Prior Notice Under Special Marriages Act

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Prior Notice under the Special Marriages Act

• The Special Marriage Act, 1954 deals with inter-caste and inter-faith marriages. 
• In India, all marriages can be registered either under their respective personal laws (Hindu Marriage Act, 1955/Muslim Marriage Act, 1954) or under the Special Marriage Act,1954. 
• A marriage under the Special Marriage Act enables people from two distinct religious backgrounds to unite in the marriage bond. 
• The Special Marriage Act does not demand rites or ceremonies. Rather it is a civil contract. 
• Both the parties signing the contract have to file a notice of intended marriage to the Marriage Registrar of the district.
• The provisions of the act made it mandatory for couples to publish a 30-day public notice of their intent to marry 
• Under section 5 of the act, a couple must give 30 days notice to the district marriage officer indicating their intent to marry. 
• Under section 6, a notice giving details of the couple is made public to invite/entertain objections to the marriage under section 7 of the act. 

Procedure of Marriage under the Act:

• Unlike personal laws, the Special Marriage Act’s applicability extends to all Indian citizens regardless of their religion.
• Even if both the concerned parties belong to the same religion, they may choose to register the marriage under this Act.
• Under this Act, the fundamental requirement for a valid marriage is the consent of both parties to the marriage. 
• If both parties to the marriage are willing to marry each other, that’s enough; caste, religion, race, etc. can’t act as a barrier to their union here.
• For this special form of marriage, the conditions that must be followed are not very different from the requirements of other normal marriages that happen within the caste.

Procedure for the marriage under the act is as follows:

• Eligibility Check: All the given eligibility criteria should meet before applying for the Special Marriage Act
• Reach out to the concerned Marriage Officer:  The parties must file with the district’s Marriage Registrar a notice stating their intention to marry each other. At least one of the parties to the marriage must have lived for at least 30 days prior to the date on which such notice is filed.
• Public Notice and Objections: Once such an application has been received by the marriage officer, duly signed by both parties, the officer shall then issue a 30-day public notice to raise objections to the intended marriage if any. The objections generally relate to non-compliance with the conditions referred to in Section 4 of the Act.
• Solemnization and registration: If the conditions are duly met and no such objections are raised, a marriage certificate should be entered in the Marriage Certificate Book. Here, both the intending parties and the 3 witnesses are required to sign.

Problems due to Prior Notice:

• Marriages in India are mostly conducted according to strict endogamy and communitarian identities. 
• In theory, a secular state had envisioned the Special Marriage Act, 1954, as a means to clear a space for Indian citizens to marry outside the boundaries of religious and caste identity. 
• Thus, it provided support for refashioning of identity in a society.
• Publishing a 30-day public notice of their intent to marry often exposes couple to vigilante and familial violence
• As a result, many preferred to convert and marry under personal laws, rather than expose themselves to harassment. 
• The judgment assumes significance in the backdrop of Uttar Pradesh bringing the Prohibition of Unlawful Religious Conversion Ordinance, 2020 that criminalises forced religious conversions.  It makes religious conversion for marriage a crime. 
• It has a more strict version of public notice provision. It demands a 60-day notice to the district magistrate and a police inquiry to ascertain the real intention behind conversion.
• 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, vigilante groups who are opposed to interfaith marriages were alerted by such notices that were made mandatory by the Special Marriage Act.
• The public notice ended up giving vigilante groups, families hostile to interfaith and inter-caste unions, and the social prejudice of legal bureaucracy disproportionate powers to police young couples.
• The Law Commission of India report in 2012 had recommended the abolition of public notice Under the act to keep a check on the high-handed and unwarranted interference by caste assemblies in sagotra, inter-caste. or inter-religious marriages.

Allahabad HC Ruling and its importance:

The single-judge bench of Allahabad High Court  was considering a habeas corpus plea by an interfaith couple where the woman was being stopped from marrying her partner by her family.

The ruling of the court has held that:

• It is not mandatory to publish a public notice of intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act.
• Making such a notice public can be done only if the couple permit the marriage officer to do so in writing.

The court observed that making such publication mandatory would invade:

• The fundamental rights of liberty and privacy of the person involved
• The freedom to choose for marriage without interference from state and non-state actors.

Importance of this ruling can be summarized as follows:

• Even today, inter-faith unions make up a minuscule minority of marriages.
• The HC judgment reaffirms the first principles that accord constitutional protection to this minority 
• It pushes back against societal and state meddling in personal affairs.
• The Allahabad High Court judgment is a reminder and a warning that the constitution remains the bulwark against an overreaching state.