A Kerala-based law student has filed a Public Interest Litigation (PIL) in the Supreme Court, claiming that some provisions of the Special Marriage Act (SMA) violate the fundamental rights of a couple intending to marry and deprive them of their right to privacy.
Who can register under the Special Marriage Act? What is the clause that is deemed as a threat to privacy? Here’s a primer.
Who can register under the SMA?
- The SMA governs those marriages that could not be solemnised according to religious customs – which essentially means inter-faith or inter-caste marriages.
- It can also be used by couples from the same community who don’t want their marriage governed by relevant personal laws.
- A marriage performed in accordance with religious rites can also be registered under SMA, if both partners want so.
What is the eligibility criteria?
- Neither of them has a living spouse.
- Neither of them is incapable of giving consent to the marriage because of an unsound mind.
- Neither of them has been suffering from a mental disorder which makes them unfit for marriage or having children.
- Neither of them has been subject to recurrent attacks of insanity.
- The man is 21 years old or older, and the woman is 18 years or older.
- They are not within the “degrees of prohibited relationship”. This concept broadly prohibits incest, as well as marriages between first cousins, and certain relations by marriage.
What documents do I require during the process of registration?
- Proof of age
- Address proof
- Affidavit with regard to marital status
- Passport size photos
What procedure should I follow to register my marriage under this Act?
- First, the couple has to give notice in writing to the “Marriage Officer” of the district in which at least one of them has been residing for the last 30 days
- The marriage is supposed to be scheduled within three months from the date of the notice
- Once the notice has been received by the Marriage Officer, this has to be "published” by displaying it in their office in a conspicuous place
- A copy has to also be kept in a “Marriage Notice Book” which can be inspected by anyone free of charge
What is the point of this notice? Is it applicable for Hindu/Muslim Marriage Act as well?
No, the process of putting a notice is applicable only for those who want to register under Special Marriage Act.
For 30 days after the notice has been published, anyone can object to the marriage if it contravenes one of the conditions for marriage – age, capacity to consent, no incest, etc.
Essentially, since marriage of inter-faith and inter-caste couples is registered under this Act, it is to let the families or communities of bride or groom to get to know about the impending wedding.
If there are no objections, the marriage can be solemnised at the end of the 30-day period.
What is the PIL in SC regarding this?
The petition challenges provisions of the Act on the ground that it violates the Fundamental Rights of citizens under Articles 14, 15 and 21 of the Constitution, as both parties are required to publish their private details. This, being open for public scrutiny, 30 days before the intended marriage is a matter of concern, the plea said.
“This infringes the rights of autonomy, dignity and the right to marry, of various couples,” said the PIL, adding that it might have a “chilling effect” on the right to privacy.
What has the apex court said in response?
A bench headed by Chief Justice SA Bobde issued notice in the case, seeking the Centre’s response regarding concerns over the 30-day public notice requirement.
Meanwhile, certain oral comments made by the bench have kicked up a storm on social media. The bench is reported to have asked the petitioner’s counsel during a brief hearing on Wednesday, 16 September:
“Your plea is that this is a violation of their privacy. But what if children elope to get married and parents need to be told about their whereabouts? What if a spouse runs away? How will the other spouse know where they are?”Supreme Court Bench
What happens if someone raises objection to the notification?
If someone does object to the marriage, then the Marriage Officer has to conduct an inquiry into whether or not the objection is valid within 30 days of receiving the objection.
During this time, the marriage cannot take place.
If the Marriage Officer decides the objection is valid and refuses to solemnise the marriage, either the bride or groom can file an appeal before the district court within 30 days of the refusal.
How is marriage solemnised under the SMA?
After all this, if marriage can finally be solemnised, the Marriage Officer registers the details in a certificate, which is signed by the parties to the marriage and the three witnesses.
Once the certificate is entered in the “Marriage Certificate Book”, this becomes conclusive evidence of a marriage under the SMA.
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