Video Editor: Deepthi Ramdas
In a decision of great significance, the Allahabad High Court on Tuesday, 12 January, has held that there is no need to mandatorily publish notices for marriages being solemnised under the Special Marriage Act as currently required under Section 6 of the Act.
Instead, couples will have the ability to choose whether or not notice of the marriage needs to be published, and if they choose not to, the procedure for making objections to the marriage under Section 7 of the Act, will also not apply.
WHAT EXACTLY HAS THE HIGH COURT DONE & WHY?
Under the wording of the Special Marriage Act, which provides for marriages between people of any faiths, couples are required to give notice to a designated local marriage officer.
Under Section 6 of the Act, this notice is supposed to be published in a “conspicuous place” in the marriage officer’s office. Once the notice has been published, any person can object to the marriage within 30 days, on certain grounds.
The Allahabad High Court, however, found that these provisions as they stood
“invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”
Justice Vivek Chaudhary goes into exacting detail from previous judgments from the Supreme Court on the Right to Privacy to make this determination, including references to decisions in the landmark nine-judge bench Puttaswamy case, the Shakti Vahini honour killings case and the Hadiya case.
The high court also noted that this mandatory public notice or objections to a marriage are not required under any personal laws, like those under the Hindu Marriage Act or Muslim marriage customs.
The majority of marriages in India take place under personal laws, and if there are any concerns raised over the consent to these marriages or other violations of conditions for marriage, these can be taken up in a court of law later. “But, the marriage takes place without any interference from any corner, even if it is later to be declared void,” it said.
The high court notes that there is no reason for this discrimination, as the grounds on which someone can object to a wedding under the Special Marriage Act are the same as the grounds on which a wedding under personal laws can be held to be void.
“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954, 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.”Allahabad High Court in its judgment
Keeping all these factors in mind, the judges held that while couples looking to get married under the Special Marriage Act would still need to register with the relevant marriage officer, it would be optional for them to decide whether or not the notice was to be made public and the objections procedure triggered.
At the same time, the marriage officer would still have the rights to verify the parties’ identification, age and valid consent of the parties, or assess their competence to enter into the marriage, and can ask them for any details or proof as required.
The order directly applies across the state of Uttar Pradesh, with a direction given to the Chief Secretary of UP to communicate the same to marriage officers across the state.
The rulings of the high court can also be relied upon in other states to argue that the publication of notice is not mandatory, though directions to marriage officers will not be automatically issued.
WHAT WAS THE CASE ABOUT?
The case before the high court was a habeas corpus petition filed by a Hindu man on behalf of his wife, a Muslim woman who had converted to Hinduism so they could get married. After the wedding, which took place as per Hindu customs, the woman’s family did not permit her to live with her husband.
As the couple were both adults who had chosen to marry and live together, the high court had held that her custody by her father was illegal, and had her produced before the court. The father accepted the couple’s right to marry and live together in the high court.
However, while the case was going on, the couple had informed the court that they could have tried to get their marriage solemnized under the Special Marriage Act rather than have the woman convert to Hinduism, but the 30 day public notice and objection procedure would have been an invasion of their privacy and “would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage.”
They also noted that the situation could worsen with the enactment of the UP Prohibition of Unlawful Conversion of Religion Ordinance 2020 (commonly referred to as the ‘love jihad ordinance’). The couple argued that it was necessary to revisit the Special Marriage Act (enacted in 1954, but with some concepts dating back to an older version from 1872) to keep with changing patterns of society and the Supreme Court’s decisions on privacy, liberty and freedom of choice.
They pointed out that young couples who would otherwise have wanted to use the Special Marriage Act are often not in a position to raise these issues before their marriages as any litigation would only attract further attention, increasing the risk of social pressure.
As a result, the judge decided to look into issue, saying that:
“Since, the issues raised by the petitioners and their counsels involves right of life and liberty of a large number of persons, therefore, this Court is duty bound to consider their submissions.”