NEW DELHI–Seemingly pouring cold water on BJP’s plans, Allahabad High Court has ruled that the 30 day notice period for registering a wedding under Special Marriage Act of 1954 should be optional, not mandatory.
Section 5 of the Special Marriage Act, the legislation that allows solemnization of marriages irrespective of the religion of the couple, requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage.
“If the couple does not want to go for publication of the 30-day notice, the marriage officer has to solemnize their wedding forthwith,” Justice Vivek Chaudhary said while disposing of a habeas corpus petition filed by a Hindu man married to a woman who was born Muslim but converted before the wedding.
Petitioner Abhishek Kumar Pandey alleged that his wife Sufiya Sultana was being held captive by her father because she had converted and got married according to Hindu rituals.
“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 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,” Justice Chaudhary said.
The court said in case such individuals applying to solemnize their marriage under the Act of 1954 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,” Justice Chaudhary said.
The ruling comes as a relief to inter-faith couples who are being increasingly targeted by vigilante groups. The court noted the impact that similar provisions in anti-conversion laws could have.
Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which declares conversion of religion by marriage to be unlawful mandates a 60-day notice to the District Magistrate and also requires the Magistrate to conduct a police inquiry to ascertain the real intention behind the conversion.
Justice Chaudhary’s noted that in view of the changed social circumstances and progress in laws noted and proposed by the Law Commission and judgments of the Supreme Court, “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… it is the duty of this court to revisit the interpretation of the procedure under challenge as provided in the Act of 1954”.
The court cited progressive rulings on the right to privacy by the Supreme Court, including the 2017 Aadhaar case which recognized the right to privacy as a fundamental right, the 2018 ruling which held that the right to choose a partner is a fundamental right in the case involving Hadiya, a medical student who converted to Islam to marry a Muslim, and the 2018 ruling in which the court decriminalized homosexuality.
In 2012, the Himachal Pradesh High Court had struck down similar provisions that required notice of intention in case of religious conversion in the Himachal Pradesh Freedom of Religion Act, 2006, citing that it violates the fundamental right to privacy. However, the state, repealing the 2006 law, enacted a law in 2019 with the same provisions that the court struck down.
Special Marriage Act, which provides a framework for inter-caste and inter-religious marriages, was originally enacted in 1872. Despite changes and versions, the 1954 law retained the Victorian-era protectionist provisions.
Justice Chaudhary took up the issue of notice under the Special Marriage Act being violative of fundamental rights when he recognized that this provision is often an impediment to inter-faith couples wanting to marry under secular law.
The court also noted that despite the secular law for marriage, a majority of marriages in the country happen as per religious customs. It said that when marriages under personal law do not require a notice or invitation for objections, such a requirement is obsolete in secular law and cannot be forced on a couple.