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Publication of marriage notice under special marriage act is violate of right to privacy Allahabad High Court

The Allahabad high court has upheld the fundamental right to liberty and privacy with its ruling that a 30-day notice

Allahabad high court

The Allahabad high court has upheld the fundamental right to liberty and privacy with its ruling that a 30-day notice is not mandatory for those seeking to get married under special marriage act (SMA) 1954. Requirement of publication of notice of intended marriage under section 6 and inviting / entertaining objections under section 7 of the special marriage act is not mandatory.


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BACKGROUND

The court was hearing a habeas corpus petition, which stated that an adult woman was being forcibly detained for wanting to marry a man of another faith. She had converted to Hinduism but was prevented from proceeding with her marriage by her father. The couple submitted before the court that they could have solemnized their marriage under the special marriage act, but the said act requires a 30days notice to be published and objections to be invited from the at large. They contended that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social interference in their privacy or we can say free choice with regard to their marriage. The petition sought her release. The ruling clears a significant obstacle for interfaith marriages and curtails state interference in personal relationship.

Justice Vivek Chaudhary observed that making such notices mandatory invades the fundamental rights of liberty and privacy, and the freedom to choose whom to marry without interference from state and non – state actors, of the persons concerned.  In the judgement, justice Chaudhary mention the reports of law commission of India and the development of law till the validation of special marriage act 1954.

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Referring the judgement including the Puttuswamy case (privacy judgement). It was observed that it would be barbarous and unethical to force present generation living with its current needs and expectations to follow the customs and the traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.

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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 SRA ACT 1954, the court observed. The court added that, 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.

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In this case the judge observed that “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.’’

Basically the law I meant to resolve conflict, not create it- which is what the 30 day notice was doing in the case of many people wishing to marry under SMA. Until now couples faced the Prospect of social persecution, even violence , when seeking to marry outside their faith . The Supreme court has repeatedly stressed the importance of the individual’s autonomy in personal relationships as per articles 19 and 21 of the constitution. The high court ruling that the notice period for a marriage under SMA is voluntary and not mandatory is a firm reiteration of liberty as a fundamental right in personal matters.

Safiya Sultana vs. - State Of U.P.

HABEAS CORPUS No. - 16907 of 2020

Coram: Justice Vivek Chaudhary

Counsel: Advocates Adarsh Kumar Maurya, Archna Singh


Read Judgment



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