Special Marriage Act, 1954: Too special to be constitutional

For a democracy to thrive and go from strength to strength, certain rights are indispensable and such rights needs to be coupled with freedom to exercise them or else they would be mere platitudes. Fortunately, as a generation we do not have to worry about it, thanks to the framers of our Constitution. Yet, time and again conflicts keeps on arising in the exercise of such rights and it is in these moments, the Constitution acts as a guiding light in harmonising competing interests. Suffice to say that Constitution steps in as a saviour when it comes to attack on the free exercise of rights, the very feature that distinguishes a democracy from any other form of governance. However, democracy and the Constitution do not function on their own. They need an outer machinery and that is where the role of a Government, standing on the pillars of legislature, executive and judiciary comes into play. These pillars being constituted by human agencies are inevitably subject to the occasional human follies. Nonetheless, the Constitution provides mechanism for correcting such mistakes. An example of such an instance that is still very much in vogue is the Special Marriage Act, 1954.[1]

Enacted in the backdrop of a newly independent India, that was still red from the wounds of partition this Act was a symbolic step towards darning the secular fabric of the country by providing for recognition of inter-faith marriages. The Act was drafted generally on the lines of the 19th century British legislation i.e. the Special Marriage Act, 1872[2] (hereinafter to be referred as “the Act” for brevity) which was replaced after coming into force of the present Act. This is the reason why some of the provisions do not satisfy their validity on the anvils of Constitution in the present day or rather to say they are clearly unconstitutional. It is improbable for anyone to say the political motive behind this Act with a degree of certainty but a look at the Statement of Objects and Reasons can give a clarification about the legislative intent.

Statement of Objects and Reasons: 1. This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the marriage officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country.

Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions.
The Bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached thereto explain some of the changes made in the Bill in greater detail.

A plain reading of the Statement of Objects and Reasons suggests that the only reason for the enactment of the Act was to replace the earlier colonial era law and providing for certain new provisions. It does not make any reference to any specific object sought to be achieved or the reasons that necessitated the enactment of the new Act. Moreover, the last line clearly says that the Bill is drafted generally on the lines of earlier Act.

Now we shall examine certain provisions of the Act, which in fact are the most relevant ones, that would make it clear why this Act needs to be amended and why these provisions should be declared unconstitutional by the courts.

Sections 5, 6 and 7 of the Act[3]

Notice of intended marriage.― When a marriage is intended to be solemnised under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
Marriage Notice Book and publication.― (1) The Marriage Officer shall keep all notices given under Section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under Section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

7. Objection to marriage.― (1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of Section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in Section 4.

(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of Section 6, the marriage may be solemnised, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained if necessary, to the person making the objection and shall be signed by him or on his behalf.

Section 5 of the Act provides for intimation by the parties of their intention to marry by a notice. Section 6(1) provides for the recording of notice given under Section 5 and entering of a true copy of it in the Marriage Notice Book. The second part of this clause provides that such book shall be open for inspection to any person desirous of inspecting the same. Here lies the problem. This provision has been incorporated in toto from the 1872 Act. It should be mentioned here that the intended notice contains the personal details as to name, age, occupation, address, marital status, length of residence, etc. Only persons to whom such details should matter are the persons intending to marry and the official solemnising such marriage for official purposes and no one else. The moment these details are left open to inspection to “any” person intending to inspect, it results in blatant violation of the Right to Privacy of an individual, recognition of which right yielded the longest judgment[4] in the history of Indian judiciary. Also, there is no plausible rationale behind allowing “any” person to inspect such details rather, allowing inspection in such manner exposes the individuals intending to marry to life threatening risks from their families, radicals, extremists, etc. Moreover, the current political atmosphere, communal tensions and religious polarisation is a testimony to the persistently shimmering intolerance to differences and diversity amongst communities, religions, political parties, etc., which are in fact the very reasons for someone to resort to this Act. In such circumstances, a provision allowing inspection by “any” person is like legitimately pushing the intending parties to marriage in harm’s way.

Section 6(2) provides that, the Marriage Officer shall cause the notice to be published by affixing it to a conspicuous place in his office. This clause unlike clause (1) was not in the Act of 1872 and is a new addition. By adding this clause the legislature has went a step further in compromising the privacy of individuals. It is as if the legislature thought of saving “any” person from the hardship of coming and inspecting the Marriage Book and hence made it even easier by providing for a provision to put it on public display.

It seems the legislature by adding clause (2) has taken transparency to a whole new level altogether or is it that by any chance the legislature by providing for publishing of notice had the noble intention of making the world witness to the barriers of differences being broken? Well, neither seems probable. The only reason that seems apparent is, that the legislature back then failed to come out of the shadow of a colonial era law, which in fact is the case with a lot of laws but that cannot be a reason enough to not hold these provisions unconstitutional for violating fundamental right to life under Article 21 of the Constitution[5].

