Section 6, Special Marriage Act: Whether Constitutional, when examined through the prism of Privacy?

Profile of the Author: Dheerja is a 4th-year B.Com LL.B (Hons.) student of University Institute of Legal Studies, Panjab University, Chandigarh. She has a keen interest in the Constitution, Economics of Law, and Minority Rights.

Introduction

The ever-evolving democracy has embarked upon a journey in time and space. However, it is in deep waters when it comes to marriage. In a patriarchal country like India, marriage is governed by the norms of religion and defined by conventional traditions and culture. The prevailing marriage laws are The Hindu Marriage Act, 1955, The Indian Christian Marriage Act, 1872, The Muslim Law, and The Special Marriage Act, 1954. The preamble to the Constitution of India was fundamentally amended to add the term ‘Secular’ which highlights the underlying objective of equal freedom and respect for all religions. Ironically, the only secular act that administers marriage in India is The Special Marriage Act, 1954.

Background: A Conflict of Statutory Interpretation

The Special Marriage Act, 1954 [1] is significant legislation as it solemnises inter-religion and intra-religion marriages without the requisite of renouncing one's religion, as provided in other personal laws. Another substantial feature of the Act is that there is no obligation to perform any rituals, customs, or ceremonies to solemnise the marriage. The procedure to register the marriage under the Act involves the filing of a notice with the Marriage Registrar, expressing their intention to marry. The intended marriage notice is published under Section 6 of the Act and the marriage is solemnised on the expiration of 30 days from the publication of such notice if no objection is raised.

The Emanation of the Right to Privacy

Section 6 of the Act was enacted with a purpose to enable the Marriage Officer to inquire into the legality of marriage if an objection is raised, thus, ensuring it does not violate Section 4 of the Act.

In 2017, the landmark judgment of Justice K.S. Puttaswammy v. Union of India [5] held Right to Privacy as a fundamental right flowing from Article 21 of the Constitution. Based on the corollary to Doctrine of Eclipse, if any new fundamental right is established, all the laws should be examined anew. And, any law that fails the test of constitutionality is void, howsoever, commendable the motive of its framers as observed in Bombay v. Bombay Education Society.[6]

The Puttaswammy judgment observed ‘Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, and sexual orientation’.[7] It was observed by the court that the right to privacy protected the freedom to take intimate decisions with minimum interference from the State, thus, laid down the proportionality test. Any law that restricts the application of privacy should pass the threefold test that is legitimate state aim, proportionality, and procedural guarantees.

In the present case, the mandatory direction to publish the notice raises concerns about Privacy as Supreme Court in Shakti Vahini v. UOI [8] held that ‘When two adults marry out of their volition … they have the right to do so which is recognized under Articles 19 and 21 of the Constitution. Any kind of torture or torment or ill-treatment in the name of honour that tantamount to atrophy of choice of an individual.... is illegal and cannot be allowed a moment of existence’.[9] It further held that ‘The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into wedlock’.[10]

Section 6 requires the notice to be published at some conspicuous place in the office for the public to file objections against it. However, it is unconstitutional on two grounds. Firstly, if the section intended to prevent the violation of conditions specified in Section 4, then the Marriage Officer in case of suspicion could investigate the same with his team without public involvement. Secondly, sharing personal information in today’s digitised world is intrinsically dangerous in a country like India where there is no Data Protection Law. A public document and a document in the public domain are two distinct sides of the same coin. Interchanging the two, pose a great threat to the privacy of all citizens.

A similar concern was previously raised in the case of Pranav Kumar v. Govt of NCT Delhi [11] where the court held ‘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 due to parental and societal interference’.[12] The same was reaffirmed by the Punjab & Haryana High Court in A v. State of Haryana [13] and Rajasthan High Court in Kuldeep Singh v. State [14] that the procedure of affixing the notice at the residence of the parties is not warranted or authorised by law.

Conclusion

Considering the aforementioned cases and the Kerala government's decision, the Parliament should revisit the requirement of publication of intended marriage notices because the Puttaswammy judgment ‘imposes an obligation on the state to take all necessary measures to protect the privacy of an individual’. [15]

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FAQs

Q. What is the eligibility criteria applicable under the Special Marriage Act, 1954?

Ans. Intending parties must be Indian citizens, must not have a living spouse, must be capable of giving full and free consent, must satisfy the age limit under the Act and must not fall within the degree of prohibited relationships.

References

[1] It shall be further referred to as "The Act".

[2] Identity is hidden.

[3] Shiba Kurian, ‘To Harass Hindu-Muslim Couples, Right-Wing Activists Are Now Using Their Marriage Documents’ (The Wire 20 July 2020) <https://thewire.in/communalism/hindu-muslim-couples-love-jihad-rightwing-marriage-notice> accessed 30th July 2020.

[4] Ibid.

[5] Ashok Kini, ‘Inter-Religious Marriages: Following Complaints of Misuse, Kerala Govt Stops Publication of Notice of Marriage in Website’ (LiveLaw 25 July 2020) <https://www.livelaw.in/news-updates/notice-of-intended-marriage-under-special-marriage-act-not-to-be-uploaded-160485> accessed 30th July 2020.

[6] (2017) 10 SCC 1.

[7] (1955) 1 SCR 568: AIR 1954 SC 561.

[8] HT Correspondent, ‘Full text of Supreme Court’s judgment on Right to Privacy’ (Hindustan Time 24 Aug 2017) <https://www.hindustantimes.com/india-news/supreme-court-rules-privacy-is-fundamental-right-here-s-full-text-of-the-judgment/story-Wheiu7B8nbgbqtJYT1KzkO.html> accessed 30th July 2020.

[9] AIR 2018 SC 1601.

[10] Ashok KM, ‘Right to Choose Life Partner is a Fundamental Right, Consent of Family, Community, Clan is not necessary for Marriage between Two Adults: SC’ (27 March 2018) <https://www.livelaw.in/right-choose-life-partner-fundamental-right-consent-family-community-clan-not-necessary-marriage-two-adults-sc-read-judgment/> accessed 30th July 2020.

[11] Ibid.

[12] WP (C) No. 748 of 2009.

[13] Supra Note 5.

[14] CWP No. 15296 of 2018 (O&M).

[15] D.B. Civil Writ No. 17080 of 2017.

[16] Supra Note 6.