Unconstitutionality Of Publishing Of Marriage Notices Under Special Marriage Act

Ashok Kini

26 July 2020 3:22 PM IST

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Unconstitutionality Of Publishing Of Marriage Notices Under Special Marriage Act

Following complaints of misuse of personal information contained in 'Marriage Notices' published in the Registration Department's website, the Kerala Government has issued a circular to stop the practice of uploading scanned copies of 'notices of intended marriage' submitted to the Sub Registrar Offices. Though this solved a part of the problem, the larger part still remains unaddressed. The uploading of notices made access to private information easier for the 'communal groups' to misuse it. But the prevailing law does not stop them from coming to Registration Offices and taking a photo of the marriage notices which are published there and sharing them in Social Media.

The 'notice of intended marriage' is submitted before the Marriage Officer by the applicants and the same contains very personal details like their name, address, age, occupation, photos and signatures. The Marriage Officer is then mandated by Section 6 of the Special Marriage Act to keep all such notices with the records of his office and to forthwith enter a true copy of every such notice in the Marriage Notice Book. This book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same. The Marriage office is also required by the Act to cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office. If one of the party is not permanently residing within the local limits of the district of the Marriage Officer, he shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

Thus, if the uploading of marriage notices violated the privacy of the applicants, will it not be violated when the same is published in an office open to the public? This piece ventures to address the said issue, by examining whether the mandatory requirement of publication of the intended marriage under Section 6 of the Special Marriage Act, 1954, violates Fundamental Rights, including Right to Privacy of the couple who opt inter religious marriages. It is quite surprising to learn that the Constitutional Validity of this provision of the 1954 Act has not yet been challenged by anyone till now.

Publication of Notice Of Intended Marriage

Section 6 of the Act is reproduced in its entirety below for easy reference:

6. Marriage Notice Book and publication.—
(1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.
(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.
(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

The intention of legislature behind the enactment of this provision seems to be to enable the Marriage Officer to conduct an enquiry whether the marriage intended to be solemnized violates Section 4 of the Act. The conditions of a valid marriage are (a) neither party has a spouse living; (b) neither party—(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or(iii) has been subject to recurrent attacks of insanity. (c) the male has completed the age of twenty-one years and the female the age of eighteen years; (d) the parties are not within the degrees of prohibited relationship. It is interesting to note that the Marriage Officer needs to conduct an inquiry in this regard only if he receives any objection within thirty days. Objections raised to a marriage on any other ground other than the above mentioned ones are not relevant.The lack of consent of parents or relatives cannot be a ground to object a marriage under the Special Marriage Act.

Discriminates against Inter Faith Couples

It is significant to note that Hindu Marriage Act and other personal laws dealing with solemnization of marriages do not have the requirement like the above. To illustrate, a Hindu couple, can solemnize their marriage without any notice to any authority or public and get it registered later. So is the case with other personal laws. But for inter-religious marriages, law has created this hurdle in the form of notices and publication of it. This is clear violation of the equality doctrine enshrined in Article 14 of the Constitution of India which ordains the State not to deny to any person equality before the law or the equal protection of the laws. By no stretch of imagination, it can be said that the classification of individuals into inter faith couples and same faith couples and applying different yardstick to solemnize their marriages, is legitimate or reasonable. The religion has little to do when it comes to choice of an individual to choose his life partner.

Violation of Privacy

One of the significant observations of Justice DY Chandrachud in Privacy judgment needs to be noted before we enter into this discussion. According to him, Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. Therefore, the first question that is to be dealt with is whether the state is committing an intrusion upon the life and personal liberty of a citizen when it mandates the Marriage Officers to publish the very private details submitted by individuals?

The Supreme Court in Shakti Vahini vs. Union of India has unambiguously held that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Further in Hadiya case [Shafin Jahan vs. Asokan KM], the Court observed: "The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. 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. They form the essence of personal liberty under the Constitution. ... Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences."

When an interfaith couple submits an application before the Marriage Officer, they expect him to respect their choice, of course subject to fulfillment of conditions laid down in the Act by them. The law then requires the Marriage Officer to publish the notices at some conspicuous place in his office for public to file objections against it. If the object of such a requirement is to ascertain the fulfillment of conditions, then there was no need to involve public in the process. It would have been sufficient to empower the Marriage Officer to conduct inquiries in this regard himself or through his staffs, in case he doubts that either party does not meet the requirements of Section 4. But instead, he is forced by the 1954 Act to make public the personal details of the applicants published. Another irony in the scheme of the Act is that, if no one objects to the Marriage, the Marriage Officer is not required by the Act to conduct an enquiry in that regard.

Parliament Should Review

Especially after the Privacy judgment of 2017, the Parliament should have reviewed this requirement of publication of marriage notices. The judgment had made it clear that the right to privacy also imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. But it is too much to expect a 'suo motu' review by the Legislators. It is saddening to realize that the publication of the marriage notices in websites started in Kerala much after the Privacy judgment was delivered by the nine judge bench. But it is heartening to note that they have corrected the mistake when it was pointed out. Now it is the Central Government who should take the initiative to review the unconstitutional requirement in the 1954 Act which facilitates violation of right to privacy of individuals.

Unwarranted Disclosure of Matrimonial Plans

Justice S. Ravindra Bhat, when he was a Delhi High Court judge, made a significant observation on this issue in his judgment delivered in 2009 [Pranav Kumar Mishra vs. Govt. Of NCT. Of Delhi]. While striking down the practice of posting the notice of intended marriage under the Special Marriages Act at the residential addresses of both parties to the marriage as also through the Station House officer (S.H.O.) of the police station of concerned jurisdiction for the purpose of verification of address, the judge observed: "It is to be kept in mind the that the Special Marriage Act was enacted to enable a special form of marriage for any Indian national, professing different faiths, or desiring a civil form of marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In certain instances, it may even endanger the life or limb of one at the other party due to parental interference."

The observations made by the judge about the 'unwarranted disclosure of matrimonial plans' is more significant in the times we live in. Now it is not just parental interference, but also societal interference. The advent of social media has taken the scope of interference to another level altogether. Perhaps because there was no challenge made to Section 6 and also because this judgment was delivered much before the Privacy judgment, the judge did not consider the Constitutionality of the provision which, according to me, does the exact vice of 'unwarranted disclosure of Matrimonial Plans'.

To conclude, I strongly believe that Section 6 of the Special Marriage Act, 1954, is unconstitutional and violates Fundamental Right to Privacy under Article 21 of the Constitution of the couples who opts for inter religious marriages in so far as it requires Marriage Officers to publish copy of notices submitted to them by the applicants. It also violates Article 14 when it discriminates against the inter-faith couples in the exercise of their right to choose their life partners.

(Views are personal)

Unconstitutionality Of Publishing Of Marriage Notices Under Special Marriage Act

Ashok Kini

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