The Allahabad High Court ruled that people marrying under the Special Marriage Act, 1954, can choose not to publicise their union with a notice 30 days in advance.
Background:
The HC ruling came on the plea of a Muslim woman who converted to Hinduism for marriage as the couple saw the notice period under the Special Marriage Act as an invasion of their privacy.
Under Section 5 of the Act, which enables inter-faith marriages, the couple has to give notice to the Marriage Officer; and under Sections 6 and 7, the officer has to publicise the notice and call for objections.
Vigilantism: The public notice ended up giving vigilante groups, families hostile to interfaith and inter-caste unions, and the social prejudice of legal bureaucracy disproportionate powers to police young couples.
As a result, many preferred to convert and marry under personal laws, rather than expose themselves to harassment.
Court’s judgment:
Right to privacy: The court said that mandatorily publishing a notice of the intended marriage and calling for objections violates the right to privacy.
No need for notice: If a couple gives it in writing that they do not want the notice publicised, the Marriage Officer can solemnise the marriage.
Freedom to choose partner: Laws should not invade liberty and privacy.
The freedom to choose for marriage without interference from state and non-state actors should be guaranteed.
The Law Commission of India report in 2012 had made a similar recommendation to “keep a check on the high-handed and unwarranted interference by caste assemblies in sagotra, inter-caste or inter-religious marriages”.
Significance:
The HC ruling can now be cited across India to prevent public notices under the Special Marriage Act.
The ruling may have bearing on Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 particularly targets inter-faith marriages.
This new law declares conversion of religion by marriage to be unlawful, mandates a 60-day notice to the District Magistrate and also requires the Magistrate to conduct a police inquiry to find out the explicit reason for the conversion.
Key Points:
Special Marriage Act (SMA), 1954:
The Special Marriage Act is a central legislation made to validate and register interreligious and inter-caste marriages in India.
It allows two individuals to solemnise their marriage through a civil contract.
No religious formalities are needed to be carried out under the Act.
Provisions of the Special Marriage Act:
Section 4: There are certain conditions laid down in Section 4 of the Act:
It says that neither of the parties should have a spouse living.
Both the parties should be capable of giving consent; should be sane at the time of marriage.
The parties shall not be within the prohibited degree of relations as prescribed under their law.
While considering the age, the male must be at least 21 and the female be 18 at least.
Section 5 and 6:
Under these sections, the parties wishing to marry are supposed to give a notice for their marriage to the Marriage Officer in an area where one of the spouses has been living for the last 30 days. Then, the marriage officer publishes the notice of marriage in his office.
Anyone having any objection to the marriage can file against it within a period of 30 days. If any such objection against the marriage is sustained by the marriage officer, the marriage can be rejected.
Details of the verdict
Observations:
The provision for mandatory publication of notice, derived through “simplistic reading” of the particular law, “would invade 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”.
The court also noted that despite the secular law for marriage, a majority of marriages in the country happen as per religious customs. It said that when marriages under personal law do not require a notice or invitation for objections, such a requirement is obsolete in secular law and cannot be forced on a couple.
Publishing marriage details made optional: 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 notice under Section 5 and 6 of the Act of 1954.
Directives for Marriage officer: In case the parties do not make such a request for publication of notice in writing, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. However, in case the officer has any doubt, he could ask for appropriate details/proof as per the facts of the case.
What are the Criticisms of SMA i.e. the hurdles faced by inter-faith couples?
Practical Difficulties: The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnise inter-faith marriages.
Vulnerable to coercive tactics by family: Publicity in the local registration office may mean that family members objecting to the union may seek to stop it by coercion.
Danger posed by fringe groups: There have been reports of right-wing groups opposed to inter-faith marriages keeping a watch on the notice boards of marriage offices and taking down the details of the parties so that they can be dissuaded or coerced into abandoning the idea.
Intrusion of Privacy: The law’s features on prior public notice being given and objections being called from any quarter, places a question mark on the safety and privacy of those intending to marry across religions.
Violation of Right to Equality: In the case of Hindu and Muslim marriage laws, there is no requirement of prior notice and, therefore, such a requirement in the SMA is considered as violation of the right to equality of those opting for marriage under SMA.
Pushes for religious conversion: Due to complexities involved in SMA, the intending couple finds it easier to settle for marriage under the personal law of one of them, with the other opting for religious conversion. While conversion to Islam and Christianity has formal means, there is no prescribed ceremony for conversion to Hinduism.