Brief of Allahabad HC order on Special Marriage Act, 1954 - Vrankers

Brief of Allahabad HC order on Special Marriage Act, 1954 

Quick brief on case law: Safiya Sultana vs. - State Of U.P. [HABEAS CORPUS No. - 16907 of 2020] where Allahabad HC held “Mandatory Publication of Notice of Intended Marriage under Special Marriage Act, 1954 violates the Right to Privacy.”

1. The present Habeas Corpus Petition is filed by Smt. Safia Sultana, who after converting to Hindu religion and renamed as Smt. Simran, married Abhishek Kumar Pandey as per Hindu rituals. However her father, is not permitting her to live with her husband. They both are adults, duly married with their free will and desire to live together. Thus the custody of the detenue by her father is illegal. The Court directed for the presence of the detenue and her father. 

2. Before the court, the married women accepted the averments aforesaid and had shown her desire to live with her husband. The father of the detenue also fairly accepted that since she is an adult, has married with her choice and wanted to live with her husband, he also accepts her decision and wished both of them best for their future. 

3. This matter could have come to an end at this stage, but, for the views expressed by the young couple while interacting with the Court on their personal appearance, the young couple expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the said Act requires a 30 days notice to be published and objections to be invited from the public at large. 

4. Whereas the personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice. 

5. Ld. counsel argued that looking into the changing pattern of the society, amendments made to the Special Marriage Act, 1954 as well as the law declared by the Supreme Court in the last decade with regard to privacy, liberty and freedom of choice of a person, provisions of Special Marriage Act, 1954, directing publication of a notice before marriage and inviting public objections, require a revisit to understand whether now with the said change they are to be treated as mandatory or directory in nature. 

6. Another argument submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner. 

7. The bench considered the following sections of Special Marriage Act, 1954 relevant for the present case law :- "4. Conditions relating to solemnization of special marriages. 5. Notice of intended marriage. 6. .Marriage Notice Book and publication. 7. Objection to marriage. 8. Procedure on receipt of objection. 46. Penalty for wrongful action of Marriage Officer." 

8. The society has an ever changing phenomenon. It keeps changing with time as per its new needs, expectation and other changing aspects. The very purpose of law is to serve the society as per its requirements; therefore, the law also keeps evolving with the changes in society. 

9. The bench before coming to the Special Marriage Act, 1954 and its present relevance, briefly stated the history and development of the law with regard to civil marriages in India.  A Bill was introduced by Sir Henry Maine for the first time proposing a law for inter-cast and inter-religion marriages in India. The proposed Bill permitted any two citizens of India to marry under the same instead of their respective personal laws.  The law, as passed, provided that any two persons after declaring complete severance from their respective faith can marry under the Act of 1872.  Section 6 of the said Act provided procedure for a public notice to be made and thereafter Sections 7 and 8 and further provided the procedure for deciding the objections, if any, filed against the proposed marriage which could be filed by any person.  With the independence of India and coming into force of a secular Constitution in January, 1950, the Parliament proceeded to revisit the personal laws and laws with regard to marriages and thus along with other enactments, it also passed the Special Marriage Act, 1954 (Act of 1954). 

10. Under the Special Marriage Act of 1954 any two Indians living wheresoever, and whether professing the same or different religions (or no religion at all), could solemnize their marriage provided that they fulfilled the conditions provided under Section 4 of the said Act.

 11. Act of 1954 also provided that an existing marriage, solemnized under whatever law, could be registered under the new law, if the same fulfilled the conditions provided therein. After registration, the marriage stood covered under the provisions of Act of 1954 and not under the personal law wherein it was initially solemnized.

 12. The procedure of publishing a notice and inviting objections from public at large, as was provided under Act of 1872 was, thus, also adopted by the Act of 1954 with minor variations. 

13. The question raised before this Court was whether the social conditions and the law, as has progressed since passing of Act of 1872 and thereafter Act of 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the Act of 1954 and whether with change the said sections no more remain mandatory in nature? 

14. The bench observed that :-  The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same.  And 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.  In fact, even today, majority of marriages are performed under the personal laws. These marriages under personal laws are performed by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage.  The individuals intending to marry approach the priest who performs the marriage as per the customs and rituals of the said religion. There orally saying that they are competent to marry is regarded sufficient for solemnizing marriage under the personal laws.  In case any party violates any condition of the said personal law, the issues are later decided by a court of law. But, the marriage takes 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. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of Act of 1954.  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. 

15. The bench held that in case, such individuals applying to solemnize their marriage under the Act of 1954 themselves by 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. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise. 

16. The bench mandates that while giving notice under Section 5 of the Act of 1954 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. 

17. In case they do not make such 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 solemnization of the marriage. It shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, 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.