"Chilling effect on the Right to Marry": Petition filed in SC challenging provisions of Special Marriage Act on disclosure of details
Litigation News

"Chilling effect on the Right to Marry": Petition filed in SC challenging provisions of Special Marriage Act on disclosure of details

The plea states that as per certain provisions of the Act, couples are asked to waive their right to privacy to exercise the right to marry.

Debayan Roy

A petition has been filed in the Supreme Court challenging the constitutionality of several provisions of the Special Marriage Act, 1954.

The provisions of the Act which call for making public the personal details of the couple intending to marry seriously damage one’s right to have control over personal information, the plea contends.

Third-year law student from Kerala Nandini Praveen, through Advocates Nishe Rajen Shonker and Kaleeswaram Raj, have challenged Sections 5, 6(2), 7, 8, 9 and 10 of the 1954 legislation as being violative of Articles 14, 15 and 21 of the Constitution of India.

Section 5 of the Act requires that a notice of intended marriage is given by the parties to the Marriage Officer of the district where at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

Section 6 mandates that all such notices received shall be entered in the marriage notice book and the Marriage Officer shall publish a notice by affixing a copy thereof.

The plea states that these provisions require parties to a marriage to publish their private details, open for public scrutiny, before 30 days of the intended marriage. The provisions also allow anyone to submit objections to the marriage and empower the Marriage Officer to inquire into such objections.

"These provisions violate the fundamental rights of the couple intending to marry, depriving of their right to privacy under Article 21 of the Constitution of India", says the plea.

The petition avers that the requirement of notice before marriage is absent in the Hindu Marriage Act, 1955, and customary laws in Islam. Therefore, the said provision is also discriminatory and violative of Article 14 of the Constitution of India.

The law student states that the impugned provisions, by throwing the personal information of the individuals open to public scrutiny, seriously damage one’s right to have control over her or his personal information and its accessibility. The provisions also violate the three-pronged test of proporationality as laid down by the Supreme Court in Justice KS Puttaswamy v. Union of India, the plea claims.

It is further contended,

“Marriage reflects a private decision taken by two consenting adults and the SMA was formulated to provide a secular form of marriage. By making the personal details of the couple accessible to everyone, the very right of the couple to be the decision-makers of their marriage is being hampered by the State.”

The petition states that there is no legitimate State interest that is being protected by the publication of the personal and intimate details of the parties to the marriage.

Further, it is averred that publication of personal details often might have a chilling effect on the right to marry.

"In other words, couples are asked to waive the right to privacy to exercise the right to marry. This infringes the rights of autonomy, dignity and the right to marry, of various couples,” says the plea.

Citing reports of honour killings and violence against inter-caste and inter-religious couples, the petition states that such instances “are predominant” and that “one of the ways to access details of the couples marrying under the SMA is through the public notice under Sections 6(2) and 6(3) of the Act,” which could further pose threat to their lives.

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