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Couples can choose to not publish 30-day notice under Special Marriage Act — Allahabad HC

The court was hearing a habeas corpus petition filed by one Abhishek Kumar Pandey alleging that his Muslim wife’s father is not allowing her to stay with him.

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New Delhi: The Allahabad High Court Tuesday held that a couple planning to marry under the Special Marriage Act 1954 can choose to not publish the 30-day notice, required under law, for invitation of objections before registering a marriage.

Justice Vivek Chaudhary observed that if provisions on publication of the notice are held as mandatory, then “they would invade in 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 1954 Act deals with inter-caste and inter-religious marriages, and allows people to get married without giving up their religion.

Section 5 of the Act requires couples intending to marry under the law to give a 30-day notice period to a marriage officer of the district in which at least one of the parties has resided in the last 30 days. The notice is supposed to be published under Section 6 of the Act.

During these 30 days, anyone can object to the marriage if it contravenes conditions such as age, capacity to consent, incest, etc. If there are no objections, the marriage can be solemnised at the end of the 30-day period, according to Section 7 of the Act.

The court has now said a couple while giving the 30-day notice under the law can request the marriage officer to publish or not publish it for inviting objections.

“In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the marriage officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnisation of the marriage,” it observed.

Justice Chaudhary, however, left it open for the marriage officer to verify the identification, age and valid consent of a couple while solemnising any marriage.


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‘Situation may become critical with UP ordinance’

The court was hearing a habeas corpus petition filed by one Abhishek Kumar Pandey, alleging that his wife’s father has stopped her from staying with him. His wife had converted to Hinduism from Islam to marry Pandey.

While the case was settled after the woman and her father accepted the marriage, the couple informed the court that they could not solemnise their wedding under the Special Marriage Act because of the 30-day notice period. They asserted that it was an invasion of their privacy and would have caused “unnecessary social pressure/interference in their free choice with regard to their marriage”.

According to Tuesday’s judgment, the lawyers for the petitioners had also told the court that the “situation may become more critical with notification of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, as the same prohibits conversion of religion by marriage to be unlawful”.

The UP ordinance makes a marriage void if (i) it is done for the sole purpose of unlawful conversion, or vice-versa, and (ii) the religious conversion was not done according to the procedure specified in the ordinance. The ordinance also prohibits conversion of religion through force, misrepresentation, undue influence, allurement, fraud or marriage.

The ordinance requires individuals seeking to convert to submit a 60-day advance declaration of the proposed religious conversion to a district magistrate.

Couples can choose to marry under the Special Marriage Act or under any of the personal laws. While they do not have to convert to marry under the Special Marriage Act, they need to convert to their partner’s religion to marry under personal laws.

The UP ordinance, however, lays several roadblocks for such a conversion, and interfaith couples have often cited that the 30-day notice period under the Special Marriage Act was an impediment to interfaith marriages.

The Delhi High Court is also hearing a petition challenging Sections 6 and 7 of the Special Marriage Act. This plea has asserted that the 30-day period “offers an opportunity to kin of the couple to discourage an inter-caste or an inter-religion marriage”.

Another petition challenging the constitutionality of provisions under the Special Marriage Act, including Sections 6 and 7, is pending with the Supreme Court. The petitioner has argued that these provisions violate Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex, place of birth) and 21 (right to life and personal liberty) of the Constitution of India.

Special Marriage Act versus personal laws

The Allahabad High Court has pointed out that marriages in India can be performed under personal laws, which do not require publication of any notice or calling of objections against a marriage.

The court then asserted that there was no reason for making procedure under the 1954 Act more “protective or obstructive” as compared to those under the personal laws.

“In view of the changed social circumstances and progress in laws…it would be cruel and unethical to force the present generation…to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day,” the court said.

It also ruled that individuals applying for marriage under the 1954 Act can demand publication of notice under the Act if “they would like to have more information about their counterparts”. This, it said, would not violate their fundamental rights since they would go for the procedure out of their own free will.


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4 COMMENTS

  1. Why is it still called Allahabad highcourt.

    Or Madras or Bombay court.

    Why the courts are mocking the process and not changing the to their roots.

    What makes them so special.

    Are they still serving their colonial masters or here to serve Indian public.

    This needs to be changed asap.

  2. One swallow doesn’t make a summer.

    Journalists should focus on data as their rhetoric and totally biased view is damaging their credibility.

    1) How many Muslims boys marry HINDU girls

    2) HOW MANY HINDU BOYS AND MUSLIM GIRLS GET MARRIED.

    3) How many conversion takes place from which religion to which religion.

    This data will establish whether a sustained effort is made by a particular community supported by religious beliefs of spreading their religion.

    Until then the words of journalists will just be their way of interpreting events.

  3. ohoooo so now the hindu defenders have their spies in govt offices to spy on love jihad couples who will scan the notices. so to avoid that now that provision is also removed. Great.

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