Updated: Jul 8
This blog has been authored by Ishaan Saluja a first year law student at Hidayatullah National Law University, Raipur
For a marriage to be made valid under the law, it has to be solemnized according to the due procedure established by the relevant laws. Special Marriage Act, 1954 (hereinafter referred to as Act) unlike Hindu Marriage Act, 1955 provides for solemnization of marriage irrespective of religion following different faith and rituals, thus marriage under this Act is called special marriage. One of the requirements for the solemnization of a marriage under this Act is that the marriage officer shall be informed by the parties as mentioned under Section 5 of the Act.
Obstacle for the parties to marriage
The intent of the provision requiring notice by the parties is to have adequate safeguard, if anyone objects to the marriage (under SMA) within 30 days, the marriage officer is not allowed to perform the sacrament until the objection is investigated. If a 30-day period is not provided in accordance with Section 7 of the Act, the individual's validity may be difficult to determine.
But these provisions also create obstacles when it comes to fulfilment of the procedure during the process of solemnizing a marriage. Section 5 mandates the parties to give public notice of their intention to marry for a period of 30 days. The marriage officer’s office displays a public notice requesting any objections to the marriage.
The Marriage Office is required by Section 6 of the Act to make copies of all notices available at all times and without charge for inspection, and to publish each notice by copying it in a conspicuous position in the office. When a party to a marriage in which the correspondence is received is a non-permanent resident of the district, the marriage official shall send the written notice to the district marriage officer of the permanent resident of the parties.
The Marriage Officer is required by Section 8 to examine the opposition and decide whether it prohibits the marriage from being solemnised. In the event that the opposition is not reversed within 30 days, any party to the proposed marriage may appeal the district court and they will be bound by its ruling.
The Delhi High Court observed in the case of Pranav Kumar Mishra & Anr. V. Govt. of NCT. of Delhi & Anr. that the above-mentioned clauses establish barriers for the parties to the union. The court said “It is to be kept in mind the that the Special Marriage Act was enacted to enable a special form of marriage for any Indian national, professing different faiths, or desiring a civil form of marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In certain instances, it may even endanger the life or limb of one at the other party due to parental interference.”
Infringe upon the fundamental rights
On the one hand, the Act allows for marriage with much flexibility regarding the religion or faith, but on the other, as previously stated, it violates the Right to Privacy and Liberty by requiring a 30-day notice to invite objections, a provision not found in any other personal law. This was well evident in the recent Allahabad High Court judgement, Smt. Safiya Pandey & Anr vs State of U.P. Thru. Secy. Home, Lko. & Ors., where, the young couple while interacting at personal level claimed that they could have married under the Act, but that the Act requires a 30-day notice and public objections. They claimed that such a notice would be an invasion of their privacy, exert unnecessary social pressure, and interfere with their right to choose whether or not to marry. Personal laws do not impose any such requirement of publishing a notice, inviting and deciding objections prior to the solemnization of any marriage. They said that a huge number of people in comparable situations are facing similar challenges in their desire to create a life with a partner of their choice. Furthermore, unnecessary mala-fide objections by the people of community attracts attention of the people of society that invades to their right to privacy and affects their choice of partner for marriage.
Similarly, the Supreme Court, in the landmark judgement of Shafin Jahan vs Asokan K.M. and others said that, “The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms.”
The Law Commission report no. 242, Prevention of Interference with the Freedom of Matrimonial Alliances : A Suggested Legal Framework in para 9 also stated: “It is desirable that the procedure under the Special Marriage Act is simplified. The time gap between the date of giving notice of marriage and the registration should be removed and the entire process of registration of marriage should be expedited. The domicile restriction should also be removed.”
Hence, the Allahabad High Court held that the parties to marriage may choose not to publish the 30-day notice in public for the intended marriage as it was in violation of the fundamental right to privacy and life & liberty.
Section 5, 6, &7 of the Act were introduced to add credibility to the marriage, and any person may object to the marriage if they find marriage not in alignment with section 4 of the Act. However, in a diverse society like ours, where we are on the verge of creating a new social order built on confidence in the value-system of socio-economic justice enshrined in our Constitution, law reform is a "must." People's customs and beliefs change as the times change, and conceptions of fairness and justice take on new and broader dimensions. As a result, legal reforms are necessary; any democratic society must make a fair effort to address these demands. There cannot be a major discrepancy in the spirit of the statute and recognised customs and the demands of the community's current belief, and it is an undeniable fact that the society has changed compared to the year 1954 when the Act was formulated. Thus, the decision by the Allahabad High Court is laudable.