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Not Possible To Relax Mandatory 30 Days Notice Period Or To Permit 'Digital' Marriage Unless Special Marriage Act Is Amended: Kerala High Court

LIVELAW NEWS NETWORK
24 Feb 2021 5:45 AM GMT
Inter-Caste Marriage- Girl Isn’t A Cattle Or Non-Living Thing But A Living Independent Soul Having Rights; Can Exercise Her Discretion As Per Her Wishes
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Unless the provisions contained in the Special Marriage Act are amended, it would not be possible either to relax the mandatory period of notice or to permit marriage in digital form, the Kerala High Court observed.

Justice PV Asha observed thus while dismissing a woman's plea to permit solemnisation and registration of her marriage on digital platform.

She stated that she got married on 15.01.2021 in a private function, but their application seeking registration of their marriage on the ground that they belonged to different religions. They were informed that they have to undergo marriage under the Special Marriage Act. Accordingly, they got notice of intended marriage published under the Act. Thereafter, the woman approached the High Court stating that she has to report in Queen's University, Belfast, Northern Ireland, United Kingdom, for admission to full time Post Graduate course in Master of Science and Advanced Food Safety in School of Biological Sciences urgently and therefore she is not in a position to wait till the notice period expires. She requested the court either to relax the notice period or to permit solemnisation and registration of her marriage on digital platform.

The court referred to various provisions of Special Marriage Act and observed that it would not be possible to observe these procedures online, in the absence of the physical presence of both the parties near the Registering Officer and the witnesses.

"The aforesaid provisions would show that the period prescribed for each of the steps leading to the solemnization of marriage warrants strict interpretation and there cannot be any relaxation. The minimum waiting period for a notice should therefore be 30 days. The contention of the petitioner that she does require the marriage to be solemnised only on completion of 30 days but only requires the solemnization on digital mode cannot also be permitted as there is no provision in the Act which permits the same and there is no provision which permits the procedure in digital platform..... I am of the view that unless the provisions contained in the Special Marriage Act are amended, it would not be possible either to relax the mandatory period of notice or to permit marriage in digital form, especially when penal consequences are provided in the Act.", the judge said while dismissing the writ petition.

Mandatory Publication Of Notice Of Intended Marriage Under Special Marriage Act Violates Right To Privacy, Allahabad High Court had held

In an important judgment delivered last month, Allahabad High Court held that 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. Justice Vivek Chaudhary observed that making such publication mandatory 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.

Petition Challenging SMA Provisions pending before Supreme Court

A writ petition challenging provisions of the Special Marriages Act, 1954 in so far as they require the parties to the marriage to establish their private details, open for public scrutiny, before 30 days of intended marriage, is pending before the Supreme Court.

Also read: Unconstitutionality Of Publishing Of Marriage Notices Under Special Marriage Act

CASE: SHITHA V.K vs. DISTRICT REGISTRAR (GENERAL) [WP(C).No.3421 OF 2021(C)]

Click here to Download/Read Judgment

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