All HC | “Cruel, unethical to force present generation to follow 150 yrs old customs, traditions which violate fundamental rights”: HC rules Publication of Notice of Intended Marriage under Special Marriage Act shall not be mandatory

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 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.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and 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.”

In view of the Court, 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 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“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.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, 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 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by 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. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“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.”[Safiya Sultana v. State of U.P., Habeas Corpus No. 16907 of 2020, decided on 12-01-2021]

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