Marriage is the most essential part when one ties a knot with the other and is known to be a husband and wife. If a person wants to marry a girl or a boy from another religion then the act under which they can marry is known as the Special Marriage Act, 1954. This talks about the wider scope of marriage among different religions. This act is based on general applications but applies only when the parties choose to marry under it, permits marriage between any two persons irrespective of any religion or caste. But there are circumstances when this marriage can become void, voidable, or null depending upon the circumstances which need to be clearly stated to seek justice. And some clauses of this act are against the right to privacy under the Indian Constitution which needs to be amended to have fairness and justice to the people. So this paper will focus on the infringement of the right to privacy by sections 5 and 6 of the Special Marriage Act, 1975.
The Special Marriage Act is the legislation that came into effect in 1954, basically made to validate and register inter-religious and inter-caste marriages in India. Through a civil contract, two individuals can solemnize their marriage. There is no need for religious formalities to be carried out under this Act. It permits any individual belonging to faith to marry another person belonging to a different faith provided there are certain conditions. The conditions are laid down in section 2 of the Special Marriage Act.
Scope of the Act
This peculiar piece of legislation permits any man and woman to marry without any restriction based on the caste of the religion. There is a provision for registration of marriage and divorce in this enactment. The scope of this Act is much wider as it is applied to all religions irrespective of any discrimination for marriage and obligations regarded that.
- Recently, the Allahabad High Court has ruled that couples getting married under the Special Marriage Act, 1954 can choose not to publish the mandatory 30- day notice of their intention to marry before their authorities.
- As per the courts, the provision for mandatory publication of notice would invade the Fundamental Rights of liberty and privacy.
- There is free will or we can say freedom to choose for marriage without any hindrance from state and non-state actors, of the persons concerned is included.
- If in a case where individuals applying to solemnize their marriage under the Act of 1954 can voluntarily choose to opt for publication of notice under section 6. This depends on them only.
- Such publication of notice would not be violative of their fundamental rights as they adopt the same of their free will.
- The publication of notice under section 6 and inviting or entertaining objections under section 7 can only be read as a directory in nature.
- It should be given or executed only on the confirmation or request of the parties to the intended marriage and not other than that.
Controversial Provision Of The Special Marriage Act, 1954
Section 5 of the Act requires that-
- A notice of intended marriage is to be given by the parties to the marriage to the marriage officer of the concerned district.
- At least one party to the marriage has resided in that district for not less than 30 days immediately preceding the date on which such notice is given.
Section 6 of the Act mandates that-
- All such notices shall be entered in the marriage notice book.
- The marriage officer shall publish a notice by affixing a copy thereof to some conspicuous place in his office.
- Sections 6(2) and 6(3) require that the parties to an intended marriage must publish their private details for public scrutiny 30 days before the marriage.
The provision violates the right to privacy of the parties. The right to privacy is held to be a visible feature of the right to life under Article 21 of the Constitution. The requirement also violates the right to equality under Article 14 of the Indian Constitution since no other laws prescribe such a requirement.
SMT. SAFIYA SULTANA THROUGH HER HUSBAND ABHISHEK KUMAR PANDEY & ANR. v. THE STATE OF U.P. & ORS
- A woman name Safiya Sultana converted her religion from Muslim to Hindu and changed her name to Simran.
- By following all Hindu rituals she married Abhishekh Pandey.
- The father of Safiya did not permit her to live with Abhishekh because of which she approached the Court and pleaded that they both are adults, who have married with their free will and consent with a desire to live together. Thus they both should be allowed to live together.
- Simran’s father agreed that they both should live together.
- But the matter does not come to an end here. Simran and her husband pleaded before the Court that their marriage has been solemnized under the Special Marriage Act, 1954, but his Act also requires a 30 days’ notice and objections against it by anyone from the public, if any, to be entertained.
- They have expressly said that this kind of notice would be an invasion of their personal space, say privacy and would have surely caused them unnecessary social pressure and interference about their marriage done from their free choice. The personal law does not impose any such condition of publication of the notice.
- So this case demanded that due to the changes taking place in the society there should be a change in the provision as well, under the Special Marriage Act, 1954 regarding the same.
The Hon’ble Court held that at the time of giving notice under Section 5 of the Act of 1954 it shall be optional for parties or depending on the parties to the marriage, to make an application or request in writing to the marriage officer. They cannot publish any such notice or entertain objections regarding the intended marriage and have to only proceed with the solemnization of the marriage that is the only requirement.
It was held that the publication of notice under the Special Marriage Act, 1954 is a violation of fundamental rights provided by the Constitution of India.
1. N. KANNADASAN v. AJOY KHOSE– In this case, it was held that Constitutionalism envisages that all laws including the constitutional provision should be interpreted to uphold the basic features of the Constitution.
In the present case, the law is interpreted only to uphold the basic feature of the Constitution because it was against the fundamental rights mentioned under the Constitution that is the right to privacy, which was being infringed in the present case.
2. GITHA HARIHARAN v. RESERVE BANK OF INDIA– In this case, it was held that the cases where there are chances that the two constructions of the statute are possible then the court will go with the one which aligns with the Constitution of India or more appropriate rather than the other one that would go against the Constitution.
In the present case, the Court upheld the statute which aligns with the Constitution that is the Constitution itself rather than upholding the statute of the Special Marriage Act, 1954.
