This article has been written by Yash Sinha.
In the contemporary legal system of India, marriage is defined or is covered under two separate notions. One aspect of that is marriages which are covered under personal laws and are separate for every religion in India. For example, Hindus are governed under the Hindu Marriage Act, 1955, Muslims are governed under the Muslim Personal Law (Shariat) Application Act, 1937.
The other aspect is related to marriages that are covered under civil marriages and hence are broadly covered under the ambit of the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969. These two Acts have separate objectives, the former is for marriages inside the country and the latter one is for marriages outside the country.
The article primarily focuses on the Special Marriage Act and the issues that surround it. This Act focuses on providing legislation for marriages that are not concerned with the religion of either of the parties. So, if an individual is not interested in marrying the person under his or her religious law, they can choose to marry under this Act.
This Act also has a provision for converting an existing religious marriage into a civil marriage. This can be done by registration of marriage under this Act, although it is important that the provisions of the Act are satisfied for marriage. The powers for the same are provided under Section 15 of the Act.
The present controversy regarding the act has begun after a petition was filed in the Supreme Court, in the year 2020, where a law student from Kerala has challenged some provisions of the act, which states that before solemnization of the marriage there shall be a public notice that shall be published to raise objections from the society.
This has been challenged as a violation of Article 21 of the Constitution. Post this development, a recent single judge Allahabad High Court Judgment has set the ball rolling where the same provision was interpreted as a mere directory section and not something that is mandatory in nature and hence can’t be forced upon couples.
The Supreme Court now has a new challenge to test Section 6 and 7 of the Act in light of the Right to Privacy angle and analyse whether it leads to a reasonable restriction that the state has imposed or not.
Historical background of Special Marriage Act in India
The Special Marriage Act has been subject to various changes since its introduction in India. It has its roots in the pre-independence era when it was introduced for the first time in the year 1872. The Act was known as the Special Marriage Act, 1872 and it was introduced after it was recommended by the first ever law commission of pre-independent India.
This focus was to promote inter-religious marriages, although it was only applicable to people who did not profess any of the existing faiths in India then; Hinduism, Islam, Buddhism, Jainism, Sikhism and Parisis.
It primarily suggested that in order for an individual from these religions to get married under the Special Marriage Act, he or she will have to renounce their religion first and then will have to get married under this act.
There was no specific concept of nullity of marriage or dissolution of the same, although the Indian Divorce Act, 1869 was applicable on these marriages. Later, in the year 1922, the provision of renouncing the religion in order to get married under this Act was amended, but only for Hindus, Sikhs, Buddhists and Jains
The present Marriage Act was introduced in the year 1954 i.e. after independence by the Nehru government. The previous Act was repealed and was superseded by this one. The law was made more inclusive this time and not only inter-religious marriages, but also inter-caste marriages were included in its fold.
It works as an alternative to the personal laws. The idea of this act was to promote secular aspects of marriage where either of the parties does not have to change their religion as the act has got nothing to do with the religion. So it provides every individual with two options, either to marry under their respective personal law or under the Special Marriage Act.
The issue of nullity of marriages, which was earlier not introduced in the previous act is finally addressed in this act and hence the Indian Divorce Act, 1869 is no more applicable to this Act. It was also highlighted in the Law Commission Report that, the word “Special” in the act requires reconsideration.
When this law was introduced for the first time, the word “special” was added because back then the individual had to renounce his or her religion and hence, the term special was given to them, but after the 1954 Act, there is no requirement for the word special as no one has to renounce his or her religion as per the new Act.
Relevant sections of the Act and the contemporary issue involved
There are a few sections of the Act that play a very important role in the contemporary issue that we are facing at present. Now, it is important to understand that since marriages under the Act do not include ceremonies and the involvement of the community, there are certain basic requirements that one needs to fulfil in order to get married under this Act.
