The January 12 judgement of the Allahabad High Court concerning the provisions of the Special Marriage Act (SMA), 1954, is historic in many ways. It is the first judgement which dealt with and tried to iron out the legal asymmetries that had crept into the SMA over time.
Though the court was dealing with a habeas corpus petition, which has a limited scope, the judge decided to take on the challenging issue concerning the constitutional rights of individuals. In its judgement, the court held Section 6 and 7 of the SMA to be directive in nature and said it is optional for couples to have prior notice of their marriage published, and in case they choose against the publication of the notice, then the Marriage Officer shall proceed to solemnise their marriage.
Even the Supreme Court is seized of a similar matter and earlier on September 16, 2020, it issued a notice on a petition filed by Nandini Praveen, a law student from Kerala, challenging various sections of the SMA, primarily on the ground that these sections violate the right to privacy of the marrying couple.
The SMA was enacted as a secular law that allows any two consenting adults to marry regardless of caste and religion. However, the mandatory publication of notice to marry as per Section 6 of the SMA and the 30-day waiting period for objections from the general public afforded sufficient time to the parents as well as vigilante groups to prevent the marriage, often putting the life and liberty of the intending couple at risk.
On the other hand, if one partner agrees to convert to the religion of the other, then the marriage can be solemnised as per the rites of the latter religion within a few hours and that is a perfectly valid and legal marriage.
The Allahabad High Court has interpreted the provisions of the SMA in the light of recent decisions of the apex court and has given a progressive judgement. The judgement strikes at the root of the cause for interfaith couples to opt for the conversion-to-marry route. The Uttar Pradesh government, which has followed its Hindutva agenda with missionary zeal, may not let go of things so easily and there is a good chance that the matter will finally end up in the Supreme Court.
It is in this context that the observations of the Chief Justice of India while issuing notice in the petition filed by Nandini Praveen need attention. The CJI had orally remarked:
“For example, one or both persons intending to get married have run away from their respective spouses, should it be kept secret by the marriage officer, who has an obligation under law to inquire into the legitimacy of the alliance by inviting objections from the public by putting up the information on the notice board? The moment that provision is deleted, it could lead to abuse of existing marriages. You must also suggest a solution.”
In the spirit of the CJI’s call for solutions, here are some suggestions:
A couple may approach the Marriage Officer along with witnesses and present the application/notice to marry. The couple shall furnish their valid proof of identity and age. The couple and witnesses shall sign a declaration as per Section 11 of the SMA that the couple fulfills the conditions to marry.
The Marriage Officer shall solemnise the marriage as per Section 12 and issue a ‘Provisional Marriage Certificate’ immediately, which shall remain valid for 60 days.
The required number of witnesses may be reduced to two.
Thereafter, the Marriage Officer may proceed in terms of Section 5 to 14 of the SMA by publishing notice and entertaining objections.
In case no objection is received, then the Marriage Certificate shall be issued after 30 days of publication of such notice.
In case any objection is received, then that shall be dealt with by the Registrar in terms of provisions of the SMA. The couple and witnesses may be permitted to be represented by an advocate. The personal presence of the couple and witnesses should be ordered only when it is necessary.
The cost to be imposed on objectors for filing false objections should be increased substantially from the present Rs 1,000.
Once the legal sanction is granted, it is unlikely that any couple would like to keep their marriage a secret and any publication then should not bother them. It will be fallacy to assume that once a Provisional Marriage Certificate is issued, the marriage cannot be undone. Section 24 of the SMA itself provides for such eventuality wherein if any information provided by the couple is found to be false, then the marriage may be declared null and void.
(The writer is an advocate in the Punjab & Haryana High Court)
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