By: Shebin Saji
The special marriage act, 1954 was enacted to ensure registration of special marriages for a special class of people. It has helped a lot of couples to get in a nuptial knot which otherwise would not have been possible. The provision of the act makes it mandatory for the couples to get their marriage notified. This notice is then put in public domain so that an objection can be raised as to why the marriage need not be solemnized. The publication of notices can be accessed by anyone without paying any fee leading to the breach of privacy of the couples and their families. This article focuses on gross violation of the right to privacy by publishing notices mandatorily required under the act and the dilemma that the court would face in severing this mandatory requirement.
The Special Marriage Act, 1954 (hereinafter referred to as act) was enacted to ensure registration of certain marriages especially that of inter-faith and inter-caste couples. The act has been a boon to those couples willing to get into the bond of holy matrimony but couldn’t due to societal norms and customs. Section 6 of the act requires for the publishing of a notice in the marriage notice book and affixing it in some conspicuous place of the marriage officer’s office. The information furnished under this section can be accessed by anyone leading to serious concern about the privacy of couples intending to get married under this act.
Recently provisions of the act have been challenged in the Hon’ble Supreme Court of India on grounds of being violative of Articles 14, 19 and 21 of the Constitution of India. Even the Kerala government ceased to upload notices when it came to know that notices have made the round on social media causing massive unrest in the life of an inter-faith couple and their families. This article focuses on gross violation of the right to privacy by publishing notices mandatorily required under the act and the dilemma that the court would face in severing this mandatory requirement.
Section 5 makes the parties intending to get married to give notice as per the second schedule of the act to the marriage officer of their district. One of them is required to reside in such district for thirty days before handing over their notice. The notice period cannot be waived. The notice in the second schedule contains the details such as the name of the parties, their occupation, dwelling place, permanent residence address; if any and even length of residence.
All the notices under section 5 are a record which is put in the office of the Marriage Officer. As per Section 6, the notice received by the Marriage Office has to be entered in a register which shall be open to any person desirous of inspecting the same. Sub-section (2) and Sub-section (3) of Section 6 requires the Marriage Officer to cause every such notice to be published by affixing a copy thereof at some conspicuous place in his office. The purpose of publication of a notice is to allow any person to object the marriage if it is contravening any provisions of section 4.
Section 46 states that any marriage solemnized by contravening the provisions of this act including failure to publish notices can lead to the punishment of the marriage officer for imprisonment of one year or fine of Rs. 500 or both.
PROBLEMS ASSOCIATED WITH PUBLICATION OF NOTICES
The goal behind the publication of notices is to get any form of objection about the parties intending to get their marriage solemnized under this act. The objection can be that one of the parties is already married or the male is below 21 years of age or it can be any sort of objection stated under section 4. These objections if filed within the stipulated time then can lead to inquiry and save couples from a void or even voidable marriages.
It is mandatory to publish notices and violation of the same can lead to a penalty for the marriage officer. The notices can be accessed by anyone without any fee. The Kerala government took a step ahead to comply with this mandate and put out notices online. However, it led to the misuse of private information of the couples by right-wing activist and communal groups. They used it to spread their propaganda causing harassment to the couples. The information is in the public domain and is now used as a tool of bullying and torture to the inter-faith and inter-caste couples. This leads to an atmosphere of fear and reluctance in a certain class of couples to get their marriage registered thereby violating the noble objective of the act.
The right to privacy has been recognised as a fundamental right by a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd) and anr. v. Union of India and ors. Its breach is a serious issue. Under the current scenario, the breach causes danger of honour killing not only during the thirty days stipulated time of filing objections but even after solemnization of a marriage. This is a sheer violation of the right to life and freedom to get legally married.
Even if we ban uploading of notices online or affixing it in some conspicuous place that wouldn’t stop the bullying as people have easy access to marriage notice books.
In R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632, the court held that a citizen can safeguard the privacy of his own and marriage and nothing can be published in its regard without his consent.
The Delhi High Court in the case of Pranav Kumar Mishra & ors. v. Govt. of NCT of Delhi & ors., WP (c) No. 748/2009 stated that for sending notices to residential addresses in case of solemnization of the marriage, in terms of Sections 4 and 5, their dispatch can well amount to a breach of the right to privacy.
However, in Shashi vs. PIO, Sub Divisional Magistrate (Civil Lines), CIC/SA/A/2016/001556, it was ensured that wide reach of notices must be done and such notices must be uploaded to the website. At the same time protection, be given to the couples whose liberty would be threatened.
The Puttuswamy judgement specified that the sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals. After the judgement, the right to privacy has been given prominence over the mandatory publication of notices.
In Kuldeep Singh Meena v. State of Rajasthan, D.B. Civil Writs No. 17080/2017 and A & anr. v. State of Haryana, CWP No. 15296 of 2018 (O & M) which was filed in the Rajasthan High Court and the Punjab and Haryana High Court respectively, questioned the procedure of pasting and sending of the notice at the place of residence of the parties intending to get into a nuptial knot under the act. Both the courts directed to stop sending notices. Although the courts have promoted privacy over procedural norms but it does not provide a long-term solution as anyone can inspect in the office of the marriage officer and get hold of the notice and abuse it.
To conclude, the highest court of the land has given privacy as an inherent right to everyone in the year 2017 and directed to ensure that other laws align with it yet the provisions of the act seem to violate the same. The Apex Court will be in a dilemma while deciding the constitutionality of the provisions of the act as on one hand, it has to ensure publication of notices continues for fulfilling the conditions specified in section 4 and on the other hand it has to ensure the right to privacy. Thus, the court has to harmoniously interpret the laws and find a way to respect the privacy of couples and receive objection before any illegal marriage is performed under the act.