The intention of the legislator behind these requirements was that since there are no specific requirements that are defined by any religion or faith, there shall be some basic requirements that shall be included in the Act. Section 3 of the Act prescribes the appointment of a marriage officer with certain powers under this Act. Section 4 lays down certain basic requirements such as neither party shall have a living spouse or there shall be no instances where either of the parties is incapable of giving consent. It also consists of various other basic requirements like the age of parties, the concept of prohibited relationship, etc.
The other section that plays an important role here is Section 5, where if the marriage is to be solemnized under this Act, the parties are required to submit a notice declaring their intention to get married as per the Schedule 2 form format of the marriage officer of the district, where at least one of the parties shall be of that district.
The other two sections that are in question are Section 6 and 7. Section 6 states that after the marriage officer receives the notice, he or she has to affix the true copy of every such notice under Section 5 in the marriage register book, and shall also affix a copy on any conspicuous place of his office for a period of 30 days. This Section also gives power to the officer to investigate the credibility of the requirements fulfilled under the notice as per Section 4. Section 7 is a provision that has been included to have additional safeguards, where during the period of thirty days if there is an objection to the notice affixed and published, he or she shall inform the same to the marriage officer, and the marriage officer shall have the power to investigate upon the matter in order to understand whether the contention is valid or not. The contention shall be in reference to violation of Section 4 of the Act and nothing else, for example, bigamy, prohibited relationships etc.
In case there are no objections in the period of 30 days, the marriage will be solemnized. In case there are certain objections that have been raised based on violation of section 4, the same shall be decided by the officer as per powers under Section 8. Further, the registration has also to go through a similar process, under Section 15 and 16. As per Section 15, there are certain requirements that are to be fulfilled. These are very similar to the requirements provided under Section 4 of the Act. In addition to this, the parties have to submit an application under the said section to a marriage officer for registration.
As per Section 16, the marriage officer on receiving an application shall give a public notice allowing a period of 30 days to raise objection to the marriage in reference to the conditions mentioned under Section 15. The marriage officer based on the same shall take a decision and then may or may not issue a certificate.
If the officer is not satisfied, he or she may not solemnize the marriage and the individual can challenge the same in a district court. The order that the court pronounces shall be final. Section 46 of the Act mandates all these requirements are supposed to be done by a marriage officer before he or she solemnizes the marriage.
The present issue revolves around the scrutiny by the marriage officer and very specifically the 30 days provision that exists under the Act. This at present appears to be an unreasonable interference by the state. In addition to this, due to the notice that is affixed by the marriage officer, it has been observed that at various instances there has been interference by family, community or religious groups and the same becomes a troubling issue for the couple.
Recent Judicial developments
A petition was filed in September 2020 in the Supreme Court, challenging Section 6(2), 6(3), 7, 8, 9 and 10 of the Special Marriage Act. The petition was filed in the case by Nandini Praveen, a law student from Kerala. The petition was accepted by the Supreme Court however the Chief Justice while accepting it made certain observations:
“…..Your plea is that this is a violation of the privacy of the couples. But imagine if children run away to get married, how the parents would know about the whereabouts of their children? If wife runs away, how would the husband come to know?
For example, if one or both persons intending to get married have run away from their respective spouses, should it be kept secret by the marriage officer, who has an obligation under law to inquire into the legitimacy of the alliance by inviting objections from the public by putting up the information on the notice board? The moment that provision is deleted, it could lead to abuse of existing marriages. You must also suggest a solution.”
There was a similar petition filed in the Delhi High Court challenging the Section 6, 7 of the Act in the case of Nida Rehman v.Union of India, where the petitioner believed that in light of the judgment of K.S. Puttaswamy vs Union of India, where the Supreme Court held that Right to Privacy was considered as a fundamental right under Article 21 of the Constitution. In addition to this the court highlighted that the process of public notice is a violation of Article 21 and is not a reasonable restriction on their fundamental right.
The apprehensions of the petitioner were regarding the societal consequences that the couple gets to follow because of the notice affixed by the marriage officer. Sometimes there are parents that interfere or sometimes religious leaders who threaten the couple. There have been cases of violence against various couples, and time and again the Supreme Court has come down heavily on the administration for not ensuring the safety of couples from these groups.
