Publication of notice of the intended marriage hampers the Right to Privacy and hence, it has been made non-mandatory u/s 6 & 7 of the Special Marriage Act. This was decided by the Allahabad High Court in the case of Smt. Safiya Sultana thru. husband Abhishek Kumar Pandey & anr vs. State Of U.P. thru. Secy. Home, lko. & ors. [Habeas corpus no.16907 of 2020] and was presided over by Hon’ble Justice Vivek Chaudhary.
In the above cited case the court was considering habeas corpus petition alleging that an adult girl was being detained against her wishes to marry her lover who belonged to different religion. The couple submitted before the Court that they could have solemnized their marriage under the Special Marriage Act, but the said Act requires a 30 day notice to be published and objections to be invited from the public at large. They contended that any such notice would be an invasion in their privacy and would cause unnecessary social pressure/interference in their free choice with regard to their marriage.
HC observed the concerns raised over by the couple and contended that the procedure made mandatory under the Special Marriage Act is cruel and unethical for the present and the future generations and it violates the fundamental rights recognized by the courts of the day and no apparent reasonable purpose has been achieved by making the procedure mandatory under the statute to be more protective or obstructive.
Under the provisions of Section 6 and 7 of the Special Marriage Act, couples were bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person could object to the marriage on the ground that it violates any of the condition of Section 4 of Act of SMA, 1954.
Therefore, HC reached to the conclusion that persons intended to get married can publish the notice by their free choice and desire and such publication of notice and procedure would not violate their fundamental rights as they have adopted the same of their free will and an invite to the objections u/s 7 of the act will come into effect only on the request of the parties and not otherwise.
Hence, while disposing of the petition HC stated that “this Court mandates that while giving notice under Section 5 of the Act of 1954 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 a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case”
Personal liberty and privacy are fundamental rights including within their sphere right to choose partner without interference from State, family or society, the High Court reiterated.
