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The plea states that 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.
The Supreme Court issued notice to the Central government in a plea challenging provisions of the Special Marriage Act, 1954 that allow personal records of married couples to be made available in the public domain.
The Bench of Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian issued notice in the plea filed by third-year law student from Kerala Nandini Praveen, through Advocates Nishe Rajen Shonker and Kaleeswaram Raj.
In the plea, Sections 5, 6(2), 7, 8, 9 and 10 of the 1954 legislation have been challenged 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.
While hearing the case today, CJI Bobde sought to know what would happen if the couple intending to marry elopes.
Advocate Kaleeswaram Raj responded that the petitioners were not saying that a marriage officer cannot enquire into details of the couple, but that the issue is about publication of records in the public domain.
The Court ultimately issued notice in the matter.
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.”
Further, it is contended 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.