On this apprehension there are various couples who see conversion as an easier means than getting married under the Special Marriage Act, and hence, this defeats the whole purpose of having a Special Marriage Act. A similar circumstance was observed in the case of Safiya Sultana Thru. Husband Abhishek Kumar Pandey & Anr vs. State of U.P. Thru. Secy. Home, Lko. &Ors where a Habeas corpus writ petition was filed.
In the present case, the couple belonged to two different religions and were supposed to get married under the Special Marriage Act, however, due to the 30 days’ 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 got converted and got married. As soon as the father of the woman came to know about the conversion and the marriage of her daughter, he detained her daughter 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 30 day notice provision. While accepting the writ petition, the judge also pronounced an order on this aspect. The judgment was well articulated and has quoted a series of judgments that has ensured that the right to choose someone from a marriage is covered by Article 21 and hence is an aspect of privacy.
The judgment also quoted the suggestions of the Law Commission Report and highlighted that even after detailed suggestions of the commission, there has been no intent of the legislature to make changes in the act and the single judge pronounced the order that the provision for 30 day of public notice is not mandatory in nature. It can be only implemented if the 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.
In the Delhi High Court petition, the centre government has also submitted a counter affidavit and has highlighted various aspects of the provision. The centre has stated that the right to privacy under Article 21 is not an absolute right and is subject to certain reasonable restrictions.
The affidavit also quoted the judgment of Easland Combines, Coimbatore v. Collector of Central Excise, “…..It is well settled law that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. It is also to be remembered that the Courts are not concerned with the legislative policy or with the result, B injurious or otherwise, by giving effect to the language used nor it is the function of the Court where the meaning is clear not to give effect to it merely because it would lead to some hardship. It is the duty imposed on the Courts in interpreting a particular provision of law to ascertain the meaning and intendment of the Legislature and in doing so, they should presume that the provision was designed to effectuate a particular object or to meet a particular requirement.”
The same rationale shall be applied in the present case as well were just because the law is causing hardships it does not mean that the law has failed to achieve its object. In the present case as well, there shall be provisions countering the interference of the family, community or religious leaders, rather than eradicating the provision itself.
Further with reference to the public notice, it is important to note that in the judgment of Deepak Krishna and anr. vs District Registrar And Ors. the Kerala high court in a division bench judgment while analysing the procedure of registration under the act especially while analysing the 30 days provision has already stated that,
“……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 pro pose 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.”
One could observe that there is an evident difference of opinion in two high court judgments, the Allahabad High Court in a single judge bench judgment stated that such a provision can’t be held mandatory however Kerala High Court in a division bench judgment has advocated and stated that it is a mandatory provision and can’t be waived. The judgement being a division bench holds more persuasive value than a single judge bench judgement, however the Supreme Court now has the opportunity to make a decision with reference to the PIL that has been filed regarding the constitutionality of the sections of SMA and also to analyse if this 30 days provision is an unreasonable restriction on right to privacy.
Analysis of suggestions of Law Commission Report
The detailed Law Commission Report on the present issue has various solutions that could be implemented. It seems that none of them has been taken into consideration and hence the issue remains unresolved. Apart from that, a very important judgment that was given by the Punjab- Haryana court, in the year 2018, with reference to the publication of the notice shall be taken into consideration.
First, in terms of the societal problems that couples were facing, the Commission suggested that the process of registration of marriage can be expedited by removing the time gap between marriage notice and registration, however, the commission did not delve deeper in this aspect and provided other recommendations for this problem.
The Commission suggested a legal framework that could address the issue of interference of caste assemblies, councils, religious groups or any kind of group of assembly that threatens the couples or interferes with their right to marry. The commission was more insistent on introducing a penal action against the groups rather than working in detail in terms of public notice removal.
The Commission believed that the members of society who have been garnered to condemn the marriage, or threaten the couple in any way, or to interfere with their fundamental right, shall be considered a part of an unlawful assembly and there shall be a minimum punishment prescribed.
