In the Lucknow bench of the Allahabad High Court 

Habeas Corpus No: 16907 of 2020

Safiya Sultana thru husband Abhishek Kumar Pandey & Anr

Vs

State of UP thru Secretary, Home 

On 12th January 2021, the Lucknow bench of the Allahabad High Court ruled that the notice period of 30 days to register a marriage under the Special Marriage Act 1954 should be made optional and not mandatory.  A look at this landmark judgment that protects the fundamental right to privacy as guaranteed by the Constitution of India: 

Facts

1. The petitioner wife Safiya Sultana, a Muslim married Abhishek Kumar Pandey, a Hindu. Safiya converted to Hinduism and was renamed Simran.
2. Safiya’s father held her against her wishes and was prohibiting her from living with her husband.
3. A habeas corpus petition was filed by the husband. The Court directed Safiya’s father to produce her before the Court.
4. Safiya and her father appeared in Court. Safiya expressly stated she and her husband are consenting adults and that she married on her own will and chose to convert to Hinduism.
5. Safiya’s father agreed for them to live together.

Issue

While appearing and deposing before the Court, the petitioners expressed their views that they could have been married under the Special Marriage Act 1954 (and not as per Hindu rituals). However, it was mandatory under the Special Marriage Act to give a notice of 30-day period wherein the proposal of such marriage would be published, and objections could be invited from public at large.  

The couple was of the view that such notice:

1. would be an invasion of their privacy;
2. cause unnecessary interference and pressure from family and the society. This would hinder their free choice in the matter of their marriage.
3. Many inter faith couples face the risk of threat and harassment especially with the enactment of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (“Love Jihad” ordinance) as it prohibits conversion of religion by marriage to be illegal and punishable.

Hence there is need to revisit the Special Marriage Act 1954 and amend the same.  

Analysis

The Court considered this issue as it pertained to rights of not just to a couple but the right of life and liberty of large number of persons. Hon’ble Justice Vivek Chaudhary made three major observations:

1. The society is ever changing to keep pace with time as per its new needs, expectation and other changing aspects. The very purpose of law is to serve the society as per its requirements. Law must also keep evolving to keep pace with the changes in the society. The Court relied on Satyawati Sharma vs Union of India [(2008) 5 SCC 287] case, which held that a legislation which may have been reasonable and rationale at the time of its enactment may, over time and changing circumstances become arbitrary, unreasonable and violative of the doctrine of equity. In such cases, the Court may strike down the same if it is found that the rationale of classification has become non-existent.
2. The courts took note of several cases, the important ones being the Puttaswamy case [(2017) 10 SCC 1] and the Kharak Singh vs. State of U.P. [AIR 1963 SC 1295] case.The Puttaswamy case laid down the basic tenets of privacy by recognizing it as a fundamental right. In the Kharak Singh case, a part of the judgment held that right to privacy is not a guaranteed right under the Constitution of India. This part of the judgment was overruled. The court was of the view that the right to privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Privacy includes at its core the preservation of personal intimacies, sanctity of family life, marriage, procreation, home and sexual orientation. It also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Fundamental rights are the only constitutional firewall to prevent the State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21.The Court agreed with the view that in an era where there are varied socio-cultural norms especially in a diverse country like India, privacy is one of the most important rights to be protected both against the State and non state actors. Privacy should be recognized as a fundamental right.   In Lata Singh vs. State of U.P. and another, [(2006) 5 SCC 475] it was held that once a person becomes a major, he or she can marry whosoever he or she likes, an inherent aspect of Article 21 of the Constitution would be freedom of choice in marriage. In Shakti Vahini Vs. Union of India and others, [(2018) 7 SCC 192] case, it was held that wedlock is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.  In Shafin Jahan Vs. Asokan K.M. and others, [(2018) 16 SCC 368], it was held that 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.
   
   
3. Marriages in India can be performed either under respective personal laws or Special Marriage Act 1954. There is no mandatory requirement under personal laws to publish a notice intimating the society about marriage / call for objections, if any. However, there is a mandatory requirement under the Special Marriage Act 1954 to give a 30-day notice period intimating the society about the proposed marriage. This indicates invasion / violation of right to privacy due to the risk of interference from State and non- State actors. There seems to be no apparent purpose in requiring mandatory publishing of notice. Not giving notice would not impact or affect rights of any person in any manner different than the same would in case of a marriage under any personal law. Imposing requirements of publishing mandatory notice 30 days before the proposed marriage would actually amount to violative of fundamental right to privacy. This under a law where comparatively lesser number of marriages take place. 

The judgment

The Court held that it shall be optional (and not mandatory) for parties intended for marriage to approach the marriage officer to publish or not a notice of intention to marry as contained in the Special Marriage Act 1954. In case no such request is made, then the marriage officer shall not publish any notice or entertain any objections. The officer can proceed to solemnize the marriage. 

The marriage officer though, at discretion may 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.

However, individuals applying to solemnize their marriage under the Special marriage Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under the Act. Such publication of notice would not be violative of their fundamental rights it is adopted on their own free will. 

Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 of the Special marriage Act 1954 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise. 

For the text of the Judgement, refer:

http://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do