Making such publication mandatory would invade in the fundamental rights to liberty and privacy, the Lucknow bench of Allahabad High Court said.

A couple getting married Image for representation/Pixabay
news Court Wednesday, January 13, 2021 - 21:53

In a judgement that is likely to bring relief to inter-faith couples, the Allahabad High Court Wednesday declared as optional the mandatory publication of notice about intended marriages under the Special Marriage Act, saying it violated the right to privacy.

Making such publication mandatory would invade in the fundamental rights of liberty and privacy, the Lucknow bench of Allahabad High Court said. It would also affect the couple's freedom to choose marriage "without interference from state and non-state actors", Justice Vivek Chaudhary said.

He said 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 such a notice under section 6 of the Act. In case a couple does not request so in a written form while giving a notice under section 5 of the Act, the Marriage Officer will not publish any such notice or entertain objections, but go ahead with solemnising the marriage.

Under section 5 (notice of intended marriage) of the Special Marriage Act, 1954, the two individuals who intend to get married and solemnise the marriage under this law must give a notice in writing to the Marriage Officer or Registrar. As per section 6 (marriage notice book and publication’) of the Act, this notice should be published in some conspicuous place or the notice board in the office of the Marriage Officer for a period of 30 days in the offices where the two individuals have been residing.

This comes after a habeas corpus petition was filed alleging that an adult woman is being held against her will to marry a partner from a different religion. The couple told the court that they could have gone ahead with marriage under the Special Marriages Act, but it requires a 30-day notice to be put up publicly so that objections can be invited from the public at large. They argued that this breached their privacy and would result in unnecessary social pressure and interference in exercising their free choice to marry.

The court observed that publication of such a notice should uphold fundamental rights and not violate them. “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,” the court said, LiveLaw reported.

“Their orally saying that they are competent to marry is regarded sufficient for solemnizing marriage under the personal laws,” Justice Chaudhury added.

The judge also emphasised that the publication of such a notice should only be done upon request by the parties intending to marry.

Earlier though, the Chief Justice of India, Justice SA Bobde had expressed reservations about doing away with these provisions of the Act that mandated publishing the notices about inter-faith marriages. He said that the law would be useful if “a person runs away with another person’s daughter or wife.” The CJI added, in an oral observation, “Why shouldn’t the father or the husband get to know about this? The individuals for whose benefit this law was enacted will suffer when it (the provisions) is removed.”

TNM has reported earlier though that many right-wing groups are able to access personal information of individuals through these notices and screen marriages between Hindu women and Muslim women. They then upload these notices on social media, branding them as ‘love jihad’. In July last year, an inter-faith couple in Kerala was harassed after their details from such a notice were circulated on a WhatsApp group. It was also one of the 11 such notices posted on Facebook by a group called ‘Kavipada’ (saffron army), and other Facebook users, and their relationship was branded as ‘love jihad’.

Athira and Shameem, an inter-faith couple who were harassed whe their information was leaked from these public notices, carried out a campaign highlighting the misuse of these provisions under the Special Marriages Act. After these incidents were reported, the Kerala government instructed that application forms for inter-faith marriages under the Special Marriage Act should not be uploaded online on the Kerala Registration’s website and these should be displayed on notice boards at the sub-registrar’s office either.

(with PTI inputs)

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