In a major relief for couples marrying under the Special Marriage Act (SMA), the Allahabad High Court on January 12 ruled that publishing a notice indicating intent to marry in order to invite objections to the impending nupitals is not compulsory. Publication of such a notice is invasive of one's fundamental right to privacy, Justice Vivek Chaudhary observed.
Under section 5 of the act, a couple must give 30 days notice to the district marriage officer indicating their intent to marry. Under section 6, a notice giving details of the couple is made public to invite/entertain objections to the marriage under section 7 of the act. Thus, making such a notice public can be done only if the couple permit the marriage officer to do so in writing, the high court said.
"However, it shall be open for the Marriage Officer, while solemnising 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," the judge said.
No such notice given under personal laws
The high court pointed out that no such public notice is required to be given when a couple marry under the various personal laws.
In fact, even today, majority of marriages are performed under the personal laws. These marriages under personal laws are performed by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage, the court said.
In the event there is a violation of any condition of the personal law, the marriage can be declared void at a later stage through legal route.
"But, the marriage takes place without any interference from any corner, even if it is later to be declared void," the judge said. Similarly, legal consequences may follow if conditions as laid under the SMA are flouted.
"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 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," the court order read.
The high court's ruling came on a habeas corpus plea filed by Abhishek Kumar Pandey who alleged that his wife Safia was being detained by her father. Pandey said he wed Safia as per Hindu rituals after she converted to Hinduism and renamed herself Simran.
Cruel and unethical to force the present generation to follow 150-year old custom
The judge disclosed that his observations come after his interaction with the couple who personally appeared before him. The young couple had told him that they would've married under the SMA, but for the compulsory public notice which would create unnecessary and social pressure on their free will to marry.
Justice Chaudhary referred to Law Commission Reports, the development of the law and the Supreme Court's 2017 KS Puttaswamy verdict on the fundamental right to privacy to record his observations.
Justice Chaudhary observed that it would be cruel to compel today's generation to follow customs and traditions that were adopted more than 150 years ago.
"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, the high court reasoned.
"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," the court added. "In case the same on their simplistic reading are held mandatory, as per the law declared today, they would 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," it said.