Plea in SC to dispense with public notice under Special Marriage Act had merit, feel legal experts

The Supreme Court has dismissed a plea challenging certain provisions of the Special Marriage Act, 1954 (‘SMA’) which requires couples to publish their details in the public domain 30 days before the marriage.

Some lawyers, however, believe that its arguments had merit.

A bench of Justices Dinesh Maheshwari and Bela M Trivedi dismissed the petition, which challenged Sections 6(2), 6(3), 7, 8, 9 and 10 of the Special Marriage Act, 1954 as violative of the fundamental rights of citizens under Articles 14, 15 and 21 of the Constitution. These sections deal with publication of a notice of the intended marriage and invite objections to such a marriage.

The bench pointed out that if it was a personal case, then it ceased to be a public interest litigation.

The petition, filed by Athira Menon, underscored that neither the Hindu Marriage Act, 1955 nor the customary laws in Islam have such a requirement, although Section 13 of the Indian Christian Marriage Act, 1872 contemplates such a procedure.

The petition contended that inquiry under Section 8 of the Act was violative of the right to privacy of couples and that it failed the three tier test, endorsed in KS Puttaswamy judgement, of legality, legitimacy and proportionality.

Indian Civil Liberties Union (ICLU) founder and Supreme Court lawyer Anas Tanwir said that the SC was not wrong when it dismissed the PIL. “When you file a PIL, it is a public interest litigation. So, you have to give an undertaking that there is no personal stake involved. If there is a personal stake, then the right thing to do is to file a writ petition instead of a PIL,” he added.

He observed that the petitioner could have filed such a petition in the concerned high court in the state. The case may have been dismissed on technicality, noted Tanwir, but the SC has left the question of law open.

Here the crucial question of law pertains to privacy and liberty of individuals.

“The idea behind the notice under SMA was to prevent coercion or illegal marriages. However, it has become a tool for harassment of interfaith couples,” Tanwir said.

In January 2021, the Allahabad High Court ruled that it was not compulsory for couples seeking to solemnise their marriage under SMA to give a mandatory 30-day public notice of their intention to marry. The court had observed that in case the couple does not make a request for publication of such a notice in writing, the Marriage Officer, while giving notice under Section 5 of the Act, shall not publish any such notice or entertain objections to the intended marriage.

In 2017, the Delhi High Court held that sending notices to the residences of the parties to marriage is violative of their right to privacy and is an unwarranted procedure.

In 2021, the Punjab and Haryana High Court considered the legality of the procedure followed under the SMA and held it as violative of fundamental right to privacy of the parties. However, in this case, the legality of the procedures adopted by the executive under Section 6 of the Act was considered rather than the constitutional validity of Section 6 of the SMA.

The SMA has roots in a nineteenth century legislation, which was to legitimise any marriage for those willing to change their religion, which mandated issuing a notice to check if a person had other spouses.

“Now, where the law is reasonably well laid down, in that it states that if you marry while your first spouse is alive, the said marriage is void. So, publication of a notice does welcome unnecessary attention. It is reasonable to suppose that there can be a procedure which dispenses with the publication of notices and invitation of objections,” said Sanjay Hegde, a Senior Advocate practising in the Supreme Court.

The publication of such a notice, maintained Hegde, may violate the privacy of the couple, but it may not violate privacy in the classical sense of the word.

“There can be a reasonable expectation of confidentiality and of not being subject to any threat of violence or coercion. The Supreme Court may look at it again if there is a live case where a couple may not want the publication of such a notice before marriage,” he said.

Adding to the discourse, Supreme Court lawyer Shahrukh Alam noted that the order disallowing the challenge to State and societal regulation of marriage, ironically, was passed on the same day that the SC expanded the notion of 'family', loosened State control over relationships and deregulated that meaning in another case, Deepika Singh v. Central Administrative Tribunal.

Also in the same week, several writs were filed challenging the idea of unilateral talaq in Muslim law, even when not spontaneous, but given over three months (talaq-al-ahsan'). The unilateral, ‘no- fault’ based nature of such divorce permissible under Muslim law is being challenged.

The need for regulation of marriages and divorces, pointed out Alam, is completely at variance with the judgement that expands the notion of family, and also with the general direction that family law jurisprudence is taking worldwide.

“So on the one hand, we have the acknowledgment of relationships outside the heteronormative, State regulated framework, whereas on the other hand, inter religious marriages seem to require general sanction, the idea being that two adults wanting to marry on their own is not enough evidence of the validity of their decision,” she said.