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Mandatory publication of intended marriage under Special Marriage Act violates Right to Privacy
Safiya Sultana Vs State Of UP
HABEAS CORPUS No. - 16907 of 2020
About/from the judgment:
The High Court has ruled that it is up to the marrying couple to decide whether or not a public notice inviting objections should be published or not prior to their marriage under the Special Marriage Act, 1954.
The ruling was passed in view of concerns that the right to privacy of inter-faith couples is violated and undue societal interference is attracted when such a notice is mandatorily issued under the 1954 Act.
The Court observed that, on the one hand, marriages under personal laws take 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," the Court remarked.
Finding merit in the concerns of privacy violations raised, and opining that the1954 law must be interpreted to uphold fundamental rights rather than violate them, the Court ruled the following:
-> The requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.
-> While giving notice under Section 5 (Notice of intended marriage) of the 1954 Act, 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.
-> In case the couple does 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.
-> It shall be open for the Marriage Officer, while solemnizing any marriage, 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.
-> If the couple, by themselves of 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.
The Court opined that if the provisions regarding the publication of notice inviting public objections under the 1954 Act were interpreted as mandatory, the couple's right to privacy and liberty would be violated.
"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," the order said.
The ruling was passed after extensively recounting the history of the 1954 law as well as various Supreme Court judgments that followed touching upon inter-faith marriages, personal autonomy and the right to privacy. The High Court opined:
"In view of the changed social circumstances and progress in laws ... as well as the law declared by the ... judgments of the Supreme Court, 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 recognized by the courts of the day... it is the duty of this court to revisit the interpretation of the procedure under challenge as provided in the Act of 1954."
Read the Judgment
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