Breaking: Mandatory Publication Of Notice Of Intended Marriage Under Special Marriage Act Violates Right To Privacy: Allahabad High Court

In an important judgment, Allahabad High Court has 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. 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, 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. "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.", the judge observed.Breaking- The Mandate Of 30 Days Prior Notice Under Special Marriage Is Optional , It Can Be Published Only On Request Of Couples: Allahabad High Court#AllahabadHC pic.twitter.com/pSwxaN8XqY— Live Law (@LiveLawIndia) January 13, 2021 BackgroundThe court was considering habeas corpus petition alleging that an adult girl is being detained against her wishes to marry her lover who belongs to different religion. The couple submitted before the Court that they could have solemnized their marriage under the Special Marriage Act, but the said Act requires a 30 days notice to be published and objections to be invited from the public at large. They contended 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.Taking note of their concerns, the court proceeded to consider the issue raised 'whether the social conditions and the law, as has progressed since passing of Act of 1872 and thereafter Act of 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the Act of 1954 and whether with change the said sections no more remain mandatory in nature'?In the judgment, Justice Chaudhary referred to the reports of the Law Commission of India and the development of Law till the enactment of Special Marriage Act. Referring also to various judgments including the Puttuswamy case (Privacy judgment), the judge observed 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. The bench made the following observations:No apparent reasonable purpose achieved by making the procedure under Special Marriage Act to be more protective or obstructiveThe 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 Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. 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. Further, note should also be taken of the fact that marriages in India can be performed either under the personal laws or under the Act of 1954. In fact, even today, majority of marriages are performed under the personal laws. These marriages under personal laws are performed by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage. The individuals intending to marry approach the priest who performs the marriage as per the customs and rituals of the said religion. Their orally saying that they are competent to marry is regarded sufficient for solemnizing marriage under the personal laws. In case any party violates any condition of the said personal law, for example, if one of the parties conceals his/her marital status and commits second marriage; marriage is barred under any law (one of the parties is a minor and...

Breaking: Mandatory Publication Of Notice Of Intended Marriage Under Special Marriage Act Violates Right To Privacy: Allahabad High Court

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