When Shreya* (28) and Priya* (22) met at the latter’s cousin’s house in 2018, sparks flew between them. They realised they were deeply attracted to each other. Despite living in two different states – Shreya was from Punjab and Priya from Haryana – they managed to stay in touch.
Thus began their romantic relationship – a “deep, loving, and nurturing bond” as their petition before the Supreme Court, seeking the right to marry for queer couples like them, says.
Life, however, got in the way. What followed is a battle with Priya’s family who allegedly abused her and threatened to get her married to a man.
“Unable to bear the abuse and violence anymore, and not wanting to be forced into marriage, she (Priya) left her house out of her own volition,” their petition reads.
After years of being on the run and several court interventions, the couple now live together in a small town in North India.
At the heart of their plea for marriage equality before the apex court is a key demand – to do away with the provision of the Special Marriage Act that mandates marriage officers, who are appointed by the state government, to issue a public notice (including private details of the couple like name, address, occupation) and solicit objections to the marriage within 30 days of the notice being published.
As legal experts pointed out in conversation with The Quint, giving queer couples the right to marry without abolishing the aforementioned provision, can in fact do more harm than good. Why? We decode.
The Special Marriage Act & Its 30-Day Notice Requirement
While India has several religious marriage laws, the apex court is currently hearing petitions to accommodate LGBTQIA+ couples within the folds of the Special Marriage Act 1954: a law that allows any couple – irrespective of their religious, caste identities – to get married.
However, the registration of such marriages is an arduous process.
The requirement of a 30-day notice period can be found under Section 5 of the Special Marriage Act, which is what petitioners like Shreya and Priya have challenged.
The process is as follows:
But How Can This Harm Queer Couples?
“If a queer couple is required to give notice of 30 days, reside for a minimum of 30 days in a district where they intend to marry, and face the prospect of families being given ample time to object to their relationship, then no queer person would ever dream of solemnising a civil marriage,” Shreya and Priya’s petition before the Supreme Court pointed out.
"Marriage officers would have their own biases and can be influenced by families of the couples to use these grounds against them, and deny them marriage," Muskan Tibrewala, a Delhi-based lawyer, pointed out.
Experts The Quint spoke to also said that this is exactly why the scrapping of the notice requirement is deeply intertwined with a queer person’s right to marry.
This fear is not without evidence.
How The Notice Requirement Has Previously Been Misused
In 2020, interfaith couples in Kerala were reportedly harassed by right-wing vigilantes using these marriage notices.
The marriage applications of hundreds of interfaith couples in Kerala, specifically where the bride was Hindu and the groom was Muslim were uploaded on the website of the Kerala government’s Registration Department, from where anyone could download them.
A report by The NewsMinute pointed out how their details were then circulated on WhatsApp, with the message:
“These are love jihadis. We are the next scapegoats of these people. If you know these people, you should help them.”
Previously, Haryana's Court Marriage CheckList for Gurugram (Gurgaon) required the notice to be sent to the home address of the couple, and, bafflingly enough, its publication in a national newspaper. This was later scrapped by the Punjab and Haryana High Court in 2018.
Besides the grave safety implications, the notice regime also stands on shaky legal grounds.
Why This Stands on Shaky Legal Grounds
Legal experts have pointed out that the notice requirement violates several fundamental rights and is unconstitutional.
Over the years, the government has defended the “need” for such a notice period.
While the reasons have kept changing as this by The Quint documents, the Union government, more recently in 2021, argued before the Delhi High Court that “it may not be possible to verify the credibility” of couples marrying under the Special Marriage Act, “ if at least thirty days period is not given.”
As further pointed out by Advocate Tibrewala, the top court while recognising the right to privacy as a fundamental right in 2017 had noted that marriage was very well within the its folds. (Justice K. S. Puttaswamy (Retd.) and vs Union Of India)
Over the course of the marriage equality hearings, Senior advocate Raju Ramachandran, representing the petitioners, had further elaborated on the link between the notice regime and privacy:
”Publishing the notice is unconstitutional because before a formal entry into a marriage, you are invading my privacy by asking me to declare my intention to marry in public domain for objections to be invited.”
In fact, in 2021 (Safia Sultana Through Husband Abhishek Kumar Pandey Vs State of Uttar Pradesh), the Allahabad High Court had held that it was not mandatory to publish notices for marriages being solemnised in the state under the Special Marriage Act and said:
And, How Has The Supreme Court Responded?
When arguments in favour of abolishing the notice regime were brought up before the top court over the course of the marriage equality hearings earlier this year, the 5-judge constitution bench orally agreed that it invaded a couples privacy.
“The object [of notice regime] was to protect. Now, you’re virtually laying them open to invasion by society, by Collectors, District Magistrates, Superintendent of Police,” the court verbally noted, according to LiveLaw.
However, only a few days later, the top court also verbally expressed that it would prefer to confine the hearing to the recognition of same-sex unions alone and that the challenge to notice & objections regime in the SMA can be heard by a division bench later.
While it remains to be seen if the Supreme Court will legalise queer marriages and do away with the notice regime of the Special Marriage Act, it is perhaps essential to ponder over what one of the petitioners’ lawyers said: