IS THE SPECIAL MARRIAGE ACT SO SPECIAL AFTER ALL? -THE UNHEARD QUESTION OF CHOICE AND PRIVACY

AUTHOR- SHREYAM SHARMA*

EDITOR- SHUVASMITA NANDA

INTRODUCTION

Invading privacy in the glory of age-old customs and social ratification, Section 7 of the Special Marriage Act[1], which calls for a mandatory 30-day public notice in a marriage, blatantly violates the important pillars of individual autonomy, privacy, and personal liberty. Enacted way back in 1954, the Special Marriage Act was a mark of progressive legislation with its secular and individual-centric approach to marriage, in stark contrast to its Islamic and Hindu counterparts. It gave legal shelter to inter-faith couples and those who eloped away to marry in fear of non-conformist societal violence. However, in the light of recent privacy jurisprudence, perhaps the special marriage act is not so special.

THE PROBLEM OF PRIVACY:

Section 5 of the Special Marriage Act mandates the couple to present themselves before a marriage officer by giving him the notice to get married[2]. Furthermore, Section 6 of the Special Marriage Act [3] provides for the publication of the notice at a conspicuous place for public view. The notice is supposed to invite objections against the marriage with respect to the conditions mentioned in Section 4 of the Special Marriage Act . It is only upon the disposal of these allegations that the Marriage officer can proceed with the registration. However, if the allegations are sustained within 30 days, solemnization of the marriage can be refused and only be appealed in the district court. The Act aimed to protect couples against the violent face of religious or castes intolerance, but the 30-day period of public notice defeats its purpose. It is a flagrant denial of the couple's Fundamental Right to Privacy and the freedom to marry, guaranteed under the Right to Life and Personal Liberty in Article 21 of the Indian Constitution[4].

LEADING THE INDIAN JURISPRUDENCE – SAFIYA SULTANA : :

Settling this controversial dispute, in the case of Safiya Sultana v. State of Uttar Pradesh[5], the Allahabad High court took the view that Section 6 and 7 under the Special Marriage Act is not mandatory to solemnize a marriage between any two consenting adults fulfilling the requirements of Section 4 of the Special Marriage Act. In this case, Safiya Sultana filed a Habeas Corpus petition through her husband Abhishek Kumar Pandey, claiming that they got married per Hindu rituals after conversion to Hinduism. Safiya's father was not permitting them to live together. Safiya expressed that the requirement of a 30-day public notice to invite objections is a blatant invasion into the couple's privacy and causes unnecessary social interference, compulsion and induces fear in the minds of consenting adults.

The Safiya Sultana judgment comes as a glimmer of hope as new anti-conversion laws continue to be misused in order to curtail inter-faith relationships. Firstly, given the fact that the Islamic Sharia Law and the Hindu marriage act do not lay down any such mandatory requirement[6] for any marrying couple to publicly display their personal information, any such provision for inter-faith couples seems unjust and unfair. The distinction between marriages solemnized under personal laws and secular laws violates the Right to Equality enshrined under Article 14[7] of the Indian Constitution. This distinction can be imagined to cast an undue influence on the couple to refrain from marriage out of fear of moral vigilantism. The provision unilaterally casts a chilling effect, thus preventing the couple from enjoying their fundamental rights.

Secondly, the judgment calls for a more modern and contemporary interpretation of legislation that inclines in favor of preserving fundamental rights. Reliance was placed on decisions in Satyawati Sharma v. Union of India[8] and Kashmir Singh v. Union of India[9], wherein the court called for a more liberal and non-obsolete interpretation of a statute suiting the changed circumstances and positions of law. From the case of Lata Singh v. State of U.P.[10], which affirmed the freedom of a major to marry whomever he likes, to Indian Woman Says Gang-Raped on Orders of Village, In re[11], which read the freedom to marry by one's choice as a fundamental right guaranteed under Article 21 of the Constitution, legal positions have traveled a long distance.

In the case of Satyawati Sharma vs. Union of India[12], the court rightly held that it is trite to say that legislation which may be pretty reasonable and rationale at the time of its enactment may with the lapse of time become arbitrary, unreasonable, and violative of the doctrine of equity. The court held, and rightly so, that any invasion of privacy and freedom of choice to marry by state or non-state actors would be "cruel and unethical to the current generation," plunging them into centuries-old unreasonable social expectations[13].

