New Delhi: In an important judgment reported on by LiveLaw, the Allahabad high court has held that publishing a notice and inviting objections before a couple decides to marry under the Special Marriage Act are no longer mandatory. The court observed that these rules went against fundamental rights and infringed upon one’s ability to choose to marry without intervention.
A section of the Special Marriage Act, 1954, requires an interfaith couple to give written notice of the marriage to the district marriage officer.
The judgment assumes significance in the backdrop of Uttar Pradesh bringing the ‘love jihad’ ordinance that criminalises forced religious conversions. A little more than a month since it was first implemented, the law has multiple times been used to harass consenting adult couples looking to enter into interfaith marriages, with disastrous consequences. In such cases, rightwing groups who are opposed to interfaith marriages were alerted by such notices that were made mandatory by the Special Marriage Act.
Considering a habeas corpus plea by an interfaith couple where the woman was being stopped from marrying her partner by her family, Justice Vivek Chaudhary on Wednesday observed that making such notices mandatory invades the fundamental rights of liberty and privacy, and the freedom to choose whom to marry without interference from state and non-state actors.
Indeed, the couple who had filed the petition had said that “any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure or interference in their free choice with regard to their marriage.”
Justice Chaudhary held that it will now be optional for those entering a marriage to publish such a notice. A couple will now have to make a written request to the marriage officer if they want such a notice to be published.
LiveLaw noted the court as having observed that in case the couple 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 solemnisation of the marriage.”
Existing rules under the 1954 Act regarding verification of identity, age, valid consent and competence to marry will still be applicable, the court held.
The Allahabad high court has distinguished itself in recent months by coming to the aid of interfaith couples. On January 8, 2021, the court said while hearing a plea by another interfaith couple that no one is “entitled to interfere in their peaceful life.”
In the month of November, 2020, alone the Allahabad high court had granted protection to 125 interfaith couples. In the same month, the court denounced a previous single-judge bench decision that religious conversions only for the sake of marriage are unacceptable, saying that decision was “bad in law”.