Mandatory publication of notice of intended marriage under Special Marriage Act violates Right to Privacy: Allahabad High Court

In a most learned, most laudable, most landmark and most latest judgment titled Smt. Safiya Pandey & Anr vs State of U.P. Thru. Secy. Home, Lko. & Ors. in HABEAS CORPUS No. – 16907 of 2020 that was reserved on 14.12.2020 and then finally delivered on 12.01.2021 which is most rightly capturing the news headlines of major national newspapers, the Lucknow Bench of Allahabad High Court has held unequivocally that requirement of publication of notice of intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act is not mandatory. Justice Vivek Chaudhary who most crucially has authored this extremely brilliant, bold and blunt 47-page judgment which is substantiated by the reports of Law Commission of India, latest Apex Court rulings among others minced no words to make it clear in no uncertain terms that making such publication mandatory 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.

Justice Vivek Chaudhary based his exceptionally brilliant judgment on three key observations:1. Law must keep evolving with the change in time and evolution in the society.

2. It shouldn’t violate privacy, fundamental rights and right to privacy as defined by Supreme Court.

3. When there is no provision of 30-day notice for getting married under various personal laws, why should this provision be made mandatory under Special Marriage Act?

Truth be told, Justice Vivek waxed eloquent to state 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 a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. Justice Vivek added that, 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 must be mentioned here that the Court was considering a habeas corpus petition alleging that an adult girl is being detained by her father against her wishes to marry her lover who belongs to a different religion. The learned judgment came following a petition filed by Abhishek Kumar Pandey, who said that his wife Safiya Sultana, who had changed her religion to become a Hindu and renamed as Simran, married him as per Hindu rites. He alleged that her father was keeping her in illegal detention and prayed that she should be put at liberty.

To start with, this wellwritten, well-drafted, wellworded, well-articulated, well-reasoned and well-substantiated judgment sets the ball rolling when first and foremost a single Judge Bench of Justice Vivek Chaudhary of Lucknow Bench of Allahabad High Court points out in para 1 that, “The present Habeas Corpus Petition is filed by Petitioner no.1-wife through Petitioner no.2-husband, claiming that detenue-petitioner no.1, Smt. Safia Sultana, who after converting to Hindu religion and renamed as Smt. Simran, married Petitioner no.2 as per Hindu rituals. However respondent No.4, her father, is not permitting her to live with her husband. They both are adults, duly married with their free will and desire to live together. Thus the custody of the detenue by her father is illegal. The Court directed for the presence of the detenue and her father. They both appeared in person, wherein, the Petitioner no.1 accepted the averments aforesaid and had shown her desire to live with her husband. The Respondent no.4-father of the detenue also fairly accepted that since she is an adult, has married with her choice and wanted to live with her husband, he also accepts her decision and wished both of them best for their future.”

While stating the purpose of the petition, the Bench then states in para 2 that, “This matter could have come to an end at this stage, but, for the views expressed by the young couple while interacting with the Court on their personal appearance, the young couple expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the said Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice. Learned counsel for petitioners also stated that the situation may become more critical with notification of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, as the same prohibits conversion of religion by marriage to be unlawful. Learned counsel for petitioners further argues that looking into the changing pattern of the society, amendments made to the Special Marriage Act, 1954 as well as the law declared by the Supreme Court in the last around a decade with regard to privacy, liberty and freedom of choice of a person, provisions of Special Marriage Act, 1954, directing publication of a notice before marriage and inviting public objections, require a revisit to understand whether now with the said change they are to be treated as mandatory or directory in nature.”

While continuing in a similar vein, Justice Vivek Chaudhary then states in para 3 that, “It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.”

While underscoring the immense significance of right to life and liberty as enshrined in Article 21 of the Constitution, Justice Vivek then puts forth in para 4 that, “Since, the issues raised by the petitioners and their counsels involves right of life and liberty of a large number of persons, therefore, this Court is duty bound to consider their submissions. Suffice would be to refer to the judgment of the Supreme Court in Shakti Vahini vs. Union of India and others [(2018) 7 SCC 192]. The relevant paragraph reads:

“44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the constitutional courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement.””

Be it noted, Justice Vivek then observes in para 6 that, “For the purpose of the present case, following sections of Special Marriage Act, 1954 are of relevance:

“4. Conditions relating to solemnization of special marriages: Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

(a) neither party has a spouse living;

(b) neither party

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) has been subject to recurrent attacks of insanity

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends. 5. Notice of intended marriage: When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

6. Marriage Notice Book and publication: (1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

7. Objection to marriage: (1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.

(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained if necessary, to the person making the objection and shall be signed by him or on his behalf.

8. Procedure on receipt of objection: (1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the court.

46. Penalty for wrongful action of Marriage Officer: Any Marriage Officer who knowingly and wilfully solemnizes a marriage under this Act, (1) without publishing a notice regarding such marriage as required by Section 5, or (2) within thirty days of the publication of the notice of such marriage, or

(3) in contravention of any other provision in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.””

It is worth noting that it is then pointed out in para 15 that, “In its 59th report submitted in the year 1974, the Law Commission, while proposing amendments in the Act of 1954 as well as in the Hindu Marriage Act, 1955, states:

“1.11: The object of law, whether personal or public, must be to sustain the stability of the society and help its progress: - The structure of any society, which wants to be strong, homogeneous and progressive, must, no doubt, be steady but not static; stable but not stationary.”

