In an important judgment, the Allahabad high court has held that publishing a notice and inviting objections before a couple decides to marry under the Special Marriage Act are no longer mandatory. The court observed that these rules went against fundamental rights and infringed upon one’s ability to choose to marry without intervention.
Though the couple wanted to marry under the Special Marriage Act, the mandatory provision for 30-day notice, under section 5 of the act, compelled them to take the easier route of religious conversion.
On this basis, the Court allowed couples not to publish the mandatory 30-day notice of their intention to marry. Also, the court allowed the individuals, who desire to have more information about their counterparts, to opt for publication of notice under Section 6 of the Act. Such publication of notice under free will not be a violation of fundamental rights due to free choice.
The court also noted that when marriages under personal law do not require a notice or invitation for objections, such a requirement for inter-faith couples’ is obsolete in secular law and cannot be forced on a couple.
As a result, many preferred to convert and marry under personal laws, rather than under the Special Marriage Act, 1954 to prevent themselves from harassment
The judgment assumes significance in the backdrop of Uttar Pradesh bringing the ‘love jihad’ ordinance that criminalises forced religious conversions.
A little more than a month since it was first implemented, the law has multiple times been used to harass consenting adult couples looking to enter into interfaith marriages, with disastrous consequences.
In such cases, rightwing groups who are opposed to interfaith marriages were alerted by such notices that were made mandatory by the Special Marriage Act.
The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
The Special Marriage Act was originally enacted in 1872 to provide a framework for inter-caste and inter-religious marriages.
The Act allows the solemnization of marriages (performing the public ceremony/rites of marriage) without any religious customs or rituals. The law solemnizes marriages by the way of registration.
As per Section 5 of the Special Marriage Act, marriages irrespective of the religion of the couple require parties to give a 30-day public notice of their intention to marry before solemnizing their marriage
The provision of mandatory 30 days’ notice period ended up giving vigilante groups, families hostile to inter-faith and inter-caste unions with disproportionate powers to police young couples.
The Act is applicable to all Indian citizens and Indian nationals who live in abroad.
Allahabad High Court observed the Special Marriage Act as ‘one of the earliest endeavours towards Uniform Civil Code.
