Synopsis: Allahabad high court recently ruled that interfaith couples want to register under Special Marriage Act can refrain from publishing the mandatory 30-day notice for their intention to marry. It will have a significant bearing on our society.
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- The Special Marriage Act was originally enacted in 1872 to provide a framework for inter-caste and inter-religious marriages.
- 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 (performing the public ceremony/rites of marriage.)
- The public notice produced by the parties is displayed at the office of the marriage officer. It invites potential objections to the marriage.
About the case
- Recently, a writ petition was filed in Allahabad High Court.
- While hearing the case the court found that, though the couple wanted to marry under the Special Marriage Act, the mandatory provision for 30-day notice compelled them to take the easier route of religious conversion.
- Thus, Section 5 of the Act has been a barrier to inter-faith couples’ marriages who wanted to marry under the secular law rather than taking religious conversion routes.
- Consequently, Court allowed 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 violative of their fundamental rights.
- 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under personal law do not require a notice or invitation for objections, such a requirement for inter-faith couples’ is obsolete in secular law and cannot be forced on a couple.
What were the reasons given by the court to nullify mandatory 30-day notice?
The court has made the following observations against the mandatory provision for 30-day notice,
- It is an invasion into the fundamental rights of liberty and privacy of individuals.
- Also, it violates the right to choose a partner for marriage without interference from state and non-state actors.
- It is against the changed social circumstances and progress in laws proposed by the Law Commission”.
- As the Special Marriage Act was originally enacted in 1872, It is unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted nearly 150 years back.
- It is against the previous judgments of the Supreme Court on the right to privacy. The court cited the following landmark judgments;
- Right to Privacy recognized by SC in 2017 Aadhaar case.
- The 2018 Hadiya case (a medical student who converted to Islam to marry a Muslim), which held that the right to choose a partner is a fundamental right.
- The 2018 ruling in which the court decriminalized homosexuality.
- The court also cited the example of Himachal Pradesh High Court, which in 2012, had struck down provisions that required notice of intention in case of religious conversion in the Himachal Pradesh Freedom of Religion Act, 2006, citing that it violates the fundamental right to privacy.
What would be the impact of this judgment?
The judgment will have the following impacts on our society,
- First, it will remove hindrances to inter-faith marriages and bring relief to inter-faith couples who are being increasingly targeted by vigilante groups.
- Second, 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.
- Third, it paves way for abolishing and cleansing obsolete Victorian-era protectionist provisions in other laws as well.
- Fourth, 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.