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Allahabad HC: Compulsory Publication of Notice Under Sec 6 of Special Marriage Act is violative of Right to Privacy

  • Date: 2021-01-14 08:55:54
  • Views: 49

The Allahabad High Court has given a very important Judgment on the issue of marriage under the Special marriage Act.

A Husband-Wife approached the Allahabad High Court filing Habeas Corpus Petition, alleging that Smt. Safia Sultana (Respondent No.2) after converting to Hindu Religion has married their son, but her father has illegally detained her in the house.  

The Court directed the appearance of the Respondent No. 2, his father and husband and after they appeared before the court it turned out that the above allegation was true. The Father of Respondent No. 2 submitted that he has now accepted their marriage and was therefore ready to let her go with the husband.

Generally the case would have been concluded here, but the young interreligious couple submitted to the Court that, “they could have solemnized their marriage under the Special Marriage Act, 1954 but the said Act requires a 30 days notice to be published and objections to be invited from the public at large and 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. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage.”

The Court felt duty bound to consider their submissions as the issues raised by the Petitioners and their counsels involved the right of life and liberty of a large number of persons.

Hon’ble Justice Vivek Chaudhary in the Judgment interpreted Section 6 and 7 of the Special Marriage Act, which requires publication of prior notice and filing of objection, on the application for marriage under Special Marriage Act. Thereafter the court referred to the reports of the Law Commission and Judgments on the right of freedom of choice in marriage as envisaged under Article 21 of the Constitution of India. The Court observed that: “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. However, under Sections 6 and 7 of Act of 1954 the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty bound to publish the notice for a period of 30 days and invite objections with regard to the same.”

The Court directed that, 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. 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.



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