Writ Petition Summary

Constitutionality of Special Marriage Act

| 15th Dec 2020

Background and Issue

The petitioner, Nandini Praveen, a law student, filed a writ petition before the Supreme Court under Article 32 of the Constitution of India, 1950 challenging Section 6(2), 6(3), 7, 8, 9 and 10 of the Special Marriage Act, 1954 (SMA). The Special Marriage Act, 1954 aims to formalise and provide for the registration of inter-religious marriages.

 

In her petition, she argued that the said provisions violated the fundamental rights guaranteed under the Constitution. Moreover, the petition highlighted that the provisions of the Act that enabled the publishing of the private details of the parties to an intended marriage and entertaining objections from the public violate the fundamental rights to privacy and dignity under Article 21. It also violated the right to equality and right against discrimination under Articles 14 and 15 of the Constitution.

 

What Does the Petitioner Seek?

The Petitioner prayed for the Court to-

  1. Strike down Section 6(2), 7, 8 and 10 of the SMA, as unjust, illegal and unconstitutional.
  2. Strike down Section 6(3) of the SMA to the extent to which it says “that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office” as unjust, illegal and unconstitutional.
  3. Strike down Section 9 of the SMA to the extent to which it deals with inquiry under Section 8 of SMA as unjust, illegal and unconstitutional.

 

Grounds for the Petition

Privacy 

The petitioner stated that publishing private information of couples under Section 6(2) and 6(3) such as their marital status, age and address along with their intention to marry each other infringes their right to privacy. Additionally, the dissemination of such information serves no purpose to the State. The petitioner relied on the right to privacy being a fundamental right under Article 21 of the Constitution. She referred to Justice K.S. Puttaswamy v Union of India (2017) and Ram Jethmalani v Union of India (2011) which recognized the right to privacy as a crucial element of the right to life under Article 21.

 

In Kuldeep Singh Meena v. State of Rajasthan (2017) the Delhi High Court held that pasting notices on the house of the parties to the marriage is a violation of their right to privacy and is an unwarranted procedure. In A and Anr. v State of Haryana  (2018), the Punjab and Haryana High Court was considering the court marriage checklist provided by the Government of Haryana. Two of its provisions were in contention – one being the oublication of the notice in a newspaper and second being the notice being sent to the parents of the couple. The Court held these two provisions to be in violation of the fundamental right to privacy. The petitioner noted that these cases dealt with the legality of sending notices to the parties but did not particularly deal with the constitutionality of Section 6 of SMA.

 

Discrimination

Section 6(2) and (3) provides for publishing the notice of intended marriage. However, the petitioner pointed out that these provisions are absent from the Hindu Marriage Act, 1955 and customary laws in Islam. Hence, this violates Article 14 and 15 of the Constitution as it is in violation of the right to equality and also constitutes a form of discrimination. The format of the notice as provided under Schedule-2 of the Act requires personal information such as a full address, age, and marital status to be published.

 

The Petitioner relied on multiple sources to present to the Court the harassment and crime meted to inter-caste and inter-faith marriages in India. Provisions of publicising the intent of couples to marry raise their chances of being targeted. The petitioner also annexed a circular issued by the Government of Kerala dated 24 July 2020 prohibiting the practice of uploading the ‘notices of intended marriage’ on the website of the Registration Department under the Act. The government had cited its misuse by communal groups to spread hatred as a reason for its decision.

 

Personal Autonomy and Dignified Life

The petitioner stated that the 30 days mandatory notice required under Section 30 and Section 6(2) requiring the same to be published impedes the right of the couples to get married. The impugned provisions force the couples to waive their right to dignity and privacy to marry. She referred to the Supreme Court’s decisions in Shakti Vahini v Union of India (2018) and Shafin Jahan v Ashokan K.M. (2018). In the said judgments the Court had upheld that the right of two adults to get married is recognized under Article 19 and 21 of the Constitution. The petitioner also cited the consultation paper of the Law Commission of India titled “Reform of Family Law” dated 31 August 2020 which recommended removing the provision mandating publicising the notice for 30 days under the SMA as it discouraged inter-caste and inter-religious marriages.

 

The petitioner stated that if the purpose of the State is to ensure that the conditions under Section 4 of SMA are fulfilled, the same can be done through Section 11. The said provision requires three parties to sign a declaration that the intended marriage would not violate any of the provisions of Section 4. Hence there is no need to exercise the impugned provisions.