In a landmark judgement, the Lucknow bench of the Allahabad high court has ruled that the 30 days’ notice to a marriage officer to register a wedding under the Special Marriage Act, 1954, should be optional rather than mandatory.
The court said that enforcing a notice period on the couple is tantamount to intruding on their fundamental right to privacy and liberty.
“If the couple does not want to go for publication of the 30-day notice, the marriage officer has to solemnise their wedding forthwith,” said Justice Vivek Chaudhary while disposing of a habeas corpus petition filed by a Hindu man married to a woman who was born Muslim but converted before the wedding.
Petitioner Abhishek Kumar Pandey alleged that his wife Sufiya Sultana was being held captive by her father because she had converted and got married according to Hindu rituals.
Justice Chaudhary based his judgment on three key observations.
First, the law must keep evolving with time and societal change.
Second, it should not violate anyone’s privacy, a fundamental right underscored in several orders of the Supreme Court.
Lastly, when there is no provision of a 30-day notice period to get married under various personal laws, why should this be mandatory under the Special Marriage Act?
The court, however, clarified that the onus would be on the marriage officer to verify the identity, age and valid consent of the couple and their eligibility to marry under the relevant law.
“In case the marriage officer has any doubt, it shall be open for him to ask for appropriate details or proof as per the facts of the case,” the court said.
Responding to an earlier directive, the father of Sufiya a.k.a. Simran had produced his daughter in court.
During the course of the hearing, she and Abhishek told the court that they were consenting adults who had married of their free will because they wanted to live together.
Simran’s father thereafter gave his personal consent to their marriage.
While the case was amicably closed, the court took notice of the fact that under the Special Marriage Act, it is mandatory to give 30 days’ notice for an interfaith couple to legalize their union.
Abhishek and his bride had pleaded before the court that any such notice would be an invasion of their privacy and cause unnecessary social pressure and interference in their decision to marry. They also pointed out that many interfaith couples face the same challenge.
The petitioner’s counsel said the circumstances had become even more difficult for couples in Uttar Pradesh under the Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which treats conversion through marriage as ‘illegal and punishable’.
He argued that in the light of changes in society, amendments to the Special Marriage Act and various judgments of the Supreme Court in regard to the privacy, liberty and freedom of choice of a person, it is imperative to revisit the provision for a 30-day notice period and understand whether this is to be treated as mandatory or directory in nature.
Citing various orders of the Supreme Court and recommendations of the Law Commission of India in 2008, the court concluded: “…the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. No reasonable purpose is achieved by putting the provision of 30 days’ notice publication under the Special Marriage Act.