“1.16: It may sound platitudinous but is nevertheless true that revision of laws is a ‘must’ in a dynamic society like ours which is engaged on the adventure of creating a new social order founded on faith in the value-system of socio-economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions, and customs and beliefs of the people change. These, in turn, demand changes in the structure of law; every progressive society must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value-system accepted by the community, there should not be an unduly long gap. Ranade often said that the story of social reform, which involves reform in personal law, is an unending story; it continues from generation to generation. Each generation contributes to the continuance of the effort of social reform; but the effort is never concluded and the end is never reached in the sense that no further attempt to reform is required. It is in that sense that we believe that the revision of personal laws, and indeed, of all laws, has to be undertaken by modern societies. These thoughts have been present in our mind when we embarked upon the present inquiry”

“1.20: In any civilised and progressive society, marriage is an institution of great importance. It is the centre of a family which in turn, is a significant unit of the social structure. Children who are born of marriage, also contribute to the stability of the institution of marriage.””

Para 16 then further states that, “Concluding the said report, the Law Commission proposed Marriage Laws (Amendment) Bill of 1974 suggesting amendments in the Act of 1954 as well as in the Hindu Marriage Act, 1955. The Act of 1954 was duly amended in the year 1976.”

Going forward, Justice Vivek then points out in para 17 that, “The Law Commission again submitted a report No.212, in the year 2008, titled “Laws of Civil Marriages in India – A Proposal to Resolve Certain Conflicts”. After taking into consideration the changes in the social norms as well as in law, the Law Commission made seven recommendations with regard to Act of 1954. Relevant for our purposes are:

“1. The word “Special” be dropped from the title of the Special Marriage Act 1954 and it be simply called “The Marriage Act 1954” or “The Marriage and Divorce Act 1954.” The suggested change will create a desirable feeling that this is the general law of India on marriage and divorce and that there is nothing “special” about a marriage solemnized under its provisions. It is in fact marriages solemnized under the community-specific laws which should be regarded as “special.”

2. A provision be added to the application clause in the Special Marriage Act 1954 that all inter-religious marriages except those within the Hindu, Buddhist, Sikh and Jain communities, whether solemnized or registered under this Act or not shall be governed by this Act. 3. The definition of “degrees of prohibited relationship” given in Section 2 (b) in the Special Marriage Act 1954 and the First Schedule detailing such degrees appended to the Act be omitted. Instead, it should be provided in Section 4 of the Act that prohibited degrees in marriage in any case of an intended civil marriage shall be regulated by the marriage law (or laws) otherwise applicable to the parties. 4. The requirement of a gazette notification for recognition of custom relating to prohibited degrees in marriage found in the Explanation to Section 4 of the Special Marriage Act 1954 be deleted.”

Furthermore, Justice Vivek then enunciates in para 18 that, “Again the Law Commission submitted report No.242, in the year 2012, titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework.” It states:

“4.1 The autonomy of every person in matters concerning oneself – a free and willing creator of one’s own choices and decisions, is now central to all thinking on community order and organization. Needless to emphasize that such autonomy with its manifold dimensions is a constitutionally protected value and is central to an open society and civilized order. Duly secured individual autonomy, exercised on informed understanding of the values integral to one’s well being is deeply connected to a free social order. Coercion against individual autonomy will then become least necessary.

4.2 In moments and periods of social transition, the tensions between individual freedom and past social practices become focal points of the community’s ability to contemplate and provide for least hurting or painful solutions. The wisdom or wrongness of certain community perspectives and practices, their intrinsic impact on liberty, autonomy and self-worth, as well as the parents’ concern over impulsive and unreflective choices – all these factors come to the forefront of consideration.””

More significantly, Justice Vivek then rightly brings out in para 19 that, “It recommended to simplify the procedure under the Special Marriage Act. It says:

“9: it is desirable that the procedure under the Special Marriage Act is simplified. The time gap between the date of giving notice of marriage and the registration should be removed and the entire process of registration of marriage should be expedited. The domicile restriction should also be removed. We are aware, that already an amendment is proposed to the Special Marriage Act by the Government of India by introducing a Bill in the Parliament. It is, therefore not necessary to make a detailed study and give specific recommendation on this aspect.”

Equally significant is what is then stated in para 40 along with relevant case laws of Apex Court that, “The law as declared by the Supreme Court, since the case of Lata Singh vs. State of U.P. and another, (2006) 5 SCC 475 till the decision in Navtej Singh Johar and others Vs. Union of India, (2018) 10 SCC 1, has travelled a long distance defining fundamental rights of personal liberty and of privacy. “once a person becomes a major he or she can marry whosoever he/she likes” (Lata Singh); “an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage”(indian Woman Says Gang-raped on Orders of Village Court Published in Business and Financial News Dated 23-1-2014 in Re, (2014) 4 SCC 786); “choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19” (Asha Ranjan vs. State of Bihar, (2017) 4 SCC 397); “the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock….. it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution”(shakti Vahini Vs. Union of India and others, (2018) 7 SCC 192); “Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters….. Social approval for intimate personal decisions is not the basis for recognising them.”(shafin

Jahan Vs. Asokan K.M. and others, (2018) 16 SCC 368) and finally the nine-judges bench “Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and selfdetermination…….privacy is one of the most important rights to be protected both against State and non-state actors and be recognized as a fundamental right. (Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others, (2017) 10 SCC 1) is a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society.”

Quite remarkably, Justice Vivek then holds in para 41 that, “In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, it would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day. In view of law settled in Satyawati Sharma vs. Union of India, (2008) 5 SCC 287 and Kashmir Singh vs. Union of India, (2008) 7 SCC 259 as stated above, it is the duty of this court to revisit the interpretation of the procedure under challenge as provided in the Act of 1954.”

Most significantly, Justice Vivek then holds in para 45 that, “The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. 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. Further, note should also be taken of the fact that marriages in India can be performed either under the personal laws or under the Act of 1954. In fact, even today, majority of marriages are performed under the personal laws. These marriages under personal laws are performed by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage. The individuals intending to marry approach the priest who performs the marriage as per the customs and rituals of the said religion.

analysis

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