Plea in SC to delete certain provision of Special Marriage Act

Aastha Singh

10 Sep, 2020

Marriage is a private affair, no persona law requires any such provision to publish their private information in public, and in the lights of such circumstance these section throw a shadow on the right to privacy at the part of the parties wishing to marry under Special Marriage act

Under Hindu law, marriage is a sacred affair while under Muslim laws it is a contract. For ages adults of different religion and caste has been denied from their right to marry the individual of their choice. In order to rectify such lacuna Special Marriage Act was enacted with the view to solemnize marriage in secular way especially for couple of different religion.

But recently a law student filed a plea in the Supreme Court challenging the provisions of Special Marriage Act on the ground that it abridges the right to privacy guaranteed under article 21 of the Constitution. The Petitioner has challenged section 6(2), 7, 8 and 10 of the Special Marriage Act, 1954 for being unconstitutional as it makes it mandatory for the consenting adults to publish their personal information including name, address, mobile number etc. These provisions being unjust and discriminatory, hinders the fundamental right of citizen guaranteed by Art. 21 of theConstituting. For an Act to be legitimate and constitutional it has to pass through the spectrum of golden triangle laid down in MenekaGanndhi Case.

The petitioner has relied on the judgment given in 2017 in the case of Justice K. S. Puttaswamy v. Union of India that privacy is an integral part of right to life. Marriage is a private affair, no persona law requires any such provision to publish their private information in public, and in the lights of such circumstance these section throw a shadow on the right to privacy at the part of the parties wishing to marry under Special Marriage act.Themere fact that the consenting adults who want to enter wedlockaccording to the provisions of the Special Marriage Act is mandated to publish their personal details their fundamental right. For any information to be published in public without abridging Art. 21, it has to go through the test of
1. legality,
2. legitimacy and
3. proportionality

However, the provisions of SPA fails to pass the scrutiny of the said test and thus liable to be repealed. Section 5 of the Act requires that a notice has to be given to the marriage officer of the district by the person intending to get married. This notice is kept by the Officer in the Marriage Notice Book open for inspection without any fee all reasonable times. The notice is also published by affixing a copy to some conspicuous place in his office.

After thirty days of publication of notice, the marriage can be solemnized if no objection is raised by anyone on such marriage. It is pertinent here to point out that Special marriage Act was enacted to facilitate marriages in secular form by individuals of different religion or caste. However, the very essence of the Act is defeatedby publishing such information of marriage in the view that our country witness crimes related to marriages such as Honor Killing.Duration of 30 days in which anyone can object such marriage is arbitrary and unjust in its very essence.“In other words, couples are asked to waive the right to privacy to exercise the right to marry. This infringes the rights of autonomy, dignity and the right to marry, of various couples”. Publication of sensitive information such as address, phone number, identity information and pin-code poses a serious threat to individuals and directly abridges the right of privacy of the individuals.

In addition to this Section 8 and 9 of the Act allows anyone to object to marriage and gives power to the Marriage Officer to inquire and investigate into such objection. Section 10 of the Act facilities the power of Officer by vesting all such power as that of Civil Court in the matter of inquiry to the Marriage Officer. Thus, these provisions are violative, arbitrary and do not pass the test of Article 14, 19 and 21 of the Constitution of India.

Such provision of the Act does not only cast suspicion on the motive of At but also is discriminatory in nature, any such requirement of publication of notice containing the sensitive data of the individuals is not required under Hindu Laws or Muslim Law nor practised as custom in any personal law, and in the backdrop of Article 14, this provision is discriminatory by its very nature. Thus, the said provision of the act does not only overshadow the motive of the Act but puts unreasonable restriction on the freedom of the individuals to get married and takes away their right to control over their personal information which is a facet of Right to life.