[BREAKING] Mandatory publication of notice inviting objections before marriage under Special Marriage Act violates privacy: Allahabad High Court

Personal liberty and privacy are fundamental rights including within their sphere right to choose partner without interference from State, family or society, the High Court reiterated.
[BREAKING] Mandatory publication of notice inviting objections before marriage under Special Marriage Act violates privacy: Allahabad High Court
Marriage Allahabad High Court

The Allahabad High Court has ruled that it is up to the marrying couple to decide whether or not a public notice inviting objections should be published or not prior to their marriage under the Special Marriage Act, 1954.

The ruling was passed on Tuesday in view of concerns that the right to privacy of inter-faith couples is violated and undue societal interference is attracted when such a notice is mandatorily issued under the 1954 Act.

The Court observed that, on the one hand, marriages under personal laws take place without any interference from any corner, even if it is later to be declared void.

"However, under Sections 6 and 7 of Act of 1954 the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same," the Court remarked.

Justice Vivek Chaudhary
Justice Vivek Chaudhary

Finding merit in the concerns of privacy violations raised, and opining that the1954 law must be interpreted to uphold fundamental rights rather than violate them, Justice Vivek Chaudhary ruled the following:

  • The requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

  • While giving notice under Section 5 (Notice of intended marriage) of the 1954 Act, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954.

  • In case the couple does not make such a request for publication of notice in writing, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage.

  • It shall be open for the Marriage Officer, while solemnizing any marriage, 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.

  • If the couple, by themselves of their free choice, desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will.

The Court opined that if the provisions regarding the publication of notice inviting public objections under the 1954 Act were interpreted as mandatory, the couple's right to privacy and liberty would be violated.

"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 order said.

The ruling was passed after extensively recounting the history of the 1954 law as well as various Supreme Court judgments that followed touching upon inter-faith marriages, personal autonomy and the right to privacy. The High Court opined:

"In view of the changed social circumstances and progress in laws ... as well as the law declared by the ... judgments of the Supreme Court, it would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day... it is the duty of this court to revisit the interpretation of the procedure under challenge as provided in the Act of 1954."

What prompted the Court's ruling?

Before the Court was a married couple, originally of different faiths. The woman, in this case, converted to Hinduism and married her Hindu husband under Hindu personal laws.

The woman's father had opposed the marriage. The petition before the Court sought her release from the father's custody. Given that the woman was an adult who had married of her own free will, the Court allowed the petition before it.

However, a larger concern emerged for the Court's consideration when the couple told the Court that they would have solemnised the marriage under the Special Marriage Act instead of personal laws, had it not required a public notice inviting objections to be published 30 days prior to the marriage.

Such a notice would invade their right to privacy and cause unnecessary social pressure or interference, the couple expressed. No such condition was imposed under the personal laws, it was pointed out.

The Court further took note that this was an issue affecting a large number of similarly situated persons who desire to build a life with a partner of their own choice. Further, it was submitted that the issue would become more critical with the notification of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which prohibits conversion of religion by marriage.

Coupled with this, it was also pointed out that young couples are not in a position to raise these issues in court either, as litigation would further attract unnecessary attention which would invade their privacy and cause unnecessary social pressure.

Personal liberty and privacy are fundamental rights including within their sphere right to choose partner without interference from State, family or society.
Allahabad High Court

In passing its ruling to ease these concerns, the High Court noted that "

"The law as declared by the Supreme Court, since the case of Lata Singh till the decision in Navtej Singh Johar, has travelled a long distance defining fundamental rights of personal liberty and of privacy ... a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society."

The cases cited by the High Court include:

  • Lata Singh Vs. State of U.P. and another: Once a person becomes a major he or she can marry whosoever he/she likes.

  • In re Indian Woman Says Gang-Raped on Orders of Village Court: An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.

  • Asha Ranjan vs. State of Bihar: Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.

  • Shakti Vahini Vs. Union of India and others: The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. It is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.

  • Shafin Jahan Vs. Asokan K.M. and others: 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. Social approval for intimate personal decisions is not the basis for recognising them.

  • Justice KS Puttaswamy (Retd.) and another vs. Union of India and others: Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination. Privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.

The Court added that even if there is violation of any legal condition in a marriage entered under the Special Marriage Act, the same legal consequences would follow as it would in such a marriage solemnised under personal laws i.e. "the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws."

"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 Court opined.

The Court has also directed that the order be communicated to the State authorities as well, since it relates to a matter concerning the fundamental rights of a large number of citizens.

[Read Order]

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Smt. Safiya Sultana Thru. Husband Abhishek Kumar Pandey & Anr v State of UP.pdf
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