Public Notice not compulsory for Marriage Registration under SMA, 1954
Summary- In this post we will discuss about the latest judgment of Allahabad High Court in which it said that it is not mandatory for the couples to issue 30 day Public notice before registration of marriage under SMA, 1954.
Public notice not a must stated the Allahabad high court
The Special Marriage Act is a civil law enacted in 1954 that allows the solemnization of marriages between any two individuals without religious customs, rituals, or ceremonial requirements. Moreover it creates provisions for the marriage of interfaith couples without religious conversions — a requirement for marriages under personal laws such as the Hindu or the Muslim marriage acts.
There exist some critical fundamental differences between civil marriages under the Special Marriage Act when compared to marriages under personal laws. These provisions are most problematic for couples who wish to marry against parental pressure.
The first requirement and by far the most critical one under the Special Marriage Act is the 30-day notice period. Under this, applications are usually accepted at the Sub-Divisional Magistrate’s office, or with a marriage officer located in the district where one of the individuals resides. After checking the application, a notice is sent to the couple’s permanent address (an address most young people share with their parents and families), along with being displayed at the SDM’s notice board. The clause of privacy of two independent individuals comes in question.
Since there are many couples who elope prefer to marry outside of their local jurisdiction to avoid familial pressure, and although provisions allowing this do exist, notices are still sent to the marriage officer of the local district. Such displays have also made couples (especially interfaith couples) a target of familial and societal harassment from vigilante groups. Such a clause is absent if one plans to marry under personal law, thus the existence of it under the Special Marriage Act is discriminatory and violates the right to equality (Article 14). In short the basic purpose of creating these provisions is defeated because it is not providing any privacy and the additional complexities add further to the plight of potential marriage.
The right to marry should be made out of free will with no pressure whether social or parental pressure. The constitution of India guarantees individual liberty and decent standards of living. But recently Chief Justice of India S.A. Bobde while responding to a petition challenging 30 days notice period of SMA, 1954 said “Your plea is that this is a violation of the privacy of the couples. But imagine if children run away to get married, how would the parents know about the whereabouts of their children? If [a] wife runs away, how would the husband come to know?”
It was baffling that the chief justice referred potential couples as children and instead of emphasizing on privacy of potential couples; CJI was more concerned with ordeals faced by their parents. As per his remarks the couple who want to get married are not adults and their whereabouts are more a cause of concern than their wish to marry.
Earlier this year, the Allahabad High Court answered a petition filed by interfaith couples who stated that the provision regarding notice displayed at marriage office and even sent to permanent address of applicant which is normally shared with parents 30 days prior to the scheduled date encouraging vigilantes to scuttle such unions.
Justice Vivek Chaudhury observed that Public display of notices to invite objections to an interfaith marriage is not mandatory under the 1954 Special Marriage Act (SMA).
He further added “This court mandates that while giving notice under Section 5 of the (Special Marriage) 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,” in his 47-page order.
“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 solemnisation of the marriage,” he added
The order is not directly linked to the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which outlaws conversion by allurement, fraud, coercion or marriage. But again has sparked a debate over 60 day advance notice period before planned conversion and police inquiries and its resemblance with SMA although the couple’s lawyer also told the high court that the situation was “more critical” for interfaith couples after the new ordinance was notified.
There is reasonable apprehension clouding the notice period since the new legislation has posed a few question that may jeopardize individual safety and the independent decision making of couples other than this, it might lead to crime like honour killing which is still prevalent in some parts of India.
This post was written by Abhishek Pathak.
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