It has been recognised by the Supreme Court[6] in clear and unambiguous terms, that privacy is an indispensable aspect of right to life and liberty under Article 21 of the Constitution. Compromising it at any cost is always a devil’s deal. An individual has the absolute right over how much of him or her, he or she wants the world to know and this becomes more relevant in the modern world which is largely data driven. Data is the most potent weapon in the present world, that can make and break things than anything else and construing the provisions of Sections 5 and 6 of the Act in this context, it looks like these provisions serve it on a platter. As a result the freedom and autonomy of the individuals is subjected to societal notoriety as well as State intervention.

Section 7 of the Act provides for raising of objection by “any” person to the marriage notice of intending couples on the grounds specified in Section 4 of the Act[7] but what is concerning is, though objection has been restricted to the limited grounds provided in the Act, insertion of a provision of this nature violates the freedom of choice and expression under Article 19[8], right to privacy under Article 21[9] and right to equality under Article 14[10].

To live a life of fulfilment, it is of utmost necessity that, an individual, especially who has attained majority, has full discretion and autonomy to choose what he thinks to be the best for him or her going forward. When this celebrated freedom of choice is cribbed and cabined in any manner, be it by State or judiciary, it is ought to be defended and protected zealously. Right to marry a partner of one’s own choice is embedded in the freedom of expression and right to life and it cannot be questioned by anyone. Law can provide the procedure for the solemnisation and annulment of a marriage and even such procedure has to be just, fair and reasonable but law cannot prescribe or question as to whom to partner and whom not to, nor can it allow any person to do so.

In Shafin Jahan v. Asokan K.M.[11], while elaborating the importance of liberty, autonomy and privacy in the life of an individual, the Court observed thus:

… The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. 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… Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.

By incorporating a provision that allows any person to have access to the personal details of couples and raise objection to such marriage, the Act effectively exposes the couple to fear of hate crimes like honour killing and religious persecution as well as to social ostracisation. Once fear creeps in, freedom is gagged. It is always unfortunate when a child goes against the wishes of the parents, family and the society in which he or she lives, to choose a partner of his own choice but those can never be the reasons to restrict one’s freedom and liberty, subject only to the conditions provided in the Constitution.

In Common Cause v. Union of India[12], a Constitutional Bench of the Supreme Court explaining the role of freedom of choice in an individual’s life held that:

346. … Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives.

It is relevant here to remind for once and all, that freedom of choice and expression is not only a constitutionally guaranteed right but also a human right and respect for its exercise in accordance with law is obligatory on the part of State. It is non-negotiable on the pretext of societal dogmas and arbitrary legislations. Confining the limits of such freedom is denying the individual identity of a person. Though the objective of this Act is often seen as an effort towards attaining a Uniform Civil Code in the future but the ultimate repercussions of its provisions tell a different story altogether. Hardships caused to the couples, who defy the norms and morals of their societies to choose a partner from another faith, is not a hidden secret and in such circumstances it is the duty of the State to protect such couples and it is almost impossible with the presence of an archaic law that has its basis in the colonial era.

Violation of Article 14

The provisions of Sections 6 and 7 of the Act which provides for availing “any” person an opportunity to inspect the Marriage Notice Book and publishing the notice given by the intending couples which contain the personal details of the intending couples and provision for raising objection to such notice respectively, are unique to this Act. Provisions similar to these are not found in the legislative enactments meant for regulating marriages in case of intra-faith marriages of any faith. There is no justifiable reason for such different provisions. From a layman’s perspective, the only difference between an inter-faith and intra-faith marriage is that in the latter partners may be from different faiths and communities while in the former partners are from the same faith. This cannot be the reason to differentiate and if this is the basis for different laws then it is discrimination.

For a classification to be held as not violating Article 14 of the Constitution, such classification has to satisfy the twin tests of “intelligible differentia” and “reasonable nexus”. According to this twin test, every classification should be just, fair and reasonable. In the absence of a just, fair and reasonable basis such classification shall be deemed to be perverse and arbitrary. Further such classification must have a rational nexus with the objective sought to be achieved. So, even if the objective sought to be achieved is noble but the classification made has no reasonable connection with the said object such classification ought to be done away with. Neither of both these conditions is dispensable.

Now, we shall apply this test to Sections 5, 6 and 7 of the Act and find whether they violate Article 14 of the Constitution. As has been discussed in the beginning true intention of the legislature cannot be gauged with certainty and the Statement of Objects and Reasons to the Act is in a general nature with specific mention that, it is generally drawn in line with the 1872 Act. So, we shall explore the possible reasons and objectives starting with a layman’s perspective.

