JOIN USThe Allahabad High Court’s ruling that people marrying under the Special Marriage Act, 1954, need not publish their intention to marry 30 days before the marriage is a welcome affirmation of individual freedoms and the right to privacy. The court has rightly observed that mandatory publication of the notice of their marriage plan by couples violates their right to privacy. The order allows a couple to dispense with the notice if they so choose and give it in writing to the Marriage Officer who should solemnise the marriage. The court ruled that the provisions that mandated the notice and called for objections encroached on “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.” The Law Commission of India has also expressed the same view in a 2012 report.
The provisions had their origin at a time when the concept of marriage was different and may have been intended to prevent misuse by some couples. But they are retrograde and restrictive now and are being misused by members of the couples’ families, community, and even governments. The ruling has a special relevance in the context of the laws against “love jihad’’ passed by some state governments, including UP and Madhya Pradesh. The UP law, which is most stringently enforced, targets interfaith marriages, declares religious conversions for marriage unlawful and mandates a 60-day notice to the district magistrate. The magistrate has to investigate reasons for conversions. Obviously, the provisions are used to harass interfaith couples and to coerce them out of their plan. Many people, mostly Muslim men, have been arrested by the UP police under this law. Not only the government but vigilantes have also used the provisions to intimidate and attack couples.
It has been noted that many people choose to convert and marry under personal laws rather than face harassment under the Special marriage Act provisions. Those who go in for interfaith and intercaste marriages are not too many even now, and their rights need to be protected if the community or the government tries to victimise and target them. The Allahabad High Court’s judgement has to be seen in the light of a series of empowering judgements of the Supreme Court, like those on the right to privacy and the right to freely choose one’s partner. The High Court has seen its ruling as part of “a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights.’’ The laws against “love jihad’’ will also be hopefully judged in that light.