CASE: Safiya Sultana v. State Of U.P.
CORAM: Hon’ble Justice Vivek Chaudhary
In a significant judgement, the Allahabad High Court held that there is no mandatory provision to publish a notice of intended marriage pursuant to Section 6 and to invite or entertain objections pursuant to Section 7 of the Special Marriage Act.
Justice Vivek Chaudhary noted that making such publication mandatory would invade the fundamental rights of freedom and privacy of the persons concerned, particularly within their sphere of freedom to choose marriage without intervention by state and non-state actors.
While issuing a notice pursuant to Section 5 of the Act of 1954, it is optional for the parties to the intended marriage to make a written request to the marriage officer to publish or not publish a notice pursuant to Section 6 and to comply with the procedure for objections provided for in the Act of 1954, the court noted.
The court added that, in the absence of such a request to publish a notice in writing when giving a notice pursuant to Section 5 of the Act, the marriage officer should not publish such a notice or object to the intended marriage and continue with the marriage ceremony.
The Judge further observed, “However, it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, 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”.
The Court consider the petition for habeas corpus alleging that an adult girl is being held against her wishes to marry her lover who belongs to various religions. The couple submitted to the Court that under the Special Marriage Act, they may have solemnised their marriage, but the said Act includes a notice of 30 days to be issued and complaints to be invited from the public at large.
They also contended that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social interference in their free choice with regard to their marriage.
Taking into account their concerns, the court continued to consider whether the social conditions and the law, as has evolved since the implementation of the Act of 1872 and subsequently the Act of 1954 so far, would in some way affect the interpretation of Sections 5, 6 and 7 of the Act of 1954 and whether the said sections are no longer obligatory in nature with amendment?.
Justice Chaudhary in the case, referred to the reports of the Law Commission of India and the development of Law till the enactment of Special Marriage Act. The judge also noted that it would be cruel and immoral to compel the present generation living with its present needs and aspirations to obey the customs and practises adopted by a generation living almost 150 years ago for its social needs and circumstances, which violate fundamental rights recognised by the courts of the day:
“No apparent reasonable purpose achieved by making the procedure under Special Marriage Act to be more protective or obstructive. The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. 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 Court observed while disposing of the writ petition,
“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 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 they do not make such a request for publication of notice in writing while giving notice under Section 5 of the Act, 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 goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, 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.”