The Act has been worded in a general sense which means not only couples from different faiths and communities but also couples from same faith and community can get married under this Act. However, they have to follow the procedures mentioned in Sections 5, 6 and 7. Under these provisions first they have to give notice, then such notice containing the personal details of the couples intending to marry shall be published and be made available for inspection and then objections from any person shall be raised. Now, it is unfathomable as to how couples marrying under this Act are different from those marrying in their own faiths. Now, the objective sought to be achieved is to provide for a special form of marriage which can be taken advantage of by any person in India and Indians in foreign countries irrespective of the faith either party to the marriage professes. So, now we do not have any basis for treating parties intending to marry under this Act differently and there is no nexus with the noble objective sought to be achieved. On the contrary, from this classification it seems the State still looks marriages of inter-faith, inter-community and run away couples with apprehension and, if that is true the directive principle enumerated in Article 44 will be a distant dream. India being a secular State and secularism being a basic feature of the Constitution, the Government in power is under obligation to remain secular in the governance of the country. It cannot afford to bow down to the societal morals and notorieties, especially when they are not based on any sound basis. Thus every enactment made by the legislature has to be secular and neutral in its application or else it would be a fraud on the Constitution and on the people of this country.

Summary

The Act is self-contradictory in nature. On the one hand it is said that it intends to promote mutual trust and brotherhood among different faiths and communities and a step in the direction of Uniform Civil Code while on the other hand by providing for publishing and availing the details of couples intending to marry under this Act and raising objection to it by “any” person, puts the couples to the dastardly acts of hate mongers, radicals, extremists, fundamentalists, etc. Moreover, why is not that, the intending couples should have the discretion to marry in whichever way they like and only thing that should be required of them is the proof of such marriage for the purpose of registration, as it is in the Hindu Marriage Act, 1955[13]. In fact, the Statement of Objects and Reasons says so but makes it subject to certain formalities provided in the Act and interestingly, these formalities run counter to it because even if the marriage is solemnised in any manner, if the formalities which violates Articles 14, 19, and 21 of the Constitution, are to be satisfied. It is like running in a never ending circle and coming back to the same place over and again. To put it otherwise, this Act left the door wide open to the high ideals of promotion of inter-faith trust and brotherhood and pushed the indispensable ideals of liberty, privacy and equality through the window but the room was left with none and no wonder, for years couples intending to marry under this Act have been knocking at an address that provides a relief which is devoid of the spirit of the Constitution.

The aim of this article is not to indulge in a game of mud-slinging on the State or on the judiciary but a purposive interpretation on the anvils of the Constitution and current state of affairs in the country. In my view, the Special Marriage Act, 1954 can truly prove to be game-changer in strengthening the secular and communal fabric of the country by incorporating provisions and procedures which are more secular and neutral in character and in no way infringes any of the fundamental rights of an individual, guaranteed in the Constitution. If this would be done, then not only couples from different communities and faiths but also couples from same faith and community will be encouraged to solemnise and register their marriage under this Act and if I understand the Uniform Civil Code in its true sense, then there cannot be more positive signs than this in the endeavour of the State to achieve the objective of Article 44[14] of the Constitution of India.

Conclusion

Marriage is an important decision and aspect of the life of an individual. It is a way for an individual to express and exercise his/her freedom of choice. It is a blessing when it happens with the concurrence of the other partner, family and society but those who are not lucky enough to win the approval of their close ones, nonetheless have the absolute right that their choices are protected and respected. No one should be allowed to interfere in the exercise of one’s choice of partner. It is unfortunate that legislation affords opportunity for such interference.

Articles 14, 19 and 21, together have been observed as the “golden triangle” of the Indian Constitution.[15] They are of prime importance and breathe vitality in the concept of the rule of law. Their violation should in every case entail the elimination of violating entity. Certain provisions of the Special Marriage Act, 1954 clearly violate this golden triangle and it is time that both the judiciary and the legislature should deem such provisions as unconstitutional and amend such provisions respectively and do away with the prevailing archaic provisions.

Aristotle once said, “Government by laws is superior to government by men” and it is time we bring laws into order.

† Advocate, Orissa High Court, Cuttack.

[1] Special Marriage Act, 1954.

[2] Special Marriage Act, 1872.

[3] Special Marriage Act, 1954.

[4]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[5] Article 21 of the Constitution.

[6]Supra Note 4.

[7] Section 4, Special Marriage Act, 1954.

[8] Constitution of India, Article 19.

[9] Constitution of India, Article 21.

[10]Constitution of India, Article 14.