The Unconstitutionality of the “Publication of Notice of Intended Marriage” clause under the Indian Special Marriage Act

by | Sep 14, 2020

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About Ayush Mishra

The author is an alumnus of the NALSAR University of Law, Hyderabad, India and is currently practicing as an advocate at the Hon'ble High Court of Allahabad, India. He has previously served as a Law Clerk at the Supreme Court of India and takes keen interest in constitutional, criminal and commercial laws. He can be contacted at office.ayushmishra@gmail.com or via Linkedin.

Citations


Ayush Mishra, “The Unconstitutionality of the “Publication of Notice of Intended Marriage” Clause under the Indian Special Marriage Act” (OxHRH Blog, September 2020), <https://ohrh.law.ox.ac.uk/the-unconstitutionality-of-the-publication-of-notice-of-intended-marriage-clause-under-the-indian-special-marriage-act> [Date of access].

The Special Marriage Act was enacted in 1954 to allow citizens of India to solemnize inter-faith and inter-caste marriages without the need to renounce their religion. The Supreme Court of India, however, has recently accepted a petition challenging the constitutionality of Section 6 of the act that mandates the Marriage Officer to publish the notice of an intended marriage at a conspicuous part of his office, allowing absolutely anyone to come forth and object to the intended marriage. This blog post argues that the said provision violates the couples’ right to privacy, equality, non-discrimination and their constitutional right to marry a partner of their choice.

Violation of Right to Equality and Non-Discrimination

Couples intending to solemnize their marriage under any religious personal law, for instance, the Hindu Marriage Act, 1955, are not required to submit a notice to any authority or publish it for the public to object to, or wait for a 30-day notice period to get over before they can solemnize their marriage. These onerous requirements exist only for citizens intending to perform a civil or inter-faith marriage under the Special Marriage Act, 1954. Such conflicting requirements cannot be reconciled with the guarantee of equality under Article 14 of the Indian Constitution, which prohibits the state from denying any person equality before law or the equal protection of laws. The application of different procedures depending upon the faith/caste of the individual does not exhibit any intelligible differentia and fails to satisfy the reasonable classification test and the standard of arbitrariness as envisaged by Article 14. It further violates Article 15 of the Constitution of India which specifically prohibits any discrimination by the state solely on the grounds of religion, race, caste, sex, place of birth or any of them.

Flagrant Invasion of Privacy

The Supreme Court of India in the Puttaswamy case(2017) recognized the right to privacy as a fundamental right under the aegis of Article 21 of the constitution of India. Justice DY Chandrachud held that under the positive tenet of the right to privacy, the state is obligated to take all necessary measures to protect the privacy of individuals. Therefore, when two adults exercise their constitutional right under Article 19 and 21 to consensually choose each other as life partners, the state must respect their personal decision. However, contrary to this legitimate expectation, this provision requires the marriage officer to put personal details of the couple like their name, sex, address, religion, caste etc. in public domain. This requirement not only commits an intrusion upon the personal life and liberty of the citizens, but also, in some cases, has the potential to jeopardize the marriage itself.

Unwarranted Disclosure of Matrimonial Plans Violate the Right to Choose a Life-Partner

It has been held in Shakti Vahini vs UOI(2018) that the right to choose a life partner is a fundamental right and the consent of family/clan/community is unnecessary for two adults to marry. However, in cases where the marriage plans of an inter-faith/inter-caste/inter-community couple is disclosed to the public, such notice acts as a fodder for religious fundamentalists and vigilantes to feed on. Not only is this information misused to spread communal propaganda and thwart the solemnization of the intended marriage, but it is also abused to endanger the life and limb of the parties involved due to unwarranted parental and societal interference. Consequently, when tested against the touchstone of the right to marry and the principle of liberty, this provision collapses colossally.

The Way Forward

The State of Kerala recently issued a circular to stop the publication of the personal information of couples in the registration department’s website, owing to complaints of abuse by communal elements. The High Courts of Delhi, Punjab-Haryana and Rajasthan have separately held that the publication of such notices at the residence of the parties or in the national newspapers is not warranted by law and that it violates their right to privacy. It is hoped that the Supreme Court would follow this line of progressive circulars and judgments and uphold the cherished tenets of equality, non-discrimination and privacy by deciding that such a provision has no place in the rights-based framework of the Indian Republic.

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