Allahabad High Court has held that requirement of publication of notice of intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act is not mandatory. It was observed that making such publication mandatory would infringe the fundamental rights of liberty and privacy.
The Court observed that giving marriage notice 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 marriage notice under Section 6.
In case they do not make such a request for publication of marriage notice in writing, while giving marriage notice under Section 5 of the Act, the Marriage Officer shall not publish any such marriage notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage.
The court further added, “However, it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case”.
The present case indicates the consideration of habeas corpus petition alleging that an adult girl is being detained against her wishes to marry her lover who belongs to different religion.
The couple submitted before the Cour as said Act requires a 30 days notice to be published and objections to be invited from the public at large they could not solemnize their marriage under the Special Marriage Act.
They further contended that any such marriage 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.
‘whether the social conditions and the law, as has progressed since passing of Act of 1872 and thereafter Act of 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the Act of 1954 and whether with change the said sections no more remain mandatory in nature’?
The court observed that publication of marriage notice shall be made only if parties agree to do so and it would not be violative of fundamental rights if the parties proceed with their free will.
However, 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. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise
The court in the present case observed that no apparent reasonable purpose achieved by making the procedure under Special Marriage Act to be more protective or obstructive for marriage notice.
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. 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. In case any party violates any condition of the said personal law, for example, if one of the parties conceals his/her marital status and commits second marriage; marriage is barred under any law (one of the parties is a minor and conceals age or marriage is within the degrees of the prohibited relationship etc.); the consent of any party is obtained by deceit or under pressure; or any other such circumstances arises, the issues are later decided by a court of law. But, the marriage takes place without any interference from any corner, even if it is later to be declared void. 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. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of Act of 1954. None of the conditions under Section 4 of Act of 1954 is such, violation of which would impact rights of any person in any manner different than the same would in case of a marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws. There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage.
The court thus disposed off the petition and observed,
Thus, this Court mandates 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. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case