Is 30-day waiting period under Special Marriage Act necessary: Kerala High Court asks Central government

The Kerala High Court recently opined that the legislature should consider whether the 30 day waiting period mandated under the Special Marriage Act, 1954 (the Act) is essential in the present day and age [Bijy Paul & Anr. v The Marriage Officer & Ors.]..As per the Act, one of the intending spouses should be residing within the territorial limits of the jurisdictional marriage officer for at least 30 days before submitting the notice of intended marriage. After that, the couple will have to wait for another 30 days to solemnise the marriage.Justice VG Arun questioned whether these requirements are essential 69 years after the Act was enacted, especially in light of technological advances."Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers," the Court's order stated.The single-judge directed the Central and State governments to file their counter affidavits in the matter wihtin a month and added,"A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays." .The order was passed on a plea moved by a yet-to-be-married couple who had submitted the notice of their intended marriage on January 5 this year to the respondent marriage officer.The petitioners moved the Court challenging Section 5 of the Act that prescribes the 30-day period.They contended that the same is unconstitutional, arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution.It was pointed out that the only purpose of notice of intended marriage is to enable any person to object to the marriage on the ground that the marriage would contravene any of the conditions mentioned in Section 4 of the Act.However, since any such contraventions can be ascertained by other means or by conducting an enquiry as provided under Section 8, the petitioners argued that there is no justification in waiting for 30 days calling for objections from the public.They also argued that the 30-day notice period is merely directory in nature and not mandatory, even though a division bench of the High Court had held it to be mandatory in another case.Further, the petitioners pointed out that when the statute was enacted in 1954, technological advancements especially in communication were not as developed as they are now."The advancement of technology, facilities of easy enquiry and change in social conditions are relevant for interpretation of the provisions. It would be unreasonable to force the present generation living with current advancements to follow the norms and period adopted by earlier generations due to conditions prevailing then," the plea said..Since one half of the couple has to return to Muscat for work on January 24, the petitioners sought interim relief from the court in the form of a direction to the marriage officer to conduct an enquiry and register the marriage without waiting for 30 days..However, Deputy Solicitor General of India (DSGI) S Manu submitted that the statutory provision has been in force for more than half a century and cannot, therefore, be overlooked for granting the interim relief.Government Pleader S Appu's arguments were also in line with that of the DSGI..With regard to the interim relief sought by the petitioners, the Court deemed it improper to grant the same saying,"As rightly contended by the learned DSG, grant of an interim order will have the effect of stay of operation of the provision.... This court cannot also ignore the Division Bench and Single Bench decisions holding the time stipulated in Section 5 to be mandatory. For the aforementioned reasons, the prayer for interim relief is declined," the court explained..The matter will be taken up again after a month by which time the Central and State governments are expected to file counter affidavits.The petitioners were represented by advocates KM Firoz and Geo Paul..[Read Order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.