The Lucknow Bench of Allahabad High Court, in the case of Smt. Safiya Pandey & Anr vs State of U.P. Thru. Secy. Home, Lko. & Ors. has held unequivocally that requirement of publication of notice of intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act is not mandatory. Justice Vivek Chaudhary who authored this 47-page judgment (which is substantiated by the reports of Law Commission of India, latest Apex Court rulings among others), held that making such publication mandatory would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.
“While giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954."
Justice Vivek added 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 solemnization of the marriage.
Factual Background
A habeas corpus petition was filed by Abhishek Kumar Pandey, claiming that his wife Safiya Sultana, who had changed her religion to become a Hindu and renamed as Simran, married him as per Hindu rites and that her father was keeping her (adult girl) in illegal detention against her wishes and prayed that she should be put at liberty.
The Court directed for the presence of the detenue and her father. They both appeared in person, wherein, the Petitioner no.1 accepted the averments aforesaid and had shown her desire to live with her husband. The father also fairly accepted that since she is an adult, has married with her choice and wanted to live with her husband, he also accepts her decision and wished both of them best for their future.
Plea of the Couple against 30 days notice period- Petitioner’s case
The Court noted that this matter could have come to an end but, while interacting with the Court on their personal appearance, the young couple expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the said Act requires a 30 days notice to be published and objections to be invited from the public at large and such a notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage.
They further stated that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice. Learned counsel for petitioners also stated that the situation may become more critical with notification of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, as the same prohibits conversion of religion by marriage to be unlawful.
It was further argued that looking into the changing pattern of the society, amendments made to the Special Marriage Act, 1954 as well as the law declared by the Supreme Court in the last around a decade with regard to privacy, liberty and freedom of choice of a person, provisions of Special Marriage Act, 1954, directing publication of a notice before marriage and inviting public objections, require a revisit to understand whether now with the said change they are to be treated as mandatory or directory in nature.
Reasoning and Decision of the Court
Making a reference to the Supreme Court decision in Shakti Vahini vs. Union of India and others [(2018) 7 SCC 192], the reiterated relevant paragraph which read as follows:
““44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the constitutional courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement.””
The Court looked into the provisions of Sections 4, 5, 6, 7, 8 and 42 of Special Marriage Act, 1954 along with reports of the Law Commission, the first report which was discussed was the 59th report (1974) which, while proposing amendments in the Act of 1954 as well as in the Hindu Marriage Act, 1955, stated:
“1.11: The object of law, whether personal or public, must be to sustain the stability of the society and help its progress: - The structure of any society, which wants to be strong, homogeneous and progressive, must, no doubt, be steady but not static; stable but not stationary.”
“1.16: It may sound platitudinous but is nevertheless true that revision of laws is a ‘must’ in a dynamic society like ours which is engaged on the adventure of creating a new social order founded on faith in the value-system of socio-economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions, and customs and beliefs of the people change. These, in turn, demand changes in the structure of law; every progressive society must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value-system accepted by the community, there should not be an unduly long gap. Ranade often said that the story of social reform, which involves reform in personal law, is an unending story; it continues from generation to generation. Each generation contributes to the continuance of the effort of social reform; but the effort is never concluded and the end is never reached in the sense that no further attempt to reform is required. It is in that sense that we believe that the revision of personal laws, and indeed, of all laws, has to be undertaken by modern societies. These thoughts have been present in our mind when we embarked upon the present inquiry”
“1.20: In any civilised and progressive society, marriage is an institution of great importance. It is the centre of a family which in turn, is a significant unit of the social structure. Children who are born of marriage, also contribute to the stability of the institution of marriage.””
“Concluding the said report, the Law Commission proposed Marriage Laws (Amendment) Bill of 1974 suggesting amendments in the Act of 1954 as well as in the Hindu Marriage Act, 1955. The Act of 1954 was duly amended in the year 1976.”
Again the Law Commission again submitted a report No. 212, in the year 2008, titled “Laws of Civil Marriages in India – A Proposal to Resolve Certain Conflicts”. After taking into consideration the changes in the social norms as well as in law, the Law Commission made seven recommendations with regard to Act of 1954:
“1. The word “Special” be dropped from the title of the Special Marriage Act 1954 and it be simply called “The Marriage Act 1954” or “The Marriage and Divorce Act 1954.” The suggested change will create a desirable feeling that this is the general law of India on marriage and divorce and that there is nothing “special” about a marriage solemnized under its provisions. It is in fact marriages solemnized under the community-specific laws which should be regarded as “special.”
2. A provision be added to the application clause in the Special Marriage Act 1954 that all inter-religious marriages except those within the Hindu, Buddhist, Sikh and Jain communities, whether solemnized or registered under this Act or not shall be governed by this Act.
3. The definition of “degrees of prohibited relationship” given in Section 2 (b) in the Special Marriage Act 1954 and the First Schedule detailing such degrees appended to the Act be omitted. Instead, it should be provided in Section 4 of the Act that prohibited degrees in marriage in any case of an intended civil marriage shall be regulated by the marriage law (or laws) otherwise applicable to the parties.
