In January 2021, the Allahabad High Court had ruled that interfaith couples seeking to solemnise their marriage under the Special Marriage Act, 1954 can choose not to publish the mandatory 30-day notice of their intention to marry. This ruling came on the plea of a Muslim woman who converted to Hinduism for marriage. This couple saw the 30-day earlier notice under the Special Marriage Act 1954 to publicise their intention of union as an invasion of their privacy. This new order says that if a couple gives in writing not to publicise their notice, the Marriage Officer can solemnise the marriage.
Special Marriage Act, 1954
The Special Marriage Act, 1954 to provide a framework for inter-caste and inter-religious marriages was originally enacted in 1872. Previously, it required the parties to the marriage to renounce their religion before entering a civil marriage. Despite various changes and versions, the Special Marriage Act of 1954 retained the Victorian-era protectionist provisions.
Section 4 of the Special Marriage Act, 1954 states that a marriage between any two persons may be solemnised if at the time of the marriage the following conditions are fulfilled, namely:
- Neither the boy nor the girl should have a spouse living.
- Both the parties should be able to give a valid consent to the marriage with a sound mind.
- Neither the boy nor the girl should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, and neither party has been subject to recurrent attacks of insanity.
- The male should complete the age of twenty-one years and the female the age of eighteen years.
- The parties are not within the degrees of prohibited relationship—(i) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood.
Section 5 of the Special Marriage Act, 1954 states that:The legislation that allows solemnisation of marriages irrespective of the religion of the couple, requires parties to give an advance 30-day public notice of their intention to marry which displayed at the office of the marriage officer, inviting potential objections to the marriage.
Section 6 of the Special Marriage Act, 1954 states that:
Any couple (inter-religious, inter-caste, or otherwise) would be required to give notice of intention of marriage, which was to be recorded by the Marriage Officer under the Marriage Notice Book at the registrar’s office which shall be open for inspection at all reasonable times, without fee, by any person. The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.
Section 7 of the Special Marriage Act, 1954 states that:
If anyone has any objection to the marriage then they can file against it within a period of 30 days.
If any such objection against the marriage is sustained by the marriage officer within a period of 30 days, the marriage can be rejected. However, if there is no objection, and the period of thirty days is expired, marriage may be solemnized. In case of objection, it will be recorded in writing in the Marriage Notice Book by the Marriage Officer, and it would be read over and explained to the objecting person if required.
The Case:The court was disposing of a habeas corpus writ filed by Abhishek Kumar Pandey, who had married a Muslim woman after converting her to his religion and following the Hindu rituals of marriage.
However, after the wedding, the woman’s family did not permit her to live with her husband.
On an earlier direction of the court, the girl appeared before the court with her father. While hearing, the couple told the court that they were adult and had agreed to marry out of their free will. Thus, the controversy had come to an end. However, the court took notice of the fact that under Special Marriage Act, 1954 it was necessary to publish 30 days prior notice before solemnising the wedding. The couple saw this provision as an invasion of their privacy.
The couple claimed that it would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. They also noted that the situation could worsen because of the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020. (Commonly referred to as the ‘love jihad ordinance’).
The couple argued that it was necessary to amend the Special Marriage Act 1954, in order to keep with changing patterns of society and the SC’s decisions on privacy, liberty, and freedom of choice.
Young couples who would have wanted to use the Special Marriage Act are often, not in a position to raise these issues before their marriages. It is because any litigation would only attract further attention, increasing the risk of social pressure.
The verdict:The Allahabad High Court ruled in favour of the fundamental right to privacyand made amendments to the six-and-a-half decade long mandatory practice under the Special Marriage Act, 1954.
The high court mandated giving notice under Section 5 of the Act of 1954. The court made it 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 30 days’ prior notice under Section 5 and 6 of the Special Marriages Act of 1954.
In case the parties do not make a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnisation of the marriage.
The court also stated that individuals who desired to have more information about their counterparts, could opt for publication of notice under Section 6 of the Special Marriages Act, 1954. Such publication of notice is optional and it will not be violative of the fundamental rights.
Justice Vivek Choudhary, in his judgement, stated that 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 recognised by the courts of the day.
The High Court also noted that this mandatory public notice, or objections to a marriage, are not required under any personal laws, like those under the Hindu Marriage Act or Muslim marriage customs.
The Court, however, did not deliberate on the Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
Citations Given by the HC for the Verdict
He cited landmark rulings by the Supreme Court on the right to privacy, such as the 2017 Aadhaar case which had recognised the right to privacy as a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.
He also cited the 2018 ruling, which had held that the right to choose a partner is a fundamental right in the case involving Hadiya, a medical student, who converted to Islam to marry a Muslim. Then he cited the 2018 ruling in which the court had decriminalised homosexuality.
Impact of the Verdict
The order directly applies across the state of Uttar Pradesh, with a direction given to the Chief Secretary of UP to communicate the same to marriage officers across the state.
The marriage officer would still have the rights to verify the parties’ identification, age, and valid consent of the parties, or assess their competence to enter into the marriage, and can ask them for any details or proof as required.
The verdict of the Allahabad high court creates hope of potentially putting an end to The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which declares conversion of religion by marriage to be unlawful and mandates a 60-day notice to the District Magistrate (DM) and also requires the magistrate to conduct a police inquiry to ascertain the real intention behind the conversion.
A marriage officer may still allow delays and harassment by demanding honorers verification and proofs. This would be especially against those couples who opt out of publication of notice and who may be seen as marrying against wishes of their family.
The rulings of the high court can also be relied upon in other states to argue that the publication of notice is not mandatory, though directions to marriage officers will not be automatically issued.
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