there cannot be a right to civil union mirroring the right to marriage. He stated that when the benefits of marriage do not make marriage a fundamental right, the same benefits cannot render the right to an abiding cohabitational union fundamental. The interpretation of CJI under article 25 is also disagreed with, by Justice P.S. Narasimha. He states that if such interpretation is permissible, the textual enumeration of freedoms under Article 19 becomes redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgement. Regarding directing the state to recognise civil unions, he stated that by doing this, the doctrine of separation of powers is violated.

Conclusion

It is clear that the CJI proposed an institution that mirrors marriage in the form of right to enter an abiding civil union and the obligation of the state to recognise such relationship, while the majority disagreed with him on the obligation of state to recognise such relationship. CJI’s task of propounding the civil union concept after denying the fundamental right to marry, falters in front of the reasoning adopted by Justice P.S. Narasimha who stated-if benefits of marriage are not fundamental, how can an institution that mirrors marriage be fundamental? Justice P.S.Narasimha’s reasoning does not completely negate CJI’s reasoning but presents the contradictions of CJI’s opinion.

In the next part of this series, the rugged jurisprudence the majority tried to bring forth with its opposition to CJI’s concept of Civil Union will be explored.

(The author is a researcher with the organisation)

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M. Jaffrey, a retired employee of a reputed public sector establishment in India, decided to register his marriage in 2004 under the Special Marriage Act. His Nikah/Islamic marriage took place way back in 1981. So, what prompted Jaffrey to re-register his marriage after 23 years? And why, as a believing Muslim, did he seek to register his marriage afresh under a secular law? According to Jaffrey, what made him do so was the realization that he was a father to two daughters.

Since he was married under Muslim law, he could not bequeath the entirety of his property to his daughters. Under the Muslim Personal Law, which was put on the statute books in 1937, he could only will one-third of his property to his daughters. In the absence of a will, the daughters would get a share but her uncles and male cousins will also get a share in the said property. For Jaffrey, this was non-negotiable. “My hard-earned money should go to my wife and my daughters; I am very clear on this issue. There is no reason why my brother or my nephew should have a claim on what I have earned. I love my religion and I think it is perfect but I also love my daughters and I would want to see that their future is secure. Moreover, it is not my fault that I don’t have a son. It is all the will of God”.

Muslim parents who only have daughters are increasingly seeing the Special Marriage Act of 1954 as a way out. Recently, a Kerala Muslim couple registered their marriage under the Special Marriage Act for the same reason. A couple of any religious denomination may register their marriage under the Special Marriage Act, without having to change their religions. Also, registering their marriage under this secular act does not make their religious marriage or the Nikah invalid. That’s because the Special Marriage Act supersedes the provisions of Islamic law of inheritance and allows them to bequeath their entire property to their daughters, and not just a fraction of it.

The Islamic law of inheritance gives sons double the share of what daughters receive. This rule complicates matters for Muslim families which only have daughters. In the absence of son(s), a share of the property also goes to other specified male relatives.

The Debate on Muslim Law of Inheritance

Modern Muslim sensibilities, however, want the Muslim law of inheritance to be gender just. Mohammad Irfan, a professional based in Aligarh, says, “I do not expect to see change in the Muslim personal law in my lifetime. Any change in the legal apparatus takes a long time. What is the option before me except to take recourse to the secular law.” Just like Jaffrey, Irfan, 50, father to a lone daughter, is planning to register his marriage under the Special Marriage Act to ensure his property is transferred to his daughter after his demise.   

For some Muslims, though, demanding a change in the Islamic law is like tinkering with the sharia, which is unacceptable. “How can you demand a change in the divine law,” asks Zeeshan Misbahi, a religious scholar and teacher based in Allahabad. “In the absence of a father or a son, the Islamic law makes uncles the protectors of daughters and hence it is only fair that they get a share in his brother’s property. Those who are bypassing this law or demanding changes in it do not understand the objectives of the sharia.”

Not all religious scholars though are on the same page on this issue. Waris Mazhari, who is a Deoband graduate and now teaches Islamic studies at the Delhi-based Hamdard University, argues that law should be in tune with contemporary reality, otherwise it becomes an obstacle to societal progress. “Women make lots of sacrifices and it is because they invest time and energy within the household that men become successful. Our law should evolve to recognize the efforts and contributions of women. Islam was the first religion to give women a share in property. The need of the hour is to honor this spirit and move towards a more equitable distribution of resources between the two genders.”  

Zeeshan disagrees. “The Islamic law is divine that cannot be changed for all times to come. Moreover, if Muslims want to give more share to their daughters, what is stopping them from doing Hiba or gift? Islamic law provides for this option. But it appears that the sole intention of some modern Muslims is to defame Islam, hence they are opting for a secular law like Special Marriage Act.” 

Gift or Will

Though the provision of gift does exist, there is a major difference between the Islamic Hiba and making a will. Saif Mahmood, a lawyer at the Supreme Court, explains, “Bequeathing property by a will is very different from transferring by way of Hiba, which is a gift. By Hiba, the property is transferred in presenti i.e. immediately and the transferor loses ownership in his/her lifetime whereas a will is enforceable only after the death of the person(s) making the will. Hiba is a transfer of property; will is a succession to property.”

This means that those doing Hiba would lose the ownership of the property immediately after the execution of the deed. And since, unlike a will, the Hiba is irrevocable, he or she will be at the mercy of the one who receives the gift. Says Jaffrey, “If tomorrow, due to some problems, I want to take back my gift, then I cannot do it, as it is irreversible. It is better therefore to execute a will, which is only possible for Muslims if they register themselves under the Special Marriage Act.”

Mahmood agrees: “Once the marriage is registered under Special Marriage Act, the Islamic law ceases to apply to the parties. This means that Muslims who register their marriages under the Special Marriage Act can bequeath their properties by way of a will to anyone without any of the restrictions prescribed in the Islamic law. For example, under the Muslim law, only a third can be bequeathed and that too not to the legal heirs as their shares are already prefixed within the Islamic law of inheritance.”

In such a scenario, Muslim couples who only have daughters see merit in registering their marriages under a secular law, while some activists think requisite changes should be brought about in the Muslim law itself.

Zakia Soman, the co-founder of Bhartiya Muslim Mahila Andolan, says that it’s high time that the Muslim law became gender just. “For years now, our organization has been campaigning that sons and daughters should get equal share in their father’s inheritance. The Kerala example tells us that Muslim society is ready for change but the Ulama and their regressive and misogynistic interpretation of Islam is what is keeping Muslims from achieving these reforms. Our reading of Islam tells us that the core of religion is about justice and hence there should be no place for such discriminatory laws in our religion.”

It remains to be seen whether the campaign to formally change the Muslim Personal Law will succeed or not. What is certain, however, is that some Muslims are already quietly subverting it.

A regular contributor to NewAgeIslam.com, Arshad Alam is a writer and researcher on Islam and Muslims in South Asia.

Courtesy: newageislam.com

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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:

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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.

Background

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:

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