Interestingly, the Supreme Court had refused to entertain a PIL challenging the provisions of the Special Marriage Act requiring publication of couples’ details 30 days before the intended marriage in public domain.
The Supreme Court stated that laws like the Special Marriage Act, which require public notice and invite objections to intended marriages, were established during a time when women lacked agency and are patriarchal in nature, enabling invasion of privacy. This observation was made by a Constitution Bench led by Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli, while hearing petitions seeking legal recognition of same-sex marriage.
The bench specifically discussed Sections 5, 6, and 7 of the Special Marriage Act, which mandate marriage officers to display public notice containing personal details of the couple, such as names, phone numbers, date of birth, age, occupation, addresses, and other identifying information, in a conspicuous place or on the notice board in their office 30 days prior to the marriage, to allow for objections.
Senior Advocate Abhishek Manu Singhvi, representing the petitioners, argued that such provisions do not exist in personal laws of various religions, and that the 30-day notice period inviting objections directly violates the fundamental rights of the petitioners.
“Before a formal entry into marriage you are invading my privacy saying that I have to declare my intention to marry to the world. This notice and objection aspect is the violation of my personal, decisional autonomy … [it is] a relic of the Raj”, Singhvi stressed.
Justice Bhat then opined,
“This is only based on patriarchy. These laws were made when women did not have an agency.“
The CJI weighed in stating,
“This is like laying them open for invasion by the society including the Superintendent of Police, the District Magistrate etc.“
Singhvi agreed and stated that it should be invalidated, as it is entirely disproportionate, discriminatory, and violates the right to privacy.
During the hearing, Senior Advocate Raju Ramachandran, also representing the petitioners, argued that if the right to marry is recognized under Article 21 (protection of life and personal liberty), such notices cannot be upheld. He further stated that they should be struck down as they are “obnoxious” and “retrograde”.
The Chief Justice of India (CJI) expressed an opinion that if the purpose of the notices was solely to prevent void marriages, it might be the least restrictive method. However, he clarified that it should still be struck down.
“There is a very real likelihood that this section will disproportionately impact if one member is from a marginalized or minority community and this it impacts one of the most vulnerable sections of our society. Regarding the protocol we have to be careful that we dont empower these officers to possess personal and private information of these individuals but we have to see that they are protected, yes.“
The hearing is currently underway.
It is noteworthy that the Supreme Court had declined a Public Interest Litigation (PIL) challenging the requirement of publishing details of couples 30 days before their intended marriage in the public domain, as per the provisions of the Special Marriage Act, in August 2022.
In February of the current year, the Kerala High Court expressed the opinion that the legislature should reconsider the necessity of such provisions in today’s times.
In the previous year, the Delhi High Court had observed that when two consenting adults decide to live together as a married couple, nobody, including their family members, is entitled to interfere.
Source: https://www.barandbench.com/news/litigation/notice-inviting-objections-under-special-marriage-act-patriarchal-enables-invasion-of-privacy-by-authorities-supreme-court