3. LATA SINGH v. STATE OF U.P AND ANOTHER– In this case, it was held that a person becomes a major; he or she can marry whosoever he/she likes.
In the present case also both the girl and boy were major and thus, had the right to marry whomever they liked.
4. SHAKTI VAHINI v. UNION OF INDIA AND OTHERS– in this case, it was held that no one, neither the State nor the law can dictate a choice of partners or limit the free capability of every single person to decide on these matters. Social confirmation or approval is not for the intimate personal decision just on the basis for recognizing them.
Every person has the free will to choose what they want without any hindrance but that should not be against the law. In the present case also the marriage was not against the law but happened to be under the purview of the Special Marriage Act, 1954.
5. JUSTICE K. S PUTTASWAMY (RETD.) AND OTHERS v. UNION OF INDIA AND OTHERS- In this case, it was held that a law that encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the framework of Article 21, an encroachment of privacy must be reasonable or justified based on the law which stipulates a procedure that is fair, just, and reasonable.
In the present case, there is a direct violation of the right to privacy with Fundamental Rights regarding marriage by publishing notice and entertaining objections on that.
The Special Marriage Act is meant to facilitate interfaith or inter-caste marriages at the same time because it is an old legislation and it was enacted at the time when compromises had to be made within or between conservative and progressive elements of the Congress Party. What happened was that this law continues to include these provisions which say that you have to have a notice period, you have to have objections from the public coming in and this has led to a great deal of harassment of interfaith couples and all this interference, the pressure which gets put on them because of this whole process which basically leads to chaos by objecting their wedding. This has led many couples to look inside for the root of having for one party to convert to the religion of the other and get married for the sake of convenience. Now, this was one of the things which were raised by a couple before the Allahabad High Court because it was a Hindu man and a Muslim girl had ended up converting to Hinduism to get her married, and still the family was objecting and there were a lot of problems which had happened due to this case. Finally, they had a Habeas Corpus petition to get her free. They told the Court that one of the reasons why they had to go down this whole route or process is only because of the problems with the Special Marriage Act so the Court decided to look into the whole situation as it was the question of people’s lives in personal liberty.
The Court did find that we have got provisions which are making it difficult for people to get married. It is creating an unnecessary public spectacle out of this because marriage is a personal matter of choice and they looked at the way the Supreme Court has developed its jurisprudence over the years on the right to privacy in the landmark Puttaswamy Judgement from 2017 and also, there are many more cases where the Supreme Court has evolved their jurisprudence on this and had very clearly said that the right to marry, the right to choose a partner is something which is purely a private internal choice for the two consecutive adults, nobody else gets to decide on whatever may be the family or the society, the states, the Courts nobody has the power to do that and thus the court held that this provision as it stands by making mandatory and not allowing a choice, an element of choice which is a violation of right to privacy and the right to choose which is an intrinsic part of the right to personal liberty.
If one is abiding by the Constitution and considers it as superior then it is necessary to follow the rules and regulations mentioned. There can be wider interpretations of those rules and regulations depending upon the facts and circumstances of the case but cannot be altered or misinterpreted in any of the ways as it is a matter of justice which needs to be served fairly and reasonably.
There can be other alternatives followed just to prevent two marriages or any other fraud in case of marriages done under the Special Marriage Act which is not against or inconsistent with any rights mentioned in the Constitution of India.
Instead of objecting on notice, there can be resolution made of this situation where the family is against the marriage, counselling can be done to understand the need and reason for having the marriage.
Publication of notice without the will or consent of the couples is not appropriate rather that can be discussed by the couples with their families for better understanding and to avoid any later dispute as everyone has their own lives and they are free to choose and perform what they want but that should not be in violation of the Constitution of India.
There can be alterations done in the Special Marriage Act, 1954 in the said sections as regards the marriage as it is sometimes a matter of privacy also which have to be accepted. This provision is discriminatory because if one is getting married under the Hindu Marriage Act or Muslim Customs or any other religious personal laws there is no provision like it is in the Special Marriage Act. There is no objection made by the public and there is no notice sent also in those laws but is in the said Act which is a kind of discrimination which has to be removed anyhow in a democratic country.
A very significant judgment from the Allahabad High Court in which it was held that the provisions of the Special Marriage Act which requires a 30 days public notice period for any impending marriage under the Act which allows members of the public to file objections based on this public notice to the marriage they have held that these provisions cannot be mandatory and can only be applied if the couple agrees to this because otherwise, it would be a violation of the right to privacy in right to freedom of choice.
This judgment is a very significant judgment, especially because we have seen all the controversies recently regarding the U.P interfaith or anti-conversion Ordinance which is targeting inter faith marriages which is meant to tackle love jihad. So it proves to be a very important judgment and it reaffirms a lot of the rights which are important for couples looking to get married at this point.
 Smt. Safiya Sultana Through Her Husband Abhishek Kumar Pandey & Anr. v. The State Of U.P. & Ors.
 (2009) 7 SCC 1.
 (1999) 2 SCC 228.
 (2006) 5 SCC 475.
 (2018) 7 SCC 192.
 (2017) 10 SCC 1.
 Kumari, Areti. (2007). In the Absence of a Uniform Civil Code, is the Special Marriage Act the Best Alternative for Women. SSRN Electronic Journal. 10.2139/ssrn.956233.
BY RIYA LUHADIA | SEEDLING SCHOOL OF LAW AND GOVERNANCE, JAIPUR NATIONAL UNIVERSITY