The Commission even went to an extent where they mentioned that even acts such as social boycott, discrimination, or anything that endangers the liberty of the couple because of their decision of getting married under SMA, shall be addressed by certain penal action and prescribed punishment.
There shall be a provision on preventive action and the same powers shall be granted to SDM or DM in order to protect the couple from any such unlawful assembly. The information of the same can be given to DM or SDM for any of the parties involved or their family members. In the end, it is also important that the offence shall be made cognizable, non-bailable and non-compoundable in order to have strict action against people involved. Also, these provisions will create a sense of security among the couples who aim to marry under this Act and at the same time it will also create a sense of fear among these groups that interferes with the rights of couples.
It is also important to take note of the judgment A and Anr vs. the State of Haryana and Ors of the Punjab High Court that was ordered in the year 2018. In this case, the marriage officer after taking the marriage notice, forwarded a copy of the notice to the residence of the parties, which eventually reached the parents of the parties. This was challenged in the High Court as an infringement to Article 21.
In addition to this, the Haryana Government had also provided a CMCl (Courts marriage check list) which had around 16 requirements for bride and groom to get married under Special Marriage Act. One of them was publication of the notice in the national newspaper, and there were various other controversial requirements.
It was held that the CMCL was an infringement to the right to privacy of the parties, and it was ordered that the state government should bring the CMCL in line with the original provisions of the act which required minimum executive interference. Provisions like publication of notice in paper or acts like sending a copy to residence were struck off.
Hence it is very important that the state machinery shall also not introduce provisions that can become a way of infringement of the fundamental right of the couple and at the same time there shall be laws addressing the issue of interference of society at large in a marriage under this Act.
It is very important to understand that when we talk about a marriage that does not come out of personal law, it shall have certain basic requirements as additional safeguards for the parties. The same rationale is applied when we discuss the 30-day public notice provision of the Special Marriage Act.
In order to address the societal consequences of the same, there shall be dedicated legislation implementing penal action against such fringe elements and groups rather than removing the concept of additional safeguard. This is what the Law Commission Report was also trying to suggest, they even believed that the time period shall be removed, but their major recommendations were on bringing an action based law against the perpetrators.
Even in my opinion, that would be a reasonable solution rather than removing the public notice provision, because even after solemnization one could observe interference of parents or social groups, so even removing the public notice provision won’t address the main issue. Even the Allahabad High Court judgment on the 30 days provision of the Special Marriage Act, came after a married couple filed a writ petition for Habeas Corpus.
Apart from that, a few more suggestions can also be applied which the author has referred from various Articles and especially the Article published by Amit Jasiwal. The author in this Article has laid down some important suggestions that can be applied in order to resolve the issue. There shall be a provision of provisional marriage certificate that can be provided to the couple for a temporary period of 45-60 days, in this mean time, the marriage officer can publish the notice and call for objections.
The objection, if any comes to the officer, can be investigated accordingly in the meantime. There shall also be an increment in imposing fine for false obligations or imposters. The provision of certificates will also give a sense of security to the couples, because after the receiving of the certificate, publication of the same from the officer won’t be an issue for them.
Having said that, in no way does it mean that once a provisional certificate is provided, it can’t be undone. Section 24 of the Act very specifically states that in a situation if the credentials or the notice provided is proven to be false, the marriage can be considered as null and void then and there. After this, as soon as 30 days are completed and the marriage officer is satisfied and has no objections based on section 4 of the act, he or she can solemnize the marriage and dilute the provisional certificate.
In the author’s opinion, this can be a better solution than removing the gap of registration and solemnization. The author is in concurrence with the view that 30 days is required in order to check for any objections, especially cases of bigamy or Sapinda relationships because there is no community involvement at large to ensure the same, however, in order to protect the liberty of the couples, two things are to be done; there shall be legislation as the Law commission suggested and there shall be a provision of the provisional certificate. All in all, the secondary data that the author has referred to proves that Section 6, 7 of the Special Marriage Act is not an unreasonable restriction on Article 21 and hence there is no need to either repeal or dilute the Section.
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