New Delhi: Responding to a petition challenging certain provisions under the Special Marriage Act (SMA), the Centre has informed the Delhi high court that the procedure and conditions, including the 30-day notice for solemnisation of a marriage under the Act, are “fair and reasonable” and in consonance with the intention behind the statute.
The submission, made by the Ministry of Law and Justice, was made in an affidavit filed before a bench of Chief Justice D.N. Patel and Justice Jyoti Singh. It was in response to an inter-faith couple’s plea (Nida Rehman vs Union of India) challenging Sections 6 and 7 of the SMA. While Section 6 directs the marriage officer to issue a public notice for marriage applications under the Act, Section 7 invites to objections to these applications.
The SMA is religion-neutral, allowing people of different faiths to enter into wedlock without converting to another faith, something that personal laws necessitate. However, the 30-day notice period has proven to be a hurdle for couples marrying against the will of their families.
The ministry argued that the intention behind these provisions “is to keep adequate safeguards” with regard to the interest of the “various parties involved”.
“If any person raises objection to the said marriage (under SMA) within a period of 30 days, the marriage officer shall not solemnise the marriage until he enquires into the matter of objection. It may not be possible to verify the credibility of such a person if at least thirty days period is not given as mentioned in section 7 of the Act,” the ministry has claimed.
It has further claimed that “the procedure laid down in this Act for registration of marriage is fair and reasonable”.
“The conditions relating to solemnisation of special marriage mentioned under the Act is in consonance with the intention behind the Act,” it has contended.
‘Discourages inter-faith couples’
The inter-faith couple, represented by advocate Utkarsh Singh, contended that the 30-day notice period discourages couples like them from getting married.
They had further contended that there was no such provision under the personal laws with regard to same-faith marriages.
Their petition says that some objections, like unsoundness of mind of either party or that they have not attained the age of marriage – which can be raised under section 4 of the Act – “can be ascertained on the basis of certificates issued from a government hospital or any prescribed authority”.
The plea says the 30-day notice period inviting objections to the marriage directly impinge on the fundamental rights of the petitioners.
To this, the ministry has contended that fundamental rights are not absolute and reasonable restrictions can be imposed on them.
“Though right of privacy is now part of fundamental right but it is not absolute right…as the Constitutional bench of Hon’ble Supreme Court [held] in the case of Justice K.S. Puttaswamy and Ors. Vs Union of India and Ors,” the affidavit states, according to Bar & Bench.
The petition also pointed out that the issue of whether either party has a living spouse, which can be raised as an objection under the Act, is not a condition imposed on same-faith marriages and imposing it on inter-faith marriages is due to a bias against such relationships.
The petition has urged the court to declare as “illegal, null, void and unconstitutional” the provisions of the Act which lay down the procedure of the 30-day notice to invite objections.
It has sought a direction to the Centre and Delhi government to decide the objections, under the Act, on the basis of undertaking and certificates issued by any government hospital or any other authority.
Allahabad HC order
In January this year, the Allahabad high court observed that publishing a notice and inviting objections before a couple decides to marry under the SMA are no longer mandatory. The court held that these rules “went against fundamental rights and infringed upon one’s ability to choose to marry without intervention”.
On September 16 last year, the Supreme Court agreed to examine whether certain provisions of the Act, which allow personal records of applicants to be made available to the public, violate the right to privacy of the parties.
The PIL was filed by law student Nandini Praveen, saying placing these details in the public domain violates an individual’s right to privacy. She urged the apex court to quash these sections of the Act.
The Special Marriage Act has taken on more significance in the recent past, after-several BJP-ruled states passed Acts or ordinances which are ostensibly against forced religious conversion but are perceived as targeting interfaith Hindu-Muslim couples.