4. The requirement of a gazette notification for recognition of custom relating to prohibited degrees in marriage found in the Explanation to Section 4 of the Special Marriage Act 1954 be deleted.”
Next, the Law Commission submitted report No. 242, in the year 2012, titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” stated:
“4.1 The autonomy of every person in matters concerning oneself – a free and willing creator of one’s own choices and decisions, is now central to all thinking on community order and organization. Needless to emphasize that such autonomy with its manifold dimensions is a constitutionally protected value and is central to an open society and civilized order. Duly secured individual autonomy, exercised on informed understanding of the values integral to one’s well being is deeply connected to a free social order. Coercion against individual autonomy will then become least necessary.
4.2 In moments and periods of social transition, the tensions between individual freedom and past social practices become focal points of the community’s ability to contemplate and provide for least hurting or painful solutions. The wisdom or wrongness of certain community perspectives and practices, their intrinsic impact on liberty, autonomy and self-worth, as well as the parents’ concern over impulsive and unreflective choices – all these factors come to the fore-front of consideration.””
“It recommended to simplify the procedure under the Special Marriage Act. It says:
“9: it is desirable that the procedure under the Special Marriage Act is simplified. The time gap between the date of giving notice of marriage and the registration should be removed and the entire process of registration of marriage should be expedited. The domicile restriction should also be removed. We are aware, that already an amendment is proposed to the Special Marriage Act by the Government of India by introducing a Bill in the Parliament. It is, therefore not necessary to make a detailed study and give specific recommendation on this aspect.”
Observations w.r.t. law laid down by the Judiciary on this issue and other allied issues
The law as declared by the Supreme Court, since the case of Lata Singh vs. State of U.P. and another, (2006) 5 SCC 475 till the decision in Navtej Singh Johar and others Vs. Union of India, (2018) 10 SCC 1, has travelled a long distance defining fundamental rights of personal liberty and of privacy.
“once a person becomes a major he or she can marry whosoever he/she likes” (Lata Singh);
“an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage”(Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23-1-2014 in Re, (2014) 4 SCC 786);
“choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19” (Asha Ranjan vs. State of Bihar, (2017) 4 SCC 397);
“the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution”(Shakti Vahini Vs. Union of India and others, (2018) 7 SCC 192);
“Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters….. Social approval for intimate personal decisions is not the basis for recognising them.”(Shafin Jahan Vs. Asokan K.M. and others, (2018) 16 SCC 368); and
finally the nine-judges bench “Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination…….privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right. (Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others, (2017) 10 SCC 1) is a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society.”
Stating that it is cruel and unethical to force the present generation to live according to age old customs, the Court noted:
“In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, it would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day. In view of law settled in Satyawati Sharma vs. Union of India, (2008) 5 SCC 287 and Kashmir Singh vs. Union of India, (2008) 7 SCC 259 as stated above, it is the duty of this court to revisit the interpretation of the procedure under challenge as provided in the Act of 1954.”
Interpretation of Sections 6 and 7 read with Section 46, SMA
“The interpretation of Sections 6 and 7 read with Section 46 containing 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. In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned. Further, note should also be taken of the fact that marriages in India can be performed either under the personal laws or under the Act of 1954. In fact, even today, majority of marriages are performed under the personal laws.
These marriages under personal laws are performed by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage. The individuals intending to marry approach the priest who performs the marriage as per the customs and rituals of the said religion. Their orally saying that they are competent to marry is regarded sufficient for solemnizing marriage under the personal laws. In case any party violates any condition of the said personal law(…) But, the marriage takes place without any interference from any corner, even if it is later to be declared void.
However, under Sections 6 and 7 of Act of 1954 the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of Act of 1954. None of the conditions under Section 4 of Act of 1954 is such, violation of which would impact rights of any person in any manner different than the same would in case of a marriage under any personal law.
Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws. There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage.”
It was further stated:
“However, in case, such individuals applying to solemnize their marriage under the Act of 1954 themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.”
Held
The Court mandated that:
“while giving notice under Section 5 of the Act of 1954 it shall 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 follow the procedure of objections as prescribed under the Act of 1954.
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 solemnization of the marriage.
It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. 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.”
“Since the matter relates to protection of fundamental rights of large number of persons, the Senior Registrar of this Court shall ensure that a copy of this order is communicated to the Chief Secretary of the State of U.P. who shall forthwith communicate the same to all the Marriage Officers of the State and other concerned authorities as expeditiously as possible.” Finally, it is then held in last para 49 that, “With the aforesaid, the present writ petition stands disposed of.”
Case Details
Case: Smt. Safiya Pandey & Anr vs State of U.P. Thru. Secy. Home, Lko. & Ors.
Case No.: HABEAS CORPUS No. – 16907 of 2020
Date of Decision: 12.01.2021
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