The argument that the judgment is backsliding by not complying with the requirements of the law, thus self-defeating the very purpose of solemnizing a civil marriage, does not stand the test of changing circumstances and privacy protection. It also fails to answer the question of whether the publication of information for the validity of essential requirements can be held so crucial for the solemnization of the marriage that the privacy, safety, and individual autonomy of the marrying couple be put at great risk.

The mandatory notice requirement has been misused on a number of occasions in the past for harassment. It serves to legitimize the deep-rooted fear of non-conformism and the hegemony of constitutionally immoral customs that continue to plague fundamental rights. Caste representatives and the patrons of political fiends such as "love jihad" continue to hunt down inter-faith couples who venture to break the shackles of conservatism. In an overwhelming number of situations, there is an alarming threat to the safety of the couple, as evident from the case of Arumugam Servai vs. the State of Tamil[14], wherein brutality was meted out by "khap panchayat" or family members against the persons solemnizing marriage with their own choice. Cases pertaining to "honor killing" abundantly fill the corners of daily newspapers as inter-faith marriages are seen as disruptive of social status and caste[15].

One of the prime purposes of the provision was to prevent the registration of a bigamous couple by way of public investigation and inquiry. However, the object sought by the provisions does not pass the standards of proportionality as laid down in the K. Puttaswamy Case[16], which ruled that privacy claims ought to be tested on the highest pedestals of scrutiny and can only be justified by "compelling state interests." There should be a rational nexus between the objects and the means adopted to achieve them. Herein, the means adopted to achieve the object blatantly violate the fundamental rights of the marrying couple, denying them the right to freedom of choice in marriage and putting them in the way of conservative extremist violence. Moreover, as laid down by the European Human Rights Jurisprudence[17], the proportionality test calls for the least intrusive mechanism. Logically, the investigation to verify the monogamous nature of the marriage can be privately undertaken by the marriage officer through valid documentation and inquiry without raising the need for public notice.

CONCLUSION:

In a country plagued by caste violence and communal horrors, the Safiya Sultana judgment strives to pave the way for more such judgments that protect and preserve individuals' inviolate integrity and privacy. It encourages a progressive and constitutionally sound approach to social institutions by debunking unreasonable social requirements and filters. While the country awaits the Supreme Court ruling on the challenge to the provisions, we can only hope that social stigmas and faith-based moral policing do not fetter the right to marry by one's choice.

REFERENCE

1. The Special Marriage Act, 1954, § 7 (January 1, 1955). https://legislative.gov.in/sites/default/files/A1954-43_1.pdf.

2. The Special Marriage Act, 1954, § 5 (January 1, 1955). https://legislative.gov.in/sites/default/files/A1954-43_1.pdf.

3. The Special Marriage Act, 1954, § 6 (January 1, 1955). https://legislative.gov.in/sites/default/files/A1954-43_1.pdf.

4. INDIA CONST. art. 21.

5. AIR 2021 All 56 (India)

6. Omar Rashid, Publication of notice under Special Marriage Act optional; mandatory notice invades privacy: Allahabad HC, The Hindu (Sep. 25, 2021, 2:18 AM), https://www.thehindu.com/news/national/publication-of-notice-under-special-marriage-act-optional-mandatory-notice-invades-privacy-allahabad-hc/article33569377.ece

7. INDIA CONST. art. 14

8. (2008) 5 SCC 287 (India).

9. (2008) 7 SCC 729 (India).

10. (2006) 5 SCC 475 (India).

11. (2014) 4 SCC 786 (India)

12. AIR 1964 SC 1590 (India)

13. Safiya Sultana v. State of Uttar Pradesh, AIR 2021 All 56 (India).

14. (2011) 6 SCC 405 (India)

15. Honour Killings: More than 300 cases in last year, The Times of India (Sep. 24, 2021, 2:30 AM),https://timesofindia.indiatimes.com/india/honour-killings-more-than-300-cases-in-last-three-years/articleshow/65908947.cms

16. Justice K. S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161 (India).

17. Trykhlib, K. (2020). THE PRINCIPLE OF PROPORTIONALITY IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS. EU and Comparative Law Issues and Challenges Series (ECLIC), 4, 128–154. https://doi.org/10.25234/eclic/11899.

*The Author is a 2nd-year B.A.LLB (Hons) student at National Academy of Legal Studies and Research, Hyderabad, Telangana.

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