Public notice for interfaith marriage not a must: HC
The order is not directly linked to the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which outlaws conversion by allurement, fraud, coercion or marriage.
Public display of notices to invite objections to an interfaith marriage is not mandatory under the 1954 Special Marriage Act (SMA), the Lucknow bench of the Allahabad high court said on Wednesday, arguing that the contentious provision violates the rights to liberty and privacy.
The order, passed by justice Vivek Chaudhury on Tuesday but made public on Wednesday, came on a petition by an interfaith couple who said the provision, under which notices are displayed at marriage offices and sometimes even sent to the houses of the applicants 30 days prior to the scheduled date, prompted social pressure in their “free choice” of marriage.
“This court mandates that while giving notice under Section 5 of the (Special Marriage) 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,” the judge said in his 47-page order.
“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,” he added.
SMA, which allows solemnisation of marriages by way of registration without religious customs, regulates interfaith marriages in India.
The order is not directly linked to the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which outlaws conversion by allurement, fraud, coercion or marriage.
But it comes amid a swirling debate over the new law that has provisions — such as 60-day advance notice before a planned conversion and police inquiries — similar to the SMA, and a controversy over “love jihad”, a term used by right-wing groups to desribe relationships between Hindu women and Muslim men. The couple’s lawyers also told the high court that the situation was “more critical” for interfaith couples after the new ordinance was notified.
Two other petitions challenging the controversial public-notice provision, which activists say puts hurdles in the way of interfaith couples and encourages vigilantes to scuttle such unions, are pending before the Delhi high court and the Supreme Court.
As the case was related to protection of fundamental rights of many people, the court ordered a copy of the verdict be sent to the chief secretary of Uttar Pradesh and asked him to communicate the same to all marriage officers and other authorities.
“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 recognised by the courts of the day,” the order read.
The court was hearing a habeas corpus (have the body) petition by a Hindu man who claimed that his wife, who converted from Islam to Hinduism to marry him, was being stopped from living with him by her father. During the course of the hearing, the couple told the court that they could have solemnised their union under SMA but for the public notice provision.
“They expressed that any such 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.They further stated that such a challenge was being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice,” the order read.
The court relied on previous apex court judgments, including the 2018 decriminalisation of homosexuality and the 2017 right to privacy verdicts, and also noted that no provision of public notices existed under personal religious 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 fundamental rights,” the order read.
SMA mandates an elaborate process to register a marriage. First, one of the parties has to give a notice to the marriage officer of the district where at least one of the parties has resided for at least 30 days.
This notice, which includes details such as names, date of birth, age, occupation, parents’ name, address, and phone number, is then entered in the marriage notice book and the officer puts it up in the office.
Anybody can then raise objections on various grounds. If no objection is raised within 30 days, then the marriage can be solemnised. If objections are raised, then the officer has to inquire into the objections, and can then decide whether to solemnise the union.
The high court sharply criticised this public notice provision. “In case the same...are held mandatory...they would invade in the fundamental rights of liberty and privacy, including ...freedom to choose for marriage without interference from state and non-state actors,” the judge held.
The order mentioned that if an interfaith couple “by their free choice” wanted to get more information about their potential partner, they could opt for publication of the notice. The court also said the marriage officer was free to verify the identification, age and valid consent of the parties. “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,” the judgment read.
Activists welcomed the judgment. “The 30-day public notice provision is feared by most interfaith couples because it triggers vigilantes. Making it optional will remove a major hurdle in registering interfaith unions. But it has to be implemented quickly,” said Asif Iqbal, founder of the non-governmental organisation Dhanak that works with interfaith couples.
State president of All India Democratic Women’s Association (AIDWA), Madhu Garg, said the public notices had led to hate crimes in the past, and making it optional would make people feel safe.
Legal experts said the contentious provision was an intrusion on an individual’s right to privacy. “Any adult has a right to marry without interference in his privacy. This judgment has upheld this fundamental value. It is a well researched judgment,” said Desh Ratna Sinha, advocate, Lucknow high court.
