Necessity of Public Notice under the Special Marriage Act 1954: An Overview
I.
Introduction
In the contemporary legal system of India,
marriage is defined or is covered under two separate notions. One aspect of
that is marriages which are covered under personal laws and are separate for
every religion in India. For example Hindus are governed under the Hindu
Marriage Act 1955, Muslims are governed under the Muslim Personal Law (Shariat)
Application Act, 1937 etc.
The other aspect is related to marriages that
are covered under Civil marriages, and hence are broadly covered under the
ambit of Special Marriage Act 1954[1]
and Foreign Marriage Act 1969[2].
These two acts have separate objectives, the former is for marriages inside the
country and the latter one is for marriages outside the country.
The article primarily focuses on the Special
Marriage Act and the issues that surrounds it. This act focuses on providing a
legislation for marriages that are not concerned with the religion of either of
the parties. So, if an individual is not interested in marrying the person
under his or her religious law, they can choose to marry under this act.
This act also has a provision for converting
an existing religious marriage into a civil marriage. This can be done by registration
of marriage under this act, although it is important that the provisions of the
act are satisfied for marriage. The powers for the same is provided under
section 15 of the act.
The present controversy regarding the act has
begun after a petition was filed in the Supreme Court in the year 2020, where a
law student from Kerala has challenged some provisions of the act, which states
that before solemnization of the marriage there shall be a public notice that
shall be published to raise objections from the society.
This has been challenged as a violation of
article 21 of the constitution. Post this development, a recent single judge
Allahabad High Court Judgment has set the ball rolling where the same provision
was interpreted as a mere directory section and not something that is mandatory
in nature and hence can’t be forced upon couples.
The Supreme Court now has a new challenge to
test section 6 and 7 of the act on the light of the Right to Privacy angle and
analyse whether it leads to a reasonable restriction that the state has imposed
or not.
II.
Historical background of Special Marriage Act in India
The Special marriage act has been subject to
various changes since its introduction in India. It has its roots in the
pre-independence era, when it was introduced for the first time in the year
1872. The act was known as the Special Marriage Act 1872[3]
and it was introduced after it was recommended by the first ever law commission
of pre-independent India.
This focus was to promote inter-religious
marriages, although it was only applicable to people who did not profess any of
the existing faiths in India then; Hinduism, Islam, Buddhism, Jainism, Sikhism
and Parisis.
It primarily suggested that in order for an
individual from these religions to get married under Special marriage act, he
or she will have to renounce their religion first and then will have to get
married under this act.
There was no specific concept of nullity of
marriage or dissolution of the same, although the Indian Divorce Act 1869 was
applicable on these marriages. Later in the year 1922, the provision of
renouncing the religion in order to get married under this act was amended, but
only for Hindus, Sikhs, Buddhists and Jains
The present marriage act, or the new marriage
act was introduced in the year 1954 i.e. after independence by the Nehru
government. The previous act was repealed and was superseded by this one. The
law was made more inclusive this time and not only inter-religious marriages,
but also inter-caste marriages were included in its fold.
It works as an alternative to the personal
laws. The idea of this act was to promote secular aspects of marriage where
either of the parties does not have to change their religion as the act has got
nothing to do with the religion. So it provides every individual with two
options, either to marry under their respective personal law or under Special
Marriage act.
The issue of nullity of marriages, which was
earlier not introduced in the previous act is finally addressed in this act and
hence the Indian divorce Act 1869 is no more applicable to this act. It was
also highlighted in the Law commission report that, the word “Special” in the
act requires reconsideration[4].
When this law was introduced for the first
time, the word “special” was added because back then the individual had to
renounce his or her religion and hence the term special was given to them, but
after the 1954 act there is no requirement for the word special as no one has
to renounce his or her religion as per the new act.
III.
Relevant sections of the act and the contemporary issue
involved
There are a few sections of the act that play
a very important role in the contemporary issue that we are facing at present.
Now it is important to understand, that since marriages under the act does not
includes ceremonies and the involvement of the community, there are certain
basic requirements that one needs to fulfil in order to get married under this
act.
