The right of an adult to marry a spouse of their choice, subject to consent validly given, is a private, personal choice. It seems intuitive that it should not be deliberately thrown open to public scrutiny and interference from strangers, but it is only on 12 January 2021 that a single judge of the Allahabad High Court (at its Lucknow Bench) has restricted such exposure.
In Smt. Safiya Sultana through her husband Abhishek Kumar Pandey & Anr. v. The State of U.P. & Ors. (“Safiya Sultana”), the High Court has read down the procedural Sections 6 and 7 of the Special Marriage Act, 1954 (‘SMA’) which provides a way for couples to marry without being bound by any religious laws or practices.
Special Marriage Act: An Arduous Process That Can Prove ‘Dangerous’
A secular mechanism for marriage and divorce is an essential pillar of a secular nation. Given the overwhelming preference for formal marriage in India, the SMA is undoubtedly a vital legislation.
However, the procedure under the SMA is so arduous, and in some cases dangerous, that it is actually easier and safer for many inter-faith couples to simply have one party convert.
What Is Required Under Special Marriage Act?
Briefly, the SMA requires that the couple give a written “notice of intended marriage” to a district Marriage Officer (sometimes in two districts depending on where the parties reside). The notice then gets published, both in a book kept open for inspection “without fee” by any person and in a “conspicuous place” in the office for 30 days. “Any person” may object to the intended marriage on certain grounds and if they do, the Officer decides on the objections and whether the marriage may be allowed. If not allowed, the couple must appeal to a Court for their right to marry. If there are no objections the couple can marry after the 30 day period expires.
Why Many Inter-Faith Couples Convert To Marry
The procedure is clearly a blatant undermining of personal autonomy, privacy, and consent. Moreover, it is unnecessary: a forced disclosure of information to avail the same rights as a couple marrying under religious laws and customs, to which no such procedure applies. There isn’t, and there shouldn’t be, any State interest in the gender or religious affiliation of the parties to a marriage.
Consequently, there shouldn’t be a difference in how the State treats different couples, but it has persisted even after the coming into effect of the Constitution.
The dangers of the publication requirements under the SMA are well documented. Religious extremist groups actively monitor the notices and track down, harass, or even attack couples. They are left seeking police protection, negotiating with hostile family, or forsaking the relationship.
The consequence is that many inter-faith couples convert to marry — as can be seen in the spate of Allahabad High Court rulings being discussed a few months ago where, in the context of pleas for police protection from inter-faith couples, it was (wrongly) remarked that conversion for the purpose of marriage was not valid.
A Division Bench of the Court corrected course soon after, with the Calcutta High Court adding its own approval of individual autonomy, but the underlying cause of the symptoms — the unfairly onerous route under the SMA — remained, until now.
Allahabad HC’s Decision On Violation Of Privacy Under Special Marriage Act
In Safiya Sultana, the High Court was considering yet another habeas corpus plea concerning an inter-faith couple. In the course of proceedings, the Petitioner couple raised the issue of the SMA’s onerous procedure blocking their, and others’, rights to a peaceful marriage.
They also conveyed to the Court the difficulty in directly challenging such procedure, which would itself reveal their identities and their intent to marry.
The High Court, faced with a demonstrably systemic hindrance to the exercise of the fundamental right to liberty, examined the issue and came to the conclusion that the procedural requirements of notice publication under the SMA violate the right to privacy which is available for all personal choices, as the choice of a spouse undoubtedly is.
Accordingly, the Court has ruled that Marriage Officers cannot, and must not, publish the notices and invite objections to the intended marriage, unless the couple requests the publication themselves.
The Court’s reasoning is solid, founded on the right to privacy as recognised by nine judges of the Supreme Court in KS Puttaswamy v. Union of India. Justice Bobde, as the Chief Justice was then, authored an opinion (cited extensively by the High Court) where he affirmed that “… Ex facie, every right which is integral to the constitutional rights to dignity, life, personal liberty and freedom, as indeed the right to privacy is, must itself be regarded as a fundamental right.”
Throwback To The Hadiya Case
The High Court notes that the right of an adult to marry, and to choose one’s spouse, is fundamental. The judgment quotes extensively from relevant Supreme Court decisions on the subject, including Lata Singh v. State of U.P. (where an adult woman’s family harassed and attacked her chosen husband of a different caste) and Navtej Singh Johar & Ors. v. Union of India (where Section 377 of the Indian Penal Code, 1860 was read down to officially de-criminalise certain kinds of consensual sexual relations between adults).
The High Court also refers to Shafin Jahan v. Ashokan KM & Ors. (the infamous Hadiya case) in March 2018 where the Supreme Court summed up the issue simply:
“The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. … Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution. … Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.”
How Did The Privacy Issue Under SMA Come Before The Allahabad HC?
A disapproving audience is precisely what the High Court has protected inter-faith and inter-caste couples from, while upholding their personal dignity, privacy, and liberties. Given the clear, undisputed position regarding privacy and the right to choose a spouse, the rigours of the SMA demanding public exposure — which caused obvious harm — would not have stood the tests of Constitutional validity in most courts of law. The High Court has applied the law as it should apply, logically extending established principles to the issue before it.
A question may perhaps arise as to how the issue came before it, or the propriety of the High Court’s decision to examine the SMA in a petition initially filed for habeas corpus.
It should be noted that the distribution of petitions on the basis of writs sought is a matter of internal Court management and not a Constitutional requirement. Article 226 bestows High Courts with wide jurisdiction under Article 226, and the exercise of powers is discretionary. The Supreme Court has held that a High Court possesses sufficiently wide powers under Article 226 to do justice, in pari materia to the powers of the Supreme Court under Article 142. While determining whether to entertain a petition exercising its discretion, the Supreme Court has also recognised that the High Court may take into account “the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation”.
In this light, for a High Court to reject the pressing Constitutional questions raised before it by Petitioners who have been personally affected, on a question of technicality, would defeat the purpose of Article 226 and the very existence of such a Constitutional court. Narrowing the scope of powers in writ jurisdiction only delays justice, which is why the Supreme Court while granting bail to Arnab Goswami urged High Courts to rule in favour of liberties, notwithstanding technicalities.
An example of the damage caused by a narrow approach in this regard is Home Secretary (Prison) & Ors v. H Nilofer Nisha.
The Supreme Court held that a writ of habeas corpus could never be filed seeking premature release of a prisoner, even if circumstances showed the continued incarceration to be invalid under law, using sweeping language without exception. The Court introduced a strict technicality to unduly limit the scope of habeas corpus — the oldest writ evolved to protect liberties; described as the “key that unlocks the door to freedom” by MC Setalvad.
Why Courts Must Not Dissuade Petitioners
Additionally, the Court did not even protect pending petitions for habeas corpus by prisoners. It effectively dismissed every pending petition before High Courts throughout the country, sending prisoners who could have been released after serving twenty-five years or more back to the start of the never-ending litigation journey. A devastating effect of the adherence to misconceived limits on writ jurisdiction.
In the present case, the High Court found a clear and consistent violation of rights, and a question of interpretation. It felt bound by its position as a Constitutional court to address the injuries it saw before it, or to do “complete justice”, which it was capable of and tasked with.
It duly issued notice to the State and Union and heard arguments on the issue. When Courts dissuade petitioners despite valid grievances, it betrays their understanding — or lack thereof — of their duties to the people. One may safely conclude that the High Court in Safiya Sultana has simply understood and done its duty without being trapped in convenient procedure, and every person is a beneficiary of it.
(Shruti Narayan is an advocate practicing in Delhi. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)