In a counter affidavit filed in response to a petition challenging Sections 6 and 7 of the Special Marriage Act, 1954 as being unconstitutional, the Central goverment has submitted that the impugned sections ensure that the interests of various parties in a marriage under SMA is safeguarded.
The instant petition has been filed by Nida Rehman in the Delhi High Court. The petitioner sought directions for setting aside of the procedure of issuances of public notice under Special Marriage Act for 30 days inviting objections to the marriage, and for issuance of directions to register one’s marriage with immediate effect under the Special Marriage Act, 1954.
Under the Act, any person before the expiry of 30 days from the date of publication of notice by the marriage officer can object to the marriage on the ground that it would contravene one or more conditions mentioned in the law.
In this regard the relevant sections from the SMA are provided hereunder:
Section 5: Notice of intended marriage – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given.
Section 6(2): Marriage Notice Book and publication –
(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.
Section 7: Objection to marriage –
(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.
(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).
(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained if necessary, to the person making the objection and shall be signed by him or on his behalf.
Following were the submissions of the Central Government in response to the petition challenging the provisions mandating issuance of marriage notice under Special Marriage Act:
Central Government has informed the Delhi High Court that, “the intention behind the Act is to keep adequate safeguards to the interest of various parties involved,” and that a 30-day notice under Special Marriage Act as mandated under Section 7 is essential to verify the credibility of the persons seeking to solemnize a marriage.
The Centre further stated that when a person gives notice under Special Marriage Act for the solemnisation of his marriage, the marriage officer publishes the notice at a conspicuous place in his office, for any person to raise objections to the said marriage within a period of 30 days, and if any such objections arise, the officer is required to enquire into the matter before solemnization of the marriage.
The Centre also submitted that, “The procedure laid down in this Act for registration of marriage is fair and reasonable, and that the conditions relating to solemnisation of Special Marriage mentioned under Section 4 of the Act is in consonance with the intention behind the Act.”
Refuting Rehman’s contention that the Sections violate the right to privacy, the affidavit also states that, “Though right to privacy is now part of fundamental right but it is not an absolute right as held by the Constitutional bench of the Supreme Court in the case of Justice K.S. Puttaswamy and Ors. Vs Union of India and Ors.”
It is pertinent to note here that in a recent order, the Allahabad High Court has held that requirement of publication of notice under Special Marriage Act of the 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.