‘The petitioners are without doubt in a relationship and want to marry. They may belong to different religions but love and affection knows no barriers.’
The Punjab and Haryana High Court has suggested to the State of Haryana to suitably modify and simplify the Court Marriage Check List (CMCL) to bring it in line with the Special Marriage Act by minimal executive interference. The court observed that some of those conditions largely violate the rights to privacy and are particularly offensive and excessive executive action beyond the purview of the Special Marriage Act.
Justice Rajiv Narain Raina made these observations while hearing a plea of a couple who belonged to different religions but want to get married. They had approached the high court seeking to do away with marriage registration procedure in a checklist of notices to parents and publication of proposed marriage in a national newspaper which impinges on their right to privacy. The girl submitted before the court that she is facing virulent opposition from her family.
About the couple, the court observed: “The petitioners are without doubt in a relationship and want to marry. They may belong to different religions but love and affection knows no barriers. They wish to tie the nuptial knot through court marriage aided by the provisions of the Special Marriage Act, 1954 (for short "the Act") under which law alone the marriage can be solemnized and none other since one party is a Hindu, the other Muslim. Petitioner No 1 says she does not wish to convert to the religion of petitioner 2 which is her personal choice. They both are adults expected to know what is best for them, their personal and common interests and their future life together as and when they are declared legally wedded husband and wife. They are both well-educated persons pursuing their careers as Cost Accountants in private companies.”
The bench especially took note of these conditions mentioned in CMCL, Gurugram, and observed that it can be disregarded as it largely violate the rights to privacy which is now declared fundamental right:
The counsel, who appeared in the case, contended that these conditions are highly offensive, insensitive, arbitrary, primitive and out of sync with rapidly changing social order in an inter-faith proposed marriage. Mostly they violate private rights and the scheme of which is beyond the scope of the Act which makes no such list of 'dos and dont's' as part of prescribed procedure. Besides, being foul by active moral policing as in condition 13 in a country where live-in relationships are judicially recognized by courts as precious rights among informed adults, whether or not they intend to marry so long as they do not violate any law,” the court was told.
The bench read down the conditions by observing that the word "permanent" would mean also temporary residence which would suffice if stay is for 30 days prior to the filing of the application. Taking note of Rajasthan and Delhi High Court rulings in this regard, the court said advance notice to parents of the petitioners shall be dispensed with as those are not required to strictly maintain privacy rights, their right to life and liberty.
The bench further said: “Accordingly, the petitioners may apply to the Marriage Officer under Section 5 in the Form prescribed in the Second Schedule to the Act. The same will be considered by the Marriage Officer in the light of this order and in the light of Sections 4, 5, 6 and 14 of the Act. And after putting up notice/banns on the Notice Board at a conspicuous place in his office for 30 days, he may proceed to register the marriage and issue certificate of marriage to the petitioners. In case, any objections, if filed, are grave in nature, he may deal with them in accordance with law by keeping uppermost in his mind the wish/desire/choice of the petitioners, which is the supreme consideration.”
The court then made a suggestion to the state. It said: “It may restrict the list to conditions which account for fundamental procedure avoiding unwarranted overload of obstructions and superfluity. The State is not concerned with the marriage itself but with the procedure it adopts which must reflect the mind-set of the changed times in a secular nation promoting inter-religion marriages instead of the officialdom raising eyebrows and laying snares and land mines beneath the sacrosanct feet of the Special Marriage Act, 1954 enacted in free India to cover cases not covered by any other legislation on marriages as per choice of parties for a court marriage.”