Synopsis: The Allahabad high court’s recent decision to strike down the provisions of the Special Marriage Act, 1954 that make it mandatory for couples to publish a 30-day public notice of their intent to marry is a significant and much-needed correction.
About the Special Marriage Act
- The Special Marriage Act was originally enacted in 1872 to provide a framework for inter-caste and inter-religious marriages.
- The Act allows the solemnization of marriages (performing the public ceremony/rites of marriage) without any religious customs or rituals. The law solemnizes marriages by the way of registration.
- As per Section 5 of the Special Marriage Act, marriages irrespective of the religion of the couple require parties to give a 30-day public notice of their intention to marry before solemnizing their marriage
- The provision of mandatory 30 days’ notice period ended up giving vigilante groups, families hostile to inter-faith and inter-caste unions with disproportionate powers to police young couples.
- The Act is applicable to all Indian citizens and Indian nationals who live in abroad.
- Allahabad High Court observed the Special Marriage Act as ‘one of the earliest endeavours towards Uniform Civil Code.
About the case
Recently, in response to a writ petition filed, Allahabad High Court gave a judgment that would have far-reaching impacts.
- In its conclusion, the HC stated, though the couple wanted to marry under the Special Marriage Act, the mandatory provision for 30-day notice, under section 5 of the act, compelled them to take the easier route of religious conversion.
- Thus, Section 5 acting as a barrier to inter-faith couples, willing to marry under the secular SMA rather than taking religious conversion routes.
- On this basis, the Court allowed couples not to publish the mandatory 30-day notice of their intention to marry.
- Also, the court allowed the individuals, who desire to have more information about their counterparts, to opt for publication of notice under Section 6 of the Act. Such publication of notice under free will not be a violation of fundamental rights due to free choice.
- The court also noted that when marriages under personal law do not require a notice or invitation for objections, such a requirement for inter-faith couples’ is obsolete in secular law and cannot be forced on a couple.
- As a result, many preferred to convert and marry under personal laws, rather than under the Special Marriage Act, 1954 to prevent themselves from harassment.
Why the Allahabad high court’s decision is regarded as a significant step?
The high court’s ruling against the mandatory need for couples to publish a 30-day public notice has been praised for the following reasons,
- First, the decision comes at the right time where the anti-conversion ordinances in Uttar Pradesh and Madhya Pradesh have endorsed the state intrusions on inter-personal relationships. The decision will protect the primacy of individual autonomy.
- Second, the HC ruling is in line with The Law Commission of India report in 2012 that recommended keeping a check on the unnecessary interference by caste assemblies in sagotra, inter-caste or inter-religious marriages.
- Third, The HC judgment reaffirms the constitutional protection to minorities as even today a minuscule of the minority of marriages are, inter-faith unions.
- Fourth, it is in line with a series of landmark Supreme Court judgments that are against societal and state interference in personal affairs and firmly establishes personal liberty and privacy to be fundamental. For example,
- Puttaswamy v Union of India, that recognise the right to privacy as a fundamental right
- The Hadiya case, right to choose one’s partner.
- In Navtej Singh Johar case: The ruling that decriminalised homosexuality.
- It will be a body blow to Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which have provisions such as
- Declaring conversion of religion by marriage to be unlawful
- Mandating a 60-day notice to the District Magistrate
- Requiring the Magistrate to conduct a police inquiry to know the real intention behind the conversion.
- As the Special Marriage Act is a central legislation, couples across the country seeking to marry under the law will benefit from the liberal ruling of the provisions.
- It paves way for abolishing and cleansing obsolete Victorian-era protectionist provisions in other laws as well.
The Allahabad High Court judgement is a reminder and a warning that the constitution remains the bulwark against an overreaching state policy such as the anti-conversion ordinance in UP and MP.