One of the acts governing civil marriages in India, apart from the personal laws regulating individual religions, is the Special Marriage Act, 1954 (SMA). Focussed on the task of providing legislation for marriages not concerned with the religious identity of the parties, the provisions of the Act have been called into question quite frequently in recent times in courts.

One of the provisions of the Act, regarding the solemnization of marriages, lays down that a notice must be issued by the marrying parties to the Marriage Officer of their relevant district, who in accordance with Section 6 of the Act, is bound to maintain such record in the Marriage Notice Book, which shall be freely accessible to anyone at any time, without any fee.

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Further, Section 7 is a provision that has been included to have additional safeguards, where during the period of 30 days if there is an objection to the notice affixed and published, the objector shall inform the Marriage Officer, who shall have the power to investigate the matter in order to understand whether the contention is valid or not.

A controversial provision, it has been challenged, most recently in the Supreme Court, on grounds of its constitutional validity for being in contravention of Article 21 of the Constitution of India. One of the primary issues brought about by the provision revolves around interference by family, community or religious groups and the same becomes a troubling issue for the couple.

The petition was filed in the Supreme Court by a law student from Kerala pending the decision on which the Allahabad High Court, in a different case, interpreted the Section as a merely discretionary principle, not binding couples intending to marry under the Act. However, prior developments on the Section and responses to challenges that have arisen out of their consequence lead to a confusing history, which needs to be streamlined.

The case in the Allahabad High Court (Safiya Sultana through Husband Abhishek Kumar Pandey v State of UP through Secretary, Home and ors. (2020)) observed that publishing a notice and inviting objections before a couple decides to marry under the SMA are no longer mandatory. The Court held that these rules “went against fundamental rights and infringed upon one’s ability to choose to marry without intervention”.

Addressing the facts of the case, the couple belonged to two different religions and were supposed to get married under the SMA; however, due to the 30 day-notice provision, the couple were apprehensive that this could attract interference from their parents and religious groups in the society.

To avoid so much delay in solemnization of marriage, the woman converted and got married. As soon as the father of the woman came to know about the conversion and the marriage of his daughter, he detained her and did not let her go out of the house.

The woman through her husband filed a writ petition of Habeas Corpus. The judge while delving into the matter of Habeas Corpus also analysed the aspect of the 30-day notice provision. While accepting the writ petition, the judge also pronounced an order on this aspect.

The judgment was well articulated and quoted a series of judgments to underscore that the right to marry freely is covered by Article 21 and hence is an aspect of privacy. The judgment also quoted the suggestions of the Law Commission and highlighted that even after detailed suggestions of the Commission, there has been no intent of the legislature to make changes in the Act. Therefore, the single judge pronounced that the provision for the 30-day notice is not mandatory in nature.

It can be only implemented if couples ask for it. Having said that, this order in no way takes away the power of the Marriage Officer to investigate or enquire about the credentials of the couples. Another case where the provision was not upheld was that of Nida Rehman v Union of India (2020), where Sections 6 and 7 of the Act were challenged while heavily relying on their violation of the judgement laid down in the case of K.S. Puttaswamy v Union of India (2017), in which a nine-judge bench of the Supreme Court held that the right to privacy is protected as a Fundamental Right under Articles 14, 19, and 21 of the Constitution of India.

The judgement found itself in favour of the contentions put up by the petitioner, acknowledging the societal consequences that the couple must face as a result of the publication of the notice by the Marriage Officer.

On the other hand, there have been a number of cases where the 30- day provision, after challenge, has been upheld. One of these, the very recent case of S. Sarath Kumar v. The District Collector and anr. (2022), upheld the provision, although vaguely.

The primary question that the Madras High Court was dealing with was with regards to the fact that the public notice was issued after the solemnization of a marriage. It held that the conditions stipulated under Section 4 of the SMA for solemnization of marriages and the procedure thereof contained under Sections 5-13 has to be mandatorily complied with.

Another instance where the provision has been judged to hold up can be traced back to the case of Deepak Krishna and anr. vs District Registrar And Ors. (2007), where a division bench of the Kerala High Court noted “…In our view the time clause of thirty days prescribed under Section 16 is a matter of substance, non-observation of which will result in the object of the provision being frustrated.

Nature of the acts to be performed and the phraseology of the statute indicate an intention on the part of legislature to exact a literal compliance with the time. Contrary view would operate unfairly in prejudicing the rights of persons who propose to file objections on the basis of the public notice within the statutorily stipulated time.

We are therefore, of the considered view that the time frame of 30 days prescribed under Section 16 is a mandatory clause, which is not liable to be waived.” Noting differences in judgements delivered over the topic in different High Courts, the Supreme Court is now presented with an opportunity to conclusively decide the issue of infringement of the right to privacy by the provision.

The petition argues that the notice provision is violative of Article 21 for a multitude of reasons, the most prominent of which include the undermining of the right to privacy by placing private individuals’ information in a public domain, thereby enabling widespread scrutiny on various socio-legal grounds. Further, the clause on objection to marriage given under Section 7 is also argued to be violative of Articles 14 and 15 on the grounds of differential treatment given to the provision by the Hindu Marriage Act, 1955, and Islamic law, which both do not lay emphasis on a public notice, while the requirement only persists under Section 13 of the Indian Christian Marriage Act, 1872.

(The writers are, respectively, Assistant Professor and Assistant Dean (Academic Affairs), and a law student at Jindal G)