Making marriage a public affair

The Special Marriage Act was enacted in 1954 to solemnise marriages between individuals who either do not want to or who cannot solemnise their marriage under personal laws. Although intended to offer a secular alternative and liberate individuals from the traditional compliances of marriage, certain provisions and requirements of the Act quash the very freedom and liberty envisaged under it.

The legislation obligates the publishing of personal information of the parties to the proposed marriage in a conspicuous place for a notice period of 30 days, during which period any person is vested with the authority to object to the solemnisation of their marriage. Compliance with this procedure is mandatory, irrespective of whether the couple wishes to publicise their union and personal information.

The personal details of the parties in the notice open for public scrutiny include their names, contact details, dates of birth, ages, photographs, parents’ details, addresses and pin codes, occupations and identity information. Such public divulgence of the matrimonial plans of two consulting adults jeopardises their safety and may even imperil the marriage itself. Publishing private details inescapably requires the couple to relinquish their privacy. This, arguably, has a chilling effect on dignity and adversely hampers the right to marry. Notably, these provisions are not stipulated for marriages solemnised under Hindu and Muslim personal laws. It is a harsh requirement of the Special Marriage Act (SMA) and imposes undue hassles for those who seek to marry under this legislation.

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Marriage is a private choice taken by two consenting adults and lies within the exclusive domain of the two individuals. By publicly disclosing this choice, the Act snatches marriage from the exclusive domain of the couple and compels a private decision to be the focus of public attention. The ‘30-day notice period and public invitation to object’ framework is prone to misuse and offers an opportunity to foil plans of inter-caste and inter-religion marriages.

In 2012, the 242nd Law Commission report proposed simplifying and expediting the procedure formulated under the Act. In 2018, the Law Commission of India observed that “the fact that secular laws such as the Special Marriage Act, 1954 also continue to suffer from lacunae suggests that even codified or religion-neutral laws offer no straightforward guarantee of justice… this procedural tediousness forces couples to adopt alternative measures of marrying in a religious place of worship or converting to another religion to marry”.

Significantly, a single-judge bench of the Allahabad HC noted in Jan 2021 that compulsory publication of such notices invades “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”. The court further held that it would be optional, and not mandatory, for the couple to furnish their intimate details which would subsequently be publicly notified.

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A recent petition filed before the Supreme Court challenging the constitutional validity of the impugned provisions of the Act and highlighted that the procedural regime that must be complied with for a marriage to be solemnised under the Act disproportionately infringes the right to privacy, the right to intimate decision-making, creates a deterrent effect on the exercise of an individual’s decisional autonomy, and renders the right to marry illusory. The plea noted that this prescription of the law serves as a stark deterrent to already vulnerable couples, such as sexual and gender minorities, individuals entering into inter-faith or inter-caste marriages, and individuals belonging to marginalised backgrounds, and also sought to make the Act applicable to all relationships, regardless of gender, sexual orientation and sexual identity.

Although the Act has been lauded as a model secular law for circumventing social and cultural proscriptions against marrying outside one’s caste or religion, it suffers from lacunae and does not entirely reflect the secular fabric of our Constitution. Presently, while people belonging to different religions are entitled to marry under the Act, the ‘open notice and public invitation to object’ regime curtails access to this right. Such requisition of public notice constitutes a flagrant intrusion into the right of privacy.

The insistence on the publication of private details and making the private decision of marriage open for public scrutiny is draconian. Omission of the public notice and open objection provisions of the Act would aid in avoiding interference and vilification. It is time to revisit and streamline the formalities under the Act to avoid undue harassment aimed at the couple.

(The writer is a lawyer)