Allahabad HC Order on Special Marriage Act Is Progressive. But Is It Enough?

The court recently said it is not mandatory for the couples, as per the requirements of the Act, to divulge information about their marriage publicly. Although this is welcome, it still far from furthering choice and autonomy in intimate relationships.

Recently, Allahabad high court in the case of Safiya Sultana v. State of Uttar Pradesh held that the requirement of publication of notice of an intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act, 1954 (SMA 1954), is not mandatory.

The court declared that, while giving notice under Section 5 of the Act, it will be optional for the parties to the intended marriage to make a request in writing to the marriage officer to publish or not to publish a notice under Section 6 and to not follow the procedure of objections as prescribed under the Act of 1954.

The court declared that in case they 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.

Also read: Allahabad HC Says 30-Day Prior Notice in Special Marriage Act No Longer Mandatory

The case was a habeas corpus petition relating to illegal detention of a Muslim woman by her father after she converted to Hindusim and married her Hindu partner against his wishes.

While this is a welcome judgment that has the potential to cement constitutional rights of choice and autonomy in intimate relations, yet the order of the court leaves scope for state interference and community control over the exercise of freedom in choosing one’s life partner.

A framework of choice and autonomy

The judgment has been largely welcomed, and rightly so, as it puts individual choice at the forefront.

In a country where marriage is effectively a compulsory institution governed by caste and community honour, this judgment is a step in the right direction, furthering choice and autonomy in intimate relationship as constitutionally protected rights, especially given the growing interference of state with unconstitutional and sexist legislations, like Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance (the so-called ‘love jihad’ law, based on a conspiracy peddled by rightwing Hindutva).

Representative image. Photo: Unsplash/Sourabh Virdi

Prior to the judgment, Section 6, any couple (inter-religious, inter-caste, or otherwise) had to give notice of intention of marriage, which was to be recorded under the Marriage Notice Book at the registrar’s office.

The Marriage Notice book was to remain open for inspection at all reasonable times, without fee, for inspection by any person. Under Section 6(2) the notice had to be published at a ‘conspicuous’ place at the registrar’s office and objections were invited on the intended marriage under Section 7.

This made the notice requirement an easy tool for harassment and patriarchal control by family, caste panchayats and religious goons.  In my research with Namita Bhandare, we found that the notice requirement led to a range of extra-constitutional practices across states, like sending a notice to addresses of the parties, publishing it in local newspapers, sending police constables to verify the content of the notice, and even requiring consent of parents for the marriage.

Also read: Anti-Conversion Laws See Love as a Hate Crime

Delhi high court, Punjab and Haryana high court, and Rajasthan high court amongst others found these conditions violative of privacy, and are intrusive.

The verdict of the Allahabad high court creates hope of potentially putting an end to these extra-constitutional practices. However, there is limit to this hope as the court has still left scope for potential community control and intrusions.

Limits of hope

The court in this case noted that personal laws, under which the majority of marriages are performed, do not require publication of any notice or calling for objections. It reasoned that in marriages performed as per customs and rituals, parties’ orally saying that they are competent to marry is regarded sufficient for solemnising marriage under the personal laws. Any issues arising out of lack of competence of parties to marry (say age, prohibited degree, prior existing marriage, etc.) are to be decided by the court at a later stage in case of a dispute. The marriage takes place without any interference from any corner, even if it is later to be declared void.

And thus the court declared that there is no apparent reasonable purpose achieved by making the procedure more protective or obstructive under the Special Marriage Act, 1954. It noted that this discrimination in procedure violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage.

However despite these observations, the court in para 47 has noted that the marriage officer, while solemnising any marriage under the Act, may verify the identification, age and valid consent of the parties, or their otherwise competence to marry under the said Act. It further notes that 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.

This observation has potential to allow backdoor entry of caste and community control. A marriage officer may still allow delays and harassment by demanding honourous verification and proofs, especially against those couples who opt out of publication of notice and who may be seen as marrying against wishes of their family. Love marriages are anyway seen as ‘socially deviant’.

Also read: Understanding Women’s Choice in Mixing Marriage With Politics

Perveez Mody’s research has shown that that public disdain for love marriages is visible in the way SMA is actually implemented.  The public disdain is indeed appropriated in practice, making court marriages ‘difficult’ and ‘dangerous’. Thus, allowing discretion to a marriage officer for verification may still create unwarranted restrictions to exercise of choice.

Law Commission of India in its report titled Prevention of Interference with Freedom of Matrimonial Alliance (in the name of Honour and Tradition had in fact noted that in order to avoid unnecessary hassles and harassment of couples, the procedure under the Special Marriage Act should be simplified and domicile notice requirement should be deleted.

The requirement of domicile notice under Section 5 provides that notice of marriage can only be given in the jurisdiction where either of parties has resided for the last 30 days. This may still be difficult for run-away couples who, fearing violence and even safety of their lives, are forced to leave the place of their residence and go to other city/state in hiding for marriage.

In a country restricted by caste violence and community honors, the spirit of the Constitution warrants that the state has a positive obligation to encourage such marriages.

The current order still allows scope of permit system in matters of choice and autonomy. The order may give some breathing space for freedom, yet we are still far away from letting freedom and the spirit of love open its wings and fly!

Surbhi Karwa had read law at the National Law University, Lucknow and National Law University, Delhi. She is currently working as gender and law researcher.