Jan 13, 2021 17:15 UTC
Jan 13, 2021 at 17:15 UTC
NEWS: Mandatory publication of notice inviting objections before marriage under Special Marriage Act violates privacy: Allahabad HC
The Allahabad High Court has held that requirement of publication of notice of intended marriage under section 6 and inviting objection under section 7 of the Special Marriage Act is not mandatory.
Safiya Sultan v. State of UP
Justice Vivek Chaudhary observed that making such publication mandatory would invade in the fundamental right of liberty and privacy.
“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 order said
The Court ruled that the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.
While giving notice under Section 5 (Notice of intended marriage) of the 1954 Act, 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 the couple does not make such a request for publication of notice in writing, 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 shall be open for the Marriage Officer, while solemnizing any marriage, 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.
If the couple, by themselves of their free choice, desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will.
In the Judgment Justice Chaudhary referred to the reports of the law commission of India and the development of law till the enactment of the Special Marriage Act also referring to the various judgments including the Puttuswamy case on Right to Privacy.
The Court added that even if there is violation of any legal condition in a marriage entered under the Special Marriage Act, the same legal consequences would follow as it would in such a marriage solemnized under personal laws i.e. “the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.”
The Court opined: “There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage.”
Read Judgement HERE