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Does The Special Marriage Act Have A Privacy Concern?

The Special Marriages Act,1954 is being challenged over privacy concerns through a writ petition, filed by a law student of Kerala. Marriage, as defined in sociological theorem, is “as a socially supported and sanctified union involving to the individual as partners in a personal relationship”.

The Special Marriages Act is a special Act, which lays down provisions for the marriage of individuals belonging to two different religions. Because every religion has their own marriage acts and persons of that religion are governed by their respective marriage acts. An individual who wishes to marry an individual of a different religion, their marriage is governed under the Special Marriage Act, 1954.

Representational image.

The petitioner Nandini Pravin, sought the direction of the Apex Court to quash some of the provisions of the Special Marriage Act, 1954. Nandini argued against Section 5, Chapter 1 of this Act for placing a notice to-be-wed couples in the public domain. Section 4 of the Act defines the pre-condition relating to solemnizing of special marriages, which include some clauses, which have to be fulfilled by the parties getting married, they are as follows:-

  • Neither party has a spouse living.
  • Incapable of giving valid consent, in consequences of unsoundness of mind,
  • The capability of giving valid consent.
  • Males must attain 21 years and above; females must attain the age of 18 and above.

Section 6 of the Special Marriages Act lays down that the marriage official shall put up a notice for the same and any person can put up objections within 30 days to the marriage officer.

Section 7 of the Act relates to objection to marriages any person may come to the marriage officer to object the marriage on the ground that contravenes one or more conditions specified in the section 4 chapter 1 of special marriage act.

This is a brief discussion about the Act to give the reader a holistic approach to understand the nuances of the condition. Now we will be looking into the privacy aspect and the concerns that are being raised.

Recently, the 9 Judges bench in KS Puttaswamy v. Union of India, ruled that privacy is to be protected as an intrinsic part of the right to life and personal liberty under Article 21 as a part of freedom guaranteed by Part 3 of the constitution. And it can be only taken away by the procedure established by law and it should be just, fair and reasonable.

There are several marriages act including the Hindu Marriage Act, Muslim Marriage Act, Christian Marriage Act, Parsi Marriage Act. In all the above marriage acts, there is sanctification that is being provided by the state as well as the society because they are the main stakeholders of marriage not just because they are involved into it but also because the legal rights and obligations that are being provided after the marriage are sanctified and other rights that are being intact to or after marriage.

For example, in Hindu marriage, there is a ritual called kanyadaan wherein the father of the female gives her daughter to the men and his family and the male counterpart take the baraat to the girl’s family. This process is done mainly to get the sanctification and validation from the community members as well as the society.

But when it comes to Special Marriages Act, nothing of that thing is been done and the information that is being raised under Section 5 to put up a notice is merely done to get the objections only under Section 4 of the special marriages act this provision, in my opinion, is truly in tune with the conventional and traditional credos of marriage.

Otherwise, there are several other options like cohabitation wherein not a single member of the society is going to question on the living status of the couple but when a marriage is taking place there is a necessary involvement of the community member as well as the society.

All that is being asked in Section 4 of the Special Marriages Act is the basic information that has to be provided to the marriage officer and the objections will be entertained only if that goes against the realm of Section 4 of the bare act. (AS Said by the High Court of Punjab and Haryana in a verdict of 2018).

In my opinion, prime facie, it looks that there is no infringement of privacy on the part of this act and it is high time now that the centre should enact or make the positive injunction injected by making a law on Uniform Civil Code which is given under Article 44 of the constitution. That will help to consolidate all the marriage acts making it one, that will help in streamlining the marriages in India.

Even the apex court of the country has several times raised this concern to make a Uniform Civil Code in various cases like Shah Bano, Sarla Mudgal and Justice Vikram. It also said the same in the 2015 Christian divorce case.

At the cessation, I would like to quote the words of justice Vikram Singh Slathia which is very apt in today’s situation. It is “without a uniform civil court labelling India to be a secular nation is just an illusion. Uniform civil code is necessary for India so that the same laws are valid for every citizen without taking religion into consideration.”

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