The intention of the legislator behind these
requirements was that since there are no specific requirements that are defined
by any religion or faith, there shall be some basic requirements that shall be
included in the act. Section 3 of the act prescribes the appointment of a
marriage officer with certain powers under this act. Section 4 lays down
certain basic requirements such as neither party shall have a living spouse or
there shall be no instances where either of the party is incapable of giving
consent. It also consists of various other basic requirements like the age of
parties, the concept of prohibited relationship etc.
The other section that plays an important
role here is section 5, where if the marriage is to be solemnized under this
act, the parties are required to submit a notice declaring their intention to
get married as per the Schedule 2 form format of the marriage officer of the
district, where at least one of the parties shall be of that district.
The other two sections that are in question
are section 6 and 7. Section 6 states that after the marriage officer receives
the notice, he or she has to affix the true copy of every such notice under
section 5 in the marriage register book, and shall also affix a copy on any
conspicuous place of his office for a period of 30 days. This section also
gives power to the officer to investigate regarding the credibility of the
requirements fulfilled under the notice as per section 4. Section 7 is a
provision that has been included to have additional safeguards, where during
the period of thirty days if there is an objection to the notice affixed and
published, he or she shall inform the same to the marriage officer, and the
marriage officer shall have the power to investigate upon the matter in order
to understand whether the contention is valid or not. The contention shall be
in reference to violation of section 4 of the act and nothing else, for example
bigamy, prohibited relationships etc.
In case there are no objections in the period
of 30 days, the marriage will be solemnized. In case there are certain
objections that are been raised based on violation of section 4, the same shall
be decided by the officer as per powers under section 8. Further, the
registration has also to go through a similar process, under section 15 and 16.
As per section 15 there are certain requirements which are to be fulfilled.
These are very similar to the requirements provided under section 4 of the act.
In addition to this, the parties have to submit an application under the said
section to a marriage officer for registration.
As per section 16, the marriage officer on
receiving an application shall give a public notice with allowing a period of
30 days to raise objection on the marriage in reference to the conditions
mentioned under section 15. The marriage officer based on the same shall take a
decision and then may or may not issue a certificate.
If the officer is not satisfied, he or she
may not solemnized the marriage and the individual can challenge the same in a
district court. The order that the court pronounces shall be final. Section 46
of the act mandates all these requirements are supposed to be done by a
marriage officer before he or she solemnizes the marriage.
The present issue revolves around the
scrutiny by the marriage officer and very specifically the 30 days provision
that exists under the act. This at present appear to be an unreasonable interference
by the state. In addition to this, due to the notice that is affixed by the
marriage officer, it has been observed that at various instances there has been
interference by family, community or religious groups and the same becomes a
troubling issue for the couple.
IV.
Recent Judicial developments
A petition was filed in September 2020, the
month of September in the Supreme Court challenging the Section 6(2), 6(3), 7,
8, 9 and 10 of the Special Marriage Act. The petition was filed in the case by
Nandini Praveen, a law student from Kerala[5].
The petition was accepted by the Supreme Court however the Chief Justice while
accepting it made certain observations.
“…..Your plea is that this is a violation of the
privacy of the couples. But imagine if children run away to get married, how
the parents would know about the whereabouts of their children? If wife runs
away, how would the husband come to know?
For example, if one or both persons intending to
get married have run away from their respective spouses, should it be kept
secret by the marriage officer, who has an obligation under law to inquire into
the legitimacy of the alliance by inviting objections from the public by
putting up the information on the notice board? The moment that provision is deleted,
it could lead to abuse of existing marriages. You must also suggest a solution.”[6]
There was a similar petition filed in the
Delhi High Court challenging the Section 6, 7 of the act in the case of Nida Rehman v.Union of India[7]
where the petitioner believed that in light of the judgment of K.S. Puttaswamy vs Union of India[8],
where the Supreme Court held that Right to Privacy was considered as a
fundamental right under article 21 of the constitution. In addition to this the
court highlighted that the process of public notice is a violation of article
21 and is not a reasonable restriction on their fundamental right.
The apprehensions of the petitioner were
regarding the societal consequences that the couple gets to follow because of
the notice affixed by marriage officer. Sometimes there are parents that
interfere or sometimes religious leaders who threaten the couple. There have
been cases of violence against various couples, and time and again the Supreme
Court has come heavily on the administration for not ensuring the safety of
couples from this groups.
On this apprehension there are various
couples who see conversion as an easier means than getting married under
Special Marriage act, and hence this defeats the whole purpose of having a
Special Marriage Act. A similar circumstance was observed in the case of Safiya Sultana Thru. Husband Abhishek Kumar
Pandey & Anr vs. State of U.P. Thru. Secy. Home, Lko. &Ors[9]
where a Habeas corpus writ petition was filed.
In the present case, the couple belonged to two
different religion and were supposed to get married under the Special Marriage
Act, however due to the 30 days’ notice provision the couple were apprehensive
that this could attract interference from their parents and religious groups in
the society.
To avoid so much delay in solemnization of
marriage, the woman got converted and got married. As soon as the father of the
woman came to know about the conversion and the marriage of her daughter, he
detained her daughter and did not let her go out of the house. The woman
through her husband filed a writ petition of Habeas Corpus.
The judge while delving into the matter of
Habeas Corpus also analysed the aspect of 30 day notice provision. While
accepting the writ petition, the judge also pronounced an order on this aspect.
The judgment was well articulated and has quoted a series of judgments that has
ensured that right to choose someone from a marriage is covered article 21 and
hence is an aspect of privacy.
The judgment also quoted the suggestions of
Law commission report and highlighted that even after detailed suggestions of
the commission, there has been no intent of the legislature to make changes in
the act and the single judge pronounced the order that the provision for 30 day
of public notice is not mandatory in nature. It can be only implemented if the
couples ask for it, having said that this order in no way takes away the power
of the marriage officer to investigate or enquire the credentials of the couples.
In the Delhi High Court petition, the centre
government has also submitted a counter affidavit and has highlighted various
aspects of the provision. The centre has stated that the right to privacy under
article 21 is not an absolute right and is subject to certain reasonable
restrictions.
The affidavit also quoted the judgment of Easland Combines, Coimbatore v. Collector of
Central Excise[10],
“…..It is well settled law that merely
because a law causes hardship, it cannot be interpreted in a manner so as to
defeat its object. It is also to be remembered that the Courts are not
concerned with the legislative policy or with the result, B injurious or
otherwise, by giving effect to the language used nor it is the function of the
Court where the meaning is clear not to give effect to it merely because it
would lead to some hardship. It is the duty imposed on the Courts in
interpreting a particular provision of law to ascertain the meaning and
intendment of the Legislature and in doing so, they should presume that the
provision was designed to effectuate a particular object or to meet a
particular requirement.”[11]
The same rationale shall be applied in the
present case as well where just because the law is causing hardships it does
not mean that the law has failed to achieve its object. In the present case as
well, there shall be provisions countering the interference of the family,
community or religious leaders, rather than eradicating the provision itself.
Further with reference to the public notice,
it is important to note that in the judgment of Deepak Krishna and anr. vs District Registrar And Ors.[12] the Kerala high court in a division
bench judgment while analysing the procedure of registration under the act
especially while analysing the 30 days provision has already stated that,
“……In
our view the time clause of thirty days prescribed under Section 16 is a matter
of substance, non-observation of which will result in the object of the
provision being frustrated. Nature of the acts to be performed and the
phraseology of the statute indicate an intention on the part of legislature to
exact a literal compliance with the time, Contrary view, would operate unfairly
in prejudicing the rights of persons who pro pose to file objections on the
basis of the public notice within the statutorily stipulated time. We are
therefore, of the considered view that the time frame of 30 days prescribed
under Section 16 is a mandatory clause, which is not liable to be waived.”[13]
One could observe that there is an evident
difference of opinion in two high court judgments, the Allahabad High Court in
a single judge bench judgment stated that such a provision can’t be held
mandatory however Kerala High Court in a division bench judgment has advocated
and stated that it is a mandatory provision and can’t be waived. The judgement
being a division bench holds more persuasive value than a single judge bench
judgement, however the Supreme Court now has the opportunity to make a decision
with reference to the PIL that has been filed regarding the constitutionality
of the sections of SMA and also to analyse if this 30 days provision is an
unreasonable restriction on right to privacy.
V.
Analysis of suggestions of Law Commission report
The detailed law commission report[14]
on the present issue has various solution that could be implemented. It seems
that none of them have been taken into consideration and hence the issue
remains unresolved. Apart from that, a very important judgment that was given
by the Punjab- Haryana court in the year 2018 with reference to publication of
notice shall be taken into consideration.
First in terms of the societal problems that
couples were facing, the commission suggested that process of registration of
marriage can be expedited by removing the time gap between marriage notice and
registration, however the commission did not delved deeper in this aspect and
provided other recommendations for this problem.
The commission suggested a legal framework
that could address the issue of interference of caste assemblies, councils,
religious groups or any kind of group of assembly that threatens the couples,
or interferes with their right to marry. The commission was more insistent on
introducing a penal action against the groups rather than working in detail in
terms of public notice removal.
The commission believed that the members of
society who have been garnered to condemn the marriage, or threaten the couple
in anyway, or to interfere with their fundamental right, shall be considered a
part of an unlawful assembly and there shall be a minimum punishment
prescribed.
The commission even went to an extent where
they mentioned that even acts such as social boycott, discrimination, or
anything that endangers the liberty of the couple because of their decision of
getting married under SMA, shall be addressed by certain penal action and
prescribed punishment.
There shall be a provision on preventive
action and for the same powers shall be granted to SDM or DM in order to
protect the couple from any such unlawful assembly. The information of the same
can be given to DM or SDM for any of the parties involved or their family
members. In the end it is also important that the offence shall be made
cognizable, non-bailable and non-compoundable in order to have a strict action
against people involved. Also these provisions will create a sense of security
among the couples who aim to marry under this act and at the same time it will
also create a sense of fear among these groups that interferes with the rights of
couples.
It is also important to take a note of the
judgment A and Anr vs State of Haryana
and Ors [15]of the
Punjab High Court that was ordered in the year 2018. In this case the marriage
officer after taking the marriage notice, forwarded a copy of the notice to the
residence of the parties, which eventually reached the parents of the parties.
This was challenged in the High Court as an infringement to article 21.
In addition to this, the Haryana Government
had also provided a CMCl (Courts marriage check list) which had around 16
requirements for bride and groom to get married under Special Marriage Act. One
of them was publication of the notice in the national newspaper, and there were
various other controversial requirements.
It was held that the CMCL was an infringement
to right to privacy of the parties, and it was ordered that the state
government should bring the CMCL in line with the original provisions of the
act which required minimum executive interference. Provisions like publication
of notice in paper or acts like sending a copy to residence were strike off.
Hence it is very important that the state
machineries shall also not introduce provisions that can become a way of
infringement of the fundamental right of the couple and at the same time there
shall be laws addressing the issue of interference of society at large in a
marriage under this act.
VI.
Concluding Remarks
It is very important to understand that when
we talk about a marriage that does not comes out of a personal law, it shall
have certain basic requirements as additional safeguards for the parties. The
same rationale is applied when we discuss 30 day public notice provision of the
Special Marriage Act.
In order to address the societal consequences
of the same there shall be a dedicated legislation implementing penal action
against such fringe elements and groups rather than removing the concept of
additional safeguard. This is what the Law commission report was also trying to
suggest, they even believed that the time period shall be removed, but there
major recommendations were on bringing an action based law against the
perpetrators.
Even in my opinion, that would be a
reasonable solution rather than removing the public notice provision, because even
after solemnization one could observe interference of parents or social groups,
so even removing the public notice provision won’t address the main issue. Even
the Allahabad High Court judgment on the 30 days provision of Special Marriage
Act, came after a married couple filed a writ petition for Habeas Corpus.
Apart from that, a few more suggestions can
also be applied which the author has referred from various articles and
especially the article published by Amit Jasiwal[16].
The author in this article has laid down some important suggestions that can be
applied in order to resolve the issue. There shall be a provision of
provisional marriage certificate that can be provided to the couple for a
temporary period of 45-60 days, in this mean time, the marriage officer can
publish the notice and call for objections.
The objection, if any comes to the officer,
it can be investigated accordingly in the meantime. There shall also be an
increment in imposing fine for false obligations or imposters. The provision of
certificate will also give a sense of security to the couples, because after
the receiving of the certificate, publication of the same from the officer
won’t be an issue for them.
Having said that, in no way does it means
that once a provisional certificate is provided, it can’t be undone. Section 24
of the act very specifically states that in a situation if the credentials or
the notice provided is proven to be false, the marriage can be considered as
null and void then and there. After this as soon as 30 days are completed and
the marriage officer is satisfied and has not objections based on section 4 of
the act, he or she can solemnize the marriage and dilute the provisional
certificate.
In the author’s opinion, this can be a better
solution then removing the gap of registration and solemnization. The author is
in concurrence with the view that 30 days is required in order to check for any
objections, especially cases of bigamy or Sapinda relationships because there
is no community involvement at large to ensure the same, however in order to
protect the liberty of the couples, two things are to be done; there shall be a
legislation as the Law commission suggested and there shall be a provision of
provisional certificate. All in all, the secondary data that the author has
referred proves that Section 6, 7 of the Special Marriage Act is not an
unreasonable restriction on Article 21 and hence there is no need to either
repeal or dilute the section.
This article was published by me on 'Ipleaders' on 25th July, 2021-
https://blog.ipleaders.in/necessity-public-notice-special-marriage-act-1954-overview/
[1] Special Marriage Act, 1954 https://legislative.gov.in/sites/default/files/A1954-43_1.pdf
(last visited Jun 27, 2021).
[2] The Foreign Marriage Act, 1969|Legislative Department | Ministry of Law
and Justice | GoI, https://legislative.gov.in/actsofparliamentfromtheyear/foreign-marriage-act-1969
(last visited Jun 27, 2021).
[3] Special Marriage Act: The
interpretation and constitutional perspective, , TheLeaflet (2018), https://www.theleaflet.in/special-marriage-act-the-interpretation-and-constitutional-perspective/
(last visited Apr 29, 2021).
[4] Law Commission Report No. 212-
Laws of Civil Marriages in India a Proposal to Resolve Certain Conflicts |
Hindu | Marriage, , Scribd ,
https://www.scribd.com/document/306361697/Law-Commission-Report-No-212-Laws-of-Civil-Marriages-in-India-a-Proposal-to-Resolve-Certain-Conflicts
(last visited Apr 29, 2021).
[5] Supreme Court issues notice in
plea challenging provisions of Special Marriage Act requiring publication of
personal details of couples, ,
https://www.barandbench.com/news/litigation/supreme-court-notice-challenge-special-marriage-act-publication-personal-details
(last visited Apr 29, 2021).
[6] Special Marriage Act and
anti-conversion Ordinance: Cause and effect relationship, ,
https://www.barandbench.com/columns/special-marriage-act-and-anti-conversion-ordinance-cause-and-effect-relationship
(last visited Apr 28, 2021).
[7] Nida Rehman v.Union of India, W.P.(C) 6947/2020.
[8] K.S. Puttaswamy vs Union of India, 2017 10 S.C.C.1.
[9] Safiya Sultana Thru. Husband Abhishek Kumar Pandey & Anr vs. State
of U.P. Thru. Secy. Home, Lko. &Ors, HABEAS CORPUS No. - 16907 of 2020.
[10] Easland Combines, Coimbatore v. Collector of Central Excise, AIR
2003 SC 843.
[11] Id.
[12] Deepak Krishna and anr. vs District
Registrar And Ors., 2007 (3) KLT 570.
[13] Id.
[14] Law Commission Report No. 242-
Report on Prevention of Interference with the freedom of Matrimonial Alliances
(in the name of Honour and Tradition): A suggested Legal Framework, ,
https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-242-report-prevention-interference-freedom-matrimonial-alliances-name-honour-tradition-suggested-legal-framework/
(last visited Apr 29, 2021).
[15]A and Anr vs State of Haryana and Ors, CWP No.15296 of 2018 (O&M).
[16] Special
Marriage Act and anti-conversion Ordinance: Cause and effect relationship, supra
note 6.
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