'Based On Patriarchy, Exposes Couples To Invasion' : Supreme Court Questions Special Marriage Act Provisions On Notice Inviting Objections

In the marriage equality case before the Supreme Court, some petitioners have challenged the provisions of the Special Marriage Act 1954 which require parties intending marriage to give advance notice of 30 days, which will be published in the Registrar's office inviting public objections. Petitioners seeking recognition for same-sex marriage challenge these provisions as violative of fundamental rights to privacy and decisional autonomy and contend that the 'notice and objections' regime expose couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.

The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha expressed agreement with the concerns raised by the petitioners.

Senior Advocate Dr Abhishek Manu Singhvi, appearing in the writ petition filed by Utkarsh Saxena and Ananya Kotia, pointed out that couples opting to get married under the Hindu Marriage Act or personal laws are not mandated to give advance notice to the public. However, the Special Marriage Act, which is a secular law, and which is intended to benefit inter-faith couples, has such provisions. "Which married couple in the heterosexual world has to announce first to the world that we intend to marry? Why should I? It's my personal decisional autonomy. It's the heart of my privacy to decide with whom I associate when, how, after how much time into matrimonial union- be it of the same sex or the opposite sex", he submitted.

Justice Ravindra Bhat at this point said that these provisions are "based on patriarchy". "It was created at a time when women didn't have agency", Justice Bhat added.

"This is an invitation to disaster and violence", Singhvi asserted.

"And the object was to protect! You're virtually laying them open to invasion by society..by Collectors, District Magistrates,Superintendent of Police", CJI DY Chandrachud stated.

Senior Advocate Raju Ramachandran, appearing for lesbian couple Kajal and Bhawna, also questioned the rationale behind these provisions of the Special Marriage Act. He pointed out that these provisions are indeed a relic of the British legislations intended to prevent "clandestine marriages" and wondered how can they be placed in a protective legislation.

"If the effect of these provisions is to deter your right to get married at a time when you desire to, it can't be regarded as procedural because the impact is on your substantive right to get married at the time you choose", CJI Chandrachud orally remarked. CJI also observed that the provisions may not meet the test of proportionality, even if they are regarded as a measure to check if the couples are meeting the conditions of marriage, as there are other less restrictive means.

"This notice requirement amounts to requirement of giving a notice to exercise my fundamental rights. This 30 day notice is designed for parental bodies and other busy bodies to create roadblocks", Ramachandran argued.

"There is a very real likelihood that this will disproportionately affect situations in which one of the spouses either belongs to a marginalized community. This has a disproportionate impact on most vulnerable of society", CJI opined.

"This would be equally true for heterosexual couples too", Justice Hima Kohli weighed in.

"Yes, it should be struck down for all. It's a retrograde provision. And it's obnoxious", Ramachandran asserted.

In 2021, the Allahabad High Court had declared that these provisions of the Special Marriage Act are not mandatory as the mandate for advance notice